PROBATE PROCESS IN OREGON AND WASHINGTON

Here is a general overview of the probate process for Oregon.  Washington has some similarities but is substantially abbreviated, as noted below.

Probate requires the appointment of a personal representative (referred to as the executor in certain states).  If the decedent dies testate, the personal representative ultimately appointed is usually the first nominee named in the decedent’s will. If the decedent dies intestate, the personal representative is usually the relative or friend who wins the race to the courthouse and files first.

For testate estates (i.e., the decedent died with a will), the will is proved and admitted by the court. Proof is usually through an affidavit of attesting witnesses to the will. See ORS 113.055(1).

Within 30 days of the appointment of the personal representative, the heirs, devisees, and persons described in ORS 113.035(8) and (9) are notified of the decedent’s death and the pending probate administration.

The personal representative identifies and values the assets of the estate and, within 60 days of appointment, files an inventory with the court. ORS 113.165.  This is not required in Washington if the personal representative requests “nonintervention” powers, which is the typical approach.

The personal representative must make a reasonably diligent search for creditors of the estate and provide them notice of the probate proceeding. ORS 115.003.  Unidentified creditors are notified by publishing notice of the personal representative’s appointment once per week for three weeks in a local newspaper of general circulation. ORS 113.155(1).

Each creditor must file a claim against the estate for debts owed by the decedent no later than 30 days after personal notice is mailed or four months after the newspaper notice is published, whichever occurs later. ORS 115.005(2). If the claim is not filed within the applicable period, the underlying debt is either subordinated to timely filed claims or barred. ORS 115.005(3).  A different procedure applies to mortgage loans and other secured debt.

As appropriate, the personal representative liquidates the decedent’s property and pays allowed claims and expenses of administration.

The personal representative files any required state or federal income and death tax returns and pays any taxes due. See ORS 114.305(17).

After completion of the foregoing steps, the personal representative files a final account with the court.  ORS 116.083(3).  In Washington, the personal representative files a very short document known as ”declaration of completion” in lieu of a final account.

After court approval of the final account, the assets of the estate are distributed to the beneficiaries under the will or the heirs at law. ORS 116.113.  In Washington, court approval is unnecessary to make the final distribution (or interim distributions).

Caveat: Probate is deceptively complicated. While generic probate filings can be routine, there are ample opportunities for malpractice. If claims are not disallowed within 60 days, they are deemed allowed. ORS 115.135(1). Death taxes must be paid within nine months after death or there will be substantial penalties (usually 5% per month). See, e.g., ORS 118.260(4); IRC §6651(a)(1).

Death taxes may have to be apportioned among various classes of beneficiaries.  It may be necessary to select fiscal taxable years so that excess deductions are transferred to the beneficiaries under IRC §642(h), and not lost. It may be necessary to fund tax planning trusts based on a formula clause in the will. Although not technically part of the probate, tax guidance on distributions from IRAs is often necessary.  This list could go on for pages.

Supervision by an experienced probate lawyer with a tax background is recommended.

104 thoughts on “PROBATE PROCESS IN OREGON AND WASHINGTON

  1. Our father died 10-7-12. Our brother, the Executor, doesn’t seem to have taken action. Nobody has received notice of probate. Is there a time limit for filing a copy of the will so that probate can begin? There are seven children involved.

    • Lygia,

      Your situation is more common than it should be. It usually occurs when the named executor is living in the decedent’s house (rent free) and does not want to change the status quo. If you have asked your brother to probate the will, and he refuses, you should file a copy of the will with the court, accompanied by a petition that requests the court to appoint you executor. You should also include as exhibits copies of the letters (or emails) you have written to your brother urging him to commence a probate, along with any written refusals from him. You should also include in the probate petition a statement to the effect that you are filing because your brother won’t, and are filing a copy of the will (rather than the original) because your brother has the original and refuses to act. If easily done, you might also get written consent from your other five siblings whereby they approve of your appointment as executor. You will probably need an attorney to make this happen, but you can warn your brother and try one last time to get him moving.

      Dave

  2. To whom it may concern
    My adoption father recently pass away in Lafayette OR, I was told by him with my two sisters present, his estate was to be divided three ways each will equal shares. Since his demise on April 23, 2013 the middle sister Robin Ann Smith who resides on the property refuses to show or discuss the will. I live on SSI and need advice in this matter.what do I need to do

    • Randie,

      First of all, I am sorry you lost your dad.

      Unfortunately, your situation is not unusual. The child residing on the property is seldom interested in changing the status quo.

      Your father’s oral statement to the three of you has little legal significance. What matters is whether he signed a will. If he did, your inheritance is controlled by his will. If he didn’t, your share is 1/3 (assuming you were legally adopted). There are several avenues for gaining access to the will. First, you might ask your other sister if she knows whether your father has a will. He may not. If you are able to establish that he has a will, you should give Robin written notice that she is obligated to commence a probate proceeding. If she refuses to either commence a probate proceeding or give you a copy of the will, you might consider filing an intestate probate proceeding based on the assumption that your father had no will. You would need to disclose to the court whether you have been told that your father has a will, and that you have given your sister a reasonable amount of time to probate it. This will force your sister to either file the will with the court, or go along with an intestate probate proceeding. I know this sounds self-serving, but you will get better results with a lawyer. Your sister is more likely to behave. Or she may decide to hire a lawyer, who will tell her she must probate the will or disclose that there is no will. I am sorry your sister is acting this way.

      Dave

  3. It has been 7 weeks since I contacted an attorney about my fathers estate (he died in March). I am the named personal rep in his will.
    Anyway- what was told to me was a simple and quick process has been anything but.
    I still don’t even know if the probate process has begun. I’m still waiting to receive my ‘letters’ so I can access my fathers accounts. Meanwhile, I’m paying his household bills and my two brothers are calling me daily check the status.
    The attorney hasn’t returned my calls.
    I’m at a loss of what to do. I don’t know if there is a standard timeline for this process-am I being impatient or unreasonable ? He has the original will.

    Advise?

