What Is Probate?

Probate is the court process to determine who receives assets owned by someone who has died. The court
appoints a personal representative (or executor) to take charge of the estate, pay all debts and taxes and,
ultimately, distribute the remaining assets to the heirs.

When Is Probate Required?

Some situations requiring probate include:

• The deceased person held sole title to land, bank accounts, or stocks and bonds, and title needs to be
cleared and/or ownership passed to heirs.

• A dispute exists about who is entitled to receive the deceased person´s assets.

• To collect debts owed to the deceased person.

If the deceased person owned real property in another state, a second probate action may also be needed in
that state.

When Is Probate Not Required?

Situations that may not require a probate include:

• The deceased person owned assets of very little value, possibly qualifying for transfer without court
supervision.

• The deceased person owned assets jointly with or 'payable on death' to another person, passing
automatically to the surviving co-owner.

• The deceased person owned assets that named another person as beneficiary.

• The deceased person held all assets in a Revocable Living Trust.

The Probate Process

Step 1: With or Without a Will. The process begins when the person named in a Will as personal representative (sometimes called an 'executor') files papers in the local probate court. This person must prove that the Will is valid. In Oregon, a valid Will requires two witnesses to testify that the person who created the Will was of sound mind and knew what he or she was doing. These witnesses must sign the Will in the presence of each other at the time the Will is created. The personal representative usually provides the court with proof of these requirements in an affidavit signed by at least one of the witnesses.

If there is no Will or if the person named in the Will cannot serve as personal representative of the estate, the court will appoint someone, usually the spouse, an adult child, or a close relative. Probate without a Will is called intestate succession.

Step 2: Inventory and Accounting for Assets. The personal representative must provide a list of all of the deceased person´s assets to the court, and to everyone named in the Will. During the probate, the personal representative may sell assets to pay expenses, depending on the instructions in the Will and the amount of debts. The personal representative must account for all expenses and receipts during the probate process. This accounting must be provided to the court and to all people and entities named in the Will.

Step 3: Creditors of the Estate. The personal representative must actively search for possible creditors of the deceased person. The estate must also publish a notice to creditors in a local newspaper. This process alerts creditors that they have four months in which to make a claim for any debts the deceased person may owe. Finally, the personal representative must provide written notice to all known and possible creditors of the estate.

Step 4: Distribution. The personal representative can request court approval to distribute estate assets after: (1) securing all assets; (2) paying all debts, taxes, and expenses; and, (3) the four-month creditor period expires.

How Long Does Probate Take?

From start to finish, you can expect probate to take six months to one year. You can begin probate immediately after a person dies. Probate can take longer if real property must be sold, or if complex tax issues exist.

What Kinds Of Expenses Does Probate Have?

Expenses associated with probate include the court´s filing fee, a fee for the personal representative, publication of legal notices, tax-preparer fees, and attorney fees. The personal representative´s fee is a set percentage of the estate´s value, based on Oregon law. Tax-preparer fees and attorney fees will vary, depending on the size, complexity, and number of heirs of the estate. Sometimes estates will also have appraisal fees and/or insurance premiums for real or personal property, as well as postage and/or shipping costs.

Attorney fees must be approved by the court before they can be paid. The range of attorney fees can vary greatly depending on the case. The attorney for the personal representative submits a detailed description of all attorney and staff time to the court. The court reviews the attorney´s documents and gives the personal representative permission to pay the attorney.

What If There Are Very Few Assets?

An estate may qualify for a 'small estate' proceeding IF:

1.Real property is worth $200,000 or less; AND

2.Personal property is under $75,000.

Real property includes land and its structures. Personal property includes everything else, such as bank accounts, stocks and bonds, furniture, clothing, cars, and collections.

A small estate proceeding is generally much simpler, less expensive, and faster than a full probate. It has fewer court formalities, and typically takes only four to nine months to complete.






WHAT IS PROBATE COURT?

Each county in Oregon has a probate court department. In most counties, the probate department is part of the circuit court. In five Oregon counties, probate matters are heard by the county court. The probate court has the same full powers as any court of general jurisdiction.

WHAT TYPES OF CASES GO TO PROBATE COURT?

