PROBATE COURTS AND DECEDENTS' ESTATES
TRUSTEES OF ESTATES
I. Every trustee to whom any estate, real or personal, is devised in trust for any person shall give bond to the judge of probate, with sufficient sureties, or without sureties in estates of five thousand dollars or less where the judge finds it in the interest of the estate, in such sum as the judge may order, except as provided in RSA 564:2, conditioned:
(a) That the trustee will make and file in the probate office a true inventory of the real estate, goods, chattels, rights and credits so devised, at such time as the judge shall order.
(b) That the trustee will annually render an account to the judge of the annual income and profit thereof, unless excused by the judge of probate as provided by law.
(c) That at the expiration of the trust the trustee will adjust and settle his or her account with the judge, and pay and deliver over all balances, money, and property with which the trustee has been intrusted.
(d) That the trustee will faithfully execute the trust according to the true intent of the devisor.
II. Except as provided in RSA 564:19, IV, this section shall not apply with respect to any trust exempted from the accounting requirements under RSA 564:19, II.
Source. RS 168:1. CS 178:1. GS 186:1. GL 205:1. 1879, 49:1. 1881, 52:1. 1889, 32:1. PS 198:1. PL 309:1. RL 363:1. 1947, 264:3. RSA 564:1. 1955, 20:1. 2005, 252:7, eff. Jan. 1, 2006. 2011, 243:3, eff. Sept. 11, 2011.
No town or city in this state shall be required to give a bond when appointed trustee.
Source. PS 198:2. PL 309:2. RL 363:2.
564:2-a Public Trustees.
The judge of probate shall be empowered to appoint a suitable person as public trustee to hold office during the court's pleasure whose duty shall be to administer all such small charitable trusts as the court may assign to him, where it is found that the practical difficulties or the unreasonable expense involved in each trust would tend to defeat its purpose, provided, however, that in each instance the trustee of the fund assigned shall give his consent.
Source. 1955, 183:1, eff. June 9, 1955.
Upon application the court may, in its discretion waive publication of citations and notices in such trusts where it is found in the interest of the state.
Source. 1955, 183:2, eff. June 9, 1955.
564:2-c Collective Investments.
The public trustee may establish common trust funds, in which may be combined money and property belonging to the various trusts in his care, for the purpose of facilitating investments, providing diversification and obtaining reasonable income; and provided, further, that the participating interests of said trusts are properly evidenced by appropriate bookkeeping entries showing on an annual basis the contribution, the profits, the income, the expenses, the fees and withdrawals allocable to each trust.
Source. 1955, 183:2, eff. June 9, 1955.
564:3 Repealed by 1969, 312:2, eff. Aug. 29, 1969.
564:4 Banks, Etc.
Any bank as defined in RSA 383-A:2-201(a)(3) that holds trust powers, may be appointed trustee. Immediately upon the qualification of such a trustee it shall be the duty of the clerk to notify the bank commissioner of such appointment.
Source. 1917, 193:1. PL 309:4. 1933, 67:9. RL 363:4. 2011, 88:20, eff. July 1, 2011. 2015, 272:49, eff. Oct. 1, 2015.
564:5 Bond of Banks.
Except as otherwise provided in RSA 564:1, such trust company or national bank when appointed trustee shall give a surety company bond in such sum as the judge may order.
Source. 1917, 193:3. PL 309:5. RL 363:5. 2011, 243:4, eff. Sept. 11, 2011.
564:6 Jurisdiction of Probate Court, Acknowledgment of.
Any national bank desiring to be appointed trustee shall first file with the attorney general, in such form as he may direct, its consent to an examination of its trust department by the bank commissioners of this state, and acknowledge itself amenable to the jurisdiction of the probate courts of this state.
Source. 1917, 193:4. PL 309:6. RL 363:6.
564:7 Neglect to Give Bond.
Any person appointed a trustee who shall neglect or refuse to give bond when required shall be considered as having declined the acceptance of the trust.
