Most people do not need to avoid probate. They need the right tools to make it easier. The first step to that is drafting a will and informing loved ones of its location and contents.
Even then, the challenges are only beginning. In addition to managing the paperwork and legal formalities that follow a death, your loved ones are also facing their grief. This is an overwhelming time where even a simple telephone call to a life insurance company feels like a monumental task.
Efforts made now can make this easier for your friends and family in the future. Once you finish your will, complete these five tasks to assure a more efficient probate process for your loved ones.
Keep It All Together
Once you draft a will, keep the original in a safety deposit box, a copy with your attorney, and another copy with your executor, the person named in your will to manage your estate. Let other family members or close friends know you have a will and who has copies of it.
Wills do no favors if they are kept secret. If no one knows you have a will and/or cannot find it, then your loved ones will be forced to file an intestate probate in order to transfer your assets. An intestate probate is a probate without a will. It is more time-consuming and more expensive than a probate with a will. Moreover, this leaves your loved ones wondering what to do. A will expresses your wishes and directs your loved ones what you want to become of your assets after your death.
Keep other important documents near your will as well. These may include real estate papers, car titles, stock certificates, and life insurance policies. If all these documents are together in one place, life for your grieving executor just became easier.
Make Lists Now
One of the largest tasks in probate proceedings is the inventory. This is a list of all your assets and their values. The court uses it to determine the value of your estate and the distribution of your property.
Start keeping updated lists now to make this job easier for your grieving relatives. If you have a special collection of art, jewelry or other high-value items, keep track of these items in a spreadsheet or even a notebook. List values if you have them. Your executor may have to get some items appraised, but even just a list will make the inventory step easier for your executor.
If a loved one is a joint owner on a real estate deed or car title, tell them. This makes it easier for them to take possession of these items after you die and keeps the asset out of probate. The same is true for any life insurance policies. If beneficiaries know they are entitled to these funds, they may be able to collect them without the involvement of the court or your executor.
Likewise, if there are family members who are not receiving any of your property, be direct about this situation and who is affected. You may want to tell a trusted family member. Being clear about all your wishes, even those that work against family members, prevents problems after your death.
Organize Your Finances
Just as you own assets, you may also carry debt. Keep mortgage documents, credit card statements, and medical bills in an accessible place and maintain a current list. Then when you executor must send out notices to creditors, they do not have to engage in an exhaustive search to find them all.
Provide Attorney Contact Information
When you pass away and your family and friends grieve, your estate planning attorney can be a guiding voice of reason during a difficult time. It is much easier to complete a probate filing with the attorney who knows you and drafted your will then to start from scratch with a new attorney.
Your attorney’s name, address, telephone number, and email address should be in the margins of your will. Inform your family members who you hired to handle your estate planning. Even if your attorney moves from the area or retires, having that information can still help your loved ones find someone else to represent them in the probate proceeding.
Gruber & Associates, P.C. offers estate planning and probate guidance for Oregon residents. Not only can we design an estate plan that best reflects your wishes but we can make the probate process more efficient and effective for your family. Contact our office today to schedule an estate planning or probate consultation.
Fall is starting soon and with it, Halloween celebrations. However, horror is not limited to one holiday. It can infiltrate your life and the lives of your loved ones anytime you die intestate (without a will). Impacts go well beyond the fun party-horror of Halloween. There are real consequences if you avoid estate planning.
The usual impacts of dying without a will have been discussed in detail in other articles. But real-life situations illustrate the point better. Here are three intestate horror stories of people who died before they signed a will.
Prince Rogers Nelson
Few people made it through the 1980’s without hearing about Prince. A talented musician known for his flamboyant fashion sense, he won seven Grammy Awards, one American Music Award, a Golden Globe, and an Academy Award for his work in Purple Rain in the course of his career. He was inducted into the Rock and Roll Hall of Fame in 2004, the first year he became eligible.
Prince was a fanatical organizer when it came to his numerous intellectual property rights and financial investments. When he died on April 21, 2016, the discovery that he never performed any estate planning was rather astounding considering the attention paid to other portions of his life.
The result was an estate estimated at $200 million and approximately 45 people coming forward claiming to be heirs. There were fraudulent claims, like an inmate in Colorado insisting that he was Prince’s son. (A DNA test invalidated the claim.) A niece and grandniece were also eliminated from the possibilities. In the end, a Carver County, Minnesota probate judge ruled six siblings and half-siblings as his official heirs. Although Prince had tense relationships with most of his siblings, that was never considered in the intestate proceeding. The judge had no choice but to strictly follow Minnesota’s statutes.
