NEW HAMPSHIRE WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: New Hampshire Stat., Title 56, Ch. 551:ย Wills (NH Stat. ยงยง551:1, et. seq.).
Trusts: New Hampshire Trust Code (NH Stat. ยงยง564-B:101, et. seq.).
New Hampshire Will Requirements.
A testator who is โof sane mindโ and at least 18 years of age or married can execute a valid New Hampshire will. A New Hampshire will must be in writing and signed by the testatorโexcept that a will may be signed on the testatorโs behalf by another person acting at the testatorโs express instruction while in the testatorโs presence.ย
Two or more credible witnesses must also sign a New Hampshire will. Witnesses must sign while in the testatorโs presenceโattesting to the authenticity of the testatorโs signature. The requirement that witnesses be โin the presence of the testatorโ can be satisfied by video conference if the testator, the witnesses, and a notarizing attorney or paralegal can hear and see each other at the time of signing.ย
Devises in a New Hampshire will in favor of an โinterested witnessโ are void unless the will is signed by at least two other disinterested witnesses. A witness is โinterestedโ if the witness or the witnessโs spouse have a beneficial interest in the will.
A New Hampshire will can be made โself-provedโ if the testatorโs and witnessesโ signature are followed by a notarized, sworn acknowledgement. The testator and witnesses attest in the acknowledgment thatย
- The testator executed the document voluntarily and intended for it to be treated as a will;
- Witnesses signed at the testatorโs request while in the presence of each other and the testator; and,
- The testator had adequate capacity and was not under duress when signing the will.
Self-proved wills can be admitted to probate based upon the executed acknowledgment and without the need for in-person witness testimony.
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Amendment, Revision, and Revocation of New Hampshire Wills.
A testator can amend a New Hampshire will by executing a subsequent will or codicil (an addendum to an existing will) that amends the existing will. The subsequent will or codicil must satisfy all formalities required for execution of an original will.
A testator can revoke a New Hampshire will by canceling, tearing, obliterating, or destroying the physical document with the intent of revoking the will. Destruction may be carried out by another person acting at the testatorโs direction while in the testatorโs presence.ย
A testator may also revoke a New Hampshire will by executing a later will, codicil, or similar instrument satisfying all requirements for a valid will and expressly revoking the earlier will.ย
If a testator divorces after executing a New Hampshire will, any provisions in favor of the former spouse are considered revoked unless the will expressly provides otherwise. Provisions revoked due to divorce are treated as though the former spouseโand all of the former spouseโs heirs who are not heirs of the testatorโpredeceased the testator. Provisions revoked by divorce are revived if the testator later remarries the same spouse. New Hampshireโs rules regarding automatic revocation of will provisions upon divorce also apply to a revocable living trust with provisions in favor of the settlorโs former spouse.
New Hampshireโs pretermitted heir statute protects a testatorโs childrenโincluding posthumously born childrenโ from unintentional omission. A testatorโs child who is not named or referred to in a willโand who is not a beneficiary under the willโinherits a share of the estate as if the deceased testator had left no will. The omitted childโs share is made up proportionally from devised assets if non-devised estate assets are insufficient to cover the omitted childโs share.
Holographic and Oral Wills.
New Hampshire does not recognize handwritten (or โholographicโ) wills. A will signed and written in the testatorโs handwriting may be valid if it is signed by two witnesses and otherwise satisfies all requirements for New Hampshire wills.ย
New Hampshire recognizes oral (or โnuncupativeโ) wills under limited circumstances. The testator must be a soldier in actual military service or a sailor at sea. The testator must also be in his or her last sickness and in his or her usual dwelling placeโunless the testator was taken sick from home and died before returning.
If property disposed by a nuncupative will exceeds $100.00 in value, the statements constituting the will must be declared in the presence of three witnesses who the testator asked to witness the statements as an oral will. A nuncupative will must be reduced to writing within six days of the testatorโs statement and presented for probate within six months of the testatorโs death. Nuncupative wills can only be used to dispose of personal, movable property.ย
New Hampshire Trust Requirements.
New Hampshire trusts are primarily governed by the New Hampshire Trust Code, enacted by the legislature at NH Stat.ย ยงยง564-B:101, et. seq.ย A New Hampshire trust may be created to serve any purpose that is lawful, possible to achieve, and not in conflict with New Hampshire public policy. A trust must be for its beneficiariesโ benefit as defined in the trust instrument.
New Hampshire trusts can be created through transfer of property by a settlor to a trustee (either during life or through a will), a settlorโs declaration as the owner of property that the property is held as trustee, by exercising a power of appointment in favor of a trustee, or by a courtโs judgment or decree.ย
To create a valid trust under New Hampshire law, the settlor must express an intent to create the trust and have adequate capacity (measured under the same standard applying to wills). A New Hampshire trust is void to the extent its creation was induced through fraud, duress, or undue influence.
New Hampshire trusts must name a definite beneficiary or beneficiary ascertainable now or in the futureโsubject to exceptions such as for charitable trusts, trusts for the care of animals, and certain noncharitable trusts. A New Hampshire trust must also have a trustee with actual duties to perform. The sole trustee of a New Hampshire trust cannot also be the trustโs sole current and remainder beneficiary.ย ย
A New Hampshire trustee must act in good faith in administering the trustโobserving common standards of honesty, decency, fairness, and reasonableness in accordance with the terms of the trust. New Hampshire trustees who invest trust assets are governed by the โprudent investor rule,โ under which a trustee must manage assets prudently in consideration of the purposes, terms, distribution requirements, and other circumstances of the trust. A trust instrument may modify, expand, or eliminate application of the prudent investor rule.
