In order for a will to be valid in New Hampshire, the will needs to be made by an individual, called a “testator,” of at least 18 years of age and of sane mind, it needs to be written, it needs to be signed by the testator or at his express direction and in his presence, and it needs to be signed by 2 or more credible witnesses who attest to the testator’s signature. If any one of these requirements is not met, then the will is not valid.
New Hampshire allows its residents to make a self-proved will, which means that when the testator’s will is submitted to the Probate Court after he dies, the Court can accept the will without having to contact the witnesses and have them testify in court that the testator was 18 and of sane mind at the time of signing. By not having a self-proved will, you are making it more difficult, timely, and costly for your executor, who is in charge of administering your estate after you die because she will have to jump through more hoops.
For the will to be self-proved, the signatures of the testator and the witnesses on the will need to be followed by a sworn acknowledgement, otherwise known as a self-proving affidavit, that is made in front of a Notary Public or Justice of the Peace or another person who is authorized to administer oaths. This acknowledgement needs to exactly state the following:
- The testator signed the instrument as the testator’s will or expressly directed another to sign for the testator.
- This was the testator’s free and voluntary act for the purposes expressed in the will.
- Each witness signed at the request of the testator, in the testator’s presence, and in the presence of the other witness.
- To the best of my knowledge, at the time of the signing the testator was at least 18 years of age, or if under 18 years was a married person, and was of sane mind and under no constraint or undue influence.
The Notary Public then needs to sign and stamp her seal, acknowledging that these 4 requirements have been met.
It is not required that the testator sign his will in front of the witnesses, but it is required that both witnesses sign their names in front of the testator. It is best practice to have everybody in the same room while each person signs, including the Notary Public.
If you have questions on whether or not your will is or will be valid, you should consult an attorney.
Andrea Nelson is an attorney at Hamblett & Kerrigan who focuses her practice in the area of estate planning, including wills, trusts, health and financial powers of attorney. Attorney Nelson can be reached at [email protected].