Chapter 114 — Administration of Estates Generally

 

2019 EDITION

 

 

ADMINISTRATION OF ESTATES GENERALLY

 

PROBATE LAW

 

SUPPORT OF SPOUSE AND CHILDREN

 

114.005     Occupancy of principal dwelling of decedent by spouse and children

 

114.015     Support of spouse and children

 

114.025     Petition for support and answer

 

114.035     Temporary support

 

114.045     Modification or termination of support

 

114.055     Nature of support

 

114.065     Limitations on support

 

114.075     Priority of support; treated as administration expense

 

114.085     Setting apart whole estate for support; termination of administration

 

TITLE AND POSSESSION OF PROPERTY

 

114.205     No distinction between real and personal property

 

114.215     Devolution of and title to property; custody of pets

 

114.225     Possession and control of decedent’s estate

 

DUTIES AND POWERS OF PERSONAL REPRESENTATIVES

 

114.255     Commencement of duties and powers of personal representative; prior acts

 

114.265     General duties of personal representative

 

114.275     Personal representative to proceed without court order; application for authority, approval or instructions

 

114.285     Naming or appointment of personal representative does not discharge claim

 

114.295     Discharge or devise in will of claim of testator

 

114.305     Transactions authorized for personal representative

 

114.315     Right to perfect lien or security interest

 

114.325     Power to sell, mortgage, lease and deal with property

 

114.333     Transfer of title and interest to real property by foreign personal representative

 

114.335     Court order for sale, mortgage or lease

 

114.345     Title conveyed free of claims of creditors

 

114.355     Sale or encumbrance to personal representative voidable; exceptions

 

114.365     Validation of certain sales

 

114.375     Nonliability of transfer agents

 

114.385     Persons dealing with personal representative; protection

 

114.395     Improper exercise of power; breach of fiduciary duty

 

114.405     Personal liability of personal representative

 

114.415     Copersonal representatives; when joint action required

 

114.425     Discovery of property, writings and information

 

114.435     Power to avoid transfers

 

WRONGFUL DEATH CLAIMS AND ESTATES WITH PERSONAL INJURY CLAIMS

 

(Generally)

 

114.441     Definitions for ORS 114.441 to 114.462

 

114.444     Application

 

(Court Approval of Settlement)

 

114.447     Court approval of settlement of personal injury claim or wrongful death claim

 

(Probate of Estate With Personal Injury Claim as Only Asset)

 

114.450     Deferral of requirements

 

(Probate for Sole Purpose of Pursuing Wrongful Death Claim)

 

114.453     Petition for appointment of personal representative

 

114.456     Information to beneficiaries and Department of Human Services and Oregon Health Authority

 

114.459     Waiver of requirements

 

114.462     Motion to close estate; objections; judgment; discharge of personal representative

 

SMALL ESTATES

 

114.505     Definitions for ORS 114.505 to 114.560

 

114.510     Value limitations for small estate

 

114.515     Small estate affidavit; who may file; fee; amended affidavit; procedure when value of estate exceeds limitations; acknowledgment by clerk

 

114.517     Approval of attorneys filing affidavits for recipients of Medicaid or other public assistance

 

114.520     Authorization from Department of State Lands required for filing of affidavit by creditor if decedent dies intestate and without heirs; rules

 

114.525     Content of affidavit; rules

 

114.535     Transfer of decedent’s property to affiant; payment of debt owing to decedent; motion to compel transfer or payment

 

114.537     Safe deposit boxes

 

114.540     Procedure for claims

 

114.542     Summary determination

 

114.545     Affiant as fiduciary; duties, functions and powers of affiant; limitation of liability of financial institution

 

114.547     Sales and transfers to third parties

 

114.549     Liability of affiant

 

114.550     Summary review of administration of estate; hearing; order; removal of affiant; surcharge

 

114.552     Filing fees

 

114.555     Transfer of interest of decedent in property described in affidavit

 

114.560     Exclusive remedy

 

ELECTIVE SHARE FOR DECEDENTS WHO DIE ON OR AFTER JANUARY 1, 2011

 

(Generally)

 

114.600     Elective share generally

 

114.605     Amount of elective share

 

114.610     Manner of making election

 

114.615     Payment of elective share

 

114.620     Waiver of right to elect and other rights

 

114.625     Who may exercise right of election

 

(Augmented Estate)

 

114.630     Augmented estate

 

114.635     Exclusions from augmented estate

 

(Decedent’s Probate Estate)

 

114.650     Decedent’s probate estate

 

(Decedent’s Nonprobate Estate)

 

114.660     Decedent’s nonprobate estate

 

114.665     Decedent’s nonprobate estate; property owned immediately before death

 

(Surviving Spouse’s Estate)

 

114.675     Surviving spouse’s estate

 

(Decedent’s Probate Transfers to Spouse)

 

114.685     Decedent’s probate transfers to surviving spouse

 

(Decedent’s Nonprobate Transfers to Spouse)

 

114.690     Decedent’s nonprobate transfers to surviving spouse

 

(Payment of Elective Share)

 

114.700     Priority of sources from which elective share payable

 

114.705     Liability of recipients of decedent’s nonprobate estate

 

114.710     Protective order

 

(Procedure)

 

114.720     Proceedings to claim elective share

 

114.725     Effect of separation

 

SUPPORT OF SPOUSE AND CHILDREN

 

      114.005 Occupancy of principal dwelling of decedent by spouse and children. (1) Except as provided in subsection (3) of this section, the spouse and dependent children of a decedent occupying the principal dwelling of the decedent at the time of the decedent’s death, or any of them, may continue to occupy the dwelling until:

      (a) One year after the death of the decedent; or

      (b) If the decedent’s interest in the dwelling is a leasehold or otherwise less than a fee interest, until one year after the death of the decedent or the earlier termination of the interest.

      (2) During an occupancy under subsection (1) of this section:

      (a) The occupants may not commit or permit waste to the dwelling, or cause or permit construction liens or other liens to attach to the dwelling.

      (b) The occupants shall pay the cost to keep the dwelling insured, to the extent of the fair market value of the improvements, against fire and other hazards within the extended coverage provided by fire insurance policies, with loss payable to the estate.

      (c) The occupants shall pay taxes and improvement liens on the dwelling as payment of the liens becomes due.

      (d) The dwelling is exempt from execution to the extent that the dwelling was exempt when the decedent was living.

      (e) The dwelling is subject to the rights of persons having a security interest in the dwelling.

      (3) For good cause shown, the court may waive or alter the provisions of subsection (1) of this section. [1969 c.591 §103; 2017 c.169 §24]

 

      114.010 [Repealed by 1969 c.591 §305]

 

      114.015 Support of spouse and children. The court by order shall make necessary and reasonable provision from the estate of a decedent for the support of the spouse and dependent children of the decedent, or any of them, upon:

      (1) Petition therefor by or on behalf of the spouse or any dependent child;

      (2) Service of the petition and notice of hearing thereon to the personal representative, unless the petitioner is the personal representative;

      (3) Notice to persons whose distributive shares of the estate may be diminished by the granting of the petition, unless the court by order directs otherwise; and

      (4) Hearing. [1969 c.591 §104]

 

      114.020 [Amended by 1955 c.69 §1; repealed by 1969 c.591 §305]

 

      114.025 Petition for support and answer. (1) The petition for support under ORS 114.015 shall include a description of property, other than property of the estate, available for the support of the spouse and children, and an estimate of the expenses anticipated for their support. If the petitioner is the personal representative, the petition shall also include, so far as known, a statement of the nature and estimated value of the property of the estate and of the nature and estimated amount of claims, taxes and expenses of administration.

      (2) If the personal representative is not the petitioner, the personal representative shall answer the petition for support. The answer shall include, so far as known, a statement of the nature and estimated value of the property of the estate and of the nature and estimated amount of claims, taxes and expenses of administration. [1969 c.591 §105]

 

      114.030 [Repealed by 1969 c.591 §305]

 

      114.035 Temporary support. Pending hearing upon the petition under ORS 114.015, temporary support may be allowed by order of the court in an amount and of a nature the court considers reasonably necessary for the welfare of the surviving spouse and dependent children of the decedent or any of them. [1969 c.591 §106]

 

      114.040 [Repealed by 1969 c.591 §305]

 

      114.045 Modification or termination of support. Provision for support under ORS 114.015 ordered by the court may be modified or terminated by the court by further order. [1969 c.591 §107]

 

      114.050 [Repealed by 1969 c.591 §305]

 

      114.055 Nature of support. (1) Provision for support under ORS 114.015 ordered by the court may consist of any one or more of the following:

      (a) Transfer of title to personal property.

      (b) Transfer of title to real property.

      (c) Periodic payment of moneys during administration of the estate, but the payments may not continue for more than two years after the date of death of the decedent.

      (2) The court, in determining provision for support, shall take into consideration the solvency of the estate, property available for support other than property of the estate, and property of the estate inherited by or devised to the spouse and children. [1969 c.591 §108]

 

      114.060 [Repealed by 1969 c.591 §305]

 

      114.065 Limitations on support. If it appears to the court that after provision for support under ORS 114.015 is made the estate will be insolvent, the provision for support ordered by the court shall not exceed one-half of the estimated value of the property of the estate, and any periodic payment of moneys so ordered shall not continue for more than one year after the date of death of the decedent. [1969 c.591 §109]

 

      114.070 [1957 c.345 §1; repealed by 1969 c.591 §305]

 

      114.075 Priority of support; treated as administration expense. Subject to the limitations imposed by ORS 114.065, provision for support under ORS 114.015 ordered by the court has priority over claims and expenses of administration. The provision is not charged against the distributive share of the person receiving support. The provision is treated as an expense of administration, but not as a deduction for estate tax purposes. [1969 c.591 §110; 2011 c.526 §18]

 

      114.085 Setting apart whole estate for support; termination of administration. If it appears, after the expiration of four months after the date of the first publication of notice to interested persons, that reasonable provision for support of the spouse and dependent children of the decedent, or any of them, warrants that the whole of the estate, after payment of claims, taxes and expenses of administration, be set apart for such support, the court may so order. There shall be no further proceeding in the administration of the estate, and the estate shall summarily be closed. [1969 c.591 §111]

 

      114.105 [1969 c.591 §112; 1997 c.99 §22; repealed by 2009 c.574 §25]

 

      114.110 [Repealed by 1969 c.591 §305]

 

      114.115 [1969 c.591 §113; repealed by 2009 c.574 §25]

 

      114.120 [Repealed by 1969 c.591 §305]

