The hesitancy to plan for death as part of life is a common reason for not having a will. I like to reframe the conversation by teaching why a will should be considered a living document. The reason being that you can change it at any time while you are still alive. In fact, a will should reflect your life circumstances and should be modified based upon changes in your life such as birth, adoption, death, marriage, divorce, incapacity, variations in wealth, etc. Below are five reasons having a properly drafted will may improve your life and peace of mind.
Many people feel that creating a will is an unnecessary expense. Contrary to common belief, all non-trust estates must go through the probate process, with or without a will. (Probate is the court-supervised transfer of property from a deceased person (decedent) to his or her heirs and beneficiaries). Having a legally binding will in place answers the questions of “who, what, where, and when” and speeds up the whole process. The faster your estate can get in and out of probate, the more money will be preserved for your loved ones or for your charitable objectives.
Select Who Will Receive Assets.
In Oregon, when a person dies without a will, the laws of descent and distribution determine who will receive the assets of the estate and the method of distributing those available assets (Please see, ORS §112.015 – §112.049). The property distribution arrangement provided by Oregon law may be drastically different from your intentions. Regardless of the size of your estate, you must execute a will to pass property to your spouse, children, relatives, friends, or charities in proportions different from those specified by Oregon law. For example, a will is necessary to leave part of your estate to a niece/nephew or charitable organization.
Appoint Persons To Carry Out Your Wishes.
Another important function of a will is the appointment of people to serve in specific roles such as personal representatives, trustees, and guardians. These people are known as fiduciaries. To ensure the selection of an acceptable fiduciary, you must execute a will stating who you wish to serve as a fiduciary and assign him/her/them a role. If you have not made a will, then the probate court will appoint an individual to act as fiduciary. It is important to note that the court-appointed fiduciary could be anyone, including a creditor of your estate.
Nominate A Guardian For Minor Children.
A will may be used to nominate a guardian when minor children are involved. Absent a will, the court will choose among family or name a state-appointed guardian. This also applies to individuals who are dependent upon the person making the will (for example, Grandma with dementia). The court will abide by your guardian selection as long as the person/persons you named have the capacity to take care of a minor child or otherwise incapacitated individual.
Somewhat surprisingly, a will is also capable of setting up a trust. A trust created within a will is known as a testamentary trust. Testamentary trusts permit you to precisely direct how your estate assets will be used and to whom the assets will flow. Ultimately, a testamentary trust provides for a heightened level of control compared to a will that lacks a testamentary trust.
The information above has been provided by Nay & Friedenberg Attorney Aaron Cilek. Aaron would be happy to assist in customizing an estate plan to fit your specific needs. Please feel free to contact us at (503) 245-0894 to schedule an appointment. We would be happy to help!