Despite the encouragement of a host of professionals: financial planners, CPA’s, and lawyers like me, who advise people to get a will, most people die without one. The law calls an estate without a will, “intestate.” This doesn’t mean that probate isn’t required, it just means probate happens a different way. The purpose of probate is to make sure that the decedent’s creditors’ bills are paid and that the decedent’s left over money and property are distributed to their survivors. To learn more about probate click here.
Most of the probate process is the same with or without a will. A lawyer still petitions the court to open probate; the court still appoints someone to act as personal representative for the estate; and the probate still takes about the same amount of time. The main difference is how the decedent’s leftover money and property is distributed to survivors.
With a will, an estate goes to the people the decedent designated and in the portions the decedent thought was best. The most common scenario goes something like this: A spouse writes in their will that if their spouse survives, the spouse gets all the “residue of the estate” (what is left after the decedent’s bills are paid) and if their spouse has already died, the children inherit the residue equally. Without a will, the law says that the spouse gets half of the residue and the decedent’s children divide the other half equally. This happens even if the children are minors and at home. The money is the property of each child that inherits, and if the child is a minor, the money is controlled under a special law designed to protect the best interests of the child. Unfortunately, this law can leave a surviving spouse not only emotionally devastated at the loss of their husband or wife, but in a very difficult financial situation because they do not have unlimited control of the family’s finances. The same law that governs an estate with no will anticipates any possible situation as far as how the residue will be distributed to surviving family or even if there is no family.
Fortunately, in the case of a married couple, an estate without a will may not be as big of a problem as it seems, because not everything is considered estate property. If a couple has a joint bank account the money is not part of the estate. If they own a house titled with a right of survivorship; the house is not part of the estate. So, there are a lot of factors that can affect the situation of those who survive the death of a loved one. It is impossible in a blog post like this to cover every possible situation so it is important to seek professional advice from an attorney to save time and money in trying to sort out what needs to be done in these circumstances.
Stan Butterfield is an attorney practicing in Dallas, Oregon and regularly handles probate cases in Polk, Marion, Yamhill, and Linn Counties. If you believe Stan could help you, please call (503) 623-2427.