 

      114.125 [1969 c.591 §114; repealed by 2009 c.574 §25]

 

      114.130 [Amended by 1955 c.266 §1; 1965 c.506 §1; repealed by 1969 c.591 §305]

 

      114.135 [1969 c.591 §115; 2003 c.576 §374; repealed by 2009 c.574 §25]

 

      114.140 [Repealed by 1969 c.591 §305]

 

      114.145 [1969 c.591 §116; repealed by 2009 c.574 §25]

 

      114.150 [Repealed by 1969 c.591 §305]

 

      114.155 [1969 c.591 §117; 1973 c.823 §109; 1995 c.664 §85; repealed by 2009 c.574 §25]

 

      114.165 [1969 c.591 §118; repealed by 2009 c.574 §25]

 

TITLE AND POSSESSION OF PROPERTY

 

      114.205 No distinction between real and personal property. ORS chapters 111, 112, 113, 114, 115, 116 and 117 apply without distinction between real and personal property. [1969 c.591 §119]

 

      114.210 [Repealed by 1969 c.591 §305]

 

      114.215 Devolution of and title to property; custody of pets. (1) Upon the death of a decedent, title to the property of the decedent vests:

      (a) In the absence of testamentary disposition, in the heirs of the decedent, subject to support of spouse and children, rights of creditors, administration and sale by the personal representative or affiant as defined in ORS 114.505; or

      (b) In the persons to whom it is devised by the will of the decedent, subject to support of spouse and children, rights of creditors, right of the surviving spouse to elect against the will, administration and sale by the personal representative or affiant as defined in ORS 114.505.

      (2) The power of a person to leave property by will, and the rights of creditors, devisees and heirs to the property of the person, are subject to the restrictions and limitations expressed or implicit in ORS chapters 111, 112, 113, 114, 115, 116 and 117 to facilitate the prompt settlement of estates.

      (3) Any animal of a value of less than $2,500 that belonged to the decedent and that was kept by the decedent as a pet need not be listed on the inventory of the estate. Any family member of the decedent, friend of the decedent or animal shelter may take custody of the animal immediately upon the death of the decedent. A family member, friend or animal shelter that takes custody of an animal under this subsection is entitled to payment from the estate for the cost of caring for the animal. A family member, friend or animal shelter that takes custody of an animal under this subsection shall deliver the animal to the personal representative for the decedent, or to any heir or devisee entitled to possession of the animal, upon request of the personal representative, heir or devisee. [1969 c.591 §120; 1999 c.675 §1; 2019 c.165 §21]

 

      114.220 [Repealed by 1969 c.591 §305]

 

      114.225 Possession and control of decedent’s estate. A personal representative has a right to and shall take possession and control of the estate of the decedent, but the personal representative is not required to take possession of or be accountable for property in the possession of an heir or devisee unless in the opinion of the personal representative possession by the personal representative is reasonably required for purposes of administration. [1969 c.591 §121]

 

      114.230 [Repealed by 1969 c.591 §305]

 

      114.240 [Repealed by 1969 c.591 §305]

 

      114.250 [Repealed by 1969 c.591 §305]

 

DUTIES AND POWERS OF PERSONAL REPRESENTATIVES

 

      114.255 Commencement of duties and powers of personal representative; prior acts. The duties and powers of a personal representative commence upon the issuance of the letters of the personal representative. The powers of a personal representative relate back in time to give the acts of the personal representative occurring prior to appointment the same effect as those occurring thereafter. A personal representative may ratify and accept acts on behalf of the estate done by others where those acts would have been proper for a personal representative. [1969 c.591 §122]

 

      114.260 [Repealed by 1969 c.591 §305]

 

      114.265 General duties of personal representative. A personal representative is a fiduciary who is under a general duty to and shall collect the income from property of the estate in the possession of the personal representative and preserve, settle and distribute the estate in accordance with the terms of the will and ORS chapters 111, 112, 113, 114, 115, 116 and 117 as expeditiously and with as little sacrifice of value as is reasonable under the circumstances. [1969 c.591 §123]

 

      114.270 [Repealed by 1969 c.591 §305]

 

      114.275 Personal representative to proceed without court order; application for authority, approval or instructions. A personal representative shall proceed with the administration, settlement and distribution of the estate without adjudication, order or direction of the court, except as otherwise provided in ORS chapters 111, 112, 113, 114, 115, 116 and 117. However, a personal representative or any interested person may apply to the court for authority, approval or instructions on any matter concerning the administration, settlement or distribution of the estate, and the court, without hearing or upon such hearing as it may prescribe, shall instruct the personal representative or rule on the matter as may be appropriate. [1969 c.591 §124]

 

      114.285 Naming or appointment of personal representative does not discharge claim. The naming or appointment of any person as personal representative does not discharge any claim which the decedent had against that person. The claim shall be included in the inventory. If the person agrees to act as personal representative, the person is liable for the claim as for so much money in the hands of the person at the time the claim becomes due and payable; otherwise the person is liable for the claim as any other debtor of the decedent. [1969 c.591 §125]

 

      114.295 Discharge or devise in will of claim of testator. The discharge or devise in a will of a claim of the testator against a personal representative or against any other person is of no effect as against creditors of the decedent. The claim shall be included in the inventory and for purposes of administration shall be regarded and treated as a specific devise of the amount of the claim. [1969 c.591 §126]

 

      114.305 Transactions authorized for personal representative. Subject to the provisions of ORS 97.130 (2) and (11) and except as restricted or otherwise provided by the will of the decedent, a document of anatomical gift under ORS 97.965 or by court order, a personal representative, acting reasonably for the benefit of interested persons, is authorized to:

      (1) Direct and authorize disposition of the remains of the decedent pursuant to ORS 97.130 and incur expenses for the funeral in a manner suitable to the condition in life of the decedent. Only those funeral expenses necessary for a plain and decent funeral may be paid from the estate if the assets are insufficient to pay the claims of the Department of Human Services and the Oregon Health Authority for the net amount of public assistance, as defined in ORS 411.010, or medical assistance, as defined in ORS 414.025, paid to or for the decedent and for care and maintenance of any decedent who was at a state institution to the extent provided in ORS 179.610 to 179.770.

      (2) Retain assets owned by the decedent pending distribution or liquidation.

      (3) Receive assets from fiduciaries or other sources.

      (4) Complete, compromise or refuse performance of contracts of the decedent that continue as obligations of the estate, as the personal representative may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease real property, the personal representative, among other courses of action, may:

      (a) Execute and deliver a deed upon satisfaction of any sum remaining unpaid or upon receipt of the note of the purchaser adequately secured; or

      (b) Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement.

      (5) Satisfy written pledges of the decedent for contributions, whether or not the pledges constituted binding obligations of the decedent or were properly presented as claims.

      (6) Deposit funds not needed to meet currently payable debts and expenses, and not immediately distributable, in bank or savings and loan association accounts, or invest the funds in bank or savings and loan association certificates of deposit, or federally regulated money-market funds and short-term investment funds suitable for investment by trustees under ORS 130.750 to 130.775, or short-term United States Government obligations.

      (7) Abandon burdensome property when it is valueless, or is so encumbered or is in a condition that it is of no benefit to the estate.

      (8) Vote stocks or other securities in person or by general or limited proxy.

      (9) Pay calls, assessments and other sums chargeable or accruing against or on account of securities.

      (10) Sell or exercise stock subscription or conversion rights.

      (11) Consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise.

      (12) Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate, but the personal representative is liable for any act of the nominee in connection with the security so held.

      (13) Insure the assets of the estate against damage and loss, and insure the personal representative against liability to third persons.

      (14) Advance or borrow money with or without security.

      (15) Compromise, extend, renew or otherwise modify an obligation owing to the estate. A personal representative who holds a mortgage, pledge, lien or other security interest may accept a conveyance or transfer of the encumbered asset in lieu of foreclosure in full or partial satisfaction of the indebtedness.

      (16) Accept other real property in part payment of the purchase price of real property sold by the personal representative.

      (17) Pay taxes, assessments and expenses incident to the administration of the estate.

      (18) Employ qualified persons, including attorneys, accountants and investment advisers, to advise and assist the personal representative and to perform acts of administration, whether or not discretionary, on behalf of the personal representative.

      (19) Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of duties as personal representative.

      (20) Prosecute claims of the decedent including those for personal injury or wrongful death.

      (21) Continue any business or venture in which the decedent was engaged at the time of death to preserve the value of the business or venture.

      (22) Incorporate or otherwise change the business form of any business or venture in which the decedent was engaged at the time of death.

      (23) Discontinue and wind up any business or venture in which the decedent was engaged at the time of death.

      (24) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.

      (25) Satisfy and settle claims and distribute the estate as provided in ORS chapters 111, 112, 113, 114, 115, 116 and 117.

      (26) Perform all other acts required or permitted by law or by the will of the decedent. [1969 c.591 §127; 1969 c.597 §278; 1977 c.211 §1; 1981 c.278 §1; 1995 c.157 §16; 1997 c.472 §10; 2001 c.900 §17; 2005 c.348 §126; 2007 c.681 §25; 2011 c.164 §4; 2011 c.720 §59; 2013 c.688 §16; 2016 c.42 §22; 2019 c.83 §2]

 

      114.310 [Repealed by 1969 c.591 §305]

 

      114.315 Right to perfect lien or security interest. A personal representative has the same rights to perfect a lien or security interest as the decedent would have had if the decedent were living. [1969 c.591 §128]

 

      114.320 [Repealed by 1969 c.591 §305]

 

      114.325 Power to sell, mortgage, lease and deal with property. (1) Except as provided in subsection (2) of this section, and subject to ORS 113.105, a personal representative has power to sell, mortgage, lease or otherwise deal with property of the estate without notice, hearing or court order.

      (2) Exercise of the power of sale by the personal representative is improper, except after notice, hearing and order of the court, if:

      (a) The sale is in contravention of the provisions of the will; or

      (b) The property is specifically devised and the will does not authorize its sale. [1969 c.591 §129; 2017 c.169 §25]

 

      Note: The amendments to 114.325 by section 39, chapter 678, Oregon Laws 2019, become operative July 1, 2021. See section 85, chapter 678, Oregon Laws 2019. The text that is operative on and after July 1, 2021, is set forth for the user’s convenience.

      114.325. (1) Except as provided in subsection (2) of this section, and subject to ORS 113.105, a personal representative has power to sell, mortgage, lease or otherwise deal with property of the estate without notice, hearing or court order.

