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,
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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
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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.
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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:
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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