The New Hampshire Trust Code authorizesโbut does not requireโappointment of a โtrust protectorโ or โtrust advisor.โ A trust protector or trust advisor is a person granted specific powers in relation to a trust. Such powers could includeโfor exampleโthe power to remove a trustee, adjust or consent to distributions, amend a trust in response to legal or tax-law changes, or advise the trustee relating to beneficiaries or investment of trust assets.
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, the New Hampshire Trust Code permits oral trusts. However, the creation and terms of an oral trust must be established by clear and convincing evidence, and other statutes require certain types of trusts to be evidenced by a written trust instrument. A trust relating to real estate, for instance, must be evidenced by a trust instrument signed by the settlor.
The settlor of a New Hampshire trust may also create a โletter of wishes.โ A letter of wishes is a written statement created by the settlor expressing the settlorโs wishes regarding how the trustee should exercise discretionary powers. A letter of wishes is not binding on the trustee.
New Hampshire law assumes that trusts are revocable unless the trust is expressly made irrevocable. The settlor retains the right to revoke or amend a revocable trust as long as the settlor has adequate capacity. As with wills, a provision in a New Hampshire revocable trust in favor of the settlorโs spouse (or relative of the spouse) is void if the settlor and spouse are divorced after execution of the trustโunless the trust instrument expressly provides otherwise.ย ย
A New Hampshire trust can exist perpetually or for a shorter period. A trust instrument may expressly exempt a New Hampshire trust from the rule against perpetuities in certain circumstances.
New Hampshire trusts terminate upon expiration or revocation under the trustโs own terms or when the trustโs purpose has been fulfilled, has become unlawful, has become contrary to public policy, or has become impossible to achieve.ย Under appropriate circumstances, a court may modify or terminate a New Hampshire irrevocable trust upon the petition of the settlor, trustee, beneficiaries, or trust protector or adviser. A trustee may make administrative modifications to a New Hampshire trustโsubject to a few statutory limitations.
The Estate Planners Tactical Guide
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Estate Taxes: New Hampshire does not impose state-level inheritance or estate tax on a decedentโs estate.ย Large New Hampshire estates may still be liable for the federal estate tax.ย ย
Simplified Probate:ย New Hampshire law authorizes summary administration of qualifying estates. When available, summary administration streamlines the estate process by allowing administration to conclude without further court supervision. An estateโs executor or other administrator files a motion for summary administration at least six months after the estate is initially opened.
A New Hampshire estate can qualify for summary administration if there are no unpaid estate taxes, estate debts, or unresolved creditor claims against the estate. All beneficiaries of the estate must consent to summary administration.
Non-Probate Transfers:ย Along with living trusts, New Hampshire law offers several other options for transferring assets outside of probate. POD (payable-on-death) and TOD (transfer-on-death) designationsโwhich provide for automatic transfer of an asset to a named beneficiary upon an ownerโs deathโcan be used in New Hampshire for a variety of assets. For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death, with no need for probate.ย Joint tenancy with right of survivorship can be used for co-ownership of real estate and personal property in New Hampshire. A New Hampshire vehicle title held jointly by spouses creates a joint tenancy with right of survivorshipโallowing a surviving spouse to acquire full title upon the other spouseโs deathโunless the title clearly specifies otherwise.
New Hampshire law does not recognize tenancy by the entiretiesโa form of joint ownership with right of survivorship that can only be used by spouses. A New Hampshire deed purporting to create a tenancy by the entirety is deemed to create a joint tenancy.ย
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย New Hampshire does not currently allow TOD designations on either real estate deeds or motor vehicle titles. A bill authorizing transfer on death deeds has been introduced in the New Hampshire Legislature.ย
Spousal Shares: New Hampshire law protects against spousal disinheritance by guaranteeing a surviving spouse a waivable elective share in a decedent spouseโs estate. A surviving spouse may opt to receive the elective share in lieu of provisions under a will. The elective share amount depends on the surviving family members left by the decedent:
- If the deceased spouse leaves surviving children or grandchildren, the elective share is one-third of the net estate.ย
- If the deceased spouse has no children but leaves a surviving parent or sibling, the elective share is $10,000 in personal property, $10,000 in real estate, and one-half of the remainder.
- If the deceased spouse leaves no surviving children, parents, or siblings, the elective share is $10,000 in personal property, $10,000 in real estateโplus an additional $2,000 of each for every full year of the marriageโand one-half of the remainder.
If a married New Hampshire decedent leaves no will, the surviving spouseโs intestate share depends on the surviving children, grandchildren, and other relatives left by the deceased spouse. A spouseโs intestate share ranges from the entire estate (if the decedent leaves no surviving children, grandchildren, or parents) to $100,000 plus half the balance (if the decedent leaves at least one surviving child who is not the child of the surviving spouse).ย ย
New Hampshire Spendthrift and Asset Protection Trusts:ย Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in a trust, New Hampshire law recognizes โspendthrift provisions.โ Spendthrift provisions prevent most creditors of beneficiaries from attaching trust assets until actually distributed to the relevant beneficiary. Spendthrift provisions in New Hampshire trusts do not protect against attachment to satisfy child support or alimony obligations, governmental claims, or claims arising from services provided to protect the beneficiaryโs interest in the trust.ย
Creditors of a revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims). New Hampshire is among the small minority of states that recognize โself-settled spendthrift trustsโโalso called โasset-protection trusts.โ A spendthrift trust is self-settled if the settlor is also beneficiary. A settlorโs creditors cannot attach assets held in a qualifying New Hampshire asset-protection trust until distributed to the settlor as beneficiary. Among other requirements, a New Hampshire asset-protection trust must be irrevocable and must name a qualified New Hampshire trustee. Creditors may challenge a settlorโs transfer of assets to a New Hampshire asset-protection trust within four years of a transfer.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