      (2) Exercise of the power of sale by the personal representative is improper, except after notice, hearing and order of the court, if:

      (a) The sale is in contravention of the provisions of the will; or

      (b) The property is specifically devised and the will does not authorize its sale.

      (3) Notwithstanding ORS chapters 270, 273 and 274, an estate administrator of the State Treasurer appointed under ORS 113.235 or the Director of Human Services or Director of the Oregon Health Authority serving as a personal representative may deal with property of the estate as a personal representative under this section.

 

      114.330 [Repealed by 1969 c.591 §305]

 

      114.333 Transfer of title and interest to real property by foreign personal representative. Upon performance of a recorded contract of sale of real property the foreign personal representative of a deceased vendor whose estate is being administered in a foreign jurisdiction may convey the title and interest of the vendor in the property to the vendee or the assignee of the vendee upon recording in the deed records of the county where the property is located a certified copy of letters testamentary or of administration. The certificate shall include a statement that the letters are in effect. [1973 c.506 §28]

 

      114.335 Court order for sale, mortgage or lease. Upon proof satisfactory to the court by an interested person that a sale, mortgage or lease of property of the estate is required for paying support of spouse and children, elective share of surviving spouse, claims or expenses of administration, or for distribution, and that the personal representative has failed or declined to act, the court may order the personal representative to make the sale, mortgage or lease. [1969 c.591 §130]

 

      114.340 [Repealed by 1969 c.591 §305]

 

      114.345 Title conveyed free of claims of creditors. Property sold, mortgaged or leased by a personal representative is subject to liens and encumbrances against the decedent or the estate of the decedent, but is not subject to rights of creditors of the decedent or liens or encumbrances against the heirs or devisees of the decedent. The filing and allowance of a claim in an estate proceeding does not make the claimant a secured creditor. [1969 c.591 §131]

 

      114.350 [Repealed by 1963 c.287 §1]

 

      114.355 Sale or encumbrance to personal representative voidable; exceptions. (1) Any sale or encumbrance to the personal representative, the spouse, agent or attorney of the personal representative, or any corporation or trust in which the personal representative has more than a one-third beneficial interest, is voidable unless:

      (a) The transaction was consented to by all interested persons affected thereby; or

      (b) The will expressly authorizes the transaction by the personal representative; or

      (c) The transaction was made in compliance with another statute or with a contract or other instrument executed by the decedent.

      (2) The title of a purchaser for value without notice of the circumstances of the transaction with the personal representative is not affected unless the purchaser should have known of the defect in the title of the seller. [1969 c.591 §132]

 

      114.360 [Repealed by 1963 c.287 §1]

 

      114.365 Validation of certain sales. The following are the subject of validating Acts:

      (1) Certain sales of decedent’s real property made prior to 1903 where confirmation of sale was premature, validated by page 133, section 2, General Laws of Oregon 1903.

      (2) Certain sales of decedent’s property made prior to 1907 under power in will, validated by chapter 175, General Laws of Oregon 1907.

      (3) Certain sales of decedent’s real property made prior to 1917 where publication of the notice of sale was improper, validated by section 2, chapter 114, General Laws of Oregon 1917.

      (4) Certain sales by executors or administrators made prior to 1943, validated by chapter 26, Oregon Laws 1943. [Formerly 116.835]

 

      114.370 [Repealed by 1963 c.287 §1]

 

      114.375 Nonliability of transfer agents. A transfer agent or a corporation transferring its own securities incurs no liability to any person by making a transfer of securities of an estate as requested or directed by a personal representative. [1969 c.591 §134]

 

      114.385 Persons dealing with personal representative; protection. A person dealing with or assisting a personal representative without actual knowledge that the personal representative is improperly exercising the power of the personal representative is protected as if the personal representative properly exercised the power. The person is not bound to inquire whether the personal representative is properly exercising the power of the personal representative, and is not bound to inquire concerning the provisions of any will or any order of court that may affect the propriety of the acts of the personal representative. No provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge of the provision or order. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection expressed in this section extends to a person dealing with or assisting a personal representative appointed under ORS 113.085 without actual knowledge that the personal representative was not qualified as provided in ORS 113.095 or that the appointment of the personal representative involved procedural irregularity. [1969 c.591 §135; 2017 c.169 §52]

 

      114.395 Improper exercise of power; breach of fiduciary duty. If the exercise of power by a personal representative in the administration of an estate is improper, the personal representative is liable for breach of fiduciary duty to interested persons for resulting damage or loss to the same extent as a trustee of an express trust. Exercise of power in violation of a court order is a breach of duty. Exercise of power contrary to the provisions of the will may be a breach of duty. [1969 c.591 §136]

 

      114.405 Personal liability of personal representative. (1) The personal liability of a personal representative to third parties, as distinguished from fiduciary accountability to the estate, arising from the administration of the estate is that of an agent for a disclosed principal.

      (2) A personal representative is not personally liable on contracts properly entered into in the fiduciary capacity in the course of administration of the estate unless the personal representative expressly agrees to be personally liable.

      (3) A personal representative is not personally liable for obligations arising from possession or control of property of the estate or for torts committed in the course of administration of the estate unless the personal representative is personally at fault.

      (4) Claims based upon contracts, obligations and torts of the types described in subsections (2) and (3) of this section may be allowed against the estate whether or not the personal representative is personally liable therefor. [1969 c.591 §137]

 

      114.410 [Repealed by 1969 c.591 §305]

 

      114.415 Copersonal representatives; when joint action required. (1) When two or more persons are appointed copersonal representatives, the concurrence of all is required for all acts connected with the administration and distribution of the estate, except:

      (a) Any copersonal representative may receive and receipt for property due the estate.

      (b) When the concurrence of all cannot readily be obtained in the time reasonably available for emergency action.

      (c) Where any others have delegated their power to act.

      (d) Where the will provides otherwise.

      (e) Where the court otherwise directs.

      (2) Persons dealing with a copersonal representative who are actually unaware that another has been appointed to serve with the person are as fully protected as if the person with whom they dealt had been the sole personal representative. [1969 c.591 §138]

 

      114.420 [Repealed by 1969 c.591 §305]

 

      114.425 Discovery of property, writings and information. (1) The court may order any person to appear and give testimony by deposition if it appears probable that the person:

      (a) Has concealed, secreted or disposed of any property of the estate of a decedent;

      (b) Has been entrusted with property of the estate of a decedent and fails to account therefor to the personal representative;

      (c) Has concealed, secreted or disposed of any writing, instrument or document pertaining to the estate;

      (d) Has knowledge or information that is necessary to the administration of the estate; or

      (e) As an officer or agent of a corporation, has refused to allow examination of the books and records of the corporation that the decedent had the right to examine.

      (2) If a person cited as provided in subsection (1) of this section fails to appear or to answer questions asked as authorized by the order of the court, the person is in contempt and may be punished as for other contempts. [1969 c.591 §139; 1979 c.284 §106]

 

      114.430 [Repealed by 1969 c.591 §305]

 

      114.435 Power to avoid transfers. The property liable for the payment of expenses of administration, funeral expenses, claims and taxes shall include property transferred by the decedent with intent to defraud the creditors of the decedent or transferred by any means which is in law void or voidable as against the creditors of the decedent. The right to recover that property so far as necessary for the payment of those expenses, claims and taxes is in the personal representative, who shall take necessary steps to recover it. That property constitutes general assets for the payment of creditors. [1969 c.591 §140]

 

      114.440 [Repealed by 1969 c.591 §305]

 

WRONGFUL DEATH CLAIMS AND ESTATES WITH PERSONAL INJURY CLAIMS

 

(Generally)

 

      114.441 Definitions for ORS 114.441 to 114.462. As used in ORS 114.441 to 114.462:

      (1) “Beneficiary” means a person for whose benefit an action against a wrongdoer may be brought under ORS 30.020.

      (2) “Interested person” has the meaning given that term in ORS 111.005.

      (3) “Personal injury claim” means a cause of action arising out of injuries to a decedent, caused by the wrongful act or omission of another, that do not result in the death of the decedent.

      (4) “Wrongful death claim” means a cause of action arising out of injuries to a decedent, caused by the wrongful act or omission of another, that result in the death of the decedent. [2019 c.166 §1]

 

      Note: 114.441 to 114.462 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 114 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      114.444 Application. Except as specifically provided in ORS 114.441 to 114.462, ORS 30.010 to 30.100 and 119.006 to 119.081 and ORS chapters 111, 112, 113, 114, 115, 116, 117 and 118 apply to wrongful death claims and estates with personal injury claims. [2019 c.166 §2]

 

      Note: See note under 114.441.

 

(Court Approval of Settlement)

 

      114.447 Court approval of settlement of personal injury claim or wrongful death claim. (1) The parties to a personal injury claim or a wrongful death claim may enter into a settlement agreement, subject to the approval of the probate court, whether or not an action asserting the personal injury claim or the wrongful death claim has been commenced. The personal representative shall petition the probate court for approval of the proposed settlement. The petition need not state the amount of the proposed settlement.

      (2) A petition to approve a settlement under this section must be accompanied by a declaration under penalty of perjury of the attorney for the personal representative in the personal injury claim or the wrongful death claim:

      (a) Stating whether the claim being settled is a personal injury claim or a wrongful death claim;

      (b) Describing the incident causing the injury or death;

      (c) Describing the injuries;

      (d) Stating the amount of the claim;

      (e) Stating the amount of the settlement;

      (f) Stating the amount of attorney fees and costs;

      (g) Stating the amount of payments or reimbursements owed under ORS 30.030 (3) and, in the case of a personal injury claim, under ORS 416.540;

      (h) Stating the amount of any personal representative fee attributable to a wrongful death claim;

      (i) Stating the reasons for the settlement and the efforts to maximize recovery;

      (j) Stating that the attorney has examined the applicable medical records; and

      (k) Explaining why it is appropriate to settle the case. [2019 c.166 §3]

 

      Note: See note under 114.441.

 

(Probate of Estate With Personal Injury Claim as Only Asset)

 

      114.450 Deferral of requirements. If the only asset of an estate is a personal injury cause of action that has not been adjudicated or settled, the court shall:

      (1) Defer bond requirements until a settlement of the personal injury claim is approved under ORS 114.447; and

      (2) Accept an annual report on the status of the personal injury claim in lieu of the annual account required under ORS 116.083. [2019 c.166 §4]

 

      Note: See note under 114.441.