Source. RS 168:3. CS 178:3. GS 186:3. GL 205:3. PS 198:4. PL 309:7. RL 363:7.
A trustee appointed by will or by the judge in pursuance of this chapter may, upon request in writing to the judge, be permitted to resign the trust if the judge thinks it expedient.
Source. RS 168:4. CS 178:4. GS 186:4. GL 205:4. PS 198:5. PL 309:8. RL 363:8.
564:9 Removal or Replacement.
I. A trustee who, in the opinion of the judge, becomes incompetent, unsuitable, or who shall neglect or refuse to comply with the provisions of this chapter may be removed following a hearing which is preceded by notice to the trustee, all known beneficiaries, and such other persons determined by the judge to be interested in the trust.
II. A beneficiary or co-trustee of a trust who believes that the existing trustee should be replaced by a more suitable trustee may petition the court for such replacement. Upon receiving such a petition, and upon the court's determination that all other known beneficiaries have been notified, the court may remove the existing trustee and appoint a replacement trustee when, upon considering all relevant factors, the court finds that a change in trustee would be in keeping with the intent of the grantor, provided further that in deciding whether to replace a trustee, the court may consider the following additional factors in making such determination:
(a) It would substantially improve or benefit the administration of the trust.
(b) The relationship between the grantor and the trustee as it existed at the time the trust was created.
(c) Changes in the nature of the trustee since the creation of the trust.
(d) The relationship of the trustee with the beneficiaries.
(e) The responsiveness of the trustee to the beneficiaries.
(f) The experience and level of skill of the trustee.
(g) The investment performance of the trustee.
(h) The charges for services performed by the trustee.
(i) Any other reasonable factors pertaining to the administration of the trust.
III. This section shall apply to a trust or trustee of a trust, as defined in RSA 564-A:1.
Source. RS 168:7. CS 178:7. GS 186:7. GL 205:7. PS 198:8. PL 309:9. RL 363:9. RSA 564:9. 1998, 376:1. 2003, 123:1, eff. Jan. 1, 2004.
564:10 Appointing New Trustee.
If a trustee appointed in a will, no provision being made therein for perpetuating the trust, shall decline to accept it, or shall die, resign or be removed, a trustee may be appointed by the judge in his stead, after notice to the persons interested in the trust estate.
Source. RS 168:5. CS 178:5. GS 186:5. GL 205:5. PS 198:6. PL 309:10. RL 363:10.
564:10-a Cemetery Trusts.
If a trustee appointed in a will over a trust for the benefit of a cemetery lot or lots, for which trustees of trust funds of a city or town may accept trust funds, shall resign, die, or be removed, the court of probate, on petition by the trustees of trust funds of the town or city where said cemetery lot or lots are located, and after notice to all other persons interested, may appoint said trustees of trust funds as trustees of said fund, the same to be held by said trustees as though they were originally bequeathed to the town or city for the uses and purposes in said will set forth.
Source. 1955, 27:1, eff. March 7, 1955.
564:11 Effect of Appointment.
Every trustee appointed by the judge shall be bound by the provisions of this chapter in the same manner as if he were appointed by the will, and the estate given in trust shall vest in such trustee in like manner, to all intents and purposes, as the same vested in the original trustee under the will.
Source. RS 168:6. CS 178:6. GS 186:6. GL 205:6. PS 198:7. PL 309:11. RL 363:11.
564:12 Agent to be Appointed by Trustee.
Every resident trustee who removes from the state or who goes out of the state with the intention of being absent more than a year, and every resident of another state who is appointed trustee within this state, shall forthwith appoint some person residing in this state as his agent, to receive notice of claims against the estate and service of process against him as trustee. The appointment shall be in writing, and shall state the full name and post office address of the agent, and shall be filed in the office of the clerk.
Source. 1953, 70:1, eff. April 2, 1953. 2011, 88:20, eff. July 1, 2011.
