Estate Planning 101: What is Intestacy?

By Cooley A. Arroyo

When a person dies without a will, the local intestacy statute will apply to determine “who gets what.” Unlike a will or trust, which permits a person to tailor the disposition of her estate to her own wishes, the provisions of the intestacy statute cannot be changed or amended to fit a particular person’s wishes; the only way to do that is by creating a will or trust and effectively by-passing the intestacy statute.

Each state has a unique intestacy statute. New Hampshire’s is codified as RSA 561:1. The easiest way to tackle the statute is to first assess what a Surviving Spouse (“SS”) will receive under the statute if his or her spouse (“D”) passes away; that is determined by the particular facts of each case.

The Surviving Spouse will get…
  • All of the estate if D has no children and no living parents;
  • $250,000 + ½ of What is Left if D’s children are also SS’s children and SS has no other children
  • $250,000 + ¾ of What is Left if D has no children but one or both of D’s parents are still living
  • $150,000 + ½ of What is Left if all of D’s children are also SS’s children but SS also has children from another relationship
  • $100,000 + ½ of What is Left if D has at least one child from another relationship
The New Hampshire statute then establishes a hierarchy of “who gets what” after the Surviving Spouse takes his or her share. If the Surviving Spouse is entitled to all of the estate, the remaining heirs will get nothing. If assets are left over after the Surviving Spouse takes his or her share, the distribution of the deceased person’s remaining assets will generally follow this hierarchy:
  • D’s children
  • D’s parents
  • D’s siblings and their children
  • D’s grandparents
  • D’s extended relatives (i.e. aunts, uncles, cousins, etc.)
  • The State of New Hampshire
Note that this hierarchy also applies if a person dies without a Surviving Spouse.

Like a will, an intestate estate will be distributed by the authority of the Probate Court. Some people may like these pre-established rules of distribution, but others may want more flexibility. For example, a person may want to provide more for a surviving parent or stepchild. Others might want their estate to go to a charity or close friend before passing by default to distant relatives.

To best understand how the intestacy statute might apply or affect your estate plans in the absence of a will, please consult me or one of the other estate planning attorneys at Cleveland, Waters and Bass. We’re happy to answer your questions and ensure that your estate plan best suits your needs and wishes.

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