New Hampshire Wills vs. Trusts
Navigating New Hampshire estate planning doesn’t have to be overwhelming. Whether you’re considering a will or trust, understanding the key differences can save your family significant time, money, and stress. This comprehensive guide breaks down New Hampshire’s unique laws to help you make the right choice for your legacy.
Table of Contents
US Map For The Different Will and Trust Requirements by State
Interested in other state’s law regarding wills and trusts? Click the ABOVE state you want to be taken to.Â
New Hampshire Will Requirements
A New Hampshire Last Will and Testament should include:
- Age and Capacity: Testator must be “of sane mind” and at least 18 years old or married
- Format: Must be in writing
- Signature: Must be signed by the testator or by another person at the testator’s express instruction while in the testator’s presence
- Witnesses: Must be signed by at least two credible witnesses who sign while in the testator’s presence
The requirement that witnesses be “in the presence of the testator” 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.
Interested Witnesses
Devises in a New Hampshire will in favor of an “interested witness” are void unless the will is signed by at least two other disinterested witnesses. A witness is “interested” if the witness or the witness’s spouse have a beneficial interest in the will.
Self-Proved Wills
A New Hampshire will can be made “self-proved” if the testator’s and witnesses’ signatures are followed by a notarized, sworn acknowledgement. The testator and witnesses attest in the acknowledgment that:
- The testator executed the document voluntarily and intended for it to be treated as a will
- Witnesses signed at the testator’s request while in the presence of each other and the testator
- 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.
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Amendment, Revision, and Revocation of New Hampshire Wills
Amending a New Hampshire Will
A testator can amend a New Hampshire will by:
- Executing a subsequent will that amends the existing will
- Executing a codicil (an addendum to an existing will)
The subsequent will or codicil must satisfy all formalities required for execution of an original will.
Revoking a New Hampshire 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 testator’s direction while in the testator’s presence)
- Executing a later will, codicil, or similar instrument satisfying all requirements for a valid will and expressly revoking the earlier will
Automatic Revocation by Divorce
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 spouse—and all of the former spouse’s heirs who are not heirs of the testator—predeceased the testator
- Provisions revoked by divorce are revived if the testator later remarries the same spouse
New Hampshire’s rules regarding automatic revocation of will provisions upon divorce also apply to a revocable living trust with provisions in favor of the settlor’s former spouse.
Pretermitted Heirs
New Hampshire’s pretermitted heir statute protects a testator’s children—including posthumously born children—from unintentional omission:
- A testator’s child who is not named or referred to in a will—and who is not a beneficiary under the will—inherits a share of the estate as if the deceased testator had left no will
- The omitted child’s share is made up proportionally from devised assets if non-devised estate assets are insufficient to cover the omitted child’s share
Need help creating the right estate plan for your New Hampshire family?
Our estate planning specialists can help you navigate New Hampshire’s unique laws and create a personalized strategy.
Holographic and Oral Wills
Holographic Wills
New Hampshire does not recognize handwritten (or “holographic”) wills. A will signed and written in the testator’s handwriting may be valid if it is signed by two witnesses and otherwise satisfies all requirements for New Hampshire wills.
Oral Wills
New Hampshire recognizes oral (or “nuncupative”) 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 place—unless the testator was taken sick from home and died before returning
Additional requirements for nuncupative wills include:
- 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 testator’s statement and presented for probate within six months of the testator’s death
- Nuncupative wills can only be used to dispose of personal, movable property
New Hampshire Trust Requirements
New Hampshire trusts are primarily governed by the New Hampshire Trust Code, enacted by the legislature at NH Stat. §§564-B:101, et. seq.
Creation of a Valid New Hampshire Trust
A New Hampshire trust may be created to serve any purpose that is:
- Lawful
- Possible to achieve
- Not in conflict with New Hampshire public policy
A trust must be for its beneficiaries’ 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 settlor’s declaration as the owner of property that the property is held as trustee
- By exercising a power of appointment in favor of a trustee
- By a court’s judgment or decree
To create a valid trust under New Hampshire law:
- The settlor must express an intent to create the trust
- The settlor must 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
Required Trust Elements
New Hampshire trusts must have:
- A definite beneficiary or beneficiary ascertainable now or in the future—subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain noncharitable trusts
- A trustee with actual duties to perform
The sole trustee of a New Hampshire trust cannot also be the trust’s sole current and remainder beneficiary.
