PROBATE COURTS AND DECEDENTS' ESTATES
DESCENT, DISTRIBUTION, AND ADVANCEMENTS
561:1 Distribution Upon Intestacy.
The real estate and personal estate of every person deceased, not devised or bequeathed, subject to any homestead right, and liable to be sold by license from the court of probate in cases provided by law, and personally remaining in the hands of the administrator on settlement of his or her account, shall descend or be distributed by decree of the probate court:
I. If the deceased is survived by a spouse, the spouse shall receive:
(a) If there is no surviving issue or parent of the decedent, the entire intestate estate;
(b) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, and there are no other issue of the surviving spouse who survive the decedent, the first $250,000, plus 1/2 of the balance;
(c) If there are no surviving issue of the decedent but the decedent is survived by a parent or parents, the first $250,000, plus 3/4 of the balance of the intestate estate;
(d) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, and the surviving spouse has one or more surviving issue who are not the issue of the decedent, the first $150,000, plus 1/2 of the balance of the intestate estate;
(e) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, the first $100,000, plus 1/2 of the balance of the intestate estate.
II. The part of the intestate estate not passing to the surviving spouse under paragraph I, or the entire intestate estate if there is no surviving spouse, passes as follows:
(a) To the issue of the decedent equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degree take by representation.
(b) If there are no surviving issue, to the decedent's parent or parents equally.
(c) If there are no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother or sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree then those of more remote degree take by representation.
(d) If there are no surviving issue, parent or issue of a parent but the decedent is survived by one or more grandparents, one half of the estate passes to the paternal grandparents if both survive or to the surviving paternal grandparent if one paternal grandparent is deceased and the other half passes to the maternal grandparents in the same manner; or if only one grandparent survives, such grandparent shall receive the entire estate.
(e) If there are no surviving issue, parent, issue of a parent, or grandparent but there are issue of the decedent's grandparent who survive, one half of the estate passes to the issue of the paternal grandparent who are not beyond the fourth degree of kinship to the decedent and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation, and the other half passes to the issue of the maternal grandparent who are not beyond the fourth degree of kinship and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; provided, however, that if there are no issue of the decedent's grandparent within the fourth degree of kinship to the decedent on either the paternal or maternal side, the entire estate passes to the issue on the other side who are not beyond the fourth degree of kinship to the decedent and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.
(f) No portion of a decedent's intestate estate shall pass to any person who is of the fifth or greater degree of kinship to the decedent.
(g) If there is no taker under the provisions of this section, the intestate estate passes to the state of New Hampshire.
III. All determinations of survivorship shall be made in accordance with the provisions of RSA 563.
Source. RS 166:1. CS 176:1. GS 184:1. GL 203:1. PS 196:1. 1903, 74:1. PL 307:1. RL 360:1. RSA 561:1. 1971, 179:26. 1973, 293:1. 1974, 18:2. 1998, 155:9. 2003, 47:1, eff. Jan. 1, 2004. 2021, 206:2, Pt. VI, Sec. 3, eff. July 1, 2021.
561:2 Estate of Unmarried Minor.
If any person die under age and unmarried his estate, derived by descent or devise from his father or mother, shall descend to his brothers and sisters, or their legal representatives if any, to the exclusion of the other parent.
Source. RS 166:2. CS 176:2. GS 184:2. GL 203:2. PS 196:2. PL 307:2. RL 360:2.
561:3 Repealed by 2003, 47:2, I, eff. Jan. 1, 2004.
561:4 Inheritance of Children Born of Unwed Parents.
I. A child born of unwed parents shall inherit from or through his mother as if born in lawful wedlock. The estate of a person born of unwed parents dying intestate and leaving no issue, nor husband, nor wife shall descend to the mother, and, if the mother is dead, through the line of the mother as if the person so dying were born in lawful wedlock.
II. A child born of unwed parents shall inherit from or through his father as if born in lawful wedlock, under any of the following conditions:
(a) Intermarriage of the parents after the birth of the child.
(b) Acknowledgment of paternity or legitimation by the father.
(c) A court decree adjudges the decedent to be the father before his death.
