PROBATE COURTS AND DECEDENTS' ESTATES
JUDGES OF PROBATE AND THEIR JURISDICTION
547:1 Court of Record.
The court of probate is a court of record for all purposes, and each probate court shall be provided with a seal bearing upon its face the name of the court and the name of this state.
Source. RS 152:2, 19. CS 161:2, 19. GS 170:1. GL 189:1. PS 182:1. PL 293:1. RL 346:1. 2011, 88:10, eff. July 1, 2011.
547:2 Meaning of Terms.
The word judge, as used in this title, means a judge of probate in the state of New Hampshire to whose court the jurisdiction of the subject matter belongs.
Source. RS 152:2, 19. CS 161:2, 19. GS 170:1. GL 189:1. PS 182:1. PL 293:2. RL 346:2. RSA 547:2. 1997, 100:4, eff. Jan. 1, 1998.
547:2-a Full-Time Judges.
A probate judge designated to be full-time pursuant to RSA 491-A:4, IV shall not be permitted to engage in the practice of law to any degree. Full-time probate judges shall receive the salary specified in RSA 491-A:1. Full-time judges designated pursuant to RSA 491-A:4, IV shall assist the probate courts in the other counties whenever a probate judge in such other county is disqualified, disabled, or otherwise unable to sit.
Source. 1987, 384:2. 2003, 311:2, eff. July 1, 2003.
I. The probate court shall have exclusive jurisdiction over the following:
(a) The probate of wills.
(b) The granting of administration and all matters and things of probate jurisdiction relating to the composition, administration, sale, settlement, and final distribution of estates of deceased persons, including the establishment of death of a person presumed dead and assignment of homestead and claims against the executor or administrator for those services related to the prior care and maintenance of the decedent and the administration of insolvent estates and appeals therefrom.
(c) The interpretation and construction of wills and the creation by judgment or decree, interpretation, construction, modification, and termination of those trusts described in RSA 564-A:1, I.
(d) The administration of those trusts described in RSA 564-A:1, I, and the appointment, removal and surcharge of trustees of such trusts.
(e) The appointment and removal of conservators, and of the guardians of minors, mentally incompetent persons and spendthrifts, and in relation to the duties imposed by law on such conservators and guardians, and the management and disposition of the estates of their wards.
(f) The adoption of children.
(g) The change of names of persons who reside in the county and who apply therefor.
(i) Durable powers of attorney for health care under RSA 137-J.
(j) The interpretation and effect of living wills under RSA 137-J.
(l) Petitions to quiet title of real estate pursuant to RSA 547:11-c.
(m) Declaratory judgment actions pursuant to RSA 547:11-b.
(n) Any other jurisdiction as may be granted by statute.
II. The probate court shall have concurrent jurisdiction with the superior court over the following:
(a) Subject to RSA 498:4-a, cases involving charitable uses and trusts other than those trusts described in RSA 564-A:1, I, over which the probate court has exclusive jurisdiction as provided in RSA 547:3, I(c) and (d).
(b) Durable powers of attorney under RSA 564-E.
(c) Waivers for marriage of minors pursuant to RSA 457:6-457:7.
(d) Ancillary matters as defined in RSA 547:3-l.
(e) Petitions for partition pursuant to RSA 547-C.
III. The probate court shall have concurrent jurisdiction with the district court over ancillary matters as defined in RSA 547:3-l.
IV. Nothing in this section shall be construed to confer upon the probate court any additional authority over inter vivos trusts beyond that authority exercised by the superior court prior to the adoption of this section.
V. The administrative judge of the circuit court may appoint one or more referees to any matter which is not contested and to which no objection has been filed, or to which all parties have assented, for any cases arising under subparagraphs I(a), (b), and (g). Any referee so assigned shall act under the direction of a judge of probate as defined in RSA 490-F:6, III. Any party aggrieved by a decision made by a referee pursuant to this paragraph may file a request for reconsideration within 10 days of the clerk's notice of decision, and if such request is filed, the matter shall be reviewed by a judge of probate.
