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Why do I need a will?
This is a great question. Contrary to popular belief, it is not always necessary. There is a developed statutory scheme for distribution of property outside of probate. For instance, small estates may pass by Affidavit. Bank accounts and vehicles do not necessarily require probate. There is also an orderly structure for estates to transfer in probate even when there is no will. We call this intestate succession. Thus, the concern that passing without a will results in a transfer of your property to the state is a bit of a myth. Nevertheless, a will dictates how your belongings and property will be distributed, and most importantly, who will administer such transfer. You can also create a trust through your will which can be advisable for a number of reasons including transfer to minors, etc. Most importantly, a will is an opportunity to express the final transfer of the fruit of a lifetime of hard work and it honors that legacy.
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Can I change or update my will?
Your will can be easily updated and changed and there are a host of reasons to do so including, marriage or divorce, having children, hitting the lottery, addressing the needs of a disabled dependent, etc. Importantly, changes to a will require the same formalities of the original will including witnessing, etc.
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When should I make my will?
If you are asking the question, you are probably a good candidate. Once you begin to acquire assets or raise a family, the time is right.
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Can I draft my own will?
Drafting your own will is legal but not recommended, as “do-it-yourself” wills can be confusing and difficult. There are also important formalities that need to be met, including the execution of an Affidavit of Attesting Witnesses. Given the modes cost and time associated with hiring an attorney to draft a will, it is always advisable.
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When should I update my will?
A will should be updated regularly. Generally, every ten years is a good time to review your estate documents. Specific situations that typically trigger updating include, marriage, divorce, childbirth, adoption, the death of a spouse or child, moving to a new state, a change in dependents, a change in tax law, a change in your personal wealth, a change in your health, or a change in personal circumstances.
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What if a loved one dies without ever making a will?
If a family member passes without a will and probate is required, the process falls under “intestate law.” When this happens, spouses and children have priority, and then property passes to other surviving family members. If there is no surviving family, then property could pass to the Oregon Department of Lands, a commonly undesired result.
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What is a Revocable Living Trust and why would I need one?
A Living Trust is trust that is created while you are alive, instead of being created upon your death. A trust is an agreement where a person, the trustee, holds legal title to property for a beneficiary. The creator of the living trust can act as the trustee. There are several benefits to a living trust including ease of amendment, avoidance of probate (if properly funded), privacy, timely distribution, and importantly, the power to delegate or transfer the management of assets when the trustor (creator of the trust) no longer wants the job or is incapable of doing so. There are generally no tax advantages to creating a Living Trust.
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What is an Advanced Directive and when do I need one?
An Advanced Directive is a revocable document used to inform others your wishes regarding your healthcare desires in situations where you are unable to make your own healthcare decisions. The Directive can only be created when you are of sound mind. The document allows you to assign an individual as your Healthcare Representative. You can either direct your Health Care Representative make medical decisions for you in the event you are unable to or you can direct your Health Care Representative communicate your specific medical wishes to your health care providers, as indicated in your Advanced Directive. All individuals should create an Advanced Directive so their healthcare wishes are clear in the event they are unable to make such decision on their own.
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What is probate?
Probate is the legal process of administering the estate of a deceased person when claims/debts are paid and remaining assets distributed to heirs or beneficiaries. It also may be necessary to clear title to land, collect debts, settle disputes over the deceased’s property, or resolve challenges to the validity of the deceased’s will. Generally it is required if any probate property exists including real estate, significant bank financial assets, etc. Property that is jointly owned or has a beneficiary passes outside probate. Motor vehicles and certain bank accounts may also be transferable outside probate.
