Final Thoughts

After 25 years as an attorney, I have helped thousands of clients with their estate planning. During this time, I have learned that legal documents, no matter how well drafted, may not cover all of the details you need others to know after your final journey.

In order to avoid having your loved ones digging up your backyard looking for lost treasure, or mistakenly seating sobbing sister Sally next to angry cousin Ned at your funeral, I have put together a workbook to help you organize your final thoughts.

With a little time (and possibly a lot of chocolate) you will be able to identify issues unique to your life, smooth the financial transition, and pass on special knowledge to your loved ones – they will thank you for your final gift. To get started:
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Charity as a Remainder Beneficiary for an IRA SNT

Many families planning for the care of their loved one with special needs set up special needs trusts (SNT). These trusts allow assets to be left to a disabled or chronically ill person without disqualifying them for certain benefits, such as Medicaid. SNTs also allow for management and oversight of an inheritance by a trustee designated by the family to assist the beneficiary.

Under the 2019 SECURE Act, beneficiaries inheriting IRAs were required to liquidate the investment according to new RMD rules. The Act set the distribution timeframe for most IRAs inherited to liquidate within 10 years from the owner’s date of death. However, disabled or chronically ill individuals are excluded from this 10-year rule. This made creating a special SNT that held inherited IRAs even more useful as these beneficiaries could have the retirement asset paid out (or stretched) over their lifetime. Potentially, this reduces taxes and allows the beneficiary to supplement their finances for a longer period.

The downside under 2019 SECURE Act was that charities were not included in any beneficiary category that could qualify for this stretch period. The result was that special needs trusts could not preserve the stretch distribution timeframe for disabled loved ones if the trust named a charity as a remainder beneficiary to receive the funds after their loved one was gone.

In late 2022, significant changes affecting the SECURE Act were approved. Among its provisions was the Special Needs Trust Improvement Act which allows charitable organizations to be named as a remainder beneficiary for an SNT holding an inherited IRA. Unless the law changes, it will apply to all calendar years from 2023 onward.

If you have a retirement account you intend to leave to someone with special needs, you may be able to create an SNT to protect your disabled loved one’s continued access to essential government benefits and allow the beneficiary to receive your hard-saved funds over time. You can also now have the comfort of knowing that although your loved one may be gone too soon, your legacy can continue by supporting charities that you designate.

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Guardianships in Oregon

There has been a lot to read lately about Brittney Spears. Many people are now concerned that they could be subjected to an unwanted guardianship or conservatorship. Well, for better or worse, most of us do not have the issues of fame, fortune or outrageous talent to deal with. (Well maybe not the last one 😉 But we are left to ask, what protects us from unscrupulous elements?

Oregon law has many built-in safeguards and neither guardianships nor conservatorships are easy to obtain. Note, unlike California, which has conservatorship of the person, in Oregon we have:

** Guardianships – the care and custody of a person; and

** Conservatorships- the care and custody of a person’s assets.

To obtain guardianship, in Oregon, a person, with the help of their attorney, must file a petition with the court demonstrating three main point:

  1. That the proposed person to be protected is incapacitated under Oregon Revised Statute 125.005. Incapacity can mean that a person is impaired to the extent they lack the capacity to care for their own basic needs and are likely to sustain serious physical illness or injury. Basic needs include: providing their own health care, food, shelter, clothing, or personal hygiene.
  2. The guardianship must be necessary to the well being of the proposed protected person, ORS 125.305. A person who is managing without a guardianship may not need one even if they are technically incapacitated. A guardianship must be necessary to provide care or supervision that promotes and protects the person’s well-being.
  3. The petitioner must be suitable 125.305. Even if a person is proven incapacitated and is in need of a guardian, the petitioner must established that they are the right person for the job.

After the petition is filed with the court, a copy of it must be served on the proposed protected person. The packet will include a blue piece of paper for objections and detail how the proposed protected person can object to the proceeding. This can be as simple as a phone call.

The proposed protected person is then contacted by a “court visitor” someone who reports their observation directly to the judge. The court visitor will also ask the proposed protected person if they object to the guardianship and if so, will note that on the report. The court visitor will also contact others involved and interview the petitioner.

If any objections are noted, the court will hold a hearing and the proposed protected person will promptly get their day in court. If there are no objections at that time, the proposed protected person, or any concerned individual may still notify the court at any time of concerns with the guardianship and request a hearing.

So, although the process is not without flaws, it is also not without protections. To learn more about guardianships in a particular case, it is a good idea, as Brittney too has learned, to hire or to speak with your own attorney.

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Bankruptcy is scary to think about. Many of my client from the wealthy and the not-so wealthy come into my office desperate and shell-shocked. “How did it come to this,” they may ask. But the real question to ask is, “Where will I go from here?”

