Probate & Trust Litigation

A resource for lawyers and the public in Massachusetts and New Hampshire for information on will contests, trust disputes, guardianships, conservatorships, elder exploitation, fiduciary duty claims, and other probate litigation disputes.


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Ralph Holmes Adam M. Hamel Christopher Paul Alexandra Cote Caitlin McCurdy Andrea Schweitzer

NH Estate & Trust Deadlines

To help colleagues navigate the deadlines and time requirements governing NH probate and trust law, we offer the following shorthand list with links to relevant statutes and rules.  Please let us know your suggestions about how we might improve this resource.  Please consult the law directly in making decisions respecting client matters.  Time periods are generally ordered chronologically and are organized under the following headings:

          LITIGATION DEADLINES & TIME PERIODS

          ESTATE DEADLINES & TIME PERIODS

          TRUST DEADLINES & TIME PERIODS

We are always happy to discuss with counsel general law and practice issues.  Please call any time.

LITIGATION DEADLINES & TIME PERIODS

  1. Computing Time Periods     
    1. In computing time periods under the Probate Court Rules, the day of the act, event, or default that starts the period is not included, and, if the last day is a weekend or Court holiday, then the last day shall be the next day the Court is open, Probate Court Rule 12
  2. Case Initiation
    1. The Return Day, usually the first Tuesday of a month, is set forth in the Court’s Order of Notice issued upon filing of a Petition, Probate Court Rule 1
    2. Upon filing a Petition, the petitioner may select a Return Day within the next 3 months, Probate Court Rule 124
    3. Respondent shall file an Appearance (Special or General) with the Court no later than 7 days after the Return Day and, if not moving to dismiss on jurisdiction grounds, an Answer within 30 days of the Return Day  in the Order of Notice, Probate Court Rule 131 and Probate Court Rule 127
    4. The filing of a Counterclaim requires leave of Court unless filed within 30 days of the Return Day, Probate Court Rule 33
    5. Unless a motion to dismiss for lack of personal jurisdiction has been filed within 30 days of the Return Day, a Special Appearance becomes a General Appearance and personal jurisdiction shall be uncontested, Probate Court Rule 14
    6. If brought within 60 days of the Return Day, a third party action by a respondent shall be consolidated with the original action without need to show good cause for consolidation, Probate Court Rule 27
    7. If brought within 60 days of the filing of a counterclaim, third party action by a petitioner shall be consolidated with the original action without need to show good cause for consolidation, Probate Court Rule 27
    8. A Replication to the Answer shall be filed within 10 days of its filing, Probate Court Rule 137
  3. Amendments
    1. Amendments to pleadings must be proposed by Motion and, if granted, the answering party has 10 days to answer, Probate Court Rule 135 and Probate Court Rule 136
  4. Case Structuring & Discovery
    1. In all contested cases, the Court shall schedule a Structuring Conference, 10 days before which each party shall file a Summary Statement, Probate Court Rule 62
    2. A party must disclose experts within 30 days of a request or as provided in the Court’s Structuring Conference Order, Probate Court Rule 35
