How to File for Probate in Oregon

The first step of the Probate Process in Oregon is to file a petition for the appointment of a personal representative and probate of a will.   The steps for filing with the Probate Court are:

1. Gather Documents.  This includes Wills and other Estate Planning Documents.  You will also want to look for financial documents that may determine whether the property is subject to probate.
2. Petition the Court.  You will file a petition with the Probate Court asking to be appointed the Personal Representative and to admit the Will, if any.
3. Judgment appointing Personal Representative.  The  Probate Court will enter a judgment based on your petition and on the Will appointing you (the petitioner) as the Personal Representative.
4. Issuance of Letters Testamentary or Letters of Administration.  The Probate Court Clerk will issue the Letters Testamentary or Letters of Administration after the Probate Court has entered its judgement.

Depending on your circumstances, the petition can be very complicated or very straight forward.   

When is Probate required in Oregon?

Do I have to file for probate in Oregon?

Probate is not always needed or desirable when someone dies in Oregon.  There are instances when property transfers without having to go to court.  Other times, probate is the only way to transfer the property from the person who died to the heirs.

When is Probate needed?

1. To transfer property or real estate that is titled in the deceased person.  This is most common when there is real estate that is titled only in the name of the deceased person but may also be need when there are bank accounts and investment accounts.

2. To resolve conflicts among the heirs.  The children and family of the deceased person may not agree about the authenticity of the will or may have other issues involving the estate.

3. To collect debts and enforce other rights.  People may owe the deceased person money or have other obligations that can be enforced by the personal representative of the estate.

When is Probate not needed?

1.  There are no assets or the assets are not titled. 

2.  Transfer-On-Death and Payable-On-Death selections were made and the assets were transferred to the beneficiary automatically.

3.  The property was jointly owned and transferred to the co-owner automatically at death.

If you have more questions about the Probate Process in Oregon you can read articles in the blog, visit our Probate practice or ask me a question. 

Oregon Probate Bond

What are Probate Bonds?

A probate bond is a bond issued to protect the heirs and creditors of an estate from the negligence or dishonesty of a personal representative.  A personal representative may have sloppy bookkeeping or does not properly and timely deal with claims of the estate.  Less often, the personal representative may act dishonestly and steal the assets or gamble them away.  In these situations a bond will protect the heirs and creditors from the loss.

When are Probate Bonds Required in Oregon?

ORS 113.105 describes the necessity and amount of bond.  Generally speaking, if a will says that no bond shall be required or if the personal representative is the sole heir or devisee no bond will be required.  

If the will requires a bond, or doesn't mention bonding, or if the person died without a will and has multiple heirs, the court will require that a bond be filed with the court before letters of administration or testamentary are issued.  

The court also has discretion to require a bond even if the will says no bond is necessary.  

How Large of a Probate Bond will be Required?

The court looks at three things in order to determine the amount of bond:

1. The nature, liquidity and apparent value of the assets of the estate.
2. The anticipated income during administration.
3. The probable indebtedness and taxes.

The court is required by statute to ensure that the bond is adequate to protect interested persons of the estate.

Qualifying for a Bond.

The bond will be issued to the personal representative by a surety company authorized to transact surety business in this state.  The surety company will look at the personal representatives credit report and assets when deciding the amount the personal representative qualifies for.  

If the personal representative doesn't qualify for bond required by the court, other options have to be explored.

1. Finding a personal representative that does qualify for the bond.  This can be done by having the personal representative nominated in the will or preferred by statute decline to serve.
2. Restricting estate assets.  Typically the real estate (houses) of the deceased are listed as restricted in the petition.  This restriction prevents the real estate from being sold without a court order.  Because real estate is usually the largest asset of the estate, this will reduce the bond greatly.
3. Waiver of Bond by interested parties.  The court may, in its discretion, "waive the requirement of a bond if all devisees and heirs known to the court agree in writing that the requirement be waived and the signed agreement is filed with the court at the time of filing of the petition for the appointment of a personal representative." ORS 113.105(4)

If you have any additional questions regarding bonding or probate in general, search the blog in the box on the right or feel free to contact me.

Oregon Personal Representative Checklist

What to do when someone dies in Oregon.

The death of a loved one is a trying time for all families.  There are several items that should be found and steps taken so that the transition will be easier.

Documents

1. Will, Trusts or any estate planning documents of the deceased.   A Will must be submitted to the court in order to admit the Will to probate and to appoint the Personal Representative.   You can find more information about the Probate Process in Oregon and other probate topics on the blog.

2. Life Insurance Policies.  Up-to-date originals of the policies may be needed to claim the proceeds of the policy.

3. Car Titles.  Titles to any automobiles, boats, trailers or any other vehicle that the deceased may have owned.

4. Deeds.  Any document that proves ownership of real estate.  If it's necessary, you can obtain these from your local county.

5. Stock, Bond or Deposit Certificates.  Any document that proves ownership of a financial instrument.

Tasks

1. Death Certificates.  You can obtain death certificates from vital statistics but typically a funeral home will order them for you.  Death certificates are used to prove death and are useful for many legal and financial reasons.

2. Records and documentation. It is important that accurate records are kept of all bills paid, money deposited and spent, and every other transaction of the estate. 

3. Forward Mail. Forward the mail with the Postal Service of any business or personal of your loved one.  Review the mail regularly for any bills or other important documents.

4. Safe Deposit Box. Locate and inventory any safe deposit box that the deceased may have had. 

5. Inventory Assets.  Make a list of all assets.  If necessary, obtain date of death valuations from banks and brokers. 

6. Taxes. The estate may owe property and income taxes.  The timing and valuation of assets can be important so talk to an attorney and a CPA before paying taxes.

