Rules of the Circuit Court of the State of New Hampshire -- Probate Division
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- Rule 1. DEFINITIONS.
- Rule 2. PETITIONS, APPEARANCES - Addresses.
- Rule 3. PETITIONS - Entry.
- Rule 4. PETITIONS, MOTIONS, OR PLEADINGS - Approved Forms, Form Reproduction.
- Rule 5. PETITIONS, MOTIONS, OR PLEADINGS - Failure to Comply with Rules or Statutes.
- Rule 6. PETITIONS, MOTIONS, OR PLEADINGS - Addressing the Court.
- Rule 7-9.
- Rule 10. DOCKETS.
- Rule 11. DOCKETS - Order of Presentation.
- Rule 12. COMPUTATION AND EXTENSION OF TIME.
- Rule 13. TRIAL ASSIGNMENT CALENDAR.
- RULE 14. APPEARANCES – General, Special, and Limited
- Rule 15. EXECUTION OF PLEADINGS.
- Rule 16. ADDRESSING THE COURT.
- Rule 17. [Reserved for Future Use].
- Rule 18. ATTORNEYS - Testifying.
- Rule 19. ATTORNEYS - Appearing Pro Hac Vice.
- Rule 20. WITHDRAWALS.
- Rule 21. PLEADINGS - Copies to all Parties.
- Rule 22. ATTORNEYS - Surety .
- Rule 23. SPECIFICATIONS.
- Rule 24-26. [Reserved for Future Use].
- Rule 27. THIRD PARTY PRACTICE.
- Rule 29. ORDERS TO PLEAD.
- Rules 27-A to 28. [Reserved for Future Use].
- Rules 30-32. [Reserved for Future Use].
- Rule 33. COUNTERCLAIMS.
- Rule 34. [Reserved for Future Use].
- Rule 35. DISCOVERY.
- Rule 36. WRITTEN INTERROGATORIES.
- Rule 36-A. WRITTEN INTERROGATORIES - Objections.
- Rule 37. [Reserved for Future Use].
- Rule 38. DEPOSITIONS - Notice.
- Rule 39. DEPOSITIONS - Stenographer.
- Rule 40. DEPOSITIONS - Delivery of Notice.
- Rule 41. DEPOSITIONS - Procedure.
- Rule 42. DEPOSITIONS - Out of State.
- Rule 43. [Reserved for Future Use].
- Rule 44. DEPOSITIONS AND INTERROGATORIES - Refusal to Answer.
- Rule 45. USE OF VIDEOTAPE DEPOSITIONS - Procedure.
- Rule 45-A. USE OF VIDEOTAPE DEPOSITIONS - Procedure for Objections.
- Rule 46. CONTINUANCES - Unavailability of a Material Witness.
- Rule 47. CONTINUANCES - Unavailability of Material Evidence.
- Rule 48. CONTINUANCES.
- Rule 49. CONTINUANCES - Motions.
- Rule 49-A. CONTINUANCES - Scheduling Conflict.
- Rule 50. CONTINUANCES - Court Approval Necessary.
- Rule 50-A. RECUSAL.
- Rule 51. SETTLEMENTS - Docket Markings.
- Rule 52. CONTINUANCES - Extension of Return Day.
- Rule 53. [Reserved for Future Use].
- Rule 54. ADMISSION OF RELEVANT FACTS, GENUINENESS OF DOCUMENTS AND SIGNATURES - Procedure.
- Rule 55. [Reserved for Future Use].
- Rule 56. WITHDRAWING PAPERS.
- Rule 57. MOTIONS - Requirements.
- Rule 57-A. MOTIONS - Certification of Attempt to Obtain Concurrence.
- Rule 58. MOTIONS - Objections and Oral Argument.
- Rule 58-A. MOTIONS FOR SUMMARY JUDGMENT.
- Rule 59. PLEADINGS - Frivolous Conduct.
- Rule 59-A. MOTIONS FOR RECONSIDERATION.
- Rule 60. HEARINGS - Contested Matters.
- Rule 61. NOTICE OF DECISIONS - Uncontested Matters.
- Rule 61-A. NOTICE OF DECISIONS - Contested Matters.
- Rule 61-B. UNTIMELY-FILED GUARDIAN AD LITEM REPORTS.
- Rule 62. STRUCTURING CONFERENCES AND PRETRIAL PROCEDURES.
- Rule 63. STANDING PRETRIAL ORDERS.
- Rule 63-A. PROCEDURE DURING TRIAL - Offers of Proof.
- Rule 64. PROCEDURE DURING TRIAL - Copies to Court.
- Rule 64-A. [Reserved for Future Use].
- Rule 65. PROCEDURE DURING TRIAL - Examination of Witness.
- Rule 66. PROCEDURE DURING TRIAL - Objections.
- Rule 67. PROCEDURE DURING TRIAL - Witness Re-examination.
- Rule 68. PROCEDURE DURING TRIAL - Criminal Record.
- Rule 69. PROCEDURE DURING TRIAL - Recall of Witness.
- Rule 70. PROCEDURE DURING TRIAL - Presentation of Case.
- Rule 71. PROCEDURE DURING TRIAL - Opening and Closing Statements.
- Rule 72. PROCEDURE DURING TRIAL - Requests and Memoranda.
- Rule 72-A. PROCEDURE AFTER TRIAL - Decisions.
- Rule 73. [Reserved for Future Use].
- Rule 74. PROCEDURE AFTER TRIAL - Final Judgment.
- Rule 75. PROCEDURE AFTER DEFAULT.
- Rule 76. APPEALS TO SUPERIOR COURT.
- Rule 77. [Reserved for Future Use].
- Rule 77-A. EXCEPTIONS UNNECESSARY.
- Rule 77-B. [Reserved for Future Use].
- Rule 78. PHOTOGRAPHING, RECORDING AND BROADCASTING.
- Rule 78-A. TRANSCRIPTS.
- Rule 78-B. DUPLICATION OF AUDIO TAPES.
- Rule 79. INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Procedure.
- Rule 80. INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Transcripts.
- Rule 81. MATTERS BEFORE MASTERS AND REFEREES.
- Rule 82. MATTERS BEFORE MASTERS AND REFEREES - Non-compliance.
- Rule 83. MATTERS BEFORE MASTERS AND REFEREES - Amendments and Assessment of Costs.
- Rule 84. MATTERS BEFORE MASTERS AND REFEREES - Approval by Probate Judge.
- Rule 85. MATTERS BEFORE MASTERS AND REFEREES - Questions of Law Reported.
- Rule 85-A. [Reserved for Future Use].
- Rule 86. TRUSTEES - Disclosure.
- Rule 87. TAXATION OF COSTS.
- Rule 88. FEES AND EXPENSES - Fiduciary and Attorney.
- Rule 89. FORMAL PROOF OF HIGHWAY WAIVED UNLESS DEMANDED.
- Rule 90. ADOPTION - Personal Attendance.
- Rule 91. ADOPTION OF FOREIGN-BORN CHILD.
- Rule 91-A. [Reserved for Future Use].
- Rule 92. ADOPTIONS - Proof of Birth, Guardianship Pending.
- Rule 93. PROCESSING AND DISPOSITION OF TERMINATION OF PARENTAL RIGHTS CASES.
- Rules 93-A to 94. [Reserved for Future Use].
- Rule 94. GESTATIONAL CARRIER AGREEMENTS - PARENTAGE ORDERS.
- Rule 95. CRIMINAL CONTEMPT.
- Rule 96. WILLS - Filed without Administration.
- Rule 96-A. PROOF OF VALIDITY OF WILL/TRUST.
- Rule 97. WILLS - Proof by Codicil.
- Rule 98. WILLS - Nuncupative or Lost.
- Rule 99. WILLS - With Charitable Trust, Charitable Remainder Trust or Charitable Bequest.
- Rule 99-A. [Reserved for Future Use].
- Rule 100. VOLUNTARY ADMINISTRATIONS - Contribution of Non-estate Funds.
- Rule 100-A. [Reserved for Future Use].
- Rule 101. STATUS REPORTS - Estates Opened Solely to Pursue a Cause of Action.
- Rule 102. PRIVATE CLAIM BY OR AGAINST FIDUCIARY.
- Rule 102-A. CREDITOR'S CLAIM.
- Rule 103. BONDS - Corporate.
- Rule 103-A. BONDS - Personal.
- Rule 103-B. BONDS - Change of Sureties or Penal Sum of Bond.
- Rule 104. SURETY OR BENEFICIARY AS APPRAISER OR COMMISSIONER.
- Rule 105. [Reserved for Future Use].
- Rule 105-A. INVENTORIES - Failure to Object.
- Rule 106. MOTIONS FOR LICENSE TO SELL, MORTGAGE, OR LEASE.
- Rule 106-A. MOTIONS FOR LICENSE TO SELL REAL ESTATE TO PAY DEBTS OR LEGACIES.
- Rule 106-B. LICENSE TO SELL, MORTGAGE, OR LEASE - Notification of Proceeds.
- Rule 106-C. LICENSE TO SELL, MORTGAGE, OR LEASE - Return.
- Rule 107. SALES WITHOUT LICENSE.
- Rule 108. FIDUCIARY ACCOUNTING STANDARDS.
- Rule 108-A. ACCOUNTS - Failure to Object.
- Rule 108-B. ACCOUNTS - Personal Attendance.
- Rule 109. INTERPRETERS.
- Rule 110. Motions for Commissioner of Insolvency
- Rule 111. GUARDIANSHIP OF MINORS NECESSITATED BY RSA 464-A:42.
- Rule 111-A. GUARDIANSHIP OF MINORS - Procedure on Receipt of Additional Assets.
- Rule 112. CONFIDENTIAL INFORMATION.
- Rule 113. CONSOLIDATION OF ACTIONS.
- Rule 114. [Reserved for Future Use].
- Rule 115. CHANGE OF VENUE, INCONVENIENT FORUM.
- Rule 116. [Reserved for Future Use].
- Rule 117. FORM OF PLEADING.
- Rule 118. FORM OF EQUITY PETITIONS - Structure.
- Rule 119. [Reserved for Future Use].
- Rule 120. FORM OF PETITION AND ANSWER - Obligation to be concise.
- Rule 121. FORM OF PETITION AND ANSWER - Numbered Paragraphs.
- Rule 122. PETITION TO QUIET TITLE.
- Rule 123. [Reserved for Future Use].
- Rule 124. PETITION - Entry and Orders.
- Rule 125. PETITION - Service.
- Rule 126. PETITION - Attested copies.
- Rule 127. PETITION - Time limits for Answer.
- Rule 128. PETITION - Notice by Publication.
- Rule 129. PETITION - Writs of Attachment.
- Rule 130. [Reserved for Future Use].
- Rule 131. APPEARANCES AND ANSWERS - Time to file.
- Rule 132. EQUITY ANSWERS - Form.
- Rule 133. ANSWERS.
- Rule 134. [Reserved for Future Use].
- Rule 135. AMENDMENTS TO PLEADINGS.
- Rule 136. AMENDMENTS - Response.
- Rule 137. REPLICATIONS - Equity.
- Rule 138. [Reserved for Future Use].
- Rule 139. NEW PARTIES.
- Rule 140. SECURITY FOR COSTS.
- Rule 141. PRELIMINARY ORDERS.
- Rule 142. CONTEMPT AND ARREST.
- Rule 143. CONTEMPT AND ARREST - Bail.
- Rule 144-149. [Reserved for Future Use].
- Rule 150. STIPULATIONS OR AGREEMENTS.
- Rules 151-160. [Reserved for Future Use].
- Rule 161. TEMPORARY RESTRAINING ORDERS; PRELIMINARY INJUNCTIONS.
- Rule 162. INJUNCTIONS - Filing of Pleading.
- Rule 163. INJUNCTIONS - Bond.
- Rule 164. PREPARATION OF EX PARTE DECREES.
- Rules 165-168. [Reserved for Future Use].
- Rule 169. FEES.
- Rule 169-A. ACCESS TO CONFIDENTIAL RECORDS -- Fees and Notice.
- Rules 170-171. [Reserved for Future Use].
- Rule 172. Dismissal of Cases Pending Without Action
- Rule 173 – Name Change Actions
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As good cause appears and as justice may require, the Court may waive the application of any rule.
Rule 1. DEFINITIONS.
The following defined terms were developed to ensure clarity and consistency and are capitalized when used in a rule.
Administrator: The word Administrator includes every Person to whom an administration of an estate has been granted, including administrators and executors.
Answer: A written response to a Petition. However, an Answer is not the only acceptable written response to a Petition, other examples would be a Motion to dismiss or an objection.
Appearance (General): A written document filed by, or on behalf of a Party, pursuant to Rule 14, submitting to the jurisdiction of the Court.
Appearance (Special): An Appearance filed with the Court for the sole purpose of determining jurisdiction.
Attorney: Any person (a) admitted to practice law in New Hampshire, (b) allowed to appear in New Hampshire courts under pro hac vice (Rule 19) status, or (c) authorized by another under a power of attorney, usually referred to as an attorney-in-fact.
Beneficially Interested: As defined in RSA 550:12.
Cause: Any matter filed with the Court which requires the filing of an Appearance.
Court: Probate Court
Fiduciary: The word fiduciary includes every Person appointed to act as an administrator, executor, guardian, conservator, or trustee.
Motion: A written Pleading or oral request to the Court requesting the Court to take particular action.
Party: Any Person whose name is designated on the record to a proceeding as a Petitioner, Respondent, guardian ad litem or any other person or legal entity who has filed an Appearance, also referred to as a Party appearing of record.
Person: A natural person or any legal entity.
Petition: A written Pleading that initiates a proceeding.
Petitioner: A Party who initiates a proceeding.
Pleading: A Petition, Motion, objection, Answer, account or inventory filed with the Court requesting action by the Court.
Power of Attorney: An instrument signed by a Party, witnessed and acknowledged before a Justice of the Peace or Notary Public, authorizing an individual to act on behalf of the Party to do a particular act, appear in a particular matter, or for the general transaction of business.
Proof of Assets: Documentation that demonstrates that a ward has sole ownership of the assets. An example of documentation for savings, checking, certificates of deposit, and/or any other accounts, may be a photocopy of the current statement that shows the balance and the complete account title and ownership information.
Pro Se Party: A Party who does not retain an Attorney but appears personally.
