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Medford Wills & Trusts Attorney

Customized Estate Planning in Klamath Falls, Medford & Jackson County, OR

Ensuring that your assets and property are passed on to your heirs and beneficiaries according to your wishes requires advance planning. Two of the foundations of this estate planning are wills and trusts. Nearly everyone is familiar with what a will does. However, it is important to remember that a will only goes into effect upon your passing and, without one, the state of Oregon will decide who inherits your assets and property. Trusts, however, can be created for many different purposes and can be managed while you are still alive. After your passing, the person you designate to administer your trust will be responsible for passing on your assets according to the terms you wrote into the trust document. Estate planning can include both wills and trusts.

To customize your estate planning through wills and trusts, you need to understand how they work, what they can do, and the options you have in creating them. At Oakes Law Office, PC we focus a large portion of our practice on estate planning. Our Medford wills and trusts lawyer can educate you on these valuable legal methods for protecting your estate and how you want that estate to be distributed upon your passing. Our firm has been providing competent and trusted legal guidance in these matters for decades.

Ensure your estate is protected through a valid will and/or trusts. Contact Oakes Law Office, PC online or at for a free, initial consultation.

Estate Planning through Wills & Trusts

Wills

Wills are legal instruments that state your specific instructions on how you wish your assets and property to be distributed to your heirs and beneficiaries after you are gone. Your will can name the person you wish to administer it, known as your “executor.” You can also name a guardian for any minor children you may have and someone to manage the estate or assets you leave to those children until they become adults. You can also have instructions as to funeral services, burial, or cremation. Without a will, the probate court will decide how your estate will be passed on without any input from you.

Trusts

Trusts are another method for protecting and passing on your property and assets. They can range from the very simple to the very complex, depending on your situation. They can also be designed for various purposes, from caring for special needs relatives to trusts set up for minor children.

A trust involves three parties, the person who creates it, known as the settlor, a trustee who manages it, and the beneficiaries to whom the assets in the trust will be passed on. A trust is a separate legal entity into which you will place your assets. Those assets will then be managed by the trustee. In a living trust, you can act as the trustee of your assets and manage, change, or revoke the trust as you see fit. In the event of your passing, a successor trustee will then administer the transfer of your assets to your beneficiaries according to the instructions you have written into the trust without having to go through probate.

Various Types of Trusts Can Include but Are Not Limited To:

Living trusts

Living trusts, as described above which are revocable. These trusts protect your assets and provide the advantage of probate-free administration upon your passing that minimizes time, expenses, and stress for your loved ones.

Marital trusts

These are generally designed to minimize taxes, for asset protection, and to ensure that assets are distributed to the heirs and beneficiaries of your choosing.

Trusts for minor children

Trusts for minor children. Assets can be set aside in a trust to ensure that your children have the financial support needed for various purposes, such as higher education and more. Once they become adults, these assets can be distributed according to your instructions.

Special needs trusts

Special needs trusts. These trusts provide advantages for special needs relatives who receive governmental benefits.

Charitable trusts

These are designed to pass on assets to your chosen groups and organizations.

Life insurance trusts

Life insurance trusts. These are generally irrevocable trusts based on the asset of a life insurance policy for which you are the beneficiary. After your passing, the policy proceeds are invested or administered for your beneficiaries.

Spendthrift trusts

Spendthrift trusts. These are irrevocable trusts that allow an independent trustee to manage how the trust assets are used for the beneficiary.

 

Work with an Experienced Estate Planner

Wills and trusts provide legal methods for protecting yourself and your loved ones in the matter of your estate assets and property. These legal documents can ensure that your wishes are carried out upon your passing. At our law office, we can evaluate your unique situation so as to provide options based upon your needs and goals and follow through with a tailor-made estate plan designed for you.

Preserve your estate and legacy through proper planning. Contact us online or at to get started.

Frequently Asked Questions

Answers from a Skilled Klamath Falls & Medford Attorney

The decision to file for bankruptcy is often one of the hardest choices that a person has to make in his or her lifetime. Poor planning can often make the process even harder. It goes without saying that filing for bankruptcy should be a last resort, and should only be done when all other methods of satisfying one’s financial obligations have been exhausted. However, if your situation has become so severe that you are in danger of foreclosure, garnished wages, or repossessions or are facing debts that you are in no position to pay, putting off the inevitable can have devastating consequences. Procrastination can cost you your car, your wages, and even your home. Filing your case in a timely fashion can spare you these losses.

