Blended Family Will or Trust: What Questions to Ask Lawyer?

by Cynthia

Question:

Recently I was remarried and have a few questions. My situation is going exceptionally well and I have been able to save a bit of money in the past few years. While it’s not a lot, it’s a good start for savings and hopefully retirement (eventually).

I have been on my own in the past 10 years so it’s all in my name. What is Oregon Law as it pertains to remarriage and assets previously acquired? We’re living in his home, selling mine (which unfortunately in this market, will take quite awhile!) and neither of our names is on the other’s mortgage at this time. He had a will drawn up that states that at his death, all his assets (and, I assume, liabilities) are to go to me and that my death, they are to be distributed to our kids (he outlined specific percentages).

I need to have a will drawn up as well, but I’m hesitant because I’m not sure how to protect a portion for my daughter who is still living with me (she’s 20 and just finishing her 2nd year at Weste
rn Oregon University) and isn’t self sufficient yet. His daughter and my son are on their own, married with children.

I don't know what questions to ask an attorney to be able to intelligently and logically draft a will. What do most people ask?

Thanks,
Cynthia


Answer:

Hi Cynthia, good questions. Your situation is very common.

Unfortunately, I really can't tell you what the Oregon law is regarding ownership of assets brought into the marriage. The laws vary from state to state and depend on numerous factors. Normally, the longer the marriage continues, the more likely assets brought into the marriage are to be considered "marital assets."

As to your estate planning issue, Congress actually passed a law providing a special kind of trust that will allow you to leave your assets so that they can be used to support your spouse if you predecease him; but will also allow you to ensure that some of those assets pass to your daughter. The trust is called a "Qualified Terminal Interest Trust" and you can read more about it at QTIP Trust. I suspect your husband had this type of trust included in his will.

Finally, I think the questions you have asked here are exactly the kind of questions to ask your attorney. He or he she should know what follow-up questions to ask you. In fact, if they ask none, I'd run :)

Which gets to the point that you should be careful to select an estate planning attorney with experience and in your case, particularly with experience writing QTIP trust. It's also important that they have also settled estates that went through QTIP trusts they had written. Only if they've done that can they really know that their trusts work.

Thanks for the questions and good luck!