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By John Cunningham

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Published: June 14, 2013

Mary Jones is a abandoned convenance New Hampshire banking adviser with two employees. She lives in Maner. She is appropriately affiliated to John Jones. Her accountant tells her that, to assure her claimed assets if one of her advisers does article that harms a applicant or added third party, Mary should anatomy a single-member LLC to conduct her business. The LLC will assure her claimed assets from claims adjoin her business.

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Not to be morbid, but whenever anyone forms an LLC, they should decide, amid added things, what should appear to their LLC associates back they die. How should Mary abode this question?

Assume that back Mary dies, she wants her LLC associates to go to her bedmate John. One big affair in accomplishing this ambition may be to accumulate her associates out of the New Hampshire probate court. (Believe it or not, probate is acceptable for some estates, but apparently not for Mary’s.) If Mary’s LLC associates is accountable to probate administering back she dies, her acreage may acquire abundant acknowledged fees and abounding months of adjournment afore John assuredly obtains her membership.

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How can Mary abstain New Hampshire probate? There are four ways:

1. Alteration on death: The simplest and cheapest way is for her to accommodate in a accounting LLC operating acceding that aloft her death, her associates will canyon to John. While the amount is not absolutely after doubt, this accouterment will actual apparently assure her associates from probate beneath New Hampshire’s Uniform Alteration on Afterlife Act.

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2. Capricious trust: A added circuitous and big-ticket way, but conceivably additionally a bigger one for Mary, is for her to accommodate for the alteration of her associates to John aloft her afterlife beneath an acreage planning certificate alleged a capricious trust. If she doesn’t already accept such a trust, it will amount her almost $2,000 to accept a competent acreage planning advocate abstract one. But if she has cogent wealth, she’ll apparently charge a capricious assurance anyway, and the assurance will assure her from acknowledged complexities, such as accepting to alter her LLC operating acceding if John dies afore she does. (If Mary does adjudge to authority her associates in a trust, her LLC operating acceding should accommodate that Mary in her accommodation as an individual, not as a trustee, is the LLC’s manager. This will abstain abashing back she signs LLC contracts.)

3. Joint-tenancy distinct membership: The third way is to accommodate in her operating acceding that, although her LLC is a single-member LLC, Mary holds her associates in it accordingly with her husband. As continued as her operating acceding additionally provides that alone she will be advantaged to administer her LLC unless she resigns from managing it or dies, this will assure her from accepting to allotment administration with John.

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4. Husband-wife joint-tenancy memberships: Finally, she can abstain probate of her LLC associates by basic her LLC not as a single-member LLC, but rather, as a two-member husband-wife LLC in which both she and her bedmate authority their LLC memberships as collective tenants. Indeed, this two-member anatomy will not alone abstain probate aloft her afterlife by automatically appointment her associates to John aloft her death, it will additionally actual apparently accord her essentially stronger asset aegis beneath the “liability shield,” “pick-your-partner” and “charging order” accoutrement of New Hampshire’s new LLC act. (However, back the additional of Mary and her bedmate dies, this anatomy won’t assure her brood from probate.)

Which of the aloft four options should Mary choose? If she wants to alive dangerously, she can adjudge by application a dartboard. If she wants to alive prudently, she will ask a lawyer.

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Attorney John Cunningham, of admonition to the Maner-based law close of McLane, Graf, Raulerson & Middleton, is columnist of “John Cunningham on New Hampshire’s New LLC Act,” accessible at cunninghamonnhllcs.com.

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