 

(Probate for Sole Purpose of Pursuing Wrongful Death Claim)

 

      114.453 Petition for appointment of personal representative. Any beneficiary, any interested person or the person nominated as personal representative named in the will may petition for the appointment of a personal representative for the sole purpose of pursuing a claim for the wrongful death of the decedent. Except as provided in ORS 114.459, a personal representative appointed under this section has all the duties of a personal representative under ORS 119.006 to 119.081 and ORS chapters 113, 114, 115, 116, 117 and 118. In addition to the information required under ORS 113.035, a petition filed under this section must include the following information, so far as known:

      (1) A statement that the petitioner is filing the petition for the sole purpose of pursuing a wrongful death claim;

      (2) The names, relationship to the decedent and post-office addresses of beneficiaries, and the ages of any beneficiaries who are minors; and

      (3) A statement that reasonable efforts have been made to identify and locate all beneficiaries. If the petitioner knows of any actual or possible omissions from the list of beneficiaries, the petition must include a statement indicating that there are omissions from the information relating to beneficiaries. [2019 c.166 §5]

 

      Note: See note under 114.441.

 

      114.456 Information to beneficiaries and Department of Human Services and Oregon Health Authority. (1) A personal representative appointed under ORS 114.453 shall deliver or mail to the beneficiaries at their last-known address information that must include:

      (a) The title of the court in which the estate proceeding is pending and the case number;

      (b) The name of the decedent and the place and date of the death of the decedent;

      (c) The name and address of the personal representative, the attorney representing the personal representative in the wrongful death action and the attorney representing the personal representative in the probate proceeding;

      (d) The date of the appointment of the personal representative; and

      (e) A statement advising the beneficiaries that the rights of the beneficiaries may be affected by the proceeding and that additional information may be obtained from the records of the court, the personal representative or the attorney for the personal representative.

      (2) If the personal representative is a beneficiary named in the petition, the personal representative is not required to deliver or mail the information under this section to the personal representative.

      (3) Within 30 days after the date of appointment the personal representative shall cause to be filed in the estate proceeding proof of the delivery or mailing required by this section or a waiver of notice as provided under ORS 111.225. The proof must include a copy of the information delivered or mailed and the names of the persons to whom it was delivered or mailed.

      (4) If before the filing of the motion to close the estate under ORS 114.462 the personal representative has actual knowledge that the petition did not include the name and address of any beneficiary, the personal representative shall:

      (a) Make reasonable efforts under the circumstances to ascertain the names and addresses of the beneficiaries that were not included;

      (b) Promptly deliver or mail information specified in subsection (1) of this section to each beneficiary located after the filing of the petition and before the filing of the motion to close the estate under ORS 114.462 and to the Department of State Lands; and

      (c) File in the estate proceeding, on or before filing the motion to close the estate under ORS 114.462, proof of compliance with this subsection or a waiver of notice as provided under ORS 111.225.

      (5) Within 30 days after the appointment of the personal representative, the personal representative must mail or deliver the following information to the Department of Human Services and the Oregon Health Authority:

      (a) The title of the court in which the estate proceeding is pending and the case number;

      (b) The name of the decedent and the place and date of the death of the decedent;

      (c) The name and address of the personal representative, the attorney representing the personal representative in the wrongful death action and the attorney representing the personal representative in the probate proceeding;

      (d) The date of the appointment of the personal representative; and

      (e) Any other information required by rule of the department or the authority. [2019 c.166 §6]

 

      Note: The amendments to 114.456 by section 41b, chapter 678, Oregon Laws 2019, become operative July 1, 2021. See section 85, chapter 678, Oregon Laws 2019. The text that is operative on and after July 1, 2021, is set forth for the user’s convenience.

      114.456. (1) A personal representative appointed under ORS 114.453 shall deliver or mail to the beneficiaries at their last-known address information that must include:

      (a) The title of the court in which the estate proceeding is pending and the case number;

      (b) The name of the decedent and the place and date of the death of the decedent;

      (c) The name and address of the personal representative, the attorney representing the personal representative in the wrongful death action and the attorney representing the personal representative in the probate proceeding;

      (d) The date of the appointment of the personal representative; and

      (e) A statement advising the beneficiaries that the rights of the beneficiaries may be affected by the proceeding and that additional information may be obtained from the records of the court, the personal representative or the attorney for the personal representative.

      (2) If the personal representative is a beneficiary named in the petition, the personal representative is not required to deliver or mail the information under this section to the personal representative.

      (3) Within 30 days after the date of appointment the personal representative shall cause to be filed in the estate proceeding proof of the delivery or mailing required by this section or a waiver of notice as provided under ORS 111.225. The proof must include a copy of the information delivered or mailed and the names of the persons to whom it was delivered or mailed.

      (4) If before the filing of the motion to close the estate under ORS 114.462 the personal representative has actual knowledge that the petition did not include the name and address of any beneficiary, the personal representative shall:

      (a) Make reasonable efforts under the circumstances to ascertain the names and addresses of the beneficiaries that were not included;

      (b) Promptly deliver or mail information specified in subsection (1) of this section to each beneficiary located after the filing of the petition and before the filing of the motion to close the estate under ORS 114.462 and to the State Treasurer; and

      (c) File in the estate proceeding, on or before filing the motion to close the estate under ORS 114.462, proof of compliance with this subsection or a waiver of notice as provided under ORS 111.225.

      (5) Within 30 days after the appointment of the personal representative, the personal representative must mail or deliver the following information to the Department of Human Services and the Oregon Health Authority:

      (a) The title of the court in which the estate proceeding is pending and the case number;

      (b) The name of the decedent and the place and date of the death of the decedent;

      (c) The name and address of the personal representative, the attorney representing the personal representative in the wrongful death action and the attorney representing the personal representative in the probate proceeding;

      (d) The date of the appointment of the personal representative; and

      (e) Any other information required by rule of the department or the authority.

 

      Note: See note under 114.441.

 

      114.459 Waiver of requirements. (1) When a personal representative is appointed ORS 114.453 and no assets of the estate have been discovered:

      (a) The following requirements are waived:

      (A) Information to devisees, heirs and interested persons of appointment of personal representative under ORS 113.145;

      (B) Publication of notice under ORS 113.155;

      (C) The bond required under ORS 113.105;

      (D) Proof of compliance of diligent search for claimants under ORS 115.003; and

      (E) The inventory required under ORS 113.165.

      (b) The personal representative may file an annual report on the status of the wrongful death claim in lieu of the annual account required under ORS 116.083.

      (c) In lieu of filing a final account under ORS 116.083 (4), the personal representative may file a motion to close the estate ORS 114.462.

      (2) This section does not limit or modify the provisions of ORS 30.030 (3). [2019 c.166 §7]

 

      Note: See note under 114.441.

 

      114.462 Motion to close estate; objections; judgment; discharge of personal representative. (1) When a personal representative is appointed under ORS 114.453 and no assets of the estate have been discovered, the personal representative may move to close the estate after resolution of the wrongful death claim and distribution of any funds recovered in the wrongful death claim, but no earlier than four months after the latest date of delivery or mailing of the information described ORS 114.456.

      (2) The motion must state that no assets of the estate have been discovered and that the wrongful death claim has been resolved.

      (3) The motion must be accompanied by receipts or other evidence satisfactory to the court showing that the damages accepted or recovered in the wrongful death claim have been distributed as provided in ORS 30.030.

      (4) The personal representative shall set a time for filing objections to the motion to close the estate. Not less than 20 days before the time set, the personal representative shall mail a copy of the motion to close the estate to each beneficiary.

      (5) If the court grants the motion, the court shall enter a general judgment closing the estate and discharging the personal representative. The discharge so entered operates as a release of the personal representative from further duties and as a bar to any action against the personal representative. The court may, in its discretion and upon such terms as may be just, within one year after entry of the judgment of discharge, permit an action to be brought against the personal representative if the judgment of discharge was taken through fraud or misrepresentation of the personal representative or through the mistake, inadvertence, surprise or excusable neglect of the claimant. [2019 c.166 §8]

 

      Note: See note under 114.441.

 

SMALL ESTATES

 

      114.505 Definitions for ORS 114.505 to 114.560. As used in ORS 114.505 to 114.560:

      (1) “Affiant” means the person or persons signing a small estate affidavit.

      (2) “Claiming successors” means:

      (a) If the decedent died intestate, the heir or heirs of the decedent, or if there is no heir, an estate administrator of the Department of State Lands appointed under ORS 113.235;

      (b) If the decedent died testate, the devisee or devisees of the decedent; and

      (c) Any creditor of the estate entitled to payment or reimbursement from the estate under ORS 114.545 (1)(f) who has not been paid or reimbursed the full amount owed such creditor within 60 days after the date of the decedent’s death.

      (3) “Small estate affidavit” means an affidavit or amended affidavit filed under ORS 114.515. [1973 c.710 §2; 1977 c.239 §1; 1979 c.340 §1; 1979 c.467 §3; 1989 c.228 §1; 2003 c.395 §14; 2005 c.22 §92; 2015 c.146 §2; 2019 c.165 §1]

 

      Note: The amendments to 114.505 by section 40, chapter 678, Oregon Laws 2019, become operative July 1, 2021. See section 85, chapter 678, Oregon Laws 2019. The text that is operative on and after July 1, 2021, is set forth for the user’s convenience.

      114.505. As used in ORS 114.505 to 114.560:

      (1) “Affiant” means the person or persons signing a small estate affidavit.

      (2) “Claiming successors” means:

      (a) If the decedent died intestate, the heir or heirs of the decedent, or if there is no heir, an estate administrator of the State Treasurer appointed under ORS 113.235;

      (b) If the decedent died testate, the devisee or devisees of the decedent; and

      (c) Any creditor of the estate entitled to payment or reimbursement from the estate under ORS 114.545 (1)(f) who has not been paid or reimbursed the full amount owed such creditor within 60 days after the date of the decedent’s death.

      (3) “Small estate affidavit” means an affidavit or amended affidavit filed under ORS 114.515.

 

      114.510 Value limitations for small estate. (1) A person who meets the requirements of ORS 114.515 may file a small estate affidavit only with regard to an estate in which:

      (a) Not more than $75,000 of the fair market value of the estate is attributable to personal property; and

      (b) Not more than $200,000 of the fair market value of the estate is attributable to real property.

      (2) The fair market value of the estate shall be determined under this section:

      (a) As of the date of death; or

      (b) If the date of death is more than one year before the date of filing of the affidavit, as of a date within 45 days before the filing of the affidavit.