The Bankruptcy Abuse Protection and Consumer Protection Act, passed in 2005 puts much stricter guidelines on personal bankruptcy filings. Some of these guidelines include mandatory debt counseling, income limitations on who can and cannot file and requiring some debtors in higher income brackets to pay off a portion of their debt before allowing them to file. Depending on the amount of money you have, your current income, and your personal circumstances, you may not be allowed to file for Chapter 7, which absolves most of your debts. Instead, you may be forced to file for Chapter 13, which requires you to enter into a payment plan. Before filing, it is important that you speak with someone experienced with the bankruptcy laws so that you will have a better idea of what to expect when you file.

Many people mistakenly believe that filing bankruptcy will “wipe the slate clean” and absolve them of all their financial obligations, but that is not necessarily true all of the time. Even if you file for bankruptcy, you will still need to pay your child support, back taxes, federal student loans, or debts incurred as a result of fraud or theft (writing bad checks, for example). If you are not clear on which debts will and will not be discharged, speak with an attorney or reputable credit counselor before filing.

Not being prepared for the hearing. Failing to show up or properly prepare for your hearing will not buy you more time. If you are not present at the time of your hearing, your case could be dismissed, and you will have to re-file at a future date. In addition, you will also be forced to pay court costs. Not having all of the required forms and documents may result in not getting all of your debts included in the bankruptcy, which means that you will still be responsible for them even after you file. It is very important to arrive for the hearing on time and that you bring all of your supporting documentation, including a detailed list of all of your creditors. You will also need to bring a valid photo ID to the hearing.

 

Having too much money in the bank. This is a time when it is not good to save. When you file for bankruptcy, anything over $200 in most cases will be seized and used to pay your creditors. If you have a significant amount of money in savings, you may want to consider entering into a payment plan or settlement with your creditors before you file for bankruptcy. This may allow you to save some of your money.

A Chapter 7, also known as a straight bankruptcy, is a person’s most powerful weapon. It makes most debts disappear without paying them back at all. Straight bankruptcy is a good idea if someone realistically cannot expect to pay a significant portion of his or her debts within a reasonable period of time.

A Chapter 13 bankruptcy involves restructuring or reorganizing some of your debt over a period of time, from three to five years. Each week or month, a payment is made to a Chapter 13 trustee, who then pays the creditors. Chapter 13 can be an extremely flexible and useful way to deal with debt problems and to get rid of high interest rates.

Some refer to this as a “US Government Managed Repayment Plan.” Actually, it is the individual who makes up the plan, and, if the plan is accepted by the court, the only “government management” you will ever see is the fact that the money is paid into the the court-appointed trustee, and the trustee pays it out. You control the terms and the percentage of payment to the individual creditors. The Chapter 13 bankruptcy can be filed even if you have filed a bankruptcy in the past and is commonly used to stop foreclosures.

In a straight bankruptcy, the employer is not notified, because there is no repayment plan to be wage deducted. In Chapter 13, the preferred method of plan payment is by wage deduction, although it is possible to have the payments taken directly out of your bank account, without involving your employer. There is an additional option to have the payment taken directly from your bank

If you are a candidate for bankruptcy, your credit rating is probably already damaged, although this is not always the case. We have seen many cases where no payments have been missed, although the people are borrowing on one credit card to pay on the other cards.

Credit reporting companies are able to keep a notation of the bankruptcy for up to ten years, but today, unlike even a few years ago, filing bankruptcy is NOT the end of your ability to get credit. We tell all of our clients several easy ways to rebuild their credit quickly. These steps are so successful that our clients call to tell us that they have rebuilt their credit, and two or three years after bankruptcy, they are buying a house.

When have you ever seen anyone’s bankruptcy in the paper? It is a public record but you have to read the legal newspapers to see it and the only people I know that read these papers are lawyers. Anyone who wants to can go to the federal court in Eugene and see who has filed bankruptcy.

