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Life-End Planning Straight and Simple

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A. What do you need to get done before you get to the point where you are not physically or mentally able to sign paperwork or make decisions for yourself? And why?  You need three (3) documents:

  1. You need a Healthcare Power of Attorney (sometimes called an “Advance Directive”). This is a document that tells your medical providers who you have authorized to make medical decisions for you in the event you are unable to make them for yourself.  This includes all medical decisions from what medication or procedures you will have (or not have) to what life-saving procedures you want to be employed (or not to be employed), including “Do Not Resuscitate” orders.  This is a quality-of-life document; and it is probably the most important end-of-life document you should sign.
  2. You need a General Durable Power of Attorney. This is a document that allows the person you have authorized to handle your financial affairs in the event you are unable to do so yourself. You can make this document as broad or as limited as you want. It can cover everything from signing checks to selling your house and managing your stock and bond portfolio.  This document is important so that your assets are protected, and your bills are paid in the event you are unable to do so.  Make sure you trust the person you name in your General Durable Power of Attorney, because once you sign and give the power of attorney to the person you have named in your General Durable Power of Attorney, that person will have considerable authority over everything that you own. Many clients have their lawyer hold their General Durable Power of Attorney pursuant to a letter of instruction that states when the lawyer is authorized to provide the document to the person named in the General Durable Power of Attorney.
  3. You need a Will. Your Will is the document that states what will happen to your assets when you die.  If you don’t have a Will, your assets will be split between your spouse and your children, if you have a spouse and/or children; and, if you do not, then between your other relatives, according to New Hampshire law.  A Will can be particularly important in the “blended family” situation where it may be less clear how you want your assets divided among the children of both spouses.  A Will gives you the opportunity to name an Executor, so you know who will run the show after you die; and, for families with younger children, a Will also gives you the opportunity to name a Guardian or Guardians for your minor children.

B. Should you have a Trust?

  1. If you are rich, you should have a Trust.
  2. If you want to protect your assets from going to the State if you go into a nursing home, then you should see a lawyer who specializes in that kind of protection, which may include making a Trust.
  3. If you are concerned about paying taxes, then you should see a lawyer who specializes in estate tax issues; and this may involve making a Trust.
  4. What if you are not so rich and are not concerned with protecting your assets from going to the State, or paying taxes, should you have a Trust? Well, you should at least consider it; and here are some of the things you should consider:
  • Do you want to make it relatively quick and easy for the people who will inherit from you? If the answer is yes; and you have enough assets, then you should have a Trust.  With a Will, it will probably take a year or more between the time you die and the time the persons inheriting from you will receive their money; you will have to go through “Probate”, which can be complicated; and the distribution of your assets will be controlled by the Probate Court and potentially open to the public to review.  With a Trust, you avoid these concerns; and your assets can be distributed to the persons inheriting from you quickly and privately, without involving the Probate Court.
  • Does a Trust cost more? Yes, a Trust costs more than a Will; and you should ask how much more. Does a Trust cost more than distributing your assets through Probate Court? That depends on what you own and how you own it; and you should ask how the costs compare.
  • Are you comfortable transferring your assets into a Trust? You (and typically your spouse) will control the Trust until you (both) die, but your assets (house, bank accounts, stock accounts, etc.) will be held by the Trust.
  • Do the people inheriting from you need their inheritance quickly? If so, a Trust is better than a Will.
  • What kind of assets do you have? Assets like an ongoing business are more difficult to transfer by Will and going through the Probate Court.  Again, something to discuss with your lawyer.
  • Do all your assets have to go into the Trust? Some assets do not usually get transferred to the Trust.  Typically, these are assets that have beneficiaries, like insurance policies, 401K accounts, IRAs, and the like.
  • If you are going to have a Trust, it is important that you actually transfer your assets into the Trust fairly promptly. If, when you die, there are assets that have not been transferred into the Trust, your executor will need to “probate” those assets to get them into the Trust; and you will have not accomplished some of the goals you set out to accomplish by having a Trust.

What do I mean by “not so rich”? This is, once again, something to discuss with your lawyer.  If you have no real estate, and you have complete trust in one of your relatives, you can do what we call a “poor (wo)man’s Will”.  You put all your assets in joint names and have beneficiaries on all assets that allow beneficiaries; and you trust your estate to be divided as you have agreed with your trusted relative.  This is not a recommended approach to estate planning.

What about the car (or anything similar with a title)? New Hampshire law allows a spouse to take title to a family car owned by the other spouse without having to go through probate.  However, if you are not going to have a spouse who survives you, consider putting your car in joint names with someone else.  And put anything else that has a title (motorcycle, boat, etc.) in joint names with someone else, or in the Trust.  Otherwise, you may find yourself in the position of having to go through the probate process for no other reason.

The statutory formats for Healthcare Powers of Attorney and for General Durable Powers of Attorney have changed recently in New Hampshire; and if you are going to have a Trust, your General Durable Power of Attorney needs to be consistent with the Trust.

The Probate Court is now completely electronic and somewhat less friendly than in the past.   Moreover, since COVID the Probate Court has become slower; and you need to know the shortcuts to take to speed up the process.

In the past, I would have said there is no need for a Trust, except in special circumstances.  Today, if you can afford it, you should have a Trust.

Seek Legal Advice

Contact Borofsky, Amodeo-Vickery & Bandazian, P.A. when you want to review your end-of-life documents (Advance Directives), update your Will, or consider a Trust, call us at (603) 625-6441 or send us an email to schedule a consultation.

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