WHY SHOULD I HAVE A WILL?

Why Make a Will?

• Only with a will can you decide how your probate property will be distributed after you die. If you die without a valid will (or "intestate", as the law terms it) your property is distributed according to a formula fixed by law. In other words, if you do not make a will, the law – not you- determines who gets your probate property. The law cannot and does not take into account your particular desires or any special circumstances which may exist in your family.

• In your will, you can name who you want to be the guardians of your minor children and their property.

• A well prepared will may reduce your estate taxes.

• You may establish a trust in your will so your estate or some of it will be kept intact and provide for your family or others.

• You may choose the executor of your estate, provided of course, that the person selected qualifies for the position under state law.

• You can make gifts to charity, effective at or after your death.

What is a Will?

• A will is a written document meeting certain formal requirements, by which you may provide for disposition of your probate property after death. Each state establishes its own laws relating to the validity of wills.

What are the Requirements Of a New Hampshire Will?

• The laws of each state set the formal requirements for a valid will. In order for a will to be valid in New Hampshire, the will must meet the formal requirements under New Hampshire law. These are:

• You, the maker of the will (called the "testator"), must be at least 18 years old, unless you are married.

• You must be of sound mind when you sign your will.

• Signing the will must be your free and voluntary act.

• The will must be written. An oral will cannot convey real estate. An oral will can convey $100 worth of personal property but only if the oral will is made during your last illness and before three witnesses. In addition, a handwritten (holographic) will which is not executed according to the required procedure for a will is not valid in New Hampshire.

• Your will must be witnessed by two people and acknowledged before a notary public or a justice of the peace in a specific manner provided by law.

• For your will to be valid, you must follow exactly the technical formalities required for its execution.

May I Dispose of My Probate Property in Any Way I Wish?

• Yes, but within certain guidelines. For example, a married person cannot completely exclude a spouse and an insurance policy (i.e. beneficiary designated property) specifically payable to a named beneficiary cannot be changed by your will.

Can I Disinherit My Children?

• Yes, and it is not necessary to leave at least $1.00 to the child to do it. However, your will must contain language specifying that the disinheritance is intentional. Children born after your will is signed will have certain rights to your estate.

Can I Change My Will?

• Yes…any time you want. However, a change must be made by either signing a new will or by signing an amendment or addition (called a "codicil") to your existing will. You cannot change your will simply by writing the changes on your existing will.

How Long is a Will Valid?

• A properly drawn and executed will is valid until changed or revoked. However, it is important to remember that changes in your life such as marriage, divorce, death of a spouse, birth of children or an increase or decrease in your assets can affect the adequacy of your will or the way your estate should be distributed. It is a good practice to review your will often to be sure it reflects your desires.

Can My Will Affect Property I Hold Jointly With My Spouse?

• Bank accounts, real estate, and other assets held in joint tenancy with rights of survivorship pass to the survivor by law and not by the terms of the deceased joint tenant’s will. However, there are many situations where it is not to your advantage to own property jointly in this manner. Check with a lawyer for details.

Does a Will Increase Probate Expenses?

• No. If there is property to be administered and taxes to be paid, or both, a will does not increase probate expenses. In fact, a properly drafted will frequently reduces the cost of administering a probate estate.

Who Should Write My Will?

• Drafting a will involves making legal decisions after a thorough review of your particular situation. Making these decisions requires professional judgement obtained by training and experience. In addition, signing a will must be done in strict accordance with the requirements of New Hampshire law. Only a practicing lawyer can avoid the many pitfalls and advise the best course for your individual situation.