Upton & Hatfield
Q: What is the purpose of a will and what happens if you die without one?
A: A will is a legal document that allows you to direct the probate process after you pass away. This document can allow you to do the following: chose how your funeral/burial expenses and debts will be paid, direct how assets in your name at death will be distributed, elect an executor or personal representative to manage the process, and, if you have minor children, nominate a guardian for those minor children, if no other parent is still living.
When someone dies with a will, we say that person died “testate.” The person’s will is then filed with the probate court, and any assets held solely in the deceased person’s name will go through the probate process, in accordance with the provisions of the will.
When someone dies without a will, we say that person died “intestate.” If a person dies without a will, then all assets that go through probate, are directed by the NH Intestacy Statute (NH RSA 561:1). This statute directs how probate assets will be distributed based on several factors, including: if there is a surviving spouse, if there are surviving children and whether those children are shared with the surviving spouse, or if there are surviving parents. Most people do not wish for their estate to be governed under New Hampshire’s intestacy statute, as it may not follow the distributions that they would have preferred.
It is important to note that just creating a will is not enough to avoid the intestacy statute. The will must conform to the legal requirements set forth by the New Hampshire Legislature (NH RSA 551:2). If a will is deemed to be lacking the requirements, then a person’s estate could be treated as if the will was never made at all. To avoid such issues, it is recommended that you consult an estate planning attorney to help you create your Will and ensure it complies with all legal requirements.
Finally, it is important to note that only assets held solely in the person’s name at death will require probate, and therefore be governed by a will. Some people choose to avoid the time and expense of probate by titling their assets in joint ownership with another person or in a trust, or they may designate a pay on death beneficiary (for those assets that allow this), which would also avoid probate. As always, it is important to discuss these options with your estate planning attorney to determine which plan is best for you.
— Stephanie J. Thomson, Attorney, Upton & Hatfield
