What Happens if You Die Without a Will

Flower On A Grave In A Cemetery

If you die without a will, it is referred to as dying “intestate.” When this happens, assets will be distributed based on Oregon intestacy laws. This means that the courts will decide what will happen to your property, as well as who will supervise the distribution of your assets. Because there is no guarantee that the state’s laws will coincide with your personal wishes, and intestate succession can be a stressful and protracted process for your loved ones, it is important to create a will, regardless of the size or complexity of your estate.

How Intestate Succession Works in Oregon

How your assets will be distributed will depend on whether you have living children, parents, or other close relatives when you die. Under Oregon inheritance laws, If you have a spouse but no descendants (children, grandchildren), your spouse will inherit everything. If you have children but no spouse, your children will inherit everything. If you have a spouse and descendants (with that spouse), your spouse inherits everything. Importantly, a spouse does not include a domestic partner.

If you have a spouse and at least one descendant from you and someone other than your spouse, your spouse will inherit half of your intestate property and your descendant(s) will inherit everything else. If you leave behind parents but no spouse or descendants, your parents inherit everything. If you have siblings but no spouse, descendants, or parents, your siblings inherit everything.

If you die without a will and do not have any family, your property will go to (“escheat”) the state. This rarely happens because Oregon’s inheritance laws are designed to get your property to your family, however remote. In addition to spouses, descendants, parents, and siblings, your assets will not likely go to the state if you leave behind nieces, nephews, aunts, uncles, or cousins.

Some Important Assets Will Not Be Affected By Intestate Succession Laws

Only assets that would have passed through your will are affected by intestate succession laws. Typically, that includes assets that you own alone, in your own name. Valuable assets that do not go through your will and are therefore unaffected by intestate succession laws include:

  • property you’ve transferred to a living trust
  • life insurance proceeds
  • funds in an IRA, 401(k), or other retirement account
  • securities held in a transfer-on-death account
  • payable-on-death bank accounts
  • real estate held by transfer-on-death or beneficiary deed
  • property you own with someone else

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

Why Having a Will is Important

Having a will in place will bring peace of mind to you and to your loved ones. By creating a will, you can you accomplish these important goals:

  • Appoint a legal representative to carry out your wishes;
  • Nominate a guardian for your children should you die before they reach the age of 18*;
  • Choose someone to manage any property you leave to your young children; and
  • Make specific gifts to family, friends, or charities.

Additional benefits of having a will include streamlining processes for family and loved ones following your death; protecting inheritances for your heirs; allocating money or assets for trusts; planning a living will in case of incapacitation or physical deterioration; and preparing for coverage of burial costs and necessary taxes.

Without a will, the court will appoint someone, usually a surviving spouse or adult child, to oversee the distribution of your assets and ensure that final bills and taxes are paid. This can be a stressful process for your loved ones, particularly if they disagree over who should be in charge. Because wills contain specific instructions for what happens to your assets, the process of distributing your property will likely be much simpler for your family members and other beneficiaries.

If you die without a will, it means that you won’t be the one to decide who gets what. Nor will you have a say in who takes care of your children. Distribution of your assets will likely be delayed, while potential beneficiaries are identified.

*Oregon law does not allow a person to give their children to someone in a will. Although you can nominate someone to care for your children after your death if none of the children’s parents are alive, the court has the ultimate authority to approve a petition for guardianship if one is filed.

How an Oregon Estate Planning Attorney Can Help

If you need assistance updating or creating a will we welcome you to contact Litowich Law at (503) 966-3558. Based in Salem, we serve clients throughout Oregon and are dedicated to helping you plan for your family’s future.

Categories: Estate Planning
Sarah M. Litowich's Profile Image
Salem family law attorney Sarah M. Litowich is an Oregonian through and through, with roots in rural eastern Oregon and the Willamette Valley. She is grateful for these deep Oregon roots because she learned the value of hard work and building and mai… Read More

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