Can My Mother Leave Me Out of Her Will?
If you have a strained relationship with your mother, you may be worried about being left out of her will. Or maybe you have already discovered that she has disinherited you after her death. Either way, you may be wondering if you have any legal rights to challenge her decision and claim a share of her estate.
The answer depends on several factors, such as whether your mother had a valid will, whether she was mentally competent when she made it, and whether she was influenced by someone else.
In general, a parent has no obligation to leave property to their children in their will. They can choose to disinherit them for any reason or no reason at all. However, there are some exceptions and limitations to this rule.
One exception is if your mother did not leave a will at all. In that case, her estate would be distributed according to the intestacy laws of her state. These laws usually give priority to the surviving spouse and children of the deceased person. So, if your mother died without a will and had no spouse or other descendants besides you, you would likely inherit her entire estate by default.
Another exception is if your mother left a will, but it was invalid for some reason. For example, if she did not sign it properly, or if she did not have the mental capacity to understand what she was doing when she made it. In that case, you could challenge the validity of the will in court and try to prove that it does not reflect your mother's true wishes.
A third exception is if your mother left a will, but it was influenced by someone else who pressured or deceived her into disinheriting you. For example, if your sister or niece convinced your mother that you were ungrateful or unworthy of her inheritance. In that case, you could contest the will on the grounds of undue influence or fraud and try to show that your mother was manipulated into leaving you out.
If none of these exceptions apply to your situation, then you may have little recourse if your mother left you out of her will.
Being left out of a will can be hurtful and frustrating but it does not mean that you have no recourse at all. Depending on your circumstances, there may be legal grounds for challenging your mother's decision or alternative ways for benefiting from her estate.
2018 Oregon Estate Tax Rates
The State of Oregon levies a tax on taxable estates that have a value of more than $1 Million. Estates of less than $1 Million are exempt from the Oregon Estate Tax. This is a separate from the Federal Estate Tax. In 2018, individuals with less $11.2 Million and couples with less than $22.4 Million are exempt from the Federal Estate tax. The top Federal Estate tax rate is 40%. More information on determining the Federal Estate Tax rates can be found at IRS.gov.
Taxable Estate Equal to or more than: | Taxable Estate less than: | Tax rate on Taxable Estate amount more than column 1 |
---|---|---|
$1,000,000 | $1,500,000 | $0 + 10% |
1,500,000 | 2,500,000 | 50,000 + 10.25% |
2,500,000 | 3,500,000 | 152,500 + 10.5% |
3,500,000 | 4,500,000 | 267,500 + 11% |
4,500,000 | 5,500,000 | 367,500 + 11.5% |
5,500,000 | 6,500,000 | 482,500 + 12% |
6,500,000 | 7,500,000 | 602,500 + 13% |
7,500,000 | 8,500,000 | 732,500 + 14% |
8,500,000 | 9,500,000 | 872,500 + 15% |
9,500,000 | 1,022,500 + 16% |
Elements of an Oregon Estate Plan
What is Estate Planning?
There is much confusion about what estate planning is and what you actually need to do. I will go through some of the most common estate planning tools, how they work and when they are useful.
1. The Do-Nothing Option
This is probably the most common estate planning technique in Oregon and rarely is it ideal. If you die in Oregon without a will, your assets will be distributed by the laws of intestate succession. These laws are the Oregon Legislature's best guess of how most people would have wanted their assets divided among their heirs. Typically your assets will be inherited by your surviving spouse or equally among a class of heirs. If you are more interested, I have a full post dedicated to the common intestate scenarios linked here. You can also learn more about Oregon Probate on my practice area page.
2. Last Will and Testament
The basic Will is the simplest and most well known estate planning tool. They are generally assumed to have been invented in Ancient Greece around 600 BC. (Wikipedia has an article on the History of Wills.) At its simplest, a Will appoints someone to manage your estate after your death and provides them instructions on how to distribute your assets.
