Common Will and Trust Provisions for Fiduciaries

When you create your will or a trust, you’ll be able to appoint who you choose in the most important role of fiduciary. For a will, this would be your executor or personal representative. For a trust, it would be your trustee.

You can also discuss with your attorney the possibility of using specific terms within the respective document to give your agents additional authority.

One of the great things about creating your own will or drafting a trust with the help of an attorney or is that you decide what belongs in it. So long as the plan is compliant with state laws you are eligible to craft individual provisions. That being said, there are several provisions that appear in the most common trusts and wills, including the power to:

  • Sell or exchange property
  • Retain assets
  • Continue business ventures
  • Satisfy and settle claims
  • Pay assessments or taxes
  • Prosecute, negotiate or defend claims
  • Allocate items of income
  • Borrow funds with or without security
  • Sub divide, repair, lease, improve or manage real estate
  • Make distributions to beneficiaries in cash or in kind

The laws that govern trust and estate administration are designed to ensure that the responsibility of trust provided through fiduciary rules are not violated. Furthermore, your trust or will documents might limit or broaden the authority given to a fiduciary. You’ll want to speak to a knowledgeable estate planning attorney if you intend to enhance or diminish their potential authority levels.

Working with a lawyer to create your trust or will is strongly recommended; there are many things to think about in that process and having a lawyer’s help is vital for supporting you as you answer those key questions. Our NH estate planning law firm is here to help you.



What You Need to Know About Creating Your Will in New Hampshire

All states have specific laws about what counts as a legally valid will and it is important to be aware of the specifications before crafting your own will. A consultation with an experienced and dedicated New Hampshire estate planning lawyer can help you avoid many of the most common missteps that could lead to will contests and will challenges in the future.

In order to finalize a will in New Hampshire, you must sign the will in front of two witnesses and the witnesses must sign your will in front of you, per New Hampshire RSA 511:2. It’s a good idea to have a lawyer in your corner from the time you decide to draft a will so that you feel confident all your concerns are covered.

You do not have to have your will notarized in New Hampshire in order for it to be legal. New Hampshire does enable you to use a self-proving will but if you intend to go this route you will need to go to a notary to do that.

A self-proving will is often recommended to speed up the process of probate because the court is able to accept the will as legally valid without contacting the witnesses who were present at the time you signed it.

You will need to visit your notary and sign an affidavit stating who each of you are and that each of you knew you were signing a will. If you have questions about creating or revoking a will in New Hampshire, it’s advisable to speak first with an experienced estate planning lawyer.


Can Anyone Serve as the Executor of a New Hampshire Estate?

One of the most important reasons to create a will, regardless of your age or perception of your personal wealth, is to name an executor. This is because this important role is a person who will carry out the administration of your estate after you pass away.

Their primary job is to protect any of the property that you owned until any taxes and debts have been paid and then transfer any remaining property to your heirs who are entitled to it per your wishes.

Every state has rules about who can and cannot serve as an executor of an estate. Bear in mind that just because someone does meet the statutory grounds to serve as an executor doesn’t mean they want to serve in this role or that they’ll be successful in doing so.

The basic requirements for serving as an executor in New Hampshire are that this person must be of sound mind, meaning that they have not been judged incapacitated by any court, per New Hampshire RSA 21:44,533:4. There is no statute prohibiting a person from naming an executor who has been convicted of a felony in New Hampshire.

The other requirement for an executor in New Hampshire is that the party be at least 18 years old. Potential executors can be rejected by the courts in New Hampshire when they have a conflict of interest or for any reason found to be unsuitable for serving in this role or lack the ability to make sound judgements.

Need help writing your own will or changing who is named as an executor in your current will? Our NH estate planning law firm can help.



How to Designate a Guardian in Your Will

A child is considered a minor until he or she reaches age 18, at which point they are considered an adult and are capable of making legal decisions on their own. In the event that you have a minor child under the age of 18, naming a guardian in your will is one way to ensure that your child is cared for by a person that you trust and someone who is capable of serving in this role in the event that something happens to you and the other parent prior to the child reaching adulthood.

Reviewing or determining your choices for guardian of your minor child is an important step in your estate planning process. A guardian is an individual to whom the official legal care of your child is transferred if both parents pass away.

Naming a guardian in your will is a crucial act and is not one that is meant to be only sentimental. You are making a legal decision about the party who will care for your child as if they were that child’s parent until your child is no longer a minor. Guardians perform all duties of a parent, including decisions about a child’s religious teachings, medical care, education and upbringing, so it is critical that you choose someone with whom the child ideally has some form of relationship and a person who you trust to care for your minor child in this way.

In the event that if the individual named in your will is not the child’s surviving parent, the wishes could be overwritten in court and custody may be offered to the remaining parent in the event that the judge feels it is the best circumstance for your child. Decisions relating to guardianship when it is contested in this type of manner could lead to additional challenges in court.

Courts are instructed to make decisions regarding minor children in the best interests of the child in which they will consider numerous factors in arriving at this decision. To ensure there’s a plan for your family, work with an estate planning attorney in New Hampshire.