General DefinitionThe intestate estate is defined as the real estate and personal estate of every person deceased, not devised or bequeathed, subject to any homestead right, and liable to be sold by license from the court of probate in cases provided by law, and personally remaining in the hands of the administrator on settlement of his or her account. Sec. 561:1.
Order of DistributionIf the deceased is survived by a spouse, property passes to the surviving spouse as follows:
- If there is no surviving issue or parent of the decedent, the entire intestate estate;
- If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, and there are no other issue of the surviving spouse who survive the decedent, the first $250,000, plus 1/2 of the balance;
- If there are no surviving issue of the decedent but the decedent is survived by a parent or parents, the first $250,000, plus 3/4 of the balance of the intestate estate;
- If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, and the surviving spouse has one or more surviving issue who are not the issue of the decedent, the first $150,000, plus 1/2 of the balance of the intestate estate;
- If there are surviving issue of the decedent one or more of who are not issue of the surviving spouse, the first $100,000, plus 1/2 of the intestate estate.
The part of the intestate estate not passing to the surviving spouse, or the entire intestate estate if there is no surviving spouse, passes as follows:
- To the issue of the decedent equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degree take by representation.
- If there are no surviving issue, to the decedent's parent or parents equally.
- If there are no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother or sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degrees, then to those of more remote degree take by representation.
- If there are no surviving issue, parent or issue of a parent but the decedent is survived by one or more grandparents, one half of the estate passes to the paternal grandparents if both survive or to the surviving paternal grandparent if one paternal grandparent is deceased and the other half passes to the maternal grandparents in the same manner; or if only one grandparent survives, such grandparent shall receive the entire estate.
- If there are no surviving issue, parent, issue of a parent, or grandparent but there are issue of the decedent's grandparent who survive, one half of the estate passes to the issue of the paternal grandparent who are not beyond the fourth degree of kinship to the decedent and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation, and the other half passes to the issue of the maternal grandparent who are not beyond the fourth degree of kinship and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; provided, however, that if there are no issue 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 and said issue shall take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.
- No portion of a decedent's intestate estate shall pass to any person who is of the fifth or greater degree of kinship to the decedent. Sec. 561:1.
If there is no taker under New Hampshire law, the intestate estate passes to the state. Sec. 561:1(II)(g).
Common Law or Community PropertyNew Hampshire is a common law, elective share state.
CapacityEvery person of the age of eighteen years and married persons under that age, of sane mind, may devise and dispose of their property, real and personal, and of any right or interest they may have in any property, by their last will in writing. Sec. 551:1.
DraftingTo be valid, a will or codicil to a will executed after January 1, 1993 must:
- Be made by a testator with capacity under Sec. 551:1; and
- Be in writing; and
- Be signed by the testator, or by some person at his or her express direction in his or her presence; and
- Be signed by 2 or more credible witnesses, who shall, at the request of the testator and in the testator's presence, attest to the testator's signature. Sec. 551:2.
Any beneficial device or legacy made or given in a will to a subscribing witness or to the wife or husband of such a witness shall be void unless there be two other subscribing witnesses, and such subscribing witness shall be a competent witness; but a provision for the payment of a debt shall not be void nor disqualify the creditor as a witness. Sec. 551:3. To qualify as a self-proved will, the signatures of the testator and witnesses must be followed by a sworn acknowledgment made before a notary public or justice of the peace or other official authorized to administer oaths in the place of execution. Sec. 551:2-a.
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
ModificationsNo will or clause may be revoked unless by some other valid will or codicil, or by some writing executed in the same manner, or by canceling, tearing, obliterating or otherwise destroying the same by the testator, or by some person by the testator's consent and in the testator's presence. Sec. 551:13(1).
Naming of AdministratorNo administrator of the estate of any deceased person may be appointed until a certified copy of the death record of the decedent has been filed with the probate court, provided this requirement may be waived by the judge upon petition. Sec. 553.1-a. Administration of the estate of any person deceased shall be granted:
- To the executor named in his will.
- To the widow, husband or any of the next of kin or to such suitable person as they or any of them may nominate.
- To one of the devisees or creditors.
- To such other person as the judge may think proper. Sec. 553:2.
