At Yaquina Law, we work with you to develop an estate plan that best meets your goals, both today and after death. We will assist you with planning for a simple estate, a taxable estate, business succession, asset protection, and everything in between.
Estate planning is more than simply preparing a Last Will and Testament. A complete estate plan will include information on how your assets are to be disposed of upon your death with the minimum amount of taxes due, as well as administration and protection of your assets during your lifetime, and decision making in the event of a disabling illness or accident.
A complete and comprehensive estate plan will include a Last Will and Testament, Healthcare Power of Attorney, Financial Power of Attorney, and an Advance Directive. Depending on your individual assets and goals, your estate plan may also benefit from setting up a trust.
At Yaquina Law, we utilize every estate planning tool to help you create a comprehensive plan that is individualized to your specific needs. Through this process, we enjoy learning about your family, your life goals, your assets, and your intentions for what should happen upon your death. We use this information to help you plan for the now you are living in and the future you desire.
Many of our clients have concerns about assets being transferred to a loved one who is incapable of managing their financial affairs, whether that is due to illness or imprudence. At Yaquina Law, we are able to develop plans that include trusts with distribution provisions that are customized to each client’s unique situation.
We also have clients who are concerned with asset protection. Whether you are concerned about taxes, personal liability, or business liability, at Yaquina Law we can help you establish asset protection strategies that protect and insulate your wealth.
We pride ourselves on being with you every step of the way as you create your estate plan; and, when the time comes, being there for your family to help them carry out your wishes. Our goal is simple, to help you reach your goals.
Both a Will and a revocable living trust (RLT) allow you to direct what happens to your assets upon your death. Both a Will and RLT can also deal with any estate tax issues that may need to be addressed. There are however two significant benefits that an RLT provides over a Will: the expense and delay of probate can be avoided, and you can plan for incapacity. An RLT is generally more expensive to set up, as it is a more complicated document that requires more expertise to prepare than a Will, however, a well drafted and administered RLT will avoid the cost of a probate in the end. A Will is not enforceable until the creator dies, while an RLT takes effect during the grantor’s lifetime. An RLT also allows for greater asset protection, which can be important in the event of incapacitation or when there are minor children.
Estate taxes depend on the size of your estate at the date of your death. Tax planning is vital part of estate planning if the size of your estate is over $1 million. For people who passed away in 2019, the federal government taxes estates valued at $11.4 million or more. Oregon residents also are taxed by the state when the estate is valued over $1 million. There are creative ways for you to minimize the amount of tax your estate will pay upon your death through the use of bypass trusts, charitable trusts, IRA trust, and other options. When we sit down with our estate planning clients we discuss the overall value of the estate and what specific assets the estate includes, we then create a customized plan to fit your goals that takes into account the type of assets and what is expected to happen with those assets over time.
If you do not have any estate planning documents that give a person legal authority to act on your behalf in the event that you are unable to do so, then a person can petition the court for a guardianship and/or conservatorship. In Oregon, a guardianship gives the authority to take care of a person’s medical needs and provide for their general wellbeing; whereas, a conservatorship gives the authority to manage a person’s financial affairs and assets. Often a family member is able to be appointed by the court to act in these fiduciary capacities, but sometimes a professional fiduciary is appointed. The cost of a guardianship and/or conservatorship can be overwhelming and quickly expend a person’s assets. To avoid a guardianship and/or conservatorship you can utilize different estate planning tools to grant the authority yourself. This includes the creation of a trust, executing a durable or springing power of attorney, healthcare power of attorney, and executing an Advanced Directive. Each situation is different, and each document gives different types of authority, you should consult with an attorney to determine what is best for you.
We recommend that you review your estate planning documents at least every three years. It is also recommended that you review your financial status on an annual basis. There are several major occurrences which should trigger a review with your estate planning attorney and amendment of your estate plan, these include: when and if the federal estate tax is repealed; change in personal circumstances (including marriage, divorce, birth or adoption of a child, or death of a beneficiary or personal representative); change of assets; change in the laws which affect your estate planning (an example of this is the SECURE Act); and a change initiated by you (e.g. changing a beneficiary). When you want to make a change or amendment to your estate plan, you should discuss that amendment with your attorney. You should not simply cross out or write on your estate planning document the change you want made, it will not be a legal change and likely will not be enforceable.
Estate administration is the process of managing and distributing your assets upon your death. Whether this is through a trust, probate, or some alternative process such as a small estate affidavit, we are here to help you. We work closely with trustees and personal representatives from start to finish when administering Oregon estates.
Oftentimes, estate administration has strict timelines and specific documentation that must be filed. We assist with the preparation and filing of documents with the court and beneficiaries, creating an inventory of all estate assets, settling creditor claims, interpretation of wills and trusts, establishment of new trusts created by the decedent’s death, and distribution of assets. There are also steps that must be taken to complete the decedent’s final income tax return estate, gift, and inheritance tax returns. While we do not prepare tax returns ourselves, we are happy to assist clients in finding a qualified individual to help with this very important step of the process.
For more information on what the probate process consists of, please see our blog post titled, ‘The Probate Process’.
If you die intestate (without a will), your state’s laws of descent and distribution will determine who receives your property by default. In Oregon, the distribution would be to your family, beginning with your spouse and children, and if none, then to other family member. If you have no identifiable family, then your assets may escheat to the state. Intestate laws usually reflect the legislature’s guess as to how most people would dispose of their estates and builds in protections for certain beneficiaries, particularly minor children. That plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary in a harmonious family setting. A will allows you to alter the state’s default plan to suit your personal preferences. It also permits you to exercise control over several other personal decisions that broad and general state default provisions cannot address.
Probate is a court process to authenticates any Will, pay any debts owed by the estate, and transfer the title of assets after a person’s death. A personal representative is appointed by the court to identify assets, beneficiaries and creditors. The personal representative can be any person that qualifies under the state’s laws. The personal representative gathers the estate assets, determines their value and, upon authorization of the court, distributes them to the estate’s beneficiaries as they are named in a will or under state law. Some assets do not require probate in order to transfer title, such as property owned jointly with rights of survivorship, life insurance benefits or retirement plans that have a designated beneficiary, and assets owned by a trust. It is important to determine how all of a decedent’s property is titled before you can determine whether probate is required.
While probate cannot always be avoided, there are steps you can take to make probate less likely to occur and proper estate planning is key. A Will alone will not allow you to avoid probate. You must ensure that there is direction for each and every asset, and legal authority for someone to manage that asset upon your death. There can be several ways to do this, including the creation of a trust or making payable on death beneficiary designations. It is important to meet with an estate planning attorney to ensure that your plan does not contradict itself or have unintended consequences.
Trust Administration is similar to probate, in that it involves the management and distribution of a decedent’s trust property. The difference is it does not usually require court involvement. Instead, the successor trustee is responsible for gathering the trust property, determining its value and distributing it to the beneficiaries of the trust. In administering a trust, the trustee follows specific rules contained in the trust agreement and in the Oregon Uniform Trust Code. For example, the trustee is often required to provide notice and reports of trust activity to the beneficiaries of the trust.
DO YOU HAVE ANY QUESTIONS?
We pride ourselves on being with you every step of the way.