What happens to a person’s property if they don’t have a will?

Kevin Anderson Estate Planning, Probate

A 2007 Harris Interactive research study found that 55% of Americans do not have a will. So what happens to a person’s property if they die without a will? When a person dies without a will, their property passes by “intestate succession” as provided in ORS §§ 112.015 – 112.055.

If the decedent was married at the time of death, and either had no children or all of the children were also the children of the surviving spouse, then the surviving spouse will receive all of the decedent’s property. However, if the decedent dies leaving a spouse and children that are not also the surviving spouse’s children, the surviving spouse receives one half of the decedent’s property and the decedent’s children receive the other half.

If the decedent was not married at the time of death, any children will receive all of the estate in equal shares. If the decedent had no spouse or children, the decedent’s parents receive the estate. If the decedent’s parents have died, the decedent’s brothers and sisters will receive the property. Depending on the family situation, grandparents, nieces, nephews, aunts, uncles, and cousins could possibly inherit the decedent’s property.

The State of Oregon will only get the decedents property if the decedent left no family and the property is not disposed of through the decedent’s will or trust. The legal term for property being transferred to the State of Oregon is “escheat.”

The intestate laws do not reflect the desired distribution plan for many individuals. For example, part of your estate could pass directly to a minor child. This could require a court-appointed conservator to manage the minor’s funds. In addition, the law of intestate succession does not recognize any relationships outside of blood, marriage or legal adoption. This means that unmarried partners, step-children, close friends, and charities are completely excluded.

As of 2008, registered domestic partners in Oregon have the same rights as a surviving spouse. However, this right will likely not be recognized for property located outside of Oregon.