TITLE 12

PROBATE LAW

 

Chapter     111.     General Provisions

                  112.     Intestate Succession and Wills

                  113.     Initiation of Estate Proceedings

                  114.     Administration of Estates Generally

                  115.     Claims; Actions and Suits

                  116.     Accounting, Distribution and Closing

                  117.     Estates of Absentees

                  118.     Estate Tax

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Chapter 111 — General Provisions

 

2013 EDITION

 

GENERAL PROVISIONS

 

PROBATE LAW

 

DEFINITIONS AND APPLICATION OF PROBATE LAW

 

111.005     Definitions for probate law

 

111.015     Application of chapter 591, Oregon Laws 1969

 

111.025     Oregon Tax Court jurisdiction

 

PROBATE COURTS AND COMMISSIONERS

 

111.055     Transfer of probate jurisdiction

 

111.075     Probate jurisdiction vested

 

111.085     Probate jurisdiction described

 

111.095     Powers of probate court

 

111.105     Appeals from probate court; reexamination of issues

 

111.115     Transfer of estate proceeding from county court to circuit court

 

111.175     Appointment of probate commissioner

 

111.185     Powers of probate commissioner

 

PROBATE PROCEDURE GENERALLY

 

111.205     Pleadings and mode of procedure

 

111.215     Notice; method and time of giving

 

111.218     Proof of mailing or other delivery; proof of publication

 

111.225     Waiver of notice

 

111.235     Filing objections to petition

 

111.245     Proof of documents; certification

 

111.255     Translation of documents

 

111.265     Stenographic record

 

111.275     Limited judgments

 

DEFINITIONS AND APPLICATION OF PROBATE LAW

 

      111.005 Definitions for probate law. As used in ORS chapters 111, 112, 113, 114, 115, 116 and 117, unless the context requires otherwise:

      (1) “Abate” means to reduce a devise on account of the insufficiency of the estate to pay all claims, expenses and devises in full.

      (2) “Action” includes suits and legal proceedings.

      (3) “Administration” means any proceeding relating to the estate of a decedent, whether the decedent died testate, intestate or partially intestate.

      (4) “Advancement” means a gift by a decedent to an heir to enable the donee to anticipate the inheritance to the extent of the gift.

      (5) “All purposes of intestate succession” means succession by, through or from a person, both lineal and collateral.

      (6) “Assets” includes real, personal and intangible property.

      (7) “Claim” includes liabilities of a decedent, whether arising in contract, in tort or otherwise.

      (8) “Court” or “probate court” means the court in which jurisdiction of probate matters, causes and proceedings is vested as provided in ORS 111.075.

      (9) “Decedent” means a person who has died leaving property that is subject to administration.

      (10) “Devise,” when used as a noun, means property disposed of by a will, and includes “legacy” and “bequest.”

      (11) “Devise,” when used as a verb, means to dispose of property by a will, and includes “bequeath.”

      (12) “Devisee” includes “legatee” and “beneficiary.”

      (13) “Distributee” means a person entitled to any property of a decedent under the will of the decedent or under intestate succession.

      (14) “Domicile” means the place of abode of a person, where the person intends to remain and to which, if absent, the person intends to return.

      (15) “Estate” means the real and personal property of a decedent, as from time to time changed in form by sale, reinvestment or otherwise, and augmented by any accretions or additions thereto and substitutions therefor or diminished by any decreases and distributions therefrom.

      (16) “Funeral” includes burial or other disposition of the remains of a decedent, including the plot or tomb and other necessary incidents to the disposition of the remains.

      (17) “General devise” means a devise chargeable generally on the estate of a testator and not distinguishable from other parts thereof or not so given as to amount to a specific devise.

      (18) “Heir” means any person, including the surviving spouse, who is entitled under intestate succession to the property of a decedent who died wholly or partially intestate.

      (19) “Interested person” 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. It also includes fiduciaries representing interested persons.

      (20) “Intestate” means one who dies without leaving a valid will, or the circumstance of dying without leaving a valid will, effectively disposing of all the estate.

      (21) “Intestate succession” means succession to property of a decedent who dies intestate or partially intestate.

      (22) “Issue” includes adopted children and their issue and, when used to refer to persons who take by intestate succession, includes all lineal descendants, except those who are the lineal descendants of living lineal descendants.

      (23) “Net estate” means the real and personal property of a decedent, except property used for the support of the surviving spouse and children and for the payment of expenses of administration, funeral expenses, claims and taxes.

      (24) “Net intestate estate” means any part of the net estate of a decedent not effectively disposed of by the will.

      (25) “Personal property” includes all property other than real property.

      (26) “Personal representative” includes executor, administrator, administrator with will annexed and administrator de bonis non, but does not include special administrator.

