Chapter 556: Suits by and Against Administrators

No action shall be sustained against an administrator if begun within six months after the original grant of administration, nor unless the demand has been exhibited to the administrator and payment has been demanded.

A notice sent to the administrator or his agent by registered mail, setting forth the nature and amount of the claim and a demand for payment, shall be deemed a sufficient exhibition and demand.

No such action shall be sustained unless the demand was exhibited to the administrator within six months after the original grant of administration, exclusive of the time such administration may have been suspended.

If the estate has been represented insolvent within said six months no such exhibition shall be necessary to entitle the creditor to have the demand allowed by the commissioner.

No suit shall be maintained against an administrator for any cause of action against the deceased, unless it is begun within one year next after the original grant of administration, exclusive of the time such administration may have been suspended, except in cases where he has retained estate in his hands for the payment of the claim by order of the judge, and cases provided for by RSA 556:7 and RSA 556:28.

Demands against an estate not due, and demands depending on a contingency, may be filed in the court of probate, and the judge, after due notice, may require the administrator to retain in his hands, on settlement of his account, such sum as may be necessary to pay them; unless the widow, heirs or legatees shall give bond to the judge for the payment thereof when due or when the contingency shall happen.

If a right of action existed in favor of or against the deceased at the time of his death, and survives, an action may be brought by or against the administrator at any time within one year after the original grant of administration.

Actions of tort for physical injuries to the person, although inflicted by a person while committing a felony, and the causes of such actions, shall survive to the extent, and subject to the limitations, set forth in RSA 556:10-14, and not otherwise.

If such an action is pending at the time of the decease of one of the parties it shall abate and be forever barred, unless the administrator of the deceased party, if the deceased was plaintiff, shall appear and assume the prosecution of the action before the end of the second term after the decease of such party, or, if the deceased party was defendant, unless the plaintiff shall procure a scire facias to be issued to the administrator of the deceased party before the end of the second term after the original grant of administration upon his estate. Provided, that in the latter case, the administrator shall forthwith notify in writing the adverse party or his attorney of record of such death and grant of administration, and such action shall not be barred until the end of the second term after the giving of such notice. Such notice shall be by registered mail, return receipt requested, and such administrator shall file an affidavit in the probate court, showing compliance with the provisions thereof, provided further however, that any justice of the superior court shall for good cause shown grant leave from any of the foregoing provisions as justice may require.

If an action is not then pending, one may be brought for such cause at any time within 6 years after the death of the deceased party, subject to the provisions of RSA 508.

I. If the administrator of the deceased party is plaintiff, and the death of such party was caused by the injury complained of in the action, the mental and physical pain suffered by the deceased in consequence of the injury, the reasonable expenses occasioned to the estate by the injury, the probable duration of life but for the injury, and the capacity to earn money during the deceased party's probable working life, may be considered as elements of damage in connection with other elements allowed by law, in the same manner as if the deceased had survived.

II. In addition, the trier of fact may award damages to a surviving spouse of the decedent for the loss of the comfort, society, and companionship of the deceased; however, where fault on the part of the decedent or the surviving spouse is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be subject to diminution to the extent and in the manner provided for in RSA 507:7-d. In no event shall damages awarded under this paragraph exceed $500,000.

III. In addition, where the decedent is a parent of a minor child or children, the trier of fact may award damages to such child or children for the loss of familial relationship, whether caused intentionally or by negligent interference; where the decedent is a minor child with a surviving parent or parents, the trier of fact may award damages to such parent or parents for the loss of familial relationship, whether caused intentionally or by negligent interference. However, where fault on the part of the decedent or the claimant is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be subject to diminution to the extent and in the manner provided for in RSA 507:7-d. For purposes of this paragraph, loss of familial relationship shall include the loss of the comfort, society, affection, guidance, and companionship of the deceased. In no event shall damages awarded under this paragraph exceed $300,000 per individual claimant.

The damages recoverable in such an action shall not exceed fifty thousand dollars except in cases where the plaintiff's decedent has left either a widow, widower, child, father, mother, or any relative dependent on the plaintiff's decedent in which event there shall be no limitation. In the trial of such an action the jury shall not be informed of the limitation, if any, imposed by this section and if the jury awards damages in excess of such limitation, the court shall reduce the amount of damages awarded to conform to such limitation.

In such cases, the damages recovered, less the expenses of recovery, expenses of administration, taxes or other debts as approved by the probate court, shall become a part of the decedent's estate and be distributed in accordance with the applicable provisions of law.

