The Trusts & Estates Department at McLane Middleton is designed to meet all of your estate planning needs. We will work with you to devise an estate plan that achieves your goals, and minimizes administrative costs and taxes.
Our services cover essentially all aspects of estate planning, including:
- Creating and implementing plan documents
- Serving in fiduciary capacities
- Administering trusts
- Probating wills
- Assisting with the transfer of non-probate assets
- Tax planning
Members of our Trusts & Estates Department are fellows of the American College of Trust and Estate Counsel (ACTEC), members of the New Hampshire Trust Council, and have written a number of articles related to estate planning.
Trusts & Estates Planning
The Trusts and Estates Group at McLane Middleton is designed to meet all of your estate planning needs. Our goal is to work with you to devise an estate plan that works for you and to implement the plan in a manner that minimizes administrative costs and taxes.
Estate planning begins with an examination of your personal objectives and the preparation of legal documents that direct the disposition of your property in anticipation of death. These documents may include a will, trust agreement, durable general power of attorney, durable power of attorney for health care and a living will. Estate tax planning strategies appropriate to your needs will be explained for your consideration.
Estate or probate administration may be needed to implement the estate plan you have created. If you have signed a will, it will be filed with the probate court. If you have not completed an estate plan, your property will pass to your heirs in accordance with New Hampshire law in a process known as intestate distribution. In either case, we can assist your personal representative in the probate court procedure and in the administration of your assets.
This process may include the:
- Appointment of your personal representative;
- Collection and safeguarding of your assets;
- Sale of your real or personal property, as needed;
- Payment of your debts;
- Settlement of all claims against your estate;
- Preparation of probate court petitions and accounts;
- Valuation and inventory of your property;
- Preparation of all required income and wealth transfer tax returns; and
- Distribution of your assets to your beneficiaries or heirs.
Non-probate assets may also require special attention. We can help your family and friends transfer property that is not governed by your will or probate court jurisdiction according to your wishes. The areas in which we can help include:
- Jointly held property;
- Life insurance proceeds;
- Retirement benefits;
- Employee death benefits; and
- Trust property.
Trust administration of revocable or irrevocable trusts may be handled by our team of attorneys, administrators and operation assistants. With a fully automated system for asset management, we provide up-to-the-minute reports on asset valuation and income, enabling the trustee of your choice to meet your investment and dispositive goals.
Fiduciary services are also available if your circumstances warrant the personal services of a trust and estate attorney, after consideration of your other alternatives. Upon request, we will serve in a wide range of fiduciary capacities, such as:
- Professional Licensing;
- Medicaid Protection and Special Needs Trusts; and
- Admiralty and Maritime Law.
Estate Tax Planning
Our trust and estate attorneys work with you to develop an estate plan goal by minimizing the federal and state taxes that apply to the transfer of assets. Without this planning, a substantial portion of your property can be lost to taxes and administrative costs. We help to preserve this property for the individuals and organizations you most wish to benefit.
We begin with an examination of your personal desires in anticipation of death. Do you wish to provide for your spouse and children? Are your children mature enough to manage significant funds? Do you want to be certain that sufficient funds will be available for the education of your children? What if your spouse remarries? Do you want to shelter funds from loss through poor investments, divorce or creditors' claims? We work with individuals who have no families to be certain the organizations or individuals they wish to benefit are also protected.
We then advance alternative methods of achieving your personal goals while minimizing the impact of transfer taxes, probate, and administrative costs. This planning could include:
- Lifetime gifts to take advantage of the $14,000 annual gift tax exclusion and to transfer future income and appreciation out of your estate;
- Wills to transfer your property at death to your intended beneficiaries or to a trust for their benefit.
- Revocable lifetime trusts to minimize probate administrative costs and to preserve property from a second tax upon the death of a beneficiary.
- Irrevocable trusts to preserve life-time gifts for the later benefit of spouses, children and grandchildren, or to gain a charitable deduction. We estimate the impact of all applicable state and federal transfer taxes and anticipate the source for payment of these taxes:
- Federal gift and estate taxes are set at a top rate of 40 percent, after taking into consideration the amount that may pass free of tax.
- Federal generation skipping transfer taxes, if applicable, are set at 40 percent after payment of estate and gift taxes on the same transfer.
- Income tax will generally be imposed on income items.
As you can see, the combined effect of these taxes can be substantial.
Special estate planning techniques are recommended for certain individuals. This special planning may include:
- Closely held businesses that require examination of stockholder agreements, stock redemptions to pay taxes or to provide funds for the benefit of family, qualified subchapter S trusts and deferral of estate tax payments.
- Resident alien spouses will need a qualified domestic trust.
- Life insurance may be needed to provide a source of funds for payment of taxes, debts, expenses or desired gifts.
- Personal residences offer special planning opportunities for reducing transfer taxes.
The development of a typical estate plan will involve several discussions and correspondence between you and our attorneys to assure that your desired goals are implemented. The estate plan should remain flexible and adaptable to your future needs. Accordingly, the plan should be reviewed periodically as your family situation and tax laws change.
