There are triggering events which make estate planning, or editing an estate plan, necessary in Oregon. Remarriage is one of these triggers. This is especially true if your new marriage includes children from previous marriages, stepchildren, and additional children from your current marriage.
Even in the most well-adjusted blended families, death challenges relationships. This makes a clear estate plan vital if you want to provide for family members while also reducing conflict. You must also avoid making the same estate planning assumptions that are appropriate in first marriages but are likely to backfire in subsequent ones. Here are four unique considerations when creating an estate plan after remarriage.
Conflicts of Interest
The natural inclination is to leave everything to your spouse and for your spouse to do the same. This is a safe avenue in first marriages when children only come from that marriage.
Remarriage changes that dynamic. If you pass all your property and money to your current spouse, understand that they have no obligation to consider your children from a previous marriage. Your death may create distance between them and if your current spouse outlives you considerably, he or she will be more likely to account for his or her own children and any new spouse. They are not likely to pass property to your children, especially if they have not spoken to each other for years.
One solution is to place your property in trust to provide income to your current spouse. Once your spouse passes away, remaining property is distributed to your children. You may include children from both your previous and current marriages and any stepchildren in that distribution.
If you decide to take this approach, appoint an uninterested third party to serve as trustee. Otherwise, there is a strong possibility of a conflict of interest based on self-interest.
If you appoint your spouse as the trustee, they may choose to invest your assets in low-yield options that leave nothing for your children once your spouse passes away. Likewise, your children may choose more long-term approaches that leave your current spouse inadequate income. An independent trustee is more likely to manage assets to everyone’s advantage.
Sometimes, the best approach to provide for children is with non-probate assets. Making them beneficiaries on your life insurance, retirement, and investment accounts is an excellent way of ensuring they receive something after your death. You are then safe to pass property and money to your spouse through your will.
This strategy is easier and less expensive than a trust but it requires attention to detail. Check the beneficiary designations on these assets and change them now. Most importantly, let your family know you made these changes and why. You do not want your spouse to expect a life insurance payout only to find out after your death that they are no longer entitled to those funds.
Your estate plan will likely include an advance directive and a durable power of attorney. These cover decision-making should you become incapacitated. The advance directive appoints a health care representative who makes health care decisions on your behalf. A power of attorney appoints an agent who manages your financial and business affairs if you are unable to do so. A power of attorney dies when you do.
Spouses are often the first choice for these appointments. In blended families, this may not be the best idea. Hurt feelings and conflict can arise if your children from a previous marriage do not feel your spouse is acting in your best interest or puts his or her self-interest above your needs.
You are better off choosing family members who are suited to these tasks rather than focus on relationship status. For example, you may discuss end-of-life decisions more frequently with an adult child rather than your spouse. Your child may listen better while your spouse shuts down when you bring up the topic. Or you may run a small business with a daughter, who is likely a better candidate to be your power of attorney.
The important part is, you want to appoint individuals to get along well with all family members, including your spouse. If there is so much tension that this is impossible, consider appointing someone outside your immediate blended family, like a close friend or sibling.
Dangers of Intestacy (when you don’t have a Will)
It may be tempting to do nothing and let intestate statutes take control. This may seem to prevent difficult discussions but it will only lead to many, many problems for your loved ones after you pass away.
Intestate succession only considers blood relatives. It will ensure support for spouses, children, parents, and even siblings. But if you are close to your stepchildren and want them to inherit assets or take over a small business, intestate succession will not allow that. Your stepchildren may also have special needs that you want to be provided for if you pass away. Again, intestate succession will not even take them in account, even if you had a close relationship. This only changes if you adopted them, which often does not occur if you remarry their parent when they are adults.
Blended families offer distinct estate planning challenges, but they are not surmountable. Find solutions by discussing them with an Oregon estate planning attorney. Call Diane L. Gruber today to schedule a consultation.
Estate planning is often associated with middle age or even the retirement years. Millennials, who range in age from 18 to 36, are often too busy managing student loan debt, building careers, and buying homes to give much thought to their mortality. Like other young adults, they may still feel invincible.
On the contrary, these years are the best time to start estate planning. As less traditional family arrangements take over and options expand, you must be prepared in case the worst occurs. If you are younger than 40, here is what you need to do at a minimum for your estate plan and why you should think beyond that.
The Bare Minimum
If you have more debt than assets, never had children, and do not own real estate, it may be difficult to comprehend the importance of a will. There is some truth to this: If you are 24, single, and childless, you likely do not need a large complex estate plan unless you are blessed with early success.
At the very least, start with the bare minimum of estate planning; an advance directive and a power of attorney. Both of these documents are vital for continuing your affairs should you face incapacitation.
