My Mother recently passed away and her will does not include all of her assets. How are items distributed if they are not listed in the will? – Estate Planning Attorney – Portland, Oregon

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A comprehensive will is an important part of an estate plan. The requirements of a will are governed by state law.  For Oregon, the requirements are straightforward: the testator (maker of the will) must be 18 or married and of sound mind, and the will must be in writing and witnessed by two witnesses.  There are additional rules to address nuances such as out-of-state wills, people who cannot sign, etc.

There is no requirement that a will address all of one’s assets.  However, since the vast majority of wills are prepared by attorneys, they are thorough. This is done largely by what is called the ‘residuary’ clause.  It states something like, ‘I leave the rest, residue and remainder of my estate to persons X, Y and Z.’

It is important to note that most wills do not typically address specific assets.  This is because assets change over time.  If one leaves one’s home to X and the investments to Y, the will would become obsolete or possibly wrong if the house was sold to move to a retirement home and the sale proceeds added to the investments.  This is why attorneys prefer dividing estates in fractions or percentages.  Of course, there are always special assets such as a wedding ring, a mountain cabin, etc.

If for some reason the will does not list a certain asset and there is no residuary clause, the assets not named are distributed to the intestate heirs as though there were no will.  The intestate heirs are the beneficiaries named in the law for this type of situation.  In Oregon there is a clear priority beginning with a spouse, children, parents, and so forth.  In later marriages, the order begins with spouse and all children together.

These rules highlight the importance of having a will done properly.

An experienced estate planning lawyer can help you assess which documents best fit your planning needs. Contact the estate planning lawyers with the Law Offices of Nay & Friedenberg in Portland, Oregon at (503) 245-0894 to set an appointment.