If You Don’t Have a Will, The State Has One for You
(And You Might Not Like What It Does)
If you don’t have a will, state law determines who receives your property after your death, who will be guardian of your minor children, who will be your Personal Representative (the person who takes care of your estate, formerly known as executor), and so forth, without regard for your wishes.
The choice of your Personal Representative is vital. Among his or her responsibilities:
- preparing an inventory of your property;
- taking temporary possession of and providing safekeeping for the property;
- filing insurance claims and maintaining insurance, if desirable;
- evaluating and paying creditors’ claims;
- paying funeral, burial and other expenses of the estate;
- deciding which assets to liquidate to pay any claims and expenses;
- filing final income tax, inheritance and estate tax returns;
- distributing the remaining property according to your will, if you had one, or according to state law, if you didn’t.
Without a will, your Personal Representative will be selected by the court, and must distribute your property according to state law. The choice of a good Personal Representative could save your estate thousands of dollars in expenses and attorney’s fees. Naming your Personal Representative is one of the most important rights you have. Without a will, you give up that right.
What happens to your children?
With a will, you can name the guardian for your minor children. You decide what is best for your children.
In addition, a will allows you to provide for the best possible distribution of your assets to your children. Without a will, this is decided for you regardless of the circumstances or your preferences. Without a will, the law will also determine who will have control of any assets to be received by a minor child.
If you or your spouse have children from more than one marriage, the law may provide for your spouse in a manner vastly different than what you would have wanted. Under Oregon law, if your spouse is not the parent of your children, your spouse will receive only one-half of your estate. The law makes no provision for step-children.
But I have no children – why do I need a will?
If you are not married and have no children, your property may go to your parents, your brothers and sisters or other relatives. Even if you want some of your relatives to receive your property, you may prefer to specify which of your relatives will receive your property.
The law makes no provisions for gifts to friends or charitable organizations. Many people, given the time to think about it, would make gifts to friends or organizations. It is not necessary for these gifts to be large sums of money, many such gifts involve personal property, like books or collections rather than money.
If I put someone else’s name on my property, is that good enough?
It may or may not be a good idea to put someone else’s name on your property. For personal property like books, there may not be a way to put someone’s name on it that would be legally enforced. A lawyer can discuss with you the pros and cons of doing so, can usually bring up a number of points you hadn’t thought about and can tell you how this may affect your will, if you decide to make one.
How much property do I have to have to make a will?
Anyone can make a will – there is no requirement that you have a certain amount of property. Wills can cover important issues unrelated to your property, such as who will take care of your minor children.
Do I have to leave property to certain people?
Oregon law does not require that you leave property to anyone, including your spouse or children. However, Oregon law allows a surviving spouse to elect against the will and receive a “forced share”. This is true even if divorce proceedings have been filed, but the divorce is not yet final. Your children are not allowed a forced share, but frequently excluding a child from receiving any property will result in an effort by that child to have your will held invalid. There are specific steps that should be followed to validly exclude a child from receiving property under your will.
Is a will expensive?
A will is not necessarily expensive. Many lawyers use wills as a “loss leader” – charging a relatively low flat rate for a simple will. Other lawyers may charge you depending on how much time it takes to prepare your will. If you need any estate tax planning or want to include complicated provisions, you may be charged by the hour. The attorney should discuss the cost of your will with you at your initial meeting. A will that is properly written can save probate and tax expense for your estate and your heirs.
Who should prepare a will?
Your attorney should prepare your will. Each state has requirements for a will to be valid. In addition, the court will determine the meaning of any provisions that it feels are not clear. An experienced lawyer will know the best way to write your will so that it is most likely your wishes will be followed. A will that you make for yourself or that you do on a legal form you buy at the stationary store may mean that your property will not go to the people you want to get it and may cause a lot of expense and delay after you die. A person who is not an attorney cannot advise you on the legal effects of the provisions of your will.
What if I change my mind?
A will can be changed as often as you like as long as you are of sound mind. In fact, a will should be reviewed periodically to make certain that your wishes haven’t changed. It is also important to have your will reviewed when you marry or divorce or in the event one of your heirs dies before you.
What else will a lawyer discuss with me regarding my will?
A lawyer should also talk to you to determine whether estate planning can help you save on taxes, discuss the ownership of your property and answer any questions you may have. The lawyer may also talk to you about a “living will” to designate what medical procedures you want taken if you become seriously ill or injured and cannot speak for yourself.
How to Choose A Personal Representative.
The Personal Representative (or Executor) is the person who is in charge of wrapping up your affairs. This includes finding all of your assets, discovering all of your creditors, paying any bills and taxes and transferring your assets.
In selecting a Personal Representative, you should choose someone who is responsible and reliable, good with money, keeps meticulous records and can get along with people. In general, it is not a good idea to select someone who has been convicted of a felony or filed for bankruptcy protection. There are categories of people who cannot serve as Personal Representative, such as minors and disbarred attorneys.
The Personal Representative works closely with the attorney and is often the person heirs turn to with any questions. If the Personal Representative cannot or will not deal with heirs and devisees, the attorney will do so, although this can greatly increase the attorney’s fees incurred. The Personal Representative gathers all the information the attorney needs for the probate proceeding. The Personal Representative must obtain court authorization before distributing anything to the heirs or devisees, even if the heirs are demanding their shares.
Acting as Personal Representative can involve a great deal of work. It should not be viewed as a reward (or punishment); it should be viewed as a job requiring specific skills.
In a recent South Carolina case, the court ruled that naming a beneficiary of an IRA in an amount identical to the amount given to the beneficiary in the will, did NOT satisfy the gift in the will and that the recipient was entitled to receive both the IRA and the amount stated in the will.