We have actually filed bankruptcy for relatives, at the same time, and neither knew that the other was filing. Unless you tell them, your friends, relatives, and neighbors, or anyone else, are not likely to know that you have filed.

Yes, you can keep your car, your house, your stereo, and other property, subject to certain limitations if they are owned outright. If you owe on any of it, you can choose to keep the debt and the result is just as if you had not filed on that particular debt. This is what people mean when they say that they did not file on their house or car or other debt.

In this case, a Chapter 13 will probably be your best bet. You can stretch out your payments for three to five years, and the creditors cannot do anything to stop you.

No. Most of my Chapter 13 plans pay less than 100% on some or all of your debts. This will depend on your living expenses, how much you earn, and what types of debts you owe. Then, if you successfully make all of the plan payments, your debts will disappear at the end of the plan, even if you have not paid them back in full.

 

Not really. Although you might think a person would be rewarded with a kinder view of their credit rating when they pay back at least some of their debt, it does not appear to work that way. In fact, creditors know that when a person files a Chapter 7, they don’t owe any other debt, so their income is free to spend on new debt. Also, creditors know that you can file a Chapter 7 once every 6 years, so they are sure that you will not be able to discharge their debt in another Chapter 7 bankruptcy. For this reason, Chapter 7 actually cleans up your credit rating in some respects, and faster, than Chapter 13.

When you have filed for Chapter 13 bankruptcy, you are not allowed to go out and borrow money without permission from the Trustee. So, you are not establishing a repayment track record, while the trustee is paying all or some of your bills. This is another reason why Chapter 7 is often a quicker way to resolve and restore your credit.

When someone passes away, his or her property must somehow pass to another person. In the United States, any competent adult has the right to choose the manner in which his or her assets are distributed after his or her passing. (The main exception to this general rule involves what is called a spousal right of election which disallows the complete disinheritance of a spouse in most states.) A proper estate plan also involves strategies to minimize potential estate taxes and settlement costs as well as to coordinate what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event of death or disability. On the personal side, a good estate plan should include directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you know and trust can do that for you.

Sadly, many individuals don’t engage in formal estate planning because they don’t think that they have “a lot of assets” or mistakenly believe that their assets will be automatically shared among their children upon their passing. If you don’t make proper legal arrangements for the management of your assets and affairs after your passing, the state’s intestacy laws will take over upon your death or incapacity. This often results in the wrong people getting your assets as well as higher estate taxes.

If you pass away without establishing an estate plan, your estate would undergo probate, a public, court-supervised proceeding. Probate can be expensive and tie up the assets of the deceased for a prolonged period before beneficiaries can receive them. Even worse, your failure to outline your intentions through proper estate planning can tear apart your family as each person maneuvers to be appointed with the authority to manage your affairs. Further, it is not unusual for bitter family feuds to ensue over modest sums of money or a family heirloom.

Your estate is simply everything that you own, anywhere in the world, including:

  • Your home or any other real estate that you own
  • Your business
  • Your share of any joint accounts
  • The full value of your retirement accounts
  • Any life insurance policies that you own
  • Any property owned by a trust, over which you have a significant control

If you have children under the age of eighteen, you should designate a person or persons to be appointed guardian(s) over their person and property. Of course, if a surviving parent lives with the minor children (and has custody over them) he or she automatically continues to remain their sole guardian. This is true despite the fact that others may be named as the guardian in your estate planning documents. You should name at least one alternate guardian in case the primary guardian cannot serve or is not appointed by the court.

A comprehensive estate plan should include the following documents, prepared by an attorney based on in-depth counseling which takes into account your particular family and financial situation:

A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You (and your spouse) are the Trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your Living Trust is “revocable” which allows you to make changes and even to terminate it. One of the great benefits of a properly funded Living Trust is the fact that it will avoid or minimize the expense, delays, and publicity associated with probate.

If you have a Living Trust-based estate plan, you also need a pour-over will. For those with minor children, the nomination of a guardian must be set forth in a will. The other major function of a pour-over will is that it allows the executor to transfer any assets owned by the decedent into the decedent’s trust so that they are distributed according to its terms.

