New Hampshire Wills

Page Navigation:

Requirements of Making, Changing or Revoking New Hampshire Wills

A New Hampshire Will (also known as a New Hampshire Last Will and Testament) is an essential legal document which enables you to plan your affairs after death. The statute has strict requirements for making, altering or even cancelling a Will.

Requirements of Making a Will

The legislation governing Wills and estates in New Hampshire is Title LVI Probate Courts and Decedent Estates. Under this statute:

  • The testator must at least eighteen years old (or married if under that age) and of sane mind. 551:1

 

  • The New Hampshire Will must be in writing. 551:2

 

 

  • Signed by the testator. 551:2

 

 

  • Witnessed by 2 or more credible witnesses. 551:2

 

A seal is no longer required.

Can a spouse witness a New Hampshire Last Will?

No. Any person who receives a benefit under the Will (or even that person’s husband or wife) cannot act as a witness. If they do, their gift will be void. An exception can be made where there are two other subscribing witnesses who are not beneficiaries or a spouse of a beneficiary under the New Hampshire Last Will and Testament. 551:3 A person who is a member of a corporation that has been left a gift or devise under the Will can act as a witness. 551:4

Revoking a Will

A New Hampshire Will can be revoked by: 551:13

  • Executing a valid Will or Codicil

 

  • By some writing executed in the same manner as Wills

 

 

  • By cancelling, tearing, obliterating or otherwise destroying the Will

 

How do I change a New Hampshire Will?

A Will can be amended by Codicil; or by making a New Will (which expressly revokes the former) and physically revoking the previous Will.

What effect does divorce or annulment have on a New Hampshire Last Will?

If you made any gifts or appointments in your Will to your spouse then you may also stipulate for those gifts and appointments to stay in place even if you become divorced. Not many choose this option because of the uncertainty divorce can bring to your relationship and trust. If your will is not drafted to expressly provide for divorce or annulment, then any gift or appointment of your spouse made in your New Hampshire Will is revoked once you become divorced (or upon the marriage being annulled). Appointments include special and general powers of appointment including nomination of the former spouse as executor, trustee, conservator or guardian. 551:13

What is a nuncupative Will?

A nuncupative New Hampshire Last Will is one made orally before witnesses rather than in writing. These may be made by a soldier in actual military service or a mariner or seaman when at sea (551:15). The bequests need to be declared before three witnesses, however certain exceptions apply. 551:16

New Hampshire Probate Process

Upon the death of the testator, the Will needs to be produced for probate. This is the only way property can pass in accordance with the Will. The executor named in the New Hampshire Willmust file the original Will with the probate court within: 552:3

  • 30 days after the death of the testator; or

 

  • 30 days after he/she becomes aware of being named executor.

 

If the estate has assets, the executor can either cause the Will to be proved or file a written refusal to accept the trust. 552:3 If there are no assets, the executor must provide the certificate of death and file the New Hampshire Last Will and Testament with no administration. 552:3 If the executor fails to make the filings in the required time, they will forfeit $20 for each month that elapses after the 30 days (unless they can provide a satisfactory excuse for the delay). 552:4 A petition for probate must include a list of the names and addresses (if known) of the surviving spouse and known heirs at law. 552:5-a If there are no objections, the judge may allow probate of the Will in common form on the testimony of just one witness or no witness testimony if the New Hampshire Will is self-proved. 552:6 & 552:5- Once the executor has been appointed, he/she has 60 days to notify each legatee named in the Will, the spouse and heirs at law that the Will has been proved. Within 90 days of the executor being appointed, the executor must certify to the judge that such notice has been given. 552:15

Legacy & Succession Taxes

The New Hampshire legacy & succession tax (RSA86) has been repealed. Accordingly, the tax is no longer payable and no state return needs to be filed. Also, insurance companies no longer require a tax exempt waiver certificate. For more information see the Department of Revenue Administration. The Federal Estate Tax Return must still be filed with IRS.

Contesting a Will in New Hampshire

If a Will has been proved and probated in common form without notice, any interested party may petition to have the probate re-examined within 6 months of such probate in order to:

  • Have the Will proved in solemn form; or

 

  • Challenge the New Hampshire Will because of improper execution, lack of testamentary capacity, fraud, duress or undue influence. 552:7

 

The petition may be presented to the judge. Notice must be given personally to the executor and, if practicable, published. If after the hearing and re-examination the probate is not confirmed, then the last Will and Testament and the probate order will be void (552:8). Unless the testator left other testamentary instruments, the intestacy succession rules will apply to pass the estate assets.

Rights of Persons under a Legal Disability

If the person wishing to re-examine the probate of a proved Will without notice is a minor, insane person or person out of the United States they or their legal representatives have one year from the removal of the disability to do so. 552:9 Also, a judge cannot make a decree allowing or disallowing a New Hampshire Will and Testamentin solemn form until: 552:11

  • All minors and other interested persons who are incapacitated have guardians appointed; and

 

  • All persons who reside out of the state or are unknown have agents appointed on their behalf.

 

Excluding a Spouse or Children from New Hampshire Wills

Trying to disinherit your spouse or child from the Will? The legislation has certain rules which apply when these family members are omitted from a New Hampshire Will.

