LAST WILL AND TESTAMENT AND TESTAMENTARY TRUST OF [TESTATOR FULL LEGAL NAME]
Effective Date: [DATE]
County of Domicile: [COUNTY], State of Oregon
TABLE OF CONTENTS
- Document Header & Recitals
- Definitions
- Revocation of Prior Instruments
- Family Identification
- Appointment of Fiduciaries
5.1 Personal Representative
5.2 Trustee
5.3 Guardian & Conservator - Payment of Debts, Expenses, and Taxes
- Specific Bequests & Devises
- Residuary Clause & Creation of the [NAME OF TRUST] Testamentary Trust
- Testamentary Trust Provisions
9.1 Trust Funding
9.2 Beneficiaries & Beneficial Interests
9.3 Distributions During Trust Term
9.4 Termination & Final Distribution
9.5 Trustee Powers & Administrative Provisions
9.6 Fiduciary Standards, Indemnification & Liability Cap - No Bond Requirement
- Spendthrift & Creditor Protection
- Governing Law, Forum, and Dispute Resolution
- General Provisions
- Execution Block
- Self-Proving Affidavit (Oregon)
[// GUIDANCE: Text in brackets is intended for attorney customization. Remove bracketed guidance comments before final execution.]
1. DOCUMENT HEADER & RECITALS
A. Identification of Testator. I, [TESTATOR FULL LEGAL NAME], presently residing at [ADDRESS], being of sound mind and over the age of eighteen (18) years, hereby declare this instrument to be my Last Will and Testament (the “Will”) and establish the testamentary trust set forth herein (the “Trust”).
B. Revocation of Prior Instruments. I revoke all prior wills and codicils.
C. Intent. It is my intent that this Will be interpreted and enforced according to the laws of the State of Oregon and that the Trust created herein be administered as a testamentary trust pursuant to Oregon’s probate and trust statutes.
2. DEFINITIONS
For purposes of this Will and the Trust, capitalized terms have the meanings set forth below. Terms defined appear in bold when first used.
“Accounting Period” – The twelve-month period ending each [December 31] or such other period selected by the Trustee consistent with Oregon law.
“Beneficiary/Beneficiaries” – The persons or entities identified in Section 9.2 entitled to distributions from the Trust.
“Child/Children” – My lineal descendants of the first degree, whether born before or after the execution of this Will, including those legally adopted by me.
“Fiduciary” – Each Personal Representative, Trustee, Guardian, and Conservator appointed herein.
“Personal Representative” – The person(s) nominated in Section 5.1 to administer my probate estate.
“Trust” – The testamentary trust established under Article 8 and governed by the provisions of Article 9.
“Trustee” – The individual or corporate fiduciary nominated in Section 5.2 and any successor or co-trustee duly acting.
[// GUIDANCE: Add any specialized terms (e.g., “Special Needs Beneficiary,” “Digital Assets”) relevant to the client’s circumstances.]
3. REVOCATION OF PRIOR INSTRUMENTS
I hereby revoke every prior will, codicil, or testamentary disposition made by me.
4. FAMILY IDENTIFICATION
A. Spouse: [NAME OR “None”].
B. Children: [List full legal names and dates of birth].
C. Additional Heirs: [NAME(s)] (if applicable).
[// GUIDANCE: Accurate family identification helps avoid ambiguity in determining heirs and elective share rights under Oregon law.]
5. APPOINTMENT OF FIDUCIARIES
5.1 Personal Representative
I nominate [PRIMARY PR NAME], of [ADDRESS], as Personal Representative. If [he/she/they] is unwilling or unable to serve, I nominate [ALTERNATE PR NAME] as successor.
Powers and duties shall be those granted under Oregon law and this Will, including without limitation the powers under ORS chapters governing estates and trusts.
5.2 Trustee
I nominate [PRIMARY TRUSTEE NAME] as Trustee of the Trust. If [he/she/they] fails to qualify or ceases to act, [SUCCESSOR TRUSTEE NAME] shall serve. A Trustee may resign by written notice delivered to the successor Trustee and Beneficiaries thirty (30) days in advance.
[// GUIDANCE: Corporate trustees may require specific compensation schedules; insert as needed.]
5.3 Guardian & Conservator
If at my death any minor Child requires a guardian or conservator, I nominate [GUARDIAN NAME], with [ALTERNATE GUARDIAN NAME] as alternate.