    • Sue,

      The delays you describe are unacceptable. So are the ignored phone calls. Either your lawyer is too busy with other projects or inexperienced. Absent unusual circumstances, it takes about 2 hours to prepare the court filings necessary to appoint an executor. These are standard forms. Once the papers are signed by the executor and filed with the court, it takes roughly a week or two to get letters testamentary in the mail. Some counties are slower than others. Washington County, in particular, can be terribly slow and unresponsive. But that is normally not more than an extra week of delay. Without letters testamentary, you can do nothing; everything is paralyzed. I would not be happy either.

      Dave

      • Thank you for the quick response.
        I’m going to go to make an appointment to see what the hold up is.
        I’m anxious to get the letters testamentary to get this process going. Thanks again.

  4. Dave,
    I am the co trustee of my parents’ trust and my step brother is the other co trustee. He is living in their house and has been taking over everything. Most of the assets were never transferred to the family trust and will have to be probated. He has been trying to get me to sign off any rights to the trust because he wants to probate it himself. He has already hidden assets away in a bank account somewhere. He has stopped talking to me and I learned from an apt. Management company that he has opened the probate and is trying to get them to send him the monthly checks using this personal representative appointment. As co trustee do I have the right to all of the probate documentation? Can he now legally seize that money and use it as he sees fit?

    • Sharon,

      You have lots of issues.

      Who is named as personal representative under the will? If it is your stepbrother (and not the two of you), he alone is authorized to probate the will. But that doesn’t prejudice you. I suspect the trust is the sole beneficiary under the will, so each co-trustee is an interested party entitled to all probate information. As personal representative, he should establish an account in the name of the estate and deposit all rent checks into that account. He cannot pocket any of the money. If your brother refuses to send you the probate documents, you can get them at the courthouse. An easier tactic would be to call his lawyer and tell him that you will file with the court to remove your brother as personal representative if he breaches his duty to provide you statutory notices. In all events, most states require the personal representative to provide a full accounting at the end of the probate. Some states do not require this unless a beneficiary requests. Your “homework” should be to ask your brother’s attorney for any probate papers that have been filed, or get them at the courthouse if the attorney refuses. Second, you should request the court to compel your brother to provide a full accounting (when he closes the estate) if the state laws would not otherwise require him to do so.

      Good luck.

      Dave

  5. My Great Aunt passed In April, I received a letter from my aunt’s (Named PR) attorney stating, she passed without a will and that I am one of the Heirs. Do I need to do anything to be an heir, file any forms ect.; or will the probate process just go through, and whatever remains, after all fees, debts ect are taken, go to the heirs?

    • Katie,

      You do not need to do anything — except wait patiently for your check.

      Most states give notice to all heirs at the commencement of the probate proceeding so that they have an opportunity to come forward with information about the existence of the decedent’s will. Also, at least in Oregon, an heir can file a “request for “notice” with the court and cause the PR to send the heir a copy of everything the PR files with the court.

      Dave

  6. Does Oregon have a law allowing a personal representative to live rent free in the deceased house? The PR is an heir to the house, but actions such as this appear to benefit the PR personally which I thought was illegal.

  7. My father in law passed away on June 30th. 2 wks before he passed away he discussed the will with family members. His wife has not turned the will over to probate its been well over 30 days. My sister in law also saw the will briefly. All the siblings were named in the will. His wife mentioned that she couldn’t get money out his bank acct and she was going to have to hire an attny.. in re to the will. My husband asked to see the will and she said he could come over and see it. She was going to turn the will into probate in which the date would have been around June 26th or so.. Now its Aug. 9th and the will is in her possession but no one elses. ‘What are the consequences not turning the will into probate within the 30 days. This is not a small amount of assets. How do get her to turn the will over to probate if she wont let anyone read it.??

    • Dear Abby,

      This is a common problem without a perfect solution. Second marriages always seem to trigger these kinds of issues.

      ORS 112.810(1)(f) says that a person holding a decedent’s will shall, within 30 days after learning of the decedent’s death, deliver the will to a court having jurisdiction or to a personal representative named in the will. Since she is the personal representative and has the original will, she has fully complied with ORS 112.810(1)(f) and is not required to file it with the court.

      There is no requirement under Oregon law that she provide a copy of the will to you, and there is no deadline for probating the will. Fortunately, it appears some of the decedent’s assets cannot be transferred without a probate, so she will have to probate the will if she wants the assets. I have not done this, but I suppose you could commence an intestate probate proceeding, and state that the will must have been revoked (since the wife won’t produce it), which would force the wife to probate the will. Once a probate is commenced, the will is made public and all beneficiaries and interested parties are given notice.

      Transparency is the best policy. The wife is creating hard feelings from the outset by refusing to share information. It would be a good development if she hired a lawyer, since he or she would advise her to retain a lawyer and probate the will.

      Dave

    • Adrian,

      Assuming there are probate assets, you should file a petition with the court to be appointed executor. This will allow you to distribute the assets to yourself.

      Dave

  8. What happens in Washington State if an estate is probated intestate and either during the probate procedure or after the distribution of the estate a valid executed will is found?

    • Mollie,

      I haven’t had this occur yet in Washington, but I think you would file the standard petition to commence a testate probate proceeding, probably with the same case number and without an additional filing fee. New notices, etc. will need to be filed.

      Dave

      • Thanks for your reply. What would happen if the estate has already been distributed intestate before the properly executed will was found?

  9. My wife’s aunt recently died there in Oregon. Her husband predeceased her by over a year. They have a revocable living trust agreement (to which each transferred assets via a will). The trust says “upon the death of the survivor of us, our Trustees shall then distribute our properties in the following manner:” It then says that if [the husband] is the last surviving Trustee /Beneficiary then certain assets will be distributed to named individuals. If [aunt] is the last surviving Trustee/Beneficiary the other assets will be distributed to my wife and her mother [aunt's sister]. One reading is that since husband died first everything passes through the aunt’s distribution, but we are certain that is not what they intended. Rather they intended that the distribution follow both the husband’s wishes for his named property adn the aunt’s wishes for her named property. How will Oregon courts handle this situation and how do we address this from long distance?

