Estate Planning/Probate for Seniors
Wills. Joint Ownership. Probate Court. Power of Attorney.
This manual contains only general information about legal topics. It is not legal advice and should not be used as a substitute for consulting an attorney about the details of your particular circumstances.
If you have a civil legal concern, you may contact the NH Legal Assistance Senior Law Project for free legal advice. Our toll-free number is: 1-888-353-9944.
Revised February 2021
Wills
Do I have to leave something in my will to my children?
No. A person is not required to leave anything in a will to his or her children. But New Hampshire law allows that if a child is not named in a will, that child “shall be entitled to the same portion of the estate, real and personal, as would be if the deceased were intestate (having died without a will).” Therefore, if you don’t want one or more of your children to inherit any of your property when you die, you need to specifically state this in your will. If you don’t, the children will be entitled to receive the same share of the estate as s/he would have received if you died without a will.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 551:10 – Child Not Named, etc.
Can a beneficiary of a will also be a witness to the will?
A beneficiary can be a witness and the will can still be valid; however, the beneficiary/witness cannot take his/her legacy under the will unless there is more than the required number of witnesses to the will. It is always a better practice to have all witnesses to the will be disinterested third parties.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 551:3 – Interested Witness
Can a beneficiary of a will also be an executor (personal representative) of the will?
New Hampshire law does not prohibit a beneficiary from being an executor, and, in fact, it is quite common. However, if a dispute should arise that poses a conflict of interest between the fiduciary obligation of the executor and the personal interest as a beneficiary, the executor may be forced to resign. An executor who favors his or her personal interests over those of the estate and/or other heirs can be held personally liable for any wrongdoing. Clients should be advised to check the law of any state to which they might move, as there may be some states, which require an independent executor.
Please note that a testator only nominates an executor in a will. The Probate Court appoints the executor. The nominated executor has no authority to act on behalf of the estate until he or she is appointed by the Probate Court.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 553:2 – Right to Administer
- N.H. Rev. Stat. Ann. Ch. 553:10 – Revocation of Administration for Cause
What are the duties of an executor of a will and who should be selected?
A will requires an executor to be named to administer the remaining assets in the estate. Generally, the executor must take charge of all assets, pay debts, taxes, and account for and make distribution of the estate assets. Unless an executor is also a lawyer, the executor often hires a lawyer to handle all of the details.
Any competent adult (meaning at least 18 years old and mentally fit) who is trusted by the testator can be an appropriate choice to be the executor of a will. A spouse or child can be chosen. The person named in your will is often appointed by the Probate Court, but if the estate is of significant value or complexity, the judge may select another individual with the appropriate experience to distribute your estate. If the estate is very large, an estate attorney or a bank with a Trust Department may be more suitable to serve as executor rather than a friend or family member. Furthermore, if an executor or administrator becomes unfit, the judge may revoke the administration upon due notice. Similarly, if the administrator fails to comply with the necessary provisions, the administrator will be removed from the trust.
If an executor resides in another state, s/he must appoint a New Hampshire resident agent to receive notice of claims against the estate and service of process. The appointment shall be in writing and shall state the full name and post office address of the agent and shall be filed in the office of the clerk.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 553, et. seq. – Administrators and Their Appointment
Can I write a codicil to my will?
Yes, as long as the codicil meets certain requirements. The codicil must refer to the original will by date and must ratify and confirm all provisions not amended by the codicil. The codicil must be signed and witnessed with the same formality as a will. The codicil should be attached to the original will. It is not recommended that an individual attempt to draft a codicil. To ensure that it will have its intended effect, only an attorney should draft a codicil.
Codicils are best for minor changes only. If there are substantial changes to the will, it is best to execute a new will to avoid possible will contests due to an ambiguity. If it is a simple will, the cost difference between a codicil and a new will is not usually significant.
For further information, please see:
Are wills required to be registered?
New Hampshire does not have any specific registration requirements for wills. However, the person named as executor of a will is required to file the will with the Probate Court within thirty days after the decease of the testator or within thirty days after the person has knowledge of being named as executor of the testator’s estate. In addition, before any real or personal property can pass under a will, the will must be proved as valid and allowed by the Probate Court.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 552, et. seq. – Probate of Wills
Where is the best place to keep a will?
It is really up to you where to keep your will. It is important that you choose a safe place where someone else can find the will after your death. Someone you trust should know the will exists and where it is located. Some people keep their wills in safe-deposit boxes. Keep in mind that if the will contains provisions which must be known immediately upon the individual’s death a safe-deposit box may not be the most suitable place to keep the will. This is because unless proper provisions have been made in advance, it may be time consuming for someone whose name is not on the safe-deposit box to gain access to it. Many testators leave their original will with the attorney who drafted it. Most attorneys do not charge for this service.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 552:3 – Duty of Executor
If the witnesses to my will are dead, is my will invalid?
No. The Probate Court will arrange for a sworn statement of anyone else who can identify the signature of the testator. This takes time and is an additional cost to the estate.
If the testator has a self-proving will, these sworn statements, or affidavits, are made at the time the will is executed. This can eliminate a problem later.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 552:6 – Proof, Common Form
What is a self-proving will, and is it necessary to have one?
A self-proving will, now accepted in most states, is one where, in addition to the signatures of the testator and witnesses, an affidavit is executed, attesting to the signatures. An affidavit is a sworn statement before a notary public. This affidavit makes the will “self-proving” and eliminates the need to re-verify the signatures at the time of probate.
