A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. New Hampshire wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a New Hampshire living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, the state’s laws of intestacy determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's (the deceased person) wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a New Hampshire last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
A New Hampshire will must be filed with the probate court within 30 days of the decedent’s death. The estate must remain open for at least six months to give creditors the opportunity to make any claims against it.
New Hampshire offers summary administration and a Waiver of Administration process, which are both simplified versions of probate that can speed up the distribution of the decedent’s assets and settling of the estate.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In New Hampshire in the absence of a will, a surviving spouse inherits the entire estate unless the decedent and the spouse share descendants, in which case the spouse inherits the first $250,000 of the estate plus half the balance. The surviving spouse’s share changes if either the decedent or surviving spouse also had descendants from other relationships. A decedent’s parents are entitled to a part of the estate if there is a surviving spouse but no children or descendants.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some exceptions in New Hampshire include the following:
Property owned in joint tenancy with right of survivorship.
Life insurance policy and retirement account proceeds.
Statutory share of the surviving spouse if he or she is excluded from the will.
A descendant of the decedent born after the death of the testator or not named in the will is entitled to the same portion of the estate as she would be if the deceased were intestate.
Form a Last Will in New Hampshire
The basic requirements for a New Hampshire last will and testament include the following:
Age: The testator must be at least 18 years old or married if under 18.
Capacity: The testator must be of “sane mind.”
Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his express direction.
Witnesses: A New Hampshire will must be signed by at least two witnesses, who should not also be beneficiaries in the will, at the request of the testator and in his presence.
Writing: A New Hampshire will must be in writing except for nuncupative wills, discussed further below.
Beneficiaries: A testator can leave property to anyone.
Other Recognized Wills in New Hampshire
New Hampshire recognizes nuncupative (oral) wills, but only if made by a soldier in active military service or a mariner or seaman when at sea to dispose of “his movables and personal estate as he might heretofore have done.”
Changing a New Hampshire Last Will and Testament
A New Hampshire will may be changed at any time by codicil (an amendment to the will), which must be executed in the same manner as a will.
Revoking a New Hampshire Last Will and Testament
The revocation of a New Hampshire will can be accomplished by executing a subsequent will or by “canceling, tearing, obliterating or otherwise destroying” the document, done by either the testator or by someone else with the testator’s consent in his presence.
Note that in New Hampshire, if the testator gets divorced or has his marriage annulled after executing a will, certain provisions in favor of the ex-spouse are revoked.