The choice between a last will and testament and a revocable living trust is one of the most consequential decisions in estate planning — and one of the most frequently misunderstood. The correct answer depends on the composition of the estate, the client’s family structure, probate avoidance objectives, and incapacity planning considerations.
This post addresses the legal distinctions between the two instruments under New Hampshire law and the factors that should drive the analysis. For background on what happens without either instrument, see our earlier post on dying without a will in New Hampshire.
A trust that is never funded avoids nothing. The drafting is only half the work.
The Will: Scope, Function, and Limitations
A last will and testament is a testamentary instrument — it operates exclusively at death. During the testator’s lifetime, a will has no legal effect and provides no mechanism for managing assets in the event of incapacity. It does not avoid probate: assets passing under a will are subject to the New Hampshire probate process regardless of the will’s clarity or comprehensiveness.
What a will does effectively: it names an executor, directs the distribution of probate assets, establishes testamentary trusts for minor or other beneficiaries, nominates guardians for minor children, and can expressly exclude individuals who would otherwise qualify as heirs under RSA 561.
The Revocable Living Trust: Mechanics and Advantages
A revocable living trust is an inter vivos instrument — it is established and operative during the grantor’s lifetime. The grantor typically serves as initial trustee, retains full control, and can amend or revoke the trust at any time. At death or incapacity, a successor trustee assumes administration without court appointment or oversight.
| Factor | Will | Revocable Living Trust |
|---|---|---|
| Goes through probate? | Yes | No — if properly funded |
| Public record? | Yes | No — fully private |
| Works if you’re incapacitated? | No | Yes — successor trustee acts |
| Names guardian for minor children? | Yes | No — need a will for this |
| Avoids ancillary probate in other states? | No | Yes — if property held in trust |
| Upfront cost | Lower | Higher — but saves probate costs |
| Requires asset retitling? | No | Yes — must fund the trust |
The Funding Problem: Where Most Trust Plans Fail
A revocable living trust avoids probate only with respect to assets formally transferred into the trust — a process called funding. A trust that has been drafted but not funded is functionally equivalent to no trust at all. Assets that remain titled in the grantor’s individual name at death will pass through probate regardless of what the trust document says.
Assets That Typically Require Retitling Into a Trust
- Real property — requires a deed transferring title to the trustee
- Bank and investment accounts — require account retitling or TOD designation
- Business interests — require assignment or operating agreement amendment
- Vehicles — generally not transferred (handled by pour-over will)
- Retirement accounts — typically should NOT be retitled; use beneficiary designation
Why Both Instruments Are Usually Required
A revocable living trust cannot nominate a guardian for minor children — that function is exclusive to a will. It also cannot capture assets inadvertently excluded from the trust. For these reasons, a trust-based estate plan almost always includes a pour-over will: a testamentary instrument that directs assets outside the trust at death to flow into the trust, and that nominates guardians for any surviving minor children.
Think of the trust as the primary vehicle and the pour-over will as the safety net. According to the American College of Trust and Estate Counsel, this combination is the standard approach for clients with probate avoidance as an objective.
When Each Instrument Is the Right Choice
Will Alone May Be Sufficient When:
Estate is relatively simple; most assets pass by beneficiary designation; guardianship is the primary concern; probate avoidance is not a priority; real property is not a significant asset.
A Living Trust Is Worth the Investment When:
You own NH real property; privacy matters; you want seamless incapacity coverage; you have a blended family or controlled distribution needs; you own property in more than one state.
For a deeper look at trust-specific planning, see our post on understanding revocable living trusts in New Hampshire and trustee removal from irrevocable trusts.
Not Sure Which Option Is Right for You?
Granfield Legal Services offers flat-fee wills and trusts for New Hampshire families — free consultation, transparent pricing before you commit.
(603) 637-1637 Learn About Our Estate Planning Services →Available by phone, video, or in person · Serving NH & MA
This article is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this post. Attorney advertising.
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