      (3) In determining fair market value under this section, the fair market value of the entire interest in the property included in the estate shall be used without reduction for liens or other debts. [2019 c.165 §3]

 

      114.515 Small estate affidavit; who may file; fee; amended affidavit; procedure when value of estate exceeds limitations; acknowledgment by clerk. (1) If the estate of a decedent meets the requirements of ORS 114.510, any of the following persons may file a small estate affidavit with the clerk of the probate court in any county where there is venue for a proceeding seeking the appointment of a personal representative for the estate:

      (a) One or more of the claiming successors of the decedent.

      (b) If the decedent died testate, any person named as personal representative in the decedent’s will.

      (c) The Director of Human Services, the Director of the Oregon Health Authority or an attorney approved under ORS 114.517, if the decedent received public assistance as defined in ORS 411.010, received medical assistance as defined in ORS 414.025 or received care at an institution as defined in ORS 179.010, and it appears that the assistance or the cost of care may be recovered from the estate of the decedent.

      (2) A person may not file a small estate affidavit if:

      (a) The person would be disqualified from acting as a personal representative under ORS 113.095; or

      (b) The person has been convicted of a felony in Oregon or in another jurisdiction.

      (3) A small estate affidavit may not be filed until 30 days after the death of the decedent.

      (4) A small estate affidavit must contain the information required in ORS 114.525 and shall be made a part of the probate records. If the affiant is an attorney approved by the Director of Human Services or the Director of the Oregon Health Authority, a copy of the document approving the attorney must be attached to the affidavit.

      (5) The clerk of the probate court shall charge and collect the fee established under ORS 21.145 for the filing of a small estate affidavit.

      (6)(a) Except as provided in subsection (7) of this section, the affiant shall file an amended small estate affidavit in the following circumstances:

      (A) To correct a material error or omission in a previous affidavit.

      (B) To include property not described in a previous affidavit.

      (b) The amended affidavit must include all information required under ORS 114.525 and state the value of the property as of the date used to prepare the original affidavit.

      (7) If the fair market value of the property of the estate exceeds the value limitations for a small estate ORS 114.510, an affiant may not file an amended small estate affidavit under subsection (6) of this section and the affiant’s authority with regard to the estate is terminated, except that the affiant shall deliver assets of the estate in the affiant’s possession upon request by a personal representative appointed under ORS 113.085. The affiant shall promptly file notice with the court that the estate of the decedent is not subject to ORS 114.505 to 114.560 and shall serve a copy of the notice on each person who received a copy of the previous affidavit.

      (8) The clerk of the probate court may acknowledge a small estate affidavit upon presentation of the identification of the affiant and the affiant’s statement under penalty of perjury. [1973 c.710 §§3, 8; 1977 c.239 §2; 1979 c.467 §1; 1981 s.s. c.3 §36; 1985 c.368 §1; 1985 c.496 §6; 1987 c.586 §28; 1989 c.228 §2; 1989 c.856 §1; 1995 c.682 §1; 1997 c.447 §1; 1997 c.801 §32; 2003 c.737 §§59,60; 2005 c.122 §§1,2; 2005 c.273 §§1,2; 2005 c.702 §§69,70,71; 2009 c.262 §7; 2009 c.413 §1; 2009 c.828 §10; 2011 c.595 §22; 2013 c.688 §17; 2019 c.165 §4]

 

      114.517 Approval of attorneys filing affidavits for recipients of Medicaid or other public assistance. The Director of Human Services, or the director’s designated representative, or the Director of the Oregon Health Authority, or the director’s designated representative, may approve in writing attorneys who are eligible to file a small estate affidavit if the decedent received public assistance as defined in ORS 411.010, received medical assistance as defined in ORS 414.025 or received care at an institution as defined in ORS 179.010, and it appears that the assistance or the cost of care may be recovered from the estate of the decedent. An attorney approved under this section does not represent the Director of Human Services or the Director of the Oregon Health Authority when the attorney files a small estate affidavit. [2009 c.262 §6; 2009 c.828 §9; 2013 c.688 §18; 2019 c.165 §5]

 

      114.520 Authorization from Department of State Lands required for filing of affidavit by creditor if decedent dies intestate and without heirs; rules. (1) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor may not file a small estate affidavit unless the creditor has received written authorization from the Department of State Lands. Except as provided by rule adopted by the Director of the Department of State Lands, the department shall consent to the filing of a small estate affidavit by a creditor only if it appears after investigation that the estate is insolvent.

      (2) A creditor of an estate who is subject to subsection (1) of this section may give written notice to the Department of State Lands informing the department that the creditor intends to file a small estate affidavit. Upon receiving the notice permitted by this subsection, the department shall investigate the assets and liabilities of the estate. Within 30 days after receiving the notice required by this subsection, the department shall either:

      (a) Give written authorization to the creditor for the filing of a small estate affidavit by the creditor; or

      (b) Inform the creditor that the Department of State Lands will file a small estate affidavit as claiming successor.

      (3) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor and who files a small estate affidavit must notate at the top of the affidavit that the affidavit is being filed by a creditor of the estate. If the affidavit contains the notation required by this subsection, the clerk of the probate court may not accept the affidavit for filing unless there is attached to the affidavit written authorization for the filing of the affidavit by the creditor from the Department of State Lands. The written authorization may be a copy of a memorandum of an interagency agreement between the Department of State Lands and another state agency. [1997 c.88 §2; 2003 c.395 §15; 2019 c.165 §6]

 

      Note: The amendments to 114.520 by section 41a, chapter 678, Oregon Laws 2019, become operative July 1, 2021. See section 85, chapter 678, Oregon Laws 2019. The text that is operative on and after July 1, 2021, is set forth for the user’s convenience.

      114.520. (1) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor may not file a small estate affidavit unless the creditor has received written authorization from the State Treasurer. Except as provided by rule adopted by the State Treasurer, the State Treasurer shall consent to the filing of a small estate affidavit by a creditor only if it appears after investigation that the estate is insolvent.

      (2) A creditor of an estate who is subject to subsection (1) of this section may give written notice to the State Treasurer informing the State Treasurer that the creditor intends to file a small estate affidavit. Upon receiving the notice permitted by this subsection, the State Treasurer shall investigate the assets and liabilities of the estate. Within 30 days after receiving the notice required by this subsection, the State Treasurer shall either:

      (a) Give written authorization to the creditor for the filing of a small estate affidavit by the creditor; or

      (b) Inform the creditor that the State Treasurer will file a small estate affidavit as claiming successor.

      (3) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor and who files a small estate affidavit must notate at the top of the affidavit that the affidavit is being filed by a creditor of the estate. If the affidavit contains the notation required by this subsection, the clerk of the probate court may not accept the affidavit for filing unless there is attached to the affidavit written authorization for the filing of the affidavit by the creditor from the State Treasurer. The written authorization may be a copy of a memorandum of an interagency agreement between the State Treasurer and another state agency.

 

      114.525 Content of affidavit; rules. (1) A small estate affidavit must:

      (a) Contain a notice in substantially the following form, printed in at least 14-point bold type immediately below the caption on the first page of the small estate affidavit:

______________________________________________________________________________

NOTICE OF DUTY TO PAY DEBT OR

TURN OVER PROPERTY

 

      To: Any person to whom a copy of this small estate affidavit is mailed or delivered.

      Under ORS 114.535, if you owe a debt to the decedent or have personal property of the decedent, you must pay the debt or turn over the property to the affiant. If you refuse, the affiant may ask the court to compel you to pay the debt or turn over the property and you could be responsible for the affiant’s attorney fees.

______________________________________________________________________________

      (b) State the name and post-office address of the affiant.

      (c) State the authority under which the affiant is filing the small estate affidavit, as provided in ORS 114.515.

      (d) State that the small estate affidavit is made under ORS 114.505 to 114.560.

      (e) State the name, age, domicile and post-office address and last four digits of the Social Security number of the decedent.

      (f) State the date and place of the decedent’s death.

      (g) Describe and state the fair market value of all property in the estate, valued as provided in ORS 114.510, including a legal description of any real property.

      (h) State that no personal representative of the estate has been appointed in Oregon, that there is no pending petition for appointment of a personal representative of the estate in Oregon and that the estate is not currently being administered in Oregon.

      (i) State whether the decedent died testate or intestate.

      (j) List the heirs of the decedent and the last address of each heir as known to the affiant, and state that a copy of the affidavit showing the date of filing and a copy of the will, if the decedent died testate, will be delivered to each heir or mailed to the heir at the last-known address.

      (k) If the decedent died testate, list the devisees of the decedent and the last address of each devisee as known to the affiant and state that a copy of the will and a copy of the affidavit showing the date of filing will be delivered to each devisee or mailed to the devisee at the last-known address.

      (L) State the interest in the property described in the affidavit to which each heir or devisee is entitled and the interest, if any, that will escheat.

      (m) State that reasonable efforts have been made to ascertain creditors of the estate.

      (n) List the claims against the estate that are undisputed by the affiant and that remain unpaid or on account of which the affiant or any other person is entitled to reimbursement from the estate, including the known or estimated amounts of the claims and the names and addresses of the creditors as known to the affiant, and state that a copy of the affidavit showing the date of filing will be delivered to each creditor who has not been paid in full or mailed to the creditor at the last-known address.

      (o) Separately list the name and address of each person known to the affiant to assert a claim against the estate that the affiant disputes and the known or estimated amount of the claims disputed by the affiant and state that a copy of the affidavit showing the date of filing will be delivered to each such person or mailed to the person at the last-known address.

      (p)(A) State the mailing address for presentment of claims; and

      (B) If the affiant wishes to authorize creditors to present claims by electronic mail or facsimile communication, state the electronic mail address or facsimile number for presentment of claims.

      (q) List anticipated administrative expenses and attorney fees, if any.

      (r) State that the affiant is not disqualified from acting as an affiant under ORS 114.515 (2).

      (s) State that a copy of the affidavit showing the date of filing and a copy of the death record will be mailed or delivered to the Department of Human Services or to the Oregon Health Authority, as prescribed by rule by the department or authority.

      (t) State, to the best of the affiant’s knowledge, whether the decedent was incarcerated in a correctional facility in this state at any time in the 15 years before the decedent’s death and, if the decedent was incarcerated in a correctional facility in this state at any time in the 15 years before the decedent’s death, state that a copy of the affidavit showing the date of filing and a copy of the death record will be mailed or delivered to the Department of Corrections.

      (u) State that undisputed claims against the estate will be paid as provided in ORS 114.545.

