Probate Law in NH - An Overview

This article discusses the basics of Probate procedure in New Hampshire . We will try to provide a broad overview of the process of probating an estate. You also can get a good overview of the process from the court’s perspective  by going to the court’s website, www.courts.state.nh.us/probate. You will find a lot of “how to” materials including checklists, forms and a handbook on administering estates.  In fact, the court’s online information may be all one needs for handling small and uncomplicated estates. However, as stated in the handbook, the information available “is not a substitute for legal advice”. Accordingly, should you find yourself in the position as the executor or administer of even a small uncomplicated estate, you should give serious consideration to meeting with a lawyer to review the various issues and your options. A simple session or two can help you avoid making potentially serious mistakes. Conveniently, all probate matters are now part of the e-filing system, which is designed to make filing with the Court easier.

 At the heart of probate administrative procedure is the concept of “fiduciary duty”. It is the standard by which the executor/administrator’s performance judged. In fact you will often see administrators/executors referred to as fiduciaries. A fiduciary duty is the highest standard of care imposed at law. A fiduciary is required to be extremely loyal to the estate and may not put their personal interests before their duty to the estate. Any deviation may result in the executor/administrator being personally responsible for any loss sustained by the estate. This is why a corporate surety fiduciary bond is most often required as part of the process of getting things started. A fiduciary bond protects the estate should there be any deviation from the fiduciary standard. The standard applies to all actions taken to administer the estate by the executor/administrator who must ensure that the estate is managed and distributed in accordance with law. While an attorney is not required to probate an estate, involving a lawyer minimizes the likelihood of inadvertent deviation from the fiduciary standard.

The process of probating an estate is simple and complicated at the same time. It is simple in the sense that the personnel at the Probate court have done an excellent job in providing materials and instructions on the court’s website. It is complicated because to probate an estate one has to know, understand and be able to apply the law in preparing forms. For example, what happens when a surviving child is not mentioned in a will? Can he/she inherit anyway? What about a surviving spouse that is not mentioned? Or an unmarried life partner? The administrator/executor must be able to answer questions such as these to fill out one of the forms required to open an estate and in doing so is required to meet the fiduciary standard. Having a lawyer involved makes the process of accurately completing the forms much easier

All assets need to be identified and an inventory be provided to the Probate Court within a specific time frame of getting the Certificate of Appointment. In preparing this inventory for the court, one has to distinguish between probate assets and non-probate assets. This is often not as simple as one might think. For example, depending on the deed, a home may be a probate asset or a non-probate asset. Depending on the beneficiary, a life insurance policy may be a probate on non-probate asset. Bank accounts and retirement plans also may or may not be probate assets. Even the family cars may or may not be includable as probate assets.  Again, having the assistance of an attorney during this phase can make the process easier and much less stressful.

What else happens during the process of probating an estate is dependent on a number of different things.  If there are no other outstanding issues, a Waiver of Administration may be appropriate as soon as six months after the Certificate of Appointment is issued. If 12 months have passed after the Certificate of Appointment was issued, an executor/administrator’s accounting will need to be submitted. There may be other rules that need to be followed in other scenarios that have not been discussed in this note. All and all the process can be quite overwhelming, particularly given the fiduciary obligation discussed in an earlier column. Using a law office to assist in the process will relieve that pressure. At Parnell, Michels and McKay we have many years of experience in handling probate matters and will knowingly, intelligently and with empathy guide you through the process. Contact us if you need assistance. 

Guardianship of Minor and the Opioid Crisis

            The Opioid Crisis has gripped our nation for several years. However, news agencies and governmental bodies have only begun taking steps in recent years to help stem the tide. This past summer, New Hampshire made waves for becoming the first state in the country to provide grandparents preferential treatment to obtain a guardianship over their minor grandchildren when the parents suffer from substance abuse. The law came into effect on January 1, 2018.

