Revision: Dec. 23, 2019, 5:09 p.m.
SB 525 - AS INTRODUCED
2020 SESSION
20-3030
04/01
SENATE BILL 525
AN ACT relative to probate administration, distribution upon intestacy, and powers of attorney.
SPONSORS: Sen. Feltes, Dist 15
COMMITTEE: Judiciary
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ANALYSIS
This bill makes changes to the statutes governing the administration of estates and the distribution of intestate estates, and revises the statute governing powers of attorney.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
20-3030
04/
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
AN ACT relative to probate administration, distribution upon intestacy, and powers of attorney.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Administrators and Their Appointment; Waiver of Administration. Amend RSA 553 by inserting the following new subdivision heading preceding RSA 553:32:
Waiver of Administration
2 Waiver of Administration. RSA 553:32, I-II are repealed and reenacted to read as follows:
I.(a) Notwithstanding any provision of law, there shall be no requirement for an inventory of the estate, no requirement for a bond, and no requirement for an accounting for assets in any of the following circumstances:
(1) Whenever a decedent dies testate and an individual is named in the will as the sole beneficiary of the decedent's estate and is appointed to serve as administrator.
(2) Whenever a decedent dies testate and all individuals named in the will as beneficiaries of the decedent's estate are appointed to serve as co-administrators or any appropriate person is appointed to serve as administrator with the assent of all such beneficiaries.
(3) Whenever a decedent dies testate, a trust is named in the will as the sole beneficiary of the estate, and any appropriate person, including one or more trustees of such trust, is appointed to serve as administrator with the assent of all such trustees.
(4) Whenever a decedent dies intestate and an individual, including a surviving spouse, is the sole heir of the decedent's estate and is appointed to serve as administrator.
(5) Whenever a decedent dies intestate and all heirs of the decedent's estate, including a surviving spouse, if any, are appointed to serve as co-administrators or any appropriate person is appointed to serve as administrator with the assent of all such heirs.
(6) Whenever, in the discretion of the court, the court determines it is appropriate under the circumstances.
(b) Administration of the estate shall be completed upon the administrator's filing, and the probate court's approval, of an affidavit of administration. Such filing shall occur not less than 6 months and no more than one year after the date of appointment of the administrator. Upon motion of the administrator, for good cause shown, the court may extend the one year deadline for filing the affidavit of administration. The affidavit of administration shall state that to the best of the knowledge and belief of the administrator there are no outstanding debts or obligations attributable to the decedent's estate and shall list all real estate owned by the decedent at the time of death, including the location, book, and page.
(c) If the administrator fails to file the affidavit of administration within the time prescribed in subparagraph (b), including any extensions granted, the court may take appropriate action in the discretion of the court, including, but not limited to, issuing a notice of default, a show cause order, or requiring full administration of the estate.
II.(a) Any interested person may petition for a full administration of the estate at any time from the original grant of administration to the filing of the affidavit of administration, and such petition may be granted by the probate court for good cause shown.
(b) Where full administration is granted subsequent to an original grant of administration under this section, the deadlines for filing an inventory in RSA 554:1, RSA 554:26-a, and RSA 553:13, I(a), and for filing an account of administration in RSA 554:26-a, shall run from the date of the grant of full administration. All other deadlines, including but not limited to the deadline to request proof in solemn form in RSA 552:7, the notice to legatees and heirs at law in RSA 552:15, the publication of notice of appointment in RSA 553:16, the requirement that an estate be open for at least 6 months before a motion for summary administration may be filed in RSA 553:33, II, for petitioning to distribute assets of an insolvent estate in RSA 554:19-b, the deadline for waiver or release of the will and homestead rights and election of statutory rights by a surviving spouse in RSA 560:10 and RSA 560:14, and deadlines relating to suits in RSA 556, shall run from the original grant of administration.
3 Distribution Upon Intestacy. Amend RSA 561:1, I(e) to read as follows:
(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.
