It is rare when the Oregon Legislature does anything positive for hard-working, law-abiding, modest-income citizens. Several years ago legislators took time out from their main activity of taking and wasting our money to raise the “small probate estate” limit from $160,000 to $275,000. The “small estate” statute enables those left behind to transfer the decedent’s assets as soon as 31 days after death with minimal expense and paperwork.
If the deceased’s assets are modest, transferring them to living individuals requires just three simple steps:
1) The Will’s executor (called personal representative in Oregon statutes) or a relative should schedule a comprehensive consultation with a probate attorney in order to determine if the estate qualifies for the “small estate” process. Even if the estate is small enough to qualify for small estate treatment, there may be reasons why filing for “regular” estate treatment would be better in the long run, such as disputes among relatives or unique assets. All concerns and facts should be discussed with the attorney. The attorney will keep everything confidential.
2) The attorney will draft and file the “small estate affidavit” with the court and mail it to the required individuals. The affidavit can be filed at anytime after the 30th day following death. However, it is not a good idea to wait more than a year. This writer recommends that the affidavit be filed within the first two or three months to avoid disputes, and definitely be filed before the deceased’s documents and assets have been scattered.
3) Each asset should be transferred to the person named in the Will (if no Will, to the related people, as required in Oregon statutes) within the first four months after the affidavit is filed.
As with larger estates, leaving a Will is the kindest thing a person can do for loved ones. A Will leaves loved ones with certainty regarding the deceased’s wishes. Without a Will, assets in the decedent’s sole name will be distributed via Oregon statutes, ignoring his or her wishes. If the decedent dies single, without children or grandchildren, surviving parent(s) will receive the entire estate. [All Janis Joplin’s assets were inherited by her estranged parents. Janis did not have a Will.] If parents and grandparents are already deceased, the siblings will each receive equal shares of the estate.
If a single person outlives all close blood relatives, the assets will wind up with nieces & nephews, or first and second cousins. Statutory asset distribution does not take into account whether or not the deceased ever MET the relatives who will inherit, or even LIKES them. Indeed, one’s least favorite relative could wind up with all or part of the assets. Only by signing a Will can you be assured the people you love will receive your property, instead of relatives with whom you may not have a close personal relationship. [It took 25 years of litigation to determine who would receive Jimi Hendrix’s assets, in part because he had no Will.]
Without a Will, the assets of a married decedent which are held in sole name, will all go to the current spouse, regardless whether or not the couple is living together at the time of death, regardless whether a divorce is pending. If the decedent has children with a previous spouse, the current spouse receives half and the children receive half. By properly drafting and signing a Will, a married person can leave solely owned assets to anyone of his or her choosing, regardless of the relationship.
Unfortunately, too many Oregonians believe it is better to pass away without a Will. In 26 years of practicing law this writer has been unable to determine where this myth comes from, as there is NO disadvantage to having a Will. A Will is the only cost-effective way to insure that the “right” person will inherit and the “wrong” person will not.