      (27) “Property” includes both real and personal property.

      (28) “Real property” includes all legal and equitable interests in land, in fee and for life.

      (29) “Settlement” includes, as to the estate of a decedent, the full process of administration, distribution and closing.

      (30) “Specific devise” means a devise of a specific thing or specified part of the estate of a testator that is so described as to be capable of identification. It is a gift of a part of the estate identified and differentiated from all other parts.

      (31) “Will” includes codicil; it also includes a testamentary instrument that merely appoints an executor or that merely revokes or revives another will. [1969 c.591 §1]

 

      111.010 [Repealed by 1969 c.591 §305]

 

      111.015 Application of chapter 591, Oregon Laws 1969. Except as specifically provided otherwise in chapter 591, Oregon Laws 1969, on July 1, 1970:

      (1) Chapter 591, Oregon Laws 1969, applies to wills of decedents dying thereon or thereafter, and a will executed before July 1, 1970, shall be considered lawfully executed if the application of ORS 112.255 would make it so, but the construction of a will executed before July 1, 1970, shall be governed by the law in effect on the date of execution unless a contrary intent is established by the will.

      (2) The procedure prescribed by chapter 591, Oregon Laws 1969, applies to any proceedings commenced thereon or thereafter regardless of the time of the death of a decedent, and also as to any further procedure in proceedings then pending except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure prescribed by chapter 591, Oregon Laws 1969.

      (3) A personal representative, guardian or conservator holding an appointment on that date shall continue to hold the appointment, but shall have only the powers conferred and be subject to the duties imposed by chapter 591, Oregon Laws 1969, with respect to any act occurring or done thereon or thereafter, other than acts pursuant to powers or duties validly conferred or imposed by a will executed before July 1, 1970.

      (4) An act done before July 1, 1970, in any proceeding and any accrued right shall not be impaired by chapter 591, Oregon Laws 1969. When a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before July 1, 1970, those provisions shall remain in force with respect to that right. [1969 c.591 §303]

 

      111.020 [Repealed by 1969 c.591 §305]

 

      111.025 Oregon Tax Court jurisdiction. For purposes of ORS chapters 111 to 116, the Oregon Tax Court is not a court having probate jurisdiction and is limited to the trial of appeals on inheritance or estate tax matters. [1971 c.567 §3; 1997 c.99 §25; 2011 c.526 §17]

 

      111.030 [Repealed by 1969 c.591 §305]

 

      111.040 [Repealed by 1969 c.591 §305]

 

      111.050 [Repealed by 1969 c.591 §305]

 

PROBATE COURTS AND COMMISSIONERS

 

      111.055 Transfer of probate jurisdiction. (1) All probate jurisdiction, authority, powers, functions and duties of the county courts and the judges thereof are transferred to the circuit courts and the judges thereof in all counties except Gilliam, Grant, Harney, Malheur, Sherman and Wheeler Counties.

      (2) All probate jurisdiction, authority, powers, functions and duties of the circuit courts and the judges thereof are transferred to the county courts and the judges thereof in Gilliam, Grant, Harney, Malheur, Sherman and Wheeler Counties. [1969 c.591 §2; 1995 c.658 §71]

 

      111.060 [Repealed by 1969 c.591 §305]

 

      111.065 [1969 c.591 §3; 1979 c.683 §34; repealed by 1983 c.740 §12]

 

      111.070 [Repealed by 1969 c.591 §305]

 

      111.075 Probate jurisdiction vested. Jurisdiction of all probate matters, causes and proceedings is vested in the county courts of Gilliam, Grant, Harney, Malheur, Sherman and Wheeler Counties and in the circuit court for each other county and as provided in ORS 111.115. [1969 c.591 §4]

 

      111.085 Probate jurisdiction described. The jurisdiction of the probate court includes, but is not limited to:

      (1) Appointment and qualification of personal representatives.

      (2) Probate and contest of wills.

      (3) Determination of heirship.

      (4) Determination of title to and rights in property claimed by or against personal representatives, guardians and conservators.

      (5) Administration, settlement and distribution of estates of decedents.

      (6) Construction of wills, whether incident to the administration or distribution of an estate or as a separate proceeding.

      (7) Guardianships and conservatorships, including the appointment and qualification of guardians and conservators and the administration, settlement and closing of guardianships and conservatorships.

      (8) Supervision and disciplining of personal representatives, guardians and conservators.

      (9) Appointment of a successor testamentary trustee where the vacancy occurs prior to, or during the pendency of, the probate proceeding. [1969 c.591 §5; 1973 c.177 §1]

 

      111.095 Powers of probate court. (1) The general legal and equitable powers of a circuit court are applicable to effectuate the jurisdiction of a probate court, punish contempts and carry out its determinations, orders and judgments as a court of record with general jurisdiction, and the same validity, finality and presumption of regularity shall be accorded to its determinations, orders and judgments, including determinations of its own jurisdiction, as to those of a court of record with general jurisdiction.

