Q: Does an Oregon pour-over will have to go through probate if it uses the power of testamentary to create a new trust?
Our mother passed away in Oregon in 2019 and used her power of testamentary in her will to create a new trust for her grandkids from money in her other trusts. It never went through probate as far as I know. Looking online now, it seems to me like maybe it was supposed to go through probate because she used her power of testamentary to create a new trust, but I'm not sure. Thanks.
A: Yes, usually you must probate a Will in order to implement a testamentary trust, however, you bring up several facts that could change this answer (mom's other trusts and the fact that mom died four years ago). I recommend you consult with an experienced probate attorney who can help you sort out these facts and advise as to whether or not a probate is needed in your situation.
A: I agree with Theressa as well. Testamentary powers are generally given to an executor or personal representative of an estate, but only once a probate has begun. You should speak with an attorney to get it sorted out so that the assets can pass to the intended beneficiaries without legal issue.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
