Bend & Tigard, Oregon Trust Attorneys
Tony De Alicante has represented me for the last 7 years. I initially retained him to develop an individual trust. After I married in 2013 my wife and I asked him to convert that to a joint trust, and most recently to supplement the joint trust with an individual trust for our rental property. Tony’s work is beyond reproach, and he takes time to carefully explain the reasons for taking any action regarding the trusts. My wife and I have utmost confidence in Tony as our attorney and know that he will provide invaluable assistance whenever his services are needed to resolve legal issues.
Although Tony specializes in trusts, he is adept in other areas of the law, including litigation. Tony is an experienced attorney who, in addition to his civilian work, is highly regarded as a US Navy Reserve Judge Advocate General (JAG) captain.
Preserve your lifelong assets with Trusts
Communicating, protecting and carrying out your wishes for your loved ones
What is Estate Planning?
Everyone has an estate. It’s everything you own: your home, other real estate, car, checking and savings accounts, investments, life insurance, retirement accounts, business interests, loans to others, furniture, and all of your other personal possessions.
Estate planning is about making sure your wishes are carried out – making a plan in advance, making sure that you are taken care of first, making sure your estate takes care of your family in the way you want next and ensuring your estate pays the smallest amount allowable in legal fees, court costs, and taxes.
Estate planning includes:
Values: Instructions for passing your values (religious, education, hard work, etc.) in addition to your valuables.
Care: Instructions for your care if you become disabled before you pass away.
Guardian & Conservator: Naming a Guardian (to manage the persons) and a Conservator (to manage their assets) for minor children.
Special Needs: Providing for family members with special needs without disrupting needed government benefits that help care for them.
Protection: Future protection from creditors or divorce.
Loved Ones: Providing for loved ones who are dependent on you for assistance.
Insurance: Securing life, disability, and long-term care insurance.
Business Transfer: Structuring the transfer of your business in the event of your retirement, disability, or death.
Estate planning is for everyone – and it’s not a one-time event
You should update your plan as your family, financial situation, and laws change.
Intestacy is the legal term for dying without a valid estate plan. Dying “intestate” will also usually require your estate to go through probate before it can be distributed to your heirs. You may have an estate plan, but it may not be valid if you haven’t done it according to the requirements of the state in which you made the estate plan. If you don’t have a valid estate plan upon your death, the State of Oregon has one for you – it’s called Intestate Succession. That means that Oregon’s intestacy laws will control who receives your property, and how much of it, regardless of whether you want those persons designated by the intestacy laws to receive your property. In many cases, we have seen Oregon intestacy laws direct distribution of an estate contrary to what the deceased person actually wanted, just because they failed to properly plan.
Here is who gets your property if you die without a valid estate plan (ORS Chapter 112):
|If you die with:||Your estate goes to|
|A surviving spouse only||100 % to your surviving spouse|
|A surviving spouse and children only with that surviving spouse||100 % to your surviving spouse|
|A surviving spouse and children with persons other than that spouse||½ to your surviving spouse, ½ (in equal shares) to your descendants who are not from your surviving spouse|
|No surviving spouse||100 percent to your surviving descendants (children or grandchildren) in equal shares by representation (which means the deceased person’s share is spread equally among however many children they have)|
|No surviving spouse and no surviving descendants||100 percent to your surviving parents, in equal shares|
|No surviving spouse, no surviving descendants, no surviving parents||100 percent to your surviving siblings, in equal shares (or to their surviving children, by representation)|
|No surviving spouse, descendants, parents or siblings||100 percent to your surviving grandparents, and if they are deceased, to the descendants of your surviving grandparents, by representation|
|No survivors||Any unclaimed property “escheat” – be placed into an unclaimed property status with the State of Oregon|
Free Estate Planning Seminars
De Alicante Law Group offers free estate planning seminars, where we seek to educate clients on the basics of getting started planning their estate. See the schedule and sign up for one today!
