By Tami S.P. Beach
Losing a loved one is an emotionally challenging experience, and when the situation is compounded by the absence of a will, it can create additional complexities. In such circumstances, family members and heirs are often left grappling with the question of what to do next.
Who inherits from an estate in Oregon if there is no will? The distribution of an estate in the absence of a will is governed by the laws of “intestate succession.” These laws prioritize your surviving spouse and close relatives in a specific order. The beneficiaries are typically your spouse and children.
If you are survived by a spouse but no children, the entire estate usually passes to your spouse. However, if you have children of a prior marriage, the estate is divided between your spouse and children. In cases where there are no living relatives or identifiable heirs, the estate may “escheat” to (or be transferred to) the state of Oregon. This is a rare occurrence, as the state typically makes efforts to locate heirs, even distant ones.
Notwithstanding, it is advisable that you create a will or trust to ensure that your assets are distributed according to your desires and to avoid the complexities that may arise in intestate succession.
What is probate? “Probate” is a legal process that involves the validation and distribution of your assets after your death. The probate process ensures that assets are properly transferred, debts and taxes are paid, and your wishes are honored.
While it can be a challenging, costly and lengthy process, probate serves the role of administering your affairs and upholding principles of fairness. Probate typically begins with the filing of a petition in the county where you resided at the time of your passing. The individual named as your personal representative (“executor”) in your will (or an appointed representative, if there is no will) is responsible for administering your estate.
Once all of the statutory requirements are met, the personal representative applies to the court for permission to distribute your assets in accordance with your will (or the laws of intestate succession, see below). The shortest term for a probate proceeding is six months, but probate may take much longer than that, depending on many factors.
Do all wills go through probate in Oregon? Not all wills have to go through probate. Whether a will must go through the probate process depends on the type and value of the assets involved. Fortunately, Oregon has a simplified process for small estates (or “simple estates,” those with real property value that is $200,000 or less and a value of less than $75,000 for all other property). If your estate values are beneath these limits, it may qualify for this simpler process, which is less cumbersome than a formal probate.
Assets owned jointly with another person, such as a house owned jointly by a married couple, usually pass to the surviving owner without needing to go through probate. Assets with beneficiaries listed (such as life insurance policies, retirement accounts and some bank accounts) generally bypass probate and go directly to the named beneficiaries.
Finally, if you have a living trust, your assets will not be forced to go through probate. Instead, they are distributed according to the terms of your trust. Having a revocable living trust is the most cost and time efficient manner of passing your assets following the time of your passing. A trust is a more efficient, less expensive and more private process than the probate process.
What is a revocable living trust? A revocable living trust is a legal document used to manage your property during your lifetime and to distribute your property after your death. In this document, you appoint a “trustee” to administer your property, and you provide instructions on how your property is to be managed and distributed. A revocable living trust enables your loved ones to avoid the public probate process entirely.
A revocable trust can: 1. reduce delays in distributing your property after you die; 2. cost far less money to administer after your death; 3. prevent people other than your loved ones from having access to your confidential information; and 4. provide a smooth flow of management of your property during your life and after your death.
An additional benefit of a trust is that you can avoid the additional cost of a conservatorship in the event you become incapacitated during your lifetime, and you can name the people to assist you in that event.
Tami S.P. Beach is an attorney at law providing estate planning, probate and real property representation for over 28 years.