In Oregon you must have "testamentary capacity" in order to create a will. Testamentary capacity defined:
ORS 112.225 Who may make a willAny person who is 18 years of age or older or who has been lawfully married, and who is of sound mind, may make a will.
Now, there are several formalities that you have to follow in order have a duly executed will. I often hear complaints about these formalities. It is best to think about these formalities not as burdens but rather as quality control measures that make sure people don't steal from you after you die.
Oregon outlines the formalities of a duly executed Will in the ORS.
112.235 Execution of a willA will shall be in writing and shall be executed with the following formalities:
(1) The testator, in the presence of each of the witnesses, shall: (a) Sign the will; or (b) Direct one of the witnesses or some other person to sign thereon the name of the testator; or (c) Acknowledge the signature previously made on the will by the testator or at the testators direction. (2) Any person who signs the name of the testator as provided in subsection (1)(b) of this section shall sign the signers own name on the will and write on the will that the signer signed the name of the testator at the direction of the testator. (3) At least two witnesses shall each: (a) See the testator sign the will; or (b) Hear the testator acknowledge the signature on the will; and (c) Attest the will by signing the witness name to it. (4) A will executed in compliance with the Uniform International Wills Act shall be deemed to have complied with the formalities of this section.
There is much more to cover on the topic of Wills but this post is meant as an overview for estate planning.
3. Revocable Trusts
Sometimes marketed a "living trusts" or "loving trusts," a revocable trust is a contract with yourself that you can "revoke" if you change your mind. I've written about revocable living trusts in Oregon before but I will recap their uses here as well.
Many people have difficulty understanding how a revocable trust works so I've diagrammed it below.
The two most common uses for revocable trusts in estate planning are the avoidance of probate and conservatorship.
Avoiding Probate
The most common reason why probate proceeding are started in Oregon is because the titled property of the estate exceed the statutory amounts for small estate proceedings. (I will go into small estate proceedings later.) What that means in non-lawyer speak is that your home is worth more than $200,000. There are other ways to exceed the small estate limits but for most people it is the value of their home.
So, by placing your home and other assets into a revocable trust you can avoid probate all together or be able to settle your estate by Affidavit of Claiming Successor. When done properly, a revocable trust can avoid several thousand in probate administration fees and save months of time. Revocable trusts don't avoid estate taxes or shield assets from creditors. There are other tools that can be used to minimize taxes and protect assets and I will discuss those in a later post.
Avoiding Conservatorship
Conservatorship is a kind of protective proceeding in Oregon where the court appoints a conservator to manage the assets and finances of a protected or incapacitated person.
ORS 125.005 (3) defines financially incapable:
Financially incapable means a condition in which a person is unable to manage financial resources of the person effectively for reasons including, but not limited to, mental illness, mental retardation, physical illness or disability, chronic use of drugs or controlled substances, chronic intoxication, confinement, detention by a foreign power or disappearance. Manage financial resources means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.
As people aged they sometimes experience diminished mental capacity or conditions that make it difficult to manage their financial affairs. In these instances it may be necessary to go to court to establish a conservatorship and appoint a conservator. These can be expensive and time consuming proceedings so it is best to avoid them.
A revocable trust can avoid conservatorship by appointing a successor trustee if you become incapacitated. You can provide instructions in your trust on who you want to manage it and how you want it managed in the event you become incapacitated.
4. Advanced Medical Directives and POLST
For many people how they die is often more important than what happens to their belongings. I've written extensively on Advanced Medical Directives and Substituted Healthcare Decision Making before and how a person's faith influences medical decision making.
In a nutshell, Advanced Medical Directives allow you to appoint a Healthcare decision maker and leave instructions for end-of-life treatment. POLST (Physicians Orders for Life Sustaining Treatment) all you to decide what treatment you want if you have a terminal disease. I encourage all of my clients to complete their Advanced Medical Directives and POLST if they do no other estate planning. I will often hear from a family member who had to guess at their loved-one's desires for medical treatment in the ICU and are traumatized by the experience.
