Wills

What is a will?

A will or “Last Will and Testament” is your last word to the court for instructions on the handling of your property and affairs. A will’s instructions are limited to those assets and matters under the jurisdiction of the probate court. Your will must be in writing and must be signed by you and two witnesses. The witnesses must attest to your signing the will and also have seen each other witness your will. The failure to strictly adhere to Oregon’s legal formalities will invalidate your will.

What are the benefits of a will?

A will allows you to decide who will manage your property and wrap up your affairs after you die. A will gives you voice about your wishes regarding a variety of issues, including distribution of your assets, selection of guardians for your children and the care of minor and disabled children. Without a will, the administration of your estate is governed by the Oregon Legislature, statues and courts.

Does a will avoid probate?

No. A will is the document that facilitates the probate process.

Does a will control the distribution of ALL your assets?

No. A will only governs assets requiring administration through a Probate or court process. Assets such as life insurance, retirement plans, and bank and investment accounts with beneficiary designations and transfer on death provisions pass by contract outside of the court process. Assets owned as Husband and Wife or as Joint Tenant with Right of Survivorship transfer by operation of law without a probate process as well.

Can joint accounts substitute for a will?

Joint accounts do not act as a complete will substitute. Many married couples own real estate, bank accounts, investments, and other types of property as husband and wife or as joint tenants with right of survivorship. When the first spouse dies, the property becomes the surviving spouse without the need for a probate process. But using joint ownership as a probate avoiding technique between a parent and child or a person and their beneficiary can cause unintended consequences. Among those consequences are gift tax liability, loss of tax benefits, unequal distribution among beneficiaries, a lack of control in the distribution of the estate, and disputes among beneficiaries. An attorney should be consulted to understand the advantages and disadvantages of this technique.

What happens if I die without a will?

If you do not have a will, and you have property requiring a probate or court process to transfer title, your property will be distributed according to statues enacted by the Oregon Legislature. For example, if you are married and have no children or children from a single marriage, all property passes to your spouse. If you are married and have children from a prior marriage, half of your probate property will pass to your spouse and the other half is split equally between all of your children. If you have minor children, the court will make the decision on who will serve as the guardian and conservator of your children. If you are unmarried, your property is distributed to your children, if none, then to your parents. If you do not have family, your property is distributed to the State of Oregon.