One of the many interrelated goals in the average estate plan is to ensure that estate assets are transferred to the intended beneficiaries either during your lifetime or at the time of your death. A well drafted estate plan will use a variety of estate planning tools and strategies to effectuate these transfers of property and assets. Because every estate is unique, it is incumbent on you to work closely with an experienced estate planning attorney to decide how to transfer your estate assets. In the meantime, however, the attorneys at Legacy Care Law Firm explain some of the common ways to transfer property in your New Hampshire estate plan.
Direct Transfer During Your Lifetime
You can always make a direct transfer of property to a beneficiary during your lifetime. This can be accomplished by signing over a deed or title to real or personal property or simply by turning over possession of personal property to a beneficiary. Keep in mind, however, that gifts made during your lifetime will likely be counted when calculating your estate’s exposure to federal gift and estate taxes during the probate of your estate after you pass away.
Transfer of Property in Your New Hampshire Last Will and Testament
Most people are familiar with the basic concept of a Last Will and Testament. A Will is a legal document that allows the Testator (the creator of the Will) to make specific and/or general gifts of estate assets to beneficiaries. Those gifts will be honored at the time of the Testator’s death. A well drafted Will can distribute the Testator’s entire estate. A Will is a simple way to transfer property at the time of your death; however, assets gifted in your Will must first go through the often lengthy process of probating your estate before they can be distributed to the intended beneficiaries. For this reason alone, people often consider using other methods for transferring estate assets.
Using a Trust to Transfer Property
A trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a Settlor (also referred to as a Maker or Grantor), who transfers property to a Trustee. The Trustee holds that property for the trust’s beneficiaries. All trusts are first divided into one of two categories – testamentary or inter vivos – the latter of which is more commonly referred to as a living trust. A testamentary trust is a trust that arises upon the death of the Settlor and which is typically activated by a provision in the Settlor’s Will. A living trust is a trust that takes effect as soon as all the legalities of creation are in place. Like a Will, a trust can be used to distribute your estate assets after your death. One of the many reasons people choose to use a trust to transfer assets is that trust assets bypass probate, meaning they can be distributed shortly after your death instead of having to wait for the conclusion of probate. A trust also allows you to stagger the distribution of property over time and to protect assets intended for minor beneficiaries until they are old enough to inherit those assets directly.
Joint Tenants with Rights of Survivorship
If you want to transfer your share of property that you already co-own with a spouse, adult child, business partner, or anyone else, you can do so easily by titling the property as joint tenants with rights of survivorship. This type of ownership provides each owner with an undivided interest in the whole property; however, if the interest is sold, the joint tenancy ends and the owners become tenants in common. Of particular importance for estate planning purposes, if one of the joint tenants dies, the decedent’s interest automatically goes to the other joint tenant(s). This is known as a “right of survivorship.” For example, if you own property as joint tenants with rights of survivorship (JTWRS) with your spouse, and you pass away, your interest in the property automatically transfers to your spouse outside of the probate process.
Using a Life Estate to Transfer Property
Another way to transfer real property to an adult child (or another beneficiary) is to create a life estate while you are alive. To create a life estate, you (the “Grantor”) bestow a life estate upon a life tenant (also you in this scenario) and you designate a remainderman. In this case, the remainderman would be your adult child (or another beneficiary to whom you wish to transfer the property). A life estate is exactly what it sounds like – the right to reside on and use the property (the “estate”) for the life of the life tenant. When the life tenant passes away, full ownership of the property passes automatically to the designated remainderman. For the duration of the life estate, the remainder holds a legal ownership interest in the property but lacks the right of possession. Upon your death, full ownership in the property passes to the designated remainderman, in this case, your adult child.
Transfer on Death and Payable on Death Accounts
Although most states, including New Hampshire, will not allow you to use a transfer on death (TOD) deed for real property, it can be used to transfer other property. Payable on death (POD) accounts work in a similar fashion. With both a TOD and POD designation, the idea is that you designate someone as the beneficiary who will automatically inherit the property or account upon your death. Most financial institutions will allow you to use a POD designation on your accounts. Upon your passing, the designated beneficiary automatically becomes the owner of the account or property without the asset needing to go through probate. The primary difference between TOD/POD and joint ownership is that, unlike joint ownership, the designated beneficiary on a TOD/POD has no ownership interest in the asset while you are alive.
Contact Our Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions about how to transfer property on your New Hampshire estate plan, contact our estate plannning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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