Lawson Persson Weldon-Francke Law Firm Laconia NH

PROBATE AND TRUST ADMINISTRATION

In addition to handling probate administration for decedents, the Probate Court also has jurisdiction over adoptions, guardianships, name changes and disputes over trusts.

If a person becomes mentally incompetent and can no longer manage his/her finances and/or health care decisions and does not have a financial and/or health care power of attorney, then someone will need to file a petition with the Probate Court to have a guardian appointed.   Once a guardian is appointed, the guardian must account to the court on an annual basis (if they are guardian over the person’s finances).  If he/she is the guardian over the person, then they must file a separate annual report to the court advising the court of the ward’s physical well-being.

Lawson Persson & Chisholm, PC, provides legal representation with regard to probate administration (court supervised) and trust administration (non-court supervised).   Attorney Susanne Chisholm has extensive experience navigating the process in the Probate Court. She, along with her paralegal, Sara Hoey, have been providing probate representation to individuals in the Lakes Region for over 20 years.

Frequently Asked Questions – Probate Litigation

  1. What types of cases are heard in Probate Court?
  2. What is a breach of fiduciary duty?
  3. What is a will or trust contest?
  4. What is a distribution challenge?
  5. What is a guardianship?

Q:        What types of cases are heard in Probate Court?

A:         The Probate Division has jurisdiction over matters related to wills, trusts and estates, guardianships and involuntary commitment proceedings, adoptions, name changes and partition of real estate. 

Q:        What is a breach of fiduciary duty? 

A:         A fiduciary is a person who has been given the highest degree of trust and responsibility under the law.  A person who has been appointed to settle an estate, administer a trust, or manage another person’s finances is a fiduciary.  The main feature of a fiduciary duty is the duty of loyalty – the obligation to act for the benefit of another and to avoid conflicts of interest.  For example, a trustee of a trust has a duty to administer the trust solely for the benefit of the trust and its beneficiaries and to avoid taking any action in which this duty conflicts with the trustee’s personal interests.  A trustee has a related duty to keep trust property and assets separate from other property or assets, and must keep accurate records of trust assets and transactions.  A trust beneficiary may bring an action against a trustee to compel the trustee to submit an accounting.  If a breach of fiduciary duty is found, the trustee may be removed as trustee and held personally liable to the trust and its beneficiaries.

Q:        What is a will or trust contest?

A:         A will or trust contest is a legal challenge to the validity of a will or a trust.  Typically, a will or trust contest is brought by those named in the document or by those who would inherit but for the provisions of the will or trust.  A will or a trust may be challenged for a number of reasons.  For example, a will or trust may be challenged based on lack of capacity, i.e., that the decedent was unable to understand its terms when he or she signed it.  Another basis for contesting a will or a trust is undue influence.  This arises when the decedent was manipulated, pressured, or tricked into creating or modifying a will or trust.  A will or trust may be contested based on the document itself.  For example a will may be held invalid if it was drafted, signed, or witnessed in a way that does not meet legal requirements, or if the proponent cannot produce an original document.  Each type of challenge will have its own particular claims and defenses that must be carefully considered.

Q:        What is a distribution challenge?

A:         Distribution challenges can take many forms.  For example, the way that an executor or trustee values and disposes of property and assets can greatly affect distributions to the beneficiaries.  When the executor or trustee values property or assets in a way that is inconsistent with his or her duties to the beneficiaries – either because of a conflict of interest or due to mismanagement – the beneficiaries have the right to challenge the valuation.  Another common issue with distributions involves spousal shares.  In New Hampshire, a surviving spouse may waive his or her right to distributions under a will and instead receive a statutory distribution of the deceased’s estate.  Disputes can arise concerning the effect of a postnuptial agreement on a surviving spouse’s rights or the extent to which assets held in trust are part of the estate for purposes of the statutory share. 

Q:        What is a guardianship?

A:         A legal guardian is a person appointed by the court to have the legal authority and duty to care for the personal and property interests of another person, called a ward.  In general, guardianships arise for the protection of minors, developmentally disabled adults, and persons who are incapacitated due to old age or infirmity.

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