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What Is A Will?

by | Mar 15, 2015 | Estate Planning |

There has always been a great deal of mystery about wills and estates. In this first post, we will talk about what a will is, and what it is not. First of all, the laws of each state differ concerning wills; to minimize confusion, we will focus on New Hampshire law. In New Hampshire, a will must be in written form, signed voluntarily by a person “of sound mind”, who is over 18 years of age. It must also be witnessed by 2 witnesses.

What property can you include in a will?
You can give away all of your property in a will. There are two types of property: real estate is called “real property” in a will; everything else is considered to be “personal property”.
In your will, you can only give away property that is in your sole name, or which is jointly owned, but will not be inherited by the other party upon your death.

For example, if you and your spouse own your home as “joint tenants with rights of survivorship”, then when the first co-owner dies, the surviving co-owner inherits the property OUTSIDE of the will, regardless of the terms of the deceased spouse’s will.

Other property, such as life insurance policies or retirement accounts and pensions are contracts which have beneficiaries; again, as in the previous example, the surviving beneficiary receives the property OUTSIDE of the will, regardless of the terms of the deceased person’s will. So, if you leave an IRA retirement account in your will, but you have already named a beneficiary for the IRA, the will has no effect upon the IRA when you die; the person named as beneficiary will receive the IRA account.

If a person gives away specific property in a will (such as a piece of jewelry or a baseball card collection), but does not own that property at the time of death, that gift “lapses”; in other words, you can’t give away what you do not own when you die.

What happens if you don’t have a will?
One of the biggest myths about wills is that if you do not have one, your property will go to the government. If you die without a will, in legal terms you die “intestate”; however, each state has “laws of intestacy” by which your property would be distributed to your “next of kin”. New Hampshire has an interesting intestacy law: if you die intestate, and you are married with children when you die, your surviving spouse inherits 1/3 of both the real and personal property; the children inherit 2/3.

Can you disinherit your spouse? Your children?
The answer is yes and no! You can leave your spouse out of your will, but even if you do, your spouse will inherit under the intestacy laws (see previous paragraph); surprisingly, you can disinherit your children. However, if you have/adopt a child after you sign your will, that child will automatically be included in your will, so long as you have included your previous children.

The next post will cover the basic terms of a will.

Copyright © 2010 Attorney Darlene M. Daniele

Disclaimer: The information in this article is not intended as a substitute for legal advice.