An advance directive outlines your preferences for health care should you be rendered incapable of communicating your treatment preferences. This document appoints a healthcare representative to make these decisions on your behalf and indicates your preferences regarding life-sustaining treatment.
Your health care representative can be anyone you trust with that decision including a parent, sibling, best friend or live-in partner. They will act as your voice when you cannot speak. Before you appoint them, let them know what you plan to do, and perhaps have a conversation regarding your medical preferences.
The advance directive also allows you to limit life-sustaining treatment. Many people prefer not to be kept alive by artificial means if they are rendered permanently incapacitated after an accident or terminal illness. These situations often cause substantial heartbreak not only because of the tragedy involved but also when friends, family, and partners have no idea of your preferences.
You can make this a little easier by making your wishes known through an advance directive. This is a complimentary service when you meet with Diane L. Gruber of Gruber & Associates for estate planning.
Power of Attorney
It is often assumed that if you are incapacitated your spouse, parents or cohabitating partner will handle your affairs for you. Unfortunately, if your accounts and business interests are held only in your name, your helpful loved ones will not be able to access them. This can make it impossible for them to make your student loan payments or even take a pet to the vet.
A power of attorney makes this possible. While you recover from what limits you, the agent you appoint in the power of attorney document can have access to your assets. This allows them to pay your bills and even apply for disability benefits on your behalf. If you do not execute a power of attorney, these tasks become difficult. Depending on the extent of your incapacitation, your loved ones may even have to go to court to appoint a conservator to act on your behalf!
These two documents will help in moments of unexpected developments. However, you should consider a will in case the worst occurs.
Why a Will?
Many young adults fail to execute a will because they focus on what they do not have. They do not own real estate or make a substantial income. Some of you may not have children or even a partner. So, why draft a will?
You draft a will because of what you gained so far in life. Even without a large stock portfolio or a mortgage, there are still items that require care should you meet an untimely demise.
You consider your pets family but the law still considers them property. Oregon law has slightly backed off from this with court precedent finding that animals have awareness and allowing animal control officers to act on an animal abuse situation with the same urgency as harm to a person. But that does not help your animal from being vulnerable should something happen to you.
Just as you can name a guardian for children in your will, you can also do the same for a pet. You can name your cohabitating partner or a friend who loves your animals. A will also allows you to name a backup guardian in case your primary appointee cannot care for your pets.
Some people even establish pet trusts to assure good care. You can do this even if you lack assets. Purchase a life insurance policy and make the pet trust your beneficiary. Or if you trust your pet guardian, name them as the beneficiary with the understanding the funds are meant to help them care for your animals.
Basically, establishing a caretaker for your pets in a will assures they are safe if anything happens to you. It also makes the process of rehoming your animals much easier on your family.
There is a movement away from tradition as more young adults decide to cohabitate before marriage. This can have unfortunate consequences if you pass away.
Unless you marry your partner, they have no rights to your assets after death. The intestate statutes, which dictate the distribution of property when someone dies without a will, do not make allowances for non-married partners. You could be engaged but if you die in a horrible accident the day before the wedding, your partner will still be treated as a non-entity by the intestate proceedings.
This can lead to distressful consequences. For example, let’s say you own a home with a mortgage. If you die, the mortgage holder will liquidate the house to pay off the debt.
If you have a will, you can dictate that the equity from that sale passes to your partner. Even if that is only $3,000, that is still enough for them to find a new place to live. However, without a will, that $3,000 will not pass to your partner. It will first go to any children you have, and if you do not have children, your parents and then to your siblings.
This goes for any property you own, including cars, furniture, and other assets. There is no way you can pass property to an unmarried partner without a will.
If you are a single parent, a will helps you designate guardians for your children. Unless you do so, the court will make this determination.
This is not ideal if you are estranged from your family. Your children may be closer to a friend or your live-in partner. However, the court is more likely to grant custody to family members. Even if you come from a close family, it is likely a particular sibling is better suited to take custody of your children.
Guardianship is another preference that is enforceable only through a will. Even if you do not feel you have any other reason to sign a will, if you have children, this reason alone is sufficient.
Many millennials appoint “digital executors.” These are people with access to your social media and other online accounts. Their job is to manage your digital assets should something happen to you.
Sites like Twitter and Facebook are notoriously bad at dealing with death. Pages often remain accessible with reminders going out to friends and family about your birthday and other milestone events. Unfortunately, without someone knowing your passwords, it is often impossible to shut down these accounts.
There are other digital assets that could also prove troublesome. If you rent out a room on Airbnb, the platform will continue making that room available for rent until someone shuts down the account. Your family could be at your home grieving and sorting your possessions only for an Airbnb patron to suddenly show up wanting access to the rented room.