A Will, also referred to as a Last Will and Testament, is primarily designed to transfer your assets according to your wishes. A Will also typically names someone to be your Executor, who is the person you designate to carry out your instructions. If you have minor children, you should also name a Guardian as well as alternate Guardians in case your first choice is unable or unwilling to serve. A Will only becomes effective upon your death, and after it is admitted by a probate court.

A Durable Power of Attorney for Property allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you during a period of incapacitation. This guardianship process is time-consuming, expensive, emotionally draining, and often costs thousands of dollars.

There are generally two types of durable powers of attorney: a present durable power of attorney in which the power is immediately transferred to your agent (also known as your attorney in fact); and a springing or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend. Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.

The law allows you to appoint someone you trust to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a Durable Power of Attorney for Health Care or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then ensure that health care professionals follow your wishes. Hospitals, doctors, and other health care providers must follow your agent’s decisions as if they were your own.

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expenses and delay in the event of future incapacity.

Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. In addition to the above documents, you should also sign a HIPAA authorization form that allows the release of medical information to your agents, your successor trustees, your family, and other people whom you designate.

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved one owned his or her assets through a properly drafted and funded Living Trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased. The length of time needed to complete probate of an estate depends on the size and complexity of the estate as well as the rules and schedule of the local probate court.

Every probate estate is unique, but most involve the following steps:

  • Filing of a petition with the proper probate court
  • Notice to heirs under the will or to statutory heirs (if no will exists)
  • Petition to appoint Executor (in the case of a will) or Administrator for the estate
  • Inventory and appraisal of estate assets by Executor/Administrator
  • Payment of estate debt to rightful creditors
  • Sale of estate assets
  • Payment of estate taxes, if applicable
  • Final distribution of assets to heirs

A properly drafted Revocable living trust (RLT) is a powerful estate planning tool that allows you to remain in control of your assets during your lifetime, have them managed during incapacity, and efficiently and privately transfer them to your loved ones at death according to your wishes.

Sometimes referred to simply as a Living Trust, an RLT holds legal title to your assets and provides a mechanism to manage them. You would serve as the trustee and beneficiary of your trust during your lifetime. You also designate successor trustee(s) to carry out your instructions for how you want your assets managed and distributed in case of death or incapacity.

In order for the Living Trust to function properly, you need to transfer many of your assets to your Living Trust during your lifetime. The fact that it is “revocable” means that you can make changes to it or even terminate it at any time.

Like a will, a Living Trust is a legal document that provides for the management and distribution of your assets after you pass away. However, a Living Trust has certain advantages when compared to a will. A Living Trust allows for the immediate transfer of assets after death without court interference. It also allows for the management of your affairs in case of incapacity, without the need for a guardianship or conservatorship process. With a properly funded Living Trust, there is no need to undergo a potentially expensive and time-consuming public probate process. In short, a well-thought-out estate plan using a Living Trust can provide your loved ones with the ability to administer your estate privately, with more flexibility, and in an efficient and low-cost manner.

Creating a Revocable Living Trust and transferring your assets to the name of that trust will generally not affect your ability to control such assets. During your lifetime when you are mentally competent, you have complete control over all of your assets. As the trustee of your trust, you may engage in any transaction that you could before you had a Living Trust. There are no changes in your income taxes. If you filed a 1040 before you had a trust, you can continue to file a 1040 when you have a Living Trust. There are no new Tax Identification Numbers to obtain. Because a Living Trust is revocable, it can be modified at any time or it can be completely revoked if you so desire. Upon your incapacity, the individuals you designate will be able to transact on your behalf according to the instructions you have laid out in the Living Trust. Upon your passing, the Living Trust can no longer be modified and the successor trustee(s) you have designated will then proceed to implement your wishes as directed.

Federal law prohibits financial institutions from calling or accelerating your loan when you transfer property to your living trust as long as you continue to live in that home. The only exception to the federal law, enacted as part of the 1982 Garn-St. Germain Act is that it does not provide for such protection for residential real estate with more than five dwelling units.

Assets with beneficiary designations such as a life insurance policy or annuity payable directly to a named beneficiary need not be transferred to your Living Trust. Furthermore, money from IRAs, Keoghs, 401(k) accounts, and most other retirement accounts transfer automatically, outside probate, to the persons named as beneficiaries. Bank accounts that are set up as payable-on-death account (POD for short) or an “in trust for” account (a “Totten Trust”) with a named beneficiary also pass to that beneficiary without having to be titled into your trust. It is important, however, to seek the counsel of an experienced estate planning attorney who can advise on and assist with transferring necessary assets to your trust.