It is not necessary to have a self-proving will in order for a will to be legally effective; however, it is certainly advisable.
For your will to be self-proving the clause needs to state and witnesses must, under oath, swear:
1) That you signed the instrument as your will, or that you expressly directed another to sign for you;
2) That your signature was a free and voluntary act for the purposes expressed in the will;
3) That each witness signed at your request, in your presence, and in the presence of the other witnesses; and
4) That to the best of the witnesses’ knowledge, you were at least 18 years of age (or a married person under the age of 18 years) and were of sound mind and under no constraint or undue influence.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 551:2-a – Self-Proved Wills
When does someone have the mental capacity to make a will?
Any adult (at least 18 years of age or older, or married persons under 18 years of age) is able to make a will, unless mentally impaired to the extent that he or she cannot understand the consequences of his or her actions. This does not mean that a person has to have been adjudged incompetent by a court of law. Wills can be challenged on the basis of a lack of testamentary capacity, even in the absence of an adjudication of incompetence. Testamentary capacity means the person is not capable of making an “intent” to distribute the bounty of his estate.
To be found capable of making a will, a testator must be able to (1) understand the nature of the act s/he is doing in executing a will, (2) recollect what property s/he wishes to dispose of and understand its general nature, (3) bear in mind her/his relatives, and (4) decide to whom and how s/he wishes to dispose of her/his property.
Testamentary capacity of the testator is determined as of the date the will is executed. A person is presumed sane, and the party opposing the will by asserting incapacity has the burden to rebut that presumption.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 551:1 – Testators
- Boardman v. Woodman, 47 N.H. 120 (1866)
Is a will executed in another state valid in New Hampshire?
Under New Hampshire law, a will executed in another state that is valid according to that state’s laws, is also considered to be valid as long as its provisions do not conflict with New Hampshire law. However, all states do not have such a provision. Therefore, a will executed in New Hampshire, and valid in New Hampshire, is not necessarily valid in every other state.
Prior to the grant of administration, the Probate Court will require an affidavit from the attorney who drafted the out-of-state will stating that the foreign will was executed properly under that state’s law.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 552:13 – Foreign Will
What are the requirements for executing a valid will in New Hampshire?
In order to be valid in New Hampshire, a will must:
- be made by a testator meeting the testamentary capacity requirements;
- be in writing;
- be signed by the testator or by some person at his/her express direction in his/her presence; and
- be signed by a minimum of two credible witnesses who shall, at the request of the testator and in the testator’s presence, attest to the testator’s signature and that these witnesses are not receiving from the will.
For further information, please see:
Are holographic (handwritten) wills valid in New Hampshire?
A holographic will (one that is completely in the handwriting of the testator and does not meet the attestation requirements set forth in RSA 551:2) is not generally recognized in New Hampshire. All wills must be properly executed in conformance with New Hampshire law.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 551:2 – Requirements
Are oral wills valid in New Hampshire?
An oral (nuncupative) will is not valid if the personal estate exceeds $100, unless the following conditions are met:
- The will was declared by the testator in the presence of three witnesses who are requested by the testator to bear witness to the act; and
- The testator was in his/her last sickness before the death; and
- The declaration was made in the testator’s usual abode, except if s/he became sick while away from home and dies before his/her return; and
- A memorandum of the oral declaration is reduced to writing within six days; and
5. The declaration is presented for probate within six months of its making.
For further information, please see:
Can I make a will in New Hampshire if I own property in another state?
Yes. However, if you own real estate in another state it may be necessary to have the will probated there to make sure the disposition of your real estate will be carried out according to your wishes. A will usually must be probated in the state where the real property is located. Since state laws governing wills and estates differ, a will should be checked by an attorney qualified to practice law in the state where the will might be probated to make sure it will be honored.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 551:5 – Will Made Outside the State
Is a Living Will valid in New Hampshire?
New Hampshire has a statute that prescribes a form for a Living Will. It is a document that allows you to direct that no life-sustaining procedures be taken if you have a terminal condition or are permanently unconscious without hope of recovery and are unable to participate in the decision-making process regarding your medical treatment. The Living Will cannot be witnessed by a spouse, an heir-at-law, an attending physician, someone under the direction or control of the attending physician, or anyone who, at the time of execution, has a claim against your estate.
Living Wills should not be confused with Durable Powers of Attorney for Health Care. Unlike the Living Will, which is limited to people with terminal conditions or permanently unconscious without hope of recovery, a Durable Power of Attorney for Health Care allows you to select an agent to make all health care decisions that you could make were you capable of doing so. It allows you to specify which types of treatment you do or do not want. As with the Living Will, New Hampshire law prescribes a specific form to be used, as well as specific disclosures that must be made. It is a good idea to have both instruments in place. If a Durable Power of Attorney for Health Care conflicts with a Living Will, the Durable Power of Attorney will control.
Most hospitals, nursing homes and similar facilities provide Advance Directives booklets to patients free of charge and often have social workers available to assist in filling out the forms. The booklets contain both a Living Will and a Durable Power of Attorney for Health Care as well as answers to frequently asked questions. A Living Will that is validly executed in another state has the full force of law in compliance with New Hampshire law.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 137-J – Written Directives for Medical Decision Making for Adults Without Capacity to Make Health Care Decisions
- N.H. Rev. Stat. Ann. Ch. 137-J:14 – Execution and Witnesses
- N.H. Rev. Stat. Ann. Ch. 137-J:21 – Effect of Appointment of Guardian; Inconsistency
- N.H. Rev. Stat. Ann. Ch. 137-J:8 – Restrictions on Who May Act as Agent or Surrogate
- N.H. Rev. Stat. Ann. Ch. 137-J:15 – Revocation
- N.H. Rev. Stat. Ann. Ch. 137-J:17 – Reciprocity
Joint Ownership
What is the difference between “and” and “or” bank accounts?
