Last Wills & Revocable Living Trusts

"Estate planning is an important and everlasting gift you can give your family. "

Suze Orman
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Give the Gift of Peace of Mind

The purpose of both a Last Will and a Revocable Living Trust is to provide explicit instructions to your loved ones on what should happen to your assets after you pass away. If you don’t provide any instructions then the State of New Hampshire will decide for you by following what’s written in New Hampshire law RSA § 561:1.

Additionally, you can specify in your Last Will who you would like to take care of your minor or disabled children (and your pets) if you pass away. This is one of the reasons why you should have a Last Will, even if you also have a Revocable Living Trust.

Avoid Probate

The big advantage of having a Revocable Living Trust is that, so long as your Trust is properly set up and funded during your lifetime, your loved ones won’t have to go through most of the probate process. Probate is a legal process where the court oversees the distribution of your assets to your beneficiaries. Learn more

Choose Who You Want to Be In Charge

Both a Last Will and a Revocable Living Trust allow you to decide now who you’d like to be in charge of making sure the instructions in your Will or Trust are properly followed after you pass away.

The person in charge of your Last Will is called an Executor, whereas the person in charge of your Revocable Living Trust is called a Trustee. If you don’t have a Will or a Trust, then a person called an Administrator will be in charge of the probate process. If you don’t choose who will be in charge, then it’ll be up to your next of kin and the probate court to decide who will be.

Keep Your Personal Wishes Private

When a person passes away, their Last Will must be filed with the probate court by law. The probate court will then automatically send a copy of the Last Will to certain next of kin. Additionally, once a Last Will is filed it becomes a public document that anyone can get a copy of by requesting it from the court.

In contrast, a Revocable Living Trust is a private document. The Trust document doesn’t get filed with any court when the person who created the Trust passes away. The only people who are entitled to get a copy of the Trust are the people who are named as beneficiaries in the Trust document.

Frequently Asked Questions

What's the difference between a Last Will and a Revocable Living Trust?

Both a Last Will and a Revocable Living Trust give your loved ones instructions on what should happen to your property when you pass away. However, a Revocable Living Trust allows your loved ones to avoid most of the probate process. Learn more

Are there different types of Trusts?
Yes, there are many different types of Trusts! A Revocable Living Trust is the main type of Trust used for estate planning purposes because it allows your loved ones to avoid most of the probate process, while not putting any restrictions on how you can use the property in your Trust during your lifetime. "Revocable" means that you can change or even terminate your Trust completely. "Living" means that you create the Trust during your lifetime.

Unfortunately, New Chapter Legal does not currently offer any other type of standalone Trust. But I do offer special provisions and language for leaving assets to minor children or someone with special needs. If you're looking to plan for future Medicaid eligibility or have assets worth over $5 million, then you may benefit from having a different type of Trust that New Chapter Legal doesn't offer. If you need something that I can't offer, I'm happy to provide referrals to another attorney.
Can I make special provisions for giving assets to minor children or someone with special needs?

Yes, New Chapter Legal offers special provisions and language for minor beneficiaries in Last Wills, and for both minor and special needs beneficiaries in Revocable Living Trusts. This is especially important for people with special needs who are receiving need-based benefits that they must continue to be eligible for.

Can I make special provisions for a person who is an adult and doesn't have special needs, but needs help managing the assets I want to give them?

Yes, New Chapter Legal offers special provisions and language in Revocable Living Trusts for adult beneficiaries that shouldn't get everything you leave them all at once. Instead, their share will be managed by a Trustee of your choosing, who will only give funds to the beneficiary for their medical, educational, and other important needs.

What does an Executor do? What does a Trustee do?

An Executor is in charge of managing the probate process and making sure that the instructions in your Last Will are followed. Whereas, a Trustee is in charge of administrating your Trust and making sure the instructions of your Trust are followed. Both an Executor and Trustee have similar roles, and if you have both a Last Will and a Revocable Living Trust then the same person must be both your Executor and Trustee.

What if the person I pick as Executor or Trustee can't or doesn't want to be in this role?

