On this page you will find a list of frequently asked questions and answers relating to Wills, Trusts, and Estate Planning. If you have any related questions that need answering, please email or call estate planning attorney Julia Rice at (503) 726-5990.
Wills & Trusts
People often wonder about the advantages of having a living trust rather than a will. Significant advantages exist to having a revocable living trust, although there are a few disadvantages as well. Ultimately, each family’s or individual’s unique situation deserves careful attention to determine what type of estate plan best suits their needs.
Both wills and trusts outline who should receive your assets when you die. If you die without a will or trust in place, your property will pass via the pre-determined “intestate succession” rules under Oregon law. If you want to control disposition of your own assets rather than the de facto plan, you will need to create an estate plan centered on either a will or trust.
Most people have a general concept of a will. This formal document names the beneficiaries of your assets and appoints a personal representative to distribute those assets and otherwise wrap up your affairs under the close supervision of the probate court (more on this below). A will depends on the court process to become fully implemented.
As its name suggests, a revocable living trust is a trust you create during your lifetime by transferring assets to a trustee. The trust holds and manages these assets for your benefit during your life and then distributes them to your beneficiaries after you die. Most people who create revocable living trusts serve as the initial trustee and name successor trustees to replace them at death or when they become incompetent to serve. With a revocable living trust, you maintain full control of your assets. A probate is not required to distribute assets after you die and the administration takes place privately.
Probate is the court-supervised process to transfer assets to the intended recipients. Probate can be cumbersome, expensive, and time-consuming. Further, information regarding your estate, including the proposed distribution of your assets, becomes public record. Many people prefer to set up an estate plan that avoids the cost and formalities of the probate process.
A properly drafted revocable living trust avoids probate and allows family members to keep your financial information private. By avoiding probate, your family can also save the costs associated with probate and the lengthy delays necessitated by the court process. Since the trustee does not have to navigate the complicated probate process, the trustee can settle the estate much faster.
A living trust also allows you to outline ahead of time who should care for your property, finances, and yourself in the event you become disabled or incompetent. This eliminates the need to apply to the court for a guardian or conservator for assets titled to the trust.
Despite the advantages of a revocable living trust, this planning mechanism might not be best for everyone. Younger couples who are in accumulation mode may opt to have a will rather than a living trust due to the hassle factor of ensuring everything is titled in the name of the trust.
Additionally, it costs more initially to have a trust drafted rather than a will. If a trust is the right planning tool for you, however, your beneficiaries will appreciate that you spent the money to have a proper trust prepared, because the savings are typically far more by avoiding probate.
Even if the parties opt to have a revocable living trust, they must recognize that they still need a pour-over will. Only assets that have been properly transferred into a trust will be distributed according to the trust’s terms. If, for some reason, you have assets that do not get titled in the trust, these assets will pass outside the trust. A pour-over will ensures that any assets that were not funneled into the trust are moved into the trust upon the decedent’s death. Julia includes the pour-over will as part of the overall package for the living trust.
Typically, the advantages of the revocable living trust far outweigh its disadvantages. However, a living trust is not for everyone. You may opt to have your estate pay the costs of probate rather than paying the costs upfront to set up a living trust. On the other hand, you may highly value the privacy and long-term savings that a living trust affords when compared to a will. Julia will help you determine which avenue works best for you and your family.
Julia Rice creates and drafts custom estate plans that are tailored specifically to her clients and their needs. When it comes to estate planning, there is no such thing as one size fits all. The complexity of the plan depends on clients’ estates and their estate planning goals. Julia works with her clients, along with their financial and tax advisors, to develop and implement comprehensive and personal estate plans that minimize the potential for taxes and litigation.
Clients are often surprised to learn that everyone has an estate worth planning. Contrary to common perception, planning is not only for “retired” people or “wealthy” people. Estate planning truly benefits everyone, regardless of such factors. Planning in advance allows clients to determine how their property will be transferred when they pass away. Further, creating an estate plan helps clients ensure they have the right people taking care of their children or themselves should they become incapacitated. Julia refers to these individuals through the design process as “helpers.” Julia spends a lot of time with her clients making sure they designate “helpers” they trust given the large role they play in either the care of the incapacitated client or in the administration of the estate.
There are numerous other reasons to plan in advance, including protecting assets for children should a spouse remarry; ensuring a beneficiary with special needs does not have government benefits disrupted, minimizing tax liability, and avoiding probate. Spouses often worry that the surviving spouse might unintentionally disinherit their children by marrying again. The survivor may wish to provide for the new spouse and leave all of his or her assets to that new spouse. When the surviving spouse passes away, all of the assets go to the new spouse. The new spouse may then choose to leave all of the assets to his or her own children, thereby disinheriting the survivor’s children. Unfortunately, this scenario is occurring with increasing frequency. However, we can plan around such concerns.
When Julia prepares an estate plan for her clients, she includes vital additional documents such as Advance Directives, Powers of Attorney, and Dispositions of Remains. She also works with clients to ensure the funding process is properly completed for revocable living trusts so that the trusts work the way clients intend. Call or email today to set up a free consultation. Julia would love to work with you to identify your specific concerns and needs.