Source. RS 152:3. CS 161:3. GS 170:2. GL 189:2. PS 182:2. PL 293:3. RL 346:3. RSA 547:3. 1973, 431:1. 1992, 284:49. 1993, 190:4. 1997, 100:5, 6. 2005, 280:1. 2006, 91:2, 3, eff. May 5, 2006; 302:5, eff. Jan. 1, 2007. 2008, 97:1, eff. May 21, 2008; 109:3, 10(I), eff. July 27, 2008. 2017, 178:4, eff. Jan. 1, 2018. 2021, 207:2, Pt. III, Secs. 1 and 2, eff. Oct. 9, 2021.
547:3-a Issues to Court.
In any proceeding before a probate court involving material facts which are in dispute, the probate court shall have jurisdiction to try such factual issues to court after due notice to all interested parties. However, the probate court may, if the interests of an estate require it, appoint a special administrator under RSA 553:20.
Source. 1992, 284:50, eff. Jan. 1, 1993.
547:3-b Equity Jurisdiction.
The probate court shall have the powers of a court of equity in all cases within its subject matter jurisdiction in which there is not a plain, adequate, and complete remedy at law. The court may hear and determine such cases according to the course of equity, and may grant writs of injunction whenever the same are necessary to prevent fraud or injustice.
Source. 1992, 284:50. 2006, 91:4, eff. May 5, 2006. 2008, 109:4, eff. July 27, 2008.
547:3-c Deviation from Terms of Trust.
In all cases where by reason of a change of circumstances which has occurred, shall occur, or is reasonably foreseeable, subsequent to the creation, heretofore or hereafter, of a trust by any deed, will or other instrument, compliance by the trustee or trustees with the terms of the trust relating to the property or the kinds of classes of property which may be held under the trust would defeat or substantially impair the accomplishment of the purposes of the trust, the court may, upon the filing by the trustee of a bill in equity for instructions and upon notice to all parties in interest, enter a decree permitting the trustee to deviate from such terms of the trust and directing the trustee, if necessary to carry out the purposes of the trust, to sell all or any part of the property held under the trust and to invest the proceeds of such sale in kinds or classes of property which are lawful investments for trustees of estates. No such decree, after its entry, shall thereafter operate to relieve any trustee of any duty imposed by law relating to the investment of trust funds and the exercise of reasonable care for the preservation thereof. This section shall not be construed to limit or restrict the general equitable jurisdiction of the court over the trustees, trusts or trust funds.
Source. 1992, 284:50, eff. Jan. 1, 1993.
547:3-d Cy Pres Doctrine.
I. If property is or has been given in trust to be applied to a charitable purpose, and said purpose or its application is or becomes impossible or impracticable or illegal or obsolete or ineffective or prejudicial to the public interest to carry out, the trust shall not fail. Upon petition by the trustee or trustees or the attorney general, the probate court may direct the application of the property to some charitable purpose which is useful to the community, and which charitable purpose fulfills as nearly as possible the general charitable intent of the settlor or testator. In applying the doctrine of cy pres, the court may order the distribution of the trust assets to another charitable trustor to a charitable corporation to be held and administered by it in accordance with the terms of the governing instrument as said terms may be modified by the application of cy pres under this section and RSA 547:3-e.
II. Prior to any court proceeding under this chapter on the intent to offer for sale or change the use of any land, buildings, or both, given, devised, or bequeathed to the town for charitable purposes, the municipality shall hold at least one public hearing with no less than 14 days notice.
Source. 1992, 284:50, eff. Jan. 1, 1993. 2008, 109:5, eff. July 27, 2008.
547:3-e Federal Taxation.
Whenever it shall be made to appear to the court that the intention of the testator or settlor of a charitable trust will be frustrated in whole or in part by reason of a tax imposed under the United States Internal Revenue Code on the income or principal of the trust, or by reason of administrative burden or disproportionate cost of administration, then the court, in order to prevent the diversion of funds from the charitable purpose by federal taxation, may enter a decree:
I. Modifying or enlarging the powers granted the trustee, or declaring that a trustee does not have certain powers under New Hampshire law to the extent necessary in order to bring the terms of the governing instrument into compliance with the tax exemption requirements of federal law.
II. Authorizing the trustee to make charitable distributions from principal.
III. Terminating the trust and directing the distribution of the trust assets to another charitable trust or to a charitable corporation, to be held and administered in accordance with the terms of the governing instrument as said terms may be modified by the application of cy pres under RSA 547:3-d and this section.
