Detailed answer: What “probate in common form” means under New Hampshire law
“Probate in common form” is a simpler, routine way a court admits a will to probate without the formal, in‑court oath testimony of witnesses. Many states use the phrase to distinguish a straightforward filing from a more involved “solemn” or contested probate that requires live witness testimony and a more formal proof process. In New Hampshire, the practical effect is the same: when a will appears regular on its face and no interested person objects, the estate can often be opened and the personal representative appointed using a streamlined set of filings rather than a full evidentiary hearing.
How the common‑form process typically works in New Hampshire
- Someone (often a nominated executor or a close family member) files a petition with the probate court requesting admission of the will and appointment of a personal representative. The original will is submitted with the petition.
- The petitioner provides required paperwork and notices to interested persons (heirs, beneficiaries, creditors) as required by the court rules and state law.
- If the will has a valid self‑proving affidavit (a notarized affidavit signed by the testator and witnesses at the time the will was executed), the court will usually accept the will in common form without calling witnesses to testify.
- If no one contests and the court finds the formal requirements appear satisfied, the judge will admit the will to probate in common form and issue letters testamentary (if there is a will) or letters of administration (if there is not), giving the personal representative legal authority to administer the estate.
Why the distinction matters
Admitting a will in common form speeds the start of estate administration. It reduces delay and cost when the will appears valid and no interested party contests validity. If someone later contests the will’s validity, a court can require a more formal proof or hold a hearing; a common‑form admission does not permanently foreclose a legitimate challenge in many jurisdictions.
Documents and proof commonly needed
- The original will (not a copy).
- A probate petition or application form required by the New Hampshire probate office.
- Death certificate for the decedent.
- Notice to heirs and beneficiaries—forms or proof of service may be required.
- A self‑proving affidavit (if available) or witness affidavits if the will lacks a self‑proving declaration.
When common form may not be appropriate
Common form is usually not appropriate when:
- Someone objects or claims the will is invalid (e.g., lack of testamentary capacity, undue influence, fraud, improper execution).
- The will’s signature or witness formalities are unclear.
- There is a dispute over who are the proper heirs or whether estate assets are being handled properly.
What happens if the will is later contested?
A common‑form admission may be followed by a formal contest. If a party timely raises a valid challenge, the court can set the matter for a contested hearing where witnesses may testify under oath and the court will make a final determination. Time limits and procedures for contest vary; you must act promptly if you believe a will is invalid.
Where to find New Hampshire rules and statutes
Statute text and probate rules that govern wills, probate administration, and related procedures are published by the New Hampshire General Court. For statutory language and chapter listings, see the New Hampshire Revised Statutes Annotated site: https://www.gencourt.state.nh.us/rsa/html/. For practical probate forms and court procedures, check the New Hampshire Judicial Branch probate information: https://www.courts.state.nh.us/superior/probate/.
When to consult an attorney
If the will is straightforward and no one objects, you may be able to open the estate using court forms and guidance from the probate clerk. But consult an attorney if:
- Someone contests the will or alleges undue influence or incapacity.
- The estate has complex assets (business interests, real estate in multiple states, significant tax issues).
- You are a nominated executor and need guidance about duties, asset protection, creditor claims, or distributions.
An attorney can explain whether common‑form probate makes sense in your situation, prepare filings, and represent you if a dispute arises.
Helpful hints
- Start by locating the original will. Courts generally will not admit a copy in common form without strong proof of why the original is missing.
- Obtain a certified death certificate before filing; many probate offices require it with the petition.
- If the will is accompanied by a self‑proving affidavit, the probate process is usually faster and less expensive.
- Give careful notice to all likely heirs and beneficiaries. Proper notice reduces the risk of later challenges.
- Keep a clear inventory of estate assets and records of distributions. Executors must often provide accountings to the court or beneficiaries.
- If in doubt about deadlines or required documents, contact the probate clerk’s office or consult an attorney; missing a deadline can impair claims or rights.
Disclaimer: This article explains general principles about probate in common form in New Hampshire and is for educational purposes only. It does not provide legal advice. For advice about a specific situation, consult a licensed New Hampshire attorney.