4 Uniform Power of Attorney Act; Agent's Authority and Agent's Acceptance or Declination. Amend RSA 564-E:113(a) to read as follows:
(a) A person designated as agent under a general power of attorney shall have no authority to act as agent unless, at any time prior to exercising the power granted under the general power of attorney and not necessarily at the time the general power of attorney is signed by the principal, the person has signed (other than by electronic signature) and affixed to the general power of attorney an acknowledgment in substantially the following form:
I, _________________________, have read the attached power of attorney and am the person identified as the agent for the principal. I hereby acknowledge that when I act as agent, I am given power under the power of attorney to make decisions about money, property, or both belonging to the principal, and to spend the principal's money, property, or both on the principal's behalf, in accordance with the terms of the power of attorney. When acting as agent, I have duties (called "fiduciary duties") to act in accordance with the principal's reasonable expectations to the extent actually known by me and, otherwise, in the principal's best interest, to act in good faith, and to act only within the scope of authority granted in the power of attorney, as well as other duties imposed by law to the extent not provided otherwise in the power of attorney. As an agent, I am not entitled to use the money or property for my own benefit or to make gifts to myself or others unless the power of attorney specifically gives me the authority to do so. As an agent, my authority under the power of attorney will end when the principal dies and I will not have authority to manage or dispose of any property or administer the estate of the principal. If I violate a fiduciary duty under the power of attorney, I may be liable for damages and may be subject to criminal prosecution. If there is anything about the power of attorney, or my duties under it, that I do not understand, I understand that I should seek professional advice.
5 Uniform Powers of Attorney Act; Authority That Requires Specific Grant. Amend RSA 564-E:201(a)(8) to read as follows:
(8) exercise authority over the content of electronic communications sent or received by the principal pursuant to RSA 554-A:9.
6 Uniform Power of Attorney Act; Gifts. Amend RSA 564-E:217(a) to read as follows:
(a) In this section, [a "gift" for the benefit of a person] "gift" includes, without limitation, a gift for the benefit of a person, including without limitation, a gift to a trust, a gift to an account under the Uniform Transfers to Minors Act, and a gift to a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code section 529, 26 U.S.C. section 529, as amended.
7 Uniform Power of Attorney Act; Statutory Form Power of Attorney. Amend RSA 564-E:301 to read as follows:
564-E:301 Statutory Form Power of Attorney.
A document substantially in the following form may be used to create a power of attorney that is in compliance with the provisions of this chapter. It is not required that a document be substantially in the following form in order to create a power of attorney that is in compliance with the provisions of this chapter:
NEW HAMPSHIRE
STATUTORY POWER OF ATTORNEY
INFORMATION CONCERNING THE POWER OF ATTORNEY
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT YOU SHOULD KNOW THESE IMPORTANT FACTS:
Notice to the Principal: As the "Principal," you are using this Power of Attorney to grant power to another person (called the "Agent") to make decisions, including, but not limited to, decisions concerning your money, property, or both, and to use your money, property, or both on your behalf. If this Power of Attorney does not limit the powers that you give to your Agent, your Agent will have broad and sweeping powers to sell or otherwise dispose of your property, and to spend your money without advance notice to you or approval by you. Unless you have expressly provided otherwise in this Power of Attorney, your Agent will have these powers before you become incapacitated, and unless you have expressly provided otherwise in this Power of Attorney, your Agent will continue to have these powers after you become incapacitated. You have the right to retain this Power of Attorney and to release it later or to request that another person retain this Power of Attorney on your behalf and release it only if one or more conditions specified in advance by you are satisfied. You have the right to revoke or take back this Power of Attorney at any time, so long as you are of sound mind. If there is anything about this Power of Attorney that you do not understand, you should seek professional advice.
Principal's Signature:
Date:
1. DESIGNATION OF AGENT
I, (Name of Principal), of (Address of Principal), name the following person as my agent:
Name of Agent:
Agent's Address:
2. DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
If my agent is unable or unwilling to act for me, I name the following person as my successor agent:
Name of Successor Agent:
Successor Agent's Address:
If my successor agent is unable or unwilling to act for me, I name the following person as my second successor agent:
Name of Second Successor Agent:
Second Successor Agent's Address:
3. REVOCATION OF EXISTING POWERS OF ATTORNEY
(Initial the following statement if it is your choice.)