      (2) A probate court has full, legal and equitable powers to make declaratory judgments, as provided in ORS 28.010 to 28.160, in all matters involved in the administration of an estate, including those pertaining to the title of real property, the determination of heirship and the distribution of the estate. [1969 c.591 §6; 1979 c.284 §102]

 

      111.105 Appeals from probate court; reexamination of issues. (1) Except as otherwise provided in this section, no issue determined in a probate court shall be tried again on appeal or otherwise reexamined in a manner other than those appropriate to issues determined by a court of record with general jurisdiction.

      (2) Appeals from a circuit court sitting in probate shall be taken to the Court of Appeals in the manner provided by law for appeals from the circuit court.

      (3) Appeals from a county court sitting in probate shall be taken to the circuit court and Court of Appeals in the manner provided by ORS 5.120. [1969 c.591 §7; 1979 c.284 §103]

 

      111.110 [Repealed by 1969 c.591 §305]

 

      111.115 Transfer of estate proceeding from county court to circuit court. (1) An estate proceeding, including all probate matters, causes and proceedings pertaining thereto, may be transferred at any time from a county court sitting in probate to the circuit court for the county by order of the county court.

      (2) An estate proceeding, including all probate matters, causes and proceedings pertaining thereto, commenced in a county court sitting in probate and in which the county judge is a party or directly interested shall be transferred from the county court to the circuit court for the county by order of the county court.

      (3) Upon transfer of an estate proceeding from a county court to the circuit court under this section, the county clerk shall certify and cause to be filed in the records of the circuit court all original papers and proceedings pertaining to the estate proceeding, and thereafter jurisdiction of all probate matters, causes and proceedings pertaining to the estate proceeding is vested in the circuit court as if that jurisdiction had been originally and exclusively vested in the circuit court. [1969 c.591 §8]

 

      111.120 [Repealed by 1969 c.591 §305]

 

      111.130 [Repealed by 1969 c.591 §305]

 

      111.140 [Repealed by 1969 c.591 §305]

 

      111.150 [Repealed by 1969 c.591 §305]

 

      111.160 [Repealed by 1969 c.591 §305]

 

      111.165 [1969 c.591 §9; repealed by 1995 c.658 §127]

 

      111.170 [Repealed by 1969 c.591 §305]

 

      111.175 Appointment of probate commissioner. The court may appoint the clerk of the probate court or some other suitable person at the county seat to act as probate commissioner within the county. If the clerk of the probate court is appointed probate commissioner, the deputy of the clerk has the power to perform any act as probate commissioner that the clerk has, and the clerk is responsible for conduct of the deputy so acting. [1969 c.591 §10]

 

      111.185 Powers of probate commissioner. (1) A probate commissioner may act upon uncontested petitions for appointment of special administrators, for probate of wills and for appointment of personal representatives, guardians and conservators, to the extent authorized by rule of the court. Pursuant thereto the probate commissioner may make and enter orders on behalf of the court admitting wills to probate and appointing and setting the amount of the bonds of special administrators, personal representatives, guardians and conservators, subject to the orders of the probate commissioner being set aside or modified by the judge of the court within 30 days after the date an order is entered.

      (2) Any matter presented to the probate commissioner may be referred by the probate commissioner to the judge.

      (3) Unless set aside or modified by the judge, the orders of the probate commissioner have the same effect as if made by the judge. [1969 c.591 §11]

 

PROBATE PROCEDURE GENERALLY

 

      111.205 Pleadings and mode of procedure. No particular pleadings or forms thereof are required in the exercise of jurisdiction of probate courts. The mode of procedure in the exercise of jurisdiction is in the nature of an action not triable by right to a jury except as otherwise provided by statute. The proceedings shall be in writing and upon the petition of a party in interest or the order of the court. All petitions, reports and accounts in proceedings before a probate court must include a declaration under penalty of perjury in the form required by ORCP 1 E, or an unsworn declaration under ORS 194.800 to 194.835, if the declarant is physically outside the boundaries of the United States, made by at least one of the persons making the petitions, reports and accounts or by the attorney for the person, or in case of a corporation by its agent. The court exercises its powers by means of:

      (1) A petition of a party in interest.

      (2) A notice to a party.

      (3) A subpoena to a witness.

      (4) Orders and judgments.