Members of our Trust and Estate Planning Department are fellows of the American College of Trust and Estate Counsel (ACTEC).
McLane Middleton's Asset Protection & Wealth Preservation Practice Group adopts a multi-disciplinary approach to developing client solutions. The group consists of attorneys who are experienced in trust and estate planning, Medicaid planning, business entity selection and formation, commercial litigation, bankruptcy and family law matters. We have combined these areas of law because asset protection strategies and solutions vary greatly depending on each client's personal and business circumstances, as well as the nature of the assets to be protected.
We encourage our clients to always consider the unexpected. To that end, we work with clients to develop an integrated plan that is most beneficial to protecting assets and safeguarding them from claims of future creditors -- whether from a business failure, personal injury litigation, divorce, long-term nursing and medical expenses, environmental claims, fiduciary duties or otherwise. By being proactive, clients gain comfort that they have taken appropriate timely action to protect their future financial stability.
While each client has unique circumstances and goals, we frequently consider:
- Identifying and titling assets so that the assets qualify for special protection under the law (such as exemptions for "homesteads," qualified retirement plans, etc.);
- Transferring assets to family members not engaged in risky activities;
- Creating trusts which benefit clients and their family members;
- Segregating business activities or inherently risky assets into stand alone legal entities;
- Forming limited liability companies and limited partnerships which create limitations on creditor attacks.
We design and implement a variety of planning strategies, and will explain to you their effectiveness, including:
- Statutory exemption planning
- Transfers to spouses (including Inter Vivos QTIP Trusts)
- Joint Ownership Arrangements
- Trusts for the benefit of third parties
- New Hampshire asset protection trusts (potentially using Trust Protectors, Investment Advisors and Distribution Advisors)
- Entity selection
- Family limited partnerships and limited liability companies
- Prenuptial agreements
- Medicaid Planning
- Offshore asset protection trusts
The attorneys in McLane Middleton's Probate Litigation Practice Group draw on their extensive experience to effectively litigate matters affecting the rights of the aging population and their heirs. We are well-versed in all types of probate litigation matters, handling such cases as:
- Will contests
- Petitions for Guardianships
- Petitions for Accounting (to investigate and redress wrongs committed by an attorney-in-fact operating under a power of attorney)
- Trust disputes
- Petitions for Civil Commitment
- Common law marriage and related tax issues
When necessary, our team can respond quickly, such as when assets of an aging family member are being depleted due to impaired judgment or exploitation.
Our attorneys are recognized leaders in probate litigation. For example, David Wolowitz is a pioneer advocate relating to mental illness and incapacity. He has advised clients on this area of law since 1975. He has also provided expert testimony on mental health issues related to probate litigation matters.
In addition to our advocacy skills, we understand the complex mental health issues related to aging. We have working relationships with geriatric psychiatrists and other medical and mental health professionals. We are sensitive to family dynamics and the unique pressures faced by families working hard to protect aging family members and their assets.
We assist clients with asset preservation and asset protection for themselves and their families in anticipation of applying for long-term care through the Medicaid program. Federal and state Medicaid rules are restrictive in terms of the applicant's allowable resources and income in order to become Medicaid eligible. Our attorneys have significant experience in asset protection strategies, such as Medicaid-Qualifying Irrevocable Trusts, Special Needs Trusts, conversion of assets into income through the use of Medicaid-Qualifying Annuities, Personal Care and Service Agreements, as well as other spend-down techniques that allow for transfers of assets to family members without violating Medicaid gifting rules.
We frequently work with clients when preparing and filing New Hampshire and Massachusetts Medicaid applications, meeting with caseworkers for applicant resource assessments, as well as successfully litigating denials of Medicaid benefits.
McLane attorneys regularly represent clients confronting state and local tax issues, including:
- State and Local Tax Audits: We have extensive experience in representing clients before the various tax agencies and have been successful in reducing and/or minimizing tax, penalties and interest assessed.
- Tax Litigation: We have successfully pursued a variety of tax matters before the U.S. Tax Court, New Hampshire Department of Revenue Administration, Massachusetts Department of Revenue and Superior Courts on behalf of our clients.
- Reasonable Compensation: We have successfully represented a variety of small business owners under audit by the State of New Hampshire for "reasonable compensation" issues.
- Rulemaking: Advocacy on behalf of clients before state legislatures through lobbying activities as well as direct involvement in "working groups" reviewing and streamlining the practices and procedures of various state agencies.
- Real Estate Tax Appeals: Representation of clients before the New Hampshire Superior Court, the New Hampshire Appellate Tax Board or Board of Tax & Land Appeals and beyond.
Trust administration of revocable or irrevocable trusts can be handled by our team of attorneys, administrators and operation assistants. With a fully automated system for asset management, we provide up-to-the-minute reports on asset valuation and income, enabling the trustee of your choice to meet your investment and dispositive goals.