Trusts, Wills & Estates

Having an effective estate plan is a necessity for everyone regardless of age or health. Providing clear legal documentation of your wishes for how your estate is managed and distributed is a gift to the loved ones you leave behind.

An estate plan is much more than a legal document or set of documents. It represents a set of strategies for making your unique goals a reality. An estate plan includes many components. Our attorneys help clients implement the right strategies and solutions. Depending on the unique needs of each client, we prepare documents such as:

• Trusts, wills and powers of attorney
• Health-care powers of attorney
• Durable financial powers of attorney
• Living wills
• Asset protection trusts
• Dynasty trusts and other vehicles for generational wealth transfer
• Special needs trusts

Establishing A Trust - A trust is a fiduciary relationship in which the client or grantor provides for the transfer of assets and property and gives another party, the trustee, the right to hold title to property or assets for the benefit of the beneficiaries identified in the trust. Trusts are often recommended as part of a comprehensive estate plan for any number of reasons:

• Avoiding the public disclosure of assets and financial data
• Uninterrupted management of assets before or after an individual’s death
• Management of assets during illnesses or disability
• Reduction of income and/or estate tax
• Elimination or reduction of the expense and delays associated with probate

The most common form of trust is the revocable (inter vivos or living) trust. However some circumstances dictate the use of irrevocable trusts, special needs trusts, or other speciality trusts that hold assets such as real estate or closely-held stock. Our attorneys offer experienced guidance on:

• Applying and interpreting estate planning documents
• Transferring assets and making distributions in accordance with the estate plan
• Identifying, valuing and accounting for trust or estate assets
•  Preparing appropriate state and federal tax returns
• Managing trust assets in a prudent manner
• Preparation of federal estate and gift tax returns
• Prosecuting and defending litigated claims involving estates and trusts

Trusts can be created while you are alive or upon your death. They offer a number of legal benefits; most notably they allow assets to be transferred without going through the expensive and time-consuming probate process. In some cases, trusts can also help avoid costly estate taxes and gift taxes.

Creating a will is fairly straightforward, but establishing and funding trusts can be a complex process. It is important to have the assistance of an experienced and knowledgeable trust attorney to ensure your trusts are properly set up and provide you and your loved ones the benefits that are intended from a specific trust administration. Our attorneys are skilled in drafting trust documents that create the type of legal protections you want and need. We tailor our estate planning advice to the specific needs of each client and can help you determine if using a trust in your estate plan is the right choice for you.

We assist executors, trustees, administrators and other fiduciaries in all aspects of the administration of trusts and estates.

Estate Administration – In the absence of a trust or appropriate beneficiary designations, when a person dies, their possessions – real estate, money, stocks, personal belongings, etc. – become a part of their estate. Estate administration refers to the process of collecting and managing the estate, paying any debts and taxes, and distributing the remaining property to the heirs of the estate.

Trust administration - refers to the trustees’ management of trust property according to the trust document’s terms and for the benefit of the beneficiaries after the grantor’s death. Our attorneys provide counsel to trustees and beneficiaries to make sure a trust is administered properly.

Our trust and estate administrators address the needs of surviving family members, executors, and trustees to obtain optimal results in the management and disposition of trust and estate assets. We provide advice and representation on federal and state gift, and income tax issues that affect estates, trusts, beneficiaries, and fiduciaries.

Discussing end-of-life planning is a difficult but necessary topic in the estate planning process. Decisions regarding end-of-life care are deeply personal and should be discussed with loved ones, health care providers, and advisors. Wills, living wills and powers of attorney are important legal documents. They make sure that your wishes for you and your belongings will be followed if you die or become too sick to speak for yourself.

Last Will and Testament - A last will and testament is a legal document that controls what happens to a person's property and assets after their death. Wills allow a person to give their assets or property to certain beneficiaries and determine what, when and how much of the estate they each will receive. Wills also contain language appointing guardians to care for minor children. Once a will is in place, the executor of the will is in charge of gathering and dividing the assets of the estate according to the wishes of the decedent.

If a person dies without a will, it is left up to the courts to administer the individual's assets according to state laws. This process is based upon pre-established formulas that tell the courts how to divide a person's estate. This can lead to an estate being divided in a manner that is not consistent with the wishes of the deceased or the family.

A Durable Power of Attorney - A durable power of attorney is used to direct a person's affairs while they are still alive. The POA can become effective immediately if the person needs help dealing with their day-to-day affairs, or it can become effective only after a person is incapacitated and cannot make decisions for themselves. While a power of attorney allows a person to appoint an agent to pay bills and attend to their needs while they are still alive, the durable power of attorney ceases upon the death of the individual.

Living Wills and Powers of Attorney for Health Care - There are two basic documents that allow you to set out your wishes for medical care: a living will and a durable power of attorney for health care. It's wise to prepare both. In some states, the living will and the power of attorney are combined into a single form—often called an advance directive. (In fact, both of these documents are types of health care directives—that is, documents that let you specify your wishes for health care in the event that you become unable to speak for yourself.)

Living Wills - A living will is a written statement that details the type of care you want (or don't want) if you become incapacitated. This document is most often called a living will, though it may go by a different name in your state. A living will bears no relation to the conventional will or living trust used to leave property at death; it's strictly a place to spell out your health care preferences.

Powers of Attorney for Health Care - You'll also want what's usually called a durable power of attorney for health care. In this document, you appoint someone you trust to be your health care agent (sometimes called an attorney-in-fact for health care or health care proxy) to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive and refrain from providing care that you do not wish to receive.

Our team handles guardianship proceedings for minors and incapacitated adults. We also assist health care institutions in appointing guardians for patients when necessary.