    3. Interrogatories shall be answered within 30 days, Probate Court Rule 36
    4. In responding to interrogatories, party may object to questions as improper or, within 20 days of service of the interrogatories move to strike, Probate Court Rule 36
    5. Interrogatory propounder may file a motion to compel within 20 days of service of the answers, Probate Court Rule 36, Probate Court Rule 44
    6. Interrogatory propounder may move for conditional default upon a party’s failure to answer within 30 days or enlarged agreed upon period, Probate Court Rule 36
    7. Upon receiving notice of conditional default from the Court, party has 10 days to answer interrogatories and move to strike default, Probate Court Rule 36
    8. Expert or physician report covered by an interrogatory request obtained after interrogatory answers were provided shall be promptly produced and no later than 10 days before a pretrial settlement conference, Probate Court Rule 36
    9. When an objection is withdrawn to an interrogatory, the party shall answer in 10 days, Probate Court Rule 36-A     
    10. Except by agreement or Court order, no deposition shall be taken within 20 days of service of the Petition, Probate Court Rule 38
    11. A deposition shall be scheduled with reasonable notice, which shall not be less than three days, exclusive of the day of notice and that of service, and notice of 20 days or more shall generally be reasonable notice, Probate Court Rule 38
    12. A Request for Admissions shall be deemed admitted unless within 30 days after service a sworn denial or appropriate objection is served on the requesting party and the Court, Probate Court Rule 54
  5. Motions & Hearings
    1. A party has 10 days to object to a Motion, Probate Court Rule 58
    2. A request for oral argument or evidentiary hearing shall be filed within 10 days of the opposing party’s filing, Probate Court Rule 58
    3. Motions to dismiss shall be heard as soon as practicable, and no later than 30 days prior to the date scheduled for trial, Probate Court Rule 58
    4. Generally, the Court shall provide at least 10 days’ notice of any hearing, Probate Court Rule 60
    5. A Motion to Continue shall be filed within 10 days of the date of the hearing notice, Probate Court Rule 49
    6. Motions to reconsider shall be filed within 10 days of the Order at issue, Probate Court Rule 59-A           
  6. Stipulations, Trials, & Post-Trial Proceedings
    1. Parties shall file pleadings to dispose of a case within 30 days of informing the Register that a case is settled, Probate Court Rule 51     
    2. Stipulations shall be signed by both parties and counsel and, if handwritten, the Court may require filing of a typewritten substitute within 10 days, Probate Court Rule 150
    3. Requests for Findings and Rulings and Trial Memoranda shall be filed as provided in the Structuring Conference Order, by the close of evidence, or at such later date directed by the Court, Probate Court Rule 72
    4. Party who objected to trial deposition questions shall provide the Court a transcript at the Pretrial Conference or, if there is no Pretrial Conference, 10 days before trial in order for the Court to rule on the objections, Probate Court Rule 45-A
    5. Justices and masters shall file decisions with their respective Registers within 60 days of the close of the trial proceedings, Probate Court Rule 72-A
    6. All appeals shall be deemed waived where no timely Motion to Reconsider or appeal has been filed, Probate Court Rule 7