The court, not your family, will control how your assets are used to care for you if you have not planned ahead with proper estate documents like a Trust, Durable Powers of Attorney, Advance Directives and health care information (HIPAA) waivers. You may end up subject to the physical care and financial control of someone you don’t want to make decisions for your life if you are placed under a guardianship and/or conservatorship you have not planned for. Guardianships and conservatorships are expensive and time-consuming, with all of your life decisions and assets publicly available in court records, and may be difficult to end even if you recover capacity.
Without a valid estate plan, your assets will be distributed according to Oregon intestacy laws. Who gets what from your estate, and how much of your estate, depends on what relatives you have who are alive at your death (spouse, children, parents, siblings, etc.), whether or not you agree with that plan of distribution. If you have children who are minors, the court will appoint someone to control their inheritance. If both parents die, the court will appoint a guardian and conservator for your minor children to control their care and inheritance, and it may not be the same person or persons you would choose.
Probate is a public court proceeding that takes on average at least a year and a half to complete but sometimes goes on for several years. Probate lets everyone know exactly how much you have in your estate and who it’s going to. It requires payment of court filing fees, newspaper notices to the public, attorney fees and personal representative fees. Probate usually costs much more than it costs to have a Will or Trust prepared. If you pass away with a Will as your only estate planning document, or without a valid Will (intestate) and with no Trust, your estate will go through probate.
How Does the Estate Planning Process Begin?
An estate plan begins with a personal, private interview with you to determine what your estate consists of, what your wishes are for your family now, during any period of incapacity, upon your passing, and even after that if you want assets to remain in Trust for any reason because your beneficiaries are minors, disabled, or simply because you want the distribution of their inheritance to be supervised during part or all of their lifetime. An estate plan also takes into account tax planning to make sure that estate taxes are minimized or eliminated entirely at your death. It results in preparation of a Revocable Living Trust, Will, or both, along with several other documents that are required to complete a comprehensive estate plan.
At De Alicante Law Group, we cover the “what if” questions that you may never have thought about to make sure that you and your loved ones are taken care of during your lifetime, upon your passing, and well beyond that.
A Will provides instructions for distribution of your assets upon your death, but it does not manage any assets during your lifetime and does not avoid Oregon Probate. It also does not provide any disability planning during your lifetime.
If you only have a Will, and not a Trust, your assets will go through probate before they can be distributed to your heirs. If you own property in other states, your estate may face additional probate proceedings in those other states. If you have real property that is not in a Trust, your property in those other states will be required to go through a probate proceeding in the state where it is located before it can pass to your heirs. That is, unless it passes through some probate substitute method (such as joint tenancy with right of survivorship).
Revocable Living Trust (RLT)
A Revocable Living Trust is a separate entity that holds your property. This is set up through a contract document between the person originating the trust (you) and the person or persons who will manage the trust (also usually you). This is the proper, modern method of planning your estate. It is similar to a Limited Liability Company (LLC) or a Corporation in the sense that it is an entity separate from you that has its own lifespan – one that can, but does not necessarily end when you pass away. While you are living, you completely control all of the assets that are in your RLT and you can do whatever you wish with them. When you pass away, the assets are retained in the Trust for the benefit of who you say your assets go to, or can be distributed immediately according to your wishes.
When you pass away, your RLT continues to own your property, so there is no property personally owned by you that has to go through probate. Instead, your property can be distributed immediately as you directed in your RLT. If you have planned properly and maintained your assets inside of your RLT, your estate will never go through probate. An added benefit is that RLTs are completely private. For an RLT to be effective, you have to place all of your property into it. If you leave any property out, that property may have to go through probate.
Secure your piece of mind – The best time to start estate planning is now.
Other Common Estate Planning Documents
To be comprehensive, any estate should also include Durable Powers of Attorney, Advance Directives (appointing medical care representatives and directing your preferences for end of life decisions for life support and life-sustaining fluids), and HIPAA Waivers to allow your loved ones to view your protected healthcare information and discuss your care with your health care providers. If you utilize a Trust, several additional documents are required to transfer your assets into your Trust.