_____ This Power of Attorney revokes all existing powers of attorney, except for powers of attorney relating to health care, previously executed by me.
4. GRANT OF GENERAL AUTHORITY
(Initial beside your choice of A or B, but not both.)
_____ A. I grant my agent general authority to act for me in all matters, including, without limitation, all of the subjects enumerated in B below.
_____ B. I grant my agent general authority over the following subjects [as defined in the following sections of the Uniform Power of Attorney Act]:
(Initial each subject you want to include in the agent's general authority.)
_____ Real Property as defined in RSA 564-E:204
_____ Tangible Personal Property as defined in RSA 564-E:205
_____ Stocks and Bonds as defined in RSA 564-E:206
_____ Commodities and Options as defined in RSA 564-E:207
_____ Banks and Other Financial Institutions as defined in RSA 564-E:208
_____ Operation of Entity or Business as defined in RSA 564-E:209
_____ Insurance and Annuities as defined in RSA 564-E:210
_____ Estates, Trusts and Other Beneficial Interests as defined in RSA 564-E:211
_____ Claims and Litigation as defined in RSA 564-E:212
_____ Personal and Family Maintenance as defined in RSA 564-E:213
_____ Benefits from Governmental Programs or Civil or Military Service as defined in RSA 564-E:214
_____ Retirement Plans as defined in RSA 564-E:215
_____ Taxes as defined in RSA 564-E:216
_____ Digital Assets as defined in RSA 554-A:2(10)
5. GRANT OF SPECIFIC AUTHORITY (OPTIONAL)
(Initial each subject you want to include in the agent's authority. CAUTION: As to some of the following subjects, granting your agent authority will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death.)
My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below:
_____ Create, amend, revoke, or terminate an inter vivos trust
(If you have granted your agent the authority to create, amend, revoke, or terminate an inter vivos trust, then initial the following statement if it is your choice.)
______ My agent may create, amend, revoke, or terminate an inter vivos trust to benefit himself or herself or any individual to whom my agent owes a legal obligation of support.
_____ Make a gift, subject to the limitations of RSA 564-E:217[ of the Uniform Power of Attorney Act]
(If you have granted your agent the authority to make a gift, then as to each of the following statements, initial beside it if it is your choice.)
_____ My agent may make a gift, even if it will leave me without sufficient assets or income to provide for my care without relying on Medicaid, other public assistance or charity.
_____ My agent may make a gift to himself or herself and to any individual to whom my agent owes a legal obligation of support.
_____ Create or change rights of survivorship
(If you have granted your agent the authority to create or change rights of survivorship, then initial the following statement if it is your choice.)
_______ My agent may create or change rights of survivorship to benefit himself or herself or any individual to whom my agent owes a legal obligation of support.
_____ Create or change a beneficiary designation
(If you have granted your agent the authority to create or change a beneficiary designation, then initial the following statement if it is your choice.)
______ My agent may create or change a beneficiary designation to benefit himself or herself or any individual to whom my agent owes a legal obligation of support.
_____ Reject, renounce, disclaim, release, or consent to a reduction in or modification of my share in, or a payment to me from, an estate, trust, or other beneficial interest, to benefit my agent or any individual to whom my agent owes a legal obligation of support
_____ Delegate authority granted under this Power of Attorney to another person
_____ Waive my right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
(If you have granted your agent the authority to waive your right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan, then initial the following statement if it is your choice.)
_____ My agent may waive my right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan, to benefit himself or herself or any individual to whom my agent owes a legal obligation of support.
