Probate

Please accept our condolences for your loss.  We understand that often after a loved one has passed away, family members are confused as to how to proceed.  The following is a short summary of common probate issues.  Please note, this information page is designed to assist, but not take the place of appropriate legal advise relevant to your particular situation.

IMMEDIATE DUTIES-PRIOR TO PROBATE. If funeral arrangements have not been made, the person nominated as personal representative should make them.  The personal representative should secure the residence and valuables and make sure they are insured.  The personal representative should also assure the well being of any pets of the deceased.  If the personal property is being held by others, particularly if held by the person who is to ultimately receive the property, the personal representative can obtain a receipt rather than take possession of the property.  (If a surviving spouse or minor child is dependent on the estate assets for support, the personal representative can request the court allow a partial distribution after probate is opened.)

PROBATE. Probate is a Court procedure for managing and distributing a deceased person’s property.  It begins by filing a petition with the Court in the county where the deceased person lived, owned property, or had assets at the time of death.  The petition requests that the court open probate and appoint a personal representative.  The personal representative is then endowed by the court with authority to act.  If there is a Will (a testate estate), the court will need the original will and any later amendments, which are called codicils.  A Will normally nominates a person to serve as personal representative, specifies who is to receive property and gives other information about administering the estate.  If there is no Will (an intestate estate), Oregon law dictates how the estate is to be distributed.  Expedited procedures are available for small estates in Oregon with the real property valued at less than $200,000.00 and personal property at less than $75,000.00.

WHAT PROPERTY IS PROBATED? Assets that were in the decedent’s sole name are included in the probate estate and subject to the court’s administration.  Assets held in joint ownership and assets payable directly to named beneficiaries, such as life insurance or pension benefits are not included.  Assets held in a trust are generally not included in the probate estate either.

WHAT IS A PERSONAL REPRESENTATIVE? The court appoints a personal representative after a petition to initiate probate has been filed.  The person appointed is responsible for managing property, dealing with creditors and distributing any remaining property.  The letters issued by the court to appoint the personal representative are called Letter Testamentary, if there is a will, and Letters of Administrations, if there is no will.  An attorney can provide legal advise to the personal representative, prepare documents, and assist with other probate issues. The personal representative, however, has certain responsibilities that can not be fully delegated to an attorney and may also be required to obtain a bond during the appointment process. The estate can pay the cost of the bond.   Regular communication between the personal representative and the attorney will facilitate the probate process and help avoid problems.

I NEED HELP! BUT ISN’T PROBATE EXPENSIVE? You are not alone.  The probate process is very procedurally specific and it is common to hire the assistance of an attorney.  Often a family concern is that the hiring of an attorney will diminish the assets of the estate or cause the state to somehow take everything.  A well run probate should minimize expenses by working with the personal representative to educate them on their duties and efficiently manage the flow of paperwork.  A good attorney is an asset for the Formal Probate Estate.

WHAT ABOUT SMALL ESTATES?  For smaller estates, a Small Estate Affidavit is designed to be used without an attorney.  However, we often find that these procedures coupled with the distress of a recent loss can be discouraging.  Therefore, we can put the paperwork together for you along with an instruction packet for your use in navigating this procedure.  Please make an appointment to discuss this option.  Clackamas County publishes a good reference sheet on small estates: Clackamas County Small Estate Proceedings