I often receive questions regarding Oregon’s probate process. Here is some information to explain the two different probate processes in Oregon.
FULL PROBATE IN OREGON
Determining if Probate is Necessary
The purpose of the probate process is to transfer ownership of property to the heirs or beneficiaries of a deceased individual. In order to determine if probate is necessary, the ownership of the decedent’s property must be reviewed. All items held in the individual name of the decedent, without joint ownership and without a beneficiary designation, must be probated.
In order to begin the probate process, it must be determined if a person died “Testate” or “Intestate.” If a person died having a valid will, this is considered a “Testate” estate and the court will administer the estate according to the deceased individuals’ will. If a person dies without a will, they are determined to have died “intestate.” Oregon has very clear statutes that outline intestate succession, or who is to inherit.
The court will need to appoint an individual to act on behalf of the decedent as well as the beneficiaries of the estate. This person is called a personal representative. In order to be appointed, the person who is determined to act on behalf of the estate will need to file pleadings with the circuit court in the appropriate county. These pleadings will ask to have the personal representative appointed and request administration of the estate by opening the probate. The court will need to be informed of all heirs of the decedent and where they are located. The personal representative will then have to notify all heirs of the estate of the personal representative’s appointment and that the probate has been opened. Along with notification of all heirs of the estate, all creditors of the decedent must also be notified. As part of this notification, a Notice to Creditors must be published in a local newspaper giving creditors four months to file a claim against the estate.
The personal representative will then begin gathering all assets that the decedent owned and itemize them for the court. This is called an estate inventory. The assets must be safely held during the probate process. As part of this process, the personal representative must keep the court informed if any new assets are located.
To complete the probate process, the personal representative files a Final Accounting with the court, which outlines all assets of the decedent, any funds paid out from the estate during the process, any attorney fees or administrative costs to be paid from the estate, reimbursement of any expenses to the personal representative, payment of a personal representative fee, if any, and any activity for which the court needs to be made aware. The court must approve this accounting before final distribution can be made. Once the final accounting has been approved, final distribution can be made, the probate can be closed, and the personal representative may be discharged.
Outside of the probate court, the personal representative is also responsible for making sure all appropriate income and estate tax filings are properly filed. It is usually recommended that the personal representative employ an accountant or CPA to assist with this portion of the process.
During every step of the probate, the court must be informed of the status and what has been done. There is a large amount of paperwork involved in the probate process in Oregon and many of the documents must be filed in a specific order with specific times frames. Courts often suggest utilizing the assistance of an attorney for this process. In fact, many courts will require the personal representative to enlist the assistance of an attorney as the process can be time consuming and complex. An attorney can help streamline the process and ensure everything is administered according to Oregon law, the court is properly informed, and all appropriate notices are sent.
SMALL ESTATE PROBATE VS FULL PROBATE
The state of Oregon provides two types of probates for when an individual has passed away leaving behind assets in their individual name. In order to qualify as a small estate, the total estate value for all personal assets may not exceed $75,000.00 and all real property assets may not exceed $200,000.00. The value must be determined using the fair market value of the property. Personal property includes, but is not limited to, bank accounts, vehicles, household items, collectibles, artwork, antiques, etc. As in a full probate, estate assets include everything that the decedent owned in his or her individual name without joint ownership or a beneficiary designation.
A small estate is a simpler process for transferring assets of a deceased individual. The case is initiated by filing a pleading with the court called an “Affidavit of Claiming Successor.” This is a sworn statement and can be filed by a legal heir of the estate or a person named in a will. This individual is called a “Claiming Successor” or an “Affiant.” The Affiant of a small estate must wait a minimum of 30 days after the date of the decedent’s death before filing the affidavit with the court.
Similar to a full probate, once the Affidavit has been filed, notices must be sent to all heirs of the estate along with any creditors of the decedent. The Affiant must then allow creditors four months to file a claim against the estate.
Once four months has expired, the Affiant can then pay creditors and complete the distribution of the remaining estate assets. Unlike a full probate, there is not a final document to submit to the court regarding final distribution.