IV. Removing the trustee or trustees, or directing the appointment of new or additional trustees.
V. Reducing or limiting the charitable organizations or classes of charitable organizations or charitable objects which may be benefited under the trust instrument.
Source. 1992, 284:50, eff. Jan. 1, 1993.
547:3-f Inapplicability of Cy Pres.
Whenever it shall appear to the court that any proposed cy pres application would not be proper because it is in violation of New Hampshire law, the court shall enter a decree denying said proposed cy pres application and stating the reason therefor.
Source. 1992, 284:50, eff. Jan. 1, 1993.
For the purposes of RSA 547:3-h and for the purposes of any petition for deviation under RSA 547:3-c or under common law equity powers the following words shall have the meanings ascribed here unless the context indicates otherwise:
I. "Charitable trust" means any fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it and subjecting the person by whom the property is held to equitable duties to deal with the property for charitable or community purposes.
II. "Trustee" means:
(a) Any individual, group of individuals, corporation or other legal entity holding property in trust pursuant to any charitable trust or charitable purpose.
(b) A corporation formed for the administration of a charitable trust pursuant to the directions of the settlor or at the instance of the trustee.
Source. 1992, 284:50, eff. Jan. 1, 1993.
547:3-h Termination of Charitable Trusts.
If the probate court, upon application by the trustee or trustees, finds that the continuance of a charitable trust is impracticable or unfeasible, and that the charitable purpose of the settlor or testator can be accomplished by a transfer of the trust assets to another charitable trust or corporation, or to the beneficiaries of said trust, the trust is subject to termination by the court upon such terms and conditions as it may impose. This section shall not be construed to limit or restrict the general equitable jurisdiction of the court over trustees, trusts or trust funds.
Source. 1992, 284:50, eff. Jan. 1, 1993.
547:3-i Change of Name.
I. The probate court may grant the petition of any person to change the name of that person or the name of another person. The court shall not require the petitioner to obtain consents to the name change. The court may proceed with or without notice, in accordance with RSA 550:4.
II. Before the probate court may grant a change of name for a person who is incarcerated, or on probation or parole, or for a person who is required, pursuant to RSA 651-B, to register as a sexual offender or an offender against children and who is no longer subject to supervision by the department of corrections, the petitioner shall make a compelling showing that a name change is necessary. For a person who is incarcerated, or on probation or parole, the petitioner shall serve a copy of the petition, pursuant to RSA 547:29, on the department of corrections. For a person who is required to register as a sexual offender or an offender against children and who is no longer subject to supervision by the department of corrections, the petitioner shall serve a copy of the petition, pursuant to RSA 547:29, on the department of safety. Upon ruling on the petition, the probate court shall issue a copy of its order to the department of corrections or, if the petitioner is no longer subject to the supervision of the department of corrections, to the department of safety.
Source. 1996, 150:1. 1997, 100:7. 1999, 160:1. 2000, 50:1. 2003, 81:1, eff. July 29, 2003.
547:3-j Attachments, Executions, and Levies.
The probate court may issue, modify, vacate, release, or dissolve attachments and levies of execution on personal property and real estate in affording redress for causes within its jurisdiction in the same manner as the superior court may under RSA 511, RSA 511-A, RSA 512, RSA 528, and RSA 529 for causes within its jurisdiction.
Source. 2002, 47:1, eff. April 26, 2002. 2007, 117:4, eff. June 11, 2007.
547:3-k Exemption from the Rule Against Perpetuities.
The probate court shall not apply the common law rule against perpetuities to any disposition of property or interest therein, created after the effective date of this section, if:
I. The instrument making the disposition or creating the interest contains a provision which expressly exempts the instrument from the application of the rule against perpetuities; and
II. The trustee, or other person to whom the power is properly granted or delegated, has the power under the governing instrument, applicable statute, or common law, to sell, mortgage, or lease property for any period of time beyond the period that is required for an interest created under the governing instrument to vest in order to be valid under the rule against perpetuities.
Source. 2003, 143:1, eff. Jan. 1, 2004.
547:3-l Jurisdiction over Ancillary Matters.
Ancillary matters are claims for liquidated or non-liquidated damages or for the recovery of money or property brought on behalf of an estate, trust, conservatorship, or guardianship against a third party or brought by a third party against an estate, trust, conservatorship, or guardianship including claims against a fiduciary bond and entry or possessory actions; provided, however, that with respect to any such claims in which the right to trial by jury exists and is demanded by any party, or any claims for penalties or other relief under a statutory or regulatory enactment providing for enforcement through or review by the superior court, the superior court shall have exclusive jurisdiction.
