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Know the Law: Mom Doesn't Have a Will, Can No Longer Prepare One

Written by: Caitlin G. McCurdy

Published in the Union Leader (1/1/2018)

Q: I was recently appointed guardian over my mother, who has advanced dementia, and I discovered that she never did any estate planning. Do I have any options now? 

A: Yes, you do. The first question is, what type of guardianship do you have? In New Hampshire, you can be guardian over the person (which allows you to make medical decisions), guardian over the estate (which allows you to make financial decisions), or both. 

If you are guardian over the estate or guardian over both, then there is a statute (RSA 464-A:26-a) that allows you to petition the probate court to create an estate plan and/or make lifetime gifts for your mother.

The second question is, what type of estate planning does your mother need? Depending on your mother’s circumstances, she may not need estate planning because there is a statute (RSA 561:1) that governs what happens to a person’s estate if they die intestate (i.e., without a will). If this statute provides an outcome that is the same or similar to what your mother would have wanted, then you may not need to take any additional action.

If, after reviewing the intestacy statute, you decide that it does not accurately reflect your mother’s wishes (for example, you have a blended family, someone in the family has special needs, etc.), then you would need to petition the probate court to do estate planning. If you are only guardian over the person, then you would first have to petition to be appointed guardian over the estate before petitioning to do estate planning.

Unlike many guardianship matters, this action does not have a fill in the blank, court-approved form. The petition must include a variety of details about the plan, including how it would benefit your mother (whether there will tax savings, whether the lifetime gifts qualify your mother for Medicaid, etc.). 

Additionally, you will have to show that the plan is consistent with your mother’s wishes (has she always treated her children equally, has she always donated to a particular charity, did she discuss her wishes prior to her dementia?).

Everyone named in the proposed estate plan, as well as anyone who would have inherited if your mother died intestate, must receive notice of the petition. This includes the Department of Health and Human Services if you are making gifts to qualify your mother for Medicaid.

The probate court will review the petition and, depending on whether all interested parties agree, will decide whether a hearing is needed before you can proceed with the proposed estate planning.

If you think your mother would benefit from having an estate plan, you should reach out to an attorney who can help you with the details of the petition, as well as with the development of an effective estate plan for your mother.

Caitlin McCurdy can be reached at [email protected].

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 St., Manchester, NH 03101 or emailed to [email protected]. 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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