Register: Register of Probate
Respondent: A Party who responds to a Petition.
Return Day: The date upon which Petitions are returnable to the Court. It is usually the first Tuesday of any month unless otherwise ordered by the Court. The Return Day is selected to create the time limits people are given in which to respond.
Tangible Personal Property: Property of material substance such as, goods, wares and merchandise.
Rule 2. PETITIONS, APPEARANCES - Addresses.
Petitions shall not be accepted for entry unless the mailing address and actual street address of the party filing the Petition appears thereon, and no Appearance shall be filed unless it contains the mailing address and actual street address of each Party included in said Appearance. For good cause shown, any Petition or Appearance rejected for non-compliance with this rule may, upon Motion and compliance, be admitted for filing.
All changes of either mailing address or actual street address shall be filed with the Register. The change of address shall include certification that a copy of it has been forwarded to all Attorneys, Pro Se Parties appearing of record, and to all Persons Beneficially Interested. Whenever notice to a Party is required, notice to the last mailing address on file shall be deemed notice to, and binding on, the Party.
Rule 3. PETITIONS - Entry.
No Petition shall be presented to, or heard by, the Court until filed with the Register's office, the applicable entry fee paid, and the petition is entered upon the docket.
Rule 4. PETITIONS, MOTIONS, OR PLEADINGS - Approved Forms, Form Reproduction.
No Petition, Motion, objection, or other Pleading, which is contained in a letter shall be accepted by the Register, as such, or acted on by the Court. Approved forms shall be furnished by the Register and must be used in all proceedings to which they are applicable. In all inventories and accounts where there is not sufficient space in the original form, additions or riders may be attached on paper of the same size. If no approved form is specifically applicable, the Party shall then file a Petition or Motion in such form as complies with the Rules of this Court.
Rule 5. PETITIONS, MOTIONS, OR PLEADINGS - Failure to Comply with Rules or Statutes.
The Register may refuse to accept any Petition, Motion or Pleading that the Register determines does not comply with these rules or statutory procedure. In the event an objection is made to such determination, a written Motion may be made to the Court to rule on such determination.
Rule 6. PETITIONS, MOTIONS, OR PLEADINGS - Addressing the Court.
No Attorney or Party shall directly address himself or herself by Petition, Motion or Pleading, to any Judge of Probate, but shall file such Petition, Motion or Pleading with the appropriate Register.
[Reserved for Future Use].
Rule 10. DOCKETS.
The Register shall enter upon the docket, at the time of filing the Petition, the names and addresses of all Parties involved in such Petition.
Rule 11. DOCKETS - Order of Presentation.
Petitions, Motions and other Pleadings shall be presented to the Court in the order in which they are filed, unless otherwise determined by the Court.
Rule 12. COMPUTATION AND EXTENSION OF TIME.
In computing any period of time prescribed or allowed by these rules, by order of the Court, or by applicable law, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday as specified in RSA 288, as amended, or other day the Court is not open, in which event the period shall extend until the end of the next day that is not a Saturday, Sunday, legal holiday as specified in RSA 288, as amended, or other day the Court is not open.
Rule 13. TRIAL ASSIGNMENT CALENDAR.
A Party, Petitioner or Respondent, anytime subsequent to, or contemporaneous with, the filing of an Answer to a Petition, may by Motion request that the Court place the contested matter on the trial calendar. Such Motion shall be a representation to the Court by the Party or the Attorney for the Party that the Party is ready for trial, that there is no known reason why the opposing Party is not ready for trial, that settlement negotiations have been exhausted and that a trial is probably certain. Rule 59 shall be strictly enforced as to all such Motions.
RULE 14. APPEARANCES – General, Special, and Limited
Any party may appear before the court in person, or by any citizen of good character, or by an attorney authorized to practice in the courts of this state; provided, however, that no person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself until there is on file with the Register: (1) a power of attorney signed by the party for whom he or she seeks to appear and witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action; and (2) an affidavit under oath in which said person discloses (a) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (b) all instances in which said person has been found by any court to have violated a court order or any provision of the rules of professional conduct applicable to nonlawyer representatives, (c) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court, (d) all prior proceedings in which said person has not been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court, and (e) all prior proceedings in which said person’s permission to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court has been revoked. The person so appearing shall file with the Register a written appearance notice giving his name, his residence, the matter in which he appears, the name of the person or persons for whom he appears and their respective mailing addresses, and the Register shall enter the appearance on the docket. In contested matters, the notice of appearance shall be forwarded to the adverse party by the party so appearing and certification of such shall be made to the court. Any person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.
Rule 15. EXECUTION OF PLEADINGS.
(A) All Petitions shall be signed by the Petitioner, except that Petitions requesting equitable relief may be signed by the Petitioner or the Petitioner's Attorney. All bonds, inventories and accounts shall be signed by the Fiduciary. Motions and other Pleadings may be signed by the Party, the Party's Attorney or the attorney's associate. Names, addresses, New Hampshire Bar identification numbers and telephone numbers shall be typed, stamped or printed beneath all signatures on papers to be filed or served.
The signature of any Person to a Petition, Motion, or other Pleading constitutes a certification that he or she has read the Pleading; that to the best of his or her knowledge, information and belief there is a good ground to support the Pleading; and that it is not interposed for delay.
If a Petition, Motion, or other Pleading is not signed, it may be stricken and the action may proceed as though it had not been filed.
(B) Pleading Prepared for Unrepresented Party. When an attorney provides limited representation to an otherwise unrepresented party, by drafting a document to be filed by such party with the Court in a proceeding in which (1) the attorney is not entering any appearance, or (2) the attorney has entered a limited appearance which does not include representation regarding such document, the attorney is not required to disclose the attorney’s name on such pleading to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New Hampshire attorney.” The unrepresented party must comply with this required disclosure. Notwithstanding that the identity of the drafting attorney need not be required to be disclosed under this rule, by drafting a pleading to be used in court by an otherwise unrepresented party, the limited representation attorney shall be deemed to have made those same certifications as set forth in Rule 15(A) despite the fact the pleading need not be signed by the attorney.
Rule 16. ADDRESSING THE COURT.
Anyone addressing the Court or examining a witness shall stand. No one shall approach the bench to address the Court except by permission of the Court.
Rule 17. [Reserved for Future Use].
Rule 18. ATTORNEYS - Testifying.
No Attorney shall be compelled to testify in any Cause in which the Attorney is retained, unless the Attorney has been notified in writing, not less than thirty (30) days prior to the hearing that the Attorney will be summoned as a witness therein.
Rule 19. ATTORNEYS - Appearing Pro Hac Vice.
(A) An attorney, who is not a member of the Bar of this State [(a “Nonmember Attorney”)], shall not be allowed to engage in the trial or hearing in any case, except on application to appear pro hac vice, which will not ordinarily be granted unless a member of the Bar of this State [(the “In-State Attorney”)] is associated with him or her and present at the trial or hearing.
(B) A Nonmember Attorney seeking to appear pro hac vice shall file a verified application with the court, which shall contain the following information:
(1) the applicant's residence and business address;
(2) the name, address and phone number of each client sought to be represented;
(3) the courts before which the applicant has been admitted to practice and the respective period(s) of admission;
(4) whether the applicant: (a) has been denied admission pro hac vice in this State; (b) had admission pro hac vice revoked in this State; or (c) has otherwise formally been disciplined or sanctioned by any court in this State. If so, the applicant shall specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;
(5) whether any formal, written disciplinary proceeding has ever been brought against the applicant by any disciplinary authority in any other jurisdiction within the last five years and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings;
(6) whether the applicant has been formally held in contempt or otherwise sanctioned by any court in a written order in the last five years for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court's rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application); and
(7) the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this State within the preceding two years; the date of each application; and the outcome of the application.
(8) In addition, unless this requirement is waived by the probate court, the verified application shall contain the name, address, telephone number and bar number of an active member in good standing of the Bar of this State who will be associated with the applicant and present at any trial or hearing.
(C) The court has discretion as to whether to grant applications for admission pro hac vice. An application ordinarily should be granted unless the court finds reason to believe that:
(1) such admission may be detrimental to the prompt, fair and efficient administration of justice;
(2) such admission may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;
(3) one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk; or
(4) the applicant has engaged in such frequent appearances as to constitute common practice in this State.
(D) When a Nonmember Attorney appears for a client in a proceeding pending in this state, either in the role of co-counsel of record with the In-State Attorney, or in an advisory or consultative role, the In-State Attorney who is co-counsel or counsel of record for that client in the proceeding remains responsible to the client and responsible for the conduct of the proceeding before the court or agency. It is the duty of the In-State Attorney to advise the client of the In-State Attorney’s independent judgment on contemplated actions in the proceeding if that judgment differs from that of the Nonmember Attorney.
(E) An applicant for permission to appear pro hac vice shall pay a non-refundable fee as set forth in Circuit Court-Probate Division Rule 169; provided that not more than one application fee may be required per Nonmember Attorney for consolidated or related matters regardless of how many applications are made in the consolidated or related proceedings by the Nonmember Attorney; and further provided that the requirement of an application fee may be waived to permit pro bono representation of an indigent client or clients, in the discretion of the court.
Rule 20. WITHDRAWALS.
A. Parties may withdraw an Appearance in the following manner:
1. A Pro Se Party, including Pro Se Creditor shall file a withdrawal with the Register and certify that a copy of the withdrawal has been forwarded to all other Parties.
2. An Attorney for a Creditor shall file a withdrawal with the Register and certify that a copy of the withdrawal has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties.
3. Attorney for any other party and Guardian ad Litem. Other than limited representation by attorneys as allowed by Rule 14 and Professional Conduct Rule 1.2(f)), an Attorney for any other party and Guardian ad Litem shall file a motion to withdraw with the Register and certify that a copy of the motion has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties. In cases scheduled for a hearing, no motion to withdraw shall be granted except for good cause shown. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the Attorney's services. A Withdrawal is not effective until the motion to withdraw is granted by the Court.
4. Attorney for Respondent. Other than limited representation by attorneys as allowed by Rule 14 and Professional Conduct Rule 1.2(f)), an Attorney for Respondent shall file a motion to withdraw with the Register and certify that a copy of the motion has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties.
(a) In cases scheduled for a hearing, no motion to withdraw shall be granted except for good cause shown. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the Attorney's services. A Withdrawal is not effective until the motion to withdraw is granted by the Court.
(b) Whenever an Attorney is allowed to withdraw an Appearance, and no other Appearance is contemporaneously entered, the Register shall notify the Party by mail of such withdrawal, and, unless the Party appears pro se or by an Attorney by a date fixed by the Court, any contested matter shall proceed as though that Party has defaulted and does not wish to be heard.
5. Automatic Termination of Limited Representation. Any limited representation appearance filed by an attorney, as authorized under Professional Conduct Rule 1.2(f)) and Rule 14 of this Court, shall automatically terminate upon completion of the agreed representation, without the necessity of leave of Court, provided that the attorney shall provide the Court a “withdrawal of limited appearance” form giving notice to the Court and all parties of the completion of the limited representation and termination of the limited appearance. Any attorney having filed a limited appearance who seeks to withdraw prior to the completion of the limited representation stated in the limited appearance, however, must comply with either 3. or 4. above, as may be applicable.
B. The Court upon Motion, or on its own Motion, may strike a Party from the record, if the Party no longer has an interest in the matter.
Rule 21. PLEADINGS - Copies to all Parties.
A. Any Person filing a Pleading or correspondence with the Court shall forthwith furnish copies to all Attorneys, Pro Se Parties appearing of record, and to all Persons Beneficially Interested, unless excused by the Court for good cause shown. When an attorney has filed a limited appearance under Rule 14 on behalf of an opposing party, copies of pleadings filed and communications addressed to the Court shall be furnished both to the opposing party who is receiving the limited representation and to the limited representation attorney. After the limited representation attorney files that attorney’s “withdrawal of limited appearance” form, as provided in Rule 20.A.5., no further service need be made upon that attorney. All such Pleadings shall contain a statement of compliance. This rule shall not apply to any Pleading for which orders of notice are issued and served upon the parties.
B. In any case when all parties are represented by lawyers, all parties' counsel may agree that pleadings filed and communications addressed to the court may be furnished to all other counsel by email. An agreement may be filed with the court by stipulation. Such agreement shall list the email address(es) at which counsel agrees to be served. The email header shall include the caption of the case and its docket number. Pleadings and communications furnished in accordance with this rule shall be attached to the email in .PDF file format. Documents so furnished may have on their signature lines a copy of counsel's signature, a facsimile thereof, “/s/ [counsel's name]” as used in the federal ECF system, or similar notation indicating the document was signed.
Rule 22. ATTORNEYS - Surety .
No Attorney shall be surety in any case pending before the Court.
Rule 23. SPECIFICATIONS.
In all contested matters, the Court or any Party may file a Motion for a filing of specifications which set forth the particulars for any claim or objection. Specifications shall be filed within such time as the Court may order. In those cases in which specifications have been filed, the hearing shall be limited to the grounds specified. Specifications may be amended by filing a Motion with the Court, which may be granted or denied upon such terms as the Court may deem reasonable.
Rule 24-26. [Reserved for Future Use].
Rule 27. THIRD PARTY PRACTICE.
Whenever a third Party is, or may be, liable to a Respondent in any pending action for all or part of the Petitioner's claim against said Respondent or if said Respondent may have a claim against a third Party, depending upon the determination of an issue or issues in the pending action, the Respondent may bring an action against the third Party and, unless otherwise ordered on Motion of any Party, such action shall be consolidated for hearing with the pending action or, if justice requires, on such Motion said third Party may be made a Party to the pending action, for the purpose of being bound by the determination of any common issues; provided, however, that, except for good cause shown to prevent injustice and upon such terms as the Court may order, no such action shall be consolidated with or said third Party joined in said pending action, unless suit is brought against said third Party within sixty (60) days following the Return Day of said pending action.
Rule 29. ORDERS TO PLEAD.
The Court may in all cases order either Party to plead and also to file a statement in sufficient detail to give to the adverse Party and to the Court reasonable knowledge of the nature and grounds of the action or defense. Upon failure to comply with such order, the Court may take such action as justice may require.
Rules 27-A to 28. [Reserved for Future Use].
Rules 30-32. [Reserved for Future Use].