Generally, the terms “and” and “or” on a joint account refer to the rights of access to the funds on deposit rather than to ownership or survivorship rights. A bank account, which is set up as Mary Smith OR Jane Jones, gives each party named unrestricted access to the funds, regardless of amounts contributed by them. In other words, if either Mary Smith or Jane Jones chose to make withdrawals from the account, either could do so on her own authority. The same is true for accounts set up as Mary Smith AND/OR Jane Jones. However, this is not true for accounts set up as Mary Smith AND Jane Jones. In the “and” account, both Mary Smith and Jane Jones must consent in writing, by completing written withdrawal slips or by co-signing a check, before funds can be withdrawn.
You should take care at the time you set up accounts to be certain that the accounts will serve the particular purpose you have in mind. Some factors to be considered are:
For Convenience Only: If you wish to add the name of another person who will be able to transact banking business on your behalf, but do not want that person to have an ownership interest in the funds on deposit during your lifetime or upon your death, you must clearly indicate your intentions in writing at the time the account is established.
Restricted Access: If you wish to allow another person access to funds on deposit only with your consent (to be evidenced in writing at the time of withdrawal), the account should be set up to require two signatures for withdrawals. This means setting up the account in your name “AND” the name of the other party.
Unrestricted Access: If you wish to allow another person complete access to the funds on deposit without requiring your written consent, the account should be set up to authorize withdrawals on one signature only. This means setting up the account in your name “OR” the name of the other party.
Survivorship Rights: If you would like the funds in your account to transfer automatically to the other person at the time of your death – without having the funds go through a probate court action – you will want an account that has “survivorship rights.” If you do not want the funds on deposit to pass to the other party named on your account automatically at your death, you should make this intention clear at the time you set up the account. Failure to do so could result in automatic survivorship rights for the other person named on the account.
Federal Government bonds can only be registered in the “OR” form. This eliminates the bond from being subject to probate since the asset will pass automatically to the other named party.
If you have already established a joint account, and you have questions about it, you should contact a bank officer.
For further information, please see:
What is the difference between “tenants in common” and “joint tenants with rights of survivorship”?
Joint tenants with rights of survivorship (JTWROS) means that each of the joint owners owns the entire property (whether this is real estate or a bank account), subject to the equal rights of the other. On the death of one joint tenant, the surviving joint tenant (or tenants) automatically becomes the sole owner of the property. This is the feature that appeals to many clients who want to avoid probate.
In contrast, tenants in common are two or more owners each of whom has an undivided interest in property (whether this is real estate or a bank account), and there is no survivorship right between them. Accordingly, this type of property ownership would result in the property interest being subject to probate. The law presumes the creation of a tenancy in common absent a clear intent to create survivorship rights.
You should always check your deeds to see how the property is held. Most new deeds are on forms which state ownership is JTWROS; however, many deeds that are 50 years old or older simply state that the property was transferred to Mr. James Smith and Mrs. Jane Smith. Many people believe that because the deed says “AND,” that it creates a survivorship interest. It does not; rather, it creates a tenancy in common. Many estates have to be opened when the second spouse dies because the property was held as tenants in common and the interest of the first spouse was never transferred. Although not difficult to accomplish, it creates unnecessary delays and expense during probate.
The survivorship feature in real property can be destroyed – or the joint tenancy severed – when one joint tenant transfers his/her interest to another. If there is more than one joint tenant, the joint tenancy is converted into a tenancy in common insofar as the transferred share is concerned.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 477:18 – Tenants In Common
- N.H. Rev. Stat. Ann. Ch. 477:19 – Joint Heirs
- N.H. Rev. Stat. Ann. Ch. 507:2 – Cotenants; Generally
- N.H. Rev. Stat. Ann. Ch. 529:8 – Part Interest
Is it a good idea to add my child’s name to the deed of my home?
As a basic policy, it is better not to add a child’s name to the deed of your home. However, some people are concerned about saving their children the inconvenience and cost of estate administration and adding a child’s name to the deed would accomplish that result. Therefore, if you want to have the family home pass to a child (or children) at your death, you may want to consider adding the name of the child (or children) to the deed while you are alive, thus avoiding the cost of probate and inheritance taxes. Before making this decision, however, it is very important for you to consider and understand the benefits and detriments of adding a name to a deed or transferring property outright to a child. Here are some factors for you to consider:
1. Control. This is probably the most important consideration. Once a child’s name is on the deed, that child’s consent must be obtained before disposing of the property. Therefore, if you think you may want to sell the house for whatever reason, you will need to have your child’s consent before the house can be sold. If the child is married, it will also be necessary to get the signature of the child’s spouse on the deed before selling; otherwise it will be impossible to get title insurance. Also, if the child’s name were on the deed, the child would be legally entitled to receive a portion of the sale proceeds. Although your child might be willing to allow you to retain all the proceeds, there is no requirement that s/he do so.
2. Tax Consequences. If the co-owners of real estate are not spouses, there will be federal estate taxes. The federal estate tax exemption for people dying in 2016 is $5,450,000. This tax includes all the transfers made during life and the transfers made at death. So, if the property is valuable enough to be taxed, the tax is not avoided by adding your child to the deed.