      (5) An execution or warrant to enforce its orders and judgments. [1969 c.591 §12; 1979 c.284 §104; 2007 c.284 §1; 2013 c.218 §13]

 

      111.210 [Repealed by 1969 c.591 §305]

 

      111.212 [1953 c.650 §2; repealed by 1969 c.591 §305]

 

      111.215 Notice; method and time of giving. (1) Except as otherwise specifically provided in ORS chapters 111, 112, 113, 114, 115, 116 and 117, whenever notice is required to be given of a hearing on any petition or other matter upon which an order is sought, the petitioner or other person filing the matter shall cause notice of the date, time and place of the hearing to be given to each person interested in the subject of the hearing or to the attorney of the person, if the person has appeared by attorney or requested that notice be sent to the attorney of the person, in any one or more of the following ways and within the following times:

      (a) By mailing a copy thereof addressed to the person or the attorney of the person at least 14 days before the date set for the hearing.

      (b) By delivering a copy thereof to the person personally or to the attorney of the person at least five days before the date set for the hearing.

      (c) If the address of any person is not known or cannot be ascertained with reasonable diligence, by publishing a copy thereof once in each of three consecutive weeks in a newspaper of general circulation in the county where the hearing is to be held, the last publication of which shall be at least 10 days before the date set for the hearing.

      (2) Upon good cause shown the court may change the requirements as to the method or time of giving notice for any hearing.

      (3) Proof of the giving of notice must be made at or before the hearing and filed in the proceeding. [1969 c.591 §13; 2007 c.284 §8]

 

      111.218 Proof of mailing or other delivery; proof of publication. (1) When proof of mailing, or other delivery of notice or other documents, is required to be filed in probate court, proof shall be made in the form required by ORCP 9 C.

      (2) When proof of publication is required to be filed in probate court, proof shall be made in the form required by ORCP 7 F. [2007 c.284 §7]

 

      111.220 [Repealed by 1957 c.411 §7]

 

      111.225 Waiver of notice. When any notice or information is required to be given under ORS chapters 111, 112, 113, 114, 115, 116 and 117, a guardian, a guardian ad litem, a conservator or a person who is neither incompetent nor a minor may waive notice by a writing signed by the guardian, guardian at litem, conservator or person or the attorney of the guardian, guardian ad litem, conservator or person and filed in the proceeding, or by the appearance of the guardian, guardian ad litem, conservator or person at the hearing. [1969 c.591 §14; 1973 c.506 §5]

 

      111.230 [Repealed by 1957 c.411 §7]

 

      111.231 [1957 c.411 §3; repealed by 1969 c.591 §305]

 

      111.235 Filing objections to petition. Any interested person, on or before the date set for a hearing, may file written objections to a petition previously filed. [1969 c.591 §15]

 

      111.240 [Repealed by 1957 c.411 §7]

 

      111.245 Proof of documents; certification. (1) Proof of documents pursuant to ORS chapters 111, 112, 113, 114, 115, 116 and 117 may be made as follows:

      (a) Of a will, by a certified copy thereof.

      (b) That a will has been probated or established in a foreign jurisdiction, by a certified copy of the order admitting the will to probate or evidencing its establishment.

      (c) Of letters testamentary or of administration, by a certified copy thereof. The certification may include a statement that the letters have not been revoked.

      (2) A document or order filed or entered in a foreign jurisdiction may be proved by a copy thereof, certified by a clerk of the court in which the document or order was filed or entered or by any other official having legal custody of the original document or order. [1969 c.591 §16]

 

      111.255 Translation of documents. If a document or part thereof is not in the English language, a translation certified by the translator to be accurate may be attached thereto and shall be regarded as sufficient evidence of the contents of the document, unless objection is made thereto. In the absence of objection, if any person relies in good faith on the accuracy of the translation the person shall not be prejudiced thereafter because of its inaccuracy. [1969 c.591 §17]

 

      111.265 Stenographic record. The judge of the court may, on the motion of the judge or on the request of an interested person, direct the reporter of the court to attend any hearing and make a stenographic record of the same. [1969 c.591 §18]

 

      111.275 Limited judgments. (1) The court in a probate proceeding under ORS chapters 111, 112, 113, 114, 115, 116 and 117 may enter a limited judgment only for the following decisions of the court:

      (a) A decision on a petition for appointment or removal of a personal representative.

      (b) A decision in a will contest filed in the probate proceeding.

      (c) A decision on an objection to an accounting.

      (d) A decision on a request made in the proceeding for a declaratory judgment under ORS 111.095.

      (e) A decision on a request for an award of expenses under ORS 116.183.

      (f) Such decisions of the court as may be specified by rules or orders of the Chief Justice of the Supreme Court under ORS 18.028.

      (2) A court may enter a limited judgment under this section only if the court determines that there is no just reason for delay. The judgment document need not reflect the court’s determination that there is no just reason for delay. [2005 c.568 §33; 2009 c.50 §1]

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