Losing a loved one is one of the most challenging rites of passage we face as we move through our lives. Administering the estate of that loved one creates a deeper level of responsibility, not only to your deceased relative but to your surviving family members.
Jump ahead to these sections:
- Oregon's Intestacy Laws Explained
- How Does Probate Work in Oregon If There Is No Will?
- Who Typically Inherits Assets in Oregon If There Isn't a Will?
- Frequently Asked Questions: Dying Without a Will in Oregon
Oregon's intestacy laws help us by eliminating the question of who should inherit. The laws create a consistent method of identifying heirs, paying estate debts, and transferring assets to their new owners.
Oregon's Intestacy Laws Explained
Intestacy laws create a framework for determining who inherits a deceased person’s assets when they pass away without a will. The laws ensure that the deceased’s property goes to a spouse or other family member.
Intestacy laws work a little like a flow chart. You go down the list of possible heirs until you find the first generation with at least one heir still alive. All members of that generation inherit equal portions of the deceased’s estate.
If one of the heirs died before the deceased in question, that person's heirs inherit their share in their place.
The intestate estate
Intestacy laws only apply to the deceased’s estate. The word estate is a legal term that refers to all the things a person owned when they died: a house, money, a car, etc.
If the deceased had made a will, we would call the estate the testate estate. If they didn’t have a will, they are said to have died “intestate.”
The intestacy laws only deal with property inheritance.
Many types of property can be passed along through non-probate transfers rather than through the estate. Even if the deceased didn't engage in any formal estate planning like writing a will or making a trust, it's still likely that some, if not all, of their property won't be in the estate. As a result, intestacy laws would not apply.
Property transfers outside of probate
You'll likely find that some assets require no additional authority to transfer. That's because we can create property transfers that occur automatically upon the decedent's death.
Non-probate transfers have a pre-designated beneficiary who becomes the new owner after the previous owner’s death. Rather than showing proof of probate authority from the court, the beneficiary shows proof of their ID and the deceased’s death via a death certificate.
Common types of non-probate property transfers include life insurance policies, jointly held property, and accounts with a payable-on-death designation.
Bank accounts, retirement accounts, and investment accounts allow account owners to name a payable-on-death beneficiary. Usually, the bank or institution enables you to establish one when setting up the account.
Jointly held property is another form of non-probate transfer because it requires no other action to execute. Real property like houses usually has one of two types of titles: “tenancy in common,” or “joint tenants” with the right of survivorship.
A “tenancy in common” means there are defined, divisible ownership interests for each party, whether it be a 50/50 split, 70/30, or some other portion. Each person can convey their share of the property by selling it, bequeathing it in their will, or otherwise disposing of it.
Owning property as “joint tenants” with the right of survivorship is an entirely different ownership structure. The owners each own an indivisible interest, meaning it's not separate or a defined portion of the property – they each own the whole thing. When one owner dies, the remaining owner or owners retain possession of the entire property.
How Does Probate Work in Oregon If There Is No Will?
Probate creates a bridge to transfer the deceased’s probate property from their name and ownership to the ownership of their heirs. Of course, probate isn't only about transfering property – it's the wrapping up of the deceased’s affairs, including paying bills and debts, concluding legal issues, and anything else.
The appointment of a personal representative
Opening a probate case is the most comprehensive way to deal with someone’s estate after they pass. Once appointed, the personal representative has the authority to act on behalf of the estate.
Not only can the personal representative handle basic estate administration tasks like opening an estate bank account and transferring estate assets, but they can also tackle more challenging issues. For example, personal representatives can also hire an attorney on behalf of the estate to pursue a wrongful death lawsuit, obtain any records, and more.
After opening the estate and receiving the letters of appointment, the personal representative typically secures the estate assets to keep them safe and prevent them deteriorating during the estate administration.
From there, the personal representative pays any debts. The claims process can be one of the trickiest parts of being a personal administrator as state law establishes a hierarchy of claims and some may jump to the front of the line for payment. Following that priority is essential when the estate lacks enough money to pay all claims.
If the estate has leftover assets, the personal representative distributes them to the heirs. Sometimes, the personal representative liquidates the assets to distribute money to multiple heirs equally.
Finally, the personal representative files reports with the court and heirs to account for the estate's funds before closing the estate. The process can take several months and even longer for estates with complicated assets or a lot of conflict among the heirs.
Small estate affidavit
Estates valued at less than $275,000 can skip the entire probate process using a small estate affidavit. Both heirs and creditors can file the affidavit, which alleges that the person filing has the authority to collect assets on behalf of the estate.
