My husband pass away without a will do I have any rights that all to anything that he might have we wasn't married that long,

Asked almost 5 years ago - Portland, OR

my husband pass away without a will do I have any rights that all to anything that he might have we wasn't married that long,

Attorney answers (3)

  1. Joanne Reisman

    Contributor Level 16

    Answered . The other reviewer is right that you will have the legal right to all the property of your husband absent 2 exceptions - if he had children from a prior relationship the intestacy law provides that they get a share of the property and the other exception is if he put contrary instructions on the kinds of property were you can designate who takes the property when the owner dies. (A right of survivorship designation or a named beneficiary like on a life insurance policy.)

    I would add that in Oregon it is fairly easy to avoid probate of any kind. Probate is not a legal requirement, it is a tool that you only need to use if there is no other way to transfer property. Here in Oregon you can transfer the title of a car with a form from the DMV and a death certificate. You will own any bank account that you name was on as a joint owner, and for practical purposes, if you did on line banking for an account in your husband's name only, you can continue to log on and pay bills and close out the account as long as you know the password. (Don't tell the bank that your husband died as they will probably cut off your access to an account in his name only.) If there is a house involved and it is in your husband's name only, you can continue to live there as long as all mortgage and tax payments are made. When you go to sell the house you can do a special affidavit as required by the title company and pay an extra premium for the title insurance. Then you can sell the house without a probate.

    Of course, you shouldn't do any of these non-probate transfers if there are stepchildren that are entitled to a share in the estate without consulting with an attorney first who can help you organize the process with proper notification to the stepchildren. Also see an attorney first if there are creditors that need to be dealt with since they can still claim an interest in any property that is transferred.

  2. J Christopher Minor

    Contributor Level 15

    Answered . Sorry to hear of your husband's death. In addition to some of the points mentioned above, one should also consider whether there was a prenuptial agreement, although this seems unlikely if he did not have a will.

    BTW, joint bank accounts become the property of the other owner of the account, unless a contrary intent is manifested somehow. But beware of taking money from an account that was in your husband's sole name; the fact that the bank doesn't know of his death and allows it to happen doesn't change the fact that it's improper after he has died.

  3. James P. Frederick

    Contributor Level 20

    Answered . The length of the marriage is not important. As the spouse, you DO have legal rights. What they are depends on the nature of your husband's assets and the manner in which he held title to them. For example, any property held jointly with you or naming you as the beneficiary, would pass to you automatically by operation of law. Probate would not be necessary for these items.

    If title is in your husband's name alone, some form or probate would be necessary. There are small estate proceedings available if the estate consists of personal property worth less than $50,000 and/or real property worth less than $90,000. You can find out more about this procedure here:
    courts.oregon.gov/Washington/docs/.../SmallEstatepriortojan106.pdf

    You do not say whether or not your husband left any surviving children or not. If so, it would affect the distribution of the estate under the intestacy laws (the laws which dictate the distribution of the estate when there is no Will). You can find more information on those laws here:
    http://www.mystatewill.com/statutes/or_law.htm

    Best of luck to you!

    James Frederick

    ******************************************
    LEGAL DISCLAIMER
    Mr. Frederick is licensed to practice law in the State of Michigan and has offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration.
    I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer.
    Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.

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