HB185: relative to pretermitted heirs.

HB 185 - AS AMENDED BY THE SENATE

25mar03... 0521h

04/24/03 1327s

2003 SESSION

03-0670

01/09

HOUSE BILL 185

AN ACT relative to pretermitted heirs.

SPONSORS: Rep. J. Pratt, Ches 24; Rep. Craig, Hills 50; Rep. Rowe, Hills 47; Sen. Foster, Dist 13; Sen. Peterson, Dist 11

COMMITTEE: Judiciary

ANALYSIS

This bill clarifies the law relative to pretermitted heirs.

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

25mar03... 0521h

04/24/03 1327s

03-0670

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT relative to pretermitted heirs.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Wills; Child Not Named. RSA 551:10 is repealed and reenacted to read as follows:

551:10 Child Not Named. If any person shall die testate leaving a child born or adopted, and such child is not provided for or referred to therein, such pretermitted child or such child's issue if such child has predeceased the testator shall, unless it appears to the probate court that the omission was intentional and not occasioned by accident or mistake, take that portion of the testator's estate to which such child or such child's issue would have been entitled if the testator had died intestate; provided, however, that if such last will or any codicil thereto provides for another child of the testator or the issue of another child of the testator who has predeceased the testator, the pretermitted child shall take that portion of the testator's estate equal to the greater of (a) the largest sum of all bequests and devises to any one child of the testator named in such last will and any codicil thereto, or (b) the sum of all bequests and devises to all of the issue of another child of the testator who predeceased the testator. The issue of a pretermitted child who predeceased the testator shall take that portion of the testator's estate equal to the lesser of (a) the largest sum of all bequests and devises to any one child of the testator named in such last will and any codicil thereto, or (b) the sum of all bequests and devises to all of the issue of another child of the testator who predeceased the testator. The portion of the testator's estate, if any, that the issue of a pretermitted child who predeceased the testator take shall be disbursed equally if the issue are all of the same degree of kinship to the testator, but if of unequal degree those of more remote degree take by representation.

2 Wills; Share of Unnamed Child. RSA 551:11 is repealed and reenacted to read as follows:

551:11 Share of Unnamed Child. If the property bequeathed or devised by the testator shall be insufficient to satisfy the share of such pretermitted child or the share of the issue of such child if such child predeceased the testator after allowing for advancements to such child or such child's issue if such child predeceased the testator, the same shall be made up from the testate estate in such equitable manner as the probate court shall deem appropriate.

3 Effective Date. This act shall take effect January 1, 2004.

LBAO

03-0670

6/10/03

HB 185 FISCAL NOTE

AN ACT relative to pretermitted heirs.

FISCAL IMPACT:

The Judicial Branch states this bill, as amended by the Senate (Senate Amendment #2003-1327s), will increase state expenditures by an indeterminable amount in FY 2004 and each year thereafter. There will be no fiscal impact on state, county, and local revenue or county and local expenditures.

METHODOLOGY:

The Judicial Branch states this bill amends RSA 551:10 and 11 relating to the issue of pretermitted children (children who are born after the death of a parent or who are not mentioned in the will of their parent). Under current law, such children are entitled to the same portion of the parent's estate as if the parent died without a will. This bill keeps the same basic rule as current law "unless it appears to the probate that the omission was intentional and not occasioned by accident or mistake." This bill also limits the share the pretermitted child can take in certain circumstances. The changes in this bill have the potential to increase the court time necessary to reach decisions in such cases. The probate court estimates there are approximately 100 such cases per year, but cannot determine how many of these cases will result in increased court time or how much additional time will be required. The cost of an hour hearing at the probate court is $93.73, which includes the time for a Judge ($64.26 per hour), a Court Monitor ($20.14 per hour), and a Bailiff ($9.33 per hour). The Branch cannot determine the exact fiscal impact at this time, but states the impact could exceed $10,000 annually.