Requirements for Creating a Will in Oregon
December 22nd, 2020
A will is a written set of instructions that explains how you want your property distributed after your death. Creating a will allows you to decide who will manage your money and other property after you die and how it will be distributed. It also communicates your wishes about the care of your children, if they are minors or are disabled. Another important benefit of having a will is that it can prevent disputes among your relatives.
There are certain basic requirements that must be met when creating a will in Oregon to make it valid. You must be at least 18 years old and of “sound mind” to make a will. If you are married or are an emancipated minor, you can make a will before you turn 18. Your will must be in writing and must be signed by you, as well as two witnesses.
If the will is not prepared and signed using the required legal formalities, it will not be considered a valid Oregon will. Moreover, if a relative challenges the will, it is unlikely to be upheld. Our attorneys explain what you need to know about successfully creating a will in Oregon.
Do I Really Need a Will?
Regardless of the size of your estate, you need a written plan for what happens to your property after you’re gone. Having a will in place will bring peace of mind to you and to your loved ones. It can accomplish all of these goals:
- Appoint a legal representative to carry out your wishes
- Nominate a guardian for your children should you die before they reach the age of 18*
- Choose someone to manage any property you leave to your young children; and
- Make specific gifts to family, friends, or charities.
If you do not have a will, your assets will be distributed upon your death according to Oregon’s intestacy laws. This means that the courts decide who will care for your children* and your property, as well as who supervises the distribution of your assets. It goes without saying that this is to be avoided, as there is no guarantee that the state’s laws will coincide with your personal wishes.
*Oregon Law does not allow a person to give their children to someone in a will. This means that you can nominate someone to care for your children after your death if none of the children’s parents are alive, but the court has the ultimate authority to approve a petition for guardianship if one is filed.
What Does “Sound Mind” Mean?
Creating a will requires that you must be of “sound mind.” Oregon case law has clarified that “sound mind” means that you:
- Understand the nature of making a will (that by signing it, you are disposing of your property at your death)
- Know the nature and extent of your property
- Know, without prompting, who your heirs (or “natural objects of your bounty”) are
- Are aware of the scope and reach of the will’s provisions
Importantly, your will must be based on your decisions, and not someone else’s influences.
Can My Spouse Witness My Will?
Although Oregon does not prohibit an heir or beneficiary of the will from acting as a witness, having an “interested” witness (anyone with a beneficial interest in your estate) sign the will is to be avoided.
Oregon does require that the witnesses to your will must be at least eighteen (18) years old. They must actually see you sign your will or hear you acknowledge your signature on the will, and attest the will by signing their names on the will. Keep in mind that your witnesses are required to sign your will within a “reasonable time” before your death.
Does My Will Have To Be Notarized?
Although Oregon does not require a will to be notarized, the state allows you to make your will “self-proving,” which does require a notary. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it. To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will.
Can I Change My Will?
Estate planning is a lifelong process. You should revisit your will if your personal circumstances or family relationships change, and as soon as possible after major life events such as marriage, divorce, birth of a child, loss of a job, new or growing business endeavors, receiving a substantial gift or inheritance, or moving to another state (or acquisition of a secondary residence in another state).
Even if you have not recently experienced a major life event, you should consider reviewing your will approximately every three (3) years.
How An Oregon Estate Planning Attorney Can Help
If you need assistance updating or creating a will, or determining the validity of your will, we welcome you to contact Litowich Law at (503) 419-6422. Based in Salem, we serve clients throughout Oregon and are dedicated to helping you plan for your family’s future.
Categories: Estate Planning