Basics of an Oregon Estate Plan (Part 1)

Part 1.  What is a Will.

This is the first article in our basics of estate planning series.  In this article, we will explain what a Will is, what it can be used for and what it can’t do. 

Part two of our series is Part 2. What is a Living Trust.

What is a Will? 

A Will allows someone to decide how they want their assets divided after they have passed away.  Any person who is 18 years or older or who has been lawfully married or who has been emancipated, and who is of sound mind, may make a Will.

What happens if I die without a Will in Oregon?

If you die without a Will your assets are distributed according to the laws of Oregon.  Inheriting without a Will is called intestate succession and we have an article that diagrams some of the common ways your assets may be distributed. (Intestate Succession in Oregon)

Benefits of a Will.

There are many benefits to creating a Will.  At the minimum, a Will should appoint a personal representative and waive bond.  A Will can allow you to make a charitable gift, create a testamentary trust for your children, or even provide for your pets.

Formalities of making a Will.

There are several formalities that you need to follow in order to have a valid Will in Oregon.  The most important are that they are in writing and that two witnesses watch you sign your Will.

Does a Will avoid probate in Oregon?

A Will does not avoid probate but it can make the administration of probate cheaper and easier.  Your Will allows you to appoint a Personal Representative  to manage your estate and you will be able to waive bond for the personal representative.  Just doing those two things will save your estate money and move your estate through the probate court more quickly.

Elective Share.

While your Will ordinarily controls how you distribute your assets, your spouse has a right to claim part of your estate.  You are not required to provide for anyone in your Will and Oregon doesn’t allow anyone to claim a portion of your estate except for your spouse.

I have no money.  Should I make a Will?

How you distribute your assets is only part of what your Will does.  Your Will also allows you to make arrangements for your minor children. 

How do I change my Will?

You can make changes to your Will be adding something called a codicil.  A codicil requires the same legal formalities as a creating a Will. 

How do I revoke my Will?

Your Will may be revoked by creating another Will or by the physical act of destroying the Will with the intent to revoke it.  Certain acts automatically revoke your will.  If you get married or divorced, you should consult with an attorney to see how it affects you.  Getting married may revoke a previously written Will.  Getting divorced in Oregon revokes portions of your Will that benefit your former spouse.  If you have or adopt children after executing your Will, your Will may be modified by state law to provide for those children.

If would like to learn more about how to plan your estate, visit our practice page or search the blog on the right.  You can also sign up for our newsletter and have estate planning tips delivered to your email.

Duties of an Oregon Personal Representative

You've been appointed the Personal Representative.  Now what do you do?

When you are appointed as the personal representative in a will or by the laws of intestate succession, you may and may not be sure what being a personal representative requires.

The duties of a personal representatives are described by statute as:

ORS 114.265, General duties of personal representative

A personal representative is a fiduciary who is under a general duty to and shall collect the income from property of the estate in the possession of the personal representative and preserve, settle and distribute the estate in accordance with the terms of the will and ORS chapters 111, 112, 113, 114, 115, 116 and 117 as expeditiously and with as little sacrifice of value as is reasonable under the circumstances.

In plain English this means that the Personal Representative must:

• Safeguard the property of the decedent’s estate.  If it is necessary for property to not be in the possession of the personal representative, then a custody receipt should be used.
• Open a separate estate bank account and deposit all checks and cash of the estate.
• Notify Heirs and Beneficiaries.
• File an inventory of the decedent’s assets with estimated values.
• Determine the creditors of the estate and pay valid claims.  If the estate does not have enough money to pay all creditor claims, then the claims will be paid according to priority of claims set out by statute.
• File state and federal income tax returns and pay taxes.  Prepare a Federal and State Estate tax return if one is required.
• If the Estate Administration lasts longer than a year, then the personal representative must file an annual inventory with the court.
• Receive court approval before paying fees to the personal representative or before distributing property to the heirs or beneficiaries.

You Can Find More Information

1. On our Probate Practice Page.
2. Review blog posts about probate.
3. Search our website in the box on the right side of the page.