6. PAYMENT OF DEBTS, EXPENSES, AND TAXES
A. The Personal Representative shall first pay all enforceable debts, funeral expenses, costs of administration, and expenses of my last illness.
B. All estate, inheritance, and similar transfer taxes attributable to property passing under this Will or outside of it shall be paid from the residuary estate without apportionment, unless governing law mandates otherwise.
[// GUIDANCE: Consider adding a portability election clause if relevant for federal estate tax purposes.]
7. SPECIFIC BEQUESTS & DEVISES
I give the following specific bequests, free of trust and expense:
-
Cash Bequests.
a. $[AMOUNT] to [BENEFICIARY NAME].
b. $[AMOUNT] to [CHARITY NAME & EIN] for its general purposes. -
Tangible Personal Property. I direct that my [family heirlooms / jewelry / artwork] listed on a separate writing under ORS procedures be distributed accordingly.
Any specific gift adeems to the extent the property is not owned by me at death. Unfulfilled or disclaimed specific gifts shall pass to the Residuary Estate.
8. RESIDUARY CLAUSE & CREATION OF THE [NAME OF TRUST] TESTAMENTARY TRUST
All the rest, residue, and remainder of my probate estate (the “Residuary Estate”) I give, devise, and bequeath to the Trustee IN TRUST to constitute the [NAME OF TRUST] under Article 9.
9. TESTAMENTARY TRUST PROVISIONS
9.1 Trust Funding
The Trust shall be funded with:
a. The Residuary Estate;
b. Any property passing to the Trust by beneficiary designation or payable-on-death arrangement; and
c. Any additional assets the Personal Representative or others may convey to the Trustee.
9.2 Beneficiaries & Beneficial Interests
Primary Beneficiary(ies): [LIST NAMES].
Contingent Beneficiaries: [LIST NAMES OR “My descendants, per stirpes”].
Unless otherwise stated, the Beneficial Interests are equal and per stirpes.
9.3 Distributions During Trust Term
a. Health, Education, Maintenance & Support (“HEMS”). The Trustee may distribute to or for a Beneficiary’s benefit such amounts from net income or principal as the Trustee deems advisable for the Beneficiary’s HEMS.
b. Mandatory Distribution Floor. While any Beneficiary is under age [AGE, e.g., 25], no mandatory distributions shall be made. Thereafter, the Trustee shall distribute not less than [PERCENTAGE, e.g., 25 %] of the remaining principal to each Beneficiary at ages [AGES, e.g., 25, 30, 35].
c. Early Advancement. The Trustee may advance up to [AMOUNT or %] for extraordinary circumstances (e.g., purchase of a primary residence or start-up capital).
9.4 Termination & Final Distribution
The Trust shall terminate on the earliest of:
1. The date the youngest Beneficiary attains age [AGE, e.g., 40]; or
2. The date the Trustee determines that the Trust corpus has declined below $[THRESHOLD] rendering continued administration uneconomical; or
3. Twenty-one (21) years after the death of the survivor of my descendants living at my death, if necessary to comply with any rule against perpetuities.
Upon termination, the remaining principal and undistributed income shall be distributed outright to the then-living Beneficiaries per stirpes.
9.5 Trustee Powers & Administrative Provisions
The Trustee shall have, without court approval, all powers granted under Oregon’s Uniform Trust Code and Oregon Probate Code, including but not limited to the power to:
- Invest and reinvest in any kind of property;
- Retain non-income-producing assets;
- Sell, option, lease (for periods beyond the Trust term if appropriate), exchange, or otherwise dispose of assets;
- Borrow funds and encumber Trust property;
- Employ professionals (e.g., attorneys, CPAs, investment advisors) and compensate them from Trust assets;
- Distribute in cash or in kind, pro rata or non-pro rata, and allocate income, gains, and depreciation between income and principal as the Trustee deems equitable;
- Merge or convert the Trust into any other legally permissible trust structure to facilitate efficient administration.
[// GUIDANCE: Consider inserting environmental indemnity language if Trust may hold real property.]