A guardianship results from a court proceeding in which an individual asks to be appointed as guardian for an incapacitated individual (the "ward"). Guardianship is not a simple matter, and New Hampshire State law requires that the guardianship be the least restrictive means necessary for assisting the proposed ward. Guardians are required to file accountings and annual reports with the court that detail transactions entered into on the ward’s behalf.

Before filing a guardianship petition, seek legal advice about the best course of action. Our team has extensive experience appearing before Probate Courts throughout the state and can help explain the process and options.

Incapacitated Adults - Guardianships of incapacitated persons are established when the court determines that the functional limitations of an individual have declined to the point where that individual’s ability to participate in and perform minimal activities of daily living is not present. Guardianships over an incapacitated person's estate are established when the court determines that a person’s ability to understand and make decisions relative to financial matters is not present. Guardianships of incapacitated persons can be over the person, over the estate, or over the person and estate.

Guardianship of a minor – The guardianship of a minor (any person less than eighteen (18) years of age) is a legal relationship where one person is given the authority and duty to care for the minor's person or property until he or she reaches the age of 18. Guardianship is granted to assure that the needs of the minor are met. A guardian is often required to file a bond with the court to assure that they will perform their duties faithfully and honestly.

The guardian of a minor is required to file an annual report with the court that informs the court how the minor is doing and whether there have been changes in the minor’s residence, health, schooling, etc. The guardian is also required to file an annual accounting with the court that details any expenditures made on the behalf of the minor.

Sulloway & Hollis provides a broad spectrum of gift planning services to individuals, families, and nonprofit organizations. Our attorneys possess a deep understanding of the gift planning process and help clients develop strategies for avoiding or minimizing estate and gift taxes through tools such as:

• Education Plans (529 plans and trusts for minors)
• Qualified personal residence trusts (QPRTs)
• Charitable trusts
• Grantor-retained annuity trusts (GRATs)
• Limited liability companies (LLCs)
• Conservation easements
• Irrevocable multi-generational trusts

We also assist in the preparation of gift and estate tax returns.

Effective business succession planning can reduce estate tax exposure and help provide liquidity if taxes will be due. It can also ease tensions among family members or business partners that can threaten the long-term survival of a family’s most important asset.

Our attorneys counsel owners of closely-held businesses in establishing organizational structures that satisfy their current and long-term needs. Our attorneys draw on the experience of our estate planning, tax, business, real estate and labor & employment attorneys to design and implement strategic succession plans.

We help clients implement new structural strategies, prepare for the transfer of their business to the next generation (whether during the owner’s lifetime or upon death), and provide for liquidity for taxes, family members, or investors not active in the business.

Our comprehensive range of business succession planning services includes:

• Selecting the most advantageous entity to hold, manage, and transfer the business, such as S and C corporations, limited liability companies, and partnerships.
• Designing a structure to accomplish the owner's specific goals (such as maintaining control, raising capital, avoiding outside owners, and providing for a smooth transition in ownership and management).
• Establishing a comprehensive estate plan that takes advantage of available tax credits and exclusions.
• Analyzing the potential for, and administering property in estates and trusts, including revocable and irrevocable living trusts, generation-skipping and dynasty trusts, asset protection trusts, and others.
• Preparing necessary legal documents pertaining to health directives and powers of attorney.
• Using LLCs and other structures for transferring equity while maintaining control and deferring or avoiding tax.
• Analyzing liquidity needs to fund buyouts upon retirement, death, or disability, and to pay taxes.
• Assisting with charitable planning, including charitable remainder trusts and donor-advised funds.
• Using life insurance and other assets to equalize the inheritances of children who will not be significant owners of the business.
• Planning for retention of key employees who are not family members.
• Designing employment policies to facilitate compliance with applicable laws and to further promote the owner's business objectives.
• Assisting the owner in balancing the diverse interests and needs of different generations, and in resolving intra-family conflicts.
• Preparing prenuptial and postnuptial agreements, and providing advice regarding the dissolution of a marriage or divorce to protect business interests and preserve family wealth.

Our team assists individuals, estates and business owners/executives with tax planning to address immediate needs and plan for what lies ahead. We work closely with each client and their other professional advisors to develop practical approaches to our clients varied estate planning needs.

Navigating probate and estate administration can be complicated, especially when disputes arise. We assist clients with all aspects of trust and estate administration, including probate litigation. Our attorneys bring a wealth of experience handling complex estate disputes. Applying strong litigation backgrounds, we provide guidance and litigation services for executors, trustees, beneficiaries, heirs and other interested parties throughout the U.S. in matters involving New Hampshire estates and trusts.

Combining Strong Litigation Skills With Well-Rounded Legal Knowledge

Probate litigation requires technical knowledge of trust law, tax issues, estate planning and administrative principles; it also requires strong litigation skills. Because our attorneys are well-versed in complex estate planning, we understand the legal landscape that shapes the outcome of probate and trust disputes. We are also accomplished litigators. Many have earned professional acclaim from prestigious organizations such as Chambers U.S.A., New England Super Lawyers and Best Lawyers®.

We Handle Probate and Trust Litigation Involving:

• Will contests
• Capacity challenges
• Undue influence
• Breach of fiduciary duty
• Disputes over asset valuations and accountings
• Mismanagement of assets
• Guardianship disputes
• Validation of wills and trusts

Many of these cases concern the trusts and/or estates of business owners or executives. High-value assets such as closely-held businesses, real estate, stock options and retirement accounts may be at stake.

Because our firm has a multidisciplinary practice, our attorneys are especially well-equipped to handle these unique issues. Our robust business and corporate law and real estate groups provide guidance on the intersection between these often overlapping areas of law.