Source. 2008, 109:6, eff. July 27, 2008.
547:4 Repealed by 1992, 284:86, VI, eff. Jan. 1, 1993.
547:5 Repealed by 1992, 284:86, VII, eff. Jan. 1, 1993.
547:6 Repealed by 1992, 284:86, VIII, eff. Jan. 1, 1993.
547:7 Repealed by 1992, 284:86, IX, eff. Jan. 1, 1993.
547:8 Probate of Will, Etc.
Probate of the will and granting administration on the estate of a person deceased shall belong to the judge for the county in which such person was last an inhabitant; but if such person was not an inhabitant of this state the same shall belong to the judge for any county in which such person had estate, or in which the personal representative or kin of such person has a cause of action.
Source. RS 152:7. CS 161:7. GS 170:6. GL 189:6. PS 182:8. 1905, 8:1. PL 293:8. RL 346:8.
547:9 Settlement of Estates.
All proceedings in relation to the settlement of the estate of a person deceased shall be had in the probate court of the county in which his will was proved or administration on his estate was granted.
Source. RS 152:8. CS 161:8. GS 170:7. GL 189:7. PS 182:9. PL 293:9. RL 346:9.
547:10 Guardianship Proceedings.
All proceedings in relation to the property or estate of a person under guardianship shall be had in the court of probate of the county in which the guardian was appointed.
Source. RS 152:9. CS 161:9. GS 170:8. GL 189:8. PS 182:10. PL 293:10. RL 346:10.
547:11 Enforcement of Orders, Etc.
The judge shall have power to enforce all orders and decrees made by him in the exercise of any authority or jurisdiction conferred upon him, and to punish contempts of his authority, as the superior court has in like cases. Whenever it appears necessary to preserve or protect the assets of any estate, the judge, on application or upon his own motion, may impound the books, records and assets of any fiduciary or may enjoin the withdrawal of any moneys or deposits or transfers of any securities by any fiduciary, or may direct the temporary investment of the assets of any estate in securities approved by the judge or require them to be deposited in any bank or institution authorized to receive deposits.
Source. 1911, 129:1. PL 293:11. RL 346:11. RSA 547:11. 1957, 240:2, eff. July 31, 1957.
547:11-a Authority on Accounting by Fiduciaries.
In any accounting by an executor, administrator, trustee, guardian, or other fiduciary, the judge may require him, or any of them if there are more than one, to produce during the proceedings or afterward, as he may direct, any securities or moneys comprised in the account or any documents relating to the investments of the estate, and to replace any moneys or property that have been improperly applied or disposed of, or the value thereof, and to pay or transfer the same or any moneys or property with which the fiduciary or fiduciaries may be charged into a proper account or otherwise, as he may order, in such manner that the same shall be in the control of the persons entitled thereto; and the proceedings upon every such account shall be considered for all purposes to be proceedings in equity, and orders and decrees of the judge therein shall be enforceable accordingly.
Source. 1957, 240:3, eff. July 31, 1957.
547:11-b Declaratory Judgments.
Any person claiming a present legal or equitable right or title to real or personal property in the estate of deceased persons or to guardianship, conservatorship, or trust assets may maintain a petition against the estate, guardian, conservator, or trustee to determine the question as between the parties, and the probate court's judgment or decree thereon shall be conclusive. The existence of an adequate remedy at law or in equity shall not preclude any person from obtaining such declaratory relief.
Source. 1992, 284:51. 1993, 190:6. 1996, 265:8, eff. Jan. 1, 1997.
547:11-c Quiet Title.
An action may be brought in probate court by any person claiming title to, or any interest in, real or personal property, or both, in partition under RSA 547-C, listed in the estate of a deceased person or listed as guardianship, conservatorship, or trust assets over which the probate court has jurisdiction, against the estate, guardian, conservator, or trustee who may claim to own the same, either in fee, for years, for life or in reversion or remainder, or to have any interest in the same, or any lien or encumbrance thereon, adverse to the plaintiff, or in whom the land records disclose any interest, whether or not the plaintiff is entitled to the immediate or exclusive possession of such property, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the same. In any action brought under this provision, where applicable, the procedure set forth in RSA 498:5-b through 5-d shall be followed.
