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Know the Law: How Do Properties Transfer with No Will or Trust?

Written by: Ashley B. Scott

Published in the Union Leader (3/13/2017)

Q. For the last two years, my husband and I have lived in our New Hampshire house during the summer months and at our house in Arizona the remainder of the year. If something happens to one of us, will these properties transfer to the survivor automatically if we do not have a will or trust?

A. Several laws may be implicated at the time of your death based on your state of residency and the location of your property. 

A trust and estate plan allows you to have more control over the transfer or disposition of your property at time of death. It also makes you think about what you want to happen to your property when you or your spouse are gone. For example, questions counsel may ask you when creating a trust or estate plan include: Are you married? Do you have children or step-children? Do you have a will or a trust? Do you own real estate in multiple states and how is the title in that property held?

If you have no will, a court will generally determine how property is distributed according to state intestate law. New Hampshire has an intestacy statute that determines who will get what depending on the person’s relationship to you. New Hampshire law generally directs your assets in New Hampshire to your spouse upon your death. 

This legal presumption of property going to your spouse may be impacted by various factors, including whether you are considered to reside in New Hampshire at the time of your death and what property you own in New Hampshire when you die. Distribution is also impacted by property that may pass outside of intestacy law — for example, property held in a trust or life insurance proceeds that passes to named beneficiaries. 

Every state’s intestacy law is different. For example, in Massachusetts, the first $200,000 is transferred to your spouse, along with three-quarters of the remaining assets if your parents live longer than you do. The remainder of your estate is distributed to your heirs at law. 

Your heirs at law are essentially everyone other than your spouse and your children by birth or adoption: For example, parents, siblings, nieces, and nephews. 

By contrast, if the only people alive at your death are your spouse and the children you had with your spouse, then your spouse inherits your entire estate.

As you can see, owning property in multiple states creates nuances that you should better understand when determining how to plan for distribution of your assets upon your death. The distribution of your New Hampshire assets can become quite complicated when you are not a New Hampshire resident at the time of your death. 

Although you may be satisfied with how New Hampshire law makes assumptions about your desire to distribute assets now, circumstances change. If you have relocated full time or part time to Arizona for its warmer climate, you should consider what might happen to the assets you leave behind in New Hampshire. 

It is also worth noting that your plans about who will inherit what also change when you move from one state to another for a variety of reasons that do not relate to assumptions underlying intestacy law. 

At these critical junctures, it is important to revisit your estate plan or to understand the intestacy law of the state where you plan to reside at the time of your death.

Ashley Scott can be reached at ashley.scott@mclane.com.

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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