All other actions and causes of action existing in favor of or against a deceased person, except those for the recovery of penalties and forfeitures of money under penal statutes, shall survive, and may be prosecuted or defended by his administrator.

The administrator, as such, may maintain any action necessary and proper to be brought in relation to real estate set off to him for debts due the estate, and to the real estate of the deceased in cases of insolvency, until the administration is closed.

The administrator, as such, may prosecute and defend all real actions pending at the decease of the testator or intestate.

Any appeal to which the deceased was entitled, or which might be prosecuted against him at the time of his decease, may be begun or prosecuted by or against his administrator.

Any person interested in the estate of a person deceased may begin an action as administrator, which shall not be abated nor the attachment lost because such person is not administrator, nor by his decease, if the administrator then or afterward appointed shall, at the first or second term of the court, indorse the writ and prosecute it as plaintiff.

An action in which an administrator is party shall not be abated by reason of his death, or of the extinguishment or revocation of his trust, but may be prosecuted or defended by the administrator succeeding to the trust, who may be called into court by scire facias, in the same manner and with the like effect as upon the death of other parties.

The estate of a person deceased and the administrator thereof shall be liable upon joint demands against the deceased and another person, as they would be if the demands were joint and several, unless it appears that it was the intention of the parties that the survivor only should be liable.

A joint administrator or guardian may have an action of account or assumpsit against the other administrator or guardian who shall refuse to apply the estate in his hands to the discharge of the just demands against it, or who shall refuse to account therefor, and he shall recover the amount thereof to which he shall be entitled.

If an administrator, having been duly served with a scire facias, shall not become party to a suit, judgment may be rendered against the estate of the deceased in the same manner as if he had become a party.

In all cases where an administrator becomes a party to a pending suit he shall be entitled to one continuance as of course.

Writs of attachment and execution against administrators, where the cause of action existed against the deceased, shall run only against the goods or estate of the deceased, and the administrator shall not be arrested, or his estate be attached or levied upon, in such action.

Upon return of "no goods," or "waste," made by the sheriff on such execution, an execution may be awarded on scire facias against the goods, estate and person of the administrator, as for his own debt, to the amount of such waste, if it can be ascertained, otherwise to the amount of the whole debt.

The probate court may authorize administrators and guardians to adjust by compromise or arbitration any controversy between them and persons making claims against the estates in their hands. The attorney general or the director of the register of charitable trusts shall be a necessary party to any agreement between an executor and creditors or legatees or heirs-at-law whenever such agreement may directly or indirectly affect a charitable interest, residuary or otherwise, created in any estate.

Whenever any person has a claim against the estate of a deceased person, which has not been prosecuted within the time limited by law, such person may apply to the court having subject matter jurisdiction over the nature of the claim, by petition setting forth all the facts; and if the court shall be of the opinion that justice and equity require it, and that the claimant is not chargeable with culpable neglect in not bringing or prosecuting his or her suit or claim within the time limited by law, it may extend the time for filing and prosecuting the claim to a date certain; however, no such extension or judgment entered upon the claim shall affect any payments or compromises made before the beginning of the proceedings.

If no administration shall have been granted upon the estate of a deceased person within two years from the date of death, no creditor of the deceased shall thereafter be entitled to maintain any action or proceeding in any court to appropriate the real estate or interests therein of which the deceased died seized, to the payment or satisfaction in whole or in part of his claim against the estate.

The provisions of RSA 556:29 shall not apply to the estate of a person deceased prior to five o'clock p.m., April 8, 1941, until two years from said date.

I. A communication between an attorney and a client acting as an administrator is privileged and protected from disclosure to the same extent as if the client was acting in his, her, or its individual capacity and was not acting as an administrator.

II. The privilege under paragraph I is not waived by a fiduciary relationship between the administrator and a beneficiary of the decedent's estate or the use of any property comprising the estate to compensate the attorney for legal services rendered to the administrator.

III. If an attorney's client is an administrator, then the attorney's client is only the person acting as administrator. A successor administrator is not the attorney's client solely by reason of succeeding the person with whom the attorney had an attorney-client relationship.

IV. An administrator and a successor administrator may agree to share privileged communications relating to some or all matters involving the estate. The disclosure of privileged communications under the agreement does not waive the disclosing party's privilege. Unless the agreement provides otherwise, privileged communications disclosed under the agreement shall not be disclosed to a third party without the disclosing party's consent or a court order.