What is a will?
A will is a set of instructions that explains how you want your property distributed after your death. In Oregon, you must be at least 18 years old and of sound mind to make a will. If you are married, you can make a will before you turn 18. Your will must be in writing and must be signed by you and two witnesses. Some people cannot serve as witnesses to your will. It is important to make sure that all of Oregon’s legal formalities are carefully observed.
What are the benefits of a will?
A will allows you to decide who will manage your money and other property after you die, and how it will be distributed. It lets your wishes be heard regarding the care of minor and disabled children. It often prevents disputes among your relatives. In a large estate, a will can also reduce the amount of taxes that may be due at your death.
What is a trust?
A trust is another tool used in estate planning that can be created as part of a will or as a separate document. A trust is a legal document that appoints someone (a “trustee”) to manage your property and gives detailed instructions on how the property will be managed and distributed. A trust is one way to take care of a minor child, an elderly person or someone who needs help handling money. A trust may be established during your lifetime, and you may act as your own trustee, or it may be established by your will after your death. Trusts are generally more complicated to create than a will, and you may want to consider having an estate planning lawyer assist you.
Can a revocable living trust substitute for a will?
A properly drafted revocable living trust can work well as a substitute for a will and sometimes may reduce the costs of handling your estate. However, even if you have a trust, most advisors would recommend you also have a will to cover the possibility that some of your assets may not be covered by the trust at the time of your death. Whether a trust is proper for your estate is a decision to be made after receiving competent legal advice.
Although estate planning can be a complex task, a well-informed plan can make a big difference in what is left for your loved ones.
Before you begin to take action on your estate plan, it’s important to understand the key topics that may arise as you address your specific needs.
Working with an attorney.
It’s important to work with an attorney on your estate plan. The attorney’s role will include guiding you through the creation of fundamental estate planning documents. These may include a will, health care proxy, and durable power of attorney.
You’ll make the decisions, but your attorney can help you think through and understand the sometimes complex implications of each option. They will also help you communicate your wishes clearly, avoid mistakes, minimize taxes, and adjust your plans as time goes by or your circumstances change.
An attorney can be well worth the cost—significant savings can result from thorough, informed planning.
Contact us today to find out how we can help you make this process as simple as possible.
Contesting a will
Often times a disappointed relative who feels that he or she did not get a “fair share” of the estate will try to have the last will and testament declared invalid by contesting the will in court. Only a person with legal standing may contest a last will; this requires that he or she must either be a named beneficiary in the will or stand to inherit if the existing will is declared invalid.
A common strategy for declaring a last will invalid is to argue that the decedent was not of sound mind and was unable to understand what he or she was doing when the will was formed. Another strategy is to argue that the last will was created under the undue influence or coercion of another person. The court will call the witnesses to the will or adduce their affidavits to determine the validity of the document.
Some states allow last wills to include a “no-contest” clause to discourage such challenges. This clause effectively states that anyone who unsuccessfully contests the will receives nothing.
If the will is declared invalid, the assets in question fall into intestacy . Generally, intestate distribution follows family relations with assets awarded first to the spouse, then to children, and so on.
Disagreements over a last will can be damaging to family relationships. A family meeting with a neutral third party can help resolve any disputes outside of court. However, this is not always possible. For help resolving a contested last will, contact us today.
Writing a Will
creating a will is one of the most critical things you can do for your loved ones. Putting your wishes on paper helps your heirs avoid unnecessary hassles, and you gain the peace of mind knowing that a life’s worth of possessions will end up in the right hands. The laws governing wills vary from state to state. If you aren’t familiar with them, Contact us today for help.
Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) to his or her beneficiaries.
Usually, you have to fill out court forms and appear in court to:
Prove to the Court that the Will is valid (this is usually routine),
Appoint a legal representative with authority to act on behalf of the decedent,
Identify and inventory the decedent’s property, and have that property appraised,
Pay debts and taxes, and
Distribute the remaining property according to the terms of the Will or to the decedent’s heirs.
Is probate necessary?
If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims. When there is property to transfer, the probate process also provides for the distribution of the estate’s property to the decedent’s heirs.
Power of Attorney
What is it? A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal, such as executing a stock power, handling a tax audit, or maintaining a safe-deposit box. Powers of attorney can be written to be either general (full) or limited to special circumstances. A power of attorney generally is terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time.
A special type of power of attorney that is used frequently is the “durable” power of attorney. A durable power of attorney differs from a traditional power of attorney in that it continues the agency relationship beyond the incapacity of the principal. The two types of durable power of attorney are immediate and “springing.” The first type takes effect as soon as the durable power of attorney is executed. The second is intended to “spring” into effect when a specific event occurs, such as the disability of the principal. Most often, durable powers of attorney are created to deal with decisions involving either property management or health care.
Durable powers of attorney have become popular because they enable the principal to have her or his affairs handled easily and inexpensively after she or he has become incapacitated. Before the durable power of attorney was created, the only way to handle the affairs of an incapacitated person was to appoint a guardian, a process that frequently involves complex and costly court proceedings, as well as the often humiliating determination that the principal is wholly incapable and in need of protection.
With a durable power of attorney, on the other hand, a principal can appoint someone to handle her or his affairs after she or he becomes incompetent, and the document can be crafted to confer either general power or power in certain limited circumstances. Because no judicial proceedings are necessary, the principal saves time and money and avoids the stigma of being declared incompetent.
We can help you with your Will, Trust & Estate Planning. Contact Attorney Jamie Carpenter Today!