No person will be appointed to administer an estate until the several persons previously entitled thereto shall have either voluntarily renounced the trust in writing, or neglected, for thirty days after the decease of the person upon whose estate administration is to be granted, to apply for administration. Sec. 553:3.
Submission of WillNo will may pass either real or personal estate unless duly proved and allowed in the court of probate; and the probate of a will devising real estate shall be conclusive as to its due execution, as in case of a will of personal estate. Sec. 552:1.
Every person having the custody of a will must, within 30 days after he has knowledge of the decease of the testator, deliver it to the court of probate, or to the person named as executor. Sec. 552:2.
The person named as executor of a will must, within 30 days after the decease of the testator, or within 30 days after the person has knowledge of being so named, whichever is later, file the will in the probate court. If the estate contains any assets, the named executor must cause the will to be proved or file a written refusal to accept the trust. If the estate contains no assets, the named executor must provide a certificate of death for the decedent and shall file the will with no administration. Sec. 552:3.
NotificationsEvery executor must, within 60 days after his appointment, notify each legatee specifically named in the will of the fact that such legatee appears to be interested, and notify the surviving spouse and heirs at law, if known, that the will has been proved, and, within ninety days after his appointment, certify to the judge that notice as required has been given, stating in what manner and to whom. Sec. 552:15.
InventoryEvery administrator must file under oath, with the court, within 90 days after the date of appointment, a full, true and itemized inventory of all the estate of the deceased which has come to the administrator's knowledge. If an administrator fails to file an inventory within 30 days after the required filing date, the administrator is in default. The inventory must contain a description of the real estate; a correct schedule of all goods, chattels, stocks, bonds, cemetery plots or burial spaces, and other effects of the deceased; of all notes, with their dates and terms of payment, and the date and amount of each endorsement thereon; of all deposits in savings banks, with the name and location of each bank, the number of each book, the date of the last dividend, and the whole amount then due less any withdrawals since that date; and a list and description of any other written evidences of debt. If any person claims a present legal or equitable right of title to real or personal property in the estate of the deceased, the administrator may petition the probate court to determine the question as between the parties. Sec. 554:1.
Homestead, Elective Share and the Family AllowanceThe surviving spouse has a right to either the homestead or an elective share but not both.
Every person is entitled to $120,000 worth of his or her homestead, or of his or her interest therein, as a homestead. Sec. 480:1. A devise of the homestead does affect the estate of the surviving spouse in the homestead right. Sec. 480:6-a.
Upon the death of either husband or wife, testate, and the surviving spouse has elected to waive the homestead right, if any, and the provisions of the will in his or her favor, if any, and has elected to claim his or her rights of election, such surviving spouse shall be vested with the following portion of the estate remaining after the payment of debts and expenses of administration:
- If there are children of the deceased surviving (whether by the surviving spouse or by previous marriage) or issue of any deceased children, one-third part of the personalty and one-third part of the real estate.
- If the decedent leaves no children or issue of any deceased children, but does leave mother or father or sister or brother surviving, $10,000 in value of personalty and $10,000 in value of real estate and also one-half of the remainder above $10,000 in each, the real estate to be assigned to the surviving spouse in the same manner as dower heretofore has been assigned. Where the inventory value of the real estate does not exceed $10,000, the surviving spouse shall be entitled to the whole of said remainder and no assignment of the same shall be required unless some party in interest shall petition to the probate court.
- If the decedent leaves no children or issue of any deceased children, nor mother or father, nor sister or brother surviving, $10,000 of the value thereof, plus $2,000 for each full year from the date of marriage to the deceased of spouse and also one-half in value of the remainder above said sum computed as above, in the personalty, and the same in the real estate, the real estate to be assigned in the same manner as dower has heretofore been assigned. Where the inventory value of the real estate does not exceed $10,000, the surviving spouse shall be entitled to the whole of said remainder and no assignment of the same shall be required unless some party in interest shall petition the probate court. Sec. 560:10.
The judge may make to the widow a reasonable allowance out of the personal estate, for her present support and, in the decree of distribution of the personal estate, the whole, or such part as the judge deems reasonable, shall be accounted as part of her distributive share; and shall be so accounted when she elects to take 1/3 or 1/2 of the real estate. Sec. 560:1.
