Intestacy — dying without a valid will — is not a gap in the law. It is a statutory outcome governed by RSA 561, and it produces results that bear little resemblance to what most decedents would have intended. For individuals without estate planning documents in place, the intestacy statute functions as a mandatory default formula applied regardless of family circumstances, asset complexity, or personal relationships.
Understanding what that formula does — and who it leaves out entirely — is the starting point for any serious conversation about estate planning in New Hampshire.
Without a will, the state writes one for you — and it will not know about your stepchildren, your unmarried partner, or your wishes for the family home.
How RSA 561 Distributes an Intestate Estate
New Hampshire’s intestacy statute establishes a strict hierarchy of distributees. The formula is mechanical: it does not account for the quality of relationships, financial need, or any preference the decedent may have expressed informally.
| Family Situation | Surviving Spouse Receives | Others Receive |
|---|---|---|
| Married, no children, no surviving parents | Everything | — |
| Married, children shared with spouse only | First $250,000 + half the remainder | Children split the rest |
| Married, no children, parent survives | First $250,000 + three-quarters of remainder | Parent(s) receive the rest |
| Married, blended family (children from prior relationships) | First $100,000–$150,000 + half remainder | Children split the rest |
| Single, with children | — | Children inherit equally |
| Single, no children, parents alive | — | Parents inherit everything |
| No eligible heirs | — | Estate escheats to the State of NH |
Who Intestacy Law Cannot Protect
These people receive nothing under RSA 561 — regardless of your relationship
- Unmarried domestic partners — regardless of how long you have lived together or how intertwined your finances are
- Stepchildren not legally adopted — the nature of the relationship is irrelevant to the statutory outcome
- Close friends — no matter how important someone is to you, friendship creates no inheritance rights
- Charities and causes — intestacy has no mechanism for charitable giving
- Estranged relatives you wanted to exclude — intestacy cannot disinherit anyone who qualifies as a statutory heir
What Happens to Minor Children
If you have children under 18 and die without a will, two critical questions are left unanswered: who raises them, and who manages their money. Without a will naming a guardian, a court decides — potentially in a contested proceeding if family members disagree. Any assets passing directly to a minor require appointment of a court-supervised guardian of the estate until the child turns 18, at which point they receive full control with no conditions.
A properly structured estate plan — whether a testamentary trust within a will or a revocable living trust — can specify a guardian, stage distributions, and avoid the court-oversight burden entirely.
What the Probate Process Actually Looks Like
Intestacy does not avoid probate. New Hampshire estates generally pass through some form of probate administration whether or not there is a will. According to the New Hampshire Circuit Court Probate Division, the process involves court appointment of an administrator, creditor notification, asset inventory, debt payment, and final distribution — a process that typically takes six to twelve months for straightforward estates and considerably longer where disputes arise.
Court Appoints an Administrator
Without a named executor, the probate court appoints an administrator — typically the surviving spouse or adult child — who must post a bond equal to the estate’s value before acting.
Assets Are Frozen
Until a Letter of Authority is issued, family members cannot access bank accounts, sell property, or pay estate bills — including funeral expenses.
Creditors Are Notified and Paid First
All valid debts — medical bills, mortgages, credit cards, taxes — are satisfied before a single dollar passes to heirs. What heirs receive is what remains.
Estate Distributed by Statute
Whatever remains is distributed according to the RSA 561 formula — not according to your wishes, your relationships, or your family’s actual circumstances.
The Cost of Intestacy vs. the Cost of a Will
The American Bar Association consistently notes that the cost of dying without an estate plan — court fees, administrator bonds, guardianship proceedings, and potential family disputes — substantially exceeds the cost of a comprehensive estate plan. At Granfield Legal Services, estate planning is priced on a flat-fee basis: you know the full cost before committing to anything, with no hourly billing.
For a broader overview of estate planning instruments, see our post on understanding revocable living trusts in New Hampshire and how probate works in New Hampshire.
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This article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary — always consult a licensed attorney before making estate planning decisions. No attorney-client relationship is formed by reading this post. Attorney advertising.
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