(d) Paternity is established after the death of the father by clear and convincing evidence.
(e) The decedent had adopted the child.
Source. 1845, 238:1. RS 166:4. CS 176:4. GS 184:4. GL 203:4. PS 196:4. 1905, 4:1. PL 307:4. RL 360:4. RSA 561:4. 1973, 145:13. 1983, 181:1, eff. June 10, 1983.
561:5 Repealed by 1983, 181:2, eff. June 10, 1983.
561:6 Repealed by 1971, 179:27, eff. Aug. 10, 1971.
561:7 Personal Estate Bequeathed.
The personal estate bequeathed by a testator shall be distributed by decree of the judge according to the will.
Source. RL 360:7.
561:7-a Interim Distributions Authorized.
The personal estate of a person deceased which was not bequeathed or included in a bequest and which remains in the hands of the executor or administrator upon settlement of an account of such fiduciary shall be distributed according to law by decree of the judge. Upon the application of the fiduciary or any interested person, the judge may issue interim orders approving or directing partial distributions or granting other relief at any time during the pendency of administration to effect distributions as expeditiously and efficiently as may be consistent with the best interests of the estate.
Source. 1975, 285:1, eff. Aug. 6, 1975.
561:8 Repealed by 1998, 155:10, V, eff. July 8, 1998.
561:9 Payment to State.
If no heir or legatee be ascertained at the expiration of three years from the original grant of administration, the judge shall order the administrator to pay the balance into the state treasury, where it shall be subject to the claims of persons entitled thereto, upon application to the legislature.
Source. RS 166:7. CS 176:8. GS 184:8. GL 203:8. PS 196:8. PL 307:8. RL 360:9.
561:10 Unclaimed Share.
I. Whenever, upon a decree of distribution or the settlement of the account of an administrator, executor or trustee, there shall be in his or her hands any sum of money in excess of $5,000 belonging to any heir, legatee, beneficiary, creditor, or other person whose place of residence is unknown and cannot be found, or if such person shall refuse to accept or receipt for such sum after being tendered, the administrator, executor or trustee shall petition the probate court and the court, when satisfied that due diligence has been used to find the person entitled to such sum or that such sum has been tendered to and refused by such heir, legatee, beneficiary, creditor or other person entitled to the same, shall decree that the sum be paid over to the state treasurer, and such payment shall be a discharge of said administrator, executor or trustee. The state treasurer shall hold any such sums received in accordance with RSA 471-C.
II. In the cases of sums of $5,000 or less the probate court, after an affidavit has been filed with it by the administrator, executor or trustee stating that due effort had been made to find the person entitled to such sum, or that said person has refused tender of such sum, may make distribution of such sum in accordance with the provisions of this chapter but as though those entitled thereto under the original decree of distribution or their issue, representatives or assigns had no interest in or against the estate.
Source. 1893, 14:1. 1897, 7:1. PL 307:9. 1929, 20:1. 1935, 75:1. RL 360:10. RSA 561:10. 1967, 212:1. 1997, 208:18. 2003, 46:1, eff. Jan. 1, 2004.
561:11 Receipt by State Treasurer.
The state treasurer is authorized to receive all sums so paid over to him, and to give receipt therefor in behalf of the state.
Source. 1893, 14:2. PL 307:10. RL 360:11.
561:12 Repealed by 1997, 208:19, I, eff. Aug. 17, 1997.
561:12-a Delivery Deferred.
When it appears that a legatee, distributee, cestui or beneficiary not residing within the territorial limits of the United States of America or any territorial possession thereof would not have the benefit or use or control of property due him and that special circumstances make it desirable that delivery to him be deferred, the probate court may order that such property be converted into available funds and paid to the state treasurer to be invested by him and, together with any proceeds thereof, to be handled subject to such further order as such probate court may enter, provided a reasonable fee, as allowed by the court, of the attorney for any such legatee, distributee, cestui or beneficiary shall be considered a lien on such funds and shall be paid by the fiduciary having such funds in charge to such attorney prior to payment to the state treasurer. A copy of any such further order by the probate court shall be filed with the department of revenue administration.
Source. 1955, 149:1. 1973, 544:10. 1975, 439:26, eff. July 1, 1975.
