When an attorney asks if you have a Will, does he or she mean a Last Will and Testament, a Pour-Over Will, a Living Will, or all of the above?
You may be thinking, “I thought these were all the same thing!” These documents are, in fact, drafted to accomplish very different objectives. Legal documents can be confusing. So, let’s cut through the legal lingo and provide some descriptions that will help you decide which of the documents may be good for you.
Last Will and Testament
This is probably the document you think of when you hear the word Will. A last will and testament is a document that allows you to name beneficiaries of your estate (i.e., the persons who will receive your property and assets), as well as name guardians for minor children. In addition to describing who will benefit from your estate and who will take care of minor children, a last will and testament names the person or persons in charge of administering your estate. In Oregon, the person administering your estate is known as a personal representative. It is important to keep in mind that a Last Will and Testament only takes effect after you have died. This means a last will and testament may be amended any time prior to your death.
A pour-over will is a specialized form of last will and testament. A pour-over will works in conjunction with a revocable living trust. When a person creates a revocable living trust the goal is to have the trust administer the person’s estate upon his or her death rather than needing to perform a probate administration. However, occasionally a person who has made a trust, whether by accident or on purpose, has not re-titled or purchased an asset in the trust’s name. A pour-over will directs that any such property in a person’s own name that needs to go through probate should be governed by the terms of the trust rather than the intestacy laws that would have otherwise applied. In short, a pour-over will acts as a safety net for a revocable trust to ensure that all assets upon a person’s death pass in accordance with the terms of the revocable trust whether they have been funded into the revocable trust or, for whatever reason, kept out of the revocable trust.
A living will (also known as an advance healthcare directive) provides guidance to healthcare professionals regarding a person’s preference for certain forms of medical treatment when he or she is not able to express or withhold consent. The individual’s preference for or against receiving medical treatment is communicated to the healthcare professionals by a person known as a healthcare agent. Usually, individuals name their spouse or close family members as their health care agent. For example, a living will allows a person to state his or her preference either for or against tube feeding if he or she is in a vegetative state without any likelihood of regaining consciousness. Keep in mind that so long as you are able to communicate your own wishes, by any means, the healthcare professionals will always listen to you rather than rely on your advance directive.
Contact the Law Offices of Nay & Friedenberg LLC at (503) 245-0894 to schedule an appointment and to learn more about any estate planning documents.
Author: Aaron Cilek