Why You Might Want to Create a Revocable Trust

In terms of avoiding probate, it is true that there are other methods you might consider, such as assigning assets to designated beneficiaries, or a simply establishing joint ownership. 

However, the advantage of a revocable trust for probate avoidance is that, when it is established and properly funded, it ensures a consistent estate plan. 

Too often, when people rely on designated beneficiaries and joint ownership, the result is a plan that is skewed unintentionally toward one or another beneficiary. The reason for this is that if you have multiple beneficiary designations, and you change one but forgot to change the others, you may create a different distribution than the one you had in mind. By contrast, with a revocable trust, the change can be made once (by means of an amendment to the trust) and this will affect all assets.

Other reasons for creating a revocable trust include:

• Minimizing estate taxes
• Keeping assets available for children until they reach adulthood 

Can Probate Be Avoided?

People often ask about if and how probate can be avoided, and there are a number of different ways of holding assets that will avoid probate. 

The simplest is probably just joint ownership, such as a piece of real estate held as joint tenants or a bank account held jointly. This type of assets will pass automatically to the other joint owner when the first owner dies – but keep in mind, there will still be a probate at the second death. 

Another way to avoid probate is by assets which have 'designated beneficiaries', such as an insurance policy or a retirement plan (such as an IRA). These assets will pass to those beneficiaries when the owner of the asset dies.

Still another way to avoid probate is to hold assets in a revocable trust.

Is Your Trust "Bucket" Funded?

To avoid probate many families have their estate planning attorney create a trust, which is like a bucket a person or family carries through life. 

While carrying the “trust bucket” they can decide what they’d like to place into it, thus “funding” the trust. They can also decide who should carry the bucket for them should they become unable to do so, and also how the assets within the bucket should be distributed when they die.

If a trust is not funded when someone dies, then the probate court must decide how to distribute any assets involved and the family will incur the costs associated.

Read case study...

New in NH Law

Real estate transfer taxes are no longer imposed for transfers into or out of revocable trusts where the ownership interests of the transferor and transferee are identical. (RSA 78-B:2 (XXII))

Apparently, however, the NH Department of Revenue Administration and the county registries have not been updated regarding this change. We will keep you informed and are hopeful that all applicable parties will soon be on the same page.

Reflections on Freedom from an Estate Planning Perspective

As we approach the 4th of July and are thinking about the celebration of the Declaration of Independence, we would also like to reflect briefly on freedom from an estate planning perspective.

• Freedom to choose who you want to act on your behalf when you no longer can, instead of the Court deciding who this person(s) will be.
• Freedom to allocate assets to whomever you want, instead of the State of New Hampshire deciding for you.
• Freedom to minimize taxes, instead of burdening beneficiaries who then face adverse tax implications.
• Freedom to protect loved ones and to make their lives easier and less costly in the event of a disability or of a death, rather than having them involved with the Court and other bureaucracies.

Be proactive and celebrate the freedom to plan for yourself and for those dearest to you. Wishing you a happy and safe 4th of July and a wonderful summer!

To Fund or Not to Fund? (April Fools!)

Instead of telling you how to avoid probate, in honor of April Fools Day, we decided to provide you with a list of how to guarantee that your assets will go through the probate process when you pass away. 

• Own everything in your name only
• Fail to name beneficiaries on all of your accounts, no transfer on death designations either
• Don’t own anything jointly, and if you do own real estate jointly, have it owned as tenants in common (note that only sometimes does owning real estate as tenants in common make sense)
• Create a trust, but don’t put anything in it. We lawyers call it “the funding of your trust.” If you don’t put anything in your trust, there is nothing for your successor Trustee to distribute and then the assets go through probate. Your estate planning attorney should assist you with the funding of your trust.

Estate Plan Updates?

People often ask about the frequency with which their estate plans should be reviewed or updated.

It is best to review an estate plan at least every five years so that documents can be updated to incorporate any changes in circumstances as well as the ever-changing law.

There are a number of situations that may indicate a need for new or amended estate planning documents, including:

• Changes in health
• Changes in marital status
• Births and deaths
• Changes of mind with respect to a beneficiary, agent, executor, trustee or guardian
• Property acquisition or relocation to another state
• Changes in business interest or wealth

Avoiding Probate...

There are a number of different ways of holding assets that will avoid probate. 

The simplest is probably just joint ownership, such as a piece of real estate held as joint tenants or a bank account held jointly. This type of assets will pass automatically to the other joint owner when the first owner dies – but keep in mind, there will still be a probate at the second death. 

Another way to avoid probate is by assets which have designated beneficiaries, such as an insurance policy or a retirement plan (such as an IRA). These assets will pass to those beneficiaries when the owner of the asset dies.

Still another way to avoid probate is to hold assets in a revocable trust.

What is Probate?

Some time ago, one of our posts referenced the reality that estate planning is important for people of "all ages," not just for those in there sixties.

But taking a more general view, people often ask, "What is probate, anyway?"

Very simply, probate is the process by which a person's assets change hands at their death. If a person dies and his or her will says that all assets are to go to the children, the children cannot take possession of those assets until the will and other papers have been filed with the probate court, and the probate court has given its approval.

The whole process takes at least six months, and often more.

Funding Your Living Trust

People often create living trusts to help avoid probate.

However if a trust is not funded on a timely basis, the family may still need to appear before the court, which of course is what they were hoping to avoid in the first place!  Other complications ranging from time delays, bonding and filing fees or additional legal fees may also arise. 

Unfortunately, in many cases the funding step is the responsibility of the family rather than their estate planning attorney. If so, it is important to realize that "creating" the trust is only the beginning, and the funding step should be taken seriously and be completed on a timely basis.

Avoiding Probate Part 2: Revocable Trusts

As noted in our February 13 post, there are certain methods that can help you avoid probate. An additional method is to create a revocable trust.


One advantage of a revocable trust for probate avoidance is that, when it is established and properly funded, it ensures a consistent estate plan. Too often, when people rely on designated beneficiaries and joint ownership, the result is a plan that is skewed unintentionally toward one or another beneficiary. The reason for this is that if you have multiple beneficiary designations, and you change one but forgot to change the others, you may create a different distribution than the one you had in mind. 


By contrast, with a revocable trust, the change can be made once (by means of an amendment to the trust) and this will affect all assets.

Can Probate Be Avoided?

There are a number of different ways of holding assets that will avoid probate. 


The simplest is probably just joint ownership, such as a piece of real estate held as joint tenants or a bank account held jointly. This type of assets will pass automatically to the other joint owner when the first owner dies – but keep in mind, there will still be a probate at the second death. 


Another way to avoid probate is by assets which have 'designated beneficiaries', such as an insurance policy or a retirement plan (such as an IRA). These assets will pass to those beneficiaries when the owner of the asset dies.


Still another way to avoid probate is to hold assets in a revocable trust. More on this in our next post...