The framework for Guardianship Law in New Hampshire can be found in RSA 463. New Hampshire Law provides for two forms guardianships: Person or Estate. Guardianship of another’s person means the Guardian is responsible for decisions ensuring the safety and well-being of the child as aligned in accordance the child’s best interest. Guardianship of another’s estate means the Guardian is responsible for ensuring the safekeeping and maintenance of the child’s property and finances. These forms of guardianships apply to adults as well.

Guardianships of any variety for any class could be quite difficult to secure when contested. In the fact for minors, in most circumstances, the Court still applies a “clear and convincing” evidentiary standard in order for the Court to find that a guardianship over the person of a minor is necessary. See RSA 463:8, III(b). Clear and convincing is considered the “medium” evidentiary standard. A Petitioner under this standard would be required to prove that it is substantially more likely than not that a guardianship will be in the child’s best interest. Therefore, it was once the case that unless parents willingly entered into a guardianship, guardianships over the person of a minor were not easily attained against the wishes of the parent, no matter the scenario.

However, a new section of RSA 463:8, III(b) reads as follows: “If guardianship is sought by the minor’s grandparent as the result of the parent’s substance abuse or dependence, the burden of proof shall be on the petitioner to establish by a preponderance of the evidence that a guardianship of the person is in the best interests of the minor.” This change in the law significant lowers the standard for grandparents seeking to deliver their grandchild from dangerous environments where the parents decision-making capacity is extraordinarily flawed. The “preponderance of the evidence” is the least rigorous evidentiary standard, if put into a percentage, the standard would mean that more than 50% of the evidence points to a particular conclusion. This is the same standard used in any civil trial.

While there are two sides to every story, the chances of abuse on a law like this are minimal. The parties are still required to appear in front of judges to determine whether a guardianship is put in place. Further, the law restricts the use of the lessened evidentiary standard to an intimate family member that likely has particular knowledge about raising the child and/or a special relationship with that child already. Further, the law maintains the extra evidentiary level of protection in other guardianship cases. It is unfortunate that a law like this needs to exist in the practical reality we now live in, but with laws like this the State of New Hampshire is trying to take steps on a pressing issue while insuring the family unit remains together as best as possible in trying times.    

Understandably, guardianships can be an extremely emotional time for any potential Petitioner. While petitions are now filed online through the Court’s E-Filing system, it is worthwhile to contact an attorney before filing to ensure you receive the best legal and practical advice. The attorneys at Parnell, Michels & McKay are well-able to provide such a two-pronged advice to guide you through trying times. As guardianships meet at the intersection of Probate and Family law, if you are interested in learning more about guardianships or have other questions in the areas of Family or Probate law, please contact us to learn more.  

2018 Third Annual Pro Bono Hockey Game a Success

                Sunday January 14^th was the third annual Pro Bono Hockey game between Team Justice and Team Liberty. The game was played at St. Anselm College in Goffstown, NH, which provided a great venue for the event. I was a close battle all game long. Ultimately, Team Liberty prevailed in a 6-5 overtime thriller. They were led by captain Hon. Paul Lawrence, and goalie Joe DiBrigida from Sheehan Phinney. Judge Lawrence netted a goal and two assists to pace Team Liberty, and Neil Nicholson and Justin Veiga also factored in significantly on the game. Team Justice was led by Matthew Burrows who finished with three goals to lead Team Justice. The game was a tremendous success with positive feedback from all participants and our sponsors.

                                                   

                The game saw over $4,000 in funds raised for pro bono, and a big thanks goes out to all the players and fans who attended the game. Big thanks goes out to the sponsors: Upton Hatfield, McCandless and Nicholson, Connelly Reporting, Gallagher Callahan and Gartrell and of course, Parnell, Michels & McKay. Divine Millimet and Orr and Reno were also banner sponsors of this wonderful event.

                We at Parnell, Michels and McKay are proud supporters of the New Hampshire Pro Bono Referral Program, and of helping our community and those in need. We look forward to continuing to sponsor such a great event well into the future. 