      (v) State that claims against the estate not listed in the affidavit or in amounts larger than those listed in the affidavit may be barred unless:

      (A) A claim is presented to the affiant within four months of the filing of the affidavit or amended affidavit at the address, electronic mail address or facsimile number stated in the affidavit for presentation of claims; or

      (B) A petition for appointment of a personal representative of the estate is filed within the time allowed under ORS 114.555.

      (w) If the affidavit lists one or more claims that the affiant disputes, state that any such claim may be barred unless:

      (A) A petition for summary determination is filed within four months of the filing of the affidavit; or

      (B) A petition for appointment of a personal representative of the estate is filed within the time allowed under ORS 114.555.

      (2) The affiant shall file a certified copy of the death record of the decedent as a confidential document.

      (3) If the decedent died testate, the affiant shall file simultaneously with the small estate affidavit:

      (a)(A) The original will; or

      (B) If the original will is filed in an estate proceeding in another jurisdiction, a certified copy of the original will; and

      (b) Proof of the will meeting the requirements of ORS 113.055. [1973 c.710 §6; 1977 c.239 §3; 1979 c.340 §2; 1989 c.228 §3; 1991 c.191 §3; 1995 c.453 §1; 2001 c.104 §35; 2001 c.620 §2; 2001 c.900 §18a; 2003 c.196 §1; 2003 c.395 §16; 2005 c.22 §93; 2009 c.595 §79; 2013 c.14 §2; 2013 c.366 §60; 2017 c.169 §53; 2019 c.165 §7]

 

      114.535 Transfer of decedent’s property to affiant; payment of debt owing to decedent motion to compel transfer or payment. (1) The affiant may deliver a certified copy of a small estate affidavit to any person who has possession of personal property belonging to the estate or who was indebted to the decedent. Except as provided in this section, upon receipt of the certified copy, the person shall pay the debt or transfer, deliver, provide access to and allow possession of the personal property to the affiant.

      (2) Subject to ORS 114.537, if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person that controls access to personal property belonging to the estate of the decedent, including personal property held in a safe deposit box for which the decedent was the sole lessee or the last surviving lessee, the person shall:

      (a) Provide the affiant with access to the decedent’s personal property; and

      (b) Allow the affiant to take possession of the personal property.

      (3) Subject to ORS 114.537, if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person who owes a debt to the decedent or has received property of the decedent under ORS 446.616, 708A.430, 723.466 or 803.094, or a similar statute providing for the transfer of property of an estate that is not being probated, the person shall pay the debt or transfer, deliver, provide access to or allow possession of the property to the affiant if the person would be required to pay the debt or transfer, deliver, provide access to or allow possession of the property to a personal representative of the estate.

      (4) Any person that pays a debt owing to the decedent or transfers, delivers, provides access to or allows possession of property of a decedent in the manner provided by this section is discharged and released from any liability or responsibility for the debt or property in the same manner and with the same effect as if the debt had been paid or the property had been transferred or delivered to a personal representative of the estate of the decedent.

      (5) The affiant may deliver a certified copy of a small estate affidavit to a transfer agent of any corporate security registered in the name of the decedent. The transfer agent shall change the registered ownership on the books of the corporation to the affiant or the person named in the affidavit entitled to it, as directed by the affiant.

      (6)(a) If a person to whom a certified copy of a small estate affidavit is delivered under this section refuses to pay a debt or deliver, transfer, provide access to or allow possession of personal property as required by this section, the affiant may serve a written demand by certified mail on the person to pay the debt or deliver, transfer, provide access to or allow possession of the personal property. The demand must state that, if the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property.

      (b) If the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property within 30 days after service of a demand under paragraph (a) of this subsection, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property. The court may enter a judgment awarding reasonable attorney fees to the prevailing party if the court finds that the affiant filed the motion without an objectively reasonable basis or the person refused to pay the debt or deliver, transfer, provide access to or allow possession of any personal property without an objectively reasonable basis.

      (7) If a small estate affidavit was signed by the Director of Human Services, the Director of the Oregon Health Authority or an attorney approved under ORS 114.517, the Director of Human Services, the Director of the Oregon Health Authority or the attorney may certify a copy of the affidavit for the purposes described in this section. [1973 c.710 §4; 1979 c.340 §3; 1989 c.228 §4; 1991 c.67 §23; 1997 c.631 §404; 2003 c.196 §2; 2003 c.655 §60; 2009 c.541 §4; 2009 c.595 §80; 2009 c.828 §11; 2011 c.422 §3; 2019 c.165 §8]

 

      Note: The amendments to 114.535 by section 42, chapter 678, Oregon Laws 2019, become operative July 1, 2021. See section 85, chapter 678, Oregon Laws 2019. The text that is operative on and after July 1, 2021, is set forth for the user’s convenience.

      114.535. (1) The affiant may deliver a certified copy of a small estate affidavit to any person who has possession of personal property belonging to the estate or who was indebted to the decedent. Except as provided in this section, upon receipt of the certified copy, the person shall pay the debt or transfer, deliver, provide access to and allow possession of the personal property to the affiant.

      (2) Subject to ORS 114.537, if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person that controls access to personal property belonging to the estate of the decedent, including personal property held in a safe deposit box for which the decedent was the sole lessee or the last surviving lessee, the person shall:

      (a) Provide the affiant with access to the decedent’s personal property; and

      (b) Allow the affiant to take possession of the personal property.

      (3) Subject to ORS 114.537, if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person who owes a debt to the decedent or has received property of the decedent under ORS 446.616, 708A.430, 723.466 or 803.094, or a similar statute providing for the transfer of property of an estate that is not being probated, the person shall pay the debt or transfer, deliver, provide access to or allow possession of the property to the affiant if the person would be required to pay the debt or transfer, deliver, provide access to or allow possession of the property to a personal representative of the estate.

      (4) Any person that pays a debt owing to the decedent or transfers, delivers, provides access to or allows possession of property of a decedent in the manner provided by this section is discharged and released from any liability or responsibility for the debt or property in the same manner and with the same effect as if the debt had been paid or the property had been transferred or delivered to a personal representative of the estate of the decedent.

      (5) The affiant may deliver a certified copy of a small estate affidavit to a transfer agent of any corporate security registered in the name of the decedent. The transfer agent shall change the registered ownership on the books of the corporation to the affiant or the person named in the affidavit entitled to it, as directed by the affiant.

      (6)(a) If a person to whom a certified copy of a small estate affidavit is delivered under this section refuses to pay a debt or deliver, transfer, provide access to or allow possession of personal property as required by this section, the affiant may serve a written demand by certified mail on the person to pay the debt or deliver, transfer, provide access to or allow possession of the personal property. The demand must state that, if the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property.

      (b) If the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property within 30 days after service of a demand under paragraph (a) of this subsection, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property. The court may enter a judgment awarding reasonable attorney fees to the prevailing party if the court finds that the affiant filed the motion without an objectively reasonable basis or the person refused to pay the debt or deliver, transfer, provide access to or allow possession of any personal property without an objectively reasonable basis.

      (7) If a small estate affidavit was signed by the Director of Human Services, the Director of the Oregon Health Authority or an attorney approved under ORS 114.517, the Director of Human Services, the Director of the Oregon Health Authority or the attorney may certify a copy of the affidavit for the purposes described in this section.

      (8) Notwithstanding ORS chapters 270, 273 and 274, an estate administrator of the State Treasurer appointed under ORS 113.235 or the Director of Human Services or Director of the Oregon Health Authority serving as an affiant may deal with property of the estate as an affiant under this section.

 

      114.537 Safe deposit boxes. (1) If a person who is eligible to file a small estate affidavit is aware that the decedent was the sole lessee or the last surviving lessee of a safe deposit box or was the owner of the contents of a safe deposit box at the time of the decedent’s death, the claiming successor or other person may not file a small estate affidavit until the person requests an inventory of the box under ORS 708A.655, if the lessor of the box is an Oregon operating institution as defined in ORS 706.008, or under ORS 723.844, if the lessor of the box is a credit union as defined in ORS 723.008. Upon receiving the request, the lessor of the box shall cause an inventory of the contents of the box to be made. The lessor shall retain the original inventory in the box and shall provide a copy of the inventory to the person requesting the inventory. The person requesting the inventory shall take the contents of the box into consideration in determining whether the estate of the decedent is within the limits prescribed by ORS 114.510. If the person files a small estate affidavit, the affidavit must contain a statement of the value of the contents of the box.

      (2) If an affiant becomes aware after the filing of a small estate affidavit that the decedent was the sole lessee or the last surviving lessee of a safe deposit box or was the owner of the contents of a safe deposit box at the time of the decedent’s death, the affiant shall promptly request an inventory of the box under ORS 708A.655, if the lessor of the box is an Oregon operating institution as defined in ORS 706.008, or under ORS 723.844, if the lessor of the box is a credit union as defined in ORS 723.008. Upon receiving the request, the lessor of the box shall cause an inventory of the contents of the box to be made. The lessor shall retain the original inventory in the box and shall provide a copy of the inventory to the affiant. If the estate of the decedent remains within the limits prescribed by ORS 114.510 after consideration of the value of the contents of the box, the affiant shall file an amended small estate affidavit under ORS 114.515 (6). Upon receiving a certified copy of the amended affidavit, the lessor shall allow the affiant to take possession of the contents of the box. If the estate of the decedent exceeds the limits prescribed by ORS 114.510 after consideration of the value of the contents of the box, the affiant may not file an amended small estate affidavit and shall file notice with the court that the estate of the decedent is not subject to ORS 114.505 to 114.560 and shall serve a copy of the notice on the lessor of the box. The lessor of the box shall deliver the contents of the box to the personal representative for the decedent, or to such other person as may be provided for under the terms of the lease of the box. [2011 c.422 §2; 2019 c.165 §9]

 

      114.540 Procedure for claims. (1)(a) A claim against an estate with respect to which a small estate affidavit is filed may be presented to the affiant within four months after the affidavit was filed. If an amended small estate affidavit is filed under ORS 114.515 (6), claims against the estate may be presented within four months after the filing of the amended affidavit.

      (b) Except as provided in ORS 114.550, a claim presented after the limitations described in paragraph (a) of this subsection is barred.

      (c) Filing a claim with the court does not constitute presentation to the affiant.

      (d)(A) Except as provided in subparagraph (B) of this paragraph, a claim is presented to the affiant when the claim is mailed or personally delivered to the affiant at the mailing address for presentment of claims included in the small estate affidavit under ORS 114.525.