    • Dave,

      I would be surprised if the heirs of the last surviving spouse “take all,” since that would be an arbitrary manner of favoring one class of beneficiaries over another. The trust should read that each class of heirs gets one-half at the aunt’s death. I am guessing that the husband’s half was allocated to a “subtrust” at his death, and that this subtrust passes at the aunt’s death to the husband’s heirs. If you can email me the trust (dcs@bhlaw.com), I can give you a quick analysis of how it plays out. Dave

  10. can a home left to me TOD outside the will and non probateable, be transfered to my name and listed for sale immediatly if the household furnishing are to be inventoried by the personal representive and eventually divided between myself and 1 other benficary?

    • Doug,

      The home automatically became yours at the instant of death, and was automatically transferred to you (by operation of law) at that time. Except for recording a death certificate, no further transfer documentation is needed. You can list the home immediately. The PR will have plenty of time between the listing date and the closing of the sale to deal with the personal property.

      Dave

      • the answer s only partly correct the new rulng on TOD for oregon state that the real estate that is TOD must be held open to creditors for 18 months instead of the usual 4 months before it can be exempt from creditors, it could essentailly be sold but it seeems it would be impossible to get title insurance and who would buy a proerty that was still in probate? senate bill 815

        • Gary,

          If the decedent recorded a transfer on death deed, you are correct that creditors have 18 months to present claims to the transferee. However, I am told that title insurance companies are usually willing to insure title prior to the expiration of the 18 month period. So long as a title insurance company will insure title, a buyer should have no reluctance to purchase.

          Dave

  11. My wife has died. I filed a small estate probate in Multnomah county. Recently I received the forms back as a package with a stamp from the circuit court of Oregon on the back. Is this what I need to close her bank account? Everything else is paid or accounted for.

  12. mother recently died, a freind of hers showed up with a newly drafted will less than 5 months ago it was done right after she had a stroke? the will s completely differant than the will she had completed less than 2 years ago, included are this friend as personal representitve as well a beneficary and also his wife is a beneficary, this seems very strange to our family as this freind had also been the cuase of some very poor financial advice in which my mother mortgaged a paid for home, on this freinds recomendations, and then this friend sold my mother 145k worth of vacation packages at age 81! we have recently found that this friend had also made the appointments with the attoreny and took my mother thier. as a family we feel this personal is not only unethical in his buisness practices but has exerted undue influence over my mother as well, and the fact that him and his wfe are now beneficaries of the will and my only brother who had voiced strong objections to this individuals constant presence and knowledge of my mothers fnancial and personal affairs, has been cut out completely. this person is not an attorney or financail professinal, had met my mother shortley before my father died at a retirement center functions promoting vacations, after my father died this individual was a constant presence in my mothers life, do we have any recourse to challange this individuals authority and thier portion of the estate they have been left due to this new will, attorney who drafted will wont speak with us.

    • Ron,

      You should file a will contest (on grounds of undue influence) immediately after the “friend” files with the court to be appointed personal representative. The siblings “on your side” can pool funds to pay for the legal fees. If you prevail, your fees will be reimbursed by the estate. Depending on the severity of the undue influence, the court may decide to compel the friend to reimburse the estate for the additional attorney fees caused by his meddling in your mother’s affairs. You may or may not have a claim against him for elder abuse.

      Dave

  13. To whom it may concern,
    My mother passed away some years ago and she had a house that me and my brother grew up in. I was recently contacted by my brothers wife’s attorney stating that my brother had passed away and that there was no living will for my mother to be found so therefor the house now belongs to me and my brothers wife. The house has been being rented out since before my mother and brother have passed and since my brother has passed the wife has been collecting the rent money for the house. The wife’s attorney had told me that I am entitled to half of the money as well as half of the maint. costs as well. The wife has not offered me anything nor told me of any expenses for maint. There were suppose to be probate proceedings getting started but as of yet nothing has been done.
    Where do I stand in this matter?

    Thank you,
    Mark

    • Mark,

      In general, your sister-in-law’s attorney is probably correct. Under your brother’s will (or the laws of intestate succession, if he had no will), a half interest in the house probably passed to his wife. Thus, although title to the house is still in your mother’s name (assuming there was no probate proceeding), you and your sister-in-law effectively own the house in equal shares. You are entitled to one-half of the net income on the property, and your sister-in-law should account to you for what she has received.

      I recommend you try to talk your sister-in-law into selling the house so that the two of you can disentangle. You may or may not have to commence a probate proceeding for your mother’s estate (to establish the chain of title to the house), depending on the value of the house.

      Dave

  14. Hi
    I have a question about the probate process. I received a packet of papers from the attorney of my uncles estate. I can’t figure out when distribution will be made. One of the papers says that anyone whom object to the will has until the 26th of December of this hear to do so. After trobat dates what happens
    Tthank you
    Kristen

    • Kristin,

      In general, you have four months after the personal representative is appointed to contest (i.e., challenge, or try to invalidate) the will. I suspect December 26 is the last day of the four month period. You may still be months away from getting distributions, depending on the remaining tasks the personal representative must complete. Will any real estate be sold? Must final personal income tax returns be filed? (Probably.) An attorney will usually avoid giving a firm distribution date because a number of milestones are out of the attorney’s control and may cause delays.

      Dave

  15. I lost my mother this past January. My mother did not leave much of anything behind. I filed a small estates affidavit in Oregon and have taken care of all her accounts, creditors, paperwork, etc. She did not leave a will, so as the eldest child of four, I took on this responsibility. I recently received a settlement check from a worker’s compensation case that was owed to my mother. I have tried to cash the check and distribute the money to each of the four children in our family. The bank will not cash the check. They say that I need to be the representative of the estate. When taking on these duties, it was my understanding that is what I became. I am listed as the affiant on the small estates affidavit. Are these two different things? Is there something else I must do to be granted this title? If so, where do I find these forms?
    Thank you in advance for your help!