SHOULD YOUR CORPORATION BE A BENEFIT CORPORATION (AND WHAT IS A BENEFIT CORPORATION)?

I am sure many of us have heard the reports in print and online media that Millennials are becoming the largest consumer group and that they often choose to spend their money at companies which practice good corporate citizenship.  This includes supporting corporations which put their money where their mouth is by donating services, products or a percent of their profits to underserved communities or other charitable causes.  Think about the company that donates shoes to the underprivileged or a family in a third world country if you buy a pair of shoes from them.  Or, the company that donates a percentage of their profits to a particular charity.  How are these companies set up in their state of incorporation?

Thirty-three states, at last count, have statutes that apply to these so-called, benefit corporations.  New Hampshire has a benefit corporation statute at NH RSA 293-C which took effect on January 1, 2015.  Directors of a benefit corporation are permitted, and may be required, to consider the social benefits of their decisions in addition to profit motives.  Some statutes have been criticized as being too vague and not giving enough guidance to the directors.  New Hampshire requires the corporation to have a material positive effect on society or the environment.  The NH law defines a specific public benefit to include providing low-income or underserved individuals or communities with beneficial products or services; protecting the environment; improving healthcare; or, promoting the arts and sciences.  The statute also has certain reporting requirements which must be met.

The allowance of benefit corporations in New Hampshire is an attractive development for community and environmentally minded business owners.  It enables them to practice their social values without sacrificing the ability to make a profit.  But it is advisable to contact an attorney to set up the corporation and provide advice on the operation of the business.

If you would like to start a benefit corporation or would like to convert your current corporation to a benefit corporation, please contact an attorney in our office.  We offer advice to all types of corporations, limited liability companies and other business entities designed to achieve each client’s goals and needs.

Considering Premarital Cohabitation in an Equitable Division of Property

In August of 2016, the New Hampshire Supreme Court issued a decision In the Matter of Munson and Beal which gives the Court the clear ability to consider the parties’ premarital cohabitation in the determination of an equitable division of marital property. 

Every discussion about the division of marital property begins with what is marital property.  Many clients come into our office with the belief that assets titled to that party individually or assets that party brought into the marriage are not marital assets.  This is wrong.  In New Hampshire, RSA 458:16-a defines marital property as all assets titled to either party individually or to the parties jointly. This means that all assets are marital assets, no matter how they are titled. The statute also requires the Court to divide the “marital property” equitably, but states there is a presumption that “equal” is “equitable”.  This presumption means that in most cases, the marital property will be divided equally. However, the Court is permitted to deviate from an equal division based on a number of factors or special circumstances. Those factors or special circumstances include the length of the marriage, whether property was owned by one party prior to marriage, the disparity in the parties’ earnings or abilities to acquire assets in the future, and any other factor the court deems relevant in equitably dividing the parties’ assets.

The Munson and Beal decision dealt specifically with the length of the marriage and the trial court’s application of that factor to the determination of an equitable division of marital assets.  In Munson and Beal, the parties were a same-sex couple. They had lived together for about 15 years before entering into a civil union in 2008. In January of 2011, their civil union converted to a marriage by operation of law. In March of 2012, Ms. Munson filed for divorce. At trial Ms. Munson argued that the court should consider the fact that their marriage was of short duration in the equitable division of assets. Ms. Beal argued that the court should consider their 21 year relationship in the equitable division of assets. The trial court issued a decree of divorce awarding Ms. Munson approximately 88% of the marital assets relying heavily on the date of the civil union being the start of the marriage. The trial court concluded that the marriage was a short-term marriage and as such, an equal division of assets was not appropriate. The court refused to consider the parties’ premarital cohabitation when it divided the marital assets.

