Devine Millimet

Q: How do I know whether I need a will, trust, or both—and what factors should guide that decision?

A: A will is foundational to any estate plan. Every estate plan should include a will to designate guardians for minor children, name an executor, and direct asset distribution. However, a will alone requires probate, meaning your estate passes through the public court system. The probate process involves court supervision, potential delays and public disclosure of your assets and beneficiaries.

On the other hand, assets properly titled in the name of a revocable trust generally avoid probate, allowing for a more efficient and private transfer of property. Unlike a will, a trust is not filed with the court and remains private, while providing seamless incapacity planning. You can serve as the trustee during your lifetime and designate successor trustees to manage assets if you become unable to do so, avoiding the need for a court appointed guardian or conservator.

For many individuals, executing both a will and trust is often recommended. You can establish a revocable trust during your lifetime and execute a “pour-over” will that directs any assets not already in trust to be transferred to the trust at death. New Hampshire law expressly authorizes pour-over wills. This combination ensures all assets ultimately pass through your trust while capturing any property inadvertently left outside it.

Key factors to consider include the size and complexity of your estate, your desire for privacy, whether you own real estate in multiple states, and your need for ongoing asset management during incapacity.

The right choice, whether a will, a revocable trust, or both, depends on your goals for probate avoidance, privacy and incapacity planning. Consulting with a New Hampshire estate planning attorney can help you determine the approach that best fits your estate planning needs.

— Kayla P. Ryan, Attorney, and Sarah Ambrogi, Of Counsel, Devine Millimet