Wills and Trusts FAQs

People offer all sorts of explanations for why they have yet to create even the most basic estate plan. The simple truth is that every adult can benefit from having an estate plan in place, without regard to age, marital status, or net worth. At a bare minimum, executing a Will ensures that the State of New Hampshire will not determine what happens to your estate assets and will avoid the possibility of expensive – and potentially destructive – litigation after your death.

This is a very common mistake people make. In today’s electronic age, it is easy to find just about any DIY legal form you might need. Although it is understandable that you might see an opportunity to save time and money by using one of these forms, the reality is that you are more likely to cost your loved ones a considerable amount of unnecessary time and money when it comes time to probate your estate. DIY Will forms are notorious for having mistakes, errors, and omissions that lead to protracted litigation during the probate of an estate. Your Last Will and Testament is something you want done right – the first time. To make sure that is the case, work with an experienced estate planning attorney during the creation and execution of your Will.

Shortly after your death, the individual appointed as the Executor of your Will must submit the original Will to the appropriate court for probate. The Executor is also required to notify beneficiaries and heirs of the estate as well as creditors that probate is underway. Creditor claims are reviewed and paid if approved. Any federal (and/or state if applicable) gift and estate taxes due must also be paid. Eventually, the terms of your Will are used to determine how the remaining estate assets are distributed.

In its most basic, a trust is a relationship whereby property is held by one party for the benefit of another.  A trust is created by a Settlor, also referred to as a Grantor or Maker, who transfers property to a Trustee. The Trustee holds that property for the trust's beneficiaries. The beneficiaries may be current and/or future beneficiaries. Although you never have thought about it, you likely enter into trust agreements on a regular basis. Imagine, for example, that you ask your brother to hold onto your valuable collection of rare coins until your nephews are old enough for them at which time you want your brother to give the coins to them. In that scenario, you have created a trust agreement wherein you are the Settlor, your brother is the Trustee, and your nephews are the beneficiaries of the trust.

All trusts are can be broadly divided into two categories – testamentary and living trusts. A testamentary trust is one that does not become active until the death of the Settlor and which is typically triggered by a provision in the Settlor’s Last Will and Testament. A living trust, also referred to as an “inter vivos” trust, activates when all formalities of creation are complete, and the trust is funded.  Living trusts can be further divided into revocable and irrevocable trusts. A revocable living trust can be revoked or terminated by the Settlor at any time and for any reason whereas an irrevocable living trust cannot be revoked or terminated by the Settlor for any reason.  Because a testamentary trust is triggered by a provision in a Will, and a Will can always be revoked up to the point of death of the Testator, a testamentary trust can always be revoked as well.

Overall, the Trustee is responsible for protecting and managing the trust assets and administering the terms of the trust. Some of the duties of a Trustee include:

• Understanding and following the trust terms
• Communicating with beneficiaries
• Managing trust assets
• Investing trust assets using the “prudent investor standard”
• Keeping detailed records of trust business
• Distributing assets pursuant to the trust terms
• Preparing and filing trust taxes

The Settlor of a trust chooses the Trustee. This often results in a common mistake – appointing a friend, family member, or spouse as the Trustee of a trust when that person is not really qualified to be the Trustee. Understandably, people often think that appointing someone they trust to be the Trustee of their trust makes sense. While you certainly should trust the person you appoint as your Trustee, the individual should really have a legal background as well as some experience in finance given the types of duties the Trustee will have when administering the trust. In fact, for larger, more complex, trusts, it is often best to appoint a professional Trustee.

A trust can help achieve a wide range of estate planning goals, including:

• Avoiding probate
• Incapacity planning
• Asset protection
• Medicaid planning
• Planning for parents with minor children
• Special needs planning
• Pet planning

Yes!  Although you may decide to use a trust as your primary method of distributing your estate assets, you should still have at least a “Pour Over Will” in place. A Pour Over Will is used to catch any assets that are inadvertently left out of the trust because they were purchased just prior to your death or were simply overlooked. Without a Pour Over Will, assets left out of the trust could cause your estate to wind up in intestate administration.