If you have any questions about Advanced Medical Directives, please follow the links above or leave a comment.
5. Virtual Asset Instruction Letter
This is a new area of estate planning that deals with virtual assets and how you would like them handled after your passing. For many of us the majority of our communications and photographs now exist on the servers of Google, Facebook, Apple and Microsoft. I wrote about this before (What is going to happen to your Facebook account when you die?) I've also written about Grieving Online.
How these accounts are handled after your death depends on the Terms of Service of each of the companies. What is important is that you decide who you want to have access to these accounts and what you want them to do with them. Facebook allows you to add a legacy contact to manage your account or to delete your account after your death. Below is a snip from the Facebook Legacy Account Page. Other companies are creating similar programs to help you manage your accounts if you die.
The Virtual Asset Instruction Letter (VAIL) can work alongside your other estate planning documents and provide guidance to the person administering your estate. The VAIL can contain the passwords and logins for your accounts along with directions. Logins and access to financial institutions should be controlled by the Will or Trust but you may want to list them here as well but that is not what VAILs are typically designed to manage.
I would use a VAIL to give instructions about who you want to have copies of your emails or photos after your death. For example, you may have quite a bit of email correspondence with your grandchildren in a gmail account and you may want to provide copies of those emails to them.
For those of you who have monetized Youtube, Instagram or other accounts I would contact an estate planning attorney to advise you on the managing those accounts.
6. Beneficiary Designations and Payable on Death
Certain property does not need to pass through probate in order to be transferred to your heirs or devises. Most often this non-probate property are accounts that allow you designate a beneficiary. These accounts are basically contracts between you and the company holding your account. When you pass away the company will pay or allow access to the account without going through probate.
I explain beneficiary designations and non-probate property in more detail in a previous post. This most important thing to remember is to keep your beneficiary designations up to date and to review them regularly.
7. Specialty Trusts
There are many other specialty trust that are used in estate planning. The most common are Special Needs Trusts, Gun Trusts and Pet Trusts.
Special Needs Trusts
Special Needs Trusts are designed to hold property for a disabled person while at the same time allowing them to utilize government benefits. When creating a special needs trust, great care should be taken so that any government benefits under medicaid or SSI are not disrupted. I will discuss Special Needs trusts in more depth in a later post.
National Firearm Act Gun Trusts
These are trusts created to hold and purchase weapons regulated under the National Firearms Act. The purpose of a Gun Trust is to eliminate much of the burden of owning and transferring what are known as Title 2 devices (machine guns, sawed-off shotguns, grenade launchers, etc.) I think most of the marketing around gun trusts is based on fear mongering but there are some legitimate uses if you have NFA Firearms or a large/unique firearm collection.
Pet Trusts
A pet trust provides for the care of your pet if you are to die or become disabled.
Conclusion
I hope you have found this overview of common estate planning tools helpful. This is by no means an exhaustive list of options nor is it meant as advice for your situation.
If you have any questions please search the blog, contact me or leave a comment below. As always, please read the Disclaimer in the sidebar before commenting. It is there for your protection.
Search the blog and learn more about wills and probate in Oregon.
Disclaimer:
Nothing on this blog constitutes individual legal advice or creates an Attorney-Client relationship.
