by Bruce Humberstone
Recently the Rocky Butte Ward held a workshop designed to help attendees gain a basic understanding of will making and to help them become aware of the care that must be exercised in order to have some assurance that their property will be distributed, after their death, according to their wishes. This article is a brief summary of the information presented in the workshop.
Having a will is one of the most important things you can do for yourself and your family. A will can smooth the way in the legal matters facing your heirs, especially your spouse and children, as they deal with the transfer of ownership of your property after you die. With a valid will you can direct exactly how you would like things handled after your death. Making a will is a responsibility that comes with a commitment to intelligent and provident living.
In Oregon, any person eighteen (18) years of age, or a minor lawfully married, and of sound mind may make a Will. See: Oregon Revised Statutes, § 112.225. “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
There are five essentials to a valid will in Oregon.
(1) The testator (the person making the will) must type or print the will. Oregon law does not provide for a will written by hand (a “holographic” will).
(2) The testator must sign the will in the presence of each of at least two witnesses.
(3) The witnesses must each see the testator sign the will, or hear the testator tell them that the signature on the will is the testator’s (acknowledges the signature).
(4) If the testator signed the will out of the presence of the witnesses, the will must be before the witnesses at the time the testator acknowledges the signature.
(5) The witnesses must then attest the will by signing their names to it. See Oregon Revised Statutes, §112.235. In some states a witness may not be a beneficiary under the will. Not so in Oregon. See Oregon Revised Statutes, §112.245. It may still be a good idea to have disinterested witnesses.
To be sure there is no question as to whether the will was signed and witnessed (executed) properly, the signature page of the will should spell out that the testator and the witnesses were in the presence of the each other when the will was executed.
The signatures of the witnesses on the will need not be notarized, but it is advisable to have the witnesses sign an affidavit proving that they are the witnesses to the will. An affidavit is a written statement confirmed by oath or affirmation for use as evidence in court. The affidavit should be attached to the will. After your death the will and the affidavit should be filed with the petition for probate. If the affidavit is not filed one of your witnesses may have to appear in court during the probate process to prove your will.
Some people choose not to make a will, or procrastinate doing so. Not having a will is not a good choice. Without your will your surviving spouse may not get your entire estate after your death. If one of your surviving issue (living descendants) is not issue of your surviving spouse, your spouse would only get half of your estate under Oregon law. If you do not have a valid will at the time of your death you will be forfeiting your right to chose who would be administrator or personal representative of your estate and who would be the guardian of your children, if such is needed. The State of Oregon would make those choices for you.
If you decide to make a will, you could try to write it yourself. If you follow the legal requirements your will can be admitted to probate. Probate is the courtsupervised process of gathering a deceased person’s assets and distributing them to creditors and inheritors. Probate in Oregon is not as costly or time-consuming compared as it is some other states.
You could use an online will making service or an inexpensive will-kit available at office supply or printing stores, however online services and will-kits may not cover all your estate planning needs. They may be satisfactory for individuals with simple lives and family circumstances or with couples with no children. They would not be satisfactory if you have children from prior relationships, if you do not want to leave things equally to your children, or if you have a special needs child.
If you make a will by yourself, it may be possible to get an attorney to review the will and tell you whether it can be properly executed as drafted. The attorney may also give you advice on other issues raised by the way the will has been written. Many mistakes with do-it-yourself wills involve the way these documents are signed and witnessed. After consultation with an attorney you will still be responsible for the proper execution of the will.
After careful consideration of your circumstances you may decide you need to actually hire an attorney to draft the will and direct its execution. With the technology available to attorneys today, an attorney should be able to meet with you, prepare a simple will and walk you and your witnesses through the proper execution of the will quickly. If your circumstances call for the creation of a trust or other special provisions, the work will likely require more attorney time.
RESOURCES FOR LEGAL HELP
You may be able to get limited free or low cost legal help. As of June 10, 2016, the following resources for legal assistance may be available to you.