Source. 1992, 284:51. 2000, 232:9, eff. Jan. 1, 2001.
547:11-d Transfer to Superior Court.
In cases where a right to jury trial is guaranteed by the constitution or granted by statute, a plaintiff desiring a jury trial shall file the action in the superior court, and filing the action in the probate court where there is concurrent jurisdiction shall constitute a waiver of a jury trial by the plaintiff. If the defendant desires a jury trial, the defendant shall indicate the request for a jury trial at the time of the defendant's initial pleading with the court. Failure to timely request a jury trial shall constitute a waiver by the defendant thereof. If a jury trial is requested by the defendant, the matter shall be transferred to the superior court.
Source. 1992, 284:51, eff. Jan. 1, 1993. 2011, 88:11, eff. July 1, 2011.
547:11-e Repealed by 2011, 88:29(28), eff. July 1, 2011.
547:11-f Motions for Summary Judgment.
In any proceeding in the probate court, summary judgment may be granted in accordance with procedures established by supreme court rule.
Source. 1993, 190:7, eff. Jan. 1, 1994.
Disqualifications and Vacancies
547:12 Drawing Will.
He shall not make or draft a will for any other person, and all wills so made or drawn after July 16, 1864, shall be void.
Source. 1864, 2882:4. GS 170:18. GL 189:23. PS 182:11. PL 293:12. RL 346:12.
547:13 Acting as Counsel.
He shall not act as counsel or advocate in any business in, or which may be brought into any probate court. No attorney shall be permitted to practice before any probate judge who is a partner, associate, employee or employer of said attorney, or is a stockholder in a professional corporation for the practice of law in which said attorney is stockholder. Full-time probate judges under RSA 547:2-a shall be prohibited from the practice of law to any degree.
Source. 1866, 4251:1. GS 170:19. GL 189:20. PS 182:12. PL 293:13. RL 346:13. RSA 547:13. 1969, 242:1. 1987, 384:5, eff. May 26, 1987.
He shall not act as judge in the settlement of any estate wherein he is interested as heir or legatee, executor, or administrator, or as guardian or trustee of any person.
Source. RS 152:10. CS 161:10. GS 170:9. GL 189:9. PS 182:13. PL 293:14. RL 346:14.
547:15 If Disqualified to Sit.
If the judge disqualifies himself, by reason of a conflict of interest or otherwise, to sit in any case, he shall cause a record of the disqualification to be made and shall adjourn the case to another time and place. Upon the assignment of the administrative judge of the probate court, a full-time judge or, if he is unavailable, another judge shall have the power to make any decree or order which could have been made by the judge before whom the case was originally entered, had he not disqualified himself.
Source. RS 152:11. CS 161:11. 1864, 2882:1. GS 170:10. GL 189:10. PS 182:14. PL 293:15. RL 346:15. RSA 547:15. 1981, 518:1. 1987, 384:6. 1992, 284:52, eff. Jan. 1, 1993.
547:16 Compensation of Judge Acting for Another.
Such judge shall be allowed the same per diem compensation as is generally allowed to masters by the superior court plus his reasonable expenses, which shall be paid by the state.
Source. RS 152:13. CS 161:13. 1864, 2882:2. GS 170:11. GL 189:11. PS 182:15. PL 293:16. RL 346:16. 1953, 106:1. RSA 547:16. 1963, 127:1. 1979, 125:2. 1983, 383:49. 1997, 100:8, eff. Jan. 1, 1998.
547:17 Records; Appeals.
The records in the case shall be kept, and appeals shall be claimed and allowed, in the county where the case may be pending.
Source. RS 152:12. CS 161:12. GS 170:12. GL 189:12. PS 182:16. PL 293:17. RL 346:17.
Whenever there is a vacancy in the office of the judge of probate of any county, the administrative judge of the probate court shall call upon the judge of some other county, who shall act during such vacancy. Such judge who is called upon shall receive the same per diem compensation determined by the supreme court upon recommendation by the judicial branch administrative council, plus reasonable expenses, which shall be paid by the state.
