Frequently asked questions about wills


  • Where does my property go if I do not have a will?

If you do not have a will, the state will distribute your property by what is called the laws of intestacy.

Each state’s intestacy laws are different.

For example, In New Hampshire, the first $250,000 of your estate, whether real or personal property, would go to your spouse. After $250,000, your estate is divided between your spouse and your children.

In Vermont, only one third of your estate will go to your spouse if you have two or more children; and two thirds of your estate will be divided up among your children.

If you are not married and have no children, in both New Hampshire and Vermont, your estate will go to your parents.

In neither state will your assets go to any unmarried partner who is living with you.

The intestacy laws will distribute your property the way the State believes it should be distributed, not the way you want it distributed.

  • Do I need a will to take care of my minor children?

Yes. If you die and have minor children, the other parent will automatically be awarded custody of your children, even if you are no longer married to him or her and custody was awarded to you. However, a will with a trust provision will ensure that the person you designate will be in charge of the property and income that your children receive at your death. In addition, if your children have no other fit parent surviving, the guardian for your children whom you designate in your will, if he or she is fit, will be appointed by the court as guardian.

  • Do I need a will to make sure the state does not take my assets?

Generally, no. The only time the state would take your assets is if you have no relatives. The intestacy laws in Vermont provide that your relatives as distant as third cousins will inherit your assets; and in New Hampshire, relatives as distant as first cousins will inherit. Therefore, unless you have no relatives, there is no danger that the state will take your property if you do not have a will.

  • Can a will protect my estate from taxes?

Yes and no. A simple will does not protect your estate from federal taxes. You will need a more complicated estate plan, including a will, to minimize your tax burden. As of 2009, there
is no federal estate tax on any estates valued at less than $3,500,000, so most people do not need to be concerned about tax planning. However, the estate tax laws may be changed dramatically by Congress in the near future; therefore it is important to talk to your attorney about those changes.

  • Are there other benefits from executing a will?

Yes. You can designate an administrator in your will, and the court will appoint that person. You can also provide the administrator with more powers than allowed under the probate statutes.

In addition, you can set up a trust in the will which will control how your property is managed after your death.

Finally, you can make it easier for your heirs to divide up your household and personal effects. This is often the least valuable property in your estate, but is often the property that your heirs will more likely argue over because your personal effects have sentimental value. Giving your administrator power to make a final determination as to how to divide such property can save everyone time and emotional heartache.

  • Are there any disadvantages to making a will?

Yes. Once you make a will, its provisions will govern how your property will be divided after your death, no matter how your circumstances change. There may be deaths or divorces in your family; you may have a child who has special needs, your assets my have grown so that tax planning is necessary. Finally, the laws may change so that your will does not protect your assets as you planned when you executed the will. A good example is the tax law, which is slated to change dramatically in the next few years. It is best, then, to review your will every three years, and every time there is a major change in your family circumstances or assets. Your lawyer should be reminding you to update your will every few years, or whenever there is a major change in the law.

  • Where should I keep my will?

You should keep it where your heirs can find it immediately after your death. For example, a safe deposit box or a locked safe is not a good place for a will if your heirs do not have access to the box or know where to find the key to the safe. So it is best to plan to put your will in a safe place that will be accessible to your heirs after your death. Your attorney may offer to hold your will in his or her office. In that way, the attorney can notify your heirs at your death as to the location of the will.

  • Do I need an attorney to help me with my will?

Generally, yes. While there are good online programs for drafting wills, a lawyer will review in depth your assets, your wishes, and talk to you about any potential pitfalls. A will is drafted to take into account, as much as practicable, what may happen in the future, and a review by a lawyer of your circumstances will can better help you predict and take into account any future contingencies when drafting your will.

In addition, a lawyer will be able to let you know if you need more complicated estate planning for either tax purposes or Medicaid planning. Finally, most lawyers will safeguard your will, and remind you of any legal issues that may come up in the future that will affect your will.