We provide personal and prompt service for you in the following areas:
- Estate Planning
- Will Contests
- Probate Litigation
- Trust Litigation
- Elder Abuse
- Guardianships & Guardianship Litigation
- Conservatorships & Conservatorship Litigation
- Power of Attorneys
Estate Planning for Southern Oregon Residents
Estate planning is the creation of a definite plan for managing your assets while you’re alive and distributing it after your death. These assets may be owned by you separately or jointly with others. Estate planning can be accomplished through a variety of methods. Our firm prepares estate plans for our clients. We walk our clients through the estate planning process, from analyzing a family’s financial circumstances and goals, to educating our clients about the range of estate planning options, and to drafting and implementing the estate plan. We draft estate plans for a wide range of clients.
We regularly create plans that rely on one or more of the following:
- The preparation of wills and trusts to control the disposition of property upon death, avoid or limit probate, and to protect against incapacity during life.
- The preparation of advanced medical directives and powers of attorney to protect our clients against subsequent incapacity.
- Estate planning for second marriages.
What is a will?
A will is a set of instructions that explains how you want your property distributed after your death. In Oregon, you must be at least 18 years old and of sound mind to make a will. If you are married, you can make a will before you turn 18. Your will must be in writing and must be signed by you and two witnesses. Some people cannot serve as witnesses to your will. It is important to make sure that all of Oregon’s legal formalities are carefully observed.
What are the benefits of a will?
A will allows you to decide who will manage your money and other property after you die, and how it will be distributed. It lets your wishes be heard regarding the care of minor and disabled children. It often prevents disputes among your relatives. In a large estate, a will can also reduce the amount of taxes that may be due at your death.
A will can be challenged in a Oregon probate proceeding on a number of grounds.
- Lack of Proper Formalities. Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements.
- Lack of Capacity. Under Oregon law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven.
- Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent
Probate is the process of passing the assets of a deceased person to his or heirs, after the payment of creditors. In addition to the grief that is caused by the loss of a loved one, the personal representative of an estate is required to quickly learn the legal procedures necessary to ensure a smooth estate administration. The attorneys in our firm provide the help and assistance necessary to ensure a successful probate administration.
We handle many probate administrations each year, and have the experience necessary to guide personal representatives through the probate process. We handle estates of all sizes and complexities.
If you are named as the personal representative in a will for a deceased Oregon resident, please contact us to help start the probate process. If there is no will, you may be able to serve as the personal representative. Contact us and we can walk you through the process.
We represent beneficiaries, personal representatives and creditors in all matters of probate litigation and probate administration in Southern Oregon.
Probate litigation typically involves the challenge to the validity of a will or trust, the meaning and construction of a will or trust, the proper administration of a will or trust, creditor claims, the rights of surviving spouses, and determining what assets are included with the probate estate.
We handle probate litigation and other types of fiduciary litigation for clients in Southern Oregon in the following matters:
- Will Contests
- Breach of Fiduciary Duty / Probate Fraud / Beneficiary Rights
- Elective Share
- Abuse of Power of Attorney
- Trust Litigation
- Joint Bank Account Litigation / Pay on Death Disputes
What is a trust?
A trust is most often used to avoid a probate. A trust is a legal document that appoints someone (a “trustee”) to manage your property and gives detailed instructions on how the property will be managed and distributed. A trust is one way to take care of a minor child, an elderly person or someone who needs help handling money. A trust may be established during your lifetime, and you may act as your own trustee, or it may be established by your will after your death. Trusts are generally more complicated to create than a will, and you may want to consider having an estate planning lawyer assist you.
People create trusts for different reasons. A person who creates a revocable living trust may do so because it allows her to avoid probate, which is the court process of settling the estate of someone who has died. Parents of young children may include a “just in case” trust in their wills, so that if the parents die when their children are still young, the children’s inheritance will be placed in trust until the children are old enough to manage the assets themselves. Spouses with children and large estates may create trusts for each other in order to minimize the estate tax paid to the government before their children receive their inheritance. These are just some of the many reasons for creating a trust.
Can a revocable living trust substitute for a will?
A properly drafted revocable living trust can work well as a substitute for a will and sometimes may reduce the costs of handling your estate. However, even if you have a trust, most advisors would recommend you also have a will to cover the possibility that some of your assets may not be covered by the trust at the time of your death. Whether a trust is proper for your estate is a decision to be made after receiving competent legal advice.
The trustee of a trust owes the beneficiaries of that trust certain fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a trustee, a bequest may be put in jeopardy. Our firm can represent beneficiaries and trustees with the following trust issues and claims:
- Failure to make proper and timely distributions
- Improper investments
- Excessive trustee compensation
- Interpreting ambiguous trust provisions
- Improper gifts from trusts and excessive distributions from a trust
In addition to adversarial actions, we represent beneficiaries and trustees with other trust litigation issues, such as reformation or judicial amendment of a trust where such amendment is required to serve the settlor’s original intention in making the trust.
Some seniors become unable to manage their own affairs. If a senior has become incapacitated and has not previously put in place the tools to allow someone else to manage their affairs (living trusts, or power of attorney), a guardianship may become necessary to allow financial management of their affairs.
A guardian will assume control over the finances of the incapacitated person. A guardianship removes decision making authority from the incapacitated person.
A relative or close friend can usually be appointed as guardian by the Oregon probate court in the county where the senior is living. A professional guardian may also serve as guardian if no relative or friend is available.
In some instances, the senior may contest the guardianship, in which case a contested guardianship hearing may be held to determine whether the senior is capable of managing his or her own affairs. In other instances, more than one family member may petition for the guardian role. In such cases, a contested guardianship hearing would be held to determine who can best serve as guardian.
If a person becomes incapacitated and unable to manage your financial affairs without having executed a power of attorney for finances, Oregon law provides for the court to appoint a “conservator” or more commonly referred to as Oregon Conservatorships.
Someone will have to file a petition with the court to become your conservator. The court will consider whether this person is the best person to fill this role. Often the court will appoint a family member. However, if the court believes there is no family member qualified to fill this role, the court may appoint a disinterested third party to serve as conservator.
Contact Frank Rote, III today for assistance with your Trust & Estate Services Law needs.