Probate is the legal process of settling a decedent’s estate and distributing property to those entitled to receive it, whether by devise of a will or laws of intestate succession. The laws for probate are codified at Title 12 of the Oregon Revised Statutes.
The scope of probate depends on the size of the decedent’s estate and how he or she held assets during his or her lifetime. Assets that the decedent held in his or her name solely are subject to probate. Property held in joint tenancy with right of survivorship, in a tenancy by the entirety, or with a beneficiary designation pass outside of probate. A typical probate case requires the inventory of assets, submitting multiple accountings, and filing legal paperwork with the court and appropriate tax documents, which may include federal and Oregon estate and inheritance taxes.
The first step of the probate process is to submit a petition for probate of will and appointment of personal representative, or administration of intestate estate and appointment of personal representative with the appropriate district court. The district court of the county in which the decedent resided at the time of death presides over the decedent’s probate estate.
Oregon statutes allow that any interested person may petition for probate (ORS 111.205). An interested person includes “includes heirs, devisees, children, spouses, creditors and any others having a property right or claim against the estate of a decedent that may be affected by the proceeding” (ORS 111.005(20)). The petitioner must determine if the decedent left a will. A decedent is said to be intestate when he or she dies without leaving a valid will (ORS 111.005(21)).
Based on the petition, the court issues letters certifying the appointment and authorizing the personal representative (PR) to conduct the administration of the estate. When a decedent dies testate (with a valid will), letters testamentary are typically granted to the executor named in the will. When the decedent dies intestate, letters of administration are granted by the district court in order established at ORS 113.085. The court must enter the appropriate order appointing the personal representative after he or she gives bond, if required; sometimes the PR’s bond is waived by the decedent’s will.
Among the PR’s first duties as the estate’s fiduciary is the mailing or delivery of information to devisees and heirs, and submitting an affidavit of proof of delivery to the court (ORS 113.145). Within 30 days of appointment, he or she must also give notice of the death to the Department of Human Services (ORS 113.145(6)). The PR then gives notice to interested persons of the appointment (ORS 113.155); this is also referred to as putting creditors on notice, so that they may present any claims against the estate within the time limits established by law. PRs are required to comply with ORS 115.003 as to notifying claimants, with proof of compliance filed with the estate. The PR is required to file inventory of the estate’s assets within 60 days of appointment (ORS 113.165).
Sale of real property may be necessary to make payment of spousal or child support, the elective share of the surviving spouse,* claims and expenses of administration, or for distribution . A PR may also be directed to sell by the decedent’s will. Under ORS 114.325, the PR has the power to sell or convey real property without a hearing, excepting certain circumstances. A hearing is required when the subject property is a specific devise and the decedent’s will does not authorize the sale; the sale is against provisions of the will; or the PR’s bond is not increased to the amount of sale. After debts of the estate are paid (claims and taxes), distribution may proceed following a final accounting. Any part of the decedent’s estate not devised by a will passes by intestate succession as provided in ORS 112.025-055 (ORS 112.015).
To carry out a distribution of real property or to convey title following a sale, the PR executes a personal representative’s deed. When signed by the PR, acknowledged in the presence of a notary public, and recorded in the appropriate county clerk’s recording office, a PR deed titles the subject property in the grantee’s name and provides constructive notice of the grantee’s interest. A PR deed conveys all the right, title, interest, and estate of said decedent at the time of his death.
A personal representative’s deed of distribution following a judgment of final distribution is “a conclusive determination of the persons who are the successors in interest to the estate and of the
extent and character of their interest therein,” (ORS 111.105). In other words, the PR deed “establishes the legitimacy of the successors’ interests” .
The PR deed typically contains no warranties of title, unless expressly stated otherwise (see ORS 93.140). The deed contains information regarding the probated estate, such as the personal representative’s name, the name of the decedent, the county in whose circuit court probate is taking place, and the case number assigned to the estate. The deed should contain the grantee’s full name, mailing address, marital status, and vesting information.
All conveyances of real property in Oregon are required to reflect the true and actual consideration made for the transfer. Consideration is defined as the actual value exchanged for the transfer or conveyance of title, including any indebtedness the purchaser agrees to pay or assume (ORS 93.030). While there is no state transfer tax in Oregon, transfer tax may be due at the county level. Deeds affecting property situated in Washington County are subject to a local transfer tax, though some exemptions apply and are recognized with the proper paperwork in place.
A lawful deed also requires the full legal description of the property being conveyed, or must reference the book and page, document number, or fee number of public record of the county where the description may be found (See ORS 93.600). Oregon law also requires a mandatory statement on all instruments for conveyance of fee title to real property (see ORS 93.040). In compliance with ORS 93.260, the form must reflect the address to which tax statements on the subject property should be sent.
Submit the completed PR deed in the recording division of the appropriate county clerk’s office. Include all appropriate attachments, depending on the situation; these may include a copy of the relevant court order authorizing sale or distribution, if applicable.
The information provided here is not a substitute for legal advice and does not take into account more complicated probate situations. Consult an attorney licensed in the State of Oklahoma with questions regarding fiduciary deeds and probate procedures in that state, as each situation is unique.
* Oregon recognizes a surviving spouse’s right to an elected share of the estate if the decedent was a resident of Oregon and left a valid will. An Election to Receive Elective Share of Estate Under ORS 114.610 must be filed.