How Do the Children Collect Their Share of a Parent's Estate in Oregon?
Full Question:
Answer:
The answer will depend on whether or not he left a will leaving everything to the wife or not. You can the clerk of courts at the probate court in the county where he resided to see if a will has been filed. You can also petition to have the will filed under the statute below. If there was no will and he died intestate, the children who were not also children of the second wife would be entitled to half the probate estate under intestacy law. Certain joint assets, such as a house held as joint tenants with right of survivorship may pass directly to the joint surviving owner outside of probate.
Generally, when a person dies, the estate passes as a will specifies or else it is distributed according to state intestacy distribution laws. An intestate estate is any part of the estate of a decedent not effectively disposed of by his will, which passes to his heirs as prescribed in the applicable state's laws of intestate succession. The estate of a decedent who dies intestate is distributed according to the intestacy laws where the decedent was domiciled and/or where the decedent owned real property. Under the intestate laws of succession, the spouse and heirs will receive property by the laws of descent and distribution and marital rights in the estate which may apply to a surviving spouse. Each state has an intestacy law which specifies who is to inherit property in the absence of a will. If a person dies without a will, the probate court will appoint a personal representative (or administrator) for his or her estate to receive creditors' claims against the estate, pay debts, and distribute the deceased person’s remaining property according to state laws.
Please see the following OR statutes:
112.025 Share of surviving spouse if decedent leaves issue.
If the decedent leaves a surviving spouse and issue, the intestate share of the surviving spouse is:
(1) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the entire net intestate estate.
(2) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the net intestate estate.
113.035 Petition for appointment of personal representative and probate of will.
Any interested person or executor named in the will may petition for the appointment of a personal representative and for the probate of a will. The petition shall include the following information, so far as known:
(1) The name, age, domicile, post-office address, date and place of death, and Social Security account number or taxpayer identification number of the decedent.
(2) Whether the decedent died testate or intestate.
(3) The facts relied upon to establish venue.
(4) The name and post-office address of the person nominated as personal representative and the facts that show the person is qualified to act.
(5) The names, relationship to the decedent and post-office addresses of persons who are or would be the heirs of the decedent upon the death of the decedent intestate, and the ages of any who are minors.
(6) A statement that reasonable efforts have been made to identify and locate all heirs of the decedent. If the petitioner knows of any actual or possible omissions from the list of heirs, the petition must include a statement indicating that there are omissions from the information relating to heirs.
(7) If the decedent died testate, the names and post-office addresses of the devisees, and the ages of any who are minors. If the will devises property to a person who did not survive the decedent or who is otherwise not entitled to receive the devise, the petition must include a statement explaining why the devise failed. If the petitioner knows of any actual or possible omissions from the list of devisees, the petition must include a statement indicating that there are omissions from the information relating to devisees.
(8) The name and post-office address of any person asserting an interest in the estate, or on whose behalf an interest has been asserted, based on a contention that:
(a) The will alleged in the petition to be the will of the decedent is ineffective in whole or part;
(b) There exists a will that has not been alleged in the petition to be the will of the decedent; or
(c) The decedent agreed, promised or represented that the decedent would make or revoke a will or devise, or not revoke a will or devise, or die intestate.
(9) The name and post-office address of any person asserting an interest in the estate, or on whose behalf an interest has been asserted, based on a contention that a parent of the decedent willfully deserted the decedent or neglected without just and sufficient cause to provide proper care and maintenance for the decedent, as provided by ORS 112.047.
(10) Whether the original of the last will of the decedent is in the possession of the court or accompanies the petition. If the original will is not in the possession of the court or accompanying the petition and an authenticated copy of the will probated in another jurisdiction does not accompany the petition, the petition shall also state the contents of the will and indicate that it is lost, destroyed or otherwise unavailable and that it was not revoked.
(11) A statement of the extent and nature of assets of the estate, to enable the court to set the amount of bond of the personal representative.
