probate

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.   

Portland Probate Attorney
kevin@pnwprobate.com
(503) 893-5878

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. 

Portland Probate Attorney
kevin@pnwprobate.com
(503) 893-5878

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.

Portland Probate Attorney
kevin@pnwprobate.com
(503) 893-5878

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.  

Portland Probate Attorney
kevin@pnwprobate.com
(503) 893-5878

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.

 

 

 

 

Portland Probate Attorney
kevin@pnwprobate.com
(503) 893-5878

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.

 

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Portland Probate Attorney
kevin@pnwprobate.com
(503) 893-5878

What Happens to assets if an Estate isn't Probated in Oregon?

Probate is just the court administered transfer of property after their death.  Not all property is subject to the court process and sometimes it doesn't make sense to initiate a probate proceeding.

Non-Probate Property

Beneficiary Designations

Some property doesn't have to be admitted to probate in order to transfer.  Think about your bank, brokerage or life insurance accounts.  Often times these accounts are transferable by the beneficiary designations.  When you initially opened these accounts you were probably asked to select a beneficiary.  Because these accounts are contracts between you and the bank, brokerage or insurance company, the beneficiary designation will direct whoever holds your account to transfer it to your beneficiary after your death.

Below is a snip from the Servicemember Group Life Insurance application.

SGLI Beneficiary
SGLI Beneficiary

If you read the language carefully it says "If you do not specifically name beneficiaries, your insurance will be paid by law."  What this often means is that if you don't designate a beneficiary the accounts will be paid to the estate and administered by the court.

While this is a quick and inexpensive way to transfer property after death it is very limited.  Like the picture above, most companies will allow you only a few options on how you want to distribute the account.  If you want to split the proceeds in a more complicated way you will need a more involved estate planning.

Keeping Beneficiary Designations up to Date

Using a beneficiary designation is only helpful if it is accurate.  I suggest that you review your accounts annually to make sure the designations are accurate and up to date.  It's not uncommon to find former husbands and wives as beneficiaries on accounts years after a divorce.   That is not a situation anyone wants to deal with your passing.

Transferable on Death Deeds

A few years Oregon adopted a Transfer on Death Deeds.  I believe most states have adopted them at this point.  Much like their name implies, these deeds transfer title in real estate on your death.   TODD are one of the most loved estate planning tools if you have an uncomplicated family.   The primary reason an estate has to be admitted to probate is real estate.  Removing real estate from the equation may let you avoid probate or allow you to settle the estate via the Small Estate process.

I've inserted a snip from ORS 93.975 that provides the form for TODD deeds.

TODD Language
TODD Language

If you only have one heir then a Transfer on Death Deed may make sense for you but anything more complicated and I would be leery of using it.

Abandoning Property

Often times someone will die owing more money than their estate is worth.  When this happens, heirs sometimes decide to just walk away and let the banks foreclose on the property.

If you have any questions about how probate works or what property is included, please feel free to contact me.

Portland Probate Attorney
kevin@pnwprobate.com
(503) 893-5878