561:12-b Repealed by 1997, 208:19, II, eff. Aug. 17, 1997.
I. If an individual dies intestate as to all or a portion of the individual's estate, property the decedent gave during lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if:
(a) The decedent declared in a contemporaneous writing that the gift was an advancement; or
(b) The heir acknowledged in writing prior to the decedent's date of death that the gift was an advancement; or
(c) The decedent's contemporaneous writing otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate; or
(d) The heir's written acknowledgment prior to the decedent's death indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
II. For purposes of paragraph I, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever occurs first.
III. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate unless the decedent's contemporaneous writing provides otherwise.
IV. If the value of the property received by the heir during the decedent's lifetime exceeds the value of the heir's share of the decedent's intestate estate, the heir shall have no obligation to pay such excess amount to the decedent's estate unless the decedent's contemporaneous writing provides otherwise.
Source. RS 166:8. CS 176:9. GS 184:9. GL 203:9. PS 196:9. PL 307:12. RL 360:13. 2003, 46:2, eff. Jan. 1, 2004.
561:14 Repealed by 2003, 46:3, I, eff. Jan. 1, 2004.
561:15 Repealed by 2003, 46:3, II, eff. Jan. 1, 2004.
561:16 Repealed by 2003, 46:3, III, eff. Jan. 1, 2004.
561:17 Priority of Legacies, Etc.
The estate, real and personal, not specifically devised or bequeathed, shall be first liable to the payment of the legal charges against the estate and legacies given by the will, and to be applied to make up the share of any child born after the decease of the testator, or of any child or issue of any child omitted or not provided for in the will.
Source. RS 166:21. CS 176:13. GS 184:13. GL 203:13. PS 196:13. PL 307:16. RL 360:17.
561:18 Contribution by Devisees, Etc.
If the same is not sufficient, the property devised and bequeathed shall be liable therefor, and the judge may settle and adjust, by his decree, the amount of such liabilities, so that each devisee and legatee shall contribute in just proportion thereto. Such liabilities may be taken into consideration and allowed in the decree of distribution of the personal estate, in the division of the real estate, and in the granting of license for the sale thereof, as the case may require.
Source. RS 166:13. CS 176:14. GS 184:14. GL 203:14. PS 196:14. PL 307:17. RL 360:18.
561:19 Receipts to be Taken.
Every administrator, upon the payment of a legacy or distributive share of an estate, shall take a receipt and discharge therefor, and shall file the same in the probate office, to be there recorded and preserved; the time of filing shall be certified upon it by the clerk.
Source. RS 166:14. CS 176:15. GS 184:15. GL 203:15. PS 196:15. PL 307:18. RL 360:19. 2011, 88:20, eff. July 1, 2011.
561:20 Minors Not Under Guardianship.
Whenever any minor whose estate is not under legal guardianship shall be entitled to receive from any administrator, executor, trustee, or third party payor, any distribution of personal property by will or intestate succession, or distribution of any other property interest, the administrator, executor, trustee, or third party payor shall make such distribution to the person nominated as such minor's custodian for the benefit of such minor under either RSA 463-A, the Uniform Transfers to Minors Act, or under another state's Uniform Transfers to Minors Act or similar statute, or absent a nominated custodian, to a custodian for the benefit of such minor under RSA 463-A, the Uniform Transfers to Minors Act.
Source. 1937, 37:1. 1941, 191:1. RL 360:20. 1949, 88:1. RSA 561:20. 1963, 165:4. 1986, 28:1. 2003, 30:1. 2005, 68:2, eff. July 22, 2005.
561:21 Citation to File Receipt.
The judge of probate, upon complaint of a surety or his legal representative, may cite an administrator to file his receipt or discharge in the probate office. If the administrator neglects or refuses so to do he shall forfeit twenty dollars, and the like sum for every thirty days' neglect afterward, to be recovered by the complainant, unless the judge shall, on a hearing, certify the reasons of the omission to be sufficient.
Source. RS 166:15. CS 176:16. GS 184:16. GL 203:16. PS 196:16. PL 307:19. RL 360:21.