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.
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
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
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