There are many details that must be cared for when someone passes away. In addition to taking care of funeral plans, the mourning family must also think about settling the decedent’s estate. Under Oregon Probate Law, Or. Rev. Stat. § § 111.005 et seq., a decedent’s estate must go through an administration process called probate before their property can be distributed and ownership legally transferred to others. In Oregon, the Circuit Court has jurisdiction over probate matters and serves as the probate court. During the process, the personal representative appointed by the court manages the decedent’s estate and ensures that it is settled in the manner the law requires.
Probate is initiated when someone, usually the personal representative named in the will, files a petition with the court to approve the will and appoint the personal representative to serve as the fiduciary for the estate. Typically, the court appoints the person that the decedent nominated in the will. After the will is accepted, the estate must go through an administration process. Estate administration is generally required regardless of whether there is or is not a will.
The personal representative is responsible for managing the estate through probate. There are multiple steps that must be completed including securing and appraising the assets in the estate, paying estate debt, and distributing assets. Each of these steps have legal implications. Failure to complete as required by Oregon law can result in delays in the probate process and asset distribution.
During the process of probate, disagreements sometimes develop that result in probate litigation. Probate litigation is a legal proceeding during which parties to a probate proceeding take their dispute to court to be settled.
Litigants in a probate dispute may include the personal representative, beneficiaries, heirs, claimants, and other fiduciaries. There are many issues that can lead to probate litigation such as a challenge to the validity of the will. Probate litigation that involves a will challenge is referred to as a will contest. Beneficiaries may disagree with the personal representative about how to interpret terms of the will. When terms of the will are open to competing interpretations, probate litigation may be initiated to have the court settle the conflict. Other types of disagreements may include beneficiaries or heirs challenging how the personal representative has fulfilled their duties and responsibilities or beneficiaries disagreeing about ownership of assets in the estate.
If the decedent did not leave the will, there are some differences in the administration process. The personal representative is not nominated in the will. Instead, the person is named by the court based on a statutory order of preference. Also, in the absence of a will there are no instructions as to how the property is to be distributed. Oregon’s law of intestate succession dictates who inherits. Or. Rev. Stat. § § 112.015 et seq. Typically, it is the surviving spouse and children. However, if there are neither, then the law states who is the next of kin entitled to inherit. If there is a question as to whether a person who comes forward and claims entitlement to inherit, a kinship hearing may be necessary to establish relatedness.
Oregon’s Simplified Probate Procedures
Though necessary, the probate process is cumbersome and long. In fact, in Oregon, probate can take 4 months and is often longed based on the complexity of the estate and complications that develop during the process.
For small estates, Oregon created a much less cumbersome and a much quicker alternative. The simplified process, like the formal process, starts with filing paperwork with the clerk at the circuit court that has jurisdiction over the decedent’s estate. However, instead of filing a petition for probate, the personal representative, a beneficiary, or an heir would file a Small Estate Affidavit. There is a 30-day waiting period following the death before the affidavit can be filed.
To qualify for this the process, the value of the estate must not exceed $275,000. Of that amount, a maximum of $75,000 can be personal property and a maximum $200,000 can be real estate. Or. Rev. Stat. § § 114.515 et seq.
Upon approval, the affiant would have the authority and responsibility to settle the decedent’s estate, including paying debt and distribution of assets.