Trustee Duties
A New Hampshire trustee must:
- Act in good faith in administering the trust
- Observe 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 “prudent investor rule,” 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.
Trust Protectors and Advisors
The New Hampshire Trust Code authorizes—but does not require—appointment of a “trust protector” or “trust advisor.” A trust protector or trust advisor is a person granted specific powers in relation to a trust. Such powers could include:
- The power to remove a trustee
- Adjust or consent to distributions
- Amend a trust in response to legal or tax-law changes
- Advise the trustee relating to beneficiaries or investment of trust assets
Oral Trusts and Letters of Wishes
Though most trusts are evidenced by a written instrument setting forth the trust’s 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
- 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 “letter of wishes.” A letter of wishes is a written statement created by the settlor expressing the settlor’s wishes regarding how the trustee should exercise discretionary powers. A letter of wishes is not binding on the trustee.
Revocability and Duration
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 settlor’s spouse (or relative of the spouse) is void if the settlor and spouse are divorced after execution of the trust—unless the trust instrument expressly provides otherwise.
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.
Trust Termination
New Hampshire trusts terminate upon:
- Expiration or revocation under the trust’s own terms
- When the trust’s purpose has been fulfilled
- When the purpose has become unlawful, contrary to public policy, or impossible to achieve
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 trust—subject to a few statutory limitations.
Special Considerations
Estate Taxes
New Hampshire does not impose state-level inheritance or estate tax on a decedent’s estate. Large New Hampshire estates may still be liable for the federal estate tax.
Simplified Probate Options
New Hampshire law authorizes summary administration of qualifying estates:
- Eligibility: An estate may qualify if there are no unpaid estate taxes, estate debts, or unresolved creditor claims against the estate
- Consent Requirement: All beneficiaries of the estate must consent to summary administration
- Process: An estate’s executor or other administrator files a motion for summary administration at least six months after the estate is initially opened
- Benefit: When available, summary administration streamlines the estate process by allowing administration to conclude without further court supervision
Non-Probate Transfers
Along with living trusts, New Hampshire law offers several other options for transferring assets outside of probate:
TOD Deeds and Vehicle Titles
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.
New Hampshire Spendthrift and Asset Protection Trusts
Although the general rule is that creditors of a trust’s beneficiaries may attach a beneficiary’s interest in a trust, New Hampshire law recognizes “spendthrift provisions.” 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 beneficiary’s interest in the trust.
Self-Settled Asset Protection Trusts
Creditors of a revocable trust’s 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 “self-settled spendthrift trusts”—also called “asset-protection trusts.” A spendthrift trust is self-settled if the settlor is also beneficiary. A settlor’s creditors cannot attach assets held in a qualifying New Hampshire asset-protection trust until distributed to the settlor as beneficiary.
Requirements for a New Hampshire asset-protection trust include:
- The trust must be irrevocable
- The trust must name a qualified New Hampshire trustee
Creditors may challenge a settlor’s transfer of assets to a New Hampshire asset-protection trust within four years of a transfer.
Need help creating the right estate plan for your New Hampshire family?
Our estate planning specialists can help you navigate New Hampshire’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Asset Protection | None | New Hampshire offers strong asset protection trusts |
When It Takes Effect
Wills: After death
Trusts: Can be immediate (living trust) or after death (testamentary trust)
Probate Process
Wills: Requires probate
Trusts: Assets in trust avoid probate
Privacy
Wills: Public record
Trusts: Generally private
Challenges
Wills: Can be challenged in probate court
Trusts: More difficult to challenge
Cost to Create
Wills: Generally less expensive
Trusts: Usually more expensive
Ongoing Administration
Wills: None until death
Trusts: May require ongoing management
Protection During Incapacity
Wills: None (requires separate power of attorney)
Trusts: Can provide management if grantor becomes incapacitated
Asset Protection
Wills: None
Trusts: New Hampshire offers strong asset protection trusts
Conclusion
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of New Hampshire.