    • Kori,

      Banks are difficult. If the settlement check is listed on the small estate affidavit I don’t see how the bank can refuse. It is usually easier to make a deposit through an ATM rather than cash a check in person. You may want to sign your name to the check with the phrase “small estate affiant” after your signature, and then deposit it in an ATM. Another alternative is to do another small estate affidavit and list the check. Dave

  16. My stepmother passed away 1 month ago – her will left the house to me and my sister, everything else to her daughter (the PR). ‘Everything else’ probably amounts to little. The house had been paid off ($200k) but a reverse mortgage was taken out some years ago. This is in Oregon. Does this need to go thru probate? Does the house need to be sold? What part does the mortgage company play? Can the house be cleaned up? thx.

    • Brian,

      This probably needs to go through probate, although you may be able to get by with a small estate affidavit if the house is worth less than $200k. Before you dive into probate, it might be useful to determine if the balance owed on the reverse mortgage is nearly the same as the value of the property. If it is, you should let the house be foreclosed, since the net proceeds to you would be nominal. I have not seen the reverse mortgage contract, but I suspect you are required to pay off the mortgage or sell the home shortly after your stepmother’s death. If you don’t do this, the mortgage company will foreclose. You should clean up the house before you sell it, but only if the sale is likely to result in net proceeds passing to you. If the net proceeds will be nominal, I would let the mortgage lender worry about preparing the home for sale.

      Dave

      • Saw a lawyer and decided we could just do a Small Estate Affidavit instead of probate. House minus debt is about $40k and personal property maybe $5k. There are a few creditors seeking money – cable co. won’t cancel the service with a large fee, stereo not paid for, etc. Is there a period of time where creditors could still make claims on the estate?

        • Brian,

          In general, creditors have four months after you file the affidavit to present claims. See ORS 114.525(12).

          Dave

          PS – The gross value of the house (not the equity) is the relevant value for determining if a small estate affidavit may be used.

  17. I am the Personal Representative for my wife’s mother’s estate. The gross value of the estate is approximately $120,000 with five heirs. From what I can find, the estate itself is not subject to an estate tax. My question is, are the individual heirs of the estate liable for some sort of tax and do I need to provide 1099′s?

    • Dave,

      The short answers are no and no. In general, an inheritance is “free money.” IRA distributions are a big exception to this rule, since they are subject to income tax when withdrawn.

      Dave

  18. my mother recently passed …she put everything she owned in trusts and… pod… her bank accounts..her estate is probably worth less than 50 thousand dollars..with her cars and her meager household contents

    Is there a dollar limit on filing probate..how would one proceed in this situation

    • Stanley,

      I suspect probate is not needed. Assets in a trust pass free of probate. So do payable on death accounts. A one page affidavit can be used to withdraw bank accounts less than $25,000. A DMV affidavit can be used to transfer a vehicle. Thus, you should be able to administer the estate without filing with the court to initiate probate. Dave

      • We have developed another problem..My mother gifted me the house she was living in and the farm that surrounded the house..93 percent gift from mom and the remaining 7 percent is in my fathers trust…

        my sister is pr of moms estate..she change the locks on the house and locked me out she says for 9 months to a year till moms stuff is probated..she gave keys to my brothers that live far away and none to me. I live on the property

        can she do this..according to the probate court she hasn’t been appointed anything yet..i am sure she is trustee of dads trust now

        what can i do

        • Stanley,

          If you are the legal owner of the house, there is a lot you can do about your sister’s actions. Was the deed vesting the house in your name recorded before your mother died? If so, I would hire a locksmith and take possession of the house. If your sister enters the house without your permission, I would call the police, since she is trespassing. Make sure you have a copy of the recorded deed to the house, so that you can show it to the police officer and locksmith.

          Dave

          • I have a similar problem..My wife and i purchased a house 33 years ago..we put 25000$ down on the house..my wifes inheritance..the i did something really dumb..i let my father talk me into paying off the rest of the mortgage if i worked a number of years for him..he was in ill health at the time so i agreed..he gave a option on the rest of the mortgage to get the house back as he had it deeded to himself…he would not allow us to exercise the option later when we wanted too
            Then he said he would leave it to us in his will..he lied..he left it to my sister..what are our options ..we did all the maintenance and repairs out of our pockets..what can we take with us when we leave ..the letter gives us 60 days to vacate..we never received our 25000$ back..the option is still attached to the deed..my wife has been crying all week ..we are old and way past moving again..probate began a week ago..i made a mess

          • Mike,

            Your email is a little hard to follow. It sounds like you transferred your house to your father in exchange for him paying off the mortgage. What I don’t know is the “deal” concerning your $25,000 down payment. Did he also promise to deed the house back to you if you worked for him? And you worked for him and he did not deed it back?

            You probably have a claim against the estate based on a contract to make a will. Or maybe a claim for unjust enrichment. I gather your sister has no intention to make things “right?”

            Dave

  19. My Dad had died on 12/09/13 in Astoria, OR. I’m his only daughter. I am now in the probate period and have a question regarding donations. When my Dad passed, I had gone to the Food Bank and local animal shelter with donations from the Estate. (I wasn’t appointed yet). So now, I am doing the Inventory for the Court and was wondering do I list donations I have done and would like to continue doing in the future on the list? And am I suppose to claim these donations on my father’s tax filing, my tax filing, or neither. Your feedback would be greatly appreciated. Thank you.

    • Donna,

      You don’t have authority to make donations to charities or distributions to yourself until the final account is approved and the estate is closed. If the court finds out, you will be thoroughly scolded. You should not make any more donations to charities at this time, since they are unlawful.

      The tax analysis is interesting. I think the most persuasive interpretation of the facts is that a distribution of money was made from the estate to you, and you used the funds to make charitable donations. Thus, the charitable contribution deduction will be taken on your personal income tax return.

      Dave

      • Thank you for your quick reply. I won’t be making any more donations until probate is completed then.
        But, as stated above, “As appropriate, the personal representative liquidates the decedent’s property and pays allowed claims and expenses of administration”.
        So now I’m not sure what is appropriate to liquidate during the probate process. Am I only allowed to sell items?

