April 18, 2024


Built General Tough

Estate plan is legal proof of your wants

No one with even the most basic knowledge about estate plans would dispute that all New Hampshire individuals who have assets that they want to pass to their children or others when they die need such a plan. This undoubtedly means hundreds of thousands of New Hampshire people, including many readers of this column. But estate plans don’t just address property transfers on death; as discussed below, they also address disability issues and other critical issues that can arise during life.

However, national statistics suggest that only about 30% of Americans who need estate plans actually have them. Why not? I suggest four main reasons:

■For many people, the reason is simply that they don’t know what estate plans are and why they need them; or they think that only rich people need these plans.

■For people who know about estate plans but don’t have them, the main reason is that they know that if they’re going to develop one, they’ll have to spend time thinking about their own death. Most people would prefer to avoid this subject.

■Even people who know they need estate plans, especially if they are not elderly, tell themselves they don’t need one now; they’ll get one later.

■Finally, people who know about estate plans may assume that hiring a professional to work with them to develop one will cost more than they can afford. But, for a reasonably comprehensive set of estate planning documents by a competent estate planner for an unmarried individual or a married couple with a fairly simple estate, the fee is likely to be quite affordable; and having an estate plan will give these individuals a great new peace of mind. Furthermore, many estate planners are willing to create simplified estate plans for their clients if necessary and to provide generous installment arrangements to address fees.

In the paragraphs below, for those who don’t know about estate plans, I’ll briefly explain them.

What is an estate plan?

Estate plans are, in essence, sets of legal documents that address four main questions:

■First, to whom do I want my assets to go upon my death?

■Second, if, because of an illness or accident, I become comatose, what emergency health care measures do I want?

■Third, if I become unable to manage my health care, who do I want to manage it for me?

■Fourth, who do I want to manage my financial and other non-healthcare issues if I’m unable to manage them?

For many New Hampshire adults, an estate plan will require only the following five main documents:

1. It will require a revocable trust. This is because, if you’re a New Hampshire resident and all you have is a will (or no will at all), your children or other successors, subject to certain narrow exceptions, will have to undergo New Hampshire probate before they can receive distributions of your assets. New Hampshire probate is a complex legal process in which they must seek judicial approval to receive these distributions. A New Hampshire probate process can easily take a year and require a thousand dollars in court and legal fees (and sometimes tens of thousands of dollars).
However, if you have a revocable trust, your successors can greatly abbreviate the New Hampshire probate process and distribute your assets promptly and just as you wish.

2.Your estate plan will require a will that specifies to whom your assets will go upon your death. However, if you have a trust, you’ll only need a “pour-over” will. This is a will that will cover assets that, for some reason, aren’t covered in your trust.

3.You’ll need a “living will.” This is a document that specifies the medical care you will want if you’re comatose and facing imminent death.

4.You’ll need a health-care power of attorney that appoints a spouse or other person to decide medical issues affecting you that, because, because of dementia or otherwise, you yourself cannot decide.

5.You’ll need a power of attorney to handle all your non-health affairs if you’re unable to handle them. These may include your finances, your living arrangements, the disposition of your property, and other issues not covered by the above health-care power of attorney.

In a subsequent column, I’ll explain why estate plans are particularly important for New Hampshire business owners. As you may know, I’m not only an estate planner but also a business lawyer. I hope my business clients won’t mind my disclosing that at least half of them, when they call me for business assistance, lack estate plans.

A final point: Despite anything you might infer from this column, estate planning is an easier process for individuals and couples who need them than you might think; and especially for couples with children, it’s deeply rewarding.

John Cunningham is a Concord tax and business lawyer. He has published “Limited Liability Company Operating Agreements” and “Maximizing Pass-Through Deductions under Internal Revenue Code Section 199A”. Both are the leading books in their fields.John Cunningham is a Concord tax and business lawyer. He has published “Limited Liability Company Operating Agreements” and “Maximizing Pass-Through Deductions under Internal Revenue Code Section 199A”. Both are the leading books in their fields.