Bend’s Highest-Rated Trust Attorney
Death is an inevitable part of life, regardless of how uncomfortable it may be to discuss. The distribution of your assets might not go as planned if you don’t consider or plan for what happens once you pass.
It is important to have an estate plan in place so that you can organize your property, select beneficiaries, and leave instructions for actions to be taken if you become unable to make decisions for yourself.
Getting a clear picture of what this process entails is what our Bend estate planning lawyers can help you with at De Alicante Law.
What is Estate Planning?
Estate planning is about managing your estate during your lifetime and making sure your wishes are carried out upon your passing – 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 it to and ensuring your estate pays the smallest amount allowable in legal fees, court costs, and taxes.
How does the estate planning process begin?
Your estate planning process with De Alicante Law Group begins by:
- Providing the personal information necessary to inform us of your estate and your wishes.
- Attend a personal, private (in-person or virtual) interview with De Alicante Law Group
We will 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. This could be 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.
What documents are required for estate planning?
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 and to prove your trust exists without disclosing the contents of your Trust.
Why Should I Consider Estate Planning?
The concept of estate planning is often viewed as exclusive to the elderly or wealthy. In reality, this is a mistaken belief. Any estate owner can benefit from it.
Estates include all property and assets owned by an individual, such as:
- Real estate
- Bank accounts
Trust Attorney in Bend, OR
Trusts can be set up by individuals who want their assets or property managed in a particular way during their lifetime or after their passing. It allows you to establish a trust, transfer property into it, and control it as you see fit. Additionally, you appoint a successor trustee who will manage the trust under your instructions if you become ill or rendered incapable of managing the trust. Trusts have several benefits that can assist you in meeting your estate planning objectives.
To establish a trust, you must understand its rules and laws. Our attorneys at De Alicante Law Group are knowledgeable about Oregon law and can explain the process, requirements, and benefits of trusts in plain language.
What Is a Trust?
With a trust, you can transfer your assets and specify how your property will be managed during your lifetime and until your death. A living trust can be handled by you as trustee – the person who handles the assets. A successor trustee may also be named. When you become incapable of handling your assets, this person takes care of them.
In living trusts, you develop a legal document over the course of your life. You can either make it revocable or irrevocable. The type you choose depends on your goals and needs.
Revocable vs. Irrevocable Trust
Revocable living trusts allow you to change the terms, withdraw assets, or cancel them whenever you like. It 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.
Irrevocable trusts cannot be changed. Taxation or asset protection are generally reasons for establishing this type.
Pros & Cons of a Trust
The main benefit of setting up a trust is that it avoids probate. Probate is a legal process that, in some cases, estates must undergo before assets and property can be distributed. Having a trust eliminates this lengthy and costly process for beneficiaries.
One disadvantage of a trust is that it controls only the property it contains. Your trust must adjust if your life circumstances change, so that your assets are managed as you wish. It is common for a pour-over will to be drafted along with a trust to transfer any remaining property into the trust after a settlor’s death.
What is included with estate planning with De Alicante Law Group?
Tony De Alicante, your Bend trust attorney, will work directly with you on estate planning, ensuring that all of your specific needs are met. This includes:
Your Cultural Values
Instructions for passing your values (religious, education, hard work, etc.) in addition to your valuables.
Late-Life Medical Care
Instructions for your care if you become disabled before you pass away.
Designation of a Guardian and Conservator
Naming a Guardian (to manage the persons) and a Conservator (to manage their assets) for minor children if these are needed in your estate.
Family Members with Special Needs
Providing for family members with special needs without disrupting their needed government benefits that help care for them.
Future protection from creditors or divorce.
Care for Loved Ones
Providing for loved ones who are dependent on you for assistance.
Life Insurance and More
Securing life, disability, and long-term care insurance for asset accumulation or for tax planning.
Structuring the transfer of your business in the event of your retirement, disability, or death.
Estate planning is important for everyone, and De Alicante Law Group will help you every step of the way.
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.
Free Estate Planning Information
De Alicante Law Group has spent years delivering free estate planning seminars to educate people on Estate Planning where we seek to educate clients on the basics of getting started planning their estate. Because the recent pandemic has changed the world in which we live, we are making the same information available on our website in small bites. As a trust attorney in Bend, Oregon who understands the nuances of local law, we can help you with all your estate planning needs.
Frequently Asked Questions about Estate and Trust Planning
What is intestate succession (intestacy)?
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.
Oregon Intestacy Laws
|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|
What happens if you become disabled without an estate plan?
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 (someone else taking control of decisions over your person) and/or conservatorship (someone else taking control of decisions over your property) 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.
What is a will?
A Will is a formal document that provides instructions for the 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).
What happens if you pass away with a Will but no estate planning document?
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.
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 sometimes personal representative fees. Probate usually costs much more than it costs to have a Will or Trust prepared.
De Alicante Law Group can also help you navigate through Oregon’s probate process.
What is a 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 whomever you say your assets go to, or can be distributed immediately according to your wishes.
So if you placed all of your property into your trust during your lifetime, 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.