A will is an essential part of a complete estate plan to protect your loved ones and preserve your assets. In your will, you direct who manages your estate, who inherits your property, and who cares for your minor children. But how do you make a valid will in New Hampshire? This article answers your frequently asked questions about New Hampshire wills.
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What If I Die Without a Will in New Hampshire?
If you die without a will, you die “intestate.” A New Hampshire probate court follows intestacy laws to distribute your property. While you may think your spouse will inherit your entire estate, that is not necessarily true. Under intestacy laws, they may only receive part of your estate. And if you have stepchildren that you have not adopted or a significant other that you have not, they do not inherit your estate. Additionally, if the court cannot locate any of your heirs or next of kin, the state keeps your assets.
What Does a Will Do?
A last will and testament is a legal document that contains your wishes for your family and your property distribution. In your will, you may name the following:
- Someone to handle your estate administration (your personal representative or executor)
- Your beneficiaries who inherit your estate, meaning your real property (real estate), personal property, and assets
- Someone to care for your minor children (a guardian), if necessary
- Someone to care for your pets, if necessary
Additionally, you can make charitable donations to your favorite charities. Because you have made these decisions, the probate court follows the terms of your will. As a result, you reduce the probate process, saving your family members time and money.
What Doesn’t a Will Do?
A will handles your personal property, real estate, and tangible assets, among other things. However, you own certain accounts and assets that do not transfer by a will. These “non-probate assets” transfer by a beneficiary designation or the terms of their documents. Examples of non-probate assets and accounts are:
- Bank accounts and investment accounts with transfer-on-death (TOD) beneficiary designations
- Retirement accounts, pensions, IRAs, 401(k)s, and Keoghs
- Life insurance policies and annuities
- Assets owned as a joint tenant with right of survivorship
- Assets placed in a living trust
A bank account may have a transfer on death (TOD) designation, and insurance policies have a beneficiary designation. Make sure you name a beneficiary and a backup beneficiary (in case the primary beneficiary dies before you). Any account or asset without a named beneficiary goes into your probate estate.
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Who Can Make a Will in New Hampshire?
A person making the will (the testator) must meet the following requirements under New Hampshire law.
- Age: The testator is at least 18 years of age or a married person under 18.
- Sound Mind: The testator has a sane mind. Generally, a sane or sound mind means the testator understands what property they own, how they want to distribute their property, and who they want to receive their property at their death.
The testator must have a sane mind when they sign their will. If you have concerns about whether you may make a will in New Hampshire, you may want to contact an estate planning attorney for legal advice.
Does New Hampshire Have a Statutory Will?
No. New Hampshire has no statutory will or specific form for a will. However, it is easy to make a valid will in New Hampshire by hiring an estate planning attorney or creating a legally valid customized will online that conforms to the laws of the State of New Hampshire.
What Types of Wills Does New Hampshire Accept?
There are various ways you can make a will. However, New Hampshire only has certain types of wills.
- Handwritten Will: A holographic will is a will written entirely in the testator’s own handwriting but does not have witnesses. New Hampshire does not allow holographic wills. But a will written in the testator’s handwriting is valid if it has the necessary signature and witness requirements.
- Oral Will: An oral will spoken aloud to witnesses, called a nuncupative will, is invalid in New Hampshire. All wills must be in writing. There is a minor exception under RSA § 551:15 for soldiers in actual military service or a mariner or seamen when at sea.
- Electronic Will: An electronic will is a will created, signed, and witnessed through electronic means. New Hampshire does not allow electronic wills at this time.
While you may write a will in your own handwriting, it is better to type or print your will. A printed will with witnesses is less likely to be misinterpreted.
Can I Make My Own Will in New Hampshire?
Yes. You can create your own will. You do not have to use an attorney to draft your will. If you know what property you own, who you want to give it to, and your other wishes, you are ready to make a will. Many people use self-help legal solutions such as Trust & Will to create their will. One significant advantage is that when your life circumstances change (such as the birth of a child, death of a beneficiary or fiduciary, or divorce), you can easily revoke your original will and create a new one. You do not need to make a codicil or amendment to your original that may get lost.
How Do I Make My Will Valid in New Hampshire?
It is easy to make your will valid by adhering to the following state law requirements:
- Signature: A testator must sign their will or expressly or direct someone to sign it for them in the testator’s presence.
- Witnesses: Two credible witnesses must see the testator sign their will or have the testator acknowledge their will signed by someone they directed. A credible witness is able to testify in court. Some states prohibit “interested witnesses,” that is, witnesses (or their spouses) who may benefit from the will they are witnessing. In New Hampshire, the signing of a will by an interested witness does not invalidate the will or any provision of it. However, any gift made in the will to the interested witness is void unless there are two additional disinterested witnesses. So it is better to use disinterested witnesses.
- Notary: You do not need a notary to attest to your signature. But you will need a notary if you use a self-proving affidavit as part of your will signing.
- Self-Proving Affidavit: New Hampshire allows a self-proving affidavit in which your witnesses attest before a notary that they saw you sign the will (or someone else signed under your direction). The advantage of a self-proving affidavit is that your witnesses will not have to testify in court about the signing of your will.
Can I Disinherit My Spouse in New Hampshire?
No. Unless your spouse waives their right to an elective share in a premarital agreement, they may benefit from your estate. An elective share is a part of a decedent’s estate that a surviving spouse may claim if left out of the will. A surviving spouse may claim the elective share or opt for a statutory homestead allowance and exempt property.
Can I Disinherit My Children in New Hampshire?
Yes. In New Hampshire, children do not have a right to inherit from you unless you die intestate or if they are born or adopted after you sign your will. A court may consider children born or adopted after you sign your will an omitted child left out by mistake. They may award your child a share of your estate. If you want to disinherit your child, you should state your intention in your will.
What Estate Planning Documents Should I Have in New Hampshire?
- Power of Attorney. A power of attorney is a document allowing you to name someone you trust to handle your finances when you cannot due to incapacity or other reason you specify. The person you name is your agent and has a fiduciary duty to act in your best interest. You decide what powers to grant your agent and when their authority begins and ends.
- Health Care Directive. A health care directive or living will is a document allowing you to name someone to handle your health care when you are unable and to give specific instructions about what medical care and life-sustaining treatments you want or don’t want.
Fortunately, making a valid will and creating other New Hampshire estate planning documents is easy with online estate planning templates.