7. Records and documentation. Because it is what most commonly gets people in trouble I'll say it again.  It is important that accurate records are kept of all bills paid, money deposited and spent, and every other transaction of the estate. 

This is an overview of the most common tasks that a personal representative needs to perform in Oregon.  If you have any questions feel free to contact me or search the blog.

Compensation of Personal Representative in Oregon

Personal Representative Fee

In Oregon, the personal representative of a probate estate is entitled to compensations for the services provided to the estate.  The personal representative must apply for the fee from the court.  By statute, ORS 116.173, the compensation is based on the value of the estate.

Property subject to the Jurisdiction of the Court (Probate Property)

Probate Property Value	Compensation
Less than $1000	7%
Above $1,000 and not exceeding $10,000	4%
Above $10,000 and not exceeding $50,000	3%
Above $50,000	2%

Property not subject to the Jurisdiction of the Court (Non-Probate Property)

Non-Probate Value	Compensation
All property, exclusive of life insurance proceeds, not subject to the jurisdiction of the court but reportable for Oregon inheritance or estate tax or federal estate tax purposes.	1%

Additional Compensation

The personal representative may be entitled to additional compensation "as is just and reasonable"  that is extraordinary and unusual circumstances.  The personal representative must request the additional compensation from the court.

Special Provisions in the Will

The Will of the estate that is being administered may have made a special provision for the compensation of the personal representative.  In these situations, "the personal representative is not entitled to any other compensation for services unless prior to appointment the personal representative signs and files with the clerk of the court a written renunciation of the compensation provided by the will."   

If you have any questions regarding the administration of an estate or how the probate process works, please search the blog or contact me.  

2016 Oregon Estate Tax Rates

The Oregon Estate Tax rate for 2016 is left unchanged from 2015.

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%

Probating Joint Bank Accounts in Oregon

Who Gets the Money in the Joint Checking Account?

People often open a joint account with a child or caretaker so that they can help take care of bills and expenses as they age.  This is typically done for convenience but once that person dies determining who owns the money in the account may not be as easy as you think.  

Under ORS 708A.470, the sums remaining in a bank at the death of a party to a joint account are rebuttably presumed to belong to the surviving party.   What this means in is that the child or caretaker on the account owns the remaining money but you may be able to fight it.  Most people assume that the Will determines who receives the money in the account.

The rebuttable presumption under ORS 708A.470 may be overcome by evidence that the deceased party (1) intended a different result; or (2) lacked capacity when the joint account was established.  

Although not as convenient as opening a joint account, there are many other ways to plan your estate so that you can be protected as you age.  I've written about them here.

How much does Probate cost in Oregon?

One of the most common questions I am asked is how much the administration of a probate estate will cost the beneficiaries.

Probate Administration Costs

For 2016, the cost of filing for probate is $531 for the majority of estates.   The court also charges an accounting fee and that is determined by the value of the estate.  The public notice in the local paper runs between $100 and $500 depending on what part of Oregon you are filing in.  If the person died without a Will, the court will normally require a bond.  There may also be costs associated with selling property.  

Probate Legal Fees

Attorneys' fees in Oregon are based on the number of hours billed and the lawyer's hourly rate.  For the simplest of probates, the fees can be around $2000.  In general, probate legal fees will run between $3,000 and $5,000.    If the estate is large, complex or has unusual assets, the costs can be much higher.  If the heirs and beneficiaries are fighting or if there is outside litigation involved, the costs can be much higher.

All legal fees for the probate administration must be approved by the court.  Your probate lawyer will file with the court and with interested parties.  The court will make a determination on whether the fees are reasonable in light of a narrative and itemized bill.  This is a major protection for any beneficiary.  Judges will see thousands of attorney fee statements during their careers and will know what is reasonable.   Any interested party can object to fee and be allowed to speak the judge at a hearing.

If you have questions, please feel free to contact me below.  I've also answered more questions on the Frequently Asked Question.  You can also learn more about Oregon Probate on my practice area page.

 

What is a Guardianship in Oregon?

What is an Oregon Guardian?

In Oregon, a guardian is responsible for the medical and other care decisions of someone else.   Guardians are appointed by the court and are legally responsible for the person under their care.  Typically, these are children younger than 18 years old or adults that do not have the ability to care for themselves.  Under Oregon law, "A guardian may be appointed for an adult person only as is necessary to promote and protect the well-being of the protected person."

What does a Guardian do?

A guardian makes decisions for the benefit for the person entrusted to them.  Oregon law describes the job of a guardian as:

125.315 General powers and duties of guardian

A guardian has the following powers and duties:

(a)Except to the extent of any limitation under the order of appointment, the guardian has custody of the protected person and may establish the protected persons place of abode within or without this state.

(b)The guardian shall provide for the care, comfort and maintenance of the protected person and, whenever appropriate, shall arrange for training and education of the protected person. Without regard to custodial rights of the protected person, the guardian shall take reasonable care of the persons clothing, furniture and other personal effects unless a conservator has been appointed for the protected person.

Guardians have many other duties described in the law.  Please consult with a professional if you are a guardian and you have any questions regarding your duties and obligations. 

How are Guardians appointed in Oregon?

In order to be appointed a guardian you must petition the court.  Then the court will appoint a "visitor" to interview both the person nominated in the petition to be the guardian and the protected person.

Once the visitor has completed their investigation, they will file a report with the court.  The court will then decide if there is evidence to support the petition and appoint a guardian.

Guardian's report for adult persons.

Guardians of adult protected persons must file a guardians report annually within 30 days of the anniversary of the appointment date.  The form is court mandated.

I hope that this post helped you understand some of the basics of Oregon Guardianships.  If there is anything that I missed, please leave a comment below.  You can also visit the Guardian and Conservator Association of Oregon for much more information on the subject.