9.6 Fiduciary Standards, Indemnification & Liability Cap
a. Standard of Care. Each Trustee shall act in good faith, in the best interests of the Beneficiaries, and with the care an ordinarily prudent person would exercise in managing similar property.
b. Indemnity. The Trust shall indemnify each Trustee against all claims, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising from fiduciary acts or omissions, except those resulting from the Trustee’s willful misconduct or gross negligence.
c. Liability Cap. A Trustee’s personal liability to the Trust and Beneficiaries shall not exceed the value of the Trust assets under the Trustee’s control at the time of the act or omission giving rise to liability.
d. Exculpation. No Trustee shall be liable for any act or omission in reliance on an opinion of counsel or for following the written direction of a Trust Protector or a majority of adult Beneficiaries.
10. NO BOND REQUIREMENT
No Fiduciary appointed herein shall be required to furnish any bond or security for the faithful performance of duties, unless a court of competent jurisdiction specifically orders otherwise.
11. SPENDTHRIFT & CREDITOR PROTECTION
The interests of Beneficiaries are expressly made non-assignable and free from the claims of creditors to the maximum extent permitted by Oregon law. No Beneficiary may anticipate, pledge, encumber, or transfer any interest in the Trust.
12. GOVERNING LAW, FORUM, AND DISPUTE RESOLUTION
A. Governing Law. This Will and the Trust shall be construed in accordance with the laws of the State of Oregon (the “Governing Law”).
B. Exclusive Forum. Any action regarding the interpretation or administration of this Will or Trust shall be filed exclusively in the probate department of the Circuit Court of the State of Oregon for [COUNTY] (the “Forum Court”).
C. Arbitration. Arbitration is not mandated for any dispute under this Will or Trust.
D. Jury Waiver. Probate matters in Oregon are tried without a jury unless otherwise ordered; accordingly, no jury trial is contemplated.
E. Injunctive Relief. The Forum Court shall retain authority to issue temporary, preliminary, and permanent injunctive relief to enforce Trust provisions.
13. GENERAL PROVISIONS
13.1 Minor or Incapacitated Beneficiaries. Distributions due to any Beneficiary who is a minor or is adjudicated incapacitated may be made to a 529 plan, UTMA account, court-appointed conservator, or applied directly for the Beneficiary’s benefit, in the Trustee’s discretion.
13.2 Simultaneous Death. If any Beneficiary and I die under circumstances rendering the order of death uncertain, the Beneficiary shall be deemed to have predeceased me.
13.3 Digital Assets. My Personal Representative and Trustee shall have full authority to access, manage, and dispose of my Digital Assets, subject to compliance with applicable federal and state privacy laws.
13.4 Severability. Should any provision herein be held unenforceable, the remaining provisions shall remain in full force and effect.
13.5 Headings. Section headings are for convenience only and shall not affect interpretation.
13.6 No Contest Clause (Optional). If any person contests this Will or the Trust (directly or indirectly), any gift to such person is revoked and shall pass to the Residuary Beneficiaries as though the contestant predeceased me.
[// GUIDANCE: Oregon recognizes in terrorem clauses but enforces them subject to good-faith exception. Evaluate accordingly.]
14. EXECUTION BLOCK
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of _, 20.
[TESTATOR FULL LEGAL NAME], Testator
ATTESTATION OF WITNESSES
We, the undersigned witnesses, declare under penalty of perjury that on the date indicated below, the Testator executed this Will, declared it to be Testator’s Will, and signed it in our presence. We, in Testator’s presence and at Testator’s request and in the presence of each other, now sign our names as witnesses.
| Witness Signature | Printed Name | Address | Date |
|---|---|---|---|
| ________ | ________ | ________ | ____ |
| ________ | ________ | ________ | ____ |
15. SELF-PROVING AFFIDAVIT (OREGON)
STATE OF OREGON )
: ss. )
COUNTY OF __)
We, [TESTATOR NAME], and the undersigned witnesses, being first duly sworn, declare that the Testator executed the foregoing Will as Testator’s free and voluntary act for the purposes therein expressed; that each of us, in the presence of the others, signed the Will as witness; that all signatures were made on the date of the Will; and that, to the best of our knowledge, the Testator was at least eighteen (18) years of age, of sound mind, and under no undue influence.
____ Testator
____ Witness
______ Witness
Subscribed and sworn before me on this _ day of _, 20___.
Notary Public for Oregon
My Commission Expires: ____
[// GUIDANCE: Oregon permits (but does not require) self-proving affidavits. Using this form expedites probate by eliminating the need for witness testimony.]