A last will and testament is a document every adult should have, even if you don’t have much. Creating a will allows you to protect your loved ones and obtain peace of mind. Our guide to frequently asked questions about Oregon wills provides you with everything you need to know to create a will.
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What If I Die Without a Will in Oregon?
When a person dies and has a valid will in place, their will has instructions on how to distribute assets and real estate among their family members and loved ones. If a decedent does not have a will, this is called intestacy. In that situation, Oregon law leaves the estate to the surviving spouse and children, if any. If there is no spouse or child, next of kin, such as parents, siblings, or grandparents, inherit. If no next of kin exists, then according to state law, the estate goes to the state of Oregon.
What Does a Will Do?
A will gives you the opportunity to make critical decisions. In your will, you can do the following:
- Name a personal representative or executor who locates your will and your assets, files the will with the probate court, and follows the instructions in your will
- Identify and give specific personal property and real estate to those you choose (your beneficiaries)
- Name beneficiaries to inherit the rest of your property and assets
- Make charitable bequests to charities of your choice
- Name guardians for minor children, if necessary
- Name caregivers for pets and set aside funds for their care
Making your wishes known and identifying your property and beneficiaries speeds up the probate process, saving your family members time and money in court.
What Doesn’t a Will Do?
Your will disposes of many of your assets. However, some assets do not pass via a will. Called non-probate assets, these pass according to the terms of their own documents and include:
- Funds in payable on death or transfer on death bank accounts
- Life insurance and annuity payments (to beneficiaries other than to the estate itself)
- Retirement accounts, pensions, 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Property in trusts, including living trusts and irrevocable trusts
If the account or asset does not have a beneficiary or the beneficiary dies before you, the proceeds go into your probate estate. That is why you should name backup beneficiaries on non-probate assets.
Who Can Make a Will in Oregon?
To make a valid will in Oregon, the testator (person making the will) must meet certain requirements:
- Age: The testator is age 18 or older, an emancipated minor, or is legally married.
- Sound Mind: The testator has the mental capacity to understand the will and the effect of making a will. They must understand what they own and who their heirs are.
A testator must have a sound mind at the time they make and sign their will. Oregon residents with concerns about if they can make a will should consult an estate planning attorney for legal advice and assistance.
Does Oregon Have a Statutory Will?
Oregon does not provide for a statutory will or specific language you have to use in your will for it to be legal. If you know your wishes, you can create a will on your own or work with an estate planning attorney. Many choose to make their will with online resources such as FindLaw Legal Forms and Services that help draft a will conforming to Oregon law.
What Types of Wills Does Oregon Accept?
A standard will is generally typewritten or printed and signed by the testator. There are other types of wills to understand and know if they are acceptable in Oregon.
- Handwritten Will: A handwritten will, called a holographic will, is a will that is in the testator’s handwriting and signed by the testator without witnesses. Oregon does not recognize this type of will.
- Oral Will: Sometimes referred to as a nuncupative will, this is a will spoken by the testator. Oral wills are not valid in Oregon.
- Electronic Will: An electronic will is a will signed, witnessed, or notarized by electronic means. A digital will exists only on a computer. Currently, electronic or digital wills are not valid under Oregon law.
Since these alternative types of will are not valid in Oregon, it is best to put your will into writing and sign in front of witnesses.
Can I Make My Own Will in Oregon?
Yes. You can create your own will in the state of Oregon. You do not have to use an attorney to draft your will. If you know who you want to handle your estate, what assets you have, and who you wish to receive those assets, you are ready to make a will. The advantage of using an online will drafting service, such as FindLaw Legal Forms and Services, is that it allows you to customize and update your will whenever you want.
How Do I Make My Will Valid in Oregon?
To make sure your will is valid in Oregon it’s essential to follow the state requirements:
- Signature: The testator can sign their own name or direct someone else to sign the will in their presence.
- Witnesses: Two witnesses must witness the testator signing the will, witness someone signing it at the testator’s direction, or have the testator acknowledge to them that the signature already on the will is that of the testator. An interested witness is one who inherits from the will (or their spouse inherits from the will). The will is not invalid if a witness is interested. But it may be wise to use disinterested witnesses to avoid will challenges based on undue influence.
- Notary: There is no requirement that a notary public notarize the will.
- Self-Proving Affidavit: Witnesses may sign an affidavit identifying the signature of the testator and witnesses. This affidavit is attached to the will and submitted to the court in place of having the witness testify at the time the will is probated.
Can I Disinherit My Spouse in Oregon?
You do not have to include your spouse in your will, but if you leave them out, they can take an elective share. An elective share is part of an estate the surviving spouse may receive if left out of a will. In Oregon, it is a percentage of the net estate, which increases with the number of years the marriage existed from five percent to 35 percent. The spouse has nine months after the testator’s death to request the elective share. If the spouses were separated when the testator died, the probate court can deny the right to an elective share or reduce the amount.
Can I Disinherit My Children in Oregon?
You can disinherit your child in Oregon. Oregon law says you can state in your will that you are leaving out a child or children.
A child born or adopted after a testator signs their will is called a pretermitted child. If there are other children and they get nothing in the will, the pretermitted child gets nothing. If there are living children when the will is signed and they get something in the will, the amount left to all the named children is equally divided among all the children, including the pretermitted child. If the testator has no children at the time they sign their will, the pretermitted child is entitled to the same amount they would get if the testator died intestate.
What Estate Planning Documents Should I Have in Oregon?
Estate planning is about more than just making a will. There are other documents you should create to have a robust plan for your future and that of your family.
- Power of Attorney. A power of attorney is a document that authorizes a person of your choice to handle your financial affairs when you cannot. With this in place, someone you trust can pay your bills and manage your finances if you are incapacitated.
- Health Care Directive. A health care directive or living will has two components. The first is naming a healthcare representative. Your representative can access your health care records and make medical decisions for you if you are unable to do so. The second is an advance directive which allows you to specify your wishes about life-prolonging treatment such as feeding tubes and intubation.
Fortunately, making a valid will and creating other Oregon estate planning documents is easy with online estate planning templates. Get started today.