Source. 1883, 71:1. PS 182:17. 1917, 107:1. PL 293:18. RL 346:18. 1953, 106:2. RSA 547:18. 1963, 127:2. 1967, 401:1. 1987, 384:7. 1992, 284:53, eff. Jan. 1, 1993.
547:18-a Absence or Inability to Attend.
Whenever a judge of probate in any county shall be absent or unable to attend a session of the probate court, the administrative judge of the probate court shall call upon the judge of some other county, who shall act during such absence or inability. Such judge who is called upon shall receive per diem compensation determined by the supreme court upon recommendation by the judicial branch administrative council, plus reasonable expenses, which shall be paid by the state.
Source. 1967, 401:2. 1979, 125:1. 1983, 383:50. 1987, 384:8. 1992, 284:54, eff. Jan. 1, 1993.
547:19 Powers of Judge Acting for Another.
The judge so holding court is authorized to do any business that the judge for the county could lawfully do.
Source. 1883, 71:2. PS 182:18. 1917, 107:2. PL 293:19. RL 346:19. RSA 547:19. 1997, 100:9, eff. Jan. 1, 1998.
547:19-a Retirement Due to Disability.
Notwithstanding any other provisions of law, any judge of probate who shall become unable to perform his duties because of permanent disability shall be retired from regular active service on the bench for the remainder of his term. Any such judge who desires to retire because of inability to perform his duties shall certify to the governor and council his disability to perform his duties. If they find him unable to perform his duties because of permanent disability, the governor and council shall order his retirement from regular active service. If a judge of probate who is permanently disabled to perform his duties shall be unable or unwilling to certify his disability, any three justices of the probate court shall certify in writing his disability to the governor and council, who shall, if they find him after due notice and hearing, unable to perform his duties because of permanent disability, order his retirement from regular active service. The governor and council upon retirement of any such judge of probate as provided herein shall appoint a successor to serve out the remainder of the term. Any judge of probate who has served in such capacity for a period of at least ten years in said office, retired from regular active service because of permanent disability, shall receive during the remainder of his term a salary equal to one-half the salary being paid to him at the time of his retirement, except in case of his election to take other retirement benefits as hereinafter provided. Any judge retired from active regular service under the provisions hereof who is also a member of the state employees' retirement system or the New Hampshire retirement system shall be entitled to retire with disability benefits under either of said systems, upon notification to the retirement board. If, however, said judge elects to take payments under the provisions of this section he shall thereby forfeit all rights to any benefits provided under said employees' or New Hampshire retirement system.
Source. 1969, 346:1, eff. Aug. 29, 1969.
547:19-b Retirement Due to Constitutional Age Limitation.
Any judge of probate who is not a full-time judge under the provisions of RSA 547:2-a who retires from active regular service due to the provisions of RSA 493:2, relative to the constitutional age limitation, before January 1, 1981, after having served in such capacity for at least 7 years, or on January 1, 1981 or thereafter, having served in such capacity for at least 20 years; shall receive thereafter and until his death a salary equal to 3/4 of $19,102 plus an adjustment proportional to any general pay increase granted to judicial branch employees payable in the same manner that salaries of judges of probate are paid. Such payments shall be a charge against the biennial appropriations for the probate court or from funds otherwise unappropriated. Retirement payments as provided in this section shall be in lieu of any rights or benefits under the New Hampshire retirement system to which such judge would otherwise be entitled. Any judge of probate who is a member of the state employees' retirement system or the New Hampshire retirement system may terminate his membership therein and upon termination any accumulated contributions shall be paid over to him on written request. No judge of probate whose membership is not so terminated shall be eligible for payments under this section.
Source. 1979, 255:1. 1987, 384:9, eff. May 26, 1987.
547:19-c Retired Judges of Probate.
Each judge of the probate court retired therefrom by age limitation who has served on such court shall upon retirement become a referee. Such referees shall be empowered to act as such in the probate courts, and their powers and the procedures for hearings before them shall be determined by statute or rule of court. Such referees shall be allowed their expenses and a per diem compensation determined by the supreme court upon recommendation by the judicial branch administrative council, established pursuant to supreme court rule.
Source. 1979, 409:1. 1992, 284:55, eff. Jan. 1, 1993.
547:19-d Retirement at Age 65.
