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Wills are legal documents designed for submission to probate court and are not effective until after submission to probate court. If you die without a valid will, that state has a plan for the administration and distribution of your estate called "intestacy". The court process for intestacy is virtually identical to the court process with a valid will called "testacy". A will appoints a Personal Representative to manage your estate in accordance with the law and the provisions in the will. The will can also waive the requirement for bond. The will can direct distributions of assets that would be subject to probate to your intended beneficiaries in whatever shares or amounts you specify. You can direct that assets be sold. The distributions can be made outright, where it lands in your beneficiary's pocket, or the distribution can be held in trust called "testamentary trusts". Testamentary trusts can be customized to your unique situation, including tax planning, special needs planning, residence trusts, trusts for minor beneficiaries, etc.

A will is always prepared in conjunction with a revocable living trust called a "pourover will". The pourover will is designed as a back up document to transfer assets left in an individual's name to their trust via the probate process.

The will can also appoint guardians for your minor children and a guardian for yourself.

Bear in mind that the probate process is expensive. While a basic will plan costs less up front than a trust plan, you may end up saving thousands of dollars overall by going with a trust plan.

The most common types of trust we draft are revocable living trusts, which are part of a foundational estate plan, designed to provide incapacity planning, tax planning, privacy, probate avoidance, asset organization and management. A trust is a private legal arrangement where a person called "Settlor" or "Trustmaker" or "Grantor" transfers assets to a Trustee, who manages those assets for the benefit of one or more beneficiaries. During your lifetime, you are the beneficiary of your own revocable living trust. You can serve as Trustee of your own revocable living trust so long as you have capacity, and you can require proof of incapacity in order for a Successor Trustee to step in and take over management of the trust.

A revocable living trust acts as a will substitute, in that it provides a plan for distribution of your assets after your death without the time, expense and public-nature of a court probate proceeding. Distributions can be made outright or in further trust for purposes such as tax planning, special needs, residence trusts, trust for minors, pet trusts, etc.

As tax laws and your individual situation change over time, tax planning for married couples often includes an optional disclaimer of assets to allow for the surviving spouse to decide within 9 months of their spouse's death whether to disclaim certain assets in order to establish a tax planning trust or trusts. Beware that the disclaimer rules are very strict and it is a big decision to be making at a very stressful time. Married couples with a high net worth or in a blended family situation may want to consider mandatory tax planning provisions, where they can be sure that one-half of the trust assets will be held in a trust for their intended beneficiaries with a layer of creditor protection and the tax planning is not subject to the strict disclaimer rules or 9 month time frame.

In order for the trust to function smoothly, assets must be retitled to reflect that the owner is the trust. You may need to present a Certification of Trust to certain institutions in order to retitle assets to the trust. We can assist you with deeds for any of your Oregon properties. We provide detailed instructions on "funding" your trust with assets and are available to answer questions as they arise.

Powers of attorney are very powerful documents granting your "agent" or "attorney-in-fact" with all sorts of powers over your financial affairs and are part of every estate plan. You can require proof of your incapacity before the power of attorney becomes effective. Powers of attorney tend to be cumbersome documents to use. If it is your intention to use your power of attorney as a tool in your incapacity planning, I recommend getting that set up with each financial institution now so there are no additional delays or stressors when the power of attorney is really needed. After death, powers of attorney are no longer effective.