by Admin | Aug 23, 2010 | Advance Directive in Salem, OR, Elder Law, Trusts
Question:
How can I avoid the necessity of a Guardianship or Conservatorship?
Answer:
If a person has planned ahead and prepared a Durable Power of Attorney (a Power of Attorney that is still valid if the person becomes incapacitated), and an Advanced Directive for Health Care, then, the person given the Power of Attorney should be able to step in and take over the affairs of the incapacitated person without the need for a Guardian or Conservator. Once a person has become incapacitated, however, they cannot legally make a Power of Attorney or sign an Advance Directive. Appointment of a Guardian or Conservator is likely the only option available if the person has not planned ahead.
Another planning option that many people use is known as a Revocable Living Trust, commonly known as a “Living Trust.” A Living Trust is a legal document that can provide for the management of your affairs if you become disabled or incapacitated. A Living Trust also can eliminate Probate upon your death.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR
Question:
I am the sole caregiver and legal custodian of my two grandchildren, ages 13 and 17. My only child is my grandchildren’s father. My son and the children’s mother have had no contact with the children since they were babies. A friend told me that if I should die before my son, my son would inherit my estate. I am a 76-year-old widow and I want to take care of my grandchildren even after my death. Can I disinherit my son so that my grandchildren are provided for after my death?
Answer:
Yes. You can disinherit your son, but in order to do so you must do some sort of estate planning. If you die without a Will, your estate will be distributed according to Oregon laws of intestacy. Because you do not have a spouse, your next of kin is your son and he would inherit your estate. If you do not want this to happen, you need to have an estate plan in place before you die that provides for your grandchildren and disinherits your son. Since your grandchildren are both minors, you also need to think about who should have custody of your grandchildren and who should manage your assets for your grandchildren’s benefit upon your death.
You can plan your estate using either a Will or a Trust. A Will is a legal document that shows who gets your assets after you die. A Trust is a legal document that also shows who gets your assets after you die but may be a better vehicle for managing the assets for your grandchildren’s benefit until they come of age. You should consult with an attorney about which legal document is best for you and your situation. In addition, you should also plan ahead for yourself. You are elderly and it is possible that you may become ill and require care. There are several options for protecting you and your grandchildren in this situation. However, you should discuss your situation with an attorney so you know which legal options are best for you.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR, Wills
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.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR, Wills
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.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR, Wills
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.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR
Question:
Several years ago I transferred my house to my 4 children, keeping a “Life Estate” for myself. Since then, one of my children passed away. I now want to sell the house, but I was told that my deceased son’s estate would have to be probated before it can be sold. Is this true?
Answer:
Maybe. It depends on how the property is titled. If you transferred the property to your children, jointly, with right of survivorship, then your surviving children now own your deceased son’s interest in the property. However, if you transferred the property to your children as tenants-in-common, then your deceased son’s interest belongs to his estate and has to be probated. The probate process will legally transfer your son’s interest in the property to his beneficiaries in accordance with his Will. If he died without a Will, then his interest in the property will pass to his heirs at law, generally, his spouse if he has one, or to his children. Your son’s beneficiaries or legal heirs will then have the right to make a decision about what they want to do with the property, including whether or not they want to transfer their interest back to you so you can sell the house like you want.
Often, older people transfer their homes into the names of their children, sometimes reserving a life estate in the home. A life estate gives the person transferring the home the right to live in the home or rent it out during her lifetime, but she must continue to pay taxes, insurance, and upkeep on the house during that lifetime. The person to whom the home is transferred is referred to as the “remainder person” because he or she acquires full title to the property after the death of the person holding the life estate. Upon the death of the life estate holder, the property goes to the remainder person(s) automatically, without probate.
This attempt to avoid probate, is one of the many reasons a person may transfer his or her property to another. However, as with all legal transactions, there are advantages and disadvantages which should be carefully discussed with an attorney prior to taking action. One problem that should always be considered is the possibility of a remainder person dying before the life estate holder. As you have discovered, if a remainder person dies before the person with the life estate, things can get tricky and the outcome may not be what you would expect or want.
