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.