Here are eleven trivia items you may not know about wills:
- 100% of Oregonians Have a Will. Believe it or not, everyone has a will. If you have not created a will, Oregon’s laws of intestacy will fill the void. These laws function like a default will that applies when a validly executed will cannot be found. However, the will that Oregon implements for you may not match your desires.
- You May Have to Split Your Spouse’s Estate with Your Stepchildren. For decedents who did not create a will of their own, the terms of Oregon’s default will differ depending on whether the decedent’s spouse is the parent of the decedent’s children. For decedents whose children are all also the children of the decedent’s spouse, Oregon’s will leaves all property passing by the will to the surviving spouse. However, for decedents who have children that are not the children of the decedent’s spouse, only half of the property passing by will transfers to the decedent’s spouse. The other half of the property transfers equally to the decedent’s children who are not related to the decedent’s spouse.
- Marriage Automatically Revokes a Will. Unless a will expresses intent to the contrary, the act of marriage automatically revokes any will previously signed by the newlyweds.
- In Oregon, a Will Must Be Signed by Two Witnesses to be Valid. If a “will” is not signed by person creating the will along with two separate witnesses, the document is not a valid will under Oregon law. Notarization of the document alone is not sufficient to create a valid will.
- Invalid Wills May be Treated as a Will if the Probate Court Approves. In cases where a person attempted to create a will, but failed to meet Oregon’s statutory will requirements (such as the two-witness requirement), a probate court proceeding can be held to determine whether the decedent intended the document to be his or her will. If sufficient proof is presented to the court and proper procedures are followed, the court may allow the document to be treated as though it were a valid will.
- There is No Required “Reading of the Will” After Death. Remember the movie scene where a decedent’s family sits down in a formal meeting and listens while the decedent’s attorney formally opens and reads the will aloud? In the real world, it rarely happens that way, and it is certainly not required. Although families often request a meeting with the attorney to review and discuss the estate plan and after-death administration steps, it is rare to verbally read a will or trust aloud in a formal meeting.
- A Will Must Be Subject a Probate Court Proceeding to Transfer Property. A will, in and of itself, does not transfer property or authorize the nominated personal representative (“executor”) to act. The will must first be filed with a probate court. The probate court then appoints the personal representative and, when the time is right, grants authority to transfer the probate property to the rightful recipients.
- A Valid Will May Not Control Your Property. A will does not affect assets with a joint owner or a proper beneficiary designation in place. A will also does not affect property held in a trust.
- Probate is Optional. Interested in avoiding probate? As stated above, a will and probate court proceeding only control a decedent’s assets that lack a (1) joint owner, (2) named beneficiary, or (3) ownership by a trust. Although joint ownership will avoid probate of an asset on the death of the first owner, keep in mind that the asset will be subject to probate at the death of the last surviving owner. In addition, joint ownership can have unintended gift tax and creditor consequences. For this reason, use of beneficiary designations and trusts are generally the recommended methods for avoiding probate.
- Sign a Will (Even If You Plan to Avoid Probate). Are you planning to structure your estate to avoid a court probate? You should still sign a will that meets your wishes. Probate can happen unexpectedly. Financial companies can lose beneficiary designation forms. A joint owner or named beneficiary can pass away with you in a common accident. An inheritance, or other asset, can be in the process of transferring to you at the time of death. Having a will in place will help ensure your wishes are met, even if the unexpected happens.
- Use a Will to Nominate a Guardian for Minor Children. Oregon law allows parents to nominate a guardian for a minor child. The guardian’s role is to assume parental responsibilities for the minor child in the event the parents become incapacitated or deceased. Oregon law does not require parents to use any particular document or form to nominate a guardian. Guardian provisions are often drafted into a will, as opposed to other estate planning documents. One reason for this is that the will is the most strongly witnessed document of all the estate planning documents. Most estate planning documents are either signed by two witnesses, or are notarized, but not both. The will is the only estate planning document that is commonly witnessed by two separate people, both of whom have their witnessing signatures notarized.
Wills are an important estate planning tool. An accurate understanding of the uses, benefits, and limitations of a will can help avoid unintended estate planning consequences.