Rule 33. COUNTERCLAIMS.
No counterclaim shall be filed after thirty (30) days from the Return Day, except by leave of the Court and upon payment of costs; and when a counterclaim is filed, a copy shall be given to all Parties of record.
Rule 34. [Reserved for Future Use].
Rule 35. DISCOVERY.
a. Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical or mental examinations; and requests for admission. Unless the Court orders otherwise, or unless otherwise provided in these Rules, the frequency of use of these methods is not limited.
b. Scope of Discovery. Unless otherwise limited by order of the Court in accordance with these Rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the Party seeking discovery or to the claim or defense of any other Party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought shall be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(2) Trial Preparation: Materials. Subject to the provisions of subdivision b(3) of this Rule, a Party may obtain discovery of documents and tangible things otherwise discoverable under subdivision b(1) of this Rule and prepared in anticipation of litigation or for trial by or for another Party or by or for that other Party's representative (including his or her Attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the Party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, or legal theories of an Attorney or other representative of a Party concerning the litigation.
A Party may obtain without the required showing a statement concerning the action or its subject matter previously made by that Party. Upon request, a Person not a Party may obtain without the required showing a statement concerning the action or its subject matter previously made by that Person. If the request is refused, the Person may move for a court order. The provisions of Rule 59 apply to the award of expenses incurred in relation to the Motion. For purposes of this paragraph, a statement previously made is (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the Person making it and contemporaneously recorded.
(3) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision b(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(a) (i) A Party may through interrogatories require any other Party to identify each Person, whom the other Party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the Court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision b(3)(c) of this Rule, concerning fees and expenses as the Court may deem appropriate.
(b) A Party may discover facts known or opinions held by an expert, who has been retained or specially employed by another Party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the Party seeking discovery to obtain facts or opinions on the same subject by other means.
(c) Unless manifest injustice would result, (i) the Court shall require that the Party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions b(3)(a) and b(3)(b) of this rule, and (ii) with respect to discovery obtained under subdivision b(3)(a)(ii) of this Rule, the Court may require, and with respect to discovery obtained under subdivision b(3)(b), the Court shall require the Party seeking discovery to pay the other Party a fair portion of the fees and expenses reasonably incurred by the latter Party in obtaining facts and opinions from the expert.
c. Protective Orders. Upon Motion by a Party or by the Person from whom discovery is sought, and for good cause shown, the Court may make any order which justice requires to protect a Party or Person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the Party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the Court; (6) that a deposition after being sealed be opened only by order of the Court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the Parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court.
If the Motion for a protective order is denied in whole or in part, the Court may, on such terms and conditions as are just, order that any Party or Person provide or permit discovery. The provisions of Rule 59 apply to the award of expenses incurred in relation to the Motion.
d. Sequence and Timing of Discovery. Unless the Court upon Motion, for the convenience of Parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a Party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other Party's discovery.
e. Supplementation of Responses. A Party, who has responded to a request for discovery with a response that was complete when made, is under no duty to supplement his or her response to include information thereafter acquired, except as follows:
(1) A Party is under a duty seasonably to supplement his or her response with respect to any question directly addressed to (a) the identity and location of Persons having knowledge of discoverable matters, and (b) the identity of each Person expected to be called as an expert witness at trial, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.
(2) A Party is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which (a) he or she knows that the response was incorrect when made, or (b) he or she knows that the response, though correct when made, is no longer true.
(3) A duty to supplement responses may be imposed by order of the Court, agreement of the Parties, or at any time prior to trial through new requests for supplementation of prior responses.
f. Disclosure of Expert Witnesses. Within thirty (30) days of a request by the opposing Party, or in accordance with an order of the Court following a discovery conference, a Party shall be required to supply a Disclosure of Expert Witness(es) as defined under Rule 702 of the Rules of Evidence, which document shall
(1) identify each Person, including any Party, whom the Party expects to call as an expert witness at trial,
(2) provide a brief summary of the expert's education and experience relevant to his area of expertise,
(3) state the subject matter on which the expert is expected to testify, and
(4) state a summary of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The Party shall attach to the disclosure a copy of any expert report relating to such expert.
Rule 36. WRITTEN INTERROGATORIES.
Any Party may serve, by mail or delivery by hand, upon any other Party written interrogatories relating to any matters which may be inquired into under Rule 44.
Any Party propounding interrogatories shall provide the opponent with notice, substantially as set forth in the following form, of the obligation to answer said interrogatories within thirty days. The notice shall be at the top of the first page and printed in capital, typewritten letters or in ten-point, bold-face print. The form of the notice in substance shall be as follows:
These interrogatories are propounded in accordance with Probate Court Rule 36. You must answer each question separately and fully in writing and under oath. You must return the original and one copy of your answers within thirty (30) days of the date you received them to the Party or Attorney who served them upon you. If you object to any question, you must note your objection and state the reason therefor. If you fail to return your answers within thirty (30) days, the party who served them upon you may inform the Court, and the Court shall make such orders as justice requires, including the entry of a conditional default against you.
The Party serving the interrogatories shall furnish the answering Party with an original and two copies of the interrogatories. The interrogatories will be so arranged that after each separate question shall appear a blank space reasonably calculated to enable the answering Party to have his or her answer typed in. The parties may agree to transmit interrogatories electronically or by computer disk, enabling the answering party to provide answers directly after each separate question using the party's available word processing technology. In the event of such an agreement, the requirement of providing space between each question sufficient to manually insert answers is obviated.
Interrogatories shall be answered in writing under oath by the Party upon whom served, if an individual, or, if a public or private corporation, a partnership or association, by an officer or agent who shall furnish all information available to the Party.
Each question shall be answered separately, fully and responsively in the space following the question, or, if insufficient, on additional pages or retyped pages repeating each interrogatory in full following by the answer, in such manner that the final document shall have each interrogatory immediately succeeded by the separate answer.
If, in any interrogatory, a copy of a paper or document is requested, the copy shall be annexed to the answer. If the copy is a report of an expert witness or a treating physician, it shall be the exact copy of the entire report or reports rendered by him or her, and the answering Party shall certify that the existence of other reports of that expert, either written or oral, are unknown to him or her and, if such become later known or available, he or she shall serve them promptly on the propounding Party but in any case not later than ten (10) days prior to pre-trial settlement conference.
The Party, who is served with interrogatories, shall serve his or her answers thereto, by mail or delivery in hand, upon the Party propounding them within thirty (30) days after service of such interrogatories, or within thirty (30) days after the return day, whichever date is later. The Parties may extend such time by written agreement.
The answers shall be served, together with the original and one (1) copy of the interrogatories upon the propounding Party. If copies of papers are annexed to answers, they need be annexed to only one set.
If a Party, upon whom interrogatories are served, objects to any questions propounded therein, he or she may either answer the question by stating it is improper, or he or she may, within twenty (20) days after the service of interrogatories upon him or her, move to strike any question, setting out the specific grounds of objection. He or she shall make timely answer, however, to all questions to which he or she does not object. Interrogatories, which are not stricken, shall be answered within such unexpired period of the thirty (30) days above provided as remained when the Motion was filed or within such time as the Court directs. The propounder of a question answered by a statement that it is improper may, within twenty (20) days after service of the answers upon him or her, move to compel an answer to the question, and, if the Motion is granted, the question shall be answered within such time as the Court directs.
If a Party, who is served with interrogatories requesting copies of papers, objects to the furnishing thereof, he or she shall, in lieu of complying with the request, either state with specificity the reasons for his or her noncompliance or invite the propounder to inspect and copy the papers at a designated time and place. The propounder of a request for a copy of a paper, which is not complied with, may, within twenty (20) days after the service of the answers upon him or her, file a Motion seeking compliance with the request or for other appropriate relief.
Motions to strike interrogatories or to compel more specific answers thereto shall include a statement summarizing the nature of the action and shall have annexed thereto the text of the questions and answers, if any, objected to.
If the Court finds that a Motion, which is made pursuant to this Rule, was made frivolously or for the purpose of delay or was necessitated by action of the adverse Party that was frivolous or taken for the purpose of delay, the Court may order the offending Party to pay the amount of reasonable expenses, including Attorney's fees, incurred by the other Party in making or resisting the Motion.
A Party may file more than one (1) set of interrogatories to an adverse Party, but the total number of interrogatories shall not exceed fifty (50), unless the Court otherwise orders for good cause shown after the proposed additional interrogatories have been filed. In determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be counted separately, whether or not it is subsidiary or incidental to or dependent upon or included in another question, and however the questions may be grouped, combined or arranged.
The adverse Party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.
If a Party, who has furnished answers to interrogatories, thereafter obtains information which renders such answers incomplete or inaccurate, amended answers shall be served in accordance with Rule 35E.
Interrogatories and answers may be used at the trial to the same extent as depositions. If less than all of the interrogatories and answers thereto are marked or read into evidence by a Party, an adverse Party may read into evidence any other of the interrogatories and answers or parts thereof necessary for a fair understanding of the parts read into evidence.
Neither the interrogatories nor the answers need be filed with the Register unless the Court so directs at the pretrial settlement conference or at trial.
If the Party, upon whom interrogatories have been served, shall fail to answer said interrogatories within thirty (30) days, or any enlarged period, unless written objection to the answering of said interrogatories is filed within that period, said failure shall result in a conditional default being entered by the Register upon Motion being filed indicating such failure to answer. The Party failing to answer shall receive notice of the conditional default. The conditional default shall be vacated if the defaulted Party answers the interrogatories within ten (10) days of receiving notice thereof and moves to strike the conditional default. If the defaulted Party fails to move to strike the conditional default within ten (10) days of receiving notice thereof, the adverse Party may move to have a default judgment entered and damages assessed in connection therewith. Unless the claim is fully liquidated and not subject to dispute as to amount or remedy, the Court shall have a hearing on damages.
Rule 36-A. WRITTEN INTERROGATORIES - Objections.
When objections are made to interrogatories or requests for admissions, before there is any court hearing regarding said objections, counsel for the Parties shall attempt in good faith to settle the objections by agreement. It shall be the responsibility of counsel for the objecting Party to initiate such attempt and to notify the Register if the objections are settled by agreement.
If, following such conference, counsel are unable to settle objections, counsel for the objecting Party shall notify the Register and request a hearing on such objections as remain unsettled.
Where an objection to an interrogatory has been withdrawn by agreement of counsel or has been overruled by the Court, the answer to such interrogatory will be served within ten (10) days thereafter.
Rule 37. [Reserved for Future Use].
Rule 38. DEPOSITIONS - Notice.
No notice to the adverse Party of the taking of depositions shall be deemed reasonable unless served at least three (3) days, exclusive of the day of service and the day of the deposition, before the day on which they are to be taken. Provided, however, that twenty (20) days' notice shall be deemed reasonable in all cases, unless otherwise ordered by the Court. No deposition shall be taken within twenty (20) days after service of the Petition, or other Pleading, except by agreement or by permission of the Court for good cause shown.
Rule 39. DEPOSITIONS - Stenographer.
Every notice of a deposition to be taken within the State shall contain the name of the stenographer or the stenographer's firm proposed to record the testimony.
Rule 40. DEPOSITIONS - Delivery of Notice.
When a statute requires notice of the taking of depositions to be given to the adverse Party, it may be given to such Party or to the Party's Attorney of record. In cases where the action is in the name of a nominal Party and the Petition, Motion, Pleading, or docket discloses the real Party in interest, notice shall be given either to the real Party in interest or to the Attorney of record. Notices given pursuant to this Rule may be given by mail or by service in hand. If a subpoena duces tecum is to be served on the deponent, the notice to the adverse party must be served before service of the subpoena, and the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment.
Rule 41. DEPOSITIONS - Procedure.
The interrogatories shall be asked by the Pro Se Parties or Attorneys, and the interrogatories and answers shall be taken in shorthand or other form of verbatim reporting approved by the Court and transcribed by a competent stenographer agreed upon by the Pro Se Parties or Attorneys present at the deposition. In the absence of such agreement, the stenographer shall be designated by the Court. Failure to object in writing to a stenographer in advance of the taking of a deposition shall be deemed agreement to the stenographer recording the testimony.
Rule 42. DEPOSITIONS - Out of State.
The signature of a Person outside the State, acting as an officer legally empowered to take depositions or affidavits, with his or her seal affixed, where one is required, to the certificate of an oath administered by him or her in the taking of affidavits or depositions, shall be prima facie evidence of his or her authority so to act.
Rule 43. [Reserved for Future Use].
Rule 44. DEPOSITIONS AND INTERROGATORIES - Refusal to Answer.
The deponent, on deposition or on written interrogatory, shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege.
Rule 45. USE OF VIDEOTAPE DEPOSITIONS - Procedure.
The Court, within its discretion, may allow the use of videotape depositions that have been taken by agreement. If the Parties cannot reach such an agreement, the Court may, in its discretion, order the taking and/or use of such depositions. At the commencement of the videotape deposition, the Pro Se Party or Attorney representing the Party taking the deposition shall state whose deposition it is, for what case it is being taken, where it is being taken, who will be asking the questions, and the date and the time of the deposition. Care shall be taken to have the witnesses speak slowly and distinctly and that papers be readily available for reference without undue delay and unnecessary noise. All persons attending the deposition shall comport themselves at all times as if they were actually in the courtroom.
Rule 45-A. USE OF VIDEOTAPE DEPOSITIONS - Procedure for Objections.
A Party objecting to a question asked of, or an answer given by, a witness whose testimony is being taken by videotape shall provide the Court, either at the pretrial conference or if no pretrial conference ten (10) days before trial, with a transcript of the videotape proceedings that is sufficient to enable the Court to act upon the objection, or the objection shall be deemed waived.
Rule 46. CONTINUANCES - Unavailability of a Material Witness.
(a) In Cases Not Subject to Electronic Filing.
In any case filed in the probate division in which the electronic filing pilot program has not been implemented, see http://www.courts.state.nh.us/circuitcourt/efilingcourts.htm, no motion for a continuance based on the unavailability of material testimony shall be granted, unless supported by an affidavit stating the name of the witness, if known, whose testimony is unavailable, the particular facts the witness is expected to prove with the grounds of such expectation, and what has been done to procure his or her attendance or deposition, so that the court may determine whether due diligence has been exercised for that purpose. No action shall be continued on such motion if the adverse party will agree that the affidavit shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated, and such agreement shall be in writing at the foot of the affidavit and signed by the self-represented party or attorney.