      (B) If the affiant authorized creditors to present claims by electronic mail or facsimile communication in the small estate affidavit as provided in ORS 114.525, a claim is presented to the affiant when it is sent to the electronic mail address or the facsimile number designated by the affiant for presentment of claims, unless the sender receives a notice that the electronic mail was not delivered or the facsimile communication was not successful. If the affiant denies receiving the electronic mail or facsimile communication, the burden of proof is on the creditor to demonstrate that the electronic mail was properly addressed and sent or that the facsimile communication was properly addressed and successfully delivered or transmitted.

      (e) Each claim presented to the affiant must include the information required by ORS 115.025.

      (2)(a) A claim presented to the affiant that was not listed in the small estate affidavit shall be considered allowed as presented unless within 60 days after the date of presentment of the claim the affiant mails or delivers a notice of disallowance of the claim in whole or in part to the claimant and any attorney for the claimant. A notice of disallowance of a claim must state the reason for the disallowance and inform the claimant that the claim has been disallowed in whole or in part and, to the extent disallowed, will be barred unless:

      (A) The claimant files a petition for summary determination as provided in ORS 114.542; or

      (B) A petition for appointment of a personal representative of the estate is filed within the time allowed under ORS 114.555.

      (b) Statement of a reason for disallowance under this subsection is not an admission by the affiant and does not preclude the assertion of other defenses to the claim. [1989 c.228 §7; 2003 c.523 §3; 2005 c.122 §4; 2019 c.165 §10]

 

      114.542 Summary determination. (1)(a) A creditor of an estate whose claim has been presented within the time permitted by ORS 114.540 (1) and disallowed by the affiant in whole or in part may within 30 days after the date of mailing or delivery of the notice of disallowance file with the probate court a petition for summary determination of the claim by the court.

      (b) A creditor of the decedent whose claim is listed in the small estate affidavit as disputed may within four months after the filing of the affidavit or amended affidavit listing the disputed claim file with the probate court a petition for summary determination of the creditor’s claim by the court.

      (2) The court shall hear a petition for summary determination filed under this section without a jury, after notice to the creditor and affiant, and any interested person may be heard in the proceeding.

      (3) The claim may be proved as provided in ORS 115.195.

      (4) Upon a hearing under this section the court shall determine the claim in a summary manner and shall make an order allowing or disallowing the claim in whole or in part.

      (5) An order of the court made upon summary determination under this section may not be appealed and may be enforced only by the filing of a petition for summary review under ORS 114.550. [2019 c.165 §12]

 

      114.545 Affiant as fiduciary; duties, functions and powers of affiant; limitation of liability of financial institution. (1) The affiant:

      (a) Is a fiduciary who is under a general duty to administer, preserve, settle and distribute the estate in accordance with the terms of the will, the law of intestate succession and ORS 114.505 to 114.560 as expeditiously and with as little sacrifice of value as is reasonable under the circumstances.

      (b) May not commingle property of the estate of which the affiant has taken possession with property of the affiant or any other person.

      (c) Shall take control of the property of the estate coming into the possession of the affiant and collect the income from property of the estate in the possession of the affiant.

      (d) Within 30 days after filing the small estate affidavit shall mail or deliver each instrument that the affidavit states will be mailed or delivered.

      (e) May open one or more deposit accounts in a financial institution as defined in ORS 706.008 with funds of the decedent, upon which the affiant may withdraw funds by means of checks, drafts or negotiable orders of withdrawal or otherwise for the payment of claims and expenses described in paragraph (f) of this subsection.

      (f) From and to the extent of the property of the estate, shall pay or reimburse any person who has paid:

      (A) Expenses described in ORS 115.125 (1)(b) and (c) and listed in the small estate affidavit;

      (B) Claims listed in the small estate affidavit as undisputed;

      (C) Allowed claims presented to the affiant within the time permitted by ORS 114.540; and

      (D) Claims that the probate court allowed upon summary determination under ORS 114.542.

      (g) Shall pay claims and expenses under paragraph (f) of this subsection in the order of priority prescribed by ORS 115.125.

      (h) May transfer and sell property that is part of the estate as provided in ORS 114.547.

      (i) Shall retain records of the administration of the estate at least until the later of:

      (A) The expiration of the two-year period established in ORS 114.550; or

      (B) The conclusion of any summary review proceeding under ORS 114.550.

      (2) Notwithstanding any other provision of this section or ORS 114.547, when an heir or devisee entitled to succeed to a conveyance fails or refuses to join in the conveyance as required by ORS 114.547, an affiant approved under ORS 114.517 may convey any real or personal property that is part of the estate at any time to a third party for a valuable consideration.

      (3) Property conveyed by an affiant under ORS 114.547 this section is subject to liens and encumbrances against the decedent or the estate of the decedent. Property conveyed by an affiant under ORS 114.547 is not subject to rights of creditors of the decedent or liens or encumbrances against the heirs or devisees of the decedent. The presentation and allowance of a claim in a proceeding under ORS 114.505 to 114.560 does not make the claimant a secured creditor.

      (4) Any claiming successor to whom property of the estate is delivered or transferred under ORS 114.505 to 114.560 is personally answerable and accountable:

      (a) To the extent of the value of the property received, to creditors of the estate to the extent such creditors are entitled to payment under subsection (1) of this section; and

      (b) To any personal representative of the estate of the decedent appointed after the payment, delivery or transfer is made.

      (5) A financial institution as defined in ORS 706.008 that opens one or more deposit accounts for an affiant pursuant to subsection (1)(e) of this section is not liable to any other person for opening the account or accounts or for permitting the affiant to withdraw funds from the account or accounts by means of checks, drafts, negotiable orders of withdrawal or otherwise. The financial institution is not required to ensure that the funds of the decedent that are paid out by the affiant are properly applied. [1973 c.710 §7; 1979 c.340 §4; 1985 c.300 §5; 1989 c.148 §6; 1989 c.228 §5; 1991 c.191 §4; 2003 c.655 §61; 2015 c.146 §1; 2019 c.165 §13]

 

      114.547 Sales and transfers to third parties. (1) Before the completion of the two-year period established in ORS 114.550, and in exchange for adequate consideration:

      (a) The affiant may transfer or sell any real property if each heir or devisee who would succeed to the interest conveyed joins in the conveyance.

      (b) The affiant may transfer or sell any personal property that is specifically devised to an individual devisee with the consent of the individual devisee.

      (c) The affiant may transfer or sell any personal property that is not specifically devised to an individual devisee without the consent of any other person.

      (2) Notwithstanding subsection (1) of this section, the affiant need not obtain participation or consent of any person if a transfer is required for purposes of abatement under ORS 116.133.

      (3) The proceeds of a sale under this section, net of the reasonable expenses of sale and any debt secured as of the date of the decedent’s death by a duly perfected lien on the property, become a part of the estate.

      (4) If the affiant transfers or sells any vehicle that is part of the estate under this section, the affiant shall comply with the requirements established by the Department of Transportation for such purposes under ORS 803.094.

      (5) If the affiant transfers or sells a manufactured structure as defined in ORS 446.561 under this section, the affiant shall assign the interest in the structure as provided in ORS 446.616.

      (6) Any transfer or conveyance under this section to a purchaser in good faith and for a valuable consideration transfers or conveys the interest stated in the transfer or conveyance free of any interest of the claiming successors, and the purchaser has no duty with respect to application of the consideration paid for the transfer or conveyance. [2019 c.165 §15]

 

      114.549 Liability of affiant. An affiant may be liable for and is chargeable in the accounts of the affiant with:

      (1) All of the estate of the decedent that comes into the possession of the affiant at any time, including income from the estate.

      (2) All property not a part of the estate if:

      (a) The affiant has commingled the property with the assets of the estate; or

      (b) The property was received under a duty imposed on the affiant by law in the capacity of affiant.

      (3) Any loss to the estate arising from:

      (a) Neglect or unreasonable delay in collecting the assets of the estate.

      (b) Neglect in paying over money or delivering property of the estate.

      (c) Failure to pay taxes as required by law or to close the estate within a reasonable time.

      (d) Embezzlement or commingling of the assets of the estate with other property.

      (e) Unauthorized self-dealing.

      (f) Any other negligent or willful act or nonfeasance in the administration of the estate by which loss to the estate arises. [2019 c.165 §16]

 

      114.550 Summary review of administration of estate; hearing; order; removal of affiant; surcharge. (1)(a) The affiant or any claiming successor of the estate who has not been paid the full amount owed the claiming successor may, within two years after the filing of a small estate affidavit, file with the probate court a petition for summary review of administration of the estate.

      (b) Notwithstanding paragraph (a) of this subsection, a person may file a petition for summary review under this section for the purpose of compelling the affiant to distribute property of the estate within 60 days after the completion of the two-year period described in paragraph (a) of this subsection.

      (c) A creditor may not file a petition under this section if the creditor received a copy of a small estate affidavit delivered or mailed to the creditor within 30 days after the date the affidavit was filed, the creditor was shown as a disputed creditor in the affidavit and the creditor has not filed a petition for summary determination under ORS 114.542.

      (d) A creditor may not file a petition under this section if the creditor presented a claim to the affiant, the claim was disallowed and the creditor did not file a petition for summary determination under ORS 114.542.

      (2) Within 30 days after the filing of a petition under subsection (1) of this section by a person other than the affiant, the affiant shall file with the court an answer to the petition for summary review.

      (3) The court shall hear the matter without a jury, after notice to the claiming successor and the affiant, and any interested person may be heard in the proceeding.

      (4) Upon the hearing:

      (a) The court shall review administration of the estate in a summary manner and may order the affiant to sell property of the estate and pay creditors, to pay creditors of the estate from property of the estate or of the affiant, or to distribute property of the estate to the claiming successors, or may order any person who has received property of the estate to pay amounts owed to claiming successors of the estate in whole or in part.

      (b) If the court allows a claim of a creditor in whole or in part, the court shall order the affiant, to the extent of property of the estate allocable to the payment of the claim pursuant to ORS 115.125, and any claiming successor to whom property of the estate has been delivered or transferred under ORS 114.505 to 114.560, to the extent of the value of the property received, to pay to the creditor the amount allowed.

      (c) The court may remove the affiant if the affiant failed to comply with ORS 114.505 to 114.560, surcharge the affiant for any loss caused by failure to comply with ORS 114.505 to 114.560 and authorize the substitution of a new affiant. [1989 c.228 §8; 2003 c.196 §3; 2019 c.165 §17]

 

      114.552 Filing fees. (1) A person filing a petition for summary determination under ORS 114.542 or a petition for summary review of administration of estate under ORS 114.550, or any other appearance in a proceeding under ORS 114.505 to 114.560, must pay the filing fee established under ORS 21.135.