The addition of a child’s name to a deed has potential gift tax consequences, depending on the value of the property. Even if there is no actual gift tax due because of the combined gift/estate tax exclusions, it may still be necessary to file a gift tax return. In addition, if your child dies first, you may have to pay inheritance taxes.
There may also be potential adverse income tax problems for your child in making him/her a joint owner of real estate. Frequently, people do not consider the capital gains taxes that a child will pay when the property is sold. When property is received as a gift, there is no “stepped up basis” as there is in inheritance. As a result, if the property value when sold is substantially higher than your basis in the property, your child will pay tax on the gain, which may well exceed the inheritance tax and probate cost.
3. Loss of Benefits. If you are eligible for New Hampshire property tax relief (Veteran’s Credit, exemptions, deferrals or abatements), a transfer of all or part of the property may waive your right to tax relief in proportion to the interest transferred. This is true even if you continue to live in the property and pay all expenses yourself.
4. Medicaid (New Hampshire Medical Assistance Eligibility). Transfers of property (e.g., adding someone’s name to your deed) within sixty months of the need for Medicaid can result in a period of ineligibility for Medicaid depending on the value of the gift and the date of the transfer. The regulations allow a Medicaid applicant to rebut the presumption that a transfer of assets for no value was for purposes other than to become eligible for Medicaid; however, it can be a difficult and time-consuming problem to rebut that presumption, perhaps requiring an administrative hearing. Depending on the value of the home, the period of ineligibility could last anywhere from six months to five years or more.
5. Possible Loss of Home. If you add your child’s name to the deed and your child later becomes involved in legal troubles, it is possible that your property could be attached to satisfy a judgment against your child. This may be the case if your child does not have adequate insurance, fails to pay income taxes, or becomes involved in a civil action where another party was injured and seeks damages. If your child is later divorced, the property may figure into the property settlement. Similarly, if your child faces bankruptcy, his/her ownership interest in your home would be listed as an asset in the bankruptcy proceeding.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 167:4 – Eligibility for Assistance
Is it better to have the family automobile titled to one spouse or to both spouses?
In most cases, there is little difference in having a car titled in the name of one spouse or in the names of both. New Hampshire law allows the transfer of title of the family automobile from a deceased spouse to a surviving spouse without having to go through probate or otherwise involve the Probate Court.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 261:17– Joint Tenancy with Rights of Survivorship
Probate Court
Get help from the Circuit Court Probate Division for:
- wills,
- trusts and estates,
- guardianships for adults,
- involuntary commitment proceedings,
- adoptions,
- name changes, and
- division of property.
Every county in New Hampshire has a Probate Court. See the Probate Court website for more information.
Two Court Service Centers can answer general questions about the court and offer help with starting probate cases.
- Call 1-855-212-1234
If you are outside the US or Canada, call 603-223-0392.
Get started at the New Hampshire Court’s Self-Help Center.
603 Legal Aid’s Pro Bono program may be able to find a free lawyer to help you with certain types of probate matters. Apply by calling 603-224-3333 or by applying online.
If all assets are jointly held so estate administration is unnecessary, what should I do with the will?
New Hampshire requires anyone having custody of a will to file it with the Probate Court within thirty days of the death of the testator or within thirty days after the person has knowledge of the death of the testator, whichever is later (although this thirty-day limit is not strictly adhered to). The Probate Court will require that the will and a certified copy of the death certificate be filed with the court. You may also have to provide the court with a letter stating that there are no probate assets. It is also a good idea to record a certified copy of the death certificate at the Registry of Deeds in the county or counties where the testator owned property. If the will is not filed within the thirty days, it will ultimately have to be filed when the property is transferred.
For further information please see:
- N.H. Rev. Stat. Ann. Ch. 552:2 – Delivery of Will
- N.H. Rev. Stat. Ann. Ch. 552:3 – Duty of Executor
- N. H. Rev. Stat. Ann. Ch. 552:4 – Forfeit for Neglect
My husband died a few months ago and his name is still on the deed to our home. Do I have to change the deed?
Not necessarily. If you and your spouse owned the property as joint tenants with rights of survivorship, you will not have to change the deed. Joint tenancy with rights of survivorship means that when one owner dies, the other owner becomes the sole owner of the property. This is an automatic process and does not require any action by the surviving owner. However, if you later decide to sell the property, or to give it away as a gift, the new deed must make clear that you had owned the property with your spouse as joint tenants with rights of survivorship and that you became the sole owner when your spouse died. This new deed is prepared at the time of the sale or gift. The title company may require that a certified copy of the death certificate be filed with the Registry of Deeds. It is also a good idea to notify your town of your spouse’s death so that your spouse’s name will no longer appear on the tax bills.
If you and your spouse owned the property as tenants in common, you will need to go to Probate Court to have your spouse’s interest in the home transferred to you. While this is not necessary for you to continue living in the home, you will not be able to pass clear title to the home if and when you sell the home unless you go through the probate process.
For further information please see:
- N.H. Rev. Stat. Ann. Ch. 477:18 – Tenants in Common
What is my share of my spouse’s estate if my spouse dies without a will?
As to jointly owned property held with rights of survivorship, you, as the surviving spouse, would own the property immediately upon your spouse’s death.