_____ Exercise the fiduciary power(s) that I have the authority to delegate as specified in the "Special Instructions" in Paragraph [7] 6 of this Power of Attorney
_____ Exercise authority over the content of electronic communication sent or received by me pursuant to RSA 554-A:9
_____ Exercise authority with respect to intellectual property, including, without limitation, copyrights, contracts for payment of royalties, and trademarks
[6. LIMITATION ON AGENT'S AUTHORITY (OTHER THAN GIFTING)
(If an agent (including successor agent) named in this Power of Attorney is someone other than an ancestor of yours, your spouse, or a descendant of yours, you must initial the following statement if it is your choice that such agent have the following authority. An agent who is an ancestor of yours, your spouse, or a descendant of yours already has the following authority under New Hampshire law.)
_____ My agent may exercise authority under this Power of Attorney to create in my agent, or in an individual to whom my agent owes a legal obligation of support, an interest in my property by any manner (other than a gift), including, without limitation, by right of survivorship, beneficiary designation, or disclaimer.
7.] 6. SPECIAL INSTRUCTIONS (OPTIONAL)
(Here you may include special instructions. You may leave this Paragraph blank. You may attach additional pages as necessary.)
[8.] 7. EFFECTIVE DATE AND AUTHORITY OF AGENT
This Power of Attorney is effective immediately unless I have stated otherwise in the Special Instructions in Paragraph [7] 6 of this Power of Attorney. An agent (including successor agent) named in this Power of Attorney will have no authority to act as my agent until he or she has signed and affixed to this Power of Attorney an acknowledgment that is substantially the same as the Acknowledgment at the end of this Power of Attorney.
[9.] 8. GOVERNING LAW
This Power of Attorney shall be governed by the laws of the State of New Hampshire.
[10.] 9. RELIANCE ON THIS POWER OF ATTORNEY
Any person, including my agent, may rely upon this Power of Attorney if it is acknowledged before a notary public or other individual authorized to take acknowledgments (or a copy of the acknowledged Power of Attorney), unless that person knows it is void, invalid, or terminated.
SIGNATURE AND ACKNOWLEDGMENT
(You must date and sign this Power of Attorney. If you are physically unable to sign, it may be signed by someone else writing your name, in your presence and at your express direction. This Power of Attorney must be acknowledged before a notary public or other individual authorized by law to take acknowledgments.)
Principal's Signature:
Principal's Printed Name:
Principal's Address:
Date:
STATE OF NEW HAMPSHIRE
COUNTY OF _______________
The foregoing Power of Attorney was acknowledged before me on _______________, by _______________, known to me or satisfactorily proven to be the person named herein
Signature of Notarial Officer:
Title (and Rank):
My commission expires:
AGENT ACKNOWLEDGMENT
Notice to Agent: You will have no authority to act as agent under this Power of Attorney until you sign and affix this acknowledgment to the Power of Attorney.
I, _________________________, have read the attached power of attorney and am the person identified as the agent for the principal. I hereby acknowledge that when I act as agent I am given power under the power of attorney to make decisions about money, property, or both belonging to the principal, and to spend the principal's money, property, or both on the principal's behalf, in accordance with the terms of the power of attorney. When acting as agent, I have duties (called "fiduciary duties") to act in accordance with the principal's reasonable expectations to the extent actually known by me and, otherwise, in the principal's best interest, to act in good faith, and to act only within the scope of authority granted in the power of attorney, as well as other duties imposed by law to the extent not provided otherwise in the power of attorney. As an agent, I am not entitled to use the money or property for my own benefit or to make gifts to myself or others unless the power of attorney specifically gives me the authority to do so. As an agent, my authority under the power of attorney will end when the principal dies and I will not have authority to manage or dispose of any property or administer the estate of the principal. If I violate a fiduciary duty under the power of attorney, I may be liable for damages and may be subject to criminal prosecution. If there is anything about this power of attorney, or my duties under it, that I do not understand, I understand that I should seek professional advice.
Agent's Signature:
Date:
I. Section 2 of this act shall apply to all petitions for estate administration filed on or after July 1, 2020 regardless of the date of the decedent's death.
II. Section 3 of this act shall apply to decedents dying on or after July 1, 2020.
III. Section 4 of this act shall apply to general powers of attorney executed on or after July 1, 2020.