        • Donna,

          You have complete flexibility. You can sell everything or you can hold everything. But if you don’t sell anything, you may have to make loans to the estate so that you can pay claims and costs of administration.

          Dave

  20. My father just passed away 3 days ago. Suicide. I am devastated. I live in another state, he lived in Oregon. He lived in a travel trailer renting a space for it. The only thing he owned is the trailer and a car. Trailer is still owing a couple of payments. He has bank accounts as well although I don’t know balances.
    My uncle has already gone through dad’s things and found a will naming me sole beneficiary. The uncle has tried to say he will do this and that, inventory blah blah. I told him to stop and I will come deal with it. This uncle has not spoken to my father in about 5 years and they lived in the same town. Now he wants to take everything over and I am saying NO and changing locks on the trailer and car because the keys have mysteriously disappeared.

    What should be my next logical step? I figure I need to secure an estate attorney there in Oregon. Do I have to sell the trailer or can I keep both the trailer and the car? Will it need to go through probate? I have already made arrangements with the landlord to keep paying lot rent and I can leave trailer there as long as I want or need.

    • Mick,

      I am sorry you lost your father.

      Under Oregon law, you can transfer a travel trailer or motor vehicle without a probate. Just use the DMV inheritance affidavit. See http://www.odot.state.or.us/forms/dmv/516fill.pdf. Along the same lines, there is a one page affidavit you can provide a bank to withdraw your father’s bank account. (I am assuming you are the only child, or that your siblings will join in the DMV affidavit or bank affidavit.)

      You need not sell either asset. The is no estate tax or income tax.

      Dave

      • Oh my!! Thank you so much David C. Streicher! That is exactly what I needed. You saved me a bundle of hassle. Appreciate you so much. And yes, I am the only child and there is no spouse. He had been single for at least 34 years.
        Mick

  21. I am a beneficiary of my fathers disclaimer trust..i want a copy of his trust..how do i go about getting a copy..my mother passed and i received a letter from a attorney saying i could request a copy..i requested ..nothing has happened.

    i did get a copy of my fathers will and a letter….ORS 130.733 notice of proposed trustee action..nothing more..i dont think that constitutes a trust..am i wrong

    • I suspect the will contains a “disclaimer trust.” You should look through the will and look for the word “disclaimer trust.” I suspect one or two pages of the will contain the terms of the disclaimer trust.

  22. I sold a house to a widow in October 2013 and carried the paper. She was the only person listed on the trust deed. She made only 3 payments and then died unexpectedly in mid January. She left no will.

    Her only child, an adult son, had been living in the house with her. He has no income and originally said he would move out right away but does not seem to be making any effort to do so. He also says he cannot afford probate.

    Those mortgage payments were my chief source of income. What is my best course of action to get the house back into my name so that I can rent or sell it?
    Your answer is appreciated. Thank you.

    • Carole,

      You need to foreclose the deed of trust. You can probably puchase the property at the foreclosure sale for the amount of the debt. Alternatively, if the son will cooperate, you can ask the executor to sign a deed in lieu of foreclosure. Does the estate have assets? In lieu of foreclosing, you might be able to make a claim against the estate for the balance owed.

      Dave

      • I will try and work with the son to start probate so he can sign a deed in lieu. Failing that, I will start the foreclosure process since the estate has little, if any assets. Again, thank you for your help.

  23. I have a problem 9 years after my husband’s death. His estate did not go through the probate process, since I thought that all assets were held jointly or with me as the beneficiary. With this one exception- he had 3 individual accounts benefitting our children for the Georgia College 529 Plan. For some reason, no beneficiary was named. I have contacted the plan several times and have finally gotten to the point that they need Letters Testamentary appointing me as the personal representative of his estate. He had a will. Is this something that can be done 10 years after his death and can I do this without an attorney, since the sum of the accounts is around $2,000. If I had to retain an attorney, what would this cost? Also, I live in Linn County now and he died in Multnomah. Do the filings have to take place at the county of death?

  24. My father passed away over a year ago. We obtained our estate attorney 1 year ago and are just now getting to the final accounting process of the estate. Reading around, it sounds like our process has taken twice as long as most estate processes and there haven’t been any reasons for delays that I can see. It took 5 months from when he was hired to actually even officially start probate (the beginning of the 4 month period for creditors). I am wanting to see someone else’s explanation on how the rest of the process is going to go as I feel that I am getting the delayed version and would like to know how much longer the process really should take. So once the final accounting is filed with the court there is a 15 day waiting period (not business days?), then once that passes how long until he files the order for distribution or is that the next step? How long does Washington County usually take to approve the distribution? My siblings are questioning the process and don’t them to think it is me delaying this. I don;t feel like I’m getting clear explanations or expectations for when this will all be done. I guess I’m wanting to see how long it is until I can distribute after that 15 day period. Thank you.

    • Kim,

      Once the 15 day period expires, the executor will send an order approving the final account to the court. Once the order is signed by the judge (perhaps a week later), distributions can be made. The 15 day period can be bypassed if all beneficiaries consent; I suspect one or more of the beneficiaries of your father’s estate refused to consent. Washington County is the slowest and most difficult county in the state. A one year probate is not unreasonable.

      Dave

  25. Yesterday I discovered that my Uncle, my mothers brother, died 18 months ago. I only found this by doing a google search and he appeared in the social security death database. My sister and I would be the only heirs. He was not married and had no children. I am not sure, but am guessing he likely had no will. How can I determine if there was a will and if not would it be too late to make a claim against the estate?

    • Susan,

      It appears there was no probate proceeding, since you were never notified. (I am assuming your mother is deceased.) If he had no will, any interested party can commence a probate proceeding, but this is a wasted effort unless he had assets. Do you know if he had any assets? Who was in touch with him at the time of his death? You need a little more information, and I suspect the people closest to him have the answers.