To be considered a “small estate” no more than $200,000 of the estate’s value can be held in real estate, and no more than $75,000 can be personal property.
The small estate affidavit allows heirs to collect property using the affidavit as proof of their authority. It stands in place of a court order appointing a personal representative. The heir shows or gives a copy of the affidavit to anybody holding the deceased’s assets, like a bank or landlord. They may also want a copy of the death certificate.
You must wait at least 30 days after the deceased’s death before filing and using the affidavit.
Who Typically Inherits Assets in Oregon If There Isn't a Will?
When someone dies without a will, their closest living relative, or group of relatives, inherits the probate estate. Their children or spouse are most likely to inherit, but of course, it depends on who survives them.
When someone dies without children, the surviving spouse inherits. If they were unmarried, their children would inherit.
Calculating the inheritance is trickier if both a surviving spouse and one or more descendants survive. If the surviving spouse and the deceased had children together, the surviving spouse still inherits the entire estate. However, if the deceased had children with someone other than the surviving spouse, the descendants and spouse split the estate equally.
When someone passes away without a spouse or descendants, their parents are next to inherit, followed by siblings.
Frequently Asked Questions: Dying Without a Will in Oregon
It's normal to want to know what to expect when a family member dies. If your loved one has not yet passed, keep in mind that a lot can change in a short amount of time. Even if they finally draft that will or incur excessive end-of-life care costs, an inheritance is far from guaranteed.
If your loved one has passed and you are concerned about whether you are getting your correct share, talk to an experienced probate attorney in your state. They can apply intestacy laws to your specific family structure to give you the most accurate view of your situation.
What happens when your parent dies without a will?
When your parent dies without a will, how much you can inherit varies based on whether your parent was married, and if so, whether they were married to your other parent or someone else.
In Oregon, the intestacy laws create a tiered system for the children of someone who died. If the deceased was unmarried at their death, the children would inherit everything. Keep in mind that all of the deceased children inherit equal portions of the estate, even if one or more have also passed away. In this case, their heirs inherit their share in their place.
If your parent was married, you might still inherit a portion of their estate; if your deceased parent had at least one child with someone other than the surviving spouse, then the spouse and children equally split the intestate estate. However, if your parents were married to each other, and the deceased parent did not have children with anyone other than their spouse, the spouse inherits the entire estate.
What are a surviving spouse's rights if there's no will?
A surviving spouse inherits, at minimum, one-half of the estate. They inherit the entire estate when the deceased has no children, or if all of the children are children they shared with the deceased.
If your spouse had at least one child with someone else, your portion of the estate drops to one-half. The children inherit the other half of the estate.
Keep in mind that in most marriages, married couples usually own major assets together. For example, you might own your home as joint tenants with right of survivorship, making the sole remaining owner of the property. The same applies to jointly held bank accounts.
If you are reading this before your spouse dies, it's important to educate yourself about marital finances. Talk with your spouse about your hopes for your wealth and property, and make sure your estate plans reflect those desires.
Are there any probate exemptions if you die without a will in Oregon?
Small estates with less than $200,000 in real estate and $75,000 in personal property can often skip probate. Instead, an heir uses a small estate affidavit to collect and transfer any assets left behind.
Additionally, you can set up many assets to transfer outside of probate through joint tenancy and payable-on-death beneficiaries. Probate shouldn't be needed to deal with those items.
Who is considered next of kin in Oregon?
The meaning of the phrase “next of kin” depends on who the deceased left behind, but it is most likely to be a surviving spouse or descendants, including children and grandchildren.
After death, who counts as “next of kin” most often becomes a concern when families try to determine who should administer the estate. Oregon probate law establishes a list of people who can take priority for becoming administrator. When there is no will, the surviving spouse is first in line. After that, the priority goes to children, grandchildren, parents, and siblings, in that order.
Make a Plan to Expect the Unexpected
Working through probate on an estate without a will is about as complicated as one with a will, but there is value in estate planning – you will be able to control who inherits what, and what amount. Wills allow for you to allocate variable portions while the intestacy laws work with equal shares.
For those entering a second marriage, or who have children from multiple relationships, writing a will can have huge benefits; doing so can ensure that funds go to those who need or deserve them most.
Sources:
- Oregon Judicial Branch. "Instructions for Filing Small Estate Affidavits." State of Oregon. Courts.oregon.gov
- Oregon State Legislature. "Oregon Revised Statutes 2021 Edition." Oregonlegislature.gov