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Is my Will good enough?

Is my Will good enough?” That’s a question I have heard many times while reviewing a purported estate plan. Invariably I reply with a question of my own to focus the conversation; “Good enough for what?”  

First, let’s start with the good news. Thanks to something called the “Harmless Error” rule, there is actually quite a bit of flexibility over whether or not a will isgood enough” to be used as a will for the purposes of probate. Probate is the judicial process by which we ascertain who owns an asset when the true owner has passed away. If a judge can be shown clear evidence that a given document was intended to be the decedent’s Will, the document may be accepted by the court as a true Will.  However, whether the document does what you want it to do is another matter altogether. If there are mistakes, misunderstandings, or drafting errors, your Will could fail to actually represent your wishes.

Now, the bad news. Even if your Will isGood Enough,” if you are using a Will to pass property to your heirs, then you are going to have to go through Probate Court to get it done. A judge needs to look at your Will to make sure it is a true Will, that there isn’t a more recent Will, that it was you who signed it, that you knew what you were doing and were not under duress, and that you understood what you owned and who you were giving it to. Then, all of your creditors and interested parties need to be sent notice and be given a chance to make a claim or objection. This process takes months at best. In fact, across Oregon Courts, nearly half of all currently filed probate cases have been going on for over two years. A Probate can cost thousands of dollars even when it is a straight-forward case, and tens of thousands if there is a fight.

So what is the solution here? Don’t use a Will if you can avoid it! Instead, speak with an Estate Planning Attorney to find out how you can use joint ownership, beneficiary designation, or a Revocable Living Trust to pass your property to your heirs privately, outside of the court system, with as little governmental intervention as possible. Make an appointment today with an Estate Planning Attorney to discuss the merits of each approach for your unique situation.

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