-
May 2023
- May 8, 2023 What is a Limited Judgment Appointing Personal Representative? May 8, 2023
- May 1, 2023 Where should I keep estate planning documents? May 1, 2023
-
April 2023
- Apr 24, 2023 How do I talk to my elderly parents about estate planning? Apr 24, 2023
- Apr 17, 2023 How do I get started in estate planning? Apr 17, 2023
- Apr 10, 2023 What questions should I ask my estate planning attorney? Apr 10, 2023
- Apr 5, 2023 Giving Appreciated Property to Charity in Oregon Apr 5, 2023
- Apr 3, 2023 How often should an estate plan or will be updated or reviewed? Apr 3, 2023
-
March 2023
- Mar 30, 2023 Is real property located outside of Oregon subject to the Oregon estate tax? Mar 30, 2023
- Mar 29, 2023 How do I find out who the personal representative of an estate is? Mar 29, 2023
- Mar 27, 2023 Why is estate planning so expensive? Mar 27, 2023
- Mar 23, 2023 Can non-residents be subject to the Oregon Estate Tax? Mar 23, 2023
- Mar 22, 2023 How do I sue a personal representative? Mar 22, 2023
- Mar 20, 2023 What are some estate planning steps that can ease financial burdens following the death of a loved one? Mar 20, 2023
- Mar 16, 2023 What is a credit shelter trust? Mar 16, 2023
- Mar 15, 2023 Who is the personal representative of an intestate estate? Mar 15, 2023
- Mar 13, 2023 How does a probate or personal representative bond work? Mar 13, 2023
- Mar 9, 2023 Does Oregon have a gift tax? Mar 9, 2023
- Mar 8, 2023 How can I leave money to my son but not his wife? Mar 8, 2023
- Mar 6, 2023 What is a power of attorney? Mar 6, 2023
- Mar 2, 2023 What is the importance of a schedule K-1 for an estate? Mar 2, 2023
- Mar 1, 2023 Overview of the Oregon Estate Tax Mar 1, 2023
- Mar 1, 2023 Oregon Estate Tax and the Fractional Formula Mar 1, 2023
- Mar 1, 2023 Can My Mother Leave Me Out of Her Will? Mar 1, 2023
-
February 2023
- Feb 27, 2023 What is a pour-over will? Feb 27, 2023
- Feb 24, 2023 How to remove squatters from a deceased person's home. Feb 24, 2023
- Feb 20, 2023 How can a revocable trust avoid a conservatorship? Feb 20, 2023
- Feb 17, 2023 A dead person owes me money, how do I file a claim? Feb 17, 2023
- Feb 16, 2023 What are the Oregon inheritance or succession laws? Feb 16, 2023
- Feb 13, 2023 What is a "revocable trust" or "living trust"? Feb 13, 2023
- Feb 6, 2023 Can property be transferred without probate? Feb 6, 2023
-
January 2023
- Jan 30, 2023 What happens to a bank account when someone dies without a beneficiary? Jan 30, 2023
- Jan 23, 2023 What is a Payable on Death bank account? Jan 23, 2023
- Jan 17, 2023 What happens if I don’t go through probate? Jan 17, 2023
- Jan 9, 2023 Does Oregon have a Transfer on Death deed? Jan 9, 2023
- Jan 2, 2023 What Triggers Probate in Oregon? Jan 2, 2023
- Jan 1, 2023 What is the 65 day rule for estates and trusts? Jan 1, 2023
-
May 2022
- May 10, 2022 Can a Will Avoid Probate? May 10, 2022
-
April 2022
- Apr 25, 2022 How Do You Avoid Probate in Oregon? Apr 25, 2022
- Apr 7, 2022 Must an Estate Go Through Probate in Oregon? Apr 7, 2022
-
March 2022
- Mar 28, 2022 How much does an estate have to be worth to go to probate in Oregon? Mar 28, 2022
-
September 2021
- Sep 3, 2021 We are closed for Labor Day. Sep 3, 2021
