A will, sometimes referred to as a person’s “last will & testament” is a document that a person prepares (usually with the assistance of an estate planning attorney) that sets forth how, and to whom, a person wants their assets to pass when they die.
A will governs the transfer of assets when the person who wrote the will (sometimes referred to as the “testator” dies). The will is implemented by the executor (the person who has been named in the will to handle the testator’s affairs upon death). The will provides, among other items, who the beneficiaries are; whether the beneficiaries are individuals, family members, a spouse, or more distant family members or even charities.
A will only governs the handling and transfer of assets that a person owns in his or her individual name. In other words, assets that are not owned jointly. A will also does not govern the handling and transfer of assets that are governed by a beneficiary designation. So, for example, some of the most commonly owned assets are a person’s home, life insurance or a retirement plan. If the home is held as joint tenants with rights of survivorship with another person, such as a spouse, or if the life insurance or retirement plan designates beneficiaries those assets will not be governed by a person’s will. Similarly, if a person has a bank account set up in what is referred to as a “payable-on-death” or a “transfer-on-death” designation, that beneficiary designation will occur automatically and will also bypass a person’s will.
It is critical for a person to understand what assets they own, how they are owned, and which assets will pass under the will versus by rights of survivorship or some other designation that has been made.
If a person dies without a will (sometimes referred to as dying “intestate”), then whatever assets that person owns when they die will pass under the laws written in the state in which a person lives. Those laws differ from state to state. In short, if you do not have a will, your home state has a “will” for you!
Not every state provides for the same set of rules governing who the beneficiaries. Many people assume that will while married your spouse will receive 100% of what you own. That is incorrect. In New Hampshire, a spouse will receive anywhere from one-third to one-half of the person’s assets and if there are children, children might receive the rest, which often produces an unintended consequence.
Wills are best prepared by attorneys. In New Hampshire for example, your will has to be witnessed by two witnesses, and there are very specific rules about those witnesses being present when you sign the document. There are also certain representations that the testator (the person who is signing the will) must make to those witnesses at the time they sign the document. In addition, it is very important for a will to be what is referred to as a “self-proving” will. This means that the will can be probated at death without the executor or attorney assisting the executor having to locate those witnesses. A self-proving also must be notarized.
If you’re interested in talking with the attorneys at Welts, White & Fontaine PC about estate planning, including wills and trusts, trust administration and probate matters please contact us by clicking here or by calling (603) 883-0797. Welts, White & Fontaine is one of Nashua’s largest, multi-practice law firms and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and, of course, Nashua.
Author: John Polgrean
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.