Any trustee appointed by the judge shall demand and receive of the original trustee all such estate as may have come to his hands by virtue of the trust, and shall manage, pay, and deliver over such property, or the income thereof, in the same manner and under the same obligations and duties as guardians, except as otherwise provided in the instrument creating the trust.
Source. RS 168:8. CS 178:8. GS 186:8. GL 205:8. PS 198:9. PL 309:12. RL 363:12.
564:14 Authority to Sell, Etc.
The judge, on application of a trustee or of any person interested, may, after notice to all persons interested, authorize and require the trustee to sell any property holden in trust, and to invest the proceeds of the sale in such manner as will be most for the interest of all persons concerned therein; and the judge may, from time to time, make such orders and decrees as he may think just and reasonable, in relation to the sale, management, investment, and disposition of the trust property and the settlement of the account of the trustee.
Source. RS 168:9. CS 178:9. GS 186:9. GL 205:9. PS 198:10. PL 309:13. RL 363:13.
564:15 Termination of Trust.
When the purposes for which any trust was created have been performed, the judge may, by license and decree, authorize the trustee to transfer, by suitable deed or conveyance, any property remaining in his hands to such person as shall be entitled thereto.
Source. 1903, 130:1. PL 309:14. RL 363:14.
564:15-a Repealed by 2004, 130:9, I, eff. Oct. 1, 2004.
564:16 Authority to Mortgage, Etc.
The judge, upon petition of a trustee, may authorize a mortgage or a lease of the trust property, as provided in the case of guardians by RSA 462.
Source. 1915, 11:1. PL 309:15. RL 363:15.
564:17 Purchase of Fractional Part.
When a trust estate is seized of an undivided fractional part of real estate the judge, upon petition of the trustee, notice and hearing, may authorize the trustee to purchase any other undivided fractional part of such real estate when it will be conducive to the interests of the trust estate to do so; and when the trustee shall be so authorized he may make the purchase and use the funds of the trust to pay the purchase money.
Source. 1915, 11:3. PL 309:16. RL 363:16.
564:18 Repealed by 2004, 130:9, II, eff. Oct. 1, 2004.
564:19 Filing Account.
I. Except as otherwise provided in paragraph II, every trustee shall file in the probate court an annual account of administration, unless upon petition the trustee is excused by the judge of probate; but in no event shall the trustee be excused for a period longer than 3 years, except that in cases where such filing may be impractical and may work financial hardship to the trust estate the judge of probate upon written approval of the attorney general may extend said period not exceeding in the aggregate 5 years. Such annual account of administration provided for herein may be allowed by the judge of probate without publication unless he or she shall otherwise order. Before giving notice to settle a final account the trustee shall file it in the probate office and shall cause the fact of such filing to appear in the notice and shall at the same time file a statement of the names and residences of the beneficiaries in the trust estate.
II. The following trusts created under a will shall be exempt from the accounting requirements of paragraph I:
(a) A trust created under a will admitted to probate on or after January 1, 2012, shall be exempt from the accounting requirements of paragraph I if, under the terms of the will, the testator expressly waives the requirement for annual accountings.
(b) A trust created under any will shall be exempt from the accounting requirements of paragraph I if all of the interested persons agree to waive the trustee's filing of accounts, and the probate court finds that the waiver of filing of accounts does not violate a material purpose of the trust. The interested persons may agree to waive the trustee's filing of accounts by means of a nonjudicial settlement agreement within the meaning of RSA 564-B:1-111. For purposes of this subparagraph, the trustee's filing of accounts is not a material purpose of a trust created under a will unless, under the terms of the will, there is a clear and express manifestation of the testator's intent that the trust shall be subject to full judicial supervision, including a requirement that the trustee file accounts with the court.