Legal Aid Services of Oregon (LASO)
520 SW Sixth Avenue, Suite 700 Portland, OR 97205 General
Phone: (503) 224-4086
Counties Served: Clackamas, Multnomah, Washington
Case Types: Bankruptcy, Consumer, Domestic Violence, Elder Law, Housing, Public Benefits, Real Estate, Wills
Other Case Types: Other civil legal matters and general poverty law.
Case Restrictions: We are an LSC program, so all of those restrictions apply including income and citizenship status.
LASO Web Site, click here
Senior Law Project.
The Senior Law Project (SLP) began in 1978 and is the VLP’s largest project, with over 25 legal clinics per month. Volunteer lawyers meet with clients who are 60 or over (or who are married to someone 60 or over) at nine senior center locations in Multnomah County. They provide 30-minute consultations, on any civil legal issues, for up to six clients per clinic. All clients 60 or over are eligible for free 30-minute consultations, regardless of their income. SLP volunteers provide continuing pro bono services for only those clients who meet VLP financial eligibility requirements. The VLP sponsors a monthly Elder Law Discussion Group to provide information and support.
Legal Aid Night Clinic
LASO co-sponsors this evening clinic with Stoel Rives, LLP and Dunn Carney LLP. Clinics are held on the 2nd and 4th Thursday of the month from 5:30 – 7:30 p.m at the Standard Insurance Building (downtown Portland). Volunteer attorneys from the two participating law firms screen the cases and provide continuing legal representation to clients with meritorious cases. Two volunteer attorneys are scheduled for each clinic and each attorney meets with up to four clients per clinic. The following issues are referred: consumer law, small claims advice, criminal record expungements, landlord/tenant damage claims, estate planning [includes wills], and uncontested guardianships.
Oregon Law Center Pro Bono Program
Primary Address: 522 SW 5th Ave, Ste 812 Portland, OR 97204 General Phone: 503-295-2760 Fax: 503-295-0676
Counties Served: Clackamas, Multnomah, Washington
Case Types: Consumer, Employment, Housing, Real Estate, Torts, Wills
Other Case Types: Expungements, Insurance disputes, licenses, taxes.
Case Restrictions: Must meet 125% of fed. poverty level.
Oregon State Bar (OSB)
The OSB Lawyer Referral Service consists of a referral to a local attorney and a 30 minute consultation with the attorney for a $35 fee. The Lawyer Referral service can also provide assistance helping you determine what kind of legal assistance you might need and organizations that may be able to help.
The Modest Means Program offers reduced-rate legal assistance to modest-income Oregonians involved in family law, criminal defense, foreclosure, and landlord/tenant issues. The program application is available at the OSB website.
The Military Assistance Panel is a program geared towards matching deployed service members and their dependents with lawyers who provide up to 2 hours of free legal advice.
The Problem Solvers program provides 30 minutes of free legal information and advice to children and young adults ages 13 to 17. Hours: 8 am to 5 pm Monday-Friday
Phone: 503-684-3763 or toll-free in Oregon at 800-452-7636.
Specific Links For additional help:
Probono Net, click here
Oregon State Bar, click here
Senior law project clinics:
YWCA/ East County
600 NE 8th St, Room 100
Gresham, OR 97030
2nd & 4th Fridays 1 – 4 pm
Neighborhood House (Downtown)
1032 SW Main St.
Portland, OR 97205
2nd & 4th Thursdays 1 – 4 pm
2617 NW Savier St.
Portland, OR 97209
1st & 3rd Thursdays 9 am – noon
Hollywood Senior Center
1820 NE 40th
Portland, OR 97212
Fridays 9 am – noon
740 SE 106th
Portland, OR 97216
Thursdays 1 – 4 pm
Neighborhood House (Southwest)
7688 SW Capitol Hwy
Portland, OR 97219
2nd & 4th Tuesdays 9 am – noon
North Senior Services
9009 N. Foss
Portland, OR 97217
1st 7 3rd Tuesdays 9 am – noon
Impact NW SE Portland
4610 SE Belmont
Portland, OR 97215
Wednesdays 10 am – 1 pm
Urban League Multi-Cultural Senior Center
5325 NE MLK Blvd
Portland, OR 97211
2nd, 3rd 4th Tuesdays 1-4 pm