Bankruptcy is an ending but it is also a new beginning. It is an ending of the debts, the calls and the panicky feelings in the middle of the night. It is the beginning of your fresh start. The US Constitution grants the right to a do-over- a chance to put the debts to rest and start over. So instead of the worry – think about how you will do it better next time.

For inspiration from others who have been in your shoes:

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Why Create a Trust?

There are many types of trusts but generally people are thinking of a Revocable Living Trusts for estate planning. There is no one size fits all estate plan but Revocable Living Trusts can:

  1. Avoid probate and simplify the transfers of your assets upon your death.
  2. Eliminate or reduce potential estate taxes if your estate is over one million dollars.
  3. Planning for your possible incapacity. The trust defines how the trustor wants to be taken care of if they become incapacitated. The trust then allows the successor trustee to access the trust funds for that purpose. During your life-time if you are the trustee and trustor you generally continue managing you affairs in the same way you have in the past. However, if you become incapacitated your wishes are clear and become legally binding on your next successor trustee.
  4. Hold property for the benefit of others. Trusts ensure that a responsible individual manages and spends funds for a the benefit of an individual who cannot or should not receive funds for example: minor children, children with poor spending habits, or elderly/disabled relatives who must retain healthcare or other government benefits and cannot receive additional funds.
  5. Ensure privacy. Generally the terms of your living trust are confidential, with only your named beneficiaries and trustee having access to that information. With probate, your assets and affairs become public record.

It is important to understand your estate planning options and alternatives. This is only a short overview of general information about Revocable Living Trusts. To decide whether a trust is appropriate for you, discuss your goals, family situation, and assets with an attorney. Our office schedules free consultations when the attorney will meet with you, answer your questions, and recommend an appropriate estate planning options.

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When Should You Change Your Estate Plan?

You completed and executed your estate plan. Everyone you’ve selected to serve — your agent, guardian for minors, trustees, health care proxy, and your personal representative, —has signed the paperwork. All set?

For now, yes. But it’s a good idea to review these selections annually, because change is inevitable as time goes on. Your life will change, as will the lives of the people you have designated to serve in your plan. Mark New Year’s as the time to consider if your plans will still be effective.

When should I consider replacing people? Any time there has been a big life change that could affect his/her ability to serve in the role.

Examples include unexpected events such as a health care crisis, an unexpected death, or a job loss, as well as other transitions like divorce, relocation, or remarriage. Imagine your choice for guardian has just given birth to twins. How well can she care for your child in these new circumstances?

Another consideration is time. The relatives from your parents’ generation who stepped forward when you first made your plan as a young family may no longer be up to the task. You may no longer have as strong a relationship with your college roommate as with your new sister-in-law. You always want to be confident that your guardian or trustee is competent an willing to take on the additional work.

What events in your life might make you reconsider? Apply the same standard to your own circumstances. Do you want the same team if you’ve had to relocate to another city? What if you become widowed or divorced? Also, bear in mind that if you are the parent of a special needs child once he or she hits the age of majority, you will no longer be able to make a lot of the decisions that you have probably been making for him during his childhood. This is a good time to check in with your special needs planner to go over what you’ll need to do for this transition, including guardianship and conservatorship.

You are in the best position to know what matters most. You chose the agents in your plan to meet this standard. Stay in touch with them regularly and evaluate their ability and willingness to serve. Then don’t be afraid to take the next step and update your plan with your attorney. If they are truly in tune with your situation, they will appreciate your your reasons.

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Do I Need a Power of Attorney?

A power of attorney grants another person the authority to step into your shoes and make legal and financial decisions on your behalf. This does not take away your authority to act, rather your power of attorney adds another person to your chain of command. When you give someone a power of attorney, you are giving them the right to exercise a power that you already have such as the power to spend money, sell property, cash checks, or withdraw money from the bank.

People often consider their spouse as a de facto agent- however, without written legal authority your spouse cannot sell your house, cash in your IRA in an emergency or sign legal papers on your behalf. Similarly, if you became incapacitated, your children would sign any required legal paperwork with their promise to be financially responsible- where as with a power of attorney, they could simply sign on your behalf.

A power of attorney can be the most useful document you ever execute. It can save your family time and money in a crisis and avoid the institution of a court supervised conservatorship- which in addition to being costly also make your illness and financial affairs public record.

However, a strong word of caution: A Power of Attorney is one of the most abused documents-with it you place your fiances in the hands of another. That other person should be utterly trustworthy, above reproach and have spending habits that are in line with your own. It is important to discuss whether this document is helpful to you with an attorney or trusted advisory. We are happy to help you evaluate this decision.

