Your last will and testament is one of the basic building blocks of your estate plan. Commonly referred to simply as a Will, it is a document that dictates how your property should be distributed after your death, and who should be in charge of settling your affairs—the personal representative of your estate, the “Executor.”
If you have minor children, your last will and testament can name a guardian for them in the event that you die and their other parent is not available to care for them. Otherwise, the probate court will need to appoint a guardian for them, and the person chosen by the court may be someone other than the person you would choose to have raise your children.
What Happens if I Die Without a Last Will and Testament?
In New Hampshire, if you die without a last will and testament or other estate plan, your property will pass according to the state’s intestate succession laws. These laws try to approximate how most people would choose to distribute their assets—generally, to closest relatives like spouse and children first, and more distant relatives if there are no closer relatives.
The probate court would also appoint a personal representative for your estate, and it might be someone you would not want in charge of settling your debts and distributing your assets. As a general rule, the probate court gives close relatives priority to serve as personal representative over more distant relatives and friends.
Also, as mentioned above, if you don’t name a guardian for your children in a will, the court will do so. If there are multiple people who want to serve as your children’s guardian, that could set off conflicts between family members—not to mention create stress and uncertainty for your children at a time when they are already grieving your loss.
Do I Still Need a Will if I Have a Trust?
Having a Trust takes care of many of the issues for which you would want a last will and testament. The Trustee you have named to manage the Trust after your death can distribute your assets and pay your last debts from the trust, just as your personal representative would do from your estate if you had a will. However, there are differences between a will and a trust. Unlike assets distributed in a will, assets in a trust don’t have to go through the probate process. With a Trust, your beneficiaries can avoid the lengthy time and cost of the probate process. That’s one reason that trusts are so popular.
Even if you have a trust, it is still a good idea to have a will. One reason is that there is no mechanism for naming a guardian for your children in a trust, as you can in a will. So, if you have children who are not yet legal adults, you should have a will for that purpose alone.
Another good reason to have a will even if you have a trust is that not all of your property may be in your trust, and only property in the trust can be distributed by the trustee. For example, if you recently acquired assets and have not yet titled them in the name of the trust, they would pass outside the trust—by intestate succession. If you create a will in addition to your trust, it can be used to distribute any assets outside your trust or to “pour over” those assets into the trust so that they can be distributed by your trustee.
How Do I Make a Last Will and Testament in New Hampshire?
To make a valid last will and testament, you must be a legal adult (at least 18 years old). You must also be of sound mind, which in this context means that you need to understand the nature of your property, the people to whom you would leave that property, and what you are doing by making and executing a will.
A will must be in writing, either typed or handwritten, and signed by the person making it (the testator). Two competent witnesses, ideally not beneficiaries of the will, must also sign the will, attesting to the testator’s signature. A last will and testament does not have to be notarized to be valid in New Hampshire.
New Hampshire does not recognize holographic wills (handwritten and signed, but unwitnessed). The state also does not recognize audio or video recordings as wills, nor does it recognize electronic or digital wills.
Do I Need a Lawyer to Make a Last Will and Testament?
Technically, no. If you prepare a document that meets the legal requirements for a will in New Hampshire, it will be treated as a valid will even if no lawyer was involved in its preparation. That said, there are multiple reasons why you might want to have an experienced estate planning attorney prepare your will.
If you create a will without an attorney’s help, and it is defective for some reason, that probably won’t be discovered until after your death, when it’s too late to fix the problem. Even if your will is valid, preparing it yourself might result in errors or ambiguities that lead to disputes among your family members. Having an attorney’s help in creating a will can ensure that you fully understand all of the implications of what you are doing, and that there are no unintended consequences to your DIY estate planning.
Contact an Experienced New Hampshire Estate Planning Attorney
There is a lot on the line with the creation of a will. It’s worth the investment in an attorney’s services to make sure you get it right. At Beaton & Kiers, our will and trust attorneys take the time to get to know you and understand your estate planning goals. We can assist you with creating a last will and testament as well as other documents needed to ensure your wishes are known and honored. To learn more about our estate planning services, contact us to schedule a consultation.