Ms. Beal appealed the trial court’s decision to the New Hampshire Supreme Court.  The Supreme Court looked at RSA 458:16-a and the many prior cases concerning that statute. With regard to the length of the marriage, the Supreme Court noted prior decisions finding that a marriage of short duration may be considered differently than a long-term marriage, and that the duration of the marriage is only one of the factors for the court to consider when equitably dividing the assets.  The Supreme Court also noted that in prior cases, the Court had not found it necessary to decide whether the trial court may consider premarital cohabitation under RSA 458:16-a, II. Relying on the statute’s language permitting the trial court to consider “[a]ny other factor that [it] deems relevant”, the Supreme Court held that the trial court has the discretion to consider premarital contribution in divorce proceedings when determining whether to apply the presumption that an equal division of assets is an equitable division of assets. As the trial court apparently believed it had no discretion to consider the premarital cohabitation, the Supreme Court vacated that portion of the trial court’s decree of divorce.

Although this case involved a same-sex couple, the Supreme Court was clear to state that the holding in this case that the court may consider premarital cohabitation applies to all divorce proceedings.

As RSA 458:16-a gives the trial court the discretion to consider a number of factors in deciding how to equitably divide the parties’ assets, it is important to discuss these factors and the facts of your case with an experienced family law attorney.  The family law attorneys at Parnell, Michels & McKay have the experience necessary to help you decide whether it would be worthwhile to pursue these factors at trial.  

THE OTHER GUY DID NOT GET A TICKET. HOW CAN I RECOVER FOR MY INJURY?

It is a common and understandable misconception that someone injured in a car accident cannot successfully bring a claim unless the person they are considering going after was issued a traffic ticket as a result of the accident. While a ticket can help with the liability argument, it really is not necessary to proving a case. To understand why, it is necessary to understand the difference between what is necessary to prove a crime and what is necessary to prove a civil wrong. The key here is what we call the “Burden of Persuasion”.

Simply put, the burden of persuasion is the level of certainty the proponent must establish to the trier of fact that the proponent’s assertions are correct. In criminal cases, the burden of persuasion is beyond a reasonable doubt. Criminal cases include virtually all traffic offenses. In civil matters, which include establishing fault in auto accident cases, the burden of persuasion is a preponderance of the evidence, or better understood, the more likely than not standard. Judges often explain beyond a reasonable doubt in their jury instructions to consider that there is a reasonable doubt if based on all that has been heard the person making the decision would be uncomfortable with a criminal conviction. A preponderance of the evidence, on the other hand, is that based on all that has been heard the person making the decision believes it is “more likely than not” that what the Plaintiff is arguing is true. Reasonable doubt can exist and a person still found to be responsible civilly for an accident. This is because the standard for criminal conviction is so high.

To issue a ticket for a traffic violation, an officer must make an assessment based upon what he or she has observed at the time. Moreover, they must have some sense of being able to prove that a crime has been committed. If the officer is unable to get to that point, they are not likely to issue a ticket. However, that means only that an assessment has been made by the officer that the criminal standard cannot be met. Whether the civil standard can be met is simply not part of the officer’s analysis and has no bearing on the decision to issue a ticket. Sometimes, it has nothing to do with the burden of persuasion, and has more to do with an officer providing a “break” or a warning to someone they feel just made a mistake.

Whether the civil standard can be met is an analysis that needs to be made by individuals qualified by training and experience in automobile litigation. It should not be made by someone without that training and experience. Nor should someone without the training and experience trust that analysis to one that has an interest in the outcome or “a dog in the fight”. Such individuals include not only the person causing the accident, but also their representative, including their insurance representatives. Appropriate persons to make this analysis include experienced plaintiff attorneys, most of whom will conduct the analysis at no charge and make meaningful, fair and well thought out recommendations. At Parnell, Michels and McKay we take great pride in our analysis and in providing meaningful, fair and well thought out recommendations at no cost to injured parties who have questions about their ability to secure compensation for injuries.

If you or someone you know is injured by someone else, do not let the decision to seek fair compensation be determined by whether or not charges are filed. Hopefully this post sheds some light on why that should not be the case. Talk to a trained and experienced injury lawyer and be sure to understand your rights.