Probate & Small Estates

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What is  probate?

Probate is the  process whereby the Circuit court administers the distribution of a deceased person’s assets. Assets include, but are not limited to:  real estate; any personal property; investments; rights to receive money or property;  and liquid assets, like cash.  

Is Probate always needed?

No.  If all assets were jointly owned, then the property is often transferred automatically to the survivor.  Assets of little or only sentimental value, these assets can often be given to the rightful heirs without involvement of the Court.

What is the process of probate?

First, the will if any, is submitted to the Court.  There is a process known as “proving up” the will, which means that the will is authenticated either by a supporting affidavit or witnesses to the deceased persons execution of the will and testamentary capacity. 

Next the Court appoints a personal representative who has the statutory power to handle the estate of the person who has died. This person is usually named in the will.  If the person dies without a will, the Court will often appoint a close relative or an institution like a bank, or a lawyer, if there is no person available. 

Then a notice is sent to all creditors and published in a newspaper of general circulation.  The creditors are given 4 months to file claims against the estate for debts of the deceased.   All heirs named in the will are also notified of the probate court proceeding.

The personal representative must file an inventory of assets with the Court showing the nature and value of estate assets.  Debts are then paid by the personal representative before being distributed to the rightful heirs.  The personal representative must file a tax return, as required, and pays all estate taxes.

Finally, the personal representative submits an account to the heirs and people named in the wil and files it with the Court.  Once the Court approves the final account and payment of expenses the assets are then distributed in accordance with the terms of the will.  If no will, then in accordance with the Oregon law of intestate succession.

What is a "Small Estates" proceeding?

A full probate may not be necessary if the value of assets in the estate is less than the minimum required by law for a full probate.  A small estate proceeding may be pursued if estate's personal property is valued at no more than $75,000 and real property is valued at no more than $200,000, for a total aggregate estate value of no more than $275,000 (as of September 2013, subject to change by the legislature).   The process requires the filing of an “affidavit of claiming successor".

 

Please call (503) 363-7334 or email me today to arrange for a free initial consultation.

For more helpful information about estate planning in Oregon, visit the state's Resources page.