What happens if I die without a will?
If you die without a will, the person/people who receive your property will be guided by one of three things: 1) how the property is titled, 2) if there are beneficiary designations on the accounts, and 3) probate following the rules of intestate succession (defined below). Oregon law controls if the property is in Oregon or you die in Oregon.
All jointly owned property will pass to the person or persons you own the property jointly with. For example, if you and your spouse have joint bank accounts or own real property as joint tenants or tenants by the entirety, that property will pass to your spouse when you die. It is important to verify with the financial institution and on all property titles that the ownership includes a “right of survivorship.” Without the right of survivorship, your ownership share will not pass to the other owners but to your heirs through probate.
Accounts with proper beneficiary designations will pass to the beneficiaries named on the account. For example, your IRA or 401K will have sections where you designate or nominate beneficiaries. If you do not have beneficiaries named on the accounts, your “estate” will be the beneficiary and the accounts will be distributed through probate.
All property that does not have named beneficiaries and is not jointly owned will go through a court process known as probate. Probate is the process whereby creditors are paid, rights are cut off, and distributions to beneficiaries are made under the supervision of the court. Probate usually lasts between nine and twelve months but can be shorter or longer depending on the circumstances. A will goes through probate and has certain advantages such as designation of who will be in charge, waiving mandated bond, and allowing you to direct who receives your property. One way to avoid probate is the creation of a Revocable Living Trust.
Without a properly executed will the rules of intestate succession will direct who receives your property. In Oregon, this depends on the make-up of your living family. In general, the rules are governed by ORS (Oregon Revised Statute) Section 112.015 to ORS Section 112.115. If you are married, your spouse will inherit all your property unless you have children from a prior relationship. If you have children from a prior relationship, your spouse will inherit half your estate and your non-marital children will equally divide the other half. Without a spouse, your property will pass to your living children or if your children have all predeceased you to your grandchildren or further descendants. If you do not have living descendants, your property will pass to other relatives defined in Oregon law. If you do not have living relatives, your estate will pass to the state. Having a solid estate plan, including a will or trust allows you to give your property to the people or charities you desire.
I do not have a will/estate plan in place. Can I just use an internet program or does Oregon require something more specific?
You can buy web-based programs or forms to prepare your estate plan; however, it may not be in your best interest to go to the internet for such an important document. There are several reasons to be cautious of this approach. First, be careful where you access online forms; a website that looks legitimate may be a phishing site looking to capture your information. Second, there are specific requirements for how you prepare and sign your will in Oregon. If a will is not properly prepared and witnessed, it may not be valid. These formalities are oftentimes overlooked when people create a document online. An attorney will make sure your estate plan is properly prepared, signed, and witnessed. Third, a form may not meet your specific needs and you may miss crucial details that could have a significant impact on your property and the people you leave your property to. Fourth, probate may be more expensive if there are errors. If you are going to use an internet program, you should review the Oregon Probate Code to better understand the rules and procedures and read “Your Will” on this website.
If I leave my final wishes written down, will they be honored/legally valid in the event of my death?
Oregon does not recognize holographic wills, also known as handwritten wills, created by Oregon residents. Some states allow holographic wills. As an Oregon resident, it is important that you follow the rules established by the State of Oregon for the creation of your will. If you prepared a will in another state that does not meet Oregon requirements but was valid in that state when you created it, Oregon courts should accept it. Moving is always a good time to review your estate plan.
Can I make changes to my existing will or do I need a new one?
Do not make changes on your existing will as doing so may invalidate it. If you want to make minor changes, you can create a codicil. A codicil is a written amendment to your existing will and may be a single page or multiple pages. A codicil must meet the same requirements as a will, including two attesting witnesses. A codicil is generally less expensive to prepare than a full will and can include one or more revisions. If you are making major changes, it may be best to create a new will that will supersede your current will.
Are Oregon’s witness requirements still in effect despite social distancing measures?
The requirements for Oregon wills have not changed due to the state’s social distancing measures. Two witnesses must see you sign the will or acknowledge the signature you previously made and attest the will by signing their names to the will before you die. The witness signatures must be notarized. Oregon does not currently allow remote online notarization or notarization using technology such as Zoom, Skype, or video conference tools. Therefore, each witness must meet with a notary in person. Other documents often prepared with a will, such as a power of attorney or trust, do not need a notarization; however, banks and other institutions often require your signature to be notarized so it is best to have everything notarized at the start. Speak to an attorney about the ways they are safely and properly getting estate planning documents completed for clients.
How do I indicate who I want to make financial and medical decisions on my behalf should I become unable to do so?
An agent whom you nominate under a durable power of attorney can make financial decisions for you. Medical decisions can be made by your designated healthcare representative under an advance directive. If you work with an attorney for a will or trust, these documents will likely be prepared at the same time. Most financial institutions require your notarization of signature before they accept your durable power of attorney. The advance directive requires a notarization or two witnesses.
Legal Editor: Meredith Williamson, May 2020
