Wills & Trusts
Wills and trusts are the foundational legal instruments used in estate planning. These tools provide a way for you to pass on your assets, property, and belongings to your loved ones when you pass away. While the thought of making a will or trust may be unpleasant, it provides you with the security that your wishes will be carried out. It also provides clarity for your family at a time when they will need it the most.
At Hurley Re Attorneys at Law, our firm has been creating wills and trusts for the people in our community since 1995. We bring extensive experience to this task and are here to ensure that you understand how these legal instruments work and your options in designing them to fulfill your needs and goals.
Talk with one of our Bend wills and trusts attorneys in a free initial consultation. You can reach out via our contact form or by phone at (541) 933-4688.
A will is a legal document that outlines your wishes regarding the distribution of your property and the care of any minor children after your death. It's essential because it ensures that your assets are distributed according to your wishes and not based on state law. Your heirs will have access to your property faster with a will and the document can prevent your assets from going to individuals you don’t want to have them.
If you pass away without a valid will, your estate will be labeled “intestate.” This means the state decides who gets what, which may not align with your preferences. This can cause conflict among your heirs that could lead to litigation, draining your estate of finances.
Wills do the following:
- Allow you to appoint an executor who will manage the administration of your estate, and pay off any debts, expenses, or taxes;
- Distribute your property according to the terms of your will which can include gifts and charitable donations;
- Name a guardian to care for any minor children and to care for the management of any estate you leave them
Will only take effect upon your death.
Trusts are legal vehicles into which you convey assets. The trust holds these assets separately from you and allows a third party, or trustee, to manage them on behalf of your beneficiaries. Your beneficiaries possess inheritance rights to the trust property per the terms you outlined in the trust. This arrangement involves a fiduciary duty of the trustee(s) to manage the trust according to its terms and conditions in good faith on behalf of the beneficiaries.
Trusts can be created in conjunction with wills and have advantages that wills do not.
Many different types of trusts can be created, each with its own purpose and stipulations. Examples of trusts include:
- Living Trusts: These are created during your lifetime and can be altered, modified, or revoked entirely. They help avoid probate, providing quicker distribution of assets to beneficiaries.
- Irrevocable Trusts: Once created, these cannot be altered or terminated without the permission of the beneficiary. The assets in an irrevocable trust aren't considered part of the estate, providing potential tax benefits and protection from creditors.
- Charitable Trusts: These are set up to benefit a particular charity or the public. The trust creator receives a tax deduction when the trust is formed.
- Special Needs Trusts: These are designed to benefit individuals with disabilities without disqualifying them from public assistance, such as Medicaid or Supplemental Security Income.
- Testamentary Trusts: These are established through your will and go into effect after death. They provide a way to control how your assets are distributed to beneficiaries.
- Spendthrift Trusts: These protect the trust assets from being claimed by a beneficiary’s creditors and control the distribution of assets to the beneficiary.
Other types of trusts are available. Our attorneys can advise you on the type of trusts that will be suitable to your situation, needs, and goals.
Avoiding Probate in Oregon
A will is not enough to avoid a probate proceeding in Oregon. However, a properly funded revocable living trust can.
If you own real property in your name and you die, a probate proceeding will follow. If you transfer your real property to your trust, it will avoid the proceeding and your successor trustee will have the authority to sell or transfer your real property.
Another way to avoid probate is to put beneficiaries on all your accounts. IRAs, life insurance policies, annuities, and retirement accounts will avoid probate as long as the beneficiaries who are named are alive and are not minors.
Owning property jointly with the right of survivorship will also avoid probate. However, if you put a beneficiary on your account that has predeceased you or if you die at the same time as your named beneficiary, a probate proceeding will be required to access these funds.
If you are married or single, the best comprehensive plan is a revocable living trust with a pour-over will. Pour-over wills act as safety nets to ensure any assets not included or forgotten in a living trust are transferred into the trust upon your passing. If you pass away, the successor trustee you appoint will administer the trust without court involvement.
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A revocable living trust will also plan for incapacity. If you become incapacitated, the successor trustee that you named will be able to manage your assets in the trust and pay for your medical and other expenses.
If you only have a will, you will need a Durable Power of Attorney (POA) to plan for your incapacity. If you and your spouse own your home jointly as husband and wife and one of you becomes incapacitated, the other spouse will not be able to mortgage or sell the property without this POA. Without a Durable Power of Attorney, you will need to petition the court to name you as your spouse’s conservator to sell or mortgage your home.
Have questions? Get advice by calling Hurley Re at (541) 933-4688 today.