      Dave

      • Thank you for your reply. You are correct, my mother is deceased. I know of no other person who has information regarding him. We have been trying to locate him since my mothers death in 2003. I do not know if he has assets other than one search of PIPL indicated he lived in a property in Oregon with an attached value. There is no house number, just a street name so I don’t know if the property was a rental or a home he owned. Thanks for any insight

        • What is PIPL? If you can provide me your uncle’s name and the city he lived in, I can look through the real estate records to see if any property is titled in his name. His death certificate will list an “informant” (usually a friend or family member) who provided information to the medical examiner. You may want to order a death certificate.

  26. My father passed on 5 May 2014. My father had 2 children(myself and my sister) along with my mother. My sister had little contact with my family, and was my half sister. My mother has chosen not to notify her of the death of her father at this time. From what I understand, under Oregon law, since my father had no will, I or my mother needs to file a executor, and notify my sister of his death. I am curious though, what right if any does she have to any property, due to the fact my mother is the surviving heir?

    • I’d also like to add, the house is in both of the their names, along with the bank account. Most of the debt(ie credit cards) is in my fathers name only, and I am working to pay it off with the current assets available.

      • Dusten,

        I am not sure anyone is liable for his credit card debt. In general, jointly owned assets passing by right of survivorship are not chargeable with a decedent’s debts. Only his probate estate, if there is one, is liable for debts.

        Dave

    • Dusten,

      If your father and your mother owned everything jointly, and if his IRA passed by beneficiary designation, there will be no probate, no executor is appointed and no one is entitled to notice. Do you know if your father owned assets in his own name (i.e., not jointly) that did not pass by beneficiary designation?

      Dave

  27. Greetings. My Aunt died on 5/20/14, at home of cancer. She never married and had one nephew and four nieces, each of them left $20,000. She had a will and named me Personal Representative. Her condo is valued at about $250K, her 401(k) plan at $97,000 and some stocks at $93,000. She left ME only a money market account with $24K in it. I only received the Death Certificate today, 6/9/14. Her property is located in Washington Co. so I was going to go out there tomorrow (I live in Multnomah Co.). Do I have to file and go through probate? Besides the $100K given to us five, she left the balance of her estate to two charities, well-known ones. I do not yet know who the 401(k) has as its beneficiary) as I am awaiting their packet in the mail. She has no debts and owned everything outright. The stocks are in four well-known companies bought in the 60′s for little but have ballooned in value. I also do not know who those will go to. Question: None of us believe that Aunt Pat’s intention was to leave us only $20K each and the balance of approx. $340K to two charities she never once mentioned. (She was affiliated with several charities and was generous during her lifetime, but those are not the ones named in the Will.) Her Will is also very vague re: who is responsible for the sale of the condo. (1) Do I need to file for probate in the notoriously slow Washington Co? and (2) If the stocks and the 401(k) plan are left “to her estate,” may we descendants contest that? I have not yet contacted the lawyer who drew up the Will, but plan to do so, just wanted to save money by doing all the initial leg-work myself. I don’t want to create a large legal bill as I know I can handle the probate. I am an intelligent retired person and all us heirs get along well and support each other. Thank you for your thoughts.

    • Pamela,

      It appears that her estate is over the small estate affidavit limits, and that a probate is necessary. The stocks could be messy or time consuming if each is owned directly through the issuer, rather than in street name. I sympathize with you for having to file in Washington County, which is as combative and unresponsive as it is slow. The court appointed personal representative will sell her condo. If you are going to file a will contest, you should not file to be appointed personal representative, since you would be suing yourself. What does her prior will say? Or did she have one?

      Your prospects for a will contest depend on whether she lacked capacity or signed the will because of undue influence. The attorney’s testimony will be important, and he will undoubtedly say that your aunt was fine. (The attorney would look foolish if he says your aunt didn’t know what she was doing, but he nonetheless prepared a will for her.)

      Driving out to Washington County will not help you, unless you would enjoy a trip out of the house to see the courthouse.

      I know this is self-serving, but I would not fret over the attorney fee, since it is indirectly being paid by the charities. Attorneys in Oregon perform probate services on an hourly rate, and the judge must approve the fee before it is paid. Usually this prevents a client from being gouged. The new Washington County probate judge sees attorneys as adversaries, and will not allow excessive fees.

      With best regards. Good luck.

      Dave

      • Greetings, Mr. Streicher. Thank you so much for your earlier response and advice. I do have one other question, though, and a follow-up if the answer is affirmative. My Aunt had made two changes to her 10-year old Will. (1) She had crossed out the name of one of the charities and revised it, from the original “Northwest Medical Teams” to now read “Medical Teams International.” She had also written an Addendum which was neither witnessed nor notarized, but which said, “To my niece, ___ ______, in gratitude for her years of love and caregiving, I leave my 2010 Mazda, if it is in good working order and she wants it.” Well, she does want it, but is now told that she must purchase the auto from the estate at Kelly Blue Book value and I must have my grandmother’s ring appraised and pay almost $1,000 for it, even though Aunt Pat had given it to me 15 years ago and I had told her to hang on to it and I would get it later, meaning after she died. (She loved her mother’s ring only was unable to wear it due to her arthritic knuckles.) Are these two changes, the cross out and writing on the original Will AND the typewritten but signed “Addendum” enough to invalidate the Will? If you believe your answer to be, “Yes,” are you a litigator who would take this case? Since you are in Multnomah County, does it make a difference since the Will is to be probated in Washington County?

        Thank you again for your counsel. I see how you answer others’ questions and your advice seems very sound and thoughtful to me. I wish you were our attorney now but I am only waiting to get my Testamentary Letters before looking to pursue this matter further. Take care and God bless ~ Pam Porter

        • Pam,

          First, the easy question, unless your aunt was living in California when she wrote the addendum, it is invalid and basically disregarded.

          It is doubtful if the cross out in the original will invalidates the entire will, although that is a gray area. I have worked on several cases in which items of personal property residing in the decedent’s home at death but were apparently given away during life. In general, possession is ownership, and it is very difficult to prove that something possessed by a decedent was given away.

