< Wills – McGinty & Belcher Salem Oregon

What is a Will?

A Will is a set of instructions that explains how to give away your property after your death. Besides providing instructions about gifts of your property like your home, car, household goods and furnishings, recreational equipment, jewelry, and other personal effects – it can also provide instructions for payment of debts, selection of a personal representative to manage your estate, and appointment of a guardian if you have minor children.

WHO CAN MAKE A WILL?

In Oregon, anyone of sound mind and over the age of 18, or, married if younger than 18, can make a Will.

THE DISADVANTAGES OF DYING WITHOUT A WILL
If you do not make a Will, you give up the right to decide who will inherit your property. Your property will be distributed according to Oregon law. This distribution might be quite different from what you might have wished. For example, if you are married and have either no children, or you have children and all of your children are born of your current marriage, property that is in your name alone will go to your spouse. If you are married and have children from a prior marriage, one-half of your property will go to your spouse and the other half will go to your children. This is so even if you may have wanted to leave part of your estate for the care of your parents or to a friend, or charity.

Without a Will, you also lose the opportunity to select a guardian for your minor children. If you have children under 18, the court may appoint a guardian or conservator to take care of the children and to hold property for the children. This court appointed guardian or conservator may not be the family member or friend that you would have chosen to take care of your children.

THE ADVANTAGES OF A WILL
Having a Will allows you to plan the distribution of your estate among your family, relatives, friends, and charities. It prevents later disputes among your heirs and may help speed up the transfer of your property to your named beneficiaries. Having a Will can also avoid certain administrative expenses. For example, if there is no Will stating that you do not want your personal representative to post a bond, the court may require a bond and the estate will have to pay bond premiums. In a large estate, proper planning can greatly reduce the amount of taxes that would other wise be due if there was no Will.
Finally, a Will allows you to appoint a personal representative to manage your estate and to appoint a guardian or conservator to take care of your minor children and handle their inheritance until they become adults.

APPOINTING A PERSONAL REPRESENTATIVE
Your personal representative is the person who will manage your estate during probate. That person will gather all your property together, pay your bills, and distribute property to your beneficiaries. A relative or friend can serve as your personal representative. It is usually best to choose someone who is comfortable taking care of financial matters and record keeping. If you do not want to choose a relative or friend as your personal representative or if you have a large estate, you may want to consider choosing professional management of your estate by selecting a bank or trust company as your personal representative.

APPOINTING A GUARDIAN

If you have children under 18, you should appoint a guardian in your Will. If you and your spouse die at the same time without such an appointment, the court will select a guardian to care for your children and manage their inheritance. Your Will can create a trust to control the property transferred to your children. At McGinty & Belcher, we can help you to select a guardian and to create a trust in your Will that protects your children and your wishes.

PREPARING YOUR WILL WITH A LAWYER
A Will is only valid if it complies with the requirements established by law. To be effective in Oregon, your Will must be in writing, signed by you, and witnessed by at least two other people. Your witnesses must have seen you sign the Will or must have heard you say it is your signature. If your Will is not properly written or if you do not comply with the detailed requirements for preparing a Will, your Will may be invalid. A mistake in drafting your Will can be extremely costly and cause a great deal of delay and expense in the administration of your estate. More importantly, your property may not go to the persons you want to receive it.

I have a Revocable Living Trust. What can I do to make sure I can avoid probate?

Question:
I have a Revocable Living Trust. I’m not sure that covers everything. What should I do to make sure I can avoid probate?

Answer:
Although your Revocable Living Trust can help you avoid probate, you may still need a Will, especially if you failed to transfer all of your property in the Trust. The Will can have a “pour-over” provision to transfer your property to the Trust when you die. The “pour-over” provision will cause your property to be distributed according to the terms of your Trust.

Personal property disbute after death of long time companion with no Will

Question:
My companion of 15 years died recently and his children are asking to pick up a bunch of things that they say belong to him. My companion and I had never been married but we put the house into joint ownership with right of survivorship. There are also a number of personal things that we bought together, I bought individually, or he and I each bought to help take care of the house. I think I should be entitled to this property but his children are being quite forceful about demanding a number of those items. My companion didn’t have a Will. What can I do?
Answer:
It is fortunate that you and your companion put the house into joint tenancy which means that ownership automatically passes to you upon the death of your companion. The personal property is much more problematic. If your companion had left a Will, he could have provided for his own children to the extent desired, and you would have known ahead of time which items would have gone to them and which property would go to you. Without a Will, any property owned or purchased by your companion alone, legally, belongs to his children. However, they are not entitled to come into your home or your garage without your permission and simply take items which may be in dispute. If they insist on coming onto your property without permission, you can call the police and charge them with trespassing. Also, if they remove property which in fact belongs to you, they can also be charged with theft. The biggest problem with personal property is that it is untitled and proving ownership is difficult. I would suggest a negotiated settlement with them as to which items they can take and which items you should keep. If that doesn’t work, the children can probate their father’s estate but, again, they have the burden of proving which personal property they have a right to. This would be both costly and time consuming. This is a situation where it is in everyone’s best interest to try to work out a reasonable agreement. And, also a lesson to us all of the importance of having a Will.

Can a child from a previous marriage contest my Will?

Question:
My wife and I have been married for many years. My wife and I have one son together. We each have a Will that leaves everything to the surviving spouse but to our son after we both die. I also have another child from a previous marriage, a girl who is 40 now. I have not heard from my daughter for many years but I have been worried lately about whether she can contest my Will and claim part of my estate. Is that possible?
Answer:
Anything is possible. Anyone can contest a Will, even a Will that has what we call a “no-contest” clause. Whether or not a person is successful in making a claim against another’s estate is another matter and will be determined upon the facts of the case and the basis of the claim, e.g., lack of testamentary capacity. Each case is different. However, generally speaking, a parent has no obligation to leave anything to an adult child. I would recommend that to put your mind at ease you speak with an attorney and review your estate plans to make sure that your current plan meets your needs.

When should I update my Will?

Question:
When should I update my Will?
Answer:
A Will should be reviewed at regular intervals and updated when the Will no longer meets your needs. A change in your family or a substantial change in assets should also cause a review and possible change of your Will. Some of the major changes to cause a Will review, and possible change, include: a) A death of a beneficiary; b) A change in family circumstances such as births, deaths, marriages, divorces; c) A change in your economic status; d) A change in Federal or State tax laws; e) A change in business venture; f) A move from one state to another; g) A change in the property that is intended to be distributed. In essence, anything that might effect how you want your property to pass to your heirs.