Answers to common questions about probate and the probate process from an Oregon Probate Lawyer.
When a person dies who does not have a living trust their estate should be probated. Probate is the government-structured process by which the property of the deceased person is transferred to the people that are legally entitled to that property. Probate secures title to property and also allows the decedent’s potential heirs and lenders an opportunity to collect property owed to them from the estate.
If a person leaves a valid Last Will and Testament then the people who will receive the decedent's property are those people named in the Will. Sometimes a decedent's spouse or family member may attempt to dispute a Will. A common basis for arguing that a Will is invalid is that the decedent was not mentally capable when he or she created the Will and/or was under influence or intimidation by a party who is named as a beneficiary in the Will to so name that beneficiary.
If the deceased person left no will or left an invalid will then the property will pass to the deceased person's family members by the Rules of Intestacy. The decedent's spouse is also entitled to a percentage of the estate based on the amount of years that the marriage lasted. The spouse's share is called the elective share.
Types of Probate
There are two main types of probate. Small Estate Probate and Regular Probate. The difference between them is the value of the estate which is being probated. In Oregon all probate petitioners (the person who starts the probate process) must work with an attorney to probate an estate.
Small Estate Probate
The simplest form is a small estate probate. To qualify for this process the fair market value of personal property in the estate must be less than $75,000 and the fair market value of real property in the estate must be less that $200,000. The fee to file a small estate probate affidavit which starts the probate process is $111. An original death certificate and a Will (if the person died with a Will) must be submitted to the state along with the affidavit. The small estate can be probated in the county where the person died or the county where the person had a home or the county where the person had property.Some of the laws concerning probate of small estates are:
- ORS 211.145(4) and ORS 114.515(6) – Filing Small estate affidavit (Cost of $111)
- ORS 21.135(1),(2)(h) and ORS 114.552(1) – Petition for summary determination of claim or petition for summary review of estate (Cost of $252).
Small estate probates are the quickest and cheapest form of probate in Oregon.
The Regular probate process comes into play when the property in the estate is valued over the limit for small estates. The filing fees for regular probate estates depend on the value of the estate. For estates valued above $50,000 but less than $1,000,000 the filing fee is $531. For estates that are valued at more than $1,000,000 but less than $10,000,000 the filing fee is $793.
If the decedent (the person who died) had a Last Will then the Personal Representative named in the document will probate the estate with the help of an attorney. If the decedent died without a Will then one of the Decedents heirs (child, sibling, other close family member) will probate the estate with the help of an attorney.
Some of the major steps in the probate process are:
Petition to open probate and appoint a Personal Representative – This begins the Probate Process.
Publishing notice in a newspaper that a person has died and that probate is being done. The point of publication is to put creditors and potential heirs on notice of the probate proceeding so they may make a claim against the estate.
- Notice to DHS and OHP
The Personal Representative must notify the department of human services and the Oregon health plan of the probate proceedings. This notice serves the same purpose as publication except this time the notice is directed towards government agencies so that they can make a claim against the estate if the decedent owed any money for public assistance such as Medicaid.
Submit an accounting of all the assets of the estate. All of the property values of the estate are calculated as well as the debts of the estate. The amount of the estate will then be divided by the number of beneficiaries to calculate each beneficiary's share. Typically an estate bank account is set-up so that funds can be transferred out of the decedent's various accounts into one account. The Personal Representative can also write checks to pay for estate expenses out of the estate bank account.
- Payment of taxes
All taxes owed by the decedent must be paid off. In addition, if the estate is valued at over $1,000,000 then Oregon estate taxes will be due.
- Final Accounting and Judgment of disbursal
There can be no sale of estate assets for a 4 month period after the Personal Representative is appointed. This is the period of time the court gives creditors and other claimants to come forward and make a claim. After the 4 months the Personal Representative can submit paperwork to the court for the judge's signature that gives a final accounting of estate assets, administration costs, and the values for disbursal to the beneficiaries. Once the Court signs the final Judgment the property can be sold and the proceeds will be distributed to the beneficiaries or the property can be retained and split up equitably among the beneficiaries.
At every step of this process paperwork must be submitted with the appropriate Oregon Circuit Court to show that the Personal Representative and the attorney working on the probate are following all of the applicable rules. A good record of receipts and paperwork should be kept for all expenses, distributions, and other financial transactions conducted concerning the estate in case the court requests any of these documents.
DISCLAIMER: The numbered points above are by no means a cumulative review of the probate process. Please contact an attorney if you wish to probate an estate.