Any judge of probate, who is not a full-time judge under the provisions of RSA 547:2-a, who retires upon becoming 65 years old after having served in such capacity for at least 20 years, shall receive thereafter and until his death a salary equal to 3/4 of the sum of $19,102 plus an adjustment proportional to any general pay increase granted to judicial branch employees. Such payments shall be a charge against the biennial appropriations for the probate court, and shall be included by the administrative office of the courts in its request for appropriations. Retirement payments as provided in this section shall be in lieu of any rights or benefits under the New Hampshire retirement system to which such judge would otherwise be entitled. Any judge of probate who is a member of the state employees' retirement system or the New Hampshire retirement system may terminate his membership therein and upon termination any accumulated contributions shall be paid over to him on written request. No judge of probate whose membership is not so terminated shall be eligible for payments under this section.
Source. 1981, 385:1. 1987, 384:10, eff. May 26, 1987.
Place of Holding Court
547:20 At Dwelling-house, Etc.
The judge may attend at the dwelling-house or in the neighborhood of the residence of an administrator, guardian, trustee or other person who shall be unable, by reason of sickness or other sufficient cause, to attend the court of probate at the time and place appointed by law, whenever the personal attendance of such person is required.
Source. RS 152:14. CS 161:14. GS 170:13. GL 189:13. PS 182:19. PL 293:20. RL 346:20.
He may adjourn his court for the transaction of any business to any convenient time and place.
Source. RS 151:16. CS 161:16. GS 170:15. GL 189:15. PS 182:20. PL 293:21. RL 346:21.
547:22 Repealed by 1987, 384:15, I, eff. May 26, 1987.
547:22-a Transitional Adjustment.
Notwithstanding RSA 491-A:4, judges of probate who are not full-time judges under RSA 547:2-a and who were appointed prior to the effective date of this section shall receive as annual salary for a period of 10 years either (a) the sum of $19,102 plus 50 percent of the total amount of special session fee income received in 1985; or (b) the salary established for such judge through the application of the weighted caseload compensation schedule set forth in RSA 491-A:4, plus 50 percent of the total amount of special session fee income received in 1985; whichever is greater. After 10 years, these judges shall be compensated by application of the weighted caseload compensation schedule pursuant to RSA 491-A:4.
Source. 1987, 384:4, eff. May 26, 1987.
547:22-b Probate Court Judges Expenses.
The judges shall be entitled to receive their actual personal expenses when absent from their assigned court in the performance of their official duties. The judges shall not be reimbursed for mileage to commute from the judge's residence to their assigned court except for any mileage in excess of 50 miles each way.
Source. 2004, 91:4, eff. July 6, 2004. 2009, 60:5, eff. Aug. 2, 2009.
547:23 Repealed by 1987, 384:15, II, eff. May 26, 1987.
547:24 Other Compensation Prohibited.
The judge shall not receive any compensation directly or indirectly for services by him rendered relating to any probate business, except his salary and any per diem compensation as provided by law.
Source. 1866, 4251:1. GS 170:19. 1876, 42:1. GL 189:20. PS 182:24. PL 293:24. RL 346:24. RSA 547:24. 1987, 384:11, eff. May 26, 1987.
547:25 Repealed by 1987, 384:15, III, eff. May 26, 1987.
The deposition of any witness or other person who may be required to be sworn before the judge, and who shall live out of the state, or who shall be unable to appear and testify by reason of infirmity or other sufficient cause, may be taken before any person duly authorized by the judge.
Source. RS 152:17. CS 161:17. GS 170:16. GL 189:17. PS 182:22. PL 293:25. RL 346:25.
547:27 Repealed by 2011, 88:29(29), eff. July 1, 2011.
547:27-a Docket and Index.
The probate court shall keep a docket of all cases and matters, and an index thereto which shall be open to public inspection at all reasonable times.
Source. 2011, 88:12, eff. July 1, 2011.
I. The probate court shall appropriately retain all wills and their probate; all proceedings with regard to real estate; all accounts settled, and all orders, decisions, and appointments from which an appeal may be claimed.
II. The probate court, subject to the approval of the supreme court, shall establish and implement retention and destruction schedules for those original files, papers, and records in cases and matters disposed of by the court.
Source. 2011, 88:12, eff. July 1, 2011.
547:27-c Probate Court Entry Fees.
I. Entry fees as established by the supreme court under RSA 490:26-a shall be paid to the clerk of each applicable circuit court established in RSA 490-F for the benefit of the state.
