In previous posts, the Estate Planning 101 series has introduced you to the basics of wills, trusts, and New Hampshire’s intestacy statute, which determines the distribution of a person’s estate when he dies without a will. This post “puts it all together” to demonstrate some of the key differences distinguishing these estate planning options.
Broadly speaking, the intestacy statute offers the least amount of control one can have over the administration and distribution of an estate. A trust provides the most control, as the settlor can manage it both in life and after death, while wills are a good “middle ground.” A will allows a person to control what will happen to his or her estate after death, but a will cannot be used to manage assets during a person’s lifetime. When assessing your estate planning needs, consider how much control you think you need; for some, the default provisions of the intestacy statute may be identical to their wishes (i.e. leaving everything to a spouse but providing for living parents or children), but others may desire more nuance and detail in their plans.
As discussed in previous entries, a will becomes public record when it is filed with the court. The intestacy statute is equally open to public scrutiny; while there is no formal document for the public to read, a probate record will be created which details the administration and distribution of the estate. A trust, in contrast, remains confidential; usually only those who are involved in the trust—namely, the settlor, trustee, and beneficiaries—will know the details of the trust.
The Probate Process
Another consideration is the probate process, which can be time-consuming and, in some cases, costly. The probate process ensures that the estate is distributed in conformity with the will or the intestacy statute. It also addresses outstanding claims from creditors, so some people may enjoy the extra assurance and safeguards created by the probate process. However, the probate process can delay the distribution of the estate to friends and loved ones.
Trusts by-pass the probate process and are administered under the terms of the trust; in most cases, property is already in the trust, and thus the trustee’s only job is to begin managing it in accordance with the trust terms.
These are only a few of the distinguishing characteristics between these estate planning options, and they are not exclusive. Many people have wills that “pour-over” into a trust, and others create trusts that are distinct from their wills to ensure that assets are used for a specific purpose. It is important to work with an attorney when figuring out which options best suit your needs.
To discuss your specific needs, please contact any of the trust and estate attorneys at Cleveland, Waters and Bass who would be happy to help you navigate these choices and create an estate plan that gives you confidence and peace of mind.