Must an Estate Go Through Probate in Oregon?

Probate is a legal process in which the decedent’s debts are settled, and their remaining assets are distributed to the appropriate heirs or devisees. In legal jargon, the “decedent” is the person who passed away. The probate process allows the court to monitor the distribution of the decedent’s assets in accordance with the decedent’s last will and testament. However, if the decedent passed away without a will, the decedent is deemed to have died “intestate”, and the court must follow the state’s intestate laws to determine the proper distribution of the decedent’s assets. 

Why create a Last Will and Testament?

There are many benefits in preparing a will before you pass away, however, the existence of will does not determine whether a decedent’s estate passes through the court’s probate process. The type of property and the value of the property is more indicative of whether the decedent’s estate will require probate. The decedent’s estate is comprised of the property they owned at the time of their death.

Generally, probate is necessary when titled assets were owned exclusively by the decedent, such as real estate, vehicles, or stocks and bonds. Additionally, debts owed by or owed to the estate may require probate to pay and collect on those debts. Lastly, if conflict arises between heirs or the beneficiaries of a will, resolution of those matters may require the probate process.  

What assets don’t go through probate?

Certain types of assets do not require probate. A decedent’s estate can have a mix of assets; some which require probate and others that do not. Some assets that are jointly owned may avoid probate. A common example is a married couple who jointly purchased and owned their home will often have a right of survivorship. This means that the surviving spouse inherits the decedent’s share of the home automatically upon death. Because the transfer is automatic upon death, it does not require probate. Another type of property that avoids probate are accounts or policies with beneficiary designations. This can include retirement accounts or life insurance policies that name a beneficiary that transfers the asset automatically at the time of the decedent’s death. These are just some examples of the types of assets that transfer ownership rights automatically at death and can avoid probate.

Affidavit of Claiming Successor (Small Estates)

The value of the estate can also determine whether probate will be required. Oregon allows small estates to file a Small Estate Affidavit if the estate is valued at less than $275,000; no more than $200,000 for real property and no more than $75,000 from personal property. The value of the property is based on their fair market value at the time of the decedent’s death and should not be reduced by debts or liens. Only assets subject to the probate process need to be calculated in the $275,000 limit. As exampled above, if a surviving spouse inherits assets automatically without probate, it is not included in the calculation of the estate to determine if you fall beneath the $275,000 limit.

Ultimately, probate is not always required and can be avoided with the proper estate planning methods. A will can make the probate process more seamless for your loved ones and is generally a good idea. Having an estate plan can ease stress for yourself and your family.