Want to Change or Update Your Will? Your Trust? Your Powers of Attorney? Do It The Right Way

The COVID-19 crisis has a lot of us thinking about updating or changing our Estate Plans: making a new Will or Trust or getting new or updated Financial Powers of Attorney and Healthcare Powers of Attorney (also known as “Advanced Directives”). Professional guidance is important.

For example, a long-time client died recently. He had a few minor changes that he had hand-written on his original Will. Fortunately, the changes were not contested by any of his children. But it took extra time to get his Will approved. The Probate Judge wanted a signed agreement from his heirs that none of them contested the change in his Will, and it certainly added to the legal fees.

Moral:  If you want to change the terms of your Will (or Trust), see a lawyer and get the changes you want done the right way. This will save your heirs time, money, and aggravation.

Some other things to understand and consider:

1. The “standard” Healthcare Power of Attorney (NH RSA 137-J:20) has changed. It now specifically includes optional authority for a “DNR” order (Do Not Resuscitate Order) or forgoing selected life-sustaining procedures, and a provision about who has authority when you are determined to be incapable of making healthcare decisions for yourself.

2. The “standard” Financial Power of Attorney (NH RSA 564-E:301) has also changed. It now specifically gives the person handling your financial affairs optional authority in many more areas, including providing for limitations on gift-making by the person exercising financial controls, and it specifies a default date when the Power of Attorney becomes effective.

Do you need a Trust? When Probate Courts were handling Wills in an efficient and effective manner, there was not much need for need for revocable inter vivos, so-called “Probate-avoidance” trusts, unless you really did not want anyone to know what was in your estate or who was inheriting your property. Currently, there is a long backup in all courts in New Hampshire, including the Probate Court. Without a Trust, the transfer of your assets to your heirs would typically take 9–12 months. In this COVID-19 era, it could take much longer. There is an added expense up front in using a Trust, but a properly drafted and executed Trust, together with appropriately designated survivor beneficiaries and holders of joint assets, can make the transfer of assets upon death prompt, efficient, and inexpensive.