Correcting Some Misconceptions
There are many misconceptions about the law that often seem to overwhelm the truth, so let's try to dispel a few of them.
Many people think the State will take their children if they don't name a guardian in their wills. Believe me, the State already has more children in its custody than it wants - just watch the "adopt-a-child" segments now running on WMUR's "New Hampshire Chronicle". No, if you don't name a guardian, your children might end up with a family member you wouldn't have chosen yourself, but at least one of your relatives would likely come forward to claim the kids and be named their guardian by the court. If you want to make sure they end up where you'd prefer, though, you'd better include that choice in a will.
Others think that if you don't have a will, the State will take everything you have. That's not true either, though again the law may give your life savings to people you wouldn't want to have it - like those same relatives who end up with the children if you haven't named a guardian. Actually, what would likely happen is that your surviving spouse would receive the first $250,000 plus one-half of the balance, and the rest would go to the kids when they reach 18. That's the simplest scenario; it gets more complicated if the family dynamics are different. So if you don't like the sound of that, then you need a will and/or a trust.
People who do have wills also think they can change them by penciling in the revisions and initialing them - or by writing the changes separately and having them notarized - usually right before boarding a plane to meet up with their cruise ship in Miami. (See my blurb about those issues.) That's just not going to work. Wills can certainly be amended, but only by real codicils that are executed with the same number of witnesses and formalities as the original wills. The handwritten changes may make you feel better as you buckle your seat belt, but the beneficiaries you penciled in will still be put out with you when they don't get what you intended for them.
OK, let's say you're a widow or widower who's found love again, and you want to get married to set a good example for the kids. Of course, you do a pre-nuptial agreement to make sure your kids get what's yours and your new spouse's kids are likewise protected. Then, somewhere down the road your new husband needs skilled nursing care that you just can't provide at home. You might figure that he'll have to spend up his own assets before qualifying for Medicaid benefits, but the pre-nup will surely protect you while you're still healthy enough to fend for yourself. Wrong again, unfortunately. Both spouses' assets will have to be thrown into the pot in determining what needs to be spent before Medicaid is available - so in a sense you may still be jeopardizing your children's interests in favor of the new guy. (Notice the use of pronouns, which is consistent with the statistics.) That may not be a reason not to tie the knot, and it may not overwhelm other tax, religious or moral reasons to marry, but it's definitely worth a place in the conversation.
One more. This time you got married again but were so caught up in the romance that you didn't do a pre-nup. Now you figure you'll protect your kids just by doing a will that leaves everything to them. No problem, right? Actually, your new spouse can't be disinherited by a will in New Hampshire, but can still claim a share equal to as much as a third of your assets that pass through probate. And to add insult to it, that's even if you made a serious error in judgment and are in the midst of getting a divorce when you pass on. This is a tough one to fix, but it may be possible to establish a revocable trust and to re-title your assets in that name - but only while there's still domestic tranquility and before the divorce talks get started. The key concept here is that in a trust, your assets don't "pass through probate" - and it's those probate assets that are subject to the spouse's claim.
Contact us if we can clarify any of these issues for you - or if you're wondering whether any other legal myths are for real.
Many people think the State will take their children if they don't name a guardian in their wills. Believe me, the State already has more children in its custody than it wants - just watch the "adopt-a-child" segments now running on WMUR's "New Hampshire Chronicle". No, if you don't name a guardian, your children might end up with a family member you wouldn't have chosen yourself, but at least one of your relatives would likely come forward to claim the kids and be named their guardian by the court. If you want to make sure they end up where you'd prefer, though, you'd better include that choice in a will.
Others think that if you don't have a will, the State will take everything you have. That's not true either, though again the law may give your life savings to people you wouldn't want to have it - like those same relatives who end up with the children if you haven't named a guardian. Actually, what would likely happen is that your surviving spouse would receive the first $250,000 plus one-half of the balance, and the rest would go to the kids when they reach 18. That's the simplest scenario; it gets more complicated if the family dynamics are different. So if you don't like the sound of that, then you need a will and/or a trust.
People who do have wills also think they can change them by penciling in the revisions and initialing them - or by writing the changes separately and having them notarized - usually right before boarding a plane to meet up with their cruise ship in Miami. (See my blurb about those issues.) That's just not going to work. Wills can certainly be amended, but only by real codicils that are executed with the same number of witnesses and formalities as the original wills. The handwritten changes may make you feel better as you buckle your seat belt, but the beneficiaries you penciled in will still be put out with you when they don't get what you intended for them.
OK, let's say you're a widow or widower who's found love again, and you want to get married to set a good example for the kids. Of course, you do a pre-nuptial agreement to make sure your kids get what's yours and your new spouse's kids are likewise protected. Then, somewhere down the road your new husband needs skilled nursing care that you just can't provide at home. You might figure that he'll have to spend up his own assets before qualifying for Medicaid benefits, but the pre-nup will surely protect you while you're still healthy enough to fend for yourself. Wrong again, unfortunately. Both spouses' assets will have to be thrown into the pot in determining what needs to be spent before Medicaid is available - so in a sense you may still be jeopardizing your children's interests in favor of the new guy. (Notice the use of pronouns, which is consistent with the statistics.) That may not be a reason not to tie the knot, and it may not overwhelm other tax, religious or moral reasons to marry, but it's definitely worth a place in the conversation.
One more. This time you got married again but were so caught up in the romance that you didn't do a pre-nup. Now you figure you'll protect your kids just by doing a will that leaves everything to them. No problem, right? Actually, your new spouse can't be disinherited by a will in New Hampshire, but can still claim a share equal to as much as a third of your assets that pass through probate. And to add insult to it, that's even if you made a serious error in judgment and are in the midst of getting a divorce when you pass on. This is a tough one to fix, but it may be possible to establish a revocable trust and to re-title your assets in that name - but only while there's still domestic tranquility and before the divorce talks get started. The key concept here is that in a trust, your assets don't "pass through probate" - and it's those probate assets that are subject to the spouse's claim.
Contact us if we can clarify any of these issues for you - or if you're wondering whether any other legal myths are for real.