If a person doesn’t want to be a Trustee or Executor, then they can decline to take on the role or resign from the role if they've initially taken it on. No one is ever forced to be an Executor or Trustee. Since the future is uncertain, it's important to list a few backups for your first pick of Executor or Trustee.

Can I have two Executors or two Trustees who are both in one role at the same time?

Yes, you can have Co-Executors or Co-Trustees. Just keep in mind that both your Executors or Trustees will need to work together.

Can I modify my Last Will or Revocable Living Trust after I create it?

Yes, you can modify your Last Will by creating a separate document called a Codicil. You can modify your Revocable Living Trust by creating a separate document called an Amendment. You could also entirely revoke your Last Will or Revocable Living Trust, so that they would no longer be in effect. You're never locked into your estate plan and your documents can always be changed if you wishes change.

Will I have to pay a Trustee to manage my Revocable Living Trust?

During your lifetime you are the Trustee of your Revocable Living Trust. Therefore, you're in charge of managing your own Trust. However, there's nothing special you need to do during your lifetime to manage it. You'll continue to use and do what you want with the property in your Trust, just as you can now. Once you pass away a Successor Trustee of your choosing will take over. The Successor Trustee may take a reasonable fee for their time and expense required to follow the instructions you give in your Trust. These reasonable fees are paid from the assets in your Trust.

If I have a Revocable Living Trust, do I also need a Last Will?
Yes, you should still have a special type of Last Will, called a Pour Over Will, even if you have a Revocable Living Trust. It's called a Pour Over Will because its purpose is to "pour" any assets you forgot to put in your Trust into your Trust when you pass away. If you have a Trust then the instructions on what you want to happen to your assets will be in the Trust document. The Trust instructions only apply to assets that are in your Trust.

For example, if your Trust says that your nephew gets your car, but you forget to put your car into your Trust, then your nephew can't get the car unless the car somehow gets into your Trust. The Pour Over Will solves this problem by making sure the car gets into your Trust.

Additionally, New Hampshire law RSA § 463:5 states that you must specify in your Last Will who will take care of your minor children.
Will I have to pay more or less taxes if I have a Revocable Living Trust?

No, your tax liability will remain the same as whatever it is now. The IRS will disregard your Revocable Living Trust and will still consider you to be the owner of the assets in your Trust. If the assets in your Trust generate income, such as interest or dividends, then you must report this as personal income on your taxes.

If my property is in my Revocable Living Trust, will there be restrictions on what I'll be able to do with it?

No, you’ll be able to do anything with your property that you can do now. During your lifetime you’ll be both the Trustee and beneficiary of your Trust. This means that you'll still legally own your property, and you’ll be able to use and do what you want with your property.

How do I put the things I own into my Revocable Living Trust?

Generally, you put an asset into your Trust by making the Trustee of your Trust, which will still be you, the legal owner of the property. I'll provide you with detailed instructions on how to put different types of property you might own into your Trust. You'll also be able to transfer your tangible personal property and any New Hampshire real estate you own into your Trust as part of the estate planning process with New Chapter Legal.

Can I avoid probate without having a Revocable Living Trust?
Yes, it's certainly possible. Property with a beneficiary designation (e.g., life insurance), or a payable on death or transfer on death designation do not go through probate. Additionally, property you own jointly with another person doesn't go through probate when one joint owner passes away.

However, not all property allows you to designate a beneficiary, and making someone a joint owner of your property may have more drawbacks than advantages. For instance, all owners of a bank account have the power to withdraw all funds in the account if they wish to. Additionally, both joint owners' creditors can reach and take the jointly owned property. Plus, if none of your designated beneficiaries survive you, or if the other joint owner passes away before you, then that asset will still go through probate when you pass away.

Whether or not you choose to create a Revocable Living Trust, you'll be advised on what steps you should take to make sure your assets pass smoothly and simply.
If I put my house into my Revocable Living Trust, will I have to refinance my mortgage?
No, you won’t need to refinance your mortgage. Your liability for your mortgage, or any other secured interest on your property, will remain the same as whatever it is now.

However, you should reach out to your mortgage company or creditor to let them know that you put the property into your Trust. Additionally, if you do decide to refinance your mortgage in the future, then you may need to temporarily take the property out of your Trust to do so.
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