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Probate

In order to collect, manage, or distribute the assets of an individual who has died, a petition to the court to open probate is likely required. Having a probate attorney to assist you in the administration of a probate estate will help ensure that the notice and filing deadlines, as well as the other paper work required, meets the requirements of Oregon Probate law. Call 503-990-6641 for a FREE consultation or fill out the contact form to meet and discuss your questions with an affordable probate attorney in Salem, Oregon.

What is probate?

Probate is the legal procedure used for settling the affairs of an individual who has died (the “decedent”). The administration of a probate estate is supervised by the court and is the method used for transferring the decedent’s property to their beneficiaries or heirs. Probate is also the process used to validate a will (if one exists), to appoint a personal representative to administer the estate, and to settle the debts of the decedent.

Probate property includes all property owned solely by the decedent which, at their death, does not transfer automatically to their heirs. Non-probate property is property that is automatically transferred at death. Non-probate property includes assets held jointly with a spouse or others through rights of survivorship. Non-probate property also includes payable on death (POD) and transfer on death (TOD) accounts; including life insurance policies, IRAs, 401(k)s, and annuities. These assets will avoid probate.

How does the probate process work in Oregon?

Probate Petition. In order to initiate probate in Oregon, a petition must be filed with the probate court along with the original will of the decedent (if one exists) and a copy of the death certificate. If the decedent had a will, the estate is called a “testate” estate. If the decedent died without a will the estate is an “intestate” estate. A testate estate is distributed in accordance with the terms of the will and an intestate estate is distributed in accordance with Oregon’s law

Letters and Bond. The initial probate petition seeks the appointment of a personal representative. This person is the one responsible for collecting, managing, and distributing the probate estate assets. If the proposed personal representative is willing and qualified to serve, the judge will sign an order naming that person as personal representative, and the court will issue “Letters Testamentary” or “Letters of Administration” to them. These letters are the official court documents giving the personal representative the authority to conduct estate business and settle the affairs of the decedent. In some cases, the probate court will require the personal representative to purchase a bond before the letters will be issued.

Notice. Oregon probate law requires that, following issuance of letters of administration, notice to interested persons (creditors and heirs) be published in the local newspaper and mailed to the heirs and devisees. A potential creditor has four months within which to file claims against the estate. If a creditor fails to present claims within the allotted time those claims may be barred.

Inventory. Once notice is complete, and within 60 days of the appointment of a personal representative, an inventory of all the probate property must be filed with the court.

Collection and Management of Probate Property and Taxes. The personal representative of the probate estate has the responsibility of collecting and managing all the decedent’s probate property. If a federal or state income tax return, or an estate tax return is required, it must be filed within 9 months after the date of the decedent’s death.

Payment of Creditors and Distribution of Probate Estate. When the taxes have been filed and the creditors have been paid, the estate is ready for distribution. An accounting is filed with the probate court that includes a petition for distribution of the estate assets to the beneficiaries, and a request that attorney fees, personal representative fees, and any other administrative fees be paid. After the accounting has been approved by the probate court, distributions can be made to the beneficiaries.

Final Accounting. Once everything is finalized and the receipts for distribution of the estate assets are filed with the probate court, the personal representative can be discharged and the probate estate closed.

How long does Oregon probate take?

Probate takes a minimum of four months. However, many factors, such as the estate holding property that must be sold, can make the probate process last much longer.

How much does probate in Oregon cost?

The costs involved in a probate proceeding include the court filing fee, which is based on the value of the estate; the cost of publication of legal notices; property appraisals; tax preparer fees; and the cost to secure a bond, if one is required. In addition, Oregon law allows a personal representative to collect a fee based on a fixed percentage of the value of the total estate. A probate attorney, whose fee is based on an hourly rate, will be an additional expense incurred by the estate as part of the probate proceedings.

What is a “small estate” proceeding?

In Oregon, a “small estate” proceeding is a simplified procedure for settling an estate that would otherwise require full probate. For an estate that qualifies, the cost and time required before assets are distributed can be significantly reduced. In order for an estate to qualify for this simplified procedure the total value of the estate cannot be more the $275,000, of which the value of real property cannot exceed $200,000 and the value of personal property cannot exceed $75,000. (These rates are subject to change). An Oregon estate planning or probate attorney can advise you as to whether a small estate proceeding is available or if the estate requires the more formal probate procedure.