Chapter 552: Probate of Wills

No will shall be effectual to pass either real or personal estate unless duly proved and allowed in the court of probate; and the probate of a will devising real estate shall be conclusive as to its due execution, as in case of a will of personal estate.

Every person having the custody of a will shall, within 30 days after he has knowledge of the decease of the testator, deliver it to the court of probate, or to the person named therein as executor.

The person named as executor of a will shall, within 30 days after the decease of the testator, or within 30 days after the person has knowledge of being so named, whichever is later, file the will in the probate court. If the estate contains any assets, the named executor shall cause the will to be proved or shall file a written refusal to accept the trust. If the estate contains no assets, the named executor shall provide a certificate of death for the decedent and shall file the will with no administration.

Any person who shall neglect any duty required by RSA 552:2 and 552:3 shall, unless he gives an excuse satisfactory to the court of probate, forfeit the sum of twenty dollars for each month he shall so neglect after said thirty days, to be recovered by any person having an interest in the will.

If a person having in his custody a will neglects to deliver it to the court of probate, after being duly cited for that purpose, he may be imprisoned by warrant issued by the court until he shall deliver it.

The executor named in the will or any person presenting the will for probate shall, with his petition for appointment, file a list of the names of the surviving spouse and known heirs at law of the testator, their relationships, and their addresses, if known.

Any will meeting the requirements of RSA 551:2-a, RSA 551:5, II, or RSA 551-A:10 is self-proved and shall be allowed as such by the probate court.

If the probate of a will is not contested the judge may allow and approve it in common form, upon the testimony of one of the subscribing witnesses, though the others are living and within process of the court, or upon the assent of the surviving spouse, legatees, devisees, heirs at law and, in the case of an unnamed charitable interest, the assent of the director of charitable trusts, without the need for a witness to appear.

Any party interested may have the probate of a will which has been proved without notice re-examined, and the will proved in solemn form before the court of probate at any time within 6 months of such probate. Any issue related to the execution of a will, testamentary capacity, or fraud, duress, or undue influence shall be tried to the court of probate, and any party interested may request the same within 6 months of such probate.

A petition for that purpose may be presented to the judge, and notice thereof shall be given to the executor, personally, if practicable, and shall be published. If, upon hearing and re-examination, the probate shall not be confirmed, the will and probate shall be void.

A minor, insane person or person out of the United States, or their legal representatives, may have the probate of a will proved without notice re-examined at any time within one year after the removal of the disability.

If a will filed in the probate office shall not be presented for probate by the executor, or by a person interested therein, the judge, on application of the widow or an heir of the deceased, and due notice, may approve and allow or disallow it; and the decree so made shall be of the same force as if made on application of the executor, or of a person interested in the will.

No decree approving and allowing or disallowing a will shall be made in solemn form until guardians have been appointed for all minors and others interested therein who are incapacitated to take care of their estates, and until agents have been appointed by the judge for all persons interested who reside out of the state or are unknown.

If the attesting witnesses, after the execution of a will, become incompetent from any cause, or if the court determines that the testimony of such witnesses is unavailable under the circumstances, the will may be proved and allowed upon other satisfactory evidence.

A duly authenticated copy of a will made out of this state, which has been proved and allowed by a court of probate or by a court of similar powers in one of the United States, or in a foreign country, and a duly authenticated copy of the probate of such will, upon the written application of a party in interest, and upon such citation and notice as the court shall order, may, by a decree of the court of probate, be filed and recorded in the probate office; and thereupon the will shall have the same effect as if executed with the formalities required by the laws of this state and duly proved and allowed.

The executor, or any person interested, may produce such copies to the judge of any county in which there is estate on which the same may operate, and may in writing request the same to be filed and recorded; and if, upon due notice, no sufficient objection is made such copies shall be decreed to be so filed and recorded.

Every executor shall, within sixty days after his appointment, notify each legatee specifically named in the will of the fact that such legatee appears to be interested therein, and shall notify the surviving spouse and heirs at law, if known, that the will has been proved, and shall, within ninety days after his appointment, certify to the judge that notice as herein required has been given, stating in what manner and to whom.

The notice shall be in form prescribed by the probate court, and shall be delivered by such executor to such legatee, surviving spouse and heirs at law in person or by sending the same by mail, postage prepaid, addressed to the last known place of residence or place of business of such legatee, surviving spouse and heirs at law. When the legatee is a corporation, association or institution notice shall be given to the president or treasurer thereof.

If such legatee shall not be living, or such corporation, association or institution shall have discontinued business, notice by mail as herein required shall be sufficient.

I. During his or her life, an individual may commence a judicial proceeding to determine the validity of his or her will, subject only to the will's subsequent modification or revocation. For purposes of commencing the proceeding under this section, the individual must be domiciled in this state or own real property located in this state. A person acting as an individual's guardian, conservator, or attorney-in-fact shall not commence the proceeding on behalf of the individual.

II. If the petitioner is domiciled in this state, then the venue for the judicial proceeding shall be in the county where the petitioner has his or her domicile. If the petitioner is not domiciled in this state but owns real property located in this state, then the venue for the judicial proceeding shall be in the county where any of that real property is located.

III. In addition to the petitioner, each of the following persons is an interested person in the judicial proceeding:

(a) The petitioner's spouse;

(b) The persons who, if the petitioner had died on the date of filing the petition, would be the petitioner's heirs;

(c) The legatees and devisees under the terms of the will;

(d) The executors nominated in the will;

(e) If a charitable organization is a legatee or devisee or the will contains any charitable interest, the director of charitable trusts; and

(f) Any other persons who, if the petitioner had died on the date of filing the petition, would be interested parties in a judicial proceeding to prove the petitioner's will.

IV. For the purposes of this section, each of the interested parties shall be deemed possessed of inchoate property rights.

V. Notice shall be given to each of the interested parties. The court may order notice be given to other persons. In connection with the judicial proceeding, a person may represent and bind another person in accordance with Article 3 of RSA 564-B.

VI. In the judicial proceeding, the petitioner is the proponent of the will, the will shall be proved in solemn form, and the burden of proof and presumptions shall be the same as in a proceeding to prove the will in solemn form. After a hearing, the court shall declare whether the will is valid or invalid, and it may make other findings of fact and conclusions of law that are appropriate under the circumstances.

VII. After the individual's death, the will for which there is a declaration of validity under this section shall have full legal effect as the individual's will and, upon request, shall be admitted to probate and conclusively deemed proved, except to the extent that the will is modified or revoked after the court's declaration.

VIII. A will for which there is a declaration of validity under this section may be modified or revoked in the same manner as a will for which there is no declaration of validity under this section.

IX. An individual's failure to commence a judicial proceeding under this section shall not be construed as evidence or an admission that the individual's will is invalid for any reason.