While you can certainly bequest money and assets to those with special needs, such a bequest may prevent them from qualifying for essential benefits under the Supplemental Security Income (SSI) and Medicaid programs. However, public monetary benefits provide only for the bare necessities such as food, housing, and clothing. As you can imagine, these limited benefits will not provide your loved ones with the resources that would allow them to enjoy a richer quality of life. Fortunately, the government has established rules allowing assets to be held in trust, called a Special Needs or Supplemental Needs Trust for the benefit of a recipient of SSI and Medicaid, as long as certain requirements are met.

Generally, a Special Needs Trust should be established no later than the beneficiary’s 65th birthday. If you have a disabled or chronically ill beneficiary, you may want to consider establishing the Special Needs Trust at an early age. One benefit of having the Trust in place is that if the disabled beneficiary becomes the recipient of funds such as gifts, bequests, or a settlement from a lawsuit they can immediately be transferred to the Special Needs Trust without affecting that individual’s eligibility for government benefits.

While Special Needs Trusts are typically established by parents for their disabled children, any third party can establish a Special Needs Trust for the benefit of a disabled beneficiary. It is important to seek the assistance of competent counsel when creating a Special Needs Trust because a poorly drafted Trust can easily be subject to “invasion” by the government agencies that provide benefits. Our law firm has the experience and the expertise to establish effective Special Needs Trusts for anyone who wishes to provide for a disabled beneficiary.

Yes, you should still establish a Special Needs Trust to protect your disabled beneficiaries from potential creditors. For example, if your disabled beneficiaries are ever sued in a personal injury action, the assets in the trust would not be available to the plaintiffs. Furthermore, because the funds in the Special Needs Trust are not countable as available assets for purposes of determining government benefit eligibility, more of your money can be used for those supplemental expenditures that will allow your disabled beneficiary to enjoy a higher quality of life. Otherwise, much of your assets will be used to pay for private care benefits that are extremely expensive and can drain even significant sums of money over time.

A Durable Power of Attorney is a document that empowers another individual to carry on your financial affairs in the event you become disabled or incapacitated. Without a Durable Power of Attorney, it may be necessary for one of your loved ones, including your wife or adult child to petition a court to be appointed guardian or conservator in order to make decisions for you when you are incapacitated. This guardianship process is time-consuming, expensive, often costing thousands of dollars and it can be emotionally draining for your family.

There are generally two types of durable powers of attorney: a present Durable Power of Attorney in which the power is immediately transferred to your attorney in fact; and a springing or future Durable Power of Attorney that only comes into effect upon your subsequent disability as determined by your doctor. When you appoint another individual to make financial decisions on your behalf, that individual is called an agent or attorney in fact. Most people choose their spouse or domestic partner, a trusted family member, or friend.

Generally, any individual over the age of majority and who is legally competent can establish a Power of Attorney.

In general, an agent, or attorney in fact, may be anyone who is legally competent and over the age of majority. Most individuals select a close family member such as a spouse, sibling, or adult child, but any person such as a friend or a professional with an outstanding reputation for honesty would be ideal. You may appoint multiple agents to serve either simultaneously or separately. Appointing more than one agent to serve simultaneously can be problematic because if any one of the agents is unavailable to sign, action may be delayed. Confusion and disagreement between simultaneous agents can also lead to inaction. Therefore, it is usually more prudent to appoint one individual as the primary agent and nominate additional individuals to serve as alternate agents if your first choice is unwilling or unable to serve.

The law allows you to appoint someone to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a “Durable Power of Attorney for Health Care” or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes. Hospitals, doctors, and other health care providers must follow your agent’s decisions as if they were your own.

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

Some medical providers have refused to release information, even to spouses and adult children authorized by the Healthcare Power of Attorney on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. Therefore, as part of your incapacity planning, you should sign a HIPAA authorization form that allows the release of medical information to your agents, successor trustees, family, or any other individuals you wish to designate.

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