If there is non-jointly owned property you, as the surviving spouse, shall receive:
- The entire intestate estate, if there are no surviving children or parents of the decedent;
- The first $250,000, plus three-quarters of the balance of the intestate estate, if there are no surviving children but the decedent is survived by a parent or parents;
- The first $250,000, plus one-half of the balance of the intestate estate, if the decedent has surviving children, all of whom are also your children and you have no other children;
- The first $150,000, plus one-half of the balance of the intestate estate, if the decedent has surviving children, all of whom are also your children and you have other children who are not the children of the decedent;
- The first $100,000, plus one-half of the balance of the intestate estate, if there are surviving children of the decedent, one or more of whom are not your children.
For further information please see:
- N.H. Rev. Stat. Ann. Ch. 561:1 – Distribution Upon Intestacy
Who will inherit my property if I die without a will and I have no surviving spouse?
Any property you leave behind that does not pass through a will, trust or joint, would pass as follows:
- To the children of the decedent equally if equal in kinship, otherwise those of more remote degree take by representation;
- If no surviving children, to the decedent’s parent or parents equally if alive;
- If no children or parents, then to the brothers and sisters, and to the children of each deceased brother or sister by representation.
For further information please see:
- N.H. Rev. Stat. Ann. Ch. 561:1 – Distribution Upon Intestacy
My partner and I lived together as husband and wife for 15 years before he died. He never got around to making a will. Can I inherit from him?
It depends on whether you would qualify as husband and wife under New Hampshire law. New Hampshire, unlike many states, does not have a common law marriage statute. In New Hampshire, living with someone for a number of years does not automatically guarantee that you would be considered to be a common law spouse. In New Hampshire, in order to be considered legally married, you must have: (1) lived with your partner for at least a period of three years, (2) openly acknowledged each other as husband and wife, and (3) been generally reputed to be husband and wife by others in the community. Additionally, you must have still been living together at the time of your partner’s death. If all of these conditions are met, New Hampshire law assumes you are then legally married. You will inherit as you are legally considered to be his wife. Your share will be determined by New Hampshire’s intestacy laws described above.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 457:39 – Cohabitation, etc.
- N.H. Rev. Stat. Ann. Ch. 560:19 – Effect of Cause for Divorce
- N.H. Rev. Stat. Ann. Ch. 561:1 – Distribution Upon Intestacy
What is my share if I elect to take against the will of my deceased spouse?
In general, if you are dissatisfied with what your spouse has left you by will you may elect to take a statutory share of your spouse’s estate. Remember though, you have a homestead right to the real property of the estate.
After payment of debts and expenses of administration, you will receive:
- 1/3 of the personal property and 1/3 of the real estate, if your spouse has children who are still living (whether or not they are also your children), or if your spouse has any surviving grandchildren;
- $10,000 in personal property and $10,000 in real estate. Additionally, 1/2 of residue, if your spouse does not have any surviving children or grandchildren but is survived by a parent or sibling. If the estate is less than $10,000, however, you would be entitled to the entire estate.
3. $10,000 plus $2,000 for each full year from the date of marriage to the decease of your spouse, plus 1/2 of personal property and 1/2 of real estate, if your spouse does not have any surviving children, grandchildren, parents or sibling. If the estate is under $10,000, the spouse gets the entire estate.
Any remaining property shall pass according to the terms of the will, except that you would have no entitlement to receive any property under the terms of the will.
Whether to elect to take against a will is a decision that cannot be made without comprehensive information about the affairs of you and your spouse. In addition, election needs to be filed, in writing, within 6 months of the issuing of the letters of administration. This is generally not a matter for self-help, and enlisting the help of an attorney familiar with estate administration is strongly advisable. This election is also recorded in the registry of deeds of the county where the real estate is located.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 560:10 – Distribution When Surviving Spouse Waives Testate Distribution
Is there a simple way to administer an estate that has a minimal amount of assets?
New Hampshire repealed the statute allowing for a “voluntary administration” of small estates in 2006. However, New Hampshire offers a Waiver of Administration, which is a simplified probate process. This is available where: a) the deceased died with or without a will; b) the surviving spouse is named as the sole beneficiary; and c) the surviving spouse was nominated and appointed as the executor of the estate. If the above requirements are met, the executor (surviving spouse) does not have to file an inventory, no bond is required, and no final account has to be filed. The executor must file an affidavit with the probate court no earlier than 6 months, nor later than 1 year, from the date of appointment, stating that to the best of his/her knowledge and belief there are no outstanding debts or obligations owed by the deceased.
The Waiver of Administration was expanded to include estates where the deceased has no surviving spouse, has only one child, and the child is the sole beneficiary and is named in the will and appointed as the executor of the estate.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 553:32 – Waiver of Administration
- N.H. Rev. Stat. Ann. Ch. 554:19 – Priority of Charges
Do you need to have an attorney to settle a non-complicated estate containing few assets?
No. Most of the forms are relatively simple and with patience can be completed by a lay person. The probate court clerks are helpful; however, they cannot and will not answer legal questions. They will provide the forms and usually answer questions about the proper way to fill out the forms, but they should not advise you what information to provide. If you do not want to have an attorney, please pay careful attention to any deadlines imposed by the court. The new probate court rules provide for sanctions if deadlines are missed, and judges will impose those sanctions if forms are filed even one day late. The sanctions include a fine payable to the person who should be entitled to receive the estate when the administrator fails to comply with a timely filing of administration of the estate.
To download the instructions to settle an estate, go to: http://www.courts.state.nh.us/probate/pcforms/index.htm
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 547:33 – Rules and Forms
- N.H. Rev. Stat. Ann. Ch. 552:2 – Delivery of Will
- N.H. Rev. Stat. Ann. Ch. 552:3 – Duty of Executor
- Trusts
Is it a good idea to create a trust to avoid the costs of probate and inheritance taxes?
