Healy & McCann, PC

Albany Legal Issues Blog

Planning your estate when you don't have children

If you don't have children and you don't intend to have children in the future, it's particularly important to plan your estate. This is because if you do not create an estate plan, your estate may be distributed to unintended beneficiaries. Potentially, your estate could be inherited by distant relatives that you do not even know.

You should take the time to consider the legacy that you want to leave through your estate. You may want to leave your estate to a charity that is close to your heart, or you may have specific relatives in mind, such as nieces and nephews, whom you wish to benefit from your estate.

A comparison of wills and trusts

It isn't uncommon for Oregon residents to have both a will and a trust as part of their estate plan. Typically, the majority of assets will be controlled by either a will or a trust. By putting assets in a trust, it may be possible for an estate to avoid going through probate. This can be beneficial for those who want to protect their privacy or minimize the chances of someone challenging some or all of an estate plan.

In some cases, probate can be both costly and time-consuming regardless of how large an estate is. Of course, some believe that the public nature of a probate proceeding helps to ensure that the estate is settled properly. Generally speaking, creating a will costs less than creating a trust, and individuals who create a will own their assets until the day that they die.

Type of income stream can impact financial status after split

Oregon residents who are going through a divorce will need to understand how their different income streams can impact their financial status after the split. While property division negotiations over income might be straightforward if a person's income comes from a straight salary, there are other methods of compensation that can affect the result and make the negotiations more complex.

Understanding the different types of compensation is the first step towards successful negotiations that result in fair settlements. Bonuses, commissions, stock options, perks and compensation provided by a new employer, when and if these take place, are important when deciding on a negotiation strategy. Perks, for example, can be considered income, when they benefit the entire family, such as when a college professor receives housing from the university at which he or she teaches.

Now is the best time to make an estate plan

Most people in Oregon don't like to think about their mortality, which is why they may procrastinate when it comes to making an estate plan. In other cases, individuals might put off creating such a plan because they don't think that they are going to die or get sick anytime soon. However, it is generally in a person's best interest to do so as soon as possible as it could help protect them and their heirs.

For instance, say that a son or daughter gets married to someone who already has children. An estate plan can determine how much of a person's estate those children could be entitled to. A trust may spell out how property is to be divided between any biological children a person has. For instance, a parent could decide that one child will get a larger share of the estate than another child will.

A trust can be the beneficiary of an IRA

For those Oregon residents who have a mind towards and plan for the future, retirement savings and estate planning are two essential components. An IRA is a popular choice to save and grow retirement funds. The funds designated for the IRA are pre-tax dollars, which saves on present tax, allows the invested money to grow, and defers the tax until the money is withdrawn in retirement, typically at a lower tax rate. A trust provides a way to control one's assets during life, distribute to beneficiaries after death, and potentially do so without the need for probate.

When a person opens an IRA account with a financial institution, it is a matter of course to name a beneficiary to receive the balance of the funds should that individual pass away before the funds have been accessed. Many designate their spouse or child as the beneficiary, but financial experts may recommend a trust can be the beneficiary of an IRA under certain circumstances.

Why should new parents set up an estate plan?

New parents have plenty of things to worry about. You are trying to adjust to a new sleep schedule (or lack thereof), setting up a new routine and getting to know your new favorite person. Even if you have started thinking your baby's college fund, you probably have not considered what will happen to your child if you and your spouse are no longer around. That just seems a long way off.

While you likely have a lot of time with your child, creating an estate plan protects your children, no matter what happens. Nobody likes to think about passing on, but with an estate plan in place, you at least know your children will have nothing to worry about. Here are some reasons new parents should consider setting up estate documents.

Predicting the amount and length of alimony

When going through a divorce, it's important to remember that it is not only the division of assets that can determine your future quality of life, but also the income that you earn and the expenses that you owe. Even if one spouse gets the lion's share of marital assets, they may still be ordered to pay a significant amount of alimony to the other spouse in the months and years to come.

Alimony is an often-overlooked factor that can hugely impact you and your dependents. If you are approaching a possible divorce, you should take the time to understand the law and plan so that you can get a positive result.

About trusts

Oregon residents who are developing their estate plans should know that the inclusion of a trust could be beneficial to their plans. A trust is a legal agreement between a settlor and a trustee; the agreement is for the trustee to receive, protect and manage the assets that the settlor delivers. The trustee also agrees to administer the assets in adherence to the trust's provisions and to distribute the principal and income of the trust as directed by the trust's instructions and only in benefit of the parties indicated in the trust.

The trustee serves as a fiduciary and is required to use reasonable care when managing the trust and choosing investments for the trust. The trustee is also obligated to not pursue any conflicts of interest while buying, selling or holding trust assets and to fulfill the responsibilities related to the settlor and the beneficiaries of the trust.

Divorce concerns for folks over 50

Several studies have found that divorce rates for people over age 50 have doubled over the last two decades. The trend has become so prevalent across the nation it has its own name – “gray divorce.”

In some ways, gray divorce is more straightforward than divorce for younger couples. Child custody and support, often a contentious issue, comes into play far less often for couples nearing retirement. However, there are important financial concerns to bear in mind, especially when it comes to retirement accounts.

The role of a durable financial power of attorney

Some people in Oregon may want to use a durable financial power of attorney as part of their estate plan. This document appoints someone to manage a person's finances if that person becomes incapacitated.

It differs from a medical power of attorney, which appoints someone to handle medical decisions in the event of incapacity. It also differs from a regular power of attorney, which could become invalid from the moment a person becomes incapacitated. Without a durable power of attorney, a family may have to go through a stressful and expensive legal process to have someone declared incapacitated. There is also a "springing" power of attorney that takes effect when a person becomes incapacitated. However, this may require a doctor's certification that the person is incapacitated, so it could also come with delays.

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