Estate Planning FAQs
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if you have questions and need help creating an estate plan tailored to your individual needs. It is best to seek the advice of an attorney who has expertise in the area of estate planning. Estate Planning has potential financial and tax outcomes. An experienced attorney can foresee those outcomes and make sure they are favorable to your legal needs.
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Do Online Wills Work?
If correctly completed and properly witnessed, a will form, whether downloaded online or purchased in paper form, can be legally valid. Unfortunately, problems with these online wills usually are not discovered until someone had died—and then it’s too late to correct mistakes. Too often, we see online wills or form wills where the deceased wrote inconsistent instructions or did not think of all the “what ifs” that an attorney usually reviews. Sometimes these online wills are not properly witnessed.
Having an attorney involved in the process can help document that an older person making a will has “testamentary capacity”—sufficient understanding of their assets and who their family are—to help ensure the that the Will holds up in court.
Even if an online will does hold up in court, often the process of getting it admitted into probate is more expensive than the cost of creating a Will with an attorney.
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Trust vs Will?
Trusts became popular to help minimize federal estate taxes. Today, the federal estate tax threshold is so high (more than $11 million in 2020) that few families have to concern themselves with this so-called “death tax.” Some people find trusts appealing as a way to avoid the cost and delay of probate.
Setting up a Trust, however, frontloads the expense of probate during your lifetime by creating complex documents and retitling assets. Caution trust administration after someone dies often involves notices and accounting—and, in some circumstances, a court proceeding. We often find that probate is not what makes administering a deceased’s financial matters expensive. Complicated families and complicated assets make administering financial matters more expensive.
Some people forget to put all their assets into their Trust. When this happens, a probate process is still required in addition to the cost of trust administration. In other words, a Trust can make winding up final affairs more complicated and just as expensive as probate.
Reasons to Choose a Trust?
Married couples with more than $1 million in assets—Oregon’s estate tax threshold—may want to set up a credit shelter trust. This type of trust can restructure assets to enable a surviving spouse to receive the benefit from assets but keep them out of that spouse’s estate to avoid or reduce Oregon estate tax liability.
If you own real estate or mineral or gas rights owned outside the state of Oregon, your loved ones can avoid the need for a second or “ancillary” probate proceeding in the other state or country if you have a Trust.
If you have a blended family, you might want to set up a Trust to keep the surviving spouse from disinheriting their stepchildren.
If you have a family-owned business or family-managed rental property, a Trust can make ongoing management easier.
If you have minor children, putting their inheritance into a Trust is important in order to provide instructions about how their guardian can access funds for them until the children reach an age where receiving their inheritance is appropriate. This type of Trust, however, can be set up as part of your Will.