Will v. Trust
You made promises to yourself and your loved ones during your life. Your estate plan is the memorialization of those promises.
“Do I need a trust or a will?”
Answer: Unless you choose one or the other, the State of Oregon will dispose of your assets by a statutory scheme called “Intestate Succession.” The way your assets will be distributed depends on your marital status, your children and the presence of extended family. (Oregon Revised Statutes 112.025 to ORS 112.055).
A will is a document that directs how your assets will be distributed after you die. If you choose to dispose of your assets in a will, then, after you die, the will must go through a court-supervised process, called Probate (ORS 111.085). If the will is validly executed, then your directions are carried out. If it is not validly executed or if a person challenges your directions, then the will is contested in a court hearing.
A trust is a set of instructions about how to dispose of your property that can become effective either during your life or after you die. Assets in trust do not go through probate. The instructions of the trust are carried out upon the happening of an event that you specify. It could be a gift that is given to the recipient when the recipient reaches a certain age. It could be upon your death.
Two factors one should consider in choosing between a will and a trust are cost and privacy. A will is less expensive and can achieve most estate planning goals but the probate process is public. Your directions and gifts will be viewable by anyone. If there are mistakes in the will or a person challenges the will then the costs of probate can easily exceed the costs of creating a trust. Assets held in trust do not go through probate so there is no public record made of your gifts. Trusts cost more to create and you must fund the trust when it is created. Other factors an individual must consider in deciding whether a trust is better include: tax avoidance, size of the estate, value of the estate, and family dynamics.
Marital Asset Planning: Marriage is both a commitment of love and of finances. While it is challenging to think and discuss how each individual’s assets will be contributed in the marriage, I can facilitate that discussion so that both of you can reach your goals.