The answer is: it depends. Some of the things that might determine where your property goes, also referred to as your “estate,” when you pass are whether you are married; if you have a Will; if you have a Trust; and if you had a Trust was it properly funded? Usually the most important thing to know is whether your loved ones will need to engage in the probate process, which involves the Court, or whether things can be handled quietly outside of Court.
What is the probate process?
If you only have a Will, or if you have no estate planning documents in place and you pass away, then your estate will almost certainly need to go through the probate process. Probate is a division of the New Hampshire Court system that has jurisdiction over cases involving estates, guardianships, adoptions, and name changes to name a few. In order to start the probate process after someone passes away a Petition for Estate Administration must be filed. The Petition needs to be filed, along with a filing fee and a death certificate. This starts the process with the Court and it is at this point an Executor or Administrator is appointed. Until the paperwork is filed and an Executor or Administrator is appointed, legally no one has the ability to do anything with your property. After someone is appointed, the Court process will take a minimum of six (6) months to a year.
Can I avoid the probate process?
Yes! If you have a Trust set up and you have properly titled all of your property into the Trust, then you can avoid probate. Many people believe Trusts are only for wealthy people avoiding taxes, however, one of the more important and main benefits of a Trust is probate avoidance. There are many different types of Trusts out there, but the most common instrument that accomplishes probate avoidance is referred to as a Living Trust, Intervivos Trust, or Revocable Trust. If you would like to find out more about the many benefits of Trusts please contact Morneau Law for a consult!
Jointly held Assets and Non-probate Assets
You may also avoid probate depending on your individual situation. The most common scenario for avoiding probate occurs when the first spouse in a marriage passes away. If the couple owns everything jointly and there are no special circumstances surrounding the ownership of the jointly held asset, then the probate process does not necessarily need to occur. Although unlikely, another possible way to avoid probate is if a person’s assets were non-probate assets. Certain types of assets are considered “non-probate” assets that fall outside of the Court’s discretion. Common non-probate assets include things such as life insurance and retirement assets which have named beneficiaries and do not generally require the Court’s intervention.
If I don’t have a Will does the State take my things?
A common misconception people have regarding dying without a Will, also known as dying “intestate,” is that all of their things go to the state. New Hampshire has a statute, as do many other states, regarding the distribution of a person’s estate in the absence of a Will. RSA 561:1 called Distribution Upon Intestacy can be found at the New Hampshire Judicial Branch’s website, or if you click here: http://www.gencourt.state.nh.us/rsa/html/LVI/561/561-1.htm
Overall, each scenario is as individual as the person who has passed. If you have recently lost a loved one and need guidance through the process we at Morneau Law can assist you with compassion and care. We are located in downtown Nashua within walking distance of the Nashua Probate Division. Please call us at 603-943-5647 and we will be happy to set up a consultation to help you come with an action plan.