After one year, this is the only issue sorted out. There are still questions of who will eventually own his intellectual property rights, including the singer’s post-1995 catalog and unreleased material. Contracts remain in dispute and with that, there is no certain date of when heirs will take possession of his assets.
One of the most famous intestate deaths was Howard Hughes who passed away in 1976. A reclusive billionaire known for eccentric tendencies, he created a 34-year mess by passing away without any signs he made an effort towards estate planning.
Hughes did not have any direct descendants or immediate family to make this easier. Court authorities started with an extensive search for a will in a desperate attempt to wrap up his estate in an orderly fashion. Interviews with attorneys, banks, employees, and even the owners of hotels he frequently patronized revealed nothing. Newspaper classified ads basically begged for someone to come forward with a will and in a last-ditch effort, even a psychic was involved. It became abundantly clear that this estate was about to become an intestate nightmare.
Despite claims that Hughes hated his family and did not want them to benefit from his estate, the court still considered potential heirs. Distant cousins came out of the woodwork and before long, Nevada, California, and Texas authorities came forward to insist that Hughes owed state taxes and that his estate needed to be managed in those jurisdictions. Women claiming to be former spouses also filed claims although there were no marriage records on file.
In the end, 200 distant relatives benefited from the estate, collectively receiving $1.5 billion. Liquidation of assets continued until 2010 when the whole matter finally concluded.
Simon the Client
While there are numerous examples of famous people dying without wills (intestate), it is not just the talented and wealthy who need to draft estate plans. Regular working class, middle class and even “poor” people can leave nightmares for their loved ones if they do not have an Oregon draft a will for them to sign. One example was an estate this office handled years ago: It belonged to a client we will call “Simon.”
Simon was single with no children or grandchildren. He was an only child. His parents were gone, leaving him with no immediate relatives. Despite living an active life, he died unexpectedly at home at age 53.
Yes, Simon had assets. His modest home and one four-year-old car were owned free-and-clear. He had a live-in girlfriend for the last 10 years named Mary. A search of Simon’s safety deposit box after his death revealed what he BELIEVED TO BE a will, leaving everything to Mary. But it was not correctly witnessed and notarized. The probate court could not honor it.
That left the distribution of Simon’s estate to Oregon statutes. Since there is no room for intestate inheritance to unmarried partners, the house and car were liquidated with money passed on to distant relatives. The second cousins who benefited from the estate never had a relationship with him. Indeed, the executor (AKA personal representative) chosen by the court to manage the probate process, was a second cousin who had not seen him for 40 years.
Even though the unenforceable will made it clear that Simon wanted everything to go to Mary, the court could not honor it. Mary filed a dispute and held up the estate for eight months. In the end, she did not prevail and was evicted from Simon’s house.
Single adults who are estranged from living family have the most to lose by not having a will. However, there are no disadvantages to a will even if your situation is stable. If you are married, there is always the possibility that you and your spouse will die in the same incident. You cannot assume your spouse takes care of everything when you die–you must make allowances in case you are both gone. That is how a will can save your loved ones a lot of stress.
Avoid creating your own intestate horror story and make an appointment to draft a will that is enforceable in Oregon. Gruber & Associates, P.C. serves Washington, Multnomah, Marion, and Clackamas counties and can get you started. Contact us to schedule a consultation.
Oregon residents frequently search for free legal forms and that includes wills. There is no approved State of Oregon Last Will and Testament form which allows legal document companies to take advantage of this market and tempt hapless consumers into saving legal fees.
Estate planning should not be a do-it-yourself activity and free Oregon will forms are the worst way to make this attempt. Here are four reasons why you need to stop wasting time finding a free form online and instead, call an Oregon estate planning attorney.
They are unlikely to be helpful
It takes effort to find a free will form online. Legal document services like LegalZoom charge for the service as they guide you through a series of questions. This is standard in this industry and in most cases, you will pay $30 to $100 for the service.
If you come across a free form, it is either extremely basic or without guarantees of legal validity. Most have not been evaluated by an attorney and are often thrown together by lay people hoping to attract website hits.
AllLaw offers a paid service to customize a will but also includes this free will form. You have to cut and paste the text from the window to start drafting and there is little guidance. The form contains a warning that it is not reviewed by legal counsel and exists only for educational purposes:
Even if your search reveals a form that appears legitimate and may even been drafted by an attorney, you still do not know for certain if it is appropriate FOR YOU. A free form is often not the solution to your estate planning issues but the beginning of new ones.
