Disclaimer

This article explains general New Hampshire probate concepts and steps you can take if a family member is refusing to turn over an original will. This is educational information only and not legal advice. For help tailored to your situation, consult a New Hampshire probate attorney.

Detailed Answer

When a person who has possession of an original will (for example, your step-sister) refuses to produce it after your father’s death, the probate process in New Hampshire provides several ways to proceed. Below is a clear, step‑by‑step approach that many interested people follow. The process described here assumes you are an interested person (a named executor, beneficiary, or an heir) who wants the will admitted to probate. If you are not sure of your status, the probate court can help you determine that.

1. Confirm whether you are an interested person

Only certain people may file to probate a will: typically the named executor, a beneficiary named in the will, or an heir at law. If you are a named executor or beneficiary (or believe you should be an heir), you have standing to act in probate court.

2. Ask for the original in writing and document the request

Send a written, dated, signed demand asking the person who has the original to deliver it to the probate court or to you so you may file it. Keep copies of the letter and any responses. A documented demand helps show you tried to obtain the will without court action.

3. Contact the probate clerk for procedural guidance

New Hampshire Probate Courts handle will filings and can explain local filing procedures and required forms. Find the probate court information on the New Hampshire Judicial Branch website: https://www.courts.state.nh.us/courts/probate/.

4. File a petition to admit the will — even if you only have a copy

If the holder refuses to provide the original, you can petition the probate court to admit the will. If you have only a copy, file the petition with the copy attached and explain why the original is unavailable. Courts will accept a copy for filing in some circumstances, but you must be prepared to prove the copy’s authenticity and explain why the original cannot be produced.

5. Ask the court to compel production or issue a subpoena

The probate court can order the person with custody of the original to produce it or to appear and testify. You can ask the court for a subpoena duces tecum (a subpoena for documents) or an order to show cause requiring the person to produce the original will at a hearing. If the person disobeys a court order, the court may impose sanctions including contempt.

6. If the original truly cannot be produced, prepare to prove the will’s validity without it

If the original is lost, destroyed, or permanently withheld and cannot be produced, New Hampshire law allows probate of a will that lacks the original when the proponent establishes the will’s due execution and contents by clear and convincing evidence (testimony from attesting witnesses, the decedent’s statements, drafts, photocopies, or other corroborating evidence). Collect the following evidence:

• Testimony from the witnesses who signed the will (if they can be found).
• Affidavits from anyone who saw the decedent sign the will or saw the executed original.
• Photocopies, scanned copies, email drafts, or other contemporaneous versions of the will.
• Correspondence from the decedent indicating intent and testamentary capacity.

7. Consider a separate civil action if necessary

If the person in possession refuses to comply with a subpoena or court order, you may need to pursue enforcement tools such as contempt proceedings in probate court or a separate civil action (conversion or replevin) to recover the original document. Discuss these options with counsel because they require particular procedural steps.

8. Protect estate rights and move promptly

Act promptly. Delays can complicate the probate process and create risks (lost witnesses, changing facts, or statute of limitations issues for some claims). Even if you cannot immediately recover the original, filing a petition and notifying interested persons preserves your position in probate.

Statutes and official resources

New Hampshire statutes and the probate court rules govern probate practice. For general probate administration statutes, start with the New Hampshire Revised Statutes and the probate pages on the Judicial Branch website:

• New Hampshire Judicial Branch — Probate Courts: https://www.courts.state.nh.us/courts/probate/
• New Hampshire Revised Statutes (RSA) — general statutes index: https://www.gencourt.state.nh.us/rsa/html/ (use this index to locate chapters governing wills and administration of estates)

When you file, the probate clerk will point you to the exact statutes and local procedures that apply to your case.

When to get an attorney

Consider hiring a New Hampshire probate attorney if:

• The holder of the original blatantly refuses to cooperate.
• The validity of the will is likely to be contested.
• Key witnesses cannot be located and you must rely on secondary evidence.
• You need to pursue enforcement measures such as subpoenas, contempt, or a civil recovery action.

Helpful Hints

• Keep clear records: dates, communications, and copies of any documents you receive from the person holding the will.
• Send written requests by certified mail so you have proof of delivery and receipt.
• Talk to the probate clerk early — clerks can explain filing steps and required documents.
• Collect all copies of the will (photocopies, emails, drafts) and any supporting documents (medical records, beneficiary designations) that show the testator’s intent.
• If attesting witnesses are alive, find and interview them quickly; their testimony can be crucial if the original is unavailable.
• Be mindful of family dynamics — sometimes a neutral mediator or lawyer can obtain cooperation without court action.
• If the holder claims a right to keep the will (for safekeeping or other reason), ask them to provide a sworn statement describing how they obtained the will and why they will not produce it.
• If the refusal appears intended to defeat probate or to hide wrongdoing, document anything that suggests bad faith; courts take will suppression seriously.