At the beginning of my initial appointment with estate planning clients I ask them what their goals are – or why did they come in to my office. I ask this question to gauge their understanding of the estate planning process; to ensure that I address their most important goals. It is impossible to advise clients on what they need if you don’t know their most basic goals.
Most of my estate planning clients have one goal in estate planning – they want a will to make sure the state does not get their property. Not to reduce taxes or avoid probate. No, they don’t want the state to physically take their property because they don’t have a will. They don’t trust the state (for good reason?).
This goal is a basic desire – we give enough to the state during our lifetimes, we certainly don’t want the state to take our property when we’re dead.
The good news is that, except in the most extreme cases, the state won’t take your property if you don’t have a will. In Oregon we have “intestate succession” laws that dictate to whom your property will be distributed if you don’t have a will. We call these the default laws.
If you’re married, your spouse will receive your property. If you’re in the process of a divorce or you have been separated for 20 years but never divorced, your spouse is considered your heir under Oregon law. If you’re not married but have kids, then your kids receive your property. Even if you have a child that you haven’t seen or spoken to in 15 years, he or she will receive your property.
If you’re married but have kids from a different relationship, your spouse receives ½ of your property and your kids receive the other ½. If you and your spouse have lived on property titled in your name only for over 50 years, your children from another relationship receive 50 percent of that property, and can force your spouse to sell her interest in the property.
If you’re not married and don’t have any kids, grandchildren, great grandchildren then your parents receive your estate, or, if they are not alive, then your property passes to your siblings. This includes your brother that you haven’t spoken to since he disappeared in the 60’s in a drug induced haze.
Finally, if you have no wife, children, grandchildren, great grandchildren, parents, siblings, and nieces or nephews, then the state will step in and take your property.
As you can see, in general the default laws prevent the state from taking your property. However, without a will your property may go to someone that you don’t want it to go. The key reason to have a will is not to prevent the state from taking your property; rather the primary goal is to make sure your property goes where you want it to go.