What Happens if I Die Without a Will?

Should you die without having executed a Last Will and Testament, New Hampshire state law directs who will receive your assets and in what amounts. Dying without a Will is called, in legal terms, dying intestate. Your death certificate will be filed with the Probate Court in order to open your estate for administration and the Court will appoint someone – usually a family member – to serve as administrator. Once the administrator has settled your debts, your remaining assets will be distributed to your heirs-at-law according to the rules set out in the applicable state statute: New Hampshire R.S.A. Chapter 561, titled Descent, Distribution, and Advancements.

Under New Hampshire state law, your heirs-at-law are those individuals related to you by a certain degree of kinship, including, but not limited to, your spouse, your children, your parents, and your siblings. Your children will be considered among your heirs-at-law if they are your biological or legally adopted children, but any step-children whom you have not legally adopted will not be considered your heirs. If you wish to provide for a step-child whom you have not legally adopted, you must execute a Will.

If you are married at the time of your death, your spouse will be entitled to a share of your estate, but not necessarily to all of it. The amount of your spouse’s share depends on several factors, including whether you have other living relatives, what your exact relationship is to those relatives, and whether your spouse has living descendants who are not also your children. For example, if you are survived by any children, whether of your current marriage or a prior marriage, and your spouse has no additional children, your spouse will receive the first $250,000 of your estate plus fifty percent (50%) of what remains. However, if your spouse does have children who are not also your children, your spouse’s share is reduced to the first $150,000 of your estate plus fifty percent (50%) of what remains. In both cases, the remaining fifty percent (50%) of what remains would be shared equally among your children.

If you are not married at the time of your death, your estate will be divided equally among your children, or, if you only have living grandchildren, among your grandchildren. If you have no children or other descendants, your estate will go to your parents, equally. If you also have no living parents, your estate would go to your siblings. The state will continue looking for heirs-at-law up through the fourth degree of kinship, so a great-great-grandparent or a great-niece might inherit your estate.

If no living heir-at-law within four degrees of kinship can be identified within three years of death, the state itself will receive your assets.

Note that only those of your assets which require probate will be distributed according to the intestacy statute. This may include assets titled in your name individually, such as a residence or vehicle, or individually-owned financial accounts without named beneficiaries. Titled property owned with another individual will pass according to the type of joint ownership specified on the deed or title, while retirement funds and insurance policies with named beneficiaries will be distributed directly to those beneficiaries.

If you would like your assets to be distributed in different proportions than specified by state law, or if you would like your assets to be distributed to individuals to whom you are not related, you need to execute a Will. The execution of a Will is also the method by which you would declare your preferred guardians of any minor children you leave behind. Our office would be happy to discuss your estate planning needs and to help you prepare a plan that accomplishes your personal objectives.

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