Levelle Law LLC

Estate planning is a crucial yet often neglected task. Many individuals delay this essential process, either under the misconception that it’s too early or because they believe their estate is too modest to warrant such attention. However, these misconceptions can lead to significant complications down the line, affecting the distribution of assets, the welfare of loved ones, and even the financial stability of businesses.

In reality, estate planning is not just for the wealthy or the elderly. It is a vital step for anyone who wishes to ensure their assets are managed and distributed according to their wishes, provide for their family’s future, and minimize legal complications and expenses.

WHY DO YOU NEED AN ESTATE PLAN?

Estate planning is often postponed because many believe it’s too early or their estate is too small. However, there are critical reasons to prioritize it, regardless of your current circumstances.

BENEFITS OF HAVING A WILL

Dying without a Will, known as dying “intestate,” means state laws Will dictate how your property is distributed. This process can be more troublesome and expensive compared to estates with a Will. In Oregon, for example, if you die without a Will, the state’s intestate succession laws determine how your estate is divided among your surviving spouse, children, or other relatives. These laws apply uniformly, regardless of your specific wishes or unique family circumstances.

A Will allows you to bypass these inflexible laws and specify who should inherit your property. It also lets you appoint a personal representative to manage the distribution of your estate and care for any minor children. Without a Will, the court appoints these roles, which can lead to family disputes and potentially undesirable choices.

Moreover, if your estate includes significant assets, a personal representative must secure an expensive bond unless waived in a Will. The cost savings from waiving this bond often exceed the expense of drafting a simple Will.

For minors, direct inheritance can trigger a conservatorship, a process that is both costly and cumbersome, involving annual court filings and approvals for financial decisions. Finally, if your minor children directly inherit property from your estate, Oregon law requires that a person called a “conservator” be appointed to manage your child’s inheritance until they are 18 years old. You can avoid the necessity of a conservatorship for a minor child by having a “testamentary trust” drafted into your Will. Establishing a testamentary trust in your Will can avoid this scenario, allowing you to set conditions for the management and distribution of your estate, tailored to the needs of your beneficiaries. Such a trust can also be established to provide for longer-term goals, such as funding a child’s continuing education or meeting a child’s special needs.

STRATEGIES TO AVOID PROBATE

While it’s impossible to completely avoid probate, a well-organized estate plan can limit the amount of property subject to this process. Probate applies only to assets that don’t automatically transfer to someone else upon death. One way to avoid probate is by creating a survivorship interest in your property. This ensures that your share of the property automatically goes to the surviving co-owner, bypassing probate.

However, creating survivorship interests comes with risks, such as exposing the property to the co-owner’s creditors. It’s essential to discuss these pros and cons with your attorney before making such decisions.

THE ROLE OF REVOCABLE TRUSTS

A revocable living trust is an increasingly popular tool for transferring property without going through probate. Assets in a living trust are distributed according to your instructions, bypassing the court-controlled probate process, which saves time and reduces administrative costs. A living trust also keeps your affairs private and reduces the likelihood of legal challenges.

This trust is especially beneficial if you own real estate in multiple states, as it can prevent the need for additional probate proceedings in each state. Beyond avoiding probate, a living trust also provides a mechanism for managing your assets if you become incapacitated, a benefit not offered by a will.

ASSET MANAGEMENT AND TRUSTEESHIP

Once a living trust is established, you must transfer assets into it to avoid probate and ensure they are managed according to your wishes if you become incapacitated. A “pour-over” will acts as a safety net, transferring any assets not included in the trust during your lifetime into it upon your death.

Selecting a trustee is crucial. They must be capable of managing the estate and distributing assets, making tax decisions, paying debts, and handling any other responsibilities. Whether you choose an individual or a corporate trustee, each has unique advantages and disadvantages, such as familiarity with the family or professional experience in estate management.

CONCLUSION

In summary, developing an estate plan is essential for ensuring your assets are distributed according to your wishes, minimizing costs, and providing for your loved ones. It’s never too early to start planning, and the peace of mind it offers makes it a worthwhile investment in your future and the future of those you care about.