          I would not be willing to represent a party trying to overturn your aunt’s will, but there may be lawyers in town who will. The tricky part is the attorney fee, since most lawyers will be reluctant to work for a contingent fee.

          Dave

  28. My sister passed away in Portland, Oregon, in December of 2013. She died intestate, lived in a rented apartment, left no debts, and had zero assets. A couple of months ago our last surviving uncle passed away in New York; she was named as a beneficiary in his will. In order to ensure that our uncle’s estate is administered correctly and without delaying disbursement to the other beneficiaries (there are 14 of us) I need to become the administrator/executor of her estate.
    I would very much appreciate if you can point me in the right direction in regards to beginning this process.

    • Chuck,

      Since your sister predeceased your uncle, she is not a beneficiary under his will. Her gift lapsed. Her estate is still zero.

      Your uncle’s will is the key document, as it will say what happened to your sister’s share. It might disappear; it might pass to her descendants; it might be reallocated to the other beneficiaries, etc.

      Dave

  29. In 2009, my grandmother (w/3 children) changed her will to exclude my father (with Alzheimer’s disease) so that my step-mom received nothing but added me and my siblings in his place. My childless aunt died in 2012. That leaves my father and his sister. A week after my childless aunt passed away, my dad’s other sister, drove my grandmother to the attorney’s office to remove my siblings and I. She then convinced our grandmother to sell her home (proceeds went to our only cousin) and move into an assisted living center. Three months later, she convinced her to give away her car (to our cousin). She no longer attends church because she has no way to get there. Now our grandmother has to take public transportation or a taxi to visit our ill father. I currently live in Virginia to go to school. My two sisters are my step-mom’s children as well as my dad’s. They haven’t had contact with our grandmother for more than 6 years, since our dad became too till and placed in a home. My brother and his family lives in Oregon and visits our grandmother about once a month. When she passes would we stand a chance contesting her will?
    Also, our living aunt created a fake will to present to the probate court naming herself and my grandmother the heirs and specifically not our father. In the fake will, she was to take my aunt’s dog. When my aunt was in the hospital, she told me to have the dog gassed. I’ve been caring for the dog ever since. The reason I didn’t contest our childless aunt’s will is because it would have upset our grandmother. I didn’t feel the need to upset her, the total value of her estate was about 700,000. My grandmother and our aunt gave my brother and I our childless aunt’s house (180k) as a token of goodwill to show our grandmother that she would take care of us once grandma died. But she has told me on numerous occasions, that if my brother and I wanted anything, even a fork out of grandma’s house that we needed to make our grandmother put it in the will or we would get nothing.

    • I forgot to add, that our grandmother’s estate which was primarily our grandfather’s who was not our living aunt’s father, is worth about 850,000 give or take. Our aunt has instructed our grandmother to inform her of all calls/visits with me and my siblings and the nature of the calls/visits. She also tells horrible stories about us that aren’t true in an effort to have grandma view us in a negative light. Grandma’s closest sibling passed away in 2010 and the other ones do not live nearby. She doesn’t really have any friends anymore because she can’t attend services at the church. So I’m not sure if there would be anyone that she was close to who would be able to speak about how she felt, except for her former pastor.

    • Leanna,

      That’s quite a question.

      It is hard to say whether you can contest your grandmother’s will, since I don’t know anything about her age or health, or how much influence your aunt has on her. The most promising approach would be for your brother to try to get your grandmother to add you and your siblings as beneficiaries. (Will contests are expensive.) Was your brother cut out too?

      I am not sure what you mean by a “fake will,” but it appears the time has long since passed for objecting. Since you received the house, you were not damaged too much by the bogus will, as it appears you would have received only about $50,000 more if there were no will.

      Dave

  30. My daughter has died in a car accident recently. She was 19 and living with us. Also, she was a passenger in the car. My insurance and the driver’s insurance have proposed a settlement offer of $50k (the maximum the policy allows). Both insurance companies have suggested that I must be appointed as Personal Representative of my daughter before they send any checks.

    I was given conflicting information as to the type of form that I need to file. Some have suggested that I need to file Small Estate Affidavit form while others have suggested that I should file a full probate.

    Should I be listing my wife and her siblings as the heirs? All her siblings live with us and with the exception of one they are all under 17 years of age.

    • Mohamed,

      First of all, I am very sorry that you lost your daughter. I think you must file a probate, since only a court appointed personal representative may pursue a wrongful death claim. Some Oregon counties allow a very streamlined probate in these circumstances; others do not.

      Dave

  31. My mother in law recently passed suddenly with no will, she was a widow and there are 6 surviving children. Her only assets are personal property, and a commercial building valued at less than $100K. Are we required to go through probate even though everyone is willing to settle things peacefully? I assume if so we qualify for a Small Estate probate?

    Thank you

    • Lanell,

      The answer to both of your questions is yes.

      Having said that, if you are going to sell the property, you might be able to find a title insurance company willing to insure title to the property without a probate. If so, neither a probate nor small estate affidavit is necessary.

      Dave

  32. is it a normal practice to prorate property taxes when distributing funds from a trust

    my father passed away in december..his estate was in a trust..his properties were distributed on april 1..he paid all property taxes before he died on these properties out of funds in his trust..now the trustee is distributing the remaining funds in the trust on a prorated basis requiring some of us to pay money back to the trust for 90 days of property taxes..i have never heard of such a thing

    • Stanley,

      I think the trustee is wrong. I have never heard of this.

      I am guessing that the takers of the property are different than the persons receiving the residue of the trust? Otherwise, the property taxes pro rates are meaningless.

      In all events, if your father paid all property taxes, the property was “paid up” through June 30, 2014. A “windfall” — three months of prepaid property taxes — was conferred on whoever received the property. If anything, the persons receiving the remaining funds are entitled to a reimbursement from the person receiving the property, not the other way around. In all events, it is not typical to prorate property taxes on real property distributed from a trust. Normally, the property is conveyed as is.