(b) In Cases Subject to Electronic Filing.
In any case filed in the probate division in which the electronic filing pilot program has been implemented, see http://www.courts.state.nh.us/circuitcourt/efilingcourts.htm, no motion for a continuance based on the unavailability of material testimony shall be granted, unless supported by a statement containing the name of the witness, if known, whose testimony is unavailable, the particular facts the witness is expected to prove with the grounds of such expectation, and what has been done to procure his or her attendance or deposition, so that the court may determine whether due diligence has been exercised for that purpose. This statement shall be signed and shall indicate in writing the person’s understanding that making a false statement in the pleading may subject that person to criminal penalties. No action shall be continued on such motion if the adverse party will agree that the statement shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated, and such agreement shall be in writing at the foot of the statement and signed by the self-represented party or attorney.
Rule 47. CONTINUANCES - Unavailability of Material Evidence.
Rule 46 shall apply, with necessary changes, when the Motion is grounded on the unavailability of any material document, paper, or other evidence of like nature.
Rule 48. CONTINUANCES.
Continuances may be granted upon such terms as the Court may order.
Rule 49. CONTINUANCES - Motions.
All Motions for continuance shall be made in writing setting forth the grounds relied on and shall be signed and dated by the Pro Se Party or Attorney. Other Parties wishing to join in any such Motion shall also do so in writing.
Rule 49-A. CONTINUANCES - Scheduling Conflict.
Where a trial has been scheduled in one case prior to the scheduling of another matter in another Court, or elsewhere, where an Attorney or Party has a conflict in date and time, the case first scheduled shall not be subject to a continuance because of the subsequently scheduled matter which is in conflict as to time and date except as follows:
Rule 50. CONTINUANCES - Court Approval Necessary.
All actions shall be in order for hearing or trial as scheduled and, notwithstanding agreements of Parties, shall not be continued except for good cause shown and upon such terms as the Court may order.
Rule 50-A. RECUSAL.
All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written Motion for recusal and filed promptly with the Court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the Court. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the trial judge shall make a record of the request, the Court's findings, and its order. The Court's ruling on the motion shall issue promptly. If the motion is denied, the Court’s ruling shall be supported by findings of fact with respect to the allegations contained in the motion.
Rule 51. SETTLEMENTS - Docket Markings.
Whenever a Pro Se Party or Attorney informs the Register that a particular matter has been settled and that agreements will be filed, the Register shall forthwith notify by mail the parties of record or their Attorneys of such notice of settlement. If the settlement agreements are not filed within thirty (30) days after the mailing of such notice, the Register shall summon the Parties to a hearing to determine what court action shall be taken.
Rule 52. CONTINUANCES - Extension of Return Day.
If service of process cannot be completed within the time set forth in the orders of notice, upon written Motion, the Court may extend the Return Day and the date for completion of service upon such terms as justice may require.
Rule 53. [Reserved for Future Use].
Rule 54. ADMISSION OF RELEVANT FACTS, GENUINENESS OF DOCUMENTS AND SIGNATURES - Procedure.
Any Party desiring to obtain admission of the signature on or the genuineness of any relevant document or of any relevant facts which he or she believes not to be in dispute, may file a request therefor with the Register, accompanied by any original documents involved, and deliver a copy of such request and documents to the adverse Pro Se Party or Attorney. Each of the matters, of which an admission is requested, shall be deemed admitted, unless within thirty (30) days after such delivery the adverse Party files with the Register and delivers a copy thereof to the Pro Se Party or Attorney requesting such admission, either a sworn denial thereof or a written objection on the ground of privilege or that it is otherwise improper.
Rule 55. [Reserved for Future Use].
Rule 56. WITHDRAWING PAPERS.
Papers shall not be withdrawn from the files except by permission of the Court and upon a receipt therefor being filed.
Rule 57. MOTIONS - Requirements.
(a) In Cases Not Subject to Electronic Filing.
In any case filed in the probate division in which the electronic filing pilot program has not been implemented, see http://www.courts.state.nh.us/circuitcourt/efilingcourts.htm, the court will not hear any motion grounded upon facts, unless they are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their attorneys; and the same rule shall be applied as to all facts relied on in opposing any motion.
(b) In Cases Subject to Electronic Filing.
In any case filed in the probate division in which the electronic filing pilot program has been implemented, see http://www.courts.state.nh.us/circuitcourt/efilingcourts.htm, the court will not hear any motion grounded upon facts, unless the moving party indicates in writing an understanding that making a false statement in the pleading may subject that party to criminal penalties, or the facts are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their attorneys; and the same rule shall be applied as to all facts relied on in opposing any motion.
Rule 57-A. MOTIONS - Certification of Attempt to Obtain Concurrence.
Any Pro Se Party or Attorney filing a Motion shall certify to the Court that such Pro Se Party or Attorney has made a good faith attempt to obtain concurrence in the relief sought, except in the case of dispositive Motions, Motions for contempt or sanctions, or comparable Motions where it can be reasonably assumed that the Pro Se Party or Attorney will be unable to obtain concurrence.
Rule 58. MOTIONS - Objections and Oral Argument.
The Court shall hold any Motion for ten (10) days before acting thereon, unless assented to by all Parties. The Court may act on a Motion on the basis of the Pleadings and record before it. Any objection to a Motion shall be filed within ten (10) days of the filing of such Motion. Failure to object to the Motion shall not, in and of itself, be grounds for granting the Motion.
Rule 58-A. MOTIONS FOR SUMMARY JUDGMENT.
In accordance with RSA 547:11-f, as amended, the following procedures shall govern Motions for summary judgment in the Probate Court. Motions for summary judgment shall be filed, defended and disposed of in accordance with the provisions of RSA 491:8-a, as amended, which is incorporated herein. Such Motions and responses thereto shall provide specific page, paragraph, and line references to any pleadings, exhibits, answers to interrogatories, depositions, admissions, and affidavits filed with the Court in support or opposition to the Motion for summary judgment. Only such materials as are essential and specifically cited and referenced in the Motion for summary judgment, responses, and supporting memoranda shall be filed with the Court. In addition, except by permission of the Court received in advance, no such Motion, response, or supporting memorandum of law shall exceed twenty (20) double-spaced pages. The purpose of this rule is to avoid unnecessary and duplicative filing of materials with the Court. Excerpts of documents and discovery materials shall be used whenever possible.
Rule 59. PLEADINGS - Frivolous Conduct.
The Court may assess reasonable costs, including reasonable counsel fees, against any Party or Attorney whose frivolous or unreasonable conduct makes necessary the filing of any Pleading or hearing thereon.
Rule 59-A. MOTIONS FOR RECONSIDERATION.
(1) A Motion for reconsideration or other post-decision relief shall be filed within ten (10) days of the date on the Register's written notice of the order or decision, which shall be mailed by the Register on the date of the notice. The Motion shall state, with particularity, points of law or fact that the Court has overlooked or misapprehended and shall contain such argument in support of the Motion as the movant desires to present; but the Motion shall not exceed ten (10) pages. To preserve issues for an appeal to the Supreme Court, an appellant must have given the Court the opportunity to consider such issues; thus, to the extent that the Court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal. A hearing on the Motion shall not be permitted except by order of the Court.
(2) No answer to a Motion for reconsideration or other post-decision relief shall be required unless ordered by the Court, but any answer or objection must be filed within ten (10) days after the filing of the Motion.
(3) If a Motion for reconsideration or other post-decision relief is granted, the Court may revise its order or take other appropriate action without rehearing or may schedule a further hearing.
(4) The filing of a Motion for reconsideration or other post-decision relief shall not stay any order of the Court unless, upon specific written request, the Court has ordered such a stay.
The third sentence of paragraph (1) derives from N.H. Dep't of Corrections v. Butland , 147 N.H. 676, 679 (2002), and is not intended to preclude a party from raising an issue on appeal under the plain error rule set forth in Supreme Court Rule 16-A.
Rule 60. HEARINGS - Contested Matters.
In any contested matter, the Register shall give at least ten (10) days notice of any hearing or other proceeding before the Court to the Parties, Persons Beneficially Interested, or to their Attorneys, unless it appears that justice or a specific statute requires otherwise. Such notice, however, may be waived in writing by any responding Party, Persons Beneficially Interested, or Attorney. An appearance in person or through an Attorney and participation in the hearing shall be deemed a waiver of notice.
Rule 61. NOTICE OF DECISIONS - Uncontested Matters.
Upon the entry of a decision on any uncontested Motion or other Pleading, the Register shall forthwith send a notice of decision to the Attorney for the moving Party or the moving Party, if not represented by counsel, and to the Attorney for the Fiduciary or the Fiduciary, if not represented by counsel.
Rule 61-A. NOTICE OF DECISIONS - Contested Matters.
Upon the entry of a decision on any contested Petition, Motion, account, inventory, or other Pleading, the Register shall forthwith send a notice of the decision to all Attorneys appearing of record, Pro Se Parties, and Persons Beneficially Interested. A copy of the notice of decision shall be made a part of the records by the Register.
Rule 61-B. UNTIMELY-FILED GUARDIAN AD LITEM REPORTS.
(a) A guardian ad litem who, without good cause, fails to file a report required by any court or statute by the date the report is due may be subject to a fine of not less than $100 and not more than the amount of costs and attorneys fees incurred by the parties to the action for the day of the hearing. The guardian ad litem shall not be subject to the fine under this rule if, at least ten days prior to the date the report is due, he or she files a motion requesting an extension of time to file the report.
Rule 62. STRUCTURING CONFERENCES AND PRETRIAL PROCEDURES.
The Court shall schedule a structuring conference for each contested case entered on the docket. The structuring conference shall occur between sixty (60) and one hundred twenty (120) days after the Return Day or at such other time as the Court may order.
The Pro Se Party or Attorney shall attend the structuring conference and shall be prepared and authorized to discuss the issues and set schedules for discovery and other case preparation, including additional conferences with the Court, Alternative Dispute Resolution, settlement or trial.
Ten (10) days prior to the structuring conference all Pro Se Parties or Attorneys shall file summary statements necessary to support their respective claims, defenses or counterclaims. This summary statement shall be comprehensive and made in good faith, but shall not be admissible at trial. The purpose of this summary statement is to apprise the court of the nature of the claims, defenses, and legal issues likely to arise.
At or immediately after the structuring conference, the Court shall issue a structuring conference order which may include discovery deadlines and dates for an additional conference with the Court, filing of pretrial statements, filing of Motions, filing of requests for findings of fact, rulings of law and memoranda of law, trial management conference, and trial.
If a pretrial statement is ordered it shall include, by numbered paragraphs, a detailed, comprehensive, and good faith statement, setting forth, if applicable:
1. Uncontested issues of fact.
2. Contested issues of fact.
3. Applicable law.
4. Disputed issues of law.
5. Specific claims, objections or position of the contestant.
6. Specific defenses.
7. A list of all exhibits to be offered in the case of each Party. The Pro Se Parties or Attorneys shall bring all exhibits or exact copies to the pretrial conference.
8. A list of all depositions to be read into evidence.
9. A waiver of claims, denials or objections.
10. A list of the names and addresses of all witnesses who may be called.
11. Whether there will be a request for a view and, if so, who shall pay the cost in the first instance.
12. The names and addresses of the trial Attorneys.
Except for good cause shown, only witnesses listed in the pretrial statement will be allowed to testify and only exhibits, so listed, will be received in evidence.
In every case scheduled for trial, the Court may schedule such pretrial conferences as it deems necessary, at which counsel shall have their clients present or available for contact by telephone and shall be prepared to discuss and effectuate settlement and, if necessary, conduct of the trial.
Failure to comply with this Rule shall constitute grounds for sanctions, in the discretion of the Court.
Rule 63. STANDING PRETRIAL ORDERS.
(a) Copies of all medical reports relating to the litigation, in the possession of the Parties, shall be furnished to opposing counsel on receipt of the same.
(b) X-rays and hospital records (which are certified as being complete records) if otherwise admissible and competent may be introduced without calling the custodian or technician. Any Party shall have the right to procure from opposing counsel an authorization to examine and obtain copies of hospital records and X-rays involved in litigation.
(c) All experts, including doctors and law enforcement personnel, who are to testify at trial, shall be advised by counsel to bring their original records and notes to court with them.
(d) All Fiduciaries shall be prepared to present the originals of all documents or other papers at issue in any hearing.
(e) The written reports of the New Hampshire Division for Children, Youth and Families or of any guardian ad litem shall be submitted not later than at the commencement of the hearing for which it is submitted.
Rule 63-A. PROCEDURE DURING TRIAL - Offers of Proof.
A probate judge or probate master may receive evidence by an Offer of Proof, whenever appropriate and within the discretion of the Court. Whenever a Court exercises discretion to receive evidence by an Offer of Proof, the Court shall inform all Parties that by making an Offer of Proof, the proffering Party represents to the Court that a witness is present in the courtroom and can testify under oath in accordance with the Offer of Proof. Before receiving evidence by an Offer of Proof, the Court shall inform all Parties of the following procedures:
Rule 64. PROCEDURE DURING TRIAL - Copies to Court.
The Attorney or Pro Se Party shall seasonably furnish for the convenience of the Court copies of all exhibits offered in evidence.
Rule 64-A. [Reserved for Future Use].
Rule 65. PROCEDURE DURING TRIAL - Examination of Witness.
Only one Attorney for each Party, or if Pro Se, only the Pro Se Party shall be permitted to examine a witness.
Rule 66. PROCEDURE DURING TRIAL - Objections.
When stating an objection, the objecting Party shall state only the basis of the objection (e.g., "leading," "non-responsive," or "hearsay"), provided that upon request, counsel shall be permitted a reasonable opportunity to present additional argument or grounds for the objection.
Rule 67. PROCEDURE DURING TRIAL - Witness Re-examination.
Unless permitted by the Court, after cross-examination, a witness may not be re-examined by the Party calling the witness, except as may be necessary to explain answers on cross-examination, and except as to new matters elicited by cross-examination regarding which the witness has not previously been examined.
Rule 68. PROCEDURE DURING TRIAL - Criminal Record.