Debts and DistributionsThe estate of every person deceased will be chargeable with the following. To the extent that funds are available, these charges must be paid in the following priority:
The administrator of an estate shall make payment of the claims in the following order:
- Costs and expenses of administration of the estate.
- Reasonable and necessary funeral, burial and cremation expenses.
- Debts and taxes with preference under federal law.
- Claims made for financial and/or medical assistance provided to the deceased by the department of health and human services, debts collected by the state pursuant to Sec. 126-A:34, and charges pursuant to Sec. 166:19. The department of health and human services may distribute claims made in the following order: first, that assistance funded entirely by moneys from the general fund; and second, that assistance funded by a combination of state and federal funds.
- The just debts of the deceased.
- Legacies given by the will of the deceased or distribution to heirs according to law. Sec. 554:19.
The estate tax equals the maximum federal credit allowable with respect to property subject to New Hampshire state law. Sec. 87:1. With the repeal of the federal credit, no tax is currently imposed.
Income Tax Charitable Deductions and/or Credits
There is no personal income tax in New Hampshire. However, New Hampshire does impose a 5% tax on interest and dividend income. This tax is being phased out by 2027. The rate will be 4% for 2023, 2% for 2025, and 1% for 2026. Sec. 77:1.
Gift Annuity Requirements
New Hampshire, a "notification" state, regulates the issuance of charitable gift annuities under New Hampshire Revised Statutes, Title XXXVII, Chapter 403-E. Charitable gift annuities are exempt from insurance regulation in New Hampshire provided the charity satisfies certain conditions and provides notice to the New Hampshire Department of Justice.
To qualify, the charity must be an organization described in Sec. 501(c)(3) or Sec. 170(c)(3) that has been in continuous operation for at least three years (or a successor/affiliate of an organization that has) and maintains a minimum of $300,000 in unrestricted assets (cash, cash equivalents or publicly traded securities exclusive of the assets funding the annuity agreement). The gift annuities must be described in Sec. 501(m)(5) and Sec. 514(c)(5) and disclose the following: property value transferred, annuity payment amount, the manner and intervals of payments and the date payments begin. The charity's maximum payout ratios may not exceed those recommended by the ACGA. The charity must retain 100% of the contribution made, decreased by annuity payments and allocated expenses until the annuity it terminated. Failure to comply with state law may result in a civil penalty not to exceed $1,000 for each annuity issued by the charitable organization.
Notification ProcessWritten notice must be given to the Department of Justice on the date on which the charity enters into its first qualified gift annuity agreement. The notice shall be signed by an officer or director of the organization, identify the organization and certify that the organization is a charitable organization and that the annuities issued by the organization shall be limited to qualified charitable annuities, as defined in CH. 403-E:1, V. The notice must also include a copy of the charity's letter of tax-exempt status from the IRS.
Disclosure LanguageThe gift annuity agreement must include the following state-required disclosure language (on the first page, in a font size no smaller than that being generally used in the agreement):
"A qualified charitable gift annuity is not insurance under the laws of this state and is not subject to regulation by the insurance department or protected by an insurance guaranty association."
Reserve RequirementsNew Hampshire does not expressly require an issuing charity to maintain a segregated account. However, the State does require that the charity retain 100% of the contribution for each gift annuity, increased of the allocated earnings and decreased by allocated expenses until the annuity is terminated. Further, New Hampshire requires the contributions be invested in conformance with article 9 of RSA 564-B, which is a prudent investor standard.
Annual Filing RequirementsNew Hampshire requires annual filings ("recertification") regardless of whether the charity is registered for solicitation purposes in New Hampshire or has issued any new gift annuities that year. (see RSA 7:28, II and III). The annual filings essentially recertifies that all of the charity's issued gift annuities are qualified. If the charity is registered in the state for solicitation purposes, the gift annuity recertification can be included with the annual report for solicitation.
State Contact InformationCharitable Trusts Unit
NH Attorney General's Office
33 Capitol Street
Concord, NH 03301
Phone: (603) 271-3591
Email: [email protected]