What happens if I don’t go through probate?

If probate is not done in Oregon, it can have a number of consequences for the estate and the heirs or beneficiaries of the deceased person. Probate is the legal process of administering the estate of a deceased person, which includes identifying and collecting the person's assets, paying any outstanding debts and taxes, and distributing the remaining assets to the beneficiaries according to the terms of the person's will or the laws of intestate succession.

If probate is not done, it can be difficult to determine who is entitled to the assets of the estate and how they should be distributed. This can lead to disputes among the heirs or beneficiaries, which can be time-consuming and costly to resolve. In addition, it may be difficult to sell or transfer ownership of assets that are owned by the estate, such as real estate or financial accounts.

Furthermore, the assets of the estate may not be properly protected and may be vulnerable to theft or mismanagement. For example, if the estate includes a bank account that is not properly closed or transferred to the beneficiaries, the funds in the account may be at risk.

In summary, if probate is not done, it can lead to a number of complications for the estate and the heirs or beneficiaries, and it can also put the assets of the estate at risk. It's generally advisable to complete the probate process in a timely manner in order to ensure that the deceased person's affairs are properly taken care of and that their assets are protected.

What Triggers Probate in Oregon?

Without someone filing a petition with the court, nothing will trigger probate in Oregon.  The better question to ask is: When is Probate Required in Oregon?

Probate is a legal process that occurs after a person's death and involves the distribution of their assets according to their will or state laws. In the state of Oregon, probate can be required in several situations.

The most common reason for probate in Oregon is the death of a person who owned property in their own name, without any joint owners or beneficiaries designated. In this case, the probate court will oversee the distribution of the deceased person's assets to their heirs or beneficiaries.

Another common reason for probate in Oregon is the need for someone to pursue a legal action in the decedent’s name.  In this situation, the Court will appoint a personal representative. 

It's important to note that not all assets are subject to probate in Oregon. For example, assets that are held in a trust or that have a designated beneficiary, such as a life insurance policy or retirement account, may not go through probate.

If you have any questions, please feel free to contact us.

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.

How much does an estate have to be worth to go to probate in Oregon?

Two basic kinds of Probate in Oregon

In Oregon, you are able to settle a loved one’s estate in two ways depending on the size of the estate.

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Small Estate Probate

Oregon has a simplified process for administering estates that have limited valuations.  These estates can be settled with an Affidavit of Claiming Successor, also called a Small Estate Affidavit.  In order to qualify, the assets must be:

• Less than $200,000 worth in real estate

• Less than $75,000 worth in personal property (including bank accounts and vehicles)

• Less than $275,000 worth in total value

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Normal Probate

For estates with the more than $200,000 in real estate or $75,000 in personal property, Oregon has a more formal probate process.  This probate process is overseen by the court and can take 4 months to several years to complete. 

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Other types of Estate Administrations in Oregon

There are additional types of administrations for estates that have no regular assets. These probates are generally used for wrongful death claims but there are other reasons you may want to open a no asset estate.

If you have any questions, please feel free to contact us.

How Long Does Probate Take in Oregon? (Updated for COVID)

In the Covid Era, estates are taking longer to administer than they were a few years ago. The administration of a probate estate takes a minimum of 4 Months in Oregon.  The typical amount of time is closer to 7 to 10 months depending on the nature of the assets and the backlog at the court house.  

 I have written about the Probate Process in Oregon and created an Oregon Personal Representative Checklist to help my clients better understand the proceedings.  You can also find more information by searching the blog on the right.   

Oregon Probate Fees in 2017

How Much Does Probate Cost in Portland  Oregon?

I have broken down the common court costs and fees that associated with probating an estate in Oregon.  For 2017, the uncontested estates that I helped administer ranged from $2632.50 to $4,950.00.  In contested estates where the heirs are arguing over the validity of a will or the distribution of property, the costs with be much higher.

Breakdown of Probate Legal Fees

Service	Cost
2017 Court Filing Fees	$558.00
Publication Fees	$128.00
2017 Attorney Fee Average (Uncontested Administration)	$4183.59

The averages were calculated from estates I helped administer for my clients in Clackamas, Multnomah and Washington Counties. 

The size of the estate didn't seem to increase the cost of the administration.  Homes in foreclosure and large debts tended to increase the attorney fees the most in uncontested administrations.   The estates that didn't have homes in foreclosure averaged closer to $2,500.  

 

Other Costs

By far the largest cost in the majority of probates in Oregon are the realtor fees.  I have a previous post that goes more in depth into How Much Does Probate Cost in Oregon if you want to learn more.

 

Oregon Probate Inventory

What is required on an estate inventory.

One of the first tasks must be completed during the administration of an estate is the inventory.  The inventory must be completed within 60 (the timeline has been changed to 90 days) days of the appointment of a personal representative and provide estimates of the value of the property as of the date of death.