They don’t make you think
Most will forms are fill-in-the-blank projects that make the task appear easier than it is in reality. Completing will forms feels more like filling out information for a Costco membership than making serious long term plans. This underestimation of your will’s importance does not help you design a good estate plan.
Mainly, you may avoid giving your circumstances the consideration they require. When you visit an attorney’s office for estate planning, you have an opportunity to discuss your concerns, ask questions and talk about “what ifs.” This discussion arms you with the information you need to make the decisions THAT ARE RIGHT FOR YOU AND YOUR LOVED ONES. With fill-in-the-blanks forms, your focus is on filling in the blanks–not understanding the consequences of those decisions.
For example, specific property requests may seem benign. Here is where you can bequeath everything from your collection of glass miniatures to your car:
This can have three possible effects. You can make property awards that are not enforceable, like to your minor children. This adds time to the probate process as the court attempts to create a trust or appoint a conservator to manage your children’s assets until they reach adulthood.
Also, if you award too much property to a family member on government benefits, that bequest could render them ineligible and cause hardship. There are other ways to protect vulnerable dependents that will not kill their access to vital benefit programs.
Finally, some people will feel the need to list every item of property in this section which is time-consuming and usually unnecessary. It can become confusing if any of the property is no longer in your possession when you pass away.
Even if your estate is simple, reviewing circumstances with an attorney assures you cover important aspects and create an effective estate plan with no doubt as to your intentions. You also avoid the impacts of well-intentioned but poor decisions.
They are generic
Will forms of all types are an attempt to make one size fit all. This never works with estate planning and even if your situation is typical, the form may still not be appropriate. People and their estates are diverse and an estate plan perfect for one client rarely works for anyone else.
For example, these two paragraphs will not help you if you are single and simply fill in the blanks. You may have to change spouse to “friend” or “live in partner”:
Additionally, will forms frequently contain provisions that may not be necessary for your situation. If you are single, have charitable aspirations, and never had children, there is no need to designate a trust for minor children (which occupies two pages of this particular will form). That is an unnecessary distraction that prevents you from addressing other matters and may lead you to overlook important aspects of your estate.
There’s no accounting for special circumstances
As indicated above, there are estate planning decisions that can lead to dire consequences. If you care for an older relative or an adult child with special needs, you must handle bequests to them VERY carefully.
For many clients, it may be their first instinct to grant a special-needs child or older relative a large amount of money. If these individuals receive disability payments, Medicare or Medicaid, that decision can cancel out their eligibility. This introduces new complications as your adult dependents attempt to secure health insurance or stretch out the payment to cover all their daily needs.
However, if you see an Oregon estate planning attorney, you can learn about your options. A trust preserves your assets for these family members and allows them to receive payouts from your estate without sacrificing benefits. When you take the do-it-yourself route with a free will form, you may not execute this plan correctly and place your family at risk.
Correct execution becomes more challenging
Your will is not complete until it is executed. This includes your initial on every page, your signature at the end, and the notarized signatures of two witnesses. That end step could be the most challenging aspect of finalizing your will.
On your own, it can take effort to assure your witnesses and notary are available at the same time. Finding witnesses can be a challenge too. It is possible to use relatives as witnesses, even if they are beneficiaries. But attorneys often do not recommend it because that leaves wills VERY vulnerable to court challenges.
Your safest witnesses are disinterested parties with no connection to your will or estate. When you go through an estate attorney, those ready-witnesses include law office staff. Also, every law office contains notaries which make it easy to finalize your will in one appointment.
These logistics are often challenging enough that probate attorneys sometimes see do-it-yourself wills without witnesses or a notary block. That renders the will invalid and you end up with an intestate estate.
Free advice is worth what you pay for and Oregon will forms are the same way! If you want to draft a will without paying excessive legal fees, contact Gruber & Associates, P.C. to schedule a consultation.
This is the final installment of the Wills vs. Trusts series and it is clear that Oregon probate law can be ruthless to those who do not create a written estate plan. It also imposes serious impacts if clients do not create an estate plan that is right for them.
The right estate plan for you may involve a will, trust or a combination of both. This overview generally addresses who needs a will and those who require a trust.
There is no doubt that a will is a helpful estate planning tool. When it meets the requirements for a last will and testament in Oregon, it reduces family stress and streamlines the distribution of assets after death. However, there are limits to a will and that is why it is best that you discuss your circumstances with an estate planning attorney rather than attempting to draft one on your own.
To get an idea of what you need to consider while estate planning in Washington, Multnomah, Marion, and Clackamas counties, here is what wills do and don’t do.