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. Married people under 18 can make a will. Your will must be in writing and must be signed by you and at least two witnesses. The witnesses must also have seen each other witness your will. It is important to make sure these requirements are carefully observed.

 

What are the benefits of a will?
A will allows you to decide how your estate will be distributed or managed after you die. It lets your wishes be heard regarding the care of minor children. It often prevents disputes among heirs and relatives. In a large estate, a will can also reduce the amount of taxes that may be due at your death.

 

 

Who should draft a will?
A will is an important legal document that can have a significant impact on your family. A lawyer can give you good advice on how the will should be prepared and executed. Having a lawyer draft your will may give you the assurance that your voice will be heard regarding how you want your children to be cared for and how you want your property to distributed.

 

Does a will avoid probate?
No. but having a will can reduce the cost of probate and the burden to your friends and family.  Whether your property needs to go through probate is determined by how that property is titled, not whether you have a will.

 

Can joint accounts substitute for a will?
Joint accounts, life insurance and retirement accounts usually do not have to go through the probate process, but do not act as a complete will substitute.  Many spouses own real estate, bank accounts, stocks and bonds and other types of property as husband and wife with the right of survivorship. This means that if you die leaving your spouse, your jointly owned property passes automatically to your surviving spouse, regardless of what your will says. Life insurance and retirement accounts are contractual documents.  You have to tell the companies you contract with who you want to receive your death benefit.  Your beneficiary designation will determine who gets the benefit regardless of what your will says.  Beneficiary designations and joint accounts are good estate planning techniques to avoid probate, but should only be considered as part of a complete plan that includes a will.  Your will directs who you want to be your personal representative (executor), what type of service you would like to have, how you want your personal property distributed and how your debts and taxes are to be paid joint accounts and beneficiary designations cannot answer those questions that your loved ones will have at the time of your death.

 

What happens if I do not have a will?
If you do not have a will, and if you have property that must go through probate, your property will be distributed according to a formula in the law. For example, if you are married and don't have children, property that is in your name alone will go to your spouse. This is also true if you are married and have children from this marriage. If you are married and have children with a different person, half of your property will go your spouse. The other half will go to all of your children, regardless of who is their other parent. If you have a child under the age of 18, the court may choose someone to take care of the property for that child. If you do not have a will or any family that would be entitled to your property, your property (which is in your name only) may go to the State of Oregon. Your family (heirs) includes a large category of relatives: spouse, children, grandchildren, parents, siblings, grandparents, nieces, nephews and cousins.

 

 I Who may I choose to inherit my property if I write a will?
The only rule is that if you are married, your spouse has a right to 25% of your estate. You can not completely disinherit your spouse. You are not required, however, to leave anything to your children or other family members. You may instead choose a friend or charity to inherit your property. If you plan to disinherit a family member it is very important that you consult with an attorney experienced in estate planning to make sure that your plan will be followed. Disinherited family members may object to your will during the probate process, so it is important that it is written by an expert.

 

What is a personal representative?
If you estate needs management, a personal representative (executor) will be appointed by the court.  Having a will lets you decide who that person will be.  You may choose someone familiar with your property and affairs, or a professional that can serve as a personal representative.  If you think there may be hard feelings in you family or your estate has complications such as children from a previous marriage, you may want to name a professional trustee.  Many banks and trust companies have experienced people to handle the difficult task of being a personal representative.

 

 

Can a living trust substitute for a will?
A properly drafted 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 living trust is proper for your estate is a decision to be made after receiving competent legal advice. 

 

Is a will expensive?
No. A simple will is not expensive. However, the cost of any will depends on how much work your lawyer does for you. As wills become more complicated, the cost rises. Ask your lawyer for an estimate of the cost. In general, the trouble and expense of not having a will far outweigh the cost of the will.

 

Do I need a will if I don’t have much money?
The amount of property you own does not determine whether you need a will.  Your personal and financial circumstances determine when and how a will should be drafted. For example, it is important for new parents to have a will to provide for their children even if they own little personal or real property.

 

What are estate and inheritance taxes?
Estate taxes are the taxes that need to be paid out of your estate after you die.  In the years 2004 – 2005 estates worth over $850,000 are taxed by the state, and estates worth over $1,5000,000 are also taxed by the federal government.  An estate planning lawyer can draft a will, trust or other document to help reduce the amount of taxes your estate owes upon your death.

 

Is a will from another state valid?
Yes. Generally, if you made a will in another state according to the laws of that state, it is valid in Oregon also. This is also true if you created a trust in another state.

 

Can a will be changed?
You can change your will at any time as long as you are of sound mind.  Major life events such as marriage, divorce, death of a family member or arrival of a new baby are good reasons to consider changing our will.  You may revoke your old will by destroying it, or by writing a new will.  If you only want to make minor changes, you may create “codicil”, a document that is attached to your will.  The same legal formalities are required from creating a codicil as a will, and therefore it is wise to consult an attorney about the changes you would like to make.  In the meanwhile, do not write on your old will, because you may end up invalidating the entire document.

 

Should I consider a medical advance directive?
Yes.  A will only takes effect after you die.  An advance directive and power of attorney are documents that may be used to manage you health care and finances while you are still living.  A power of attorney may be created for any purpose, but most commonly an elderly person will nominate a close friend or family member to be their “agent” to help manage their money.  Because this power can be abused, it is wise to seek the advice of a lawyer before signing a power of attorney.  An advance directive is a document in which a person appoints a “Health Care Representative” to make medical decisions such as living arrangements and treatment options when they become incapacitated and unable to make their own decisions.  An advance directive can be used to indicate whether you wish to have life support. Tube feeding or other heroic measure when you are close to death.  A power of attorney and advance directive can be excellent end-of-life planning tools.  Both documents expire at death, or can be revoked at any time.

 

For more information contact the Oregon State Bar at www.osbar.org or write to
P.O. Box 1689
Lake Oswego, Oregon 97035-0089
Legal Editor: Ellyn Stier