Ready to Protect Your Family’s Future?
Join the thousands of New Hampshire families who have secured their legacy with our personalized estate planning strategies. Our approach helps you avoid probate, protect assets, and ensure your wishes are carried out exactly as you intend.
- ✓ Avoid costly probate and family disputes
- ✓ Maintain privacy of your financial matters
- ✓ Protect assets during incapacity
- ✓ Create safeguards for children and loved ones
Explore Estate Planning Strategies
Free consultation with our estate planning specialists
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Frequently Asked Questions
Do I need a lawyer to create a will in New Hampshire?
While New Hampshire law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. A properly executed will must meet specific requirements, and an attorney can help ensure your will is legally sound and reflects your wishes accurately. New Hampshire’s unique witness requirements and rules regarding interested witnesses make professional guidance particularly valuable.
What happens if I die without a will in New Hampshire?
If you die without a will in New Hampshire (intestate), state laws determine how your assets are distributed. Your spouse would receive your entire estate if you have no living children or parents. If you have children from a previous relationship, your spouse receives $100,000 plus half the balance, with the remainder going to your children. The distribution becomes more complex if you have other family configurations. Without a will, you also lose control over selecting an executor for your estate and guardians for minor children.
Can I handwrite my own will in New Hampshire?
Unlike many states, New Hampshire does not recognize purely handwritten (holographic) wills. Even if you write your entire will by hand, it must still be signed in the presence of two witnesses to be valid in New Hampshire. Without proper witnessing, a handwritten document will not be recognized as a valid will, regardless of how clear your intentions might be. This makes New Hampshire’s will requirements more strict than those in states that recognize holographic wills.
What is unique about New Hampshire’s asset protection trusts?
New Hampshire is one of the few states that allows “self-settled asset protection trusts,” which provide significant advantages for asset protection planning. Unlike most states, New Hampshire permits you to be both the settlor (creator) and a beneficiary of a spendthrift trust, meaning you can protect assets from your own creditors while still maintaining some benefit from those assets. For these trusts to be effective, they must be irrevocable, have a qualified New Hampshire trustee, and meet other statutory requirements. Creditors have a limited four-year window to challenge transfers to such trusts.
How does New Hampshire’s elective share law protect surviving spouses?
New Hampshire protects surviving spouses from disinheritance through its elective share law, which gives a surviving spouse the right to claim a portion of the deceased spouse’s estate regardless of what the will provides. The share varies based on family circumstances: one-third of the estate if there are surviving children or grandchildren; $10,000 in personal property, $10,000 in real estate, and half the remainder if there are surviving parents or siblings; and an enhanced share that increases with the length of marriage if there are no close relatives. This right can be waived through a valid prenuptial or postnuptial agreement.
Does New Hampshire recognize video conference will signings?
Yes, New Hampshire is progressive in allowing will signing ceremonies to be conducted via video conference. The requirement that witnesses be “in the presence of the testator” can be satisfied through video conferencing if the testator, witnesses, and a notarizing attorney or paralegal can all hear and see each other during the signing process. This provision makes it easier for people who may have mobility issues or who live in remote areas to execute valid wills, though care must be taken to ensure all legal requirements are still met.
What is a “letter of wishes” in New Hampshire trust law?
A “letter of wishes” is a non-binding document recognized under New Hampshire trust law that allows a settlor (trust creator) to communicate their preferences to trustees regarding how discretionary powers should be exercised. While not legally enforceable like the trust document itself, a letter of wishes provides important guidance about the settlor’s intentions and values. This can be particularly useful for expressing preferences about distributions to beneficiaries, investment philosophy, or other matters where the trustee has discretion. The letter can be updated without formally amending the trust.
Can I create a trust for my pets in New Hampshire?
Yes, New Hampshire law specifically authorizes trusts for the care of animals. These “pet trusts” allow you to set aside funds and designate a trustee to care for your pets after you’re gone. The trust terminates upon the death of the last surviving animal beneficiary. New Hampshire’s Trust Code provides clear legal recognition of these arrangements, making them enforceable and giving you peace of mind that your beloved pets will be cared for according to your wishes, rather than relying on informal arrangements that might not be honored.