      Dave

      • is it mandated in law anywhere that the property taxes be prorated..the trustee is quoting me it is just like selling a house..the buyer and seller prorate the taxes in the contract..there is no contract in this situation..there is 6000$ left in the trust and my fathers trust states all remaining fund are to be divided equally

        it makes no sense to me

        • Stanley,

          I do not recall anything in the Uniform Trust Code that compels property tax prorates. It is true that taxes are prorated if there is a sale, but not when a trustee is simply distributing an asset to a beneficiary of the trust.

          Doesn’t the property tax prorate increase the remaining fund (i.e., the residue)? Since the property taxes were prepaid, it seems like the distributee of the property would essentially be paying funds to the residuary beneficiaries.

          Dave

  33. My brother died intestate March 2013. My two sisters and I were his only heirs. The estate was probated as an estate worth less than $50000. All claims were paid and the estate was closed. Or so we thought. My brother was a federal employee with a small ($29000) life insurance policy. There were no named beneficiary on the policy. The policy holder (fed govt) was us to go through another probate. Not an abbreviated short probate, but a long one. My question is why? All claims have been paid. I am somewhat confused by this.

    • Patricia,

      It makes no sense to me why the insurer would not accept a small estate affidavit. I would talk to another representative. I have never heard of a third party insisting on a “full probate” for a $29,000 asset.

      Dave

  34. My mother just passed recently. I am joint-owner on her bank accounts. Do I have to wait for probate to do anything or do I just submit death certificate to bank to remove her name? Are the accounts part of probate? Can we just pay her final bills (a few medical bills and care home cost) out of the account and avoid probate all together? She has no property or other assets. Thanks

    • Christy,

      In general, the account belongs to you, and the bank will re-title the account in your name once presented with a death certificate. No probate is needed. You can pay your mother’s bills from the account if you choose.

      Dave

      • One more quick question….my sister is handling the paying of my mom’s bills….what happens if she doesn’t pay them? Or if something gets missed? Do we get held accountable for any of that? Thanks

        • Christy,

          Under Oregon law, your sister is obligated to pay bills from the account, and only funds remaining after all bills are paid may be retained by the heirs. If your sister keeps the funds and leaves creditors unpaid, she is liable to the creditors for the funds they should have received.

          Dave

  35. My husband’s sister passed away suddenly. She lived in a single-wide 45 year old trailer that had been her mother’s but is now in her name. She also had a car that is at least 12 years and has not been registered since 2010 and is still in her mother’s name (the mother died in 2006). She left no will, instructions, beneficiary on her bank account or even a letter. She was also a hoarder and the trailer, despite the best efforts of my husband and his brother, is more than a disaster area – she had passed away 4-5 days before she was found and the cat had not been fed or watered, so you can imagine the problem. What are our legal responsibilities in this situation? It would probably take a haz-mat team to clean out the trailer and that is money we don’t have. There are some personal items, i.e. photos of the family, etc. that my husband and his brother would want and other than some food that is unopened the rest is of no use to anybody. What responsibility do we have about the trailer? If we take the car and the bank account to pay her few bills, are we then responsible for the trailer?

    • Katherine,

      I am assuming the sister had no children and her parents are both deceased. If so, her siblings (being her heirs) can transfer the vehicle to themselves by signing a DMV inheritance affidavit and sending it to the DMV. Surprisingly, persons signing a DMV inheritance affidavit and getting the decedent’s car are not liable for the decedent’s debts.

      You can go through a similar exercise to withdraw the bank funds, except that the taker of a bank account must use the funds to pay the decedent’s debts, and only gets to keep what is left over. In your sister’s case, nothing will be left over.

      Technically, you have no rights to anything in the mobile home, and creditors must be paid before you may remove anything. But you are probably not violating any laws if you take possession of the photos and perhaps food. If an executor is appointed, he can demand return of the items, but that is unlikely, since they have no value.

      In summary, you can probably transfer the car without incurring liability to the creditors. But withdrawing the bank account opens Pandora’s box. The safest approach is to do nothing and run from the mobile home as fast as you can. You have no legal obligation to get involved, and will probably regret it if you do.

      Dave

      • Thanks so much for the info! My husband and his brother are taking your advice. They are paying for her burial and are donating the car as it isn’t worth much at this point. You saved us from getting into some deep problems.

  36. My father passed away in April without a will. He was a resident of Union County, OR. My brother was going to apply to the court to be executor, but he did not do so, thereby losing us 3 months of valuable time. The property is mortgaged, and behind now, with the mortgage company calling me for information about when they will receive another payment. There are no funds to make a payment from dad’s accounts-I, or another family member would have to pay the mortgage, but no one is willing to do so, if there is a chance of loss beacuse of the other debt tied to the property. There are several large credit cards that are owing and dad passed with no savings or any assets that could be sold to pay these, in addition to medical expenses that were incurred when dad was ailing and in rehab… My nephew would like to keep the property, which I don’t believe, if sold, would cover the debts, other than paying back the mortgage itself. I am considering applying to the court in place of my brother but am not sure which debts would need to be paid. Would I need to sell the property to pay the liens from unsecured credit debt that are showing on the title report? The only secured debt is the mortgage itself. And if so, since my nephew is pre-qualified, could it be sold to him? Thank you!

    • Melody,

      The best legal advice I can give you is to turn the other way and run as fast as you can. I get the sense that your father has more debts than assets. You will be hard pressed to find an attorney because there may be insufficient cash to pay the attorney fees. Serving as an executor will be a thankless job, as you will be trying to resolve the claims of numerous angry creditors trying to find money where there isn’t any. To make matters worse, you would have to advance the filing fees and bond premium, and might not get reimbursed. Run the other way as fast as you can.

      Dave

  37. My mother passed away without a will. Her condo is valued under $150,000.00 so my brothers and I are in the process of filing a small estate affidavit with Multnomah County. How long does it take to be recored? We would like to list the property with a real estate agent. Thanks

    • Pam,

      I usually file the small estate affidavit with the court and then purchase a certified copy of the filed document. The court usually takes up to one week to send me the certified copy.

      Dave

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