- Sep 2, 2021 How Long Does Probate Take in Oregon? (Updated for COVID) Sep 2, 2021
- Sep 2, 2021 How does probate work without a will in Oregon. Sep 2, 2021
-
January 2018
- Jan 18, 2018 2018 Oregon Estate Tax Rates Jan 18, 2018
- Jan 18, 2018 Is a Handwritten Will Valid in Oregon? Jan 18, 2018
-
December 2017
- Dec 18, 2017 Oregon Probate Fees in 2017 Dec 18, 2017
-
August 2017
- Aug 2, 2017 2017 Oregon Estate Tax Rates Aug 2, 2017
-
March 2017
- Mar 9, 2017 Oregon Probate Inventory Mar 9, 2017
-
November 2016
- Nov 26, 2016 Basics of an Oregon Estate Plan (Part 3) Nov 26, 2016
- Nov 8, 2016 Basics of an Oregon Estate Plan (Part 2) Nov 8, 2016
- Nov 1, 2016 Basics of an Oregon Estate Plan (Part 1) Nov 1, 2016
-
October 2016
- Oct 24, 2016 Duties of an Oregon Personal Representative Oct 24, 2016
-
September 2016
- Sep 6, 2016 Oregon Estate Planning Timeline Sep 6, 2016
-
June 2016
- Jun 23, 2016 How Long Does Probate Take in Oregon? Jun 23, 2016
- Jun 20, 2016 How to File for Probate in Oregon Jun 20, 2016
-
May 2016
- May 17, 2016 When is Probate required in Oregon? May 17, 2016
- May 6, 2016 Oregon Probate Bond May 6, 2016
- May 5, 2016 Oregon Personal Representative Checklist May 5, 2016
- May 3, 2016 Compensation of Personal Representative in Oregon May 3, 2016
-
April 2016
- Apr 29, 2016 2016 Oregon Estate Tax Rates Apr 29, 2016
- Apr 25, 2016 Probating Joint Bank Accounts in Oregon Apr 25, 2016
- Apr 19, 2016 How much does Probate cost in Oregon? Apr 19, 2016
-
March 2016
- Mar 3, 2016 What is a Guardianship in Oregon? Mar 3, 2016
-
February 2016
- Feb 26, 2016 Elements of an Oregon Estate Plan Feb 26, 2016
- Feb 24, 2016 Faith Based Estate Planning in Oregon Feb 24, 2016
- Feb 23, 2016 March Events Feb 23, 2016
- Feb 16, 2016 Self-Made Rich are more Generous Feb 16, 2016
- Feb 10, 2016 What Happens to assets if an Estate isn't Probated in Oregon? Feb 10, 2016
- Feb 8, 2016 Oregon Probate Jurisdiction Feb 8, 2016
- Feb 5, 2016 Do You Really Want to Die Rich? Feb 5, 2016
- Feb 4, 2016 2016 Oregon Legislation to watch Feb 4, 2016
- Feb 2, 2016 Probate Pitfalls (Investing Estate Assets) Feb 2, 2016
-
January 2016
- Jan 14, 2016 Intestate Succession in Oregon Jan 14, 2016
- Jan 13, 2016 Estate Planning for Unmarried Seniors Jan 13, 2016
- Jan 12, 2016 What does an Oregon Probate Attorney do? Jan 12, 2016
-
December 2015
- Dec 31, 2015 End of Life Decision Making in Oregon Dec 31, 2015
- Dec 21, 2015 Free Oregon Estate Planning Workshop Dec 21, 2015
- Dec 17, 2015 Non-borrowing surviving spouse can retain home subject to Reverse mortgage Dec 17, 2015
- Dec 15, 2015 Free Oregon Small Estate Affidavits Dec 15, 2015
- Dec 3, 2015 Estate Planning for Digital Assets Dec 3, 2015
-
October 2015
- Oct 29, 2015 2015 Budget Deal putting an end to "File-and-Suspend" Social Security strategy Oct 29, 2015
- Oct 21, 2015 End of Year Estate Planning Oct 21, 2015
- Oct 12, 2015 Disinheriting Parents in Oregon Oct 12, 2015
- Oct 1, 2015 Inheriting Property when there is no Will. Oct 1, 2015
-
September 2015
- Sep 29, 2015 Negative Wills in Oregon Sep 29, 2015
- Sep 25, 2015 2016 Oregon Probate Law Modernization Sep 25, 2015
- Sep 21, 2015 The Probate Process in Oregon Sep 21, 2015
- Sep 15, 2015 2015 Oregon Estate Tax Rates Sep 15, 2015