At McGinty Belcher & , Attorneys, we understand the fear and anxiety that comes along with the spread of the Coronavirus . We want to reassure you that whatever your current situation, McGinty Belcher & , Attorneys, continues to be available to assist you. Read more

I have a Revocable Living Trust. What can I do to make sure I can avoid probate?

Question:
I have a Revocable Living Trust. I’m not sure that covers everything. What should I do to make sure I can avoid probate?

Answer:
Although your Revocable Living Trust can help you avoid probate, you may still need a Will, especially if you failed to transfer all of your property in the Trust. The Will can have a “pour-over” provision to transfer your property to the Trust when you die. The “pour-over” provision will cause your property to be distributed according to the terms of your Trust.

Potential difficulties regarding transferral of property and probate

Question:
Several years ago I transferred my house to my 4 children, keeping a “Life Estate” for myself. Since then, one of my children passed away. I now want to sell the house, but I was told that my deceased son’s estate would have to be probated before it can be sold. Is this true?
Answer:
Maybe. It depends on how the property is titled. If you transferred the property to your children, jointly, with right of survivorship, then your surviving children now own your deceased son’s interest in the property. However, if you transferred the property to your children as tenants-in-common, then your deceased son’s interest belongs to his estate and has to be probated. The probate process will legally transfer your son’s interest in the property to his beneficiaries in accordance with his Will. If he died without a Will, then his interest in the property will pass to his heirs at law, generally, his spouse if he has one, or to his children. Your son’s beneficiaries or legal heirs will then have the right to make a decision about what they want to do with the property, including whether or not they want to transfer their interest back to you so you can sell the house like you want.
Often, older people transfer their homes into the names of their children, sometimes reserving a life estate in the home. A life estate gives the person transferring the home the right to live in the home or rent it out during her lifetime, but she must continue to pay taxes, insurance, and upkeep on the house during that lifetime. The person to whom the home is transferred is referred to as the “remainder person” because he or she acquires full title to the property after the death of the person holding the life estate. Upon the death of the life estate holder, the property goes to the remainder person(s) automatically, without probate.
This attempt to avoid probate, is one of the many reasons a person may transfer his or her property to another. However, as with all legal transactions, there are advantages and disadvantages which should be carefully discussed with an attorney prior to taking action. One problem that should always be considered is the possibility of a remainder person dying before the life estate holder. As you have discovered, if a remainder person dies before the person with the life estate, things can get tricky and the outcome may not be what you would expect or want.

We are Open and Here to Help

At McGinty Belcher & , Attorneys, we understand the fear and anxiety that comes along with the spread of the Coronavirus. We have been constantly taking calls over the last few weeks from current and prospective clients all wanting to talk about the same thing – the Coronavirus – and what can they do to protect themselves and their loved ones. People are rightfully concerned about their health and safety, the economy, and personal finances and they realize increasingly the very real need for estate planning, guardianships and conservatorships, and help appealing denied claims for Social Security Disability.

While we can’t help with medical answers, we can help with your estate planning, elder law, and Social Security Disability appeal needs.

We can help you review your current estate plans to ensure that you at least have your basic documents in order (Wills, Revocable Trusts, Powers of Attorney, beneficiary designations and health care directives) and that these documents reflect your current wishes. If your current plans need updating, we can update your existing plans. If you don’t have estate plans yet, we can create new plans to meet your current needs.

We also know that some of you have reached a point for a loved one that planning isn’t an option because of incapacity, immediate long term care needs, or death and action needs to be taken to protect the people you love. We remain available to help establish guardianships and conservatorships, protect assets as possible while navigating the Medicaid process, and administer trusts or probate estates.

We can also help individuals who are out of work because of a disability who have been denied Social Security Disability benefits navigate the appeal process. Disability benefits can provide much needed stability in this time of uncertainty. Our authorized Social Security representative remains available to continue assisting current clients and to help potential clients assess the strength of their case and move forward with an appeal of improper denials

We want to reassure you that whatever your current situation, McGinty Belcher & , Attorneys, continues to be available to assist you. We have taken steps and every precaution to be proactive in the very fluid situation caused by the Coronavirus. Our office is well equipped to allow our attorneys and staff to work remotely and continue our operations without disruption. We have the ability to “meet” with clients telephonically or by video conference via the internet. In this regard, video and/or telephone conference calls are excellent mechanisms to discuss your needs, review current estate planning documents, draft new or updated planning documents, establish guardianships and conservatorships, plan and apply for Medicaid, administer trusts and probate estates, and appeal Denials of Social Security Disability claims. For those clients who have documents that need to be signed, we will arrange to sign documents with limited contact.

