Chapter 114

 

      114.015

 

NOTES OF DECISIONS

 

      Where decedent’s wife, in pre-nuptial agreement, agreed that separate property of parties would remain free of any claim of the other during joint life of parties or thereafter, she waived statutory claim to support. Simmons v. Simmons, 82 Or App 540, 728 P2d 921 (1986)

 

      114.105

 

NOTE: Repealed as of January 1, 2011

 

NOTES OF DECISIONS

 

      Where the will provision for payment of inheritance taxes without apportionment operated to benefit the surviving spouse, taxes were properly apportioned to spouse’s elective share since spouse cannot elect against the will and at the same time benefit from provisions of the will. Plue v. Hill, 63 Or App 677, 666 P2d 835 (1983)

 

      Election against will must be served and filed during lifetime of surviving spouse. Kirkeby v. Covenant House, 157 Or App 309, 970 P2d 241 (1998), Sup Ct review denied

 

      Election against will is personal claim of need that expires upon death of surviving spouse. Wilson v. Wilson, 224 Or App 360, 197 P3d 1141 (2008), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 205, 206 (1974); 44 WLR 337 (2007)

 

      114.115

 

NOTE: Repealed as of January 1, 2011

 

LAW REVIEW CITATIONS: 44 WLR 337 (2007)

 

      114.135

 

NOTE: Repealed as of January 1, 2011

 

LAW REVIEW CITATIONS: 44 WLR 337 (2007)

 

      114.255 to 114.435

 

NOTES OF DECISIONS

 

      Where ORS 30.070 grants personal representative “full power” to settle wrongful death claim with approval of probate court and does not require notice to beneficiaries or grant them right to intervene in proceeding to approve settlement but only to be heard as matter of right regarding allocation of proceeds, if personal representative breached fiduciary duty, beneficiaries have remedy under ORS 114.395 and 114.405. Hughes v. White, 41 Or App 439, 599 P2d 1147 (1979), aff’d 289 Or 13, 609 P2d 365 (1980)

 

      114.255

 

NOTES OF DECISIONS

 

      Where action potentially beneficial to an estate was commenced by a person who had good reason to believe that he could maintain the action as a personal representative, but whose appointment was in fact invalid, proper appointment of proper party as a personal representative after running of statute of limitations on underlying claim would relate back to original filing of action where no prejudice was shown; overruling to extent of inconsistency, Richard v. Slate, 239 Or 164, 396 P2d 900 (1964). Rennie v. Pozzi, 294 Or 334, 656 P2d 934 (1982)

 

      114.265

 

NOTES OF DECISIONS

 

      Copersonal representative violated his fiduciary duty by making remarks that resulted in investigation that depleted estate assets and delayed distribution so respondents are entitled to costs and attorney fees under ORS 114.395. Moser v. Van Winkle, 103 Or App 398, 797 P2d 1063 (1990)

 

      114.275

 

NOTES OF DECISIONS

 

      When the personal repesentative’s contract for the sale of real property belonging to the estate specified court approval as a condition of sale, the probate court had authority to approve or disapprove the sale. Helgesson v. Estate of Frank, 17 Or App 133, 521 P2d 16 (1974), Sup Ct review denied

 

      114.395

 

NOTES OF DECISIONS

 

      Copersonal representative violated his fiduciary duty by making remarks that resulted in investigation that depleted estate assets and delayed distribution so respondents are entitled to costs and attorney fees. Moser v. Van Winkle, 103 Or App 398, 797 P2d 1063 (1990)

 

      Court had authority to order personal representative to pay costs and attorney fees under this section. Moser v. Van Winkle, 103 Or App 398, 797 P2d 1063 (1990)

 

      114.405

 

NOTES OF DECISIONS

 

      In absence of bad faith or fraud to deprive attorney of reasonable fees, this section did not imply duty on the part of personal representative to appeal award of attorney fees which attorney for estate deemed inadequate. Smith v. U.S. National Bank, 47 Or App 967, 615 P2d 1119 (1980), Sup Ct review denied

 

      114.435

 

NOTES OF DECISIONS

 

      A suit by the personal representative of an estate to set aside transfers of property needed for payment of the claims of creditors is limited to such suits as are “necessary” for the payment of such claims. Hendrickson v. Warburton, 276 Or 989, 557 P2d 224 (1976); Ledford v. Yonkers, 278 Or 37, 562 P2d 970 (1977)

 

      114.505 to 114.560

 

NOTES OF DECISIONS

 

      Small estate statutory scheme has jurisdictional effect such that all claims within it must be resolved within its process and deadlines. Givan v. Dept. of Human Services, 289 Or App 125, 410 P3d 311 (2017)

 

ATTY. GEN. OPINIONS: Minimum probate filing fees for “small estates,” (1974) Vol 37, p 212

 

LAW REVIEW CITATIONS: 16 WLR 307 (1979); 26 WLR 286 (1990)

 

      114.515

 

NOTES OF DECISIONS

 

      Once small estate process is triggered through filing of affidavit, small estate statutes have exclusive jurisdiction over claims unless personal representative appointed within four months of filing. Givan v. Dept. of Human Services, 289 Or App 125, 410 P3d 311 (2017)

 

      114.525

 

LAW REVIEW CITATIONS: 26 WLR 288 (1990)

 

      114.535

 

LAW REVIEW CITATIONS: 26 WLR 292 (1990)

 

      114.540

 

 

NOTES OF DECISIONS

 

      Once small estate process is triggered through filing of affidavit, small estate statutes have exclusive jurisdiction over claims unless personal representative appointed within four months of filing. Givan v. Dept. of Human Services, 289 Or App 125, 410 P3d 311 (2017)

 

LAW REVIEW CITATIONS: 26 WLR 296 (1990)

 

      114.550 to 114.560

 

LAW REVIEW CITATIONS: 26 WLR 295-297 (1990)

 

      114.555

 

NOTES OF DECISIONS

 

      Interest in estate “is transferred” by operation of law four months after filing affidavit subject to limited listed claims, and probate court lacks jurisdiction to resolve any other claims against estate or order contrary disposition of estate property, even if full probate is subsequently initiated and allowed. Givan v. Dept. of Human Services, 289 Or App 125, 410 P3d 311 (2017)