will and testament

”Expensive court fight over Aretha Franklin’s will provides cautionary tale”

— July 12, 2023, AP News

As soon as I read this headline, I knew this was a column topic. No one wants or needs to go through this court battle in their own family, and there are important ways to ensure this won’t happen. Unfortunately, when it comes to inheriting money, it doesn’t always bring out the best in people. This is an excellent reason to have a will or trust in place before you die, drawn up by a lawyer.

Legal experts say the fight by Franklin’s family could have been avoided if she had a formal will drafted by an experienced lawyer specifying what should become of her assets. You don’t need to have as much at stake as she did to have your family end up in a court fight, either.

Most states have laws covering how an estate should be divided when a person dies “intestate,” meaning without a will. But those laws just provide default formulas for who gets what, and they vary from state to state. Those formulas may not ensure that money, property and possessions get divided the way you want among your surviving relatives, nor do they guarantee who will be named the executor. The executor follows the wishes and instructions in your will. In Oregon, this person is called your personal representative, or trustee, if you have set up a trust.

I asked a local estate planning lawyer some questions on this topic. She will remain nameless, as she has a full practice and is not taking on new clients. However, there are numerous estate planning and elder law attorneys in the Rogue Valley that you can contact.

Do I need a will?

It depends. In Oregon, if you die without a will, your assets pass via the law of intestacy. This basically means that your assets will pass to your next of kin. If you are married, your assets will most likely go entirely to your spouse. If not married, and you have children, they would most likely pass to your children in equal shares. There are always exceptions, however, so having a will in place, even if you think the law of intestacy would work out the way you want it to, is always a good idea. If you would want to see your assets pass in a way that the law of intestacy would otherwise not allow, you must have a will or a trust in place to provide for how you want your assets to pass. A will can also provide additional benefits like getting to choose who will handle your estate (the trustee or personal representative) and options for placing assets in trust for minors or others who may benefit from limited access to their inheritance.

Can I do it myself?

Again, it depends. There are self-help forms and websites that help people generate wills that oftentimes are valid and enforceable, but not always. I have also seen self-drafted wills, and even self-help forms that were improperly done and therefore not valid or enforceable. Your best bet to make sure your will holds up is to have it prepared (or at least reviewed) by an estate planning lawyer.

What happens when someone dies without a will?

As addressed above, the law of intestacy would apply. If, however, you died without any living heirs that could be found, then your assets would ultimately escheat (a legal term which means the property reverts to the state). In this case, it would be given to the state of Oregon as unclaimed property.

Parting words to the wise: Have a will or trust created by a lawyer, and don’t leave these decisions to the courts.