II. The clerk shall set aside 6 percent of each entry fee paid into the court for deposit into a special escrow account established under RSA 490:26-c and 30 percent of each entry fee paid into the court for deposit into the judicial branch information technology fund established under RSA 490:26-h. The proceeds of fees for motions to appear in court pro hac vice shall be paid into the law library revolving fund established in RSA 490:25, III.
Source. 2011, 88:12, eff. July 1, 2011. 2013, 88:6, eff. July 1, 2013.
Any judge who violates any of the provisions of this chapter shall be guilty of a misdemeanor.
Source. 1866, 4251:4. GS 170:21. GL 189:22. PS 182:25. PL 293:27. RL 346:27. RSA 547:28. 1973, 529:125, eff. Oct. 31, 1973 at 11:59 p.m.
547:29 Service of Process.
Sheriffs, deputy sheriffs and constables are required to serve any legal process to them directed by a judge of probate.
Source. RS 152:18. CS 161:18. GS 170:17. GL 189:18. PS 182:26. PL 293:28. RL 346:28.
547:30 Transfer of Questions of Law to Supreme Court.
In any case, matter or proceeding in a court of probate, the court at any time may certify to the supreme court any questions or propositions of law concerning which instructions are desired for the proper decision of any matter before it and thereupon the supreme court may give binding instructions on the questions and propositions certified.
Source. 1947, 90:1. RL 346:29.
The judge of probate may employ a stenographer who shall make a stenographic record of any contested proceeding.
Source. 1949, 76:1. RL 346:30.
Such stenographer when so employed shall be allowed the same compensation as a stenographer appointed by the superior court who is not on salary and shall be reimbursed for his actual expenses when away from home, and the same shall be paid by the state; provided that the court, in its discretion, may charge such stenographic expense to the parties involved or may apportion such stenographic expense among the state and the parties involved if, in the judgment of the court, the financial circumstances of the parties warrant such a change or apportionment.
Source. 1949, 76:1. RL 346:31. RSA 547:32. 1975, 395:7. 1983, 383:52, eff. Jan. 1, 1984.
547:33 Rules and Forms.
The judges of the probate courts or a majority of them shall from time to time make rules for regulating the practice and for conducting the business in their courts in all cases not expressly provided for by law and shall prescribe forms, and, as soon as convenient after making or prescribing them, shall submit a copy of their rules, forms and course of proceedings to the supreme court, which may alter and amend them, and from time to time make such other rules and forms for regulating the proceedings in the probate court as it considers necessary in order to secure regularity and uniformity.
Source. 1957, 139:1, eff. July 22, 1957.
547:34 Repealed by 1979, 159:1, eff. Aug. 5, 1979.
547:35 Notice of Hearings, Etc.
The supreme court and the probate courts shall make rules requiring notice of any hearing, motion or other proceeding before said courts to be given to parties interested or to the attorneys of record thereof.
Source. 1957, 139:1, eff. July 22, 1957.
547:36 Repealed by 1979, 159:1, eff. Aug. 5, 1979.
547:37 Retired Judges as Masters; Special Masters.
I. Appointment in Contested Cases. A probate judge may appoint as a master in any contested case such former judge of the probate court as has retired therefrom by age limitation when to do so will expedite the business of the court. If a probate judge is unable for any cause to sit in any case, a member of the Bar of New Hampshire who is a disinterested justice of the peace, or a disinterested justice or special justice from a district court, attending upon written request of the sitting judge and approval of the administrative judge of the probate court, may hear as master and make recommendations as to the disposition of the case. Said appointed special master shall keep a record of the case, which shall be kept with and constitute a part of the records of said court, all of which shall be approved by the judge of said court before the order is issued.
II. Compensation. Such master or special master when sitting as master shall be allowed per diem compensation determined by the supreme court upon recommendation by the judicial branch administrative council, established pursuant to supreme court rule, plus reasonable expenses. If the parties are indigent, the probate court, in its discretion, may assess such charges against the state; provided, however, that all bills submitted by the master for compensation shall first be submitted to the probate judge for approval.
Source. 1979, 284:1. 1983, 383:53. 1992, 284:56, eff. Jan. 1, 1993.
547:38 Repealed by 2011, 88:29(30), eff. July 1, 2011.