There are many reasons why you might want to set up an inter-vivos trust. An inter-vivos trust is a trust created during the lifetime of the settlor (the individual who creates the trust). Common reasons are to save probate and estate tax costs. In certain circumstances, the cost of administering a trust may be less expensive than probate costs. Moreover, because of a lack of expertise, capacity or desire, you may wish to create a trust for the purpose of having property managed by a third party, thus relieving yourself of the responsibility of managing the trust property. Another reason to create an inter-vivos trust is that having the property managed by a trustee (someone other than yourself) ensures continuity in the event you should become incapacitated.
An inter-vivos trust can be drafted in such a way that you can choose the governing law of the trust (i.e., choose which states’ laws will govern). This can be advantageous if you move to another state or jurisdiction with less favorable laws. However, this right of choice is limited and depends on other laws in force in your state of residence. For instance, such a choice would not be permitted if the effect were to evade some public policy.
Whether any or all of these purposes can be achieved depends on your circumstances and upon whether the trust you create is revocable or irrevocable. In a revocable trust, you would retain the right to revoke or destroy the trust, to amend it, or to take back possession of the trust property. An irrevocable trust is one in which you give up all your rights to revoke or amend the trust. In this sense, an irrevocable trust is like a gift, or a transfer of property.
While revocable trusts may help you achieve some of your goals, they do not provide tax advantages. For federal income tax purposes, you, as the settlor, would be treated as the owner, and all of the trust income would be taxable to you. All of the trust property is included in the estate for federal estate tax purposes if you retain the right to revoke up to the time of your death. The revocable trust will not be subject to gift tax so long as you retain a right to revoke. However, if this right is relinquished, the trust will be considered to be a gift at the time of relinquishment and, therefore, subject to gift tax.
In the case of an irrevocable trust, all income earned by the trust and distributed to a beneficiary is taxed to the beneficiary under federal income tax law. Income earned by the trust and not distributed is taxed to the trust itself. If you are in a high tax bracket, an irrevocable trust can be used to divert income from you to a beneficiary in a lower tax bracket. All trust property not included in your estate for federal estate tax purposes is considered a gift for gift tax purposes.
If you are concerned about becoming incapacitated and unable to manage your own affairs, a trust is one way of allowing you to retain control over your affairs while competent but providing management of your assets if you become incapacitated. This type of trust is similar to a “springing” power of attorney in which the powers of the attorney-in-fact “spring” into effect were you to become incapacitated (incapacity would be defined in the power of attorney document). However, unlike a power of attorney, which terminates on the death of the principal, a trust can be made to continue in existence after your death.
You should also be aware of the sixty-month look-back period for trusts if you are anticipating applying for Medicaid. As noted above, transferring property to an irrevocable trust is the equivalent of a gift, and would therefore be subject to the Medicaid transfer of asset and disqualification rules.
Whether a trust is a good idea for you will depend upon your particular needs and circumstances. If you are interested in setting up an inter-vivos trust, you should consult an attorney.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 77:10 – Income From Trusts and Foundations
- N.H. Rev. Stat. Ann. Ch. 78-B – Tax on Transfer of Real Property
- 26 U.S.C. § 671 – Trust income, deductions, and credits attributable to grantors and others as substantial owners
- IRS Publication 950: Introduction to Estate and Gift Taxes https://www.irs.gov/pub/irs-pdf/p950.pdf
Power of Attorney
I want my daughter to take care of my affairs when I am no longer able to do so. How can I make sure she will be legally permitted to act for me?
Many people deal with this situation by creating joint accounts with children. This certainly allows access to your money and can possibly save on estate administration costs after your death. However, creating joint accounts may cause Medicaid problems, because Medicaid will look at the value of the account and count it as an asset when determining whether you should be eligible for Medicaid benefits particular to hospice or assisted living arrangements. You should carefully consider these issues before adding names to your accounts.
A Durable Power of Attorney (DPOA) for Financial Matters is a good way to permit a child (or any other trusted adult person) to have access to any of your accounts and provide for legal authority to manage your affairs in the event of your disability. Unlike creating a joint account, a DPOA does not transfer ownership of your accounts to the person you chose. With a DPOA you retain the right to disagree with your agent, fire your agent, or revoke the power of attorney all together. The DPOA remains in effect unless the document specifically states that disability terminates the authority.
For a financial DPOA document, it is advisable to have an attorney draft the document for you rather than relying on a standardized form from an office supply store. An attorney will be able to help you decide whether you should name one or more alternate agents. An attorney can also help you decide when you would like the power of attorney to go into effect, what powers you will transfer to your agent and whether you should require that the agent provide an accounting of activity to anyone else.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 477:9 – Power of Attorney
- N.H. Rev. Stat. Ann. Ch. 137-J:8 – Restrictions on Who May Act as Agent or Surrogate
- N.H. Rev. Stat. Ann. Ch. 137-J:12 – Immunity
- N.H. Rev. Stat. Ann. Ch. 564-E:104 – Power of Attorney is Durable
I have a paper that says that if I am ever terminally ill the doctors won’t do anything to prolong my life. Do I still need a Power of Attorney?