(c) If the court grants a petition for the acceptance of jurisdiction over a trust with respect to which a court of another state has released its jurisdiction, and the court releasing jurisdiction did not require the trustee or trustees of the trust to file accounts with that court, or required that the trustee or trustees of the trust file accounts less frequently than annually, then the court accepting jurisdiction over such trust shall not require accountings whatsoever, or shall require accountings less frequently than annually, as the case may be, on the same basis as may have been required by the court releasing jurisdiction.
III. A trust created under a will described in paragraph II, with respect to which no judicial accountings will be required, shall in all respects be subject to the beneficiary reporting and information requirements of RSA 564-B, the New Hampshire Trust Code, and all other pertinent provisions of such code, except to the extent that a contrary provision appears in the will under which the trust was created, provided that such contrary provision does not violate any of the mandatory rules of RSA 564-B:1-105. For these purposes, the pertinent terms of the will shall have the same meaning as "terms of a trust" and the "will creating the trust" shall have the same meaning as "trust instrument," as defined in RSA 564-B:1-103(19) and (20), respectively.
IV. Nothing in this section shall be interpreted to modify or limit the jurisdiction or authority of the probate court to require any trustee of a trust created under a will to make a judicial accounting or to give bond, either upon a motion of an interested person, or on the probate court's own action.
V. For purposes of this section, an "interested person" means any person who has standing to petition the court to order the trustee to account, including the director of charitable trusts if, with respect to the trust, the director has the rights of a qualified beneficiary under RSA 564-B: 1-110(c).
VI. Nothing in this section shall limit the authority of the director of charitable trusts or the department of health and human services otherwise provided by common law or other statute.
Source. 1881, 59:1. PS 198:12. PL 309:18. RL 363:18. 1947, 264:4. 1949, 40:1, eff. Mar. 3, 1949. 2011, 243:5, eff. Sept. 11, 2011. 2015, 272:69, eff. Oct. 1, 2015.
564:20 Conveyance by Administrator.
When any person deceased shall, at the time of his death, hold any real estate in trust for the use of another, and there is no dispute as to the trust or title of the deceased therein, the judge for the county in which such real estate is situate, upon application and notice, may license the executor or administrator of such deceased person to convey such real estate to the person for whose use the same was holden in trust by the deceased, or to such other person as may be designated by the judge.
Source. 1848, 732:1. CS 178:10. GS 186:10. GL 205:10. PS 198:13. PL 309:19. RL 363:19.
564:21 Compensation for Trustees of Non-Charitable Trusts.
I. A trustee of a non-charitable trust shall be allowed reasonable expenses incurred in the execution of the trust; and unless otherwise expressly provided in the trust instrument, such trustee shall have such reasonable compensation for services as the judge may allow.
II. In the case of any corporate or professional trustee of a non-charitable trust, the probate court recognizes a rebuttable presumption that reasonable compensation for the trustee's services shall be defined by that institution's or professional's published inter vivos fee schedule or fee agreement, in effect at the time services are rendered. Corporate or professional trustees shall submit an affidavit to the probate court reciting their inter vivos fee schedule or fee agreement, in effect at the time services were rendered; a statement that the charges for the services rendered in this account are in accordance with the charges in that fee schedule or fee agreement; and a certification that the beneficiaries were notified of that fee schedule or fee agreement. Preparation of any trustee account or appearance at probate court, by a corporate or professional trustee, if required, shall not ordinarily be an additional charge.
III. Unless otherwise expressly provided in the trust instrument, such compensation and expenses shall be apportioned between income and principal as the trustee shall determine to be equitable, and shall be reviewed by the probate court.
Source. 1947, 283:1. RSA 564:21. 1965, 176:1. 1997, 278:1, eff. Jan. 1, 1998.
564:21-a Compensation for Trustees of Charitable Trusts.
A trustee of a charitable trust shall be allowed reasonable expenses incurred in the execution of the trust; and unless otherwise expressly provided in the trust instrument, the trustee shall have such reasonable compensation for services as the judge may allow. Such compensation and expenses shall be payable as provided in the trust instrument, or in the absence of such direction, shall be payable out of income. Such compensation may also be payable out of principal, or both income and principal, if approved annually in writing by a duly authorized representative of the governing body of the charitable beneficiary or beneficiaries. Any such compensation and fee schedules shall be subject to approval of the court.
