Estate Planning FAQs
An Oregon Estate Planning Attorney explains Wills, Advance Directives, Power of Attorney, and Guardianships and Conservatorships.
Estate planning is a form of financial planning. There are two main goals when setting up an estate plan. The first is to direct where your property will go when you pass away. The second goal of estate planning is to protect your health, safety, and finances in the later years of your life. Creating an estate plan involves more than creating a Will.
There are several important documents that should be created as part of an estate plan.
- The Will
This document will direct where your property will go when you are deceased. You will also appoint a Personal Representative who will be in charge of probating your Will and disposing of your property in the way you have directed it to be disposed of. You can give specific directions for the disposition of you tangible personal property (physical objects), your real property (houses and other other real estate), and financial accounts (checking, savings, stocks, bonds). One important thing to think about when creating a Will is how to handle giving property to minors or young people over the age of 18. In general a young person is not responsible enough to handle large sums of money so it is a good idea to put gifts to minors into a trust administered by your Personal Representative or another person.
- Assets that pass outside the Will
Some assets will pass to your beneficiaries outside of the Will. These assets also need to be taken into account when crafting an estate plan. The main assets passing outside of a Will are retirement plans, life insurance policies, and joint accounts or properties owned with a right of survivorship. Retirement Plans and life insurance policies are contracts between you as the policy holder and the agency that handles the policy. Assets from these types of accounts will pass according to the beneficiary designations that you have made on the company's forms. Part of the estate planning process is to review these designations to make sure that they account for all contingencies such as if one of the listed beneficiaries is dead at the time the account is being disbursed. Joint bank accounts and real property owned with a right of survivorship will pass to the other person listed on the account or deed upon the death of an owner. This situation often occurs with married couples who commonly hold assets jointly.
- Advance Directive
In this document you will make decisions about end of life medical care. At some point you may be in a medical condition where you cannot make health decisions for yourself such as if you are in a persistent vegetative state or in the final stages of a degenerative disease. The advance directive allows you to communicate to medical professionals and your family ahead of time about your wishes if you are in such a condition. For example, if you are in a persistent vegetative state you may wish to be unplugged from life prolonging machines or you may wish for your life to be prolonged for as long as possible, or you may wish for someone else to make this decision for you such as a doctor or someone you appoint as your health care representative. These are the types of choices you would make in an Advance Directive. Here is a link to an Advance Directive form valid in Oregon.
- HIPPA Compliant Release of Information Form
In this form you will elect an individual or individuals to be your health care representative. This form can be presented to hospital staff so that they will release your medical information to your health care representative so that your health care representative can make intelligent medical decisions for you and in compliance with your Advance Directive. Without this form hospitals will not release your medical information to other people.
- Durable Power of Attorney
In this document you will authorize someone to be your agent. This means that the person can sign for you on any document that requires your signature. This is important if you need to sign paperwork but are unable to do so because of illness, mental or physical incapacity, or if you are traveling or otherwise indisposed.
- Nomination of Guardian and Conservator
In this document you will nominate a person or persons to fulfill two roles. A guardian is someone who looks after your bodily health and safety if you become incapacitated, physically or mentally, at some point in your life. The guardian will have the power to do such things as hire a health attendant to care for you. A conservator handles your finances if you are incapacitated.
Having a good estate plan in place will mean that there will be less arguments when you pass away about who should get your property. It will also cut down on the costs of Probating your estate. Having a good estate plan in place is one part of a comprehensive financial planning strategy. It will also protect your health and safety if you ever become incapacitated in your later years. For instance, without the nomination of guardian and conservator form if you became incapacitated a court may appoint a guardian and conservator for you. This person may not know you personally and is not someone you were able to select for yourself. Thinking about these situations and developing a plan ahead of time will save a lot of work and heartache for you and your family down the road.