and Probate Law Firm
What Happens to My Assets if I Pass Away Without a Will or Trust?
In the State of Oregon, there are very specific statutes that govern who is to receive what property when an individual passes away. Informally referred to as “inheritance laws” these statutes go into depth as to who is entitled to what assets when an individual passes away. This article will help to provide you with key guidance regarding these laws and how they may apply to your specific situation and whether you may want to enlist the help of an experienced Portland estate planning lawyer.
“Intestacy” and Inheritance Laws
The first legal term that we will introduce you to is “intestacy”. This refers to when an individual passes away without a will or trust. That individual would be deemed “intestate” and “intestacy laws” will govern. Conversely, if an individual leaves behind a will or trust, that person would be deemed “testate”.
As such, the most important point to take into consideration when discussing inheritance laws is whether or not the deceased was “intestate” or “testate” – i.e. left behind a will or trust. If the person died without a will or trust, the intestacy laws provide “default” rules that prescribe a certain percentage of a decedent’s assets to certain members of the decedent’s family. Conversely, if a person died with a valid will or trust, these documents takes precedence over the intestacy laws and the terms of the will or trust will govern.
The Default Inheritance Laws
If an individual does indeed die intestate (i.e. without a will or trust), then state law gives preference according to whether or not that individual died with a spouse. If the decedent did have a spouse, then preference is given to the spouse. Furthermore, if the decedent had no children from prior marriages/relationships or all of the decedent’s children were with the decedent’s spouse, then the spouse is given the highest preference. If the individual died without a spouse, then children and family members are given preference. In this case the preference would be first the decedent’s children, then parents and then finally siblings. If the decedent had no family members at the time of death, the estate would go to the State in what is known as “escheat.”
Please find below a summary chart for intestacy:
|Decedent Left Behind||Asset Distribution|
|Spouse and no children||100% to spouse|
|Spouse and only had children from that spouse||100% to spouse|
|Spouse and some or all children from prior marriages or relationships||½ to spouse and ½ equally to children from prior marriages or relationships (* See below)|
|No spouse but did have children||100% equally to children|
|No spouse, no children but did have parents and siblings||100% equally to parents|
|No spouse, no children, no parents but did have siblings||100% equally to siblings|
* When an individual passes away with a spouse but had children from a prior marriage/relationship, there are a couple of things to note. First, it does not matter whether the decedent also had children with their spouse at the time of death. It only matters whether they had any prior children. Second, in this scenario, if the decedent left behind two prior children, for example, then these prior children would be entitled to ½ of the decedent’s assets. As such, they would each receive ¼ and the spouse would receive ½.
The State of Oregon has written into law very specific statutes that prescribe which family members will inherit which assets when an individual passes away. However, if the decedent left behind a validly executed will or trust, which is generally drafted by an experienced Portland estate planning lawyer familiar with Oregon intestacy laws, then the decedent’s wishes will govern.
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