The probate court makes decisions for all of the following types of cases:

1.  Appointment of personal representatives (sometimes called 'executors')

2.  Probate and contest of Wills

3.  Questions of heirship

4.  Guardianships

5.  Conservatorships

6.Supervision and disciplining of personal representatives, guardians, and conservators.
Some of Oregon´s probate courts, such as Multnomah County, also hear and decide cases involving trusts, trustees, and trust administration. Otherwise, cases involving trust administration are heard and decided in the general trial department of the circuit courts.

WHAT TYPES OF CASES REQUIRE AN ACTUAL APPEARANCE IN PROBATE COURT?

Typically, probate court operates by notice of a proposed action to interested parties in a probate matter and then allows the parties an opportunity to object to the proposed action. In the vast majority of cases, there are no objections filed to proposed actions of the parties. In these cases, everything is accomplished by filing paperwork with the court, and no actual appearances by the parties in court are required.

Court appearances may be required in the following situations:

•objections filed to proposed actions;

•an emergency exists; or

•the probate court has questions or concerns about the status of a matter.

Every case has its own unique set of circumstances that may or may not lead to a full trial. Most cases settle before ever going to trial. Contested guardianships and conservatorships are the most common cases to go to trial in probate court, for a number of reasons.
First, the people and the issues at stake are often highly emotional. Family members may not agree on who should serve as guardian or conservator. Communication barriers and/or conflicting goals may prevent reaching a workable agreement, resulting in the need for trial.

Second, the outcome of these cases affects fundamental rights of the proposed protected person. Our society places a high value on every person´s right to make decisions about how and where to live and how to manage and spend money. When a person becomes incapable of making these decisions, there may be a danger to health or personal safety, or the person´s assets may be at risk. But sometimes only slight evidence exists to show the incapacity, and a trial is needed to make this decision. Other cases may have a clear showing of incapacity, but the person objects to it very strongly and needs to have his or her day in court.
Other types of cases that often go to trial in probate court include Will contests and creditor claims in probate cases. Litigation can also occur when a party refuses to cooperate or perform his or her required duties, such as filing tax returns or accounting for the disposition of assets.

WHAT ABOUT MEDIATION?

Cases with conflicts between family members over the appointment of a fiduciary are often appropriate for mediation. Some counties require mediation in contested cases. Many experienced elder law attorneys are available for mediation services, and each local court maintains an active list of such attorneys. Parties who desire mediation assistance should contact their local court to obtain a referral to an experienced mediator.

HOW LONG DOES IT TAKE TO GO TO TRIAL?

If someone files an objection to a petition, some courts assign a trial date that is only a few weeks in the future. This often means that a trial will occur within six to eight weeks of the original filing date of the petition. Other courts may set a date that is six or more months in the future. Often parties will agree to postpone the actual trial to try to work out a solution on their own.

WHAT HAPPENS IF MY CASE GOES TO TRIAL?

A judge decides the outcome of almost all trials held in probate court. A jury trial will only occur where the issue could be described as 'intentional interference with a prospective inheritance.'

Once a court date is set, the petitioner must give 14 days´ notice to everyone required by Oregon law to receive notice. If the case is a contested guardianship, the court visitor must attend the trial. For contested guardianships or conservatorships, many courts require the respondent (the proposed protected person) to attend, particularly if capacity is at issue. Sometimes, in these cases, the respondent´s attorney can appear on his or her behalf. This is especially true if all parties agree to the court´s finding of incapacity and the only question is who shall be appointed.

WHAT EXPENSES ARE INVOLVED IF WE GO TO TRIAL?

Beyond the initial expenses associated with any case filed in probate court, going to trial requires a substantial amount of time for attorney preparation and attendance at the trial.

Contested guardianship and conservatorship cases often have increased supporting costs as well, including psychological testing, medical evaluations, and/or functional assessments. All parties to these cases typically anticipate their attorney fees and costs to be paid from the assets of the protected person, because the process occurred for that person´s benefit. However, a losing party should expect objections if he or she requests payment of fees from the protected person´s assets. If objections are filed, the court will hold an additional hearing to decide the outcome.

DISCLAIMER: The information contained in this document is based on Oregon law and is subject to change. It should be used for general purposes only and should not be construed as specific legal advice by Fitzwater Meyer Hollis & Marmion, LLP or its attorneys. Neither this website nor use of its information creates an attorney-client relationship. If you have specific legal questions, consult with your own attorney or call us for an appointment.