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Hanover, NH office 603.643.6072
Rutland, VT office 802.773.3822
Woodstock, VT office 802.457.9492

August 6, 2014 Newsletter Archive

New Hampshire Vies for Tops in Trust Administration

The New Hampshire legislature recently passed a revision to the Uniform Trust Act (SB 289) [the Act]. The Act's various changes reflect the state's desire to continue to be extremely user friendly and a chief innovator in estate administration.

One notable change is that New Hampshire residents may now petition courts while they are still alive to seek a determination of the validity of their wills. You may ask why someone would want to do this. One possibility is that a person has knowledge that there may be a will contest after their death, and so in order to stave this off, the individual moves the court to validate his or her will thereby further affirming the testator's intentions. That said, as long as an individual has capacity, he or she may still modify his or her will after validation, and re-petition to have that codicil or new will validated.

The Act also allows executors, administrators and other fiduciaries such as trust protectors and advisors in some cases, and their attorneys to maintain attorney-client privilege for advice provided in their fiduciary roles. This privilege is like any other attorney-client privilege and on its face may seem like a given. However, prior to this New Hampshire remained silent on this matter, and the rest of the country has been divided because often it is argued that fiduciary duties are owed to beneficiaries and thus extend the communication privilege beyond that of the fiduciary and attorney. The counter argument is that fiduciaries who seek counsel knowing their communications are privileged are going to make wiser decisions. With the Act in place, New Hampshire has emphasized that fiduciaries will be protected when they confide in an attorney.

In 2008, trustees gained authority to update trusts through a process called "decanting." With decanting, the trustee is allowed to move assets from an existing trust to a new trust. Now, under the Act, trustees have authority to modify trusts without decanting. Although this seems more restrictive, it actually provides the trustee with a trust modification tool which may be useful when the changes are minor or when an asset is particularly hard to transfer (like real property). Moreover, now New Hampshire has four clear ways in which trustees may modify trusts ranging in complexity and facility:

    1. Court petition

    2. Non-judicial settlement

    3. Decanting, and

    4. Trustee modification

Thus, New Hampshire is quickly gaining recognition as a trust administration friendly state.

Under the new Act parties to a dispute are now directed to resolve their disputes by non-judicial resolution such as mediation or arbitration. Additionally, interested beneficiaries may bring a judicial proceeding to determine whether non-judicial procedures are reasonable (and doing so will not trigger a no-contest violation).

The Act also clarifies trustees under "directed" trusts which are those trusts that have a provision in which a trustee is directed to follow the advice of a trust protector or advisor. The Act clarifies the issues of liability between fiduciaries and beneficiaries.

With these changes and clarifications, New Hampshire continues to enhance its position as a uniquely trust administration friendly state.


Watch us Grow: We are Expanding Again with our new Burington Office

Melendy Moritz has been on the go. We started off 2014 by moving our Hanover office to a more modern building. On July 1 we are opening a brand new Burlington office. Our new office is located at 135 College Street, just off of City Hall Park. Vermont's largest city, and with its vibrant economy, Burlington gives us the opportunity to bring our specialized boutique law firm to a larger population. Our highly efficient, 21st Century technology, allows us to optimally serve our new and existing clients elsewhere in Vermont and New Hampshire. Woodstock continues to be our main office and we look forward to continue to serve all of your needs in our optimal locations.

If you wish to speak to us about your estate planning matters please contact us

(603) 643-6072 or (802) 457-9492

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Melendy Moritz PLLC is a client centered boutique firm. We focus on your unique needs by providing the individualized legal counseling and advising tailored to your specific situation.

We concentrate on the planning that matters to you.
Call us at 603.643.6072 or 802.457.9492


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