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Interesting Times

I myself have never wanted to live in interesting times. I liked my small law practice, my family time and my pets. Fortunately, I also like gardening as I will be doing quite a bit of that in the days to come. Not too much gardening though. There is still quite a bit of work through my office. My office has been set up for some time for telecommuting, though I had hoped to launch that feature more extensively while spending a month exploring Spain or perhaps an unfamiliar beach, but here we are, interesting times.

To all our clients out there, please be assured your cases are being managed. To new clients, we may not have the pleasure of your company but we are prepared to assist you as you too navigate these new challenges. For those who need expedited services, we plan to devote Mondays to powers of attorney and simple wills while you wait (in the comfort of your car). Please call (541)738-2445 or email us for more details at

We are here – though we may need to ask for your patience as our phone system didn’t quite make a smooth transition. Please leave us a message- we hope to chat with you soon about how we can help.

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Tales from the Apocalypse

The dawning of the apocalypse has brought to fruition the closely held dreams of my three children- that school is now canceled-possibly indefinitely. Well, I am glad they have some joy in these troubling times. For the rest of us, as we face an uncertain future and stock up on the necessities of life (coffee- wait I mean toilet paper), the questions of tomorrow bring a certain unease. Here at my office (the one with the beautiful flowering cherry tree) – we are fielding calls from a number of deeply concerned clients. Be assured that we are here for you. We are now offering phone appointments and will be working on an expedited estate planning service for people in need. Please be patient when you call us as we are also working with the needs of our staff to keep everyone employed and safe. Be well and take care.

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Choosing a Guardian for Your Child

Preparing a comprehensive estate plan to protect a child can be an difficult.  On the one hand, parents should be relieved that they are taking steps to guarantee that their child will be cared for after they are gone.  On the other hand, confronting one’s own mortality and having to decide who will manage the affairs of a child can be stressful.  

Out of all of the decisions that parents have to confront, the choice of a guardian stands out as one of the most challenging.  But you don’t have to dread this decision, especially if they follow these steps:

1. Take Time to Choose, But Don’t Take Too Long

Choosing someone to become the guardian is not a decision that should be made lightly, but this doesn’t mean that the decision should keep you up at night, either.  Start by putting together a list of every potential candidates.  Then go through the list and eliminate anyone who, for whatever reason, doesn’t strike you as an good choice, keep in mind that no one is going to be a perfect because they will never be you.  Take some time to think about each likely candidate. 

The key at this stage of the game is to not get overwhelmed with worry about your choices, especially since you haven’t even asked anyone if they are willing to serve.  One of the biggest obstacles to completing an estate plan is getting so caught up in the decision making process that you stop moving forward.  Don’t let this be you — make your list, start to narrow it down, and then proceed to the next step.  Don’t stop planning.

2. Talk to Your Potential Guardians and Encourage Honesty

After you’ve narrowed your list of potential guardians down to a few names, take each one out for coffee (separately) and ask them if they are willing to serve.  Don’t put people on the spot with statements like, “If you don’t do it, I don’t know what we’ll do.” You don’t want them to agree to make you feel better but then back out later. Encourage each person to be honest with you about his or her questions and concerns.  Don’t look for immediate answers; give your potential guardians time to think about things and get back to you. This is an important commitment and should be carefully considered by both of you. 

This conversation may immediately narrow down your list, as some people may tell you that they absolutely cannot serve.  At the same time, talking face to face with your choices may help you to weed out a few more people.  

3. Make a Decision and Put Your Plan into Action

After speaking with your prospective guardians you may be able to make a decision about who will serve.  But if you still need to think about your choice, keep a few things in mind.  First, you can always change your nomination at a later point, and, in fact, many people do.  For instance, it may make sense for young parents to name their parents or older relatives as guardians but later change their estate plans when the original nominee are older and may have difficulty fulfilling this role.  Likewise, as friends and family move, or have changers in their own circumstances parents may have to update their estate plans.  Nothing is set in stone.  

That said, here are some additional questions to consider if you are having a hard time choosing a guardian:

  • Do I want my child to stay in his community and is the guardian willing to move here if s/he doesn’t already live here?
  • How does the guardian interact with my child specifically?
  • Does the guardian have too much going on in his/her own life to care for a child, especially one with special needs?
  • Does the guardian have children, how old are they and can the guardian take on another child?
  • How old is the guardian?  Do I have a backup in case s/he can’t serve?
  • Does the guardian share my values about things like religion, education and finances?
  • if my child has special needs, does the guardian have experience or patience to manage these issues?

Although the decision making process may not be easy, it is a necessary one.  Remember, the worst thing that you can do is to leave guardianship to chance, which is what will happen if you don’t have an estate plan that reflects your wishes.  Once you’ve followed these simple steps and made your decision, put it into effect by meeting with your attorney and drafting the proper documents immediately.  Don’t put it off.

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