Besides these accounts, you likely own Kindle books, iTune music libraries, and maintain subscriptions on Audible or Netflix. Unless you appoint someone to deal with these online accounts, they will likely continue charging bank accounts or accruing balances after you pass away, causing more issues that will delay the closure of your estate.
There are other estate planning options that could be relevant to your situation. If your children have special needs or you are a trust beneficiary, you likely need to review your situation and create a more customized estate plan.
Planning now is a good precaution. At the very least, it starts a habit that will make wealth management easier as you become older. To start the estate planning process, contact Diane L. Gruber, Attorney at Law to schedule a consultation.
An advance directive is a complimentary service when you hire Gruber & Associates, P.C. in West Linn, OR for estate planning. Its scope is limited so it works best with other estate planning documents. While it definitely offers advantages and eases health care decision-making for your loved ones, an advance directive also has its limits. That emphasizes the need for a complete estate plan.
An advance directive indicates your health care preferences if you are unable to communicate them to your doctor. It appoints a health care representative who executes these decisions, including any preferences regarding life-sustaining medical treatment.
Apppoints an Advocate
While many people do not want to consider it, there is a possibility that you will suffer injury or illness substantial enough to leave you unable to communicate or make decisions. While healthcare providers use their best discretion, there is another possibility that their decisions will not match your preferences.
The healthcare representative acts as your voice when you cannot speak. Since most clients appoint someone in this capacity that is close to them, this individual understands your motivation and feels honor-bound to respect your wishes. Many clients choose a spouse, sibling or even a good friend to fulfill this role. If you have someone in your life you would prefer for this duty, it is a good idea to execute an advance directive.
Define Course of Health Care
Health care decisions may have religious inclinations, like Jehovah’s Witnesses and their avoidance of blood transfusions. Other times it is simply a preference for particular courses of treatment.
An advance directive allows specific instructions. You can designate specific doctors, health care facilities, and, if you are terminally ill, your choice for hospice care. There may be circumstances where you prefer to continue palliative treatment at home and avoid future hospital visits. If you have detailed preferences like this, you need an advance directive.
Limit Life-Sustaining Medical Procedures
The best-known feature of the advance directive is your decisions regarding life-sustaining medical procedures. Many clients execute one because they do not wish to be kept alive by machines. Others make different choices.
While an advance directive is sufficient for ensuring your wishes are granted, you may also sign Physician Orders for Life-Sustaining Treatment or POLST. This is an additional document provided by a doctor, clinic or hospital that remains in your file and removes any doubt of your decision. It is presented not only if you are terminally ill but sometimes before surgical procedures. Do not be surprised if one is presented to you if you are admitted to the hospital.
Advance directives define your course of health treatment but they have their limits. These are reassuring more than inconvenient, especially if you have a finished estate plan.
Indicate Burial Preferences
If you have any burial preferences, you should list them in your will. The advance directive is not an appropriate avenue for expressing this information.
Other options may include pre-planned funerals where you can confirm any religious or personal preferences. If you decide on something different, like donating your remains for study, that requires additional forms and an advance directive is not effective to assure that occurs. Many preferences require additional steps so discuss those first with your attorney before thinking one written note or document guarantees them.
Affect Insurance Coverage
There are concerns that insurance companies may require patients to sign an Advance Directive or face claim denial. This is not legal and any insurance company who insists on this should be reported to the Insurance Commission.
Signing an advance directive has no effect on insurance coverage or at least should have no effect on it. If you are not comfortable with executing an advance directive or feel pressured to do so, do not do it.
There are occasional concerns that the Oregon Death with Dignity Act may authorize health care representatives to choose euthanasia over further treatment, However, the law makes that impossible.
To be eligible for death with dignity, a patient must be a resident of Oregon who is 18 years of age or older. If they are diagnosed with a terminal illness where death is imminent within six months, they must also be capable of communicating their own healthcare decisions at the time they request death with dignity. An attending physician determines whether a patient meets these criteria–not a healthcare representative.
Since the patient must choose and self-administer the euthanasia drugs, physicians cannot be involved at all except to determine if the situation is appropriate for this option. Between the mental capacity requirement and the self-administration one, there is no way that a healthcare representative can authorize this course of action–or legally compel a physician to administer the drugs.
It can be difficult to consider these worst-case scenarios, but taking the time to do so offers reassurance and peace of mind. To start designing your estate plan and long-term care decisions, contact Diane L. Gruber, Attorney at Law today to schedule an appointment.
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 Diane L. Gruber, Attorney at Law to schedule a consultation.
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.