If the document you have is a Living Will, it is still advisable for you to prepare an additional document known as a Durable Power of Attorney (DPOA) for Health Care. A Living Will is a very limited document that only goes into effect when you are terminally ill and/or permanently unconscious. A DPOA for Health Care, on the other hand, goes into effect during any period of incapacity whether temporary or permanent in nature. Since you are much more likely to experience periods of incapacity (for instance, you may be in a car accident or be unconscious when medical questions need to be resolved), it is important to have this document.
With a DPOA for Health Care, you choose a person who will act as your “agent” – someone who will make health care decisions for you if you are unable to do so. It is important to pick someone whom you trust will follow your wishes; someone who has a similar philosophy to healthcare that you do. Without a DPOA for Health Care document, no one is legally able to make healthcare decisions for you if you become temporarily or permanently incapacitated – not even your spouse or child. Without such a document, therefore, a child or spouse may be forced to go to probate court to seek a guardianship over you were you ever to become unable to make your own decisions.
In New Hampshire your agent may not be the person’s health care provider or if at home, the person’s residential care provider. The agent may also not be a nonrelative who is an employee of the principal’s health care provider or residential care provider. Further, if the party lists more than one person as the agent in a durable power of attorney for health care directive, the agents shall have authority in priority of the order in which their names are listed on the document, unless the method of joint agency is expressly included.
In New Hampshire, a DPOA for Health Care is a standardized form. If you are executing a DPOA for Health Care for the first time, you must use this form. If you already have a similar document, you may not need to execute a new one even if you used a form from another state. However, it may still be a good idea to execute a new one if you intend to remain in New Hampshire and while you are still competent. In this form, you can make your wishes about specific health care decisions known, just as with a Living Will. The agent, however, will be able to make other decisions that must be made if not specifically covered by a Living Will or mentioned in the DPOA for Health Care.
A DPOA for Health Care does not go into effect until a doctor certifies that you are incapacitated and unable to make your own decisions. It cannot go into effect simply because one of your children does not believe you are capable of making good decisions.
With a DPOA for Health Care, you still retain the right to make your own decisions. Therefore, if you disagree with the person you chose to act as agent, a doctor must follow your own wishes. You may also “fire” your agent. This might seem odd since a DPOA for Health Care does not go into effect unless and until your doctor declares that you are incapacitated. However, please remember that a court has not declared you incompetent – and until that happens, your right to make decisions for yourself cannot be taken from you even though you previously signed a DPOA for Health Care.
These documents may be obtained from most hospitals and nursing homes free of charge. You may also obtain the form online at:
http://www.healthynh.com/images/PDFfiles/advance-directives/ACP%20Guide%20revised%20022014.pdf.
They must be properly witnessed and notarized or they do not go into effect.
Once you fully complete this document, it is also important that you provide your doctor and hospital with a copy. You will also want all of your children, and other significant people in your life, to have a copy so that everyone is familiar with your wishes.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 137-J, et. seq. – Written Directives for Medical Decision Making for Adults Without Capacity to Make Health Care Decisions
- See also, Making Decisions for Someone Else: A New Hampshire Handbook – http://www.healthynh.com/images/PDFfiles/advance-directives/MedicalDecisonsHandbook.pdf
My daughter thinks I should sign a Durable Power of Attorney for Financial Matters so that she can handle my financial affairs when I am unable to do so. Since I am in very good health, is it really necessary for me to have a Durable Power of Attorney now?
Your daughter is right to suggest that you have a Durable Power of Attorney (DPOA) for Financial Matters prepared now, while you are healthy. It is true that you will not need a DPOA until you are temporarily or permanently unable to handle your own affairs. However, if you ever were to become incapacitated, it would then be too late to create a DPOA since you must be competent when you sign one.
With a DPOA, you are deciding, in advance, who you would like to handle your financial affairs in the event you become unable to do so by yourself. The person you pick will be your “attorney-in-fact” or “agent” and will have the ability to enter into contracts on your behalf and access your bank accounts and other property you own. It is very important that you pick someone you trust to take on this role for you.
The following are some of the benefits of executing a DPOA for Financial Matters:
- A DPOA will enable you to define ahead of time how you want your financial affairs handled in the event you become disabled or incapacitated.
- A DPOA gives you the peace of mind that comes from knowing that the person you have chosen will be handling your affairs when you are not able to act in your own behalf.
- The person to whom you delegate power (the attorney-in-fact, or agent) is required to use your money only for your benefit.
- The fact that you have executed a DPOA does not interfere with your right to handle matters for yourself as long as you are able to do so, or retaking control of your matters when you are able to resume that duty.
- A DPOA can be helpful if you are temporarily hospitalized, or if you are traveling and will be away from home for some period of time, or if for any other reason you are unable to do your own banking or pay your bills.
- A DPOA may be a better alternative than adding someone’s name to your bank account, because with a DPOA, another person can handle your money without having an interest in it (without owning it).
- An attorney-in-fact (agent) can help you obtain all the benefits to which you are entitled by making claims and applications on your behalf. For instance, your agent could file applications for Medicaid coverage and/or property tax relief.
- Without a DPOA, a guardianship proceeding would have to be brought in Probate Court in the event you were to become incapacitated and unable to handle your own affairs. In such a proceeding, were a court to find you incompetent to handle your affairs, a guardian would be appointed, and you would have no control over who will be your guardian.
- It is not expensive to have a DPOA prepared by an attorney, and it is much less expensive than a guardianship proceeding in probate court.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 564-E:102 – Definitions
- N.H. Rev. Stat. Ann. Ch. 564-E:110 – Termination of Power of Attorney of Agent’s Authority
If I have given someone a Durable Power of Attorney, will it still be necessary to have a guardianship proceeding in the event of my incapacity?
