A will lets the courts know how decedents want their assets distributed – but what happens when someone dies without a will? Unfortunately, this does occur – a situation known as dying intestate. When this happens, state intestate succession laws determine the distribution of the person’s assets. To prevent the wrong person inheriting your assets, it’s important to understand Oregon probate law without a will.
Oregon Intestate Succession Laws
Chapter 112 of the Oregon Revised Statutes outlines how estates are handled in the absence of a will. The Oregon probate statutes detail exactly who is entitled to inherit, the order of inheritance, and the way an estate should be split among multiple heirs.
Under these Oregon probate laws, the following parties may receive an inheritance:
- A surviving spouse
- Descendants (i.e., children or grandchildren)
- Other relatives
- The state
Inheritance by a Surviving Spouse and Descendants
In many cases, a decedent’s intestate property goes to a surviving spouse and/or any children or grandchildren. In some cases, the surviving spouse inherits everything.
When the decedent has a spouse but no descendants, the spouse inherits everything. As an example, let’s say that George and Anne are married. George and Anne don’t have any children together or from other relationships. If either George or Anne dies, the other will inherit the entire estate.
When the decedent has a spouse and descendants and all the descendants are also the spouse’s descendants, the surviving spouse inherits everything. For example, imagine a married couple, Mark and Sally, have two adult children together. If Mark dies without a will, Sally will inherit everything under Oregon law.
However, if some or all of the descendants are not the spouse’s descendants, the spouse is only entitled to half of the decedent’s assets. Let’s use the example of married couple Charles and Beth, where Beth has a child from a previous marriage. If Beth dies without a will, Charles will only receive half of her assets under Oregon law. The other half will go to Beth’s descendants.
Finally, if the decedent has no surviving spouse but does have descendants, these descendants inherit the assets. There are additional rules to determine how the inheritance is split among multiple descendants.
Oregon Probate Procedures for Inheritance by Other Relatives
If a decedent has no spouse, children, or grandchildren, other relatives inherit the assets, in accordance with Oregon intestacy laws.
If the decedent has surviving parents, they inherit the estate. However, parents can lose their claim to an inheritance if they have terminated or lost their parental rights, such as in the case of desertion or neglect. Anyone who would benefit from the forfeiture needs to file a petition for forfeiture with the Oregon probate court within four months.
If there are no surviving parents or if the parents have forfeited their share, the estate passes to surviving siblings or the descendants of deceased siblings.
Finally, if none of the above apply, the estate passes to any grandparents or descendants of deceased grandparents.
When the State Inherits Personal Property
Although it does not happen often, it is possible for a person’s estate to go to the state. This happens with a person dies without any relatives. The official terminology is that the estate “escheats” to the state.
Not All Property Is Subject to Intestate Succession Laws
Oregon’s intestate succession laws apply to any part of an estate that is subject to probate and is not controlled by a will. If a person dies without a will, this could include the person’s real estate, jewelry, furniture, savings, and other assets.
However, some assets are not controlled by interstate succession rules. For example, life insurance benefits and retirement funds will go to the named beneficiary. For this reason, it’s important to make sure your beneficiary designations match your wishes and to update your designations if your situation changes.
Intestate succession laws may also exclude some other assets. This includes property you own with someone else or property for which you’ve established a transfer on death deed or trust.
What If This Isn’t What You Want?
Oregon’s intestate laws are designed to create a reasonable system of inheritance in the absence of a will. However, you may want something different for your estate. Consider the following scenarios. You:
- Have two adult children, but one adult child has greater needs than the other. Instead of giving them equal shares of your estate, you want to provide more for the one with greater needs.
- Want some of your estate to go to a partner who is not your legal spouse. For whatever reason, you never tied the knot, but you have nevertheless been devoted to each other for many years.
- Want to give a portion of your estate to charity. Your family members are already taken care of and you would like some of your assets to go to a cause close to your heart.
- Want to give a large portion of your estate to someone unrelated to you. This person has been a good friend and has provided you with care over the years. You want to recognize this with an inheritance.
- Want some of your assets to go toward the care of a beloved pet who depends on you. You want to make sure your pet is taken care of.
- Want to control what happens to your assets after you’re gone. Perhaps one of your adult children has been irresponsible with money in the past. You want to leave this child an inheritance, but you also want to put rules in place to ensure the money is not squandered.
- Don’t want the state to seize your property. You don’t have any children and it’s possible you will outlive your relatives. You don’t want your assets to go to the state if this happens.
These scenarios – as well as many other scenarios not listed here – are exactly why estate planning is so important. By creating a will, you can outline exactly what you want to happen to your estate. Other estate planning tools, such as trusts, can give you further control over your assets. Beyond asset allocation, estate planning is a way to address critical issues, such as care for people who depend on you and what you want to happen if you are incapacitated.
Take Control of Your Estate
Oregon probate law without a will can be complicated and may not lead to the outcome you want. An experienced estate planning attorney can help you put together an estate plan that ensures your wishes are carried out. If you’re dealing with the probate process, an estate planning attorney can also help you navigate the Oregon probate forms and other requirements. Talk to a lawyer.