If a Party plans to use or refer to any criminal record, for the purpose of attacking or affecting the credibility of a witness, the Pro Se Party or Attorney shall first furnish a copy of same to the opposing Party or Attorney, and then obtain a ruling from the Court as to whether the witness may be questioned with regard to any conviction for credibility purposes.
Rule 69. PROCEDURE DURING TRIAL - Recall of Witness.
After a witness has been dismissed from the stand, the witness shall not be recalled by the same Party, without permission of the Court.
Rule 70. PROCEDURE DURING TRIAL - Presentation of Case.
In all trials, the Petitioner shall put in the whole case before resting and shall not thereafter, except by permission of the Court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the Respondent shall, before resting, put in the whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.
Rule 71. PROCEDURE DURING TRIAL - Opening and Closing Statements.
Opening and closing statements may be allowed within the discretion of the Court. Opening statements shall not be argumentative and shall be no longer than fifteen (15) minutes each, and closing statements shall be limited to thirty (30) minutes each, unless otherwise permitted by the Court.
Rule 72. PROCEDURE DURING TRIAL - Requests and Memoranda.
All requests for findings of fact and rulings of law and written memoranda of law shall be submitted no later than a time directed by the Court at the structuring conference. If there is no time set forth in the order at the structuring conference, then all requests for findings of fact and rulings of law and memoranda of law must be submitted to the Court no later than the close of the evidence. Nevertheless, it is within the Court's discretion to allow requests and memoranda to be submitted to the Court at a later time.
Rule 72-A. PROCEDURE AFTER TRIAL - Decisions.
In the absence of other express court order, rule, or statutory provision, justices and masters of the Probate Court shall file with their respective Registers decisions in all pending matters within sixty (60) days of the final date of their submission to them for determinations. The Registers shall keep a list of all decisions pending longer than sixty (60) days. Justices, masters and Registers shall report to the Administrative Justice all decisions pending for more than sixty (60) days. Upon written request of a justice or master, the Administrative Justice may extend the deadline.
Rule 73. [Reserved for Future Use].
Rule 74. PROCEDURE AFTER TRIAL - Final Judgment.
In all actions in which an order or decree is entered or in which an action is dismissed, or in which any Motion is acted upon after order or decree, all appeals shall be deemed waived and judgment shall become final as follows in subparagraphs (a) or (b), unless the Court has otherwise ordered, unless a notice of an appeal has been filed with the Superior Court pursuant to RSA 547:11-d, or unless a notice of appeal has been filed with the Supreme Court pursuant to its Rule 7:
Rule 75. PROCEDURE AFTER DEFAULT.
In all defaulted cases, judgment may be entered at such time and after any hearing that the Court may order.
Rule 76. APPEALS TO SUPERIOR COURT.
Appeals to Superior Court shall be in accordance with RSA 547:11-d.
Rule 77. [Reserved for Future Use].
Rule 77-A. EXCEPTIONS UNNECESSARY.
Formal exceptions to non-evidentiary rulings or orders of the Court are unnecessary, and for all purposes for which an exception has heretofore been necessary it is sufficient that a Party, at or before the time the ruling or order of the Court is made or sought, makes known to the Court by Pleading or orally on the record the action which the Party desires the Court to take or the Party's objection to the action requested by a Party opponent, provided that in each instance the Party has informed the Court of the specific factual or legal basis for the Party's position. Objections to evidentiary rulings are governed by N. H. R. Ev. 103.
Rule 77-B. [Reserved for Future Use].
Rule 78. PHOTOGRAPHING, RECORDING AND BROADCASTING.
(a) Except as otherwise provided by this rule or by other provisions of law, any person, whether or not a member of an established media organization, shall be permitted to photograph, record and broadcast all court proceedings that are open to the public, provided that such person provides advance notice to the presiding justice in accordance with section (c) of this rule that he or she intends to do so. No person shall photograph, record or broadcast any court proceeding without providing advance notice to the presiding justice that he or she intends to do so. In addition to giving any parties in interest an opportunity to object, the purpose of the notice requirement is to allow the presiding justice to ensure that the photographing, recording or broadcasting will not be disruptive to the proceedings and will not be conducted in such a manner or using such equipment as to violate the provisions of this rule.
(b) Official court reporters, court monitors and other persons employed or engaged by the court to make the official record of any court proceeding may record such proceeding by video and/or audio means without compliance with the notice provisions of section (a) of this rule.
(c) Any person desiring to photograph, record or broadcast any court proceeding, or to bring equipment intended to be used for these purposes into a courtroom, shall submit a written request to the clerk of the court or his or her designee, who, in turn, shall deliver the request to the presiding justice before commencement of the proceeding, or, if the proceeding has already commenced, at the first reasonable opportunity during the proceeding, so the justice before commencement of the proceeding, or at an appropriate time during the proceeding, may give all interested parties a reasonable opportunity to be heard on the request.
(d) Any party to a court proceeding or other interested person who has reason to believe that a request to photograph, record or broadcast a court proceeding will be made and who desires to place limitations beyond that specified by this rule upon these activities may file a written motion seeking such relief. The motion shall be filed as far in advance of the proceeding as is practicable. Upon the filing of such a motion, the court may schedule a hearing as expeditiously as possible before the commencement of the proceeding and, if a hearing is scheduled, the court shall provide as much notice of the hearing as is reasonably possible to all interested parties and to the Associated Press, which shall disseminate the notice to its members.
(e) No court or justice shall establish notice rules, requirements or procedures that are different than those established by this rule.
(f) At any hearing conducted pursuant to subsections (c) or (d) of this rule, the party or person seeking to prohibit or impose restrictions beyond the terms of this rule on the photographing, recording or broadcasting of a court proceeding that is open to the public shall bear the burden of demonstrating: (1) that the relief sought advances an overriding public interest that is likely to be prejudiced if the relief is not granted; (2) that the relief sought is no broader than necessary to protect that interest; and (3) that no reasonable less restrictive alternatives are available to protect the interest. Any order prohibiting or imposing restrictions beyond the terms of this rule upon the photographing, recording or broadcasting of a court proceeding that is open to the public shall be supported by particularized findings of fact that demonstrate the necessity of the court’s action.
(g) The presiding justice retains discretion to limit the number of cameras, recording devices and related equipment allowed in the courtroom at one time. In imposing such limitations, the presiding justice may give preference to requests to photograph, record or broadcast made by a representative of an established media organization that disseminates information concerning court proceedings to the public. The presiding justice also may require representatives of the media to arrange pool coverage.
(h) It is the responsibility of representatives of media organizations desiring to photograph, record or broadcast a court proceeding to contact the clerk of court in advance of a proceeding to ascertain if pool coverage will be required. If the presiding justice has determined that pool coverage will be required, it is the sole responsibility of such media representatives, with assistance as needed from the clerk or his or her designee, to determine which media organization will provide the coverage feed. Disputes about pool coverage will not ordinarily be resolved by the court, and the court may deny media organizations’ requests to photograph, record or broadcast a proceeding if pool agreements cannot be reached. It also is the responsibility of said person to make arrangements with the clerk of court or his or her designee sufficiently in advance of the proceeding so that the set up of any needed equipment in the courtroom, including equipment for pool coverage, can be completed without delaying the proceeding. The court shall allow reasonable time prior to a proceeding for the set up of such equipment.
(i) The court shall make all documents and exhibits filed with the court, and not sealed, available for inspection by members of the public in a reasonably timely fashion, it being recognized that the court’s need to make use of documents and exhibits for official purposes must take precedence over their availability for public inspection. The court may elect to make one “public” copy of an exhibit available in the clerk’s office.
(j) The exact location of all recording, photographing and broadcasting equipment within the courtroom shall be determined by the presiding justice. Once established, movement of such equipment within the courtroom is prohibited without the express prior approval of the presiding justice. The court may prohibit the use of any equipment which requires the laying of cords or wires that pose a safety hazard or impair easy ingress and egress from the courtroom. All equipment used must operate with minimal noise so as not to disrupt the proceedings.
(k) Unless otherwise ordered by the presiding justice, the following standing orders shall apply to all recording, photographing or broadcasting of proceedings within any courtroom:
(1) No flash or other artificial lighting devices shall be used.
(2) Set up and dismantling of equipment in a disruptive manner while court is in session is prohibited.
(3) No recording, photographing or broadcasting equipment may be moved into, out of, or within the courtroom while court is in session.
(4) Recording, photographing or broadcasting equipment must remain a reasonable distance from the parties, counsel tables, alleged victims and their families and witnesses, unless such person(s) voluntarily approach the position where such equipment is located. No such equipment shall be used or set up in a location that creates a risk of picking up confidential communications between lawyer and client or conferences held at the bench among the presiding justice and counsel or the parties.
(5) All persons using recording, photographing or broadcasting equipment must abide by the directions of court officers at all times.
(6) Interviews within the courtroom are not permitted before or after a proceeding.
(7) A person who has been granted permission to record, photograph or broadcast a court proceeding shall not engage in any activity that distracts the participants or impairs the dignity of the proceedings.
With respect to subsection (c) of this rule, it is contemplated that such requests will be deemed timely if they are filed enough in advance of the proceeding that the presiding justice has an opportunity to read and consider the request, to orally notify all interested parties of its existence, and to conduct a brief hearing in the event that any interested party objects to the request. Given the strong presumption under New Hampshire law that photographing, recording and/or broadcasting court proceedings that are open to the public is allowable, this subsection is not intended to impose lengthy or onerous advance notice requirements; instead, it recognizes that frequently such requests will be filed only shortly before the proceeding in question is to begin.
Rule 78-A. TRANSCRIPTS.
a) Request that Proceedings be Recorded. A Party may request that any probate proceedings be recorded. Such request shall be made in writing to the Court no later than ten (10) days prior to the proceeding. Any denial of a request for recording shall include the reason(s) supporting the denial. A request for recording, not timely filed, may be granted within the discretion of the Court.
(b) Official Record. When a transcript of a probate court proceeding is prepared by the transcriber designated by the Supreme Court, the certified, digitally-signed transcript provided to the probate court or the Supreme Court in the case of an appeal shall be considered the official record of the proceeding.
(c) Transcripts for Appeal. The procedure for preparation of a transcript for cases appealed or transferred to the Supreme Court is governed by Supreme Court Rule 15.
(d) Request for Excerpts. During the course of a trial, either party may request to have parts of the evidence transcribed for use during the trial. The procedure for preparation of a transcript other than for appeal is governed by Supreme Court Rule 59(1).
(e) Transcripts Required for Other Than Appeal. The procedure for preparation of a transcript other than for appeal is governed by Supreme Court Rule 59(1).
Rule 78-B. DUPLICATION OF AUDIO TAPES.
(a) Any person may request a copy of the audio recording of a hearing except when a case or proceeding is confidential by statute, court rule or order. The recording will be provided on CD or audiotape for a fee of $25.00 per audiotape or CD. A copy of the recording of a court proceeding shall not be deemed to be the official record of the proceeding.
(b) In the case of any probate court proceeding made CONFIDENTIAL by New Hampshire statute, case law, or court order, no duplicate audio tape shall be released, except to a Party to the proceeding granted access by the court or to an Attorney for a Party to the proceeding. In such cases, the Party or Attorney shall sign a "Receipt for Duplicate Audio Tape of Confidential Probate Proceeding."
________________________ COUNTY PROBATE COURT
CASE NUMBER: ________________
RECEIPT for DUPLICATE AUDIO TAPE of
As a condition of the receipt of this duplicate audio tape, I shall take all reasonable actions to ensure that the CONFIDENTIALITY of the proceeding, including the CONFIDENTIALITY of this audio tape, is preserved. Those actions shall include the following:
I shall not reproduce this audio tape in any form
I shall not release this audio tape, or a copy of this audio tape, to anyone.
I shall not allow anyone to listen to this audio tape, except for a party to this proceeding, attorney for a party to this proceeding, or a person with a court order authorization to listen to this audio tape.
DATE: ____________________ SIGNATURE ________________________
Rule 79. INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Procedure.
Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, the moving Party shall file with the Register the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 or Supreme Court Rule 9, and after the Court has signed the statement, the moving Party shall file the number of copies required by the rules of the Supreme Court with the clerk thereof.
Rule 80. INTERLOCUTORY TRANSFERS AND APPEALS TO THE SUPREME COURT - Transcripts.
The procedure for preparation of a transcript for cases appealed or transferred to the Supreme Court is governed by Supreme Court Rule 15.
Rule 81. MATTERS BEFORE MASTERS AND REFEREES.
Retired Judges sitting as referees shall have the powers set forth in RSA 547:19-c and masters shall have the powers set forth in RSA 547:37.
Rule 82. MATTERS BEFORE MASTERS AND REFEREES - Non-compliance.
If either Party neglects or refuses to appear or to render an account, or produce any books and papers or answer on oath proper interrogatories, the master or referee shall certify the fact to the Court, and the Court shall take such action as justice may require.
Rule 83. MATTERS BEFORE MASTERS AND REFEREES - Amendments and Assessment of Costs.
In actions sent to a master or referee, the hearing shall proceed according to the rules of law or equity, as the case may be, and the practice in Court. The master or referee may allow amendments in the same manner and to the same extent as if the action were tried in Court; and, when amendments are so allowed, the master or referee shall report such facts to the Court. The master or referee shall certify the costs of each Party in the hearing.
Rule 84. MATTERS BEFORE MASTERS AND REFEREES - Approval by Probate Judge.
The report of a master or referee to whom a matter has been referred will be presented to the probate judge for approval and order. The decision thereafter shall be sent in accordance with Rule 61 and the Parties shall preserve their rights as though the case were originally heard before a probate judge.
Rule 85. MATTERS BEFORE MASTERS AND REFEREES - Questions of Law Reported.
If any question of law shall arise at the hearing before the master or referee, that question shall, at the request of either Party, appear in the master or referee's report, together with a ruling thereon.
Rule 85-A. [Reserved for Future Use].
Rule 86. TRUSTEES - Disclosure.
[Editor's Note: See RSA chapter 512.]
Rule 87. TAXATION OF COSTS.
(a) Costs. Costs shall be allowed as of course to the prevailing Party as provided by these rules, unless otherwise provided by statute or the Court otherwise directs.
(b) Taxation of Costs. The Party claiming costs shall file with the Register an itemized, verified bill of costs. The Register shall revise the verified bill of costs to conform to these rules. Allowable costs are set forth in subparagraph (c). If a Party objects to any costs allowed or not allowed by the Register, such Party may by Motion request that the Court review the action of the Register. Any Party aggrieved by the Court's order concerning costs may appeal therefrom within thirty (30) days from the date of notice of such order, regardless of whether an appeal concerning the underlying judgment is sought.
(c) Allowable Costs. The following costs shall be allowed to the prevailing Party: Court fees, fees for service of process, witness fees, expense of view, cost of transcripts, and such other costs as may be provided by law. The Court, in its discretion, may allow the stenographic cost of an original transcript of a deposition, plus one copy, including the cost of videotaping, and may allow other costs including, but not limited to, actual costs of expert witnesses, if the costs were reasonably necessary to the litigation.
Rule 88. FEES AND EXPENSES - Fiduciary and Attorney.
Fees and expenses of Fiduciaries and Attorneys shall be subject to the approval of the Court. In all cases, fees and expenses shall be reasonable for the work, responsibility, and risk. Factors used to determine the reasonableness of a fee may include the time and labor required, the size of the estate, the requisite skill, the customary fee, a fee agreement, the results obtained, time limitations, and the length of the professional relationship.
Rule 89. FORMAL PROOF OF HIGHWAY WAIVED UNLESS DEMANDED.
In any case in which a road or a way is alleged to be a "way" as defined in RSA 259:125 or a public highway, a Party shall notify the opposing Party or that Party's Attorney at least ten (10) days prior to trial if said "way" or public highway must be formally proved; otherwise, the need to formally prove said "way" or public highway will be deemed to be waived.
Rule 90. ADOPTION - Personal Attendance.
The Petitioner(s) and the individual to be adopted shall appear at the hearing on the adoption, unless the presence of either is excused by the Court for good cause shown.
Rule 91. ADOPTION OF FOREIGN-BORN CHILD.
A. Unless the Court orders otherwise, for purposes of RSA 170-B:7, VI, any one of the following documents, which indicate that the child is a foreign adoptee (IR-3 status) or the subject of a foreign guardianship awarded for the purpose of the child's adoption in the United States (IR-4 status), will be accepted by the Court as evidence that the parental rights of the parents of the proposed adoptee have been voluntarily or involuntarily terminated by the proper authorities in a foreign country:
1. An attested or certified copy of the adoptee's Certificate of Citizenship issued by the U.S. Citizenship and Immigration Services.
2. An attested or certified copy of the proposed adoptee's alien registration card indicating either IR-3 or IR-4 status.
3. An attested or certified copy of the proposed adoptee's passport issued in his/her country of birth, with the U.S. Visa stamp affixed indicating either IR-3 or IR-4 status.
B. Unless the Court orders otherwise, for purposes of RSA 170-B:27, II, any of the documents specified in section A above, except those bearing an IR-4 status, are acceptable documentation and satisfactory evidence to establish the validity of a foreign adoption.
C. The attestation or certification of the copies deemed acceptable under the preceding sections shall be by a notary public commissioned under the laws of the jurisdiction where the act occurs and shall be substantially in the following form:
"I hereby certify that I have personally examined and compared this copy against the original instrument and find this copy to be a true copy of the original in every respect save this certification.
Rule 91-A. [Reserved for Future Use].
Rule 92. ADOPTIONS - Proof of Birth, Guardianship Pending.
Upon filing a Petition for adoption, the Petitioner shall file, or cause to be filed, the original or a certified copy of the proposed adoptee's birth certificate. If, at the time of filing, a birth certificate has not been issued, the Petitioner may file a certificate or record of live birth, or a similar document verifying the proposed adoptee's birth.
Once the Petition for adoption, the required proof or verification of the proposed adoptee's birth, and any required consent to the adoption has been filed, the Register may, upon the Petitioner's written request, issue a written confirmation of filing which shall be in the following form:
Rule 93. PROCESSING AND DISPOSITION OF TERMINATION OF PARENTAL RIGHTS CASES.
A. Purpose. The purpose of this rule is to assure the speedy processing of Petitions for the termination of parental rights and to achieve permanent family plans for the children within the scope of RSA Chapter 170-C. This rule should in no way be considered as superseding constitutional or statutory rights of Parties to these proceedings.
B. Contents of Petition. A Petition for termination of parental rights shall include the following:
1. The name and place of residence of the Petitioner.
2. The name, sex, date and place of birth, and residence of the child.
3. The basis for the Court's jurisdiction.
4. The relationship of the Petitioner to the child, or the fact that no relationship exists.
5. The names, addresses, and dates of birth of the parents.
6. When the child's parent is a minor, the names and addresses of said minor's parents or guardian of the person.
7. The names and addresses of the following Persons:
(a) the Person having legal custody;
(b) the guardian of the person:
(i) of the parent, or
(ii) of the child;
(c) any individual acting in loco parentis to the child; or
(d) the organization or authorized agency having legal custody or providing care for the child.
8. The grounds on which termination of the parent-child relationship is sought.
9. The names of the authorized agency to whom or to which legal custody or guardianship of the person of the child may be transferred.
10. If the Petition for termination is filed subsequent to an abuse/ neglect proceeding, the names and addresses of the attorneys representing the parents and the names and addresses of any guardian ad litems appointed in the underlying abuse/ neglect case.
11. If the Petition is filed by an authorized agency, the name and address of the Attorney representing the agency and the name and address of the social worker assigned to the case.
C. Contents of Notice. The order of notice provided for in RSA 170-C:7 shall be attached to a copy of the Petition and shall include the following:
1. The statement that termination of parental rights means the loss of all rights to custody, visitation, and communication with the child and that if termination is granted, the parent will receive no notice of future legal proceedings concerning the child.
2. An explanation of the need to respond immediately to the notice, both to prepare for trial and because important hearings will take place prior to trial.
3. An explanation of how to find out the time and place of future hearings in the case.
4. Notice of right to counsel, of the procedure to follow to obtain appointed counsel, and of the role that counsel can play in Court proceedings.
5. The date, time, and place of the hearing on the Petition for termination of parental rights. The statement that a written Appearance must be filed with the Court on or before the date of the hearing, or the Respondent/parent may personally appear on the date of the hearing, or be defaulted.
6. The statement that the failure to appear personally or in writing will waive all rights to a hearing and that the Person's parental rights may be terminated at the hearing.
D. Notice. After a Petition has been filed, the Court shall set the time and place for hearing and shall give notice thereof to the Petitioner.
1. The Petitioner shall cause notice to be given to:
(a) the Respondent/parent;
(b) the guardian ad litem and/or guardian of the person of the child;
(c) the guardian ad litem and/or guardian of the person of any other Party;
(d) the Person having legal custody of the child; and
(e) any individual standing in loco parentis to the child.
2. Where the child's parent is a minor, notice shall also be given to the minor's parents or guardian of the person unless the Court is satisfied, in its discretion, that such notice is not in the best interest of the minor and that it would serve no useful purpose.
3. The Petitioner shall provide notice to the Respondent(s)/parent(s) by personal service. Where it shall appear impractical to personally serve the Respondent/parent, however, the Court shall, upon Motion of the Petitioner, order service, either by certified mail, return receipt requested (restricted delivery to addressee only), to the Respondent's/parent's last known address, or by publication once a week for two (2) successive weeks in a newspaper of general circulation in the area where that Person was last domiciled, or both.
4. The Petitioner shall include with a Motion for notice by publication an affidavit describing the Petitioner's efforts to locate and serve the absent parent.
5. All other Parties shall be given notice by regular mail at their last known address.
6. Pursuant to RSA 170-C:13, costs of giving notice and advertising shall be paid by the Petitioner.
E. Initial Hearing. Should the Respondent/parent enter an Appearance or appear personally, the hearing described in (C)(5) of this rule shall be considered an initial hearing. At this hearing, the Court shall:
1. Determine that the Court has jurisdiction.
2. Assure that all parents have been identified and located, and if there is a unnamed or absent parent, inquire about what efforts have been made to locate that Person.
3. Appoint counsel for the Respondent(s)/parent(s), if necessary.
4. Address the issue of notice, if necessary.
5. Order evaluations, if appropriate.
6. Establish the time and date for a structuring conference.
7. Address any other matters necessary to expedite the case and to make orders for that purpose.
F. Structuring Conference. When an initial hearing is held as a result of an Appearance by the Respondent/parent, a structuring conference shall be scheduled to be held within thirty (30) days after the initial hearing. At the structuring conference, the Court shall:
1. Resolve any outstanding discovery disputes.
2. Identify issues of law and fact for trial.
3. Assure that all relevant evaluations will be completed prior to the final hearing on the merits.
4. Resolve any other matters which will simplify or aid the conduct of the final hearing on the merits.
5. Determine if a pretrial conference will be necessary and if so, set the time and date.
6. Set the time and date of the final hearing on the merits and estimate its length.
G. Pretrial Conference. A pretrial conference is not mandatory. However, if a pretrial conference is held, it shall be held at a time, within the discretion of the Court, after the structuring conference and before the final hearing on the merits. At the pretrial conference, the Court shall:
1. Resolve any remaining issues which would simplify or aid the conduct of the final hearing on the merits, e.g. memoranda of law, admission of documents, admission of reports, etc.
2. Review the final witness list.
3. Confirm the date, time, and estimated length of the final hearing on the merits.
H. Final Hearing On the Merits. If the Respondent/parent neither enters an Appearance nor appears personally, the final hearing on the merits shall be conducted in place of the scheduled initial hearing. If the Respondent/parent enters an Appearance, the final hearing on the merits shall be commenced within one hundred twenty (120) days after the structuring conference. The Court shall set aside sufficient time to avoid interruptions of the final hearing on the merits. In the event a final hearing on the merits cannot be completed within the allotted time, it may be adjourned. Except for good cause shown, the adjournment shall not exceed fourteen (14) days.
I. Issuance of Court Order. The Court shall issue a decision which shall include a disposition no later than thirty (30) days after the date of the final hearing on the merits, or when applicable, the filing of an Affidavit as to Military Service.
Upon the granting or denial of a Petition for termination of parental rights brought by the Division of Children, Youth and Families subsequent to a district court proceeding, the Court shall send notice of the decision to the district court.
Upon the granting or denial of a Petition for termination of parental rights brought by the Division of Children, Youth and Families, the Court shall send notice of the decision to the adoption unit. If the petition for termination is granted, the Court shall require the Division for Children, Youth and Families social worker to transfer the termination of parental rights case to the adoption unit within ten (10) days of the expiration of the appeal period and send a letter to the Court confirming such transfer. The Adoption Unit Social Worker shall file an Appearance for purposes of receiving notice for subsequent hearings.
If, after the final hearing on the merits, the Court does not order a termination of parental rights but finds that the best interest of the child requires substitution or supplementation of parental care and supervision, and orders a guardianship over the child by the Division for Children, Youth and Families or an authorized agency, a review hearing shall be scheduled to be held within one (1) year after any Court order granting guardianship is issued, and annually thereafter.
J. Post-Termination Case Review Hearings. The guardian ad litem for the child shall continue as such until the child is adopted or the Court discharges the guardian ad litem from further involvement in the case.
If the Court orders termination of parental rights and grants custody of the child to the Division for Children, Youth and Families for the purpose of placing the child for adoption, a post-termination case review hearing shall be scheduled to be held within ninety (90) days of the Court's order, and every six (6) months thereafter, unless excused by the Court for good cause shown. If an adoption petition is filed prior to any scheduled post-termination case review hearing, the hearing may be cancelled.
Within five (5) days prior to the post-termination case review hearing, the Division for Children, Youth and Families shall submit a written status report to the Court. The Division for Children, Youth and Families shall forward a copy of the status report to the child's guardian ad litem and/or attorney. The report shall be dated and signed and shall be written by the Division for Children, Youth and Families to include four (4) separate categories, as outlined below:
1. A description of the agency's progress toward arranging an adoptive placement for the child.
2. If adopted parents have not already been selected, a schedule and description of the steps taken to place the child for adoption.
3. A discussion of any special barriers preventing placement of the child for adoption and how they should be overcome.
4. The projected date for filing a Petition for adoption.
The Court shall make any orders which may be appropriate to achieve permanency.
K. Change of Venue. When the Division for Children, Youth and Families wishes to proceed with adoption proceedings in a county or state other than where the termination occurred, the division may seek a change of venue pursuant to Rule 115.
Rules 93-A to 94. [Reserved for Future Use].
Rule 94. GESTATIONAL CARRIER AGREEMENTS - PARENTAGE ORDERS.
(A) For the purpose of a Petition for Parentage Order, the parties requiring notice shall be the parties to the gestational carrier agreement and shall include:
(1) The intended parent or parents;
(2) The gestational carrier, and
(3) The spouse of the gestational carrier.
In addition to the parties listed above and in the discretion of the court, the non-spousal partner of the gestational carrier, if any, may be included as a party if not a party to the gestational carrier agreement.
(b) The petitioner, at the time of filing the Petition for Parentage Order, shall file a copy of the gestational carrier agreement with the court.
(c) The petitioner shall attach to the petition any sworn affidavits intended to demonstrate substantial compliance with RSA Ch. 168-C.
(d) The petitioner shall cause notice of the filing to be provided to all parties to the gestational carrier agreement and shall certify on the petition that said notice has been provided. Any responsive pleading shall be filed with the court within 10 days of the filing of the petition.
(e) In the event that the court determines that a hearing on the petition is necessary, notice shall be provided to the parties in paragraph A by first class mail. Any hearing shall be scheduled within 30 days of the date of filing of the petition.
Rule 95. CRIMINAL CONTEMPT.
(a) Summary Disposition. A direct criminal contempt may be punished summarily if the judge certifies that he or she saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court. Oral notice of the conduct observed must be given by the judge and the contemnor given an opportunity to speak in his or her defense. The order of contempt shall recite the adjudication and sentence and shall be signed by the judge and entered of record. The disposition, when imposed, shall also be entered on a separately numbered State v. (The Contemnor) file.
(b) Disposition Upon Notice and Hearing. An indirect criminal contempt shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the Judge in open court in the presence of the defendant or, on application of an Attorney for the State or of an Attorney appointed by the Court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to admission to bail as provided by statute. In a proceeding under this subdivision, if the contempt charged involves disrespect to or criticism of a Judge, that Judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt, the Court shall enter an order fixing the punishment.
Rule 96. WILLS - Filed without Administration.
In the case of testacy, if there is no estate to be administered, a will may be filed and recorded without taking out administration, provided that a certified copy of a death certificate is filed with the Register. No other documents will be required when a will is filed without administration.
Rule 96-A. PROOF OF VALIDITY OF WILL/TRUST.
(a) Proof of Will
(1) At the time that the Petition to Prove Will is filed the petitioner shall also file the original will sought to be validated. The petitioner shall certify that the will filed with the petition is the petitioner's current will and that no subsequent wills or codicils are in existence.
(2) The petitioner shall certify that a copy of the petition and a copy of the attached will have been sent to all interested parties as defined in RSA 552:18, III. The court may order that notice be given to other persons.
(3) Upon filing of the petition, the court shall schedule a hearing within 30 days and shall cause notice of the hearing to be sent via first class U.S. mail to all interested parties listed on the petition as well as any other parties deemed by the court to be interested parties per RSA 552:18, V.
(4) At the conclusion of the hearing, the court shall issue an order declaring the will to be valid or invalid and may include any findings of fact or conclusions of law that it deems appropriate or necessary.
(5) Thirty days following the issuance of the court's order or of the clerk's written notice of decision, whichever is later, if the court has not received notice that an appeal has been filed with the New Hampshire Supreme Court, notice shall be provided to the petitioner or to the petitioner's attorney that the original will must be retrieved from the Probate Division within 10 days. The court shall cause a certified copy of the will to be placed in the court's file prior to delivery to the petitioner or to the petitioner's attorney, and said copy shall become part of the court's official record of the proceeding. If the original will is not retrieved, the court shall maintain the original will in the court's file pending notification of the decease of the petitioner.
(6) If, subsequent to the proceeding but prior to the delivery of the original will to the petitioner, the court receives reliable information that the petitioner is deceased, the court shall cause the original will to be filed in the Probate Division located in the county of residence of the petitioner pursuant to RSA 552:2. If the Probate Division holding the original will is the Probate Division located in the county of residence of the petitioner, the court shall cause a new file to be created as if the original will had been filed pursuant to RSA 552:2.
(b) Proof of Trust by Settlor
(1) At the time that a Petition is filed, the Petitioner shall certify that a copy of the Petition and a copy of the trust have been sent to all interested parties as defined in RSA 564-B;4-406 (d)(3) and (4). The court may order that notice be given to other persons.
(2) The court shall schedule a hearing on the Petition and shall cause notice to be sent to all interested persons via first class U.S. mail.
(3) At the conclusion of the hearing, the court shall issue an order declaring the trust to be valid or invalid and may include any findings of fact or conclusions of law that it deems appropriate or necessary.
Rule 97. WILLS - Proof by Codicil.
If the Court finds that a codicil is executed with the same formality as a will, and that the codicil specifically refers to the will, ratifying and confirming those provisions not amended by the codicil, the Court shall allow the will to be proved by proving the codicil.
Rule 98. WILLS - Nuncupative or Lost.
In cases of nuncupative wills or lost wills, the Register shall follow the general procedures relating to the probate of estates.
Rule 99. WILLS - With Charitable Trust, Charitable Remainder Trust or Charitable Bequest.
Whenever a will containing a charitable trust, charitable remainder trust, or charitable bequest is presented for probate, the Register shall send a copy of said will to the Director of Charitable Trusts within fourteen (14) days after the will is allowed.
Rule 99-A. [Reserved for Future Use].
Rule 100. VOLUNTARY ADMINISTRATIONS - Contribution of Non-estate Funds.
Financial contributions, from either trust or personal funds which are not a part of the estate, may be made for the purpose of paying estate bills. Such contributions are not taken into account when determining the overall size of an estate relative to the jurisdictional limits found in RSA 553.
Rule 100-A. [Reserved for Future Use].
Rule 101. STATUS REPORTS - Estates Opened Solely to Pursue a Cause of Action.
In estates opened solely to pursue a cause of action, a Fiduciary may file a motion to postpone the filing of annual accounts while the underlying legal action is pending. In lieu of an account, the Fiduciary shall file status reports as ordered by the Court. In no event, however, shall a Fiduciary be excused from filing an account for more than three (3) consecutive years.
Rule 102. PRIVATE CLAIM BY OR AGAINST FIDUCIARY.
For purposes of this rule, a private claim is defined as a claim against the estate by the Fiduciary or a claim against the Fiduciary by the estate. The Fiduciary shall give notice of a private claim either by:
Rule 102-A. CREDITOR'S CLAIM.
Pursuant to RSA 556:2 creditors have no obligation to file with the Court a copy of the notice of claim sent to the fiduciary. If, however, a creditor chooses to file its notice of claim, the Register shall accept the copy and enter it upon the docket without requiring an Appearance Form. A creditor who has not filed an Appearance Form is not a Party of record, entitled to notice and copies of the pleadings. Any creditor wishing to become a Party of record, shall enter an Appearance.
Rule 103. BONDS - Corporate.
When a surety company is offered as surety on a probate bond, no such bond shall be approved unless the name of the Person executing the bond for the surety company has been certified to the Register by the insurance commissioner, or such surety company shall have filed with the Register a Power of Attorney or a certified copy thereof authorizing the execution of such bond. The Court may require proof, in the form of an affidavit or otherwise, that the Person purporting to be an officer of any surety company and executing on behalf of the company any bond, letter, or Power of Attorney, is in fact such an officer. The attorney-in-fact's name shall be printed or typed under his or her signature on the bond.
Rule 103-A. BONDS - Personal.
Personal bonds shall be used only when ordered by the Court, and no such bond shall be accepted unless the principal duly subscribes:
I, THE PRINCIPAL NAMED ABOVE, AGREE TO PAY THE JUDGE OF PROBATE THE AMOUNT OF THIS BOND IF I DO NOT FAITHFULLY PERFORM THE DUTIES OF MY OFFICE AS FIDUCIARY AS REQUIRED BY NEW HAMPSHIRE LAW. THIS OBLIGATION SHALL CONTINUE UNTIL I FULFILL ALL OF MY DUTIES AND SHALL BE BINDING ON MY ESTATE.
Rule 103-B. BONDS - Change of Sureties or Penal Sum of Bond.
No change of sureties or of the penal sum (amount) of any probate bond shall be made except upon order of the Court.
Rule 104. SURETY OR BENEFICIARY AS APPRAISER OR COMMISSIONER.
No surety on the bonds of Administrators, trustees, guardians, or conservators, nor any Person Beneficially Interested in an estate, shall be appointed appraiser or commissioner of the same estate.
Rule 105. [Reserved for Future Use].
Rule 105-A. INVENTORIES - Failure to Object.
When a copy of an inventory is sent to a Party or a Beneficially Interested Person, failure to object within ten (10) days after the date the inventory is filed in the Court, shall act as a waiver of the right to object to the inventory and the right to any further notice concerning any hearing on the inventory.
Rule 106. MOTIONS FOR LICENSE TO SELL, MORTGAGE, OR LEASE.
When a license is required by statute, all Motions for a license to sell, mortgage, or lease real estate, or to sell personal property shall not be acted upon until the inventory in that estate has been filed and accepted by the Court. No real or personal property shall be sold for less than inventory value, unless otherwise ordered by the Court.
Rule 106-A. MOTIONS FOR LICENSE TO SELL REAL ESTATE TO PAY DEBTS OR LEGACIES.
Motions for a license to sell real estate for the payment of debts or legacies must include a statement, under oath, showing the assets of the estate, the debts (and legacies, if any) due from the estate, and the estimated amount of the expenses of administration.
Rule 106-B. LICENSE TO SELL, MORTGAGE, OR LEASE - Notification of Proceeds.
In a sale, mortgage, or lease under license, the Fiduciary shall notify the Court of the net proceeds of the sale, mortgage, or lease within thirty (30) days following receipt of such proceeds.
Rule 106-C. LICENSE TO SELL, MORTGAGE, OR LEASE - Return.
Whenever a Fiduciary has been granted a license to sell, mortgage, or lease real estate, the estate shall not be closed until the Fiduciary has filed the return of sale with the Court. The return of sale shall indicate, under oath, the Fiduciary's actions pursuant to such license, whether or not any sale, mortgage, or lease, has been made thereunder.
Rule 107. SALES WITHOUT LICENSE.
No license is required in the sale of real estate when all heirs or devisees consent or when the sale is directed by the will. After any such sale, the Fiduciary shall notify the Court of the net proceeds of the sale within thirty (30) days following receipt of such proceeds.
Notification shall not be required from a fiduciary to whom waiver of administration has been granted.
Rule 108. FIDUCIARY ACCOUNTING STANDARDS.
The following standards shall be applicable to all interim and final accountings of Administrators, trustees, guardians and conservators, required or permitted to be filed with the Court.
Rule 108-A. ACCOUNTS - Failure to Object.
When a copy of an account is sent to a Party or a Beneficially Interested Person, failure to object within thirty (30) days after the date the account is filed in the Court, shall act as a waiver of the right to object to the account and the right to any further notice concerning any hearing on the account.
Rule 108-B. ACCOUNTS - Personal Attendance.
All Fiduciaries shall appear at any hearing upon their accounts, unless excused by the Court.
Rule 109. INTERPRETERS.
No Person who has assisted in the preparation of a case, shall act as an interpreter at the trial thereof, if objection is made, except in the discretion of the Court.
Rule 110. Motions for Commissioner of Insolvency
Rule 111. GUARDIANSHIP OF MINORS NECESSITATED BY RSA 464-A:42.
A guardianship necessitated by the provisions of RSA 464-A:42 may be filed any time after suit has been commenced in the Superior Court or District Court, and before settlement is approved by the Superior Court or District Court. A copy of the proposed Petition to the Superior Court or District Court seeking approval of the settlement, as well as all supplemental documentation required under Superior Court or District Court rule, shall be appended to the Petition for guardian.
If the settlement contemplated at the time of the filing of the Petition for guardian, as reflected in the appended Superior or District Court Petition, proposed Petition and supplemental documentation, shall be in any manner changed prior to approval by the Superior or District Court, even if at the direction of that Court, the guardian shall immediately file a written notification with the Probate Court, with copies of the evised documentation appended.
Upon its consideration of the Petition for guardian and any subsequently filed notice of revision, the Probate Court shall consider the form or sufficiency of bond. Any alteration of bond requirements shall be at the Court's discretion.
In establishing the form and sufficiency of bond, the Probate Court shall consider the nature and amount of the asset(s), its (their) form of investment, the guardian's experience and reputation in managing property of the same or similar type as that of the guardianship, the attendant risks or volatility of the form of investment(s), any restrictions or limitations imposed upon the guardian by the Court in mitigation of waste, misfeasance or malfeasance and similar concerns related to the safety and security of the guardianship estate and its proper administration and management. After giving the consideration required, the Court, in its discretion, shall impose such bond requirements as attendant circumstances warrant.
No letter of appointment shall issue until the bond has been posted by the guardian and approved by the Probate Court. The Probate Court may require supplemental, substitute or an alteration in the bond requirements from time to time to accommodate changing circumstances of the guardianship. Upon establishment of the guardianship, a letter of guardianship shall issue which shall have appended to it a decree referencing the Probate Court's consideration of the proposed settlement in relation to the Fiduciary bond or in lieu thereof, the Probate Court shall issue a certification or provide other documentation which the guardian shall file with the Superior Court or District Court, as required under Superior or District Court rule, confirming that in setting the fiduciary bond of the guardianship, the settlement was considered.
Unless specific written Probate Court authorization is granted for alternate investment, the guardian may invest the settlement asset(s) only in accordance with RSA 463:20, :22 and :23-a.
To minimize the expense of bond requirements, the Probate Court may, in its discretion, restrict, restrain or enjoin the guardian from expending, withdrawing, encumbering or otherwise disposing of the settlement proceeds without prior written approval of the Probate Court or upon such other limitations or conditions as it may impose.
To further minimize the expenses and any attendant inconvenience the Court may, in its discretion, waive annual accounting and order accounting on such other basis as the circumstances of the guardianship may reasonably require from time to time. In the absence of a contrary order, an accounting shall be filed annually by the guardian.
All costs, expenses and fees related to the guardianship shall be paid from the guardianship estate assets subject to the approval of the Probate Court.
Rule 111-A. GUARDIANSHIP OF MINORS - Procedure on Receipt of Additional Assets.
In the event that a guardian of the estate of a minor shall receive additional assets not identified in the guardian's inventory, the guardian shall file within ten (10) days after receipt, written notice with the Court containing a description of the assets received and the market value of the assets.
Rule 112. CONFIDENTIAL INFORMATION.
Any Pleading, report, record, or evidence submitted to the Court containing confidential information, as defined by law, shall be maintained in a file marked "CONFIDENTIAL" by the Register.
Rule 113. CONSOLIDATION OF ACTIONS.
Whenever a Motion is filed in any county requesting the transfer of an action there pending to another county for trial with an action there pending, arising out of the same transaction or event or involving common issues of law, and/or fact, after notice to all Parties in all related actions pending in the state, the Court may make such order for consolidation in any one of such counties in which such actions are pending. The Court, on its own Motion, may initiate consolidation.
Rule 114. [Reserved for Future Use].
Rule 115. CHANGE OF VENUE, INCONVENIENT FORUM.
Venue of any Probate administration or other proceeding may be changed from the Probate Court of one county, hereafter called "transferring Court," to the Probate Court of any other county, hereafter called "receiving Court." Upon Petition or Motion to both Courts and sufficient proof of inconvenience, change of residence of a principal Party to the proceeding, or other good cause shown, in the discretion of the transferring Court, venue may be changed subject to acceptance by the receiving Court.
Rule 116. [Reserved for Future Use].
Rule 117. FORM OF PLEADING.
The name of the county in which a Pleading is filed shall be written in the upper left margin of each Pleading; and the words "in said county" shall refer to the county in the margin, unless the contrary appears.
Rule 118. FORM OF EQUITY PETITIONS - Structure.
Every Equity Petition shall contain the county, title of the Court, names, places of abode, and proper description of all Parties to the proceeding. The Petition shall include the complete mailing and service addresses for the petitioner(s) and all respondents. The form in substance shall be as follows:
County of _______________ Month, Year
NAME OF PETITION
A.B. of etc., complains against C.D. of etc., and says, etc. and requests, etc...
The Petition may conclude "and thereupon the Petitioner prays," setting forth the special relief sought, "and for such other relief as may be just". If an injunction or other special order pending the suit is desired, it shall be specifically requested.
Rule 119. [Reserved for Future Use].
Rule 120. FORM OF PETITION AND ANSWER - Obligation to be concise.
Every Petition and Answer should be expressed concisely; and no deed, will, agreement or other writing shall be set forth at length or annexed to any Petition or Answer, but only so much as may be material.
Rule 121. FORM OF PETITION AND ANSWER - Numbered Paragraphs.
Rule 122. PETITION TO QUIET TITLE.
All Petitions to remove clouds from title shall contain a separate paragraph setting forth specifically the clouds sought to be removed and the legal basis relied upon for their removal.
Rule 123. [Reserved for Future Use].
Rule 124. PETITION - Entry and Orders.
Petitions may be filed at any time. An order of notice shall be issued, returnable, at the election of the Party who takes out the same, subject to the requirements of service, at any Return Day within three (3) months from the date thereof. An order of notice returnable at any date other than a regular Return Day may issue if the Court finds that justice so requires.
Rule 125. PETITION - Service.
Service of an attested copy of the Petition and order of notice may be shown by affidavit of the Person serving the same, or by the return of the officer.
Rule 126. PETITION - Attested copies.
In all cases where attested copies are required, copies attested by the Attorney for the Party shall be sufficient.
Rule 127. PETITION - Time limits for Answer.
Every order of notice shall contain an order to the Respondent to file an Answer within thirty (30) days after the Return Day and to deliver a copy thereof to the Petitioner's Attorney, or to the Petitioner if pro se; otherwise the Petition will be taken pro confesso.
Rule 128. PETITION - Notice by Publication.
Except where otherwise required by statute or ordered by the Court, in cases of notice by publication where the time may be fixed by the Court, the order shall be for publication in a newspaper having general circulation in the area where the Party was last known to have resided, once a week for two successive weeks, the last publication to be not less than seven (7) days before hearing or not less than fourteen (14) days before the Return Day.
Rule 129. PETITION - Writs of Attachment.
All writs of attachment in aid of a Petition must be served upon the Respondent. Rule 86 relating to trustees' disclosure shall apply to this rule. Any such writ shall be entered without charge and filed with and as part of the action which it aids.
Rule 130. [Reserved for Future Use].
Rule 131. APPEARANCES AND ANSWERS - Time to file.
In the absence of other express court order, rule, or statutory provision, if the Respondent, having been duly notified, shall neglect to enter an Appearance within seven (7) days after the Return Day or shall neglect to file and deliver to the Petitioner's Attorney an Answer within the time prescribed in the order of notice, the Petition shall be taken as pro confesso, and a decree entered accordingly. No such decree pro confesso shall be set aside, except by agreement, or by order of the Court upon such terms as justice may require.
Rule 132. EQUITY ANSWERS - Form.
Every equity Answer shall contain the county, the title of the Court, case, and docket number. The form in substance shall be as follows:
County of ___________ Month, Year
Docket No. ______
ANSWER OF RESPONDENT
C.D. of etc., answers as follows, etc...
Rule 133. ANSWERS.
The Respondent, in answering the allegations in the Petition, shall not do so evasively but shall answer fully and specifically every material allegation in the Petition and set out Respondent's defense to each claim asserted by the Petition. If the Respondent is without knowledge of any particular facts, Respondent shall so state and this will be treated as a denial. The Answer of the Respondent may state as many defenses as the Respondent deems essential. The Respondent may allege any new or special matter in the Answer with a prayer for relief. An Answer, to the effect that an allegation is neither admitted nor denied, will be deemed an admission.
Rule 134. [Reserved for Future Use].
Rule 135. AMENDMENTS TO PLEADINGS.
With the exception of accounts and inventories, all amendments to Petitions, Motions, or Pleadings must be proposed by Motion, which may be granted or denied by the Court. For amendments to accounts and inventories, no Motion is required; but the entire court approved form shall be re-submitted.
Rule 136. AMENDMENTS - Response.
A response to an amended Pleading must be filed within ten (10) days after the amended Pleading has been filed or the facts set forth in the amendment shall be taken as admitted.
Rule 137. REPLICATIONS - Equity.
Every replication shall be filed within ten (10) days after the filing of the Answer and shall contain the county, the title of the Court, case, and docket number. The form in substance shall be as follows:
County of ___________ Month, Year
Docket No. ______
REPLICATION OF PETITIONER
A.B. of etc., replies as follows, etc...
Rule 138. [Reserved for Future Use].
Rule 139. NEW PARTIES.
Any Person shown to have an interest may become a Party to any proceeding on Motion briefly setting forth that Person's relation to the Cause; or upon Motion of any Party, such Person may be made a Party by order of Court notifying that Person to appear therein. If the Person so notified shall neglect to appear and respond, the Petition shall be taken pro confesso as against that Person. No such decree pro confesso shall be set aside, except by agreement, or by order of the Court upon such terms as justice may require.
Rule 140. SECURITY FOR COSTS.
When the Petitioner is a non-resident, the Petitioner shall furnish security for costs in such amount and within such time as the Court may order.
Rule 141. PRELIMINARY ORDERS.
The Court may, on its own motion or upon Motion of a Party, make orders for the appointment of guardians ad litem, preliminary orders, and other orders relative to proceedings preparatory to a hearing upon the merits. Motions for dissolving injunctions or for the extension or rescission of any order may be heard by the Court upon notice.
Rule 142. CONTEMPT AND ARREST.
Orders for contempt may be issued by the Court at any time upon evidence of the violation of any injunction or other order, or for failure of witnesses to give evidence upon subpoena, and commitment may be made thereon.
Rule 143. CONTEMPT AND ARREST - Bail.
Sheriffs and deputy sheriffs are authorized to take bail in contempt proceedings and shall immediately forward such bail to the Register of the Court issuing the capias.
Rule 144-149. [Reserved for Future Use].
Rule 150. STIPULATIONS OR AGREEMENTS.
All stipulations or agreements shall be typewritten and signed by the Parties and, if represented, by their Attorneys as well. The Court, in its discretion, may accept fully executed handwritten stipulations or agreements and may require a fully executed typewritten substitute to be filed with the Court within ten (10) days.
Rules 151-160. [Reserved for Future Use].
Rule 161. TEMPORARY RESTRAINING ORDERS; PRELIMINARY INJUNCTIONS.
(a) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted only by a judge of the Probate Court. It may be granted without written or oral notice to the adverse Pro Se Party or Attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified Petition that immediate and irreparable injury, loss or damage will result to the applicant before the adverse Pro Se Party or Attorney can be heard in opposition; and (2) the applicant or the applicant's Attorney certifies to the Court in writing the efforts which have been made to give the notice or the reasons supporting his or her claim that notice should not be required. Any hearing held without the presence of the adverse Pro Se Party or Attorney shall be recorded, unless waived by the Court. Every temporary restraining order, which is granted without notice, shall be endorsed with the date and hour of issuance, shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after issuance, not to exceed ten (10) days, as the Court fixes, unless, within the time so fixed, the order, for good cause shown, is extended for a like period, or unless the Party, against whom the order is directed, consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the application for a preliminary injunction shall be set down for hearing at the earliest possible time, and in any event within ten (10) days, and, when the matter comes on for hearing, the Party, who obtained the temporary restraining order, shall proceed with the application for a preliminary injunction, and if he or she does not do so, the Court shall dissolve the temporary restraining order. On two (2) days' notice to the Party who obtained the temporary restraining order without notice, or on such shorter notice to that Party as the Court may prescribe, the adverse Party may appear and move its dissolution or modification, and, in that event, the Court shall proceed to hear and determine such Motion as expeditiously as the ends of justice require.
(b) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued without notice to the adverse Party and a preliminary injunction shall only be issued by a judge of the Probate Court.
(2) Consolidation of Hearing With Trial on Merits. Before, or after, the commencement of the hearing of an application for a preliminary injunction, the Court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.
(c) Security. Unless the Court, for good cause shown, shall otherwise order, no restraining order or preliminary injunction shall issue except upon the giving of an injunction bond by the applicant, in such sums as the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any Party who is found to have been wrongfully enjoined or restrained. No such bond shall ordinarily be required of the United States or of the State of New Hampshire. The provisions of Rule 163 apply to a surety upon a bond or undertaking under this Rule.
(d) Form and Scope of Injunction or Restraining Order. Unless the Court, for good cause shown, otherwise orders, an injunction or restraining order shall be specific in terms; shall describe in reasonable detail, the act or acts sought to be restrained; and is binding only upon the Parties to the action, their officers, agents, servants, employees, and Attorneys, and upon those Persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Rule 162. INJUNCTIONS - Filing of Pleading.
Before injunctions are granted, it must appear that some Pleading has been filed; but, when the object of the injunction would be defeated by the delay necessary to file such Pleading, an injunction may issue to expire on a day specified therein, unless such Pleading be filed by such a day.
Rule 163. INJUNCTIONS - Bond.
Whenever an injunction is issued without notice to, or appearance by, the adverse Party, the Party at whose request it is issued, may, and ordinarily shall, be required to give bond with sufficient sureties, conditioned to pay and satisfy all such damages as may be occasioned to the adverse Party by reason of the injunction, in case it shall appear that the injunction was unwarranted.
Rule 164. PREPARATION OF EX PARTE DECREES.
A Party requesting an ex parte decree shall prepare a proposed order for the Court to consider.
Rules 165-168. [Reserved for Future Use].
Rule 169. FEES.
(I) ENTRY FEES:
(a) Original Entry of any Equity Action or Counterclaim
(b) Petition File and Record Authenticated Copy of Will,
(c) Petition Termination of Parental Rights; Petition Guardian
(d) Petition Adoption, includes one certificate (no entry
(e) Petition Estate Administration for estates
(f) Petition Change of Name (includes one Certificate) $ 85.00
(g) Motion Prove Will in Common and/or Solemn Form
(h) Petition Appoint Trustee $ 155.00
(i) Motion Successor Trustee, Administrator, Executor,
(j) Petition Change of Venue (includes authenticated
(k) Landlord Tenant Entry pursuant to ancillary
(l) Small Claim Entry and Counterclaim, $5000 or less
(m) Small Claim Transfer Fee pursuant to ancillary
(n) Civil Complaints and Counterclaims
(o) Replevin pursuant to ancillary jurisdiction
(p) Small Claim Entry and Counterclaim, $5001 to $7500
(q) Pursuant to RSA 490:26-a, II, the sum of $25.00 shall be added to each civil filing fee set forth in subsections (a), (b), (c), (d), (e), (f), (h), (n), and (o) above.
Preparation and issuance of Original Orders of Notice, Notice, Copies of Decrees, mailing costs, certificate to discharge surety.
Notice by publication. The Party or the Attorney for the Party from whom the notice is required shall pay this fee. The clerk of each county shall determine the cost of publication. The request may require that payment be made directly to the publisher of the notice.
In-hand service. If service by a law enforcement officer is required, the Party or the Attorney for the Party from whom the notice is required shall pay the cost of service to the appropriate county sheriff's department.
Additional copies. If additional copies of any document, or additional certificates are requested beyond those included in normal processing as indicated above, the Party or the Attorney for the Party requesting the additional copies shall pay the costs in advance as indicated under "Certificates & Copies."
Defaults (RSA 545:26-a) $ 25.00/each occurrence
Certificates $ 10.00
Original writ (form) $ 1.00
Authenticated Copy of Probate $ 40.00/each
Exemplification of Judgment $ 40.00
"Certificates & Copies" shall apply to individual requests for the above services, requests for additional certificates beyond those provided with the original entries and requests for additional copies beyond those provided with the original entry fees.
Records Research Fees. Record information must be requested in writing and include the individual's full name and, if available, the individual's date of birth. A fee of $20 per name will be assessed for up to 5 names. Additional names will be assessed $5 per name.
The clerk may waive the records research fee when a request for record information is made by a member of the media consistent with the public's right to access court records under the New Hampshire Constitution.
The sum of $20.00 shall be added to the filing fee set forth in paragraph I(f) above.
Rule 169-A. ACCESS TO CONFIDENTIAL RECORDS -- Fees and Notice.
Any person or entity not otherwise entitled to access may file a motion or petition to gain access to any sealed or confidential court record. See Petition of Keene Sentinel, 136 N.H. 121 (1992).
Filing Fee: There shall be no filing fee for such a motion or petition.
Notice: In open cases, the person filing such a motion shall provide the parties to the proceeding with notice of the motion by first class mail to the last mail addresses on file with the register.
In closed cases, the court shall order that the petitioner notify the parties of the petition to grant access by certified mail to the last known address of each party, return receipt requested, restricted delivery, signed by the addressee only, unless the court expressly determines that another method of service is necessary in the circumstances.
Rules 170-171. [Reserved for Future Use].
Rule 172. Dismissal of Cases Pending Without Action
With the exception of a case which has been accepted for appeal by the New Hampshire Supreme Court, any non-criminal matter which has been pending without action for two calendar years from the date of the last court action may be dismissed by the court. Thirty days prior to dismissal the court shall send a notice of the pending dismissal to the last known address of all parties and counsel of record. A case may be considered “pending without action” in the following circumstances:
No court hearing has been scheduled or requested;
Rule 173 – Name Change Actions
Jurisdiction: All name change petitions shall be filed in the Circuit Court, pursuant to RSA 547:3-i or RSA 490-D:2, X.
Petition Required: To obtain a name change, a petition must be filed unless:
1. An individual seeks to restore a former name prior to the issuance of a final decree of divorce under RSA 458; or
Proper Filing: A properly filed name change request includes:
1. For name change of an adult:
a. A Petition for Change of Name, with filing fee; and
2. For name change of a minor:
a. A Petition for Change of Name, with filing fee;
Notice: Notice of a petition for change of name is not required except as set forth below:
1. If the petition seeks to change the name of a minor, and the non-petitioning parent/guardian has not consented in writing, and rights have not been terminated, petitioner shall provide notice to the non-consenting parent/guardian by certified mail, return receipt requested or by sheriff’s service.
Hearing: The petition may be ruled upon by the court without hearing unless the court determines a hearing is necessary.