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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Aug. 17, 1984)
The advantages of having a Will by P. Herbert Schmidt In any discussion o f W ills, som e m ention should be given to what happens when one dies w ithout a W ill. In beginning this discus sion, it should be noted that in som e jurisdic- tions, it is not a requirem ent that all estates be probated o r that any estate be probated. This is regardless o f whether or not the decedent died with or w ithout a W ill. Therefore, in the m ost drastic o f situations, since it is not a requirem ent that a person’s estate be pro bated, som eone who has easy or ready ac cess to the property o f the decedent could dispose o f o r otherwise secrete the assets of the estate p rior to the intervention o f the state, the C ourts, o r other interested parties. For exam ple, in the state o f O regon, the ju risd ic tio n o f the Probate C ourt is not invoked until the filin g o f a petition by an interested party. An interested party is ipso facto anyone in terested enough to file a petition for the pro bate o f a decedent’s estate. In other words, people usually file petitions for the probate o f an estate in order to protect their interests in the decedent’s estate. A lm o st all W ill form s provide for the ap po in tm e n t o f a Personal Representative, and in any e ve n t when a petition fo r the probate o f an estate is filed, a Personal Representative w ill be appointed. Therefore, when one dies intestate w ithout a W ill, there is no Personal Representative to step in and im m ediately petition fo r the probate o f an estate in order to protect the assets thereof and it is not until an interested party com es forw ard to petition for the probate o f an estate that a Personal Rep resentative is finally appointed to gam er and protect assets o f the estate. In short, the as sets o f a decedent’s estate are totally unpro tected and their m anagem ent unsupervised L C Q K / If one's g a y lover is not protected by a will or other legal Instrument, they are S.O.L. in the event of your death. un til the Personal Representative or Executor o f an estate is appointed. Having a W ill de posited w ith a good friend or an attorney specifying who the Personal Representative o r E xecutor is to be, and having that person m ade aware o f the fact that they are the Per sonal Representative speeds up the process, generally speaking, by w hich one’s estate falls w ithin the ju risdiction o f the Probate C ourt and thereby receives the protection of the C ourt and hopefully the kind adm inistra tions o f a com petent Personal Representative. S om e o f the m ore obvious com plications o f dying intestate (w ithout a W ill) is that you have little o r no control over the disposition o f your estate after your death. If you have a dear friend o r a special child, o r intended your business to be carried on in a particular m an ner, forget it When you die intestate your dream s, hopes, aspirations and wishes are buried w ith you. O ften tim es, m any o f your friends and fam ily m em bers w ill be aware of your wishes, but the law w ill transfer all o f your estate’s assets to your nearest blood relatives regardless o f those wishes and this, m any tim es, results in bitter fam ily disputes. S om etim es it even results in expensive legal battles in w hich there are no winners. This is especially the case when the decedent has, $ P E .U A AT o o fc A o G»OST U w e E , OIL. É r iL T E R , u? V J L O J U U U iJ U ( c o o fo r m any years, loved som eone but, for what ever the reason, they have never gotten around to form alizing their relationship. In O regon, there is no such thing as a com m on law m arriage, while it is the case in other ju risdictions. In any event, said loved one has little o r no rights in the decedent’s estate, absent statutes which recognize com m on law m arriage, and then the loved one has rights only to the extent o f his or her contribu tio ns and even then he or she m ust petition the C ourt to enforce same. This is especially true in the case o f gay households where there is obviously no com m on-law m arriage to begin with. If one’s gay lover is not protected by a W ill or other legal instrum ent they are S.O.L. in the event o f your death. A nother problem is that many decedents, p rio r to th e ir death, w ill have tried to make th e ir own W ill w ithout m eeting all the form ali ties necessary at law fo r same to be honored as a W ill. One o f the classic examples is the attem pt o f a decedent to have made a holo graphic W ill. A holographic W ill is only hon ored in som e jurisdictions and is definitely not honored in the state o f Oregon. A holo- grpahic W ill is an instrum ent written entirely in the hand o f the decedent with the intent to M O ^T C A A .* C u p t q 1. The testator gets to choose where and to w hom his property w ill go. 2. The testator gets to nom inate w ho is to serve as his Personal Representative to m an age his estate after his death. 3. The testator gets to nom inate any Trustee he wishes to see appointed to m an age specific portions o f his estate that he wishes to place in trust fo r specific purposes. 4. The testator gets to nom inate who he wants to serve as guardian o f his m inor children. 5. The testator can select the m anner in w hich he wishes his bodily rem ains to be disposed of. 6. His W ill w ill sm ooth o u t the adm inistra tio n o f his estate, if properly drawn, thereby m inim izing the expenses o f adm inistration. 7. If the testator’s estate is large enough to in cur estate o r inheritance taxes, then, if his W ill is properly drawn, it w ill m inim ize his estate tax burden and the inheritance tax burden upon his heirs and devisees. AW VSTHEHT o*r M m CVL # 12? 20 % 5 ^ vX' e.xpias. 4 . AOC»OVT ß n V I r m rx * 1 0 . 9- 5 5. . V A LV E . (^ \> n P q n ) l pass on his w orldly belongings to others after his death. Needless to say, in a state such as O regon, such an instrum ent is w holly and entirely useless and in the case o f any state of this U nion in w hich all the form alities o f a Will are notm et, whatever it is that the decedent has concocted prior to his death, is also wholly and entirely useless. This also leads to a great deal o f bitterness when a loved one finds the decedent's entire estate passing on to som e one else despite the existence o f a written in stru m e n t Therefore, in order to avoid these com pli cations, it is best that a W ill be properly pre pared and properly witnessed. The crux of the m atter is that when one dies w ithout a W ill, regardless o f anyone else’s wishes, the decedent’s estate passes on to his lineal de scendants at law according to a strict plan and no one, least o f all the decedent has m uch say in the matter. Also, when one dies intestate (w ithout a w ill) and leaves m inor children, the C ourt m ust appoint a Personal Representative fo r the estate o f the decedent, w ho could be paid fro m the assets o f the de cede nt The C ourt m ust also appoint a guardian fo r the children and a Trustee to adm inister the estate du ring the children’s m inority, both o f w hom cou ld be paid from the assets o f the estate and these individuals are selected w ithout the benefit o f what the decedent w ould have wanted. The result here is that m uch o f the estate is eaten up in bureaucratic-like processes and total stran gers take over the adm inistration o f the dece dent’s estate. Therefore, the advantages o f having a W ill are ap parent To name a few: MOtT )t» L I 8 i2 ? fORTlAMPS n y rm c T lV t. A v it o fC fc P A iR • T O M B .- O F * » A L T «C R N A T I V E O W ttEP B V 4j. OPERATHEP M A K E S C.AR.&ORJCTOft* W ONW N HOOE* _________ H E R MOM- F Kl &0O - 5t>© A U T O ZbÇS M E 14 O m oM AVC I Z O R E P N A I ■“ ' “ * * * - * “ * " “ R rOILTUAMP, OR 97X11. Sales Associates Sue Davis and Mike Hatheway, flank Broker Deborah Betron in front of Bridgetown Realty's new office location. 2305 NE Broadway 287-9370 Just Out, August 17-August 31.1984