ESTATE DEADLINES & TIME PERIODS

  1. Timing of Death
    1. Survival by 120 hours is default rule to avoid presumption of simultaneous death, RSA 563:2
    2. Unexplained of absence of at least 4 years required to be found presumed dead, RSA 563:5
  2. Filing the Will
    1. Within 30 days of knowledge of death, will custodian shall deliver it to the Court or the nominated administrator, RSA 552:2
    2. Within 30 days of knowledge of death, the nominated administrator shall file the will with the Court and:
      1. If the estate has assets, shall cause the will to be proved or shall file a declination of nomination; or
      2. If the estate has no assets, shall provide a certificate of death for the decedent, RSA 552:3
  3. Administrator Appointment & Administration Time Periods
    1. A person who is not first nominated in the will may not be appointed until all nominees with priority decline to serve or none of them have applied for estate administration within 30 days of death, RSA 553:3
    2. Within 14 days of allowance of a will benefiting a charity, the clerk shall send a copy to the Director of Charitable Trusts, Probate Court Rule 99
    3. Within 15 days of appointment of the administrator, the Court clerk shall cause a notice to be published if the estate has a value more than $10,000, RSA 553:16
    4. From the date of appointment, the administrator:
      1. Shall within 60 days provide notice to the surviving spouse, legatees, and heirs that the will has been proved, RSA 552:15
      2. Shall within 90 days certify to the judge that the above notice has been given, RSA 552:15
      3. Shall within 90 days file an inventory, RSA 541:1, RSA 554:26-a, RSA 553:13 (A temporary administrator must file an inventory within 60 days of appointment, RSA 553:20-a)
      4. May following 6 months move for summary administration, RSA 553:33
      5. May following 6 months and less than one year file an affidavit for waiver of administration, RSA 553:32
      6. May following 6 months move to distribute assets of an estate determined to be insolvent, RSA 554:19-b
      7. Shall, if summary or waiver of administration has not been elected, within 1 year and annually thereafter file an account, RSA 554:26, RSA 554:26-a, RSA 553:13
        1. For estates opened solely to pursue a cause of action, the administrator may move to suspend the accounting requirement, subject to a limit of 3 years, and, if granted file, shall file status reports instead, Probate Court Rule 101
    5. Within 15 days of notice that an estate contains real estate in another county, the Court shall notify that county’s registry of deeds, RSA 554:14-a
  4. Administrator Agent
      1. Administrator shall immediately appoint a NH agent if she:
        1. Resides out of state upon appointment;
        2. Intends to leave the state for year, RSA 553:25 or
        3. Agent becomes incapacitated or position becomes vacant, RSA 553:27
  5. Sale, Mortgage, and Lease of Estate Property
    1. If no license for sale of real estate is necessary due to consent or sale direction under will, administrator shall notify the Court of the net proceeds within 30 days of receipt, Probate Court Rule 107
    2. In a sale, mortgage, or lease of real estate pursuant to license, Administrator shall notify the Court of the net proceeds within 30 days of receipt, Probate Court Rule 106-B
    3. Upon a sale of real estate by license, administrator shall file an affidavit and an account within 1 year of the sale, RSA 559:15
    4. License to sell real estate shall not extend beyond 2 years from the date granted, RSA 559:14
    5. License to mortgage decedent’s real estate may not be obtained after two years from the date of the administrator’s appointment and any such license may not extend beyond ninety days from the granting thereof, RSA 554:33
    6. License to foreign fiduciary to sell NH personalty shall not be granted until 6 months after decedent’s death, RSA 554:29
  6. Objection Periods
    1. Interested party has:
      1. 10 days to object to a motion under LITIGATION DEADLINES & TIME PERIODS above;
      2. 10 days to object to an inventory, Probate Court Rule 105-A
      3. 30 days to object to an account, RSA 550:11, Probate Court Rule 108-A
  7. Will Contests
    1. Within 6 months of allowance of will without notice, a contestant must move to have will proved in solemn form, RSA 552:7
    2. Time periods for case structuring, discovery, trial, etc. will be governed by LITIGATION DEADLINES & TIME PERIODS
       above
  8. Creditor Claims
    1. Within six months of grant of administration (“Demand Period”), creditor must exhibit demand upon administrator, RSA 556:3
    2. Within six months following Demand Period, creditor must bring suit, RSA 556:5 and RSA 556:7
    3. Court having jurisdiction over claim has power to allow otherwise late filed claim to proceed, RSA 556:28
    4. If no estate was opened within two years of death, creditor may not reach real estate of the decedent, RSA 556:29 
    5. LITIGATION DEADLINES & TIME PERIODS above will apply insofar as claim is brought in Probate Court
  9. Spousal Rights
    1. Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for 3 years prior to death shall be deemed to have been legally married, RSA 457:39
    2. Surviving spouse is entitled to remain in the home rent free for 40 days from date of death, RSA 560:2
    3. To obtain an elective share, the surviving spouse must waive the will and release homestead rights within six months of the administrator’s appointment or at such later date as permitted by the Court, RSA 560:14
    4. Intestate share of surviving spouse is subject to forfeiture on account of willful abandonment or neglect for 3 years preceding death, RSA 560:18
  10. Business Operation
    1. Authority may be granted for no more than a year at a time, RSA 553:30
  11. Testamentary Trusts
    1. Trustee shall file an annual account, which requirement the Court can waive for a period of no more than 5 years, RSA 564:19