ORS 113.165 Filing inventory and evaluation

Within 60 days after the date of appointment, unless a longer time is granted by the court, a personal representative shall file in the estate proceeding an inventory of all the property of the estate that has come into the possession or knowledge of the personal representative. The inventory shall show the estimates by the personal representative of the respective true cash values as of the date of the death of the decedent of the properties described in the inventory.

Determining the values of assets is generally straightforward.  You can look at the balance of a bank account or investment account at the date of death.  

Hiring Appraisers

Sometimes the estate will have unusual or unique property that must be appraised.  Oregon law allows the personal representative to hire an appraiser that will be paid by the estate as a necessary expense.

ORS 113.185 Appraisement

(1) The personal representative may employ a qualified and disinterested appraiser to assist the personal representative in the appraisal of any property of the estate the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of property.
(2) The court in its discretion may direct that all or any part of the property of the estate be appraised by one or more appraisers appointed by the court.
(3) Property for which appraisement is required shall be appraised at its true cash value as of the date of the death of the decedent. Each appraisement shall be in writing and shall be signed by the appraiser making it.
(4) Each appraiser is entitled to be paid a reasonable fee from the estate for services and to be reimbursed from the estate for necessary expenses.

Personal Items and Household Goods.

Generally speaking, it is fine to lump the household goods and personal items together on the inventory.  If the items have a substantial value, they should be listed individually on the inventory.  

When determining a "substantial value", most attorneys rely on 26 CFR 20.2031-6 - Valuation of household and Personal effects.

(b) Special rule in cases involving a substantial amount of valuable articles. Notwithstanding the provisions of paragraph (a) of this section, if there are included among the household and personal effects articles having marked artistic or intrinsic value of a total value in excess of $3,000 (e.g., jewelry, furs, silverware, paintings, etchings, engravings, antiques, books, statuary, vases, oriental rugs, coin or stamp collections), the appraisal of an expert or experts, under oath, shall be filed with the return. The appraisal shall be accompanied by a written statement of the executor containing a declaration that it is made under the penalties of perjury as to the completeness of the itemized list of such property and as to the disinterested character and the qualifications of the appraiser or appraisers.

Amended and Supplemental Inventories

Occasionally the personal representative will have to correct or add information to the inventory that was filed with the court.  

When the information filed with the court was incorrect, the personal representative must file an amended inventory to correct that mistake.  

A supplemental inventory is required when the personal representative finds property of the estate after the original inventory has been filed.

Other types of assets

Real estate located outside of Oregon should not placed on the inventory.  Certain beneficial interests may or may not be listed on the inventory.  You should talk to your attorney if you have any questions regarding beneficial interests.

Duties of an Oregon Personal Representative

You've been appointed the Personal Representative.  Now what do you do?

When you are appointed as the personal representative in a will or by the laws of intestate succession, you may and may not be sure what being a personal representative requires.

The duties of a personal representatives are described by statute as:

ORS 114.265, General duties of personal representative

A personal representative is a fiduciary who is under a general duty to and shall collect the income from property of the estate in the possession of the personal representative and preserve, settle and distribute the estate in accordance with the terms of the will and ORS chapters 111, 112, 113, 114, 115, 116 and 117 as expeditiously and with as little sacrifice of value as is reasonable under the circumstances.

In plain English this means that the Personal Representative must:

• Safeguard the property of the decedent’s estate.  If it is necessary for property to not be in the possession of the personal representative, then a custody receipt should be used.
• Open a separate estate bank account and deposit all checks and cash of the estate.
• Notify Heirs and Beneficiaries.
• File an inventory of the decedent’s assets with estimated values.
• Determine the creditors of the estate and pay valid claims.  If the estate does not have enough money to pay all creditor claims, then the claims will be paid according to priority of claims set out by statute.
• File state and federal income tax returns and pay taxes.  Prepare a Federal and State Estate tax return if one is required.
• If the Estate Administration lasts longer than a year, then the personal representative must file an annual inventory with the court.
• Receive court approval before paying fees to the personal representative or before distributing property to the heirs or beneficiaries.

You Can Find More Information

1. On our Probate Practice Page.
2. Review blog posts about probate.
3. Search our website in the box on the right side of the page.

How Long Does Probate Take in Oregon?

The administration of a probate estate takes a minimum of 4 Months in Oregon.  The typical amount of time is closer to 5-7 months depending on the nature of the assets and the backlog at the court house.  

To speed up the process, I make sure that the Personal Representative is well informed regarding the process and has a plan on how to administer the estate before filing with the court.  

 I have written about the Probate Process in Oregon and created an Oregon Personal Representative Checklist to help my clients better understand the proceedings.  You can also find more information by searching the blog on the right.