Frequently Asked Questions About Wills in Oregon
Should I have a will?
Yes. Everyone should have a will. If you have a will, you get to decide who receives your estate, who acts as a personal representative, and you can waive the bond fee. If you have minor children, you can name a trustee to manage their money until they reach a responsible age (most people choose 25 or 30), and you can name a guardian who will raise your children if you are not alive.
What if I do not have a will?
Oregon has a will for everyone who does not have a will, called “intestacy”. Your estate will go to your “intestate heirs”. The State of Oregon will not receive your estate. If you do not have a will, you do not get to choose the personal representative, or the distribution plan, and the court will require a bond for the probate.
Is my Oregon will valid in other states?
Yes. Oregon wills are valid in other states. Wills properly prepared in other states are also valid in Oregon.
Can the personal representative live in another state?
Yes, no problem. Choose the most trustworthy person as a personal representative, regardless of where they live.
Do wills go through probate?
Yes. All wills go through probate to be valid. A will is not valid until after death, and it is not valid until the Probate Court officially appoints the personal representative. All assets owned by the deceased person in their name alone are distributed by the will.
I have minor children. What type of Oregon will should I have?
If you have young children, you should have an Oregon will with a trust provision built in. You get to choose the trustee, who will manage the money, and you get to choose the guardian, who will raise your children. You can name the same person as trustee and guardian, or you can name different people to these jobs.
How can I avoid probate?
Probate is avoided by means of joint ownership, beneficiary provisions on life insurance and annuities, and revocable trusts. However, each of these methods of avoiding probate can have serious negative side effects, depending on your family situation. Call me to discuss your family estate plan. I will not steer you in the wrong direction.
Should I put my children’s names on my real estate and bank accounts to avoid probate?
If you put your children’s names as joint owners on your assets, and if your children then get sued, divorced, in an auto accident, in trouble with the IRS, or bankrupt, your children’s creditors can take your assets!
Should I give away my assets to my children to avoid losing them to a nursing home or probate?
If you give away your assets, and if you then require nursing home care, you could impact government benefits such as Medicaid coverage. Also, if you give away your assets, and your children get sued, divorced, or bankrupted, their creditors can take your assets.
Do probate costs eat up the entire estate?
No. Probate in Oregon is not the expensive disaster it is in other states. It is a reasonable system that is designed to be fair to creditors and beneficiaries alike. Choose an attorney carefully.
What about life insurance and annuities?
Use the beneficiary provisions provided by pension plans, life insurance, and annuities. Most pension plans and life insurance policy proceeds pass under beneficiary designations that avoid probate without use of revocable living trust. Using beneficiary designations could be a less expensive way for you to avoid probate. Be aware though, that all probate avoiding devices can result in negative consequences relating to taxes, eligibility for publicly provided long-term care, and loss of independent control over an asset.
My wife and I have children from prior marriages, what should we do?
This happens all the time. If you have a blended family, you should have a pre-nuptial agreement or post-nuptial agreement to protect your children from being disinherited. If you do not want to see your children disinherited, do not mix your assets with your spouse’s assets, and each of you should have a separate will or trust. You may wish to use different attorneys. Call me to discuss this.
Should I have a power of attorney and an advance directive?
Yes. A power of attorney allows the most trustworthy person you know to sign your name for financial purposes while you are alive, to conduct business on your behalf. Do not appoint a person as “attorney in fact” under a power of attorney unless you trust them absolutely. An advance directive for health care allows you to appoint a person to make health care decisions for you if you are terminally ill.
Who should I appoint as personal representative?
Typically you will want to appoint your spouse as first choice, and your must trustworthy child or relative as second choice. Please call me to discuss