If you die without a Will, the laws of Intestacy apply and the court will tell you where your assets will go after your death. If you die with a Will, you are telling the court how you want your assets distributed and the court needs to allow it. If however you have a fully funded revocable trust and you die, and no assets where in your name but in the name of the Trust, then you do not have to go through the probate court at all.
Unfortunately we have come across many occasions in which people did not set up or trust or even a Will. So we have put together this outline below as to how the courts determine how a person’s assets get distributed after their death if they did not have a Will or Trust.
The intestacy law (also called the law of descent and distribution, NH RSA 561) governs the distribution of property when a person dies without a will. Here is the order, or priority, of distribution of all property of a decedent after debts of the estate are paid.
If There is a Surviving Spouse
If there is a surviving spouse, then the estate passes in the following manner:
- the surviving spouse receives the entire estate if the decedent had no surviving parent or child;
- the surviving spouse receives the first $250,000 of the estate plus one-half the balance if there is a surviving child of both the decedent and the surviving spouse, and there are no other children of the surviving spouse who survive the decedent;
- the surviving spouse receives the first $250,000 plus three-fourths of the balance if there is a surviving parent of the decedent, but no surviving child;
- the surviving spouse receives the first $150,000, plus one-half of the balance of the estate if there is a surviving child of both the decedent and the surviving spouse and the surviving spouse has a surviving child who is not the child of the decedent;
- the surviving spouse receives $100,000 and one-half of the estate, if the decedent left children who are not also children of the surviving spouse.
If There is No Surviving Spouse
If there is no surviving spouse, or if parts of the intestate estate still have not been distributed under the above formula, then the remainder of the estate passes in the following order:
- to the children of the decedent, in equal shares;
- if the decedent has no surviving children, then to the parent(s) of the decedent;
- if the decedent has no surviving children or parent(s), then to the surviving brothers and sisters of the decedent in equal shares and to the children of the decedent’s deceased brothers and sisters by representation. (Representation means that these children share equally the portion their parent would have received had their parent survived the decedent.);
- if the decedent has no surviving children, parent(s), or brothers or sisters, or children of deceased brothers or sisters then, to grandparent(s);
- if there are no surviving children, parent, children of a parent, or grandparent, but there are children of decedent’s grandparent who survive, one-half of the estate passes to the children of the paternal grandparent who are not beyond the fourth degree of kinship to the decedent; the other half passes to the children of the maternal grandparent who are not beyond the fourth degree of kinship; provided, however, that if there are no children of the decedent’s grandparent within the fourth degree of kinship to the decedent on either the paternal or maternal side, the entire estate passes to the issue on the other side who are not beyond the fourth degree of kinship to the decedent.
No portion of a person’s intestate estate shall pass to any person who is of the fifth or greater degree of kinship to the decedent. If no one is available to take the estate under the provisions of the intestacy law, the intestate estate passes to the State of New Hampshire by a process called “escheat.”
If you want to avoid going through probate and having the court determine where your assets end up then it might make sense to consider setting up a revocable trust.