Shaheen & Gordon
Q: What happens if you die or become incapacitated without an estate plan?
A: Most people think estate planning is about what happens after they die. However, this assumption fails to consider the importance of planning for life events prior to death.
If you become incapacitated, for instance, without a durable power of attorney or advance directive, your family or close friends cannot simply step in and make financial or medical decisions for you. They may instead have to petition the court to appoint a guardian — a public process that can be expensive, time-consuming, and emotionally draining at precisely the wrong time. Worse yet, the person appointed may not be the individual you would have chosen to act on your behalf.
If you are unable to speak for yourself, a durable power of attorney allows you to name someone you trust to handle financial and legal matters, and an advance directive allows you to appoint a healthcare agent to make medical decisions and communicate your wishes to your doctors. These relatively simple documents often prevent the need for a guardianship altogether.
Planning for death is equally important. Without a will or trust, New Hampshire’s intestacy laws — not you — determine who receives your assets. While those laws provide a default distribution scheme, they rarely account for the countless unique family dynamics that exist today. Your loved ones may also face additional court proceedings, delays, and unnecessary legal fees before assets can be distributed.
The bottom line? Estate planning isn’t about expecting the worst — it’s about making life easier for the people you love when they need it most.
Q: How do I know whether I need a will, a trust, or both—and what factors should guide that decision?
A: Nearly every adult should have a will, and many benefit from having both a will and a trust. A will details who should receive your property, who should administer your estate, and, importantly for parents of minor children, who should serve as a guardian. Without one, the state has already written a plan for your assets through New Hampshire’s default intestacy laws — and it may not reflect what you would have wanted.
A trust is different. Rather than taking effect after death, a trust operates during your lifetime and can continue seamlessly if you become incapacitated. Assets titled in the trust generally avoid probate, which can reduce court involvement, maintain privacy and simplify administration of your estate. Trusts can also be especially helpful for blended families, business owners, real estate holdings, beneficiaries with special needs or anyone seeking additional flexibility and control over how assets are managed and distributed.
The best estate plan isn’t necessarily the most complicated one — it’s the one that’s tailored to your goals, family and assets. For some, that’s a well-drafted will and living documents. For others, adding a trust provides additional benefits. An experienced estate planning attorney can help determine which approach makes the most sense for you.
— Bryan Townsend II, Esq., Shaheen & Gordon, P.A., Concord, and Jocelyn P. Frawley, Esq.,Shaheen & Gordon, P.A., Manchester