Much of what it taking place in these in these unique and unprecedented times is beyond our control, but there are still things we can control. One of those things is having an estate plan in place. And from experience, I can tell you that clients feel safer, calmer and more in control when they put an estate plan in place. So take control of what you can. Call us (503) 371-9636 or email us at Sonya@McGinty-Belcher.com for elder law & estate planning or Kalyn@McGinty-Belcher.com  for Social Security Disability Appeals. We hope everyone is staying safe.

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– founded 1989 – At McGinty & Belcher, your peace of mind is our business. We specialize in Elder Law, Estate Planning, & Social Security Disability. Our law firm has been proudly serving the Salem, OR area for over 25 years. Contact Us Today!...

What is a Will?

A Will is a set of instructions that explains how to give away your property after your death. Besides providing instructions about gifts of your property like your home, car, household goods and furnishings, recreational equipment, jewelry, and other personal effects – it can also provide instructions for payment of debts, selection of a personal representative to manage your estate, and appointment of a guardian if you have minor children.

WHO CAN MAKE A WILL?

In Oregon, anyone of sound mind and over the age of 18, or, married if younger than 18, can make a Will.

THE DISADVANTAGES OF DYING WITHOUT A WILL
If you do not make a Will, you give up the right to decide who will inherit your property. Your property will be distributed according to Oregon law. This distribution might be quite different from what you might have wished. For example, if you are married and have either no children, or you have children and all of your children are born of your current marriage, property that is in your name alone will go to your spouse. If you are married and have children from a prior marriage, one-half of your property will go to your spouse and the other half will go to your children. This is so even if you may have wanted to leave part of your estate for the care of your parents or to a friend, or charity.

Without a Will, you also lose the opportunity to select a guardian for your minor children. If you have children under 18, the court may appoint a guardian or conservator to take care of the children and to hold property for the children. This court appointed guardian or conservator may not be the family member or friend that you would have chosen to take care of your children.

THE ADVANTAGES OF A WILL
Having a Will allows you to plan the distribution of your estate among your family, relatives, friends, and charities. It prevents later disputes among your heirs and may help speed up the transfer of your property to your named beneficiaries. Having a Will can also avoid certain administrative expenses. For example, if there is no Will stating that you do not want your personal representative to post a bond, the court may require a bond and the estate will have to pay bond premiums. In a large estate, proper planning can greatly reduce the amount of taxes that would other wise be due if there was no Will.
Finally, a Will allows you to appoint a personal representative to manage your estate and to appoint a guardian or conservator to take care of your minor children and handle their inheritance until they become adults.

APPOINTING A PERSONAL REPRESENTATIVE
Your personal representative is the person who will manage your estate during probate. That person will gather all your property together, pay your bills, and distribute property to your beneficiaries. A relative or friend can serve as your personal representative. It is usually best to choose someone who is comfortable taking care of financial matters and record keeping. If you do not want to choose a relative or friend as your personal representative or if you have a large estate, you may want to consider choosing professional management of your estate by selecting a bank or trust company as your personal representative.

APPOINTING A GUARDIAN

If you have children under 18, you should appoint a guardian in your Will. If you and your spouse die at the same time without such an appointment, the court will select a guardian to care for your children and manage their inheritance. Your Will can create a trust to control the property transferred to your children. At McGinty & Belcher, we can help you to select a guardian and to create a trust in your Will that protects your children and your wishes.

PREPARING YOUR WILL WITH A LAWYER
A Will is only valid if it complies with the requirements established by law. To be effective in Oregon, your Will must be in writing, signed by you, and witnessed by at least two other people. Your witnesses must have seen you sign the Will or must have heard you say it is your signature. If your Will is not properly written or if you do not comply with the detailed requirements for preparing a Will, your Will may be invalid. A mistake in drafting your Will can be extremely costly and cause a great deal of delay and expense in the administration of your estate. More importantly, your property may not go to the persons you want to receive it.