Source. 1997, 278:2. 1998, 376:2, eff. Jan. 1, 1999.
564:22 Charitable Trusts, Internal Revenue Laws.
I. In the administration of any trust which is a "private foundation" as defined in section 509 of the United States Internal Revenue Code of 1954, or which is a "charitable trust" as defined in section 4947(a)(1) of the Internal Revenue Code of 1954, or which is a "split interest trust" as defined in section 4947(a)(2) of that code, the following acts are prohibited:
(a) engaging in any act of "self-dealing" (as defined in section 4941(d) of the Internal Revenue Code of 1954) which would give rise to any liability for the tax imposed by section 4941(a) of the Internal Revenue Code of 1954;
(b) retaining any "excess business holdings" (as defined in section 4943(c) of the Internal Revenue Code of 1954) which would give rise to any liability for the tax imposed by section 4943(a) of the Internal Revenue Code of 1954;
(c) making any investments which would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of section 4944 of the Internal Revenue Code of 1954, so as to give rise to any liability for the tax imposed by section 4944(a) of the Internal Revenue Code of 1954; and
(d) making any "taxable expenditures" (as defined in section 4945(d) of the Internal Revenue Code of 1954) which would give rise to any liability for the tax imposed by section 4945(a) of the Internal Revenue Code of 1954. However, this paragraph does not apply to those split-interest trusts or to any amounts thereof which are not subject to the prohibitions applicable to private foundations by reason of the provisions of section 4947 of the Internal Revenue Code of 1954.
II. In the administration of any trust which is a "private foundation" as defined in section 509 of the Internal Revenue Code of 1954, or which is a "charitable trust" as defined in section 4947(a)(1) of the Internal Revenue Code of 1954, there shall be distributed, for the purposes specified in the trust instrument, for each taxable year, amounts at least sufficient to avoid liability for the tax imposed by section 4942(a) of the Internal Revenue Code of 1954.
III. The provisions of paragraphs I and II shall apply to any trust except to the extent that a court of competent jurisdiction determines that the application of those paragraphs to a trust would be contrary to the terms of the instrument governing the trust, and that the instrument cannot properly be changed to conform to those paragraphs.
IV. Nothing in this section impairs the rights and powers of the courts or the attorney general with respect to any trust.
V. All references to sections of the Internal Revenue Code of 1954 include amendments to those sections which are made after the effective date of this section, and include all corresponding provisions of any United States internal revenue laws which replace the Internal Revenue Code of 1954.
Source. 1971, 380:1, eff. Aug. 27, 1971.
564:23 Repealed by 2004, 130:9, III, eff. Oct. 1, 2004.
564:24 Exemption from Rule Against Perpetuities.
I. The common law rule against perpetuities shall not apply to any disposition of property or interest therein, created after the effective date of this section, if:
(a) The instrument making the disposition or creating the interest contains a provision which expressly exempts the instrument from the application of the rule against perpetuities; and
(b) The trustee, or other person to whom the power is properly granted or delegated, has the power under the governing instrument, applicable statute, or common law, to sell, mortgage, or lease property for any period of time beyond the period that is required for an interest created under the governing instrument to vest in order to be valid under the rule against perpetuities.
Source. 2003, 143:2, eff. Jan. 1, 2004. 2014, 195:39, I, eff. July 1, 2014.
564:25 Application of the New Hampshire Trust Code.
The provisions of RSA 564-B, the New Hampshire Trust Code, shall apply to all trusts under a will governed by this chapter, except to the extent that any provisions of the New Hampshire Trust Code conflict with the express provisions of this chapter, in which case the provisions of this chapter shall control.
Source. 2011, 243:6, eff. Sept. 11, 2011. 2015, 272:70, eff. Oct. 1, 2015.