TRUST DEADLINES & TIME PERIODS

  1. Mandatory vs. Default
    1. Per RSA 564-B:1-105, most provisions of the New Hampshire Trust Code (“NHTC”) are not mandatory and where such “default” provisions are in conflict the terms of a trust, the trust will control.  The discussion below notes whether the referenced law is “default” or “mandatory”.
  2. Notices to Beneficiaries (Default)
    1. A trustee of an irrevocable trust shall:
      1. Notify beneficiaries over age 21 of his/her trustee acceptance and contact information within 60 days of the later of:
        1. His/her trustee acceptance; or
        2. Death of the surviving settlor;
      2. Notify beneficiaries over age 21 of the trust’s existence, their right to request a trust copy, and right to a trust report within 60 days of the trustee’s learning of:
        1. Trust creation or funding and death of surviving settlor; or
        2. Formerly revocable trust has become irrevocable, the trust has been funded, and surviving settlor has died;
      3. Promptly furnish a beneficiary over age 21 a copy of the trust upon request;
      4. Promptly respond to reasonable beneficiary questions;
      5. Send a report to beneficiaries annually upon trustee vacancy and termination; and
      6. Notify beneficiaries over age 21 within 60 days of change in the trustee’s compensation, RSA 564-B:8-813
  3. Objection Periods (Default)
    1. Beneficiary has:
      1. 30 days to object to notice of modification or termination of uneconomic trust, RSA 564-B:4-414
      2. 60 days to object to proposed decanting if notice informs the beneficiary of the right to object and time allowed for objection, RSA 564-B:4-418
      3. 60 days to object to proposed modification if notice informs the beneficiary of the right to object and time allowed for objection, RSA 564-B:4-419
  4. Limitation Periods (Mandatory)
    1. Claim of creditor of settlor as to settlor’s transfer of assets to an irrevocable trust with a spendthrift clause is barred:
      1. 4 years after the date of the transfer; or
      2. If the claimant was a creditor on the date of transfer, 1 year after the creditor discovered or should have discovered in due care the transfer, RSA 564-B:5-505A
    2. Claim of creditor of settlor upon death of settlor is barred:
      1. If claim is known to trustee, 1 year from the date trustee sends the creditor notice that states, inter alia, claim not brought in 1 year shall be barred, RSA 564-B:5-508
      2. If claim is unknown to trustee, 1 year from the date trustee publishes notice that states, inter alia, claims not brought in 1 year shall be barred, RSA 564-B:5-508
    3. Claim against irrevocable trust upon termination is barred:
      1. If claim is known to trustee, 1 year from the date trustee sends the creditor notice that states, inter alia, claim not brought in 1 year shall be barred, RSA 564-B:5-509
      2. If claim is unknown to trustee, 1 year from the date trustee publishes notice that states, inter alia, claims not brought in 1 year shall be barred, RSA 564-B:5-509
    4. Contest of trust validity is barred upon the earliest of:
      1. 3 years of settlor’s death for a trust that was revocable at death;
      2. 3 years from the date trustee provides beneficiary notice under RSA 564-B:8-813(c) of establishment of irrevocable trust or conversion of revocable trust into an irrevocable trust; or
      3. 180 days from the date trustee sends notice that states, inter alia, contest not brought within 180 days shall be barred, RSA 564-B:4-406, RSA 564-B:6-604 
    5. Claim by a beneficiary against a trustee, trust advisor, or trust protector is barred upon the earliest of:
      1. 1 year from the date of a report adequately disclosing the potential claim and the 1 year limitations period;
      2. 3 years from the earliest of:
        1. Removal, resignation, or death of the fiduciary;
        2. Termination of the beneficiary’s trust interest;
        3. Termination of the trust; or
        4. The sending of a report adequately disclosing the potential claim, RSA 564-B:10-1005, RSA 564-B:12-1206
    6. Claim by a trustee, trust advisor, or trust protector against a trustee is barred:
      1. If not actionable by beneficiary; or
      2. If actionable by a beneficiary, upon 3 years of the earlier of:
        1. The date the fiduciary was sent a report adequately disclosing the potential claim; or
        2. Removal, resignation, or death of the trustee, RSA 564-B:10-1005A
  5. Miscellaneous (Default)
    1. Nominated trustee who does not affirmatively accept trusteeship after a reasonable time is deemed to have rejected the position, RSA 564-B:7-701           
    2. A trustee may resign upon 30 days’ notice to settlor, beneficiaries, and any co-trustees, RSA 564-B:7-705
    3. Departing trustee must expeditiously deliver trust assets to successor, RSA 564-B:7-707
    4. Trustee shall have no liability for failure to exercise power or carry out duty formerly belonging to another fiduciary who vacated his/her position for 60 days following the vacancy, RSA 564-B:7-712
  6. Testamentary Trusts
    1. Testamentary trusts, which are administered under the supervision of the Court, are discussed under Estates Deadlines & Time Periods above