Here at Pacific Cascade Legal, an issue many of our clients face, whether they are experiencing a divorce, re-marriage, adoption, bankruptcy or personal injury case is that they have not yet made a will. When we talk with them about why they don’t have a will, the most common answer is that they aren’t sure why it is necessary.
So, let’s talk about some of the common questions we have been asked concerning what a will is and why it’s important to have one.
What Is a Will?
A will is a written set of instructions that explains how you want your property distributed after your death. 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 and often prevents disputes among your relatives. In general, any person who is of sound mind and has reached the age of 18 years old can make a will
To be considered a legal will, it must be in writing and signed by you and two witnesses. There are also laws about who can serve as witnesses to a person’s will and whether or not it needs to be notarized. It is very important to make sure that all of the legal formalities are carefully observed .
What Happens If I Don’t Have a Will?
If you do not have a will, and if you have probate property, your property will be distributed according to state intestacy laws, which are intended to distribute property and assets in a way the average person typically would (spouse, children, grandchildren, parents, siblings, etc.).
However, this may or may not match up with what you want. For example, individuals who are not family members and charitable organizations cannot take property through intestate succession. Therefore, it is especially important to have a valid Will if you want to leave any of your property to non-family members or have charitable intent.
And if you do not have a will or any family members who are entitled to inherit your property under the intestacy laws, your property may ultimately go to the state of Oregon.
Do I Need a Will If I Don’t Have Much Money?
The amount of property you own or your particular financial status does not necessarily determine whether you need a will, although it can determine how your 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.
Who Can I Choose to Inherit My Property?
The only rule is that if you are married, your spouse has a right to claim part of your estate. Generally, unless you entered into an agreement in which you validly waived your right to claim a share of your spouse’s estate, spouses cannot disinherit each other. 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.
Who Should I Choose to Carry Out My Instructions and Wishes?
If your estate needs management, a personal representative (also called an “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 desires, such as a family member or trusted friend. However, if you feel that there may be hard feelings in your family, or your estate has complications such as children from a previous marriage, you may want to name a professional personal representative, such as a bank or trust company.
Since the fee paid to a personal representative is determined by the size of the estate, not by who serves as personal representative, banks and trust companies cannot charge more to serve as personal representative as an individual is paid.
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 a new baby are good reasons to consider changing your will. In fact, getting married may revoke any will you made before your marriage. You may revoke your old will by destroying it or by making a new will. If you only want to make minor changes, you may create a “codicil,” a document that is attached to your will. The same legal formalities are required for 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 meantime, do not write on your old will, because you may end up invalidating the entire document.
Can a Trust Substitute for a Will?
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 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.
Some types of trusts, if properly drafted and administered during your lifetime, can work as a substitute for a will. However even if you have a trust, You should 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.
Can Joint Accounts, Life Insurance and Retirement Accounts Substitute for a Will?
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, any jointly owned property passes automatically to your surviving spouse, regardless of what your will says. Likewise, life insurance and retirement accounts are contractual documents that have a designated beneficiary that tell the company creating them who is to receive the money after your death. In these cases, your beneficiary designation will determine who gets the benefit regardless of what your will says.
While beneficiary designations and jointly owned accounts can be an important part of how you choose to distribute your property, it is only a part of a complete estate plan that includes a will.
Joint accounts, life insurance and retirement accounts usually do not have to go through the probate process, but they are not a complete will substitute, because they only control the distribution of those accounts.
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 the value of the property and how that property is titled, not whether you have a will.
Who Should Draft My Will?
A will is an important legal document that can have a significant impact on your family. Having an attorney who is knowledgeable about wills and estate planning can give you good advice on how the will should be prepared and executed. And having this attorney draft your will gives 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 be distributed.
Our estate planning attorneys at Pacific Cascade Legal can help answer any estate planning questions you might have, and determine what is right for your unique set of circumstances. Give our office a call at (503) 227-0200 to set up your free consultation today.
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