The Law Office of Matthew Kress
Wills & Trust
Wills & Trusts • Estate Planning • Probate • Trust Administration
What is a Will?
Trusted Expert in Portland, Oregon
A will, or a last will and testament, is a legal document that declares how your property and assets are distributed after your death, nominates a personal representative (executor) to oversee the administration of your estate (probate) and nominates who will care for your minor children and your pets when you have passed. Without a will, your assets will be distributed based on Oregon intestacy law (follow this link for more information) (insert a link to the section discussing Oregon intestacy law) and a guardian and conservator for your minor children will be appointed by the court without your input.
A will is only effective at death, which means that the terms of your will are not effective when you are disabled or incapacitated. Generally, a will must be submitted to the probate court to be administered at your passing. The court will confirm the validity of your will, appoint the personal representative you nominated to administer your estate, and ensure that all creditors are paid, all tax returns are filed (and taxes paid), and that your estate is administered according to the terms
The terms of your will can create a trust for the benefit of your surviving spouse, children or other beneficiaries — this trust (called a testamentary trust) does not become effective until your death and generally requires the will to go through the probate process to be created and funded. A testamentary trust can be used as part of estate tax planning to avoid paying more estate taxes than necessary. A testamentary trust can also be used for blended families where each spouse wants to ensure that their children from any previous relationships inherit some part of their estate while still providing for their surviving spouse.
Why Do I Need Will?
If you pass away and have a will, your assets will be distributed in the way you have defined. Without a will, your property and assets are left in the hands of the state after you die. In this case, your loved ones may or may not get your property or assets. With a legal and legitimate will, you can maintain control of your assets after death by designating who receives what.
What is a Trust?
A trust is similar to a will, but has several distinct differences. You have likely heard of the term trust fund, which falls under the definition of trusts. With a trust, you create an arrangement ensuring a third party holds onto your assets on your behalf.
Trusts allow you to dictate and control who receives assets, how these assets are distributed, and how much funding is provided. With a trust, you can set up payouts for children or other family members over the course of time, rather than all at once. This is especially helpful if you want to give to your loved ones, but are concerned about how money is managed or handled.
Why Do I Need to Create a Trust?
Setting up a trust is the easiest way to avoid a lengthy probate court process. With a proper trust, you can pass on your assets privately and quickly. Trusts allow you to transfer property, minimize estate taxes, preserve assets for your children, or allocate funds to charity.
Different Types of Wills
There are two types of wills I use to support your comprehensive plan. One is a standard will. The other is known as a pour-over will. No matter which type of will you have, your will needs to be reviewed in a process known as probate court upon your death. Learn more about probate court on our Probate Page.
A standard will is a legal document that tells the probate court how you want your property distributed after you die, as well as who has the power and responsibility to wrap up your affairs.
Through the probate process, the court will give the executor of your will (called the personal representative in Oregon) the authority to gather all of your property, pay any remaining creditor bills, and distribute your remaining property as you specify in your will.
Because a will only takes effect after a court determines that it is valid, a judge must act before your executor can step in and manage your estate.
A pour-over will is a legal document used in conjunction with a living trust and is an integral part of any comprehensive plan designed to avoid the probate process. In the event that you die with assets outside of your living trust, a pour-over will acts to complete your estate plan and avoid probate. Assets not transferred to your living trust during your lifetime are to be transferred to your living trust after death with a pour-over will.
Different Types of Trusts
Trusted Expert in Portland, Oregon
A testamentary trust is one that is created in a will. A testamentary trust does not become effective until the moment of death, which is when the will becomes effective. This type of trust is most often used for controlling money to children or to a surviving spouse.
A revocable living trust is a trust treated by Oregon law as the functional equivalent of a will. It is created by the trustor, who designates beneficiaries of the trust, appoints a trustee to manage the assets, and transfers title of the trustor’s assets to the trust.
Unlike a will, which is only effective at the death of the trustor, a revocable living trust is effective when created and funded.
A revocable living trust is part of a comprehensive plan which provides instructions to the successor trustee and others allowing you to control your property while you are alive, take care of you and your loved ones in the event of disability, pass your property to your heirs when and how you want while maintaining privacy regarding the details of your assets, and avoid the intervention of the court in the probate process.
A revocable trust is so named because during the trustor’s lifetime, and while the trustor is not incapacitated, the trustor can revoke the trust and take title in the trustor’s name. Because the trustor has not relinquished control of the assets, the Internal Revenue Service treats the assets as belonging to the trustor. A revocable trust does not shelter any assets from taxes or from creditors.
There are many different irrevocable trusts. In general terms, an irrevocable trust is a trust that, once executed, cannot be revoked without potentially significant and serious tax consequences. An Irrevocable Life Insurance Trust (ILIT) is an example of an irrevocable trust.
As one of the most popular wealth planning devices, an ILIT is created to own and control life insurance policies. Its primary purposes are to allow the trustor to accumulate assets outside of their taxable estate, protect the assets from the claims of creditors, and avoid estate tax upon the distribution of funds to the trustor’s family.
Wills vs. Trusts
It is easy to get confused when it comes to wills and trusts. Here is a breakdown of the differences:
Portland Will & Trust Services
I have been practicing law in Oregon since being admitted into the Oregon State Bar in 2008 and started my own law firm in 2012. Wills and trusts can be difficult to understand and navigate on your own. My passion is to educate each client I work with so that the process is less overwhelming.
I help tailor your will and trust to your unique needs. Instead of merely filling in the blanks, I take the time to understand what is most important to you and why. My process will give you the peace of mind you need for proper will and trust creation.
To get started, call my office to speak to me directly or click the button below to schedule an introductory consultation.