Do you understand the basics of a will and testament? Having a comprehensive understanding of this important estate planning document is necessary if you want to have a say in what happens to your estate, such as your money, property and belongings, after you pass away. We break down some of the most basic elements of a will:
What is a Will?
A will is a legal document used to determine how a person’s property is distributed, and to whom it is distributed, following his or her death. The person who makes a will is called the “Testator”. In order to be legally valid, the testator must have the legal capacity to make a will, and the will must be legally executed.
What is Legal Capacity?
The individual who is making a will must have “testamentary capacity” at the time they made the will. They must be at least 18 years old to execute a will, however, if married or emancipated, a person can make a will before they turn 18.
The individual must be of sound mind at the time that he or she executes the will. This means that they must understand the basic needs for his or her life and be in control of his or her faculties or senses. They need to understand the nature and extent of his or her property, and understand that the persons identified in the will, and no one else, will receive their property in the manner specified in the will.
How is a Will Legally Executed and Witnessed?
In order to be legally executed and witnessed, the will must be in writing, it must be signed in front of witnesses, and it must be attested to in writing by at least two witnesses. Attesting is accomplished by signing the witness’ name to the will within a reasonable time before the testator’s death. If a beneficiary (the person or entity who is designated to receive the benefits of the property) of the will is also a witness, this does not invalidate the will. All signatures must take place in the presence of the testator and the required witness or witnesses.
Does a Will Need to be Notarized?
No, but it should be. According to Oregon law, a will that meets certain requirements, including proper notarization, is considered “self-proved”. A self-proved will can be admitted to probate court without the testimony of the witnesses to the will. When a will that isn’t self-proved is submitted to the probate court, the court will require testimony from witnesses, or other proof, to establish that the will is what it claims to be.
To make a will self-proved in Oregon, the witnesses must sign an affidavit before a notary public. Since a notary public is an officer of the court, an affidavit before a notary public is like making a statement in court.
Is a Handwritten Will Valid in Oregon?
The short answer is no. Wills that are handwritten and not witnessed are not recognized as valid in Oregon. A handwritten will that is witnessed by two individuals will be considered valid.
Where Should a Will Be Stored?
A probate court usually requires your original will before it can process your estate, so it's important to keep the document safe, yet accessible. If you put the will in a bank safe deposit box that only you can get into, your family might need to seek a court order to gain access. A waterproof and fireproof safe in your house is a good alternative.
Your attorney or someone you trust should keep signed copies in case the original is destroyed. Signed copies can be used to establish your intentions, however, the absence of an original will can complicate matters, and without it there's no guarantee that your estate will be settled as you'd hoped.
How Often Does a Will Need to Be Updated?
It's possible that your will may never need to be updated — or you may choose to update it regularly. The decision is yours. Remember, the only version of your will that matters is the most current and valid copy in existence at the time of your death. With that in mind, you may want to revisit your will at times of major life changes such as marriage, divorce, the birth of a child, the death of a beneficiary or executor, a significant purchase or inheritance, and so on.
Can a Will be Contested and Who Can Contest it?
Contesting a will refers to challenging the legal validity of all or part of the document. A beneficiary who feels slighted by the terms of a will might choose to contest it. An example of this might include a spouse who believes your will goes against state probate laws. A will can be contested for any number of other reasons: it wasn't properly witnessed; you weren't competent when you signed it; or it's the result of coercion or fraud. It's usually up to a probate judge to settle the dispute. Successfully contesting a will needs to find a legitimate legal fault with it, so a clearly drafted and validly executed will is the best defense.
Does the Will Automatically Transfer Property After Death?
No, title to the property transferred through a will does not automatically pass ownership of the property to the beneficiary. The process of transferring property starts by filing the will with the probate court. The probate judge then empowers the personal representative to carry out the instructions in your will.
The personal representative ensures that creditors are paid. Creditors must be repaid from the estate before the remaining estate assets can be distributed to the rightful beneficiaries. They also prepare state and/or federal tax returns and any inheritance, gift and estate tax returns, and pays any taxes due. Other personal representative tasks include preparing and submits an account to the people named in the will, the heirs of the deceased person, and the court. After court approval of the account and payment of all unpaid probate expenses, the deceased person’s assets are distributed to the beneficiaries.
If you would like to speak with one of our estate planning attorneys about creating a will or modifying an existing one, our team is here to help. Call our office today at (503) 227-0200 to set up your free consultation.
Lewis Irwin Landerholm
Founding Partner
Lewis Landerholm realized the importance of family and justice from a very young age. With grandparents in the legal field, a mother in education and a father who was a domestic violence counselor, Lewis was raised by a family dedicated to helping people. His role models taught Lewis that the world is a complicated place where education and a helping hand could make all the difference.
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