Will. A will is a legally enforceable set of instructions that explains how you want your property distributed after your death.Trust.A Trust is a document that acts as its own entity, and can hold and control your property in accordance with your instructions. A trust is controlled by a trustee. This can be you during your life, and someone else you appoint following your death.
Estate planning is a unique area of law as a result of the fact that most of the challenges to your will or trust will happen after you are gone. As such, experience, formality, and process are critical. In many cases a Will or Trust is not a particularly complex document. However, drafting your will or trust without an attorney can have dramatically different outcomes, even if the two documents were otherwise exactly the same. The reason for this difference is that if a challenge is filed after you have passed away, it can be difficult and unpredictable to guess what a court will do if someone argues you were not competent at the time you executed your will or trust, or if they argue it was the result of undue influence.
However, by having an experienced attorney draft your estate planning documents you add a significant layer of security to them. The lawyer will offer you independent advice, confirm through witnesses to your competency and desires, and ensure none of your beneficiaries are involved in the drafting or signing of your documents - insulating them from future allegations and challenges.
Our office has developed a variety of procedures to help your will survive and avoid future legal challenges, including:
Drafting your will or trust with an experienced attorney does more than just make it easier for you. It adds an additional barrier to protect your plans from being challenged. For instance, the Oregon Supreme Court in In re Reddaway’s Estate found that there are several factors a court should consider when someone challenges a will for undue influence. Among these include a lack of independent legal advice, whether a beneficiary helps draft the Will, and signs of secrecy or haste. People that draft a will without the aid of an attorney leave themselves vulnerable to such accusations. Our office will guide you through the drafting and signing of your will - giving you independent advice. As a result your will is more resistant to challenges.
Digital progress has added several ways in which our office has advanced the creation of your will and trust. With computer assisted error checking and text duplication, our office limits the chance of an error occurring in your will or trust, such as the spelling of a name of a loved one, important date, etc - which could later be used to argue you were not competent at the time of signing. This also allows us to create your will quickly and efficiently.
Your will cannot benefit you if - at the time of your passing - it cannot be found. Our office creates traditional paper versions of your will, including an original and copies that go home with you when you sign. However, we also maintain in our records a digitial copy of your will, including all signatures and notary stamps. This provides an extra layer of protection should your will be lost, and insures against anyone intentionally trying to hide or destroy your will if they do not like its contents.
Legal challenges to wills are not uncommon, and come in many forms. Two of the most common are allegations that you lacked capacity, or that you were subject to undue influence. These types of claims may be brought by individuals such as family members or other beneficiaries that feel they are entitled to more than you chose to leave them.