Excluding Children

New Hampshire’s laws on excluding children from your New Hampshire Will are stricter than many other states’. The relevant section applies to children born after your death, and every child or issue of a child you fail to name or refer to in your last Will and Testament. Simply leaving out children and grandchildren will not disentitle them from a share of your estate. Omitted children and grandchildren are entitled to a share calculated on the assumption that you had died intestate (without a Will). 551:10 You need to seek advice from a qualified attorney to include the correct clause in your Will and to undertake any other required tasks.

Excluding a Spouse from a New Hampshire Will

Regardless of whether you exclude your spouse from the Will, New Hampshire provides rights for a surviving spouse. These include:

  • A reasonable allowance – out of your personal estate as deemed reasonable by the court to support the spouse. The court will determine how much of this allowance is to be deducted from the spouse’s elective share. 560:1

 

  • If you provide your spouse with a nominal share under your New Hampshire Last Will & Testament– he/she may choose to waive the benefits under the Will and any homestead allowance and elect to take the statutory elective share. The amount of this share depends on your surviving family as follows:
    • If you leave children or grandchildren (whether or not by the spouse) – 1/3 of the personal estate and 1/3 of the real estate;

     

  • If you don’t leave any children or grandchildren, but leave a mother, father, sister or brother surviving – $10,000 value of each personal and real estate and also one-half of the balance in each;
  • If there are no children, grandchildren, mother, father, sister nor brother surviving – $10,000 of the value of the estate plus $2,000 for each full year of your marriage and also ½ of the balance real and personal estate. 560:10

 

 

  • The surviving spouse can claim the deceased’s wages up to $500 from his/her employer without administration of the estate.560:20

 

However, in New Hampshire, if a husband has abandoned his wife or neglected to support her for three years prior to her death, then he will not be entitled to any interest in the wife’s estate (except as she gives to him in her New Hampshire Will). 560:18 Also, a spouse won’t be entitled to the above entitlements if at the time of death, the deceased was living apart from the surviving spouse because the survivor was or had been guilty of conduct which constitutes cause for divorce. 560:19 Never try to exclude a spouse or child from your Last Will and Testament without proper guidance from an attorney. It’s not enough to simply avoid naming them in your Will.

Dying without a Will – The New Hampshire Intestacy Laws

If a resident dies without a valid New Hampshire Will, his/her real and personal property will be distributed in accordance with the state intestacy law (subject to any homestead allowance). The intestate distribution is based on your surviving relatives. Read below to see who inherits your property when the following persons survive you:

  1. Spouse Only – Spouse receives entire estate

 

  • Spouse and your issue* with the spouse – Spouse receives the first $250,000 plus ½ of the balance. Issue receive ½ of balance.

 

 

  • Spouse and your parents – Spouse receives the first $250,000 plus ¾ of the balance. Parents receive ¼ of balance.

 

 

  • Spouse and your issue with the surviving spouse; and surviving spouse has one or more surviving issue who are not yours – Spouse receives first $150,000 plus ½ of the balance. Your children receive ½ of the balance. Stepchild does not inherit.

 

 

  • Spouse and your issue (one or more of whom are not issue of your spouse) – Spouse receives $100,000 plus ½ of any balance. Your children receive ½ of balance.

 

 

  • Issue – Divided equally. If a child has predeceased, the grandchildren share equally the share their parent would have taken.

 

 

  • Your mother and father – Share equally if both survive. If one survives – the entire estate.

 

 

  • Brothers and sisters or their issue – Brothers and sisters share equally. If one has predeceased, their issue take equally the share their parent would have taken.

 

 

  • Grandparents – ½ to paternal grandparents & ½ to maternal grandparents (if predeceased, their issue by representation).

 

 

  • Relatives up to fourth degree of kinship – Varies by degree of relationship.

 

 

  • No relatives – State of New Hampshire

 

* Issue means lawful lineal descendants

Case Studies – Distribution of Assets without a Will:

Wife died without a Will, leaving two children & husband – who gets what? Celina passed away without a will. She had two children to her husband Andy. Andy had no other children. Her estate is worth $300,000. Who gets what? Andy: $275,000, Ange & Kent’s children: $12,500 each. Husband died, failed to make a Will, wife, two children & stepchild – intestacy: Jamie died leaving an estate of $300,000. He had no will. He had two children to his wife Rhea. Rhea has a child from a former partner. Who gets what? Rhea: $225,000, Rhea & Jamie’s 2 children: $32,500 each, Rhea’s child from former partner: Nil. Husband died, no Will, wife, two children & child from former marriage – intestate distribution: Virgil died leaving a $300,000 estate. He had no will. He had two children to his wife Janell. Virgil also has a child from a former partner. Who gets what? Janell: $200,000, Virgil’s 3 children: share $100,000. Widow died, no will, child, grandchildren, example of intestate distribution by representation: Kaitlin died without a will. Her estate is worth $300,000. She had 3 children. Two have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Her husband predeceased. Who gets what? Surviving Child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers) – $50,000 each (totalling 1/3).

New Hampshire Will Forms

Note: Before making a New Hampshire Last Will and Testament, you need to research how to structure, sign and witness a last Will. You also need to research information on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

New Hampshire Will Form: Married with adult children
New Hampshire Will Form: Married with adult and/or minor children, includes a trust for minor children
New Hampshire Will Form: Married with no children

New Hampshire Will Form: Single with adult children
New Hampshire Will Form: Single with adult and/or minor children, includes a trust for minor children
New Hampshire Will Form: Single with no children

Comments are closed.