One of the primary purposes of executing a DPOA is to avoid the necessity of bringing a guardianship proceeding in the event of incapacity. Properly executed, a durable power of attorney (DPOA) is not invalidated by the subsequent disability or incompetence of the principal, unless termination is expressly provided. As a general rule, therefore, if you have properly prepared powers of attorney for financial matters and health care (these are two separate documents), a guardianship proceeding will not be necessary if you later become incapacitated.
However, there are exceptions to this rule:
First, if the person you chose to act as agent is unable to fill that role (i.e., that person has pre-deceased you, or is now unwilling to act as your agent), a guardianship proceeding may be necessary. Protecting against this occurrence is possible by appointing more than one alternate agent – e.g., appointing your daughter to act as agent were your spouse to become unable to do so.
Second, it is possible for agents to abuse their authority and act against your best interests. If that were to occur, another family member or friend could bring an action in Probate Court to remove the agent and appoint a guardian instead.
Third, it is also possible that you might disagree with your agent’s decisions and ask to have the power of attorney document revoked. If you do this, even though you might be incapacitated, a guardianship proceeding would have to be brought. A court might decide, for instance, that you still had capacity to make some of your own decisions even though family members disagree.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 137-J: 14 – Execution and Witnesses
- N.H. Rev. Stat. Ann. Ch. 564-E:104 – Power of Attorney is Durable
- N.H. Rev. Stat. Ann. Ch. 564-E:109 – When Power of Attorney Effective
- N.H. Rev. Stat. Ann. Ch. 564-E:110 – Termination of Power of Attorney or Agent’s Authority
How do I revoke a power of attorney?
A power of attorney is revoked by written notice from the principal to the attorney-in-fact. It is a good idea to also give notice to any banks, brokerages or other places where the attorney-in-fact conducted normal business on behalf of the principal in order to prevent liability from further acts of your unauthorized agent.
If a power of attorney is durable, and the principal is now incompetent, the principal still retains the power to revoke the durable power of attorney and to veto decisions made by the attorney-in-fact. This is because a court has never declared that the principal is incompetent. In the event that this occurs, a guardianship proceeding may need to be brought in order to have a court make a determination of incapacity and to appoint a guardian.
A power of attorney can also be revoked when the attorney-in-fact dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another attorney-in-fact to act under the power of attorney.
Another way to revoke a durable power of attorney is for an interested party, on behalf of the principal, to file a petition in Probate Court alleging that the attorney-in-fact violated his/her fiduciary responsibilities to the principal. The power of attorney will be terminated upon determination by the court that:
- The agent has violated or is unfit to perform his fiduciary duties under the power of attorney; and
- At the time of the determination by the court, the principal lacks the capacity to give or to revoke a power of attorney; and
- The termination of the power of attorney is in the best interest of the principal or of the principal’s estate.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 137-J: 6 – Requirement to Act in Accordance With Principal’s Wishes and Best Interests
- N.H. Rev. Stat. Ann. Ch. 137-J: 22 – Civil Actions
- N.H. Rev. Stat. Ann. Ch. 564-E:110 – Termination of Power of Attorney of Agent’s Authority
Can an appointed attorney-in-fact under a durable power of attorney be forced to act, even if he or she does not want to do so?
No one can be forced to assume the obligation of attorney-in-fact without his or her consent. Under our state’s durable power of attorney law, the agent’s authority under a general power of attorney does not take effect until they have signed a written acknowledgement accepting the position. If the agent initially accepts the authority but decides that they no longer want to act, they must resign as outlined in the power of attorney document by giving written notice to the principal, if they are competent. At this point, a successor agent can take over, if one is listed in the power of attorney document, or the principal can designate a new attorney-in-fact. If the principal is incompetent when the agent resigns, and no successor is in place, the only remaining option may be guardianship.
An attorney-in-fact who has previously acknowledged acceptance of the power and who subsequently refuses to act under circumstances which cause damage to the interests or person of the principal, can be held liable for breach of fiduciary duty.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 564-E:113 – Agent’s Authority and Agent’s Acceptance or Declination
- N.H. Rev. Stat. Ann. Ch. 564-E:183 – Agent’s Resignation; Notice
Can a bank or other institution refuse to honor a valid power of attorney?
New Hampshire’s durable power of attorney law requires that, generally, a third party must accept a valid power of attorney document within 7 days after it has been presented for acceptance. A third party may refuse to honor a power of attorney only under certain circumstances, including a good faith belief that the power of attorney is not valid or that the agent does not have authority to act. If a third party improperly refuses to accept a valid power of attorney, they can be ordered by a court to accept the power of attorney and be held liable for attorney’s fees incurred in taking action to secure the acceptance of the power of attorney.
For further information, please see:
- N.H. Rev. Stat. Ann. Ch. 564-E:106 – Validity of Power of Attorney
- N.H. Rev. Stat. Ann. Ch. 564-E:120 – Liability for Refusal to Accept Acknowledged Power of Attorney
If I give a power of attorney to another, do I give up the right to manage my own affairs?
No. As long as you remain legally competent, you retain full control over your affairs. It is within your sole discretion whether or not to allow the attorney-in-fact to act on your behalf. You do not relinquish your authority to act on your own behalf by creating a durable power of attorney. Moreover, you may revoke the power of attorney, or “fire” your attorney-in-fact, at any time for any reason, or no reason.
For further information please see: