New Hampshire Last Will and Testament Essentials

Drafting a Last Will and Testament is a vital step in estate planning, focusing on how your assets, both real and personal property, will be distributed after your passing. In New Hampshire, creating a Last Will and Testament allows you to designate an executor for your estate and make specific provisions for your spouse, children, other relatives, and even pets.

The individual or entity creating the Will is referred to as the "testator." Upon their death, the testator's estate is passed on to designated "executors." Residents of New Hampshire can utilize a Last Will and Testament to ensure their wishes are respected.

A legally valid Will offers greater control over the distribution of your assets and can help avoid the complexities and costs associated with probate. In probate, a court oversees the distribution of your assets posthumously. Additionally, in many states, a supplementary document can accompany the Will, including personal items, specific wishes, and messages to family and friends.

It is important to note that a New Hampshire living Will is distinct from a Last Will and Testament. A living Will primarily addresses medical care decisions in situations where you are no longer able to make those decisions yourself due to mental or physical incapacity.

Criteria for a Valid Will in New Hampshire

New Hampshire's legal requirements for a valid Will are governed by the New Hampshire Revised Statutes, specifically Title 56: Probate Courts and Decedents' Estates; Chapter 551 Wills, Sections 551:1 through 551:3.

Eligibility to Make a Will:

According to Section 551:1, any person who is at least eighteen years old or married and of sound mind is eligible to make a Will. Being of "sound mind" generally means the individual has not been legally declared incompetent.

Requirements for the Will:

1. The Will must be written and signed by the testator. If the testator is unable to sign, another person may sign on their behalf, but this person cannot be one of the witnesses.
2. The Will must be signed in the presence of two credible witnesses, as detailed in Section 551:2.
3. Witnesses should not be beneficiaries of the Will to avoid conflicts of interest. Gifts to witnesses or their partners are generally considered invalid if only two witnesses are involved, as per Section 551:3.

Additional Conditions:

• Oral Wills are not recognized; the Will must be in written form.
• Typed and printed Wills require signatures from at least two disinterested witnesses.
• Any amendments to an existing Will necessitate re-signing by the witnesses.

The Concept of a Self-Proving Will:

• A self-proving Will can expedite the probate process, as outlined in Section 551:2. In such cases, the authenticity of the Will is less likely to be challenged in court.
• To make a Will self-proving, the testator and two witnesses must swear in front of a notary public, affirming the validity of the Will. This affidavit should be attached to the Will or included as a part of it.

Limitations on Wills in New Hampshire

Voluntary Nature of Wills:

Creating a Last Will and Testament is not a legal requirement in New Hampshire. However, if a person dies without a Will, the state's intestacy laws determine the distribution of their assets, which may not align with the deceased's wishes. Therefore, drafting a Will is advisable to ensure that the allocation of assets reflects the decedent's intentions.

Scope and Power of a Will:

A New Hampshire Last Will and Testament empowers the testator to:

• Distribute assets according to their preferences.
• Make charitable donations.
• Establish trusts, including for minors or specific purposes.
• Nominate legal guardians for minor children.
• Create a "pet trust" to ensure the care of their animals after their passing.

Probate Process:

• Wills in New Hampshire must be validated in probate court before their directives can be executed. The probate process, overseen by the court, involves the administration of the deceased's estate.
• The Will must be presented to the probate court within 30 days of the testator's death.
• The estate remains open for at least six months to allow creditors to make claims.

Simplified Probate Options:

• New Hampshire offers more straightforward probate options like Summary Administration and Waiver of Administration, which can expedite the process of asset distribution and financial settlement.

Non-Probate Assets:

Certain assets, known as "non-probate assets," are not affected by a Will and are transferred according to their own legal documentation. These include:

• Annuities, pensions, 401(k)s, IRAs, and Keoghs.
• Property held jointly with rights of survivorship.
• Assets in living trusts or other trust-owned properties.
• Accounts with designated beneficiaries (e.g., payable-on-death or transfer-on-death accounts).
• Life insurance payouts.

When beneficiaries are already designated for these non-probate assets, they can bypass the estate court process.

Property Distribution Limitations in a New Hampshire Will

When drafting a Will in New Hampshire, it's important to understand that certain types of property may not be distributable through the Will due to legal exceptions. These exceptions include:

• For property owned in joint tenancy with the right of survivorship, the surviving co-owner automatically inherits the property upon the other owner's death, independent of the Will's directives.
• Funds from life insurance policies and specific types of savings accounts, which typically have named beneficiaries, are transferred directly to those beneficiaries and are not governed by the Will.
• In cases where the surviving spouse is not mentioned in the Will, they are still entitled to a portion of the estate. This entitlement is often protected under state law, ensuring the spouse receives a share of the assets.
• Any descendants of the deceased who were born after the creation of the Will or who are not mentioned in the Will are generally entitled to a share of the estate. Their share is determined as if the testator had died intestate (without a valid Will).

Who Should Consider Making a Will?

In New Hampshire, anyone over the age of 18 is advised to create a Last Will and Testament. This document is essential for communicating your wishes regarding the care of your dependents, the distribution of your property, and the handling of your affairs after your passing.

Consider drafting or updating your Will in the following circumstances:

1. Whether you get married or divorced, these significant life events typically warrant reviewing or creating a Will to reflect your current familial situation.
2. As you age or if you face recurring health issues, it becomes increasingly important to have a Will in place to ensure your wishes are known and can be executed.
3. The arrival of a child is a crucial time to create or update a Will, ensuring provisions are made for their care and inheritance.
4. If you own real estate or significant assets, a Will is important to dictate how these properties should be managed or distributed.

Signing and Witnessing a Will in New Hampshire:

To validate a Last Will and Testament in New Hampshire, it must be signed in the presence of two witnesses. This holds true regardless of whether the Will is created as part of long-term planning or in response to a recent life event.

Purposes of a Will:

A Will serves several important functions, including:

• Distributing your property and possessions to individuals or organizations.
• Appointing a guardian for your minor children.
• Nominating a trusted individual to manage the inheritance left to minor children.
• Selecting an executor to ensure that your final wishes are carried out as intended.

Types of Wills Recognized in New Hampshire

In New Hampshire, while there are various ways to draft a Will, the state recognizes specific types of Wills under certain conditions:

Handwritten Wills (Holographic Wills): A holographic Will, entirely handwritten by the testator without witnesses, is not recognized in New Hampshire. However, a Will written in the testator’s own handwriting can still be valid if it includes the necessary signatures and witnesses.

Oral Wills (Nuncupative Wills): Nuncupative Wills, which are oral and declared in front of witnesses, are generally not legal in New Hampshire. All Wills must be in written form, with an exception made under RSA § 551:15 for military personnel, mariners, or fishermen at sea, who may be allowed to create an oral Will under specific circumstances.

Electronic Wills (E-Wills): Currently, New Hampshire does not recognize electronic Wills, which are created, signed, and witnessed electronically.

Recommendations for Drafting a Will:

While it's possible to handwrite your Will, it’s generally advisable to type or print it. A typed or printed Will, particularly when witnessed, reduces the likelihood of misunderstandings or disputes regarding its interpretation.

Is a Lawyer Required to Make a Will in New Hampshire?

In New Hampshire, having a lawyer to create a Will is not mandatory. However, there are circumstances where consulting a legal professional is advisable:

Potential Challenges to the Will:

If you anticipate that your Will might be contested, or if you have complex wishes like excluding your spouse from the Will, it's wise to seek legal advice.

Complex Assets:

If you own significant assets such as real estate, valuable personal property, or investments (like stocks and bonds), a lawyer can help ensure your estate is handled correctly. This is especially important when considering the total value of your assets, including life insurance policies.

Estate Tax Considerations:

Proper estate planning is crucial to minimize the impact of taxes, such as estate or death taxes. A lawyer can provide guidance on how to structure your estate to reduce tax liabilities.

Guardianship Concerns:

If you believe there could be disputes over the guardianship of your children or if someone other than your chosen guardian might challenge your decisions, legal advice is essential.

What Happens if You Die Without a Will in New Hampshire?

Dying without a Will in New Hampshire means you die "intestate," and your estate is distributed according to state intestacy laws. Here's how it works:

If There is a Surviving Spouse:

• The entire estate goes to the surviving spouse unless both the deceased and the spouse have children from any relationship. In such cases, the spouse receives the first $250,000 plus half of the remaining estate.
• If there are children from different relationships, this can affect the distribution of the estate.
• If there is a surviving spouse but no children or grandchildren, the deceased's parents may receive a portion of the estate.

Without a Surviving Spouse:

• The estate is distributed to other relatives if there is no surviving spouse. This includes children, parents, and possibly more distant relatives such as siblings and grandparents, depending on their degree of relation to the deceased.

Without a Will, the state laws ensure that the estate is distributed among family members, prioritizing closer relations.

Should You Name an Executor in New Hampshire?

Yes, it is advisable to name an executor in your Will in New Hampshire. The executor is responsible for ensuring that your wishes, as outlined in the Will, are carried out after your death. If you do not appoint an executor, the probate court will appoint someone to manage your estate.

How to Draft a Will in New Hampshire:

To create a valid Last Will in New Hampshire, follow these steps:

1. List the property and assets you wish to include in your Will.
2. Decide who will inherit your assets after your death.
3. Appoint an executor or personal representative to oversee the execution of your estate.
4. If you have children under 18, choose a guardian to care for them.
5. Choose someone to manage any assets left to your minor children.
6. Write your Will, either by hand or using an online template, ensuring it meets New Hampshire's legal requirements.
7. Sign your Will in the presence of witnesses to validate it.
8. Keep your Will in a secure location where it can be accessed when needed.

Additional Notes:

• While using online templates can be cost-effective and efficient, ensure that the template complies with New Hampshire law.
• A Will is only legally valid if the testator (the person making the Will) is of sound mind at the time of signing.
• If desired, you can also prepare Wills for family members using online templates, but they must sign the Will themselves when ready.

Signing a Will in New Hampshire: Key Requirements

To validly sign a Will in New Hampshire, you must adhere to the following legal requirements:

1. You need to sign your Will in the presence of two witnesses. This ensures that there are impartial observers who can attest to the validity of your signature and the Will.
2. These two witnesses must also sign your Will while you are present, as stipulated in N.H. Rev. Stat. Ann. 551:2. Their signatures confirm their observation of your signing process.
3. Ideally, witnesses should be "disinterested," meaning they have no personal gain from your Will. According to N.H. Rev. Stat. Ann. 551:3, "interested" witnesses (those who stand to benefit from your Will) might risk losing their inheritance if they act as witnesses.
4. The law does not require witnesses to be physically present in New Hampshire at the time of signing, as per N.H. Rev. Stat. Ann. 551:2.

Notarizing a Will in New Hampshire: Is it Necessary?

In New Hampshire, notarization of a Will is not a mandatory requirement. However, you have the option to make your Will "self-proving," which can simplify and expedite the probate process.

Here’s how it works:

The Concept of a Self-Proving Will:

A self-proving Will is one where the court readily accepts its validity without needing to contact the witnesses who signed it. This can significantly streamline the probate process.

Making a Will Self-Proving:

To make your Will self-proving, you and your witnesses will need to sign an affidavit in front of a notary public.

This affidavit serves as a formal statement confirming your identity and acknowledging that you are aware of and understand the act of signing your Will.

Legal Reference: This process is outlined in 551:2a of the New Hampshire Revised Statutes.

While not a requirement, opting for a self-proving Will can be a practical step to reduce potential delays in probate.

Revoking or Changing Your Will in New Hampshire

In New Hampshire, you have the flexibility to revoke or amend your Will at any time. Here are the ways you can do this:

• You can revoke your Will by destroying it. This can be done by tearing, burning, or otherwise canceling the document.
• Alternatively, you can instruct someone else to destroy the Will in your presence.
• Drafting a new Will that expressly states it revokes the previous one is another way to revoke a Will. Ensure you follow the same legal formalities as you did with your original Will.
• Under N.H. Rev. Stat. Ann. 551:13, a divorce or annulment automatically nullifies any provisions in your Will favoring your former spouse, including appointments as executor. This also applies to stepchildren and step-grandchildren.
• Exceptions exist if your Will, divorce decree, or property settlement specifies that divorce should not alter the terms of your Will or if you remarry your former spouse.
• If you need to make changes to your Will, it's generally recommended to create a new Will.
• For minor amendments, you can add a codicil (a formal addition or amendment to the Will), but it must be executed with the same formalities as the original Will.

Consulting an estate planning lawyer, particularly in complex situations like divorce, can provide valuable guidance and ensure your Will accurately reflects your intentions.

Finding New Hampshire Laws on Writing Wills

If you want to understand the legal requirements and guidelines for writing Wills in New Hampshire, the relevant laws are contained in the New Hampshire Revised Statutes. Specifically, you should refer to:

Title LVI: Probate Courts and Decedents' Estates Chapter 551: Wills

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult a qualified attorney for advice on your specific situation.