      (2) If at any time after the filing of a small estate affidavit a petition for appointment of a personal representative is filed for the same estate, the person filing the petition must pay the fees established under ORS 21.170. [2011 c.595 §25; 2019 c.165 §18]

 

      114.555 Transfer of interest of decedent in property described in affidavit. (1)(a) If a petition to appoint a personal representative is not filed within four months after the filing of a small estate affidavit, then after the completion of the four-month period described in ORS 114.540, after all unsecured creditors of the estate have been paid to the extent of the property of the estate and before the completion of the two-year period established in ORS 114.550, the affiant shall transfer the interest of the decedent in remaining property or proceeds of property described in the affidavit to the person or persons shown by the affidavit to be entitled to the property, and any other claims against the property are barred, except:

      (A) As otherwise provided in this section and ORS 114.540, 114.542, 114.545 and 114.550; and

      (B) For the purposes of a surviving spouse’s claim for an elective share in the manner provided by ORS 114.600 to 114.725.

      (b) Notwithstanding paragraph (a) of this subsection, if a petition for summary review has been filed under ORS 114.550, the affiant may not transfer the interest of the decedent in the property described in the affidavit until after all claims allowed in the summary review proceeding are paid to the extent of the property of the estate.

      (2) Property conveyed by an affiant under this section is subject to liens and encumbrances against the decedent or the estate of the decedent. Property conveyed by an affiant under this section is subject to the rights of creditors of the decedent or the estate of the decedent until the expiration of the two-year period established in ORS 114.550.

      (3) When the affiant transfers an interest in real property under this section, the affiant shall cause to be recorded in the deed records of the county in which the real property is situated a bargain and sale deed conveying the property to the person entitled to the property, executed in the manner required by ORS chapter 93.

      (4) When the affiant transfers an interest in a manufactured structure as defined in ORS 446.561 belonging to a decedent and assessed as personal property under this section, the affiant shall file with the Department of Consumer and Business Services the necessary information for recording the successor’s interest in the manufactured structure on an ownership document. [1973 c.710 §5; 1977 c.239 §4; 1989 c.228 §10; 2009 c.574 §21; 2019 c.165 §19]

 

      114.560 Exclusive remedy. The exclusive remedy of a person injured by the failure of the affiant or any claiming successor to comply with the requirements of ORS 114.505 to 114.560 is a summary determination under ORS 114.542, a summary review of administration under ORS 114.550 or the filing of a petition for appointment of a personal representative for the estate within the time allowed by ORS 114.555. [1989 c.228 §9; 2019 c.165 §20]

 

ELECTIVE SHARE FOR DECEDENTS WHO DIE ON OR AFTER

JANUARY 1, 2011

 

(Generally)

 

      114.600 Elective share generally. (1) If a decedent is domiciled in this state on the decedent’s date of death, and the decedent is survived by a spouse, the surviving spouse of the decedent may elect to receive the elective share provided by ORS 114.600 to 114.725. An election under ORS 114.600 to 114.725 must be made before the death of the surviving spouse by the filing of a motion or petition in the manner described in ORS 114.610. If a motion or petition is filed within the time specified in ORS 114.610, and the surviving spouse dies before payment of the elective share, the personal representative for the estate of the surviving spouse may take all steps necessary to secure payment of the elective share under ORS 114.600 to 114.725.

      (2) Any amounts received under ORS 114.015 are in addition to the elective share provided for in ORS 114.600 to 114.725.

      (3) If a decedent dies while domiciled outside this state, any right of a surviving spouse of the decedent to take an elective share in property in this state is governed by the law of the decedent’s domicile at death. [2009 c.574 §2]

 

      114.605 Amount of elective share. (1) Except as otherwise provided in ORS 114.600 to 114.725, the amount of the elective share is a dollar amount determined by multiplying the augmented estate by the percentage provided in this section. All properties included in the augmented estate shall be determined as provided in ORS 114.600 to 114.725. A court of this state has authority to order distribution under ORS 114.600 to 114.725 of all properties included in the augmented estate under ORS 114.600 to 114.725.

      (2) The elective share of a surviving spouse is determined by the length of time the spouse and decedent were married to each other, in accordance with the following schedule:

______________________________________________________________________________

 

      If the decedent                  The elective-share

      and the spouse                  percentage is:

      were married to

      each other:

 

 

      Less than 2 years              5% of the

                                                augmented estate

      2 years but less

      than 3 years                      7% of the

                                                augmented estate

      3 years but less

      than 4 years                      9% of the

                                                augmented estate

      4 years but less

      than 5 years                      11% of the

                                                augmented estate

      5 years but less

      than 6 years                      13% of the

                                                augmented estate

      6 years but less

      than 7 years                      15% of the

                                                augmented estate

      7 years but less

      than 8 years                      17% of the

                                                augmented estate

      8 years but less

      than 9 years                      19% of the

                                                augmented estate

      9 years but less

      than 10 years                    21% of the

                                                augmented estate

      10 years but less

      than 11 years                    23% of the

                                                augmented estate

      11 years but less

      than 12 years                    25% of the

                                                augmented estate

      12 years but less

      than 13 years                    27% of the

                                                augmented estate

      13 years but less

      than 14 years                    29% of the

                                                augmented estate

      14 years but less

      than 15 years                    31% of the

                                                augmented estate

      15 years or more

                                                33% of the

                                                augmented estate

 

______________________________________________________________________________ [2009 c.574 §3]

 

      114.610 Manner of making election. (1) A surviving spouse may claim the elective share only by:

      (a) Filing a petition for the appointment of a personal representative for the estate of the deceased spouse, and a motion for the exercise of the election as described in paragraph (b) of this subsection, within nine months after the spouse dies.

      (b) Filing a motion for the exercise of the election in a probate proceeding commenced for the estate of the deceased spouse under ORS 113.035. The motion must be filed not later than nine months after the death of the decedent. A copy of the motion must be served on the personal representative, on all persons who would be entitled to receive information under ORS 113.145 and on all distributees and recipients of portions of the augmented estate known to the surviving spouse who can be located with reasonable efforts. A surviving spouse may withdraw a motion for an election filed under this subsection at any time before the court enters an order granting the motion.

      (c) Filing a petition for the exercise of the election under ORS 114.720 (1) within nine months after the death of the decedent.

      (2) If a court determines that the elective share is payable, the court shall determine the amount of the elective share and shall order its payment pursuant to the priorities established under ORS 114.700. If it appears that property has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the property or who has possession thereof, whether as trustee or otherwise. [2009 c.574 §4]

 

      114.615 Payment of elective share. In determining whether any payment is required to a surviving spouse in satisfaction of the elective share provided for in ORS 114.605, the court shall consider the values of the decedent’s probate estate, the decedent’s nonprobate estate, the surviving spouse’s estate, the decedent’s probate transfers to the surviving spouse and the decedent’s nonprobate transfers to the surviving spouse. If the court determines that the aggregate value of the surviving spouse’s estate, the decedent’s probate transfers to the surviving spouse and the decedent’s nonprobate transfers to the surviving spouse do not satisfy the amount of the elective share, any additional amount required to satisfy the elective share shall be paid out of the decedent’s probate estate and the decedent’s nonprobate estate in the manner provided by ORS 114.700. [2009 c.574 §5]

 

      114.620 Waiver of right to elect and other rights. (1) The right of election under ORS 114.600 to 114.725 may be waived, wholly or partially, before or after marriage by a written contract, agreement or waiver signed by the surviving spouse.

      (2) Unless specifically provided otherwise, a written agreement that waives all rights in the property or estate of a present or prospective spouse, using the phrase “all rights” or other equivalent language, or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to an elective share under ORS 114.600 to 114.725 by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to each spouse from the other by intestate succession or by virtue of any will executed before the written agreement or property settlement. [2009 c.574 §6]

 

      Note: Section 24, chapter 574, Oregon Laws 2009, provides:

      Sec. 24. A written contract, agreement or waiver entered into before the effective date of this 2009 Act [January 1, 2011], whether prenuptial or post-nuptial, that waives in whole or in part the elective share of a surviving spouse is effective as a waiver under section 6 of this 2009 Act [114.620] unless a court determines that the contract, agreement or waiver is not enforceable under the standards of section 6 of this 2009 Act. Section 6 (2) of this 2009 Act applies to contracts, agreements or waivers entered into before, on or after the effective date of this 2009 Act. [2009 c.574 §24]

 

      114.625 Who may exercise right of election. The elective share may be personally claimed by a surviving spouse, or may be claimed on the surviving spouse’s behalf by a conservator, guardian or agent under the authority of a power of attorney. [2009 c.574 §7]

 

(Augmented Estate)

 

      114.630 Augmented estate. (1) Except as otherwise provided in ORS 114.600 to 114.725, the augmented estate consists of all of the following property, whether real or personal, movable or immovable, or tangible or intangible, wherever situated:

      (a) The decedent’s probate estate as described in ORS 114.650.

      (b) The decedent’s nonprobate estate as described in ORS 114.660 and 114.665.

      (c) The surviving spouse’s estate, as described in ORS 114.675.

      (2) The value attributable to any property included in the augmented estate under ORS 114.600 to 114.725 must be reduced by the amount of all enforceable claims against the property and all encumbrances on the property. Any exemption or deduction that is allowed for the purpose of determining estate taxes on the augmented estate and that is attributable to the marriage of the decedent and the surviving spouse inures to the benefit of the surviving spouse as provided in ORS 116.343 (2).

      (3) The value attributable to any property included in the augmented estate includes the present value of any present or future interest and the present value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal Social Security Act.

      (4) The value attributable to property included in the augmented estate is equal to the value that would be used for purposes of federal estate and gift tax laws if the property had passed without consideration to an unrelated person on the date that the value of the property is determined for the purposes of ORS 114.600 to 114.725.

      (5) In no event may the value of property be included in the augmented estate more than once. [2009 c.574 §8; 2011 c.305 §4; 2017 c.169 §26]

 

      114.635 Exclusions from augmented estate. The augmented estate does not include:

      (1) Any value attributable to future enhanced earning capacity of either spouse;

      (2) Any property that is irrevocably transferred before the death of the decedent spouse;

      (3) Any property that is transferred on or after the date of the death of the decedent spouse with the written joinder or written consent of the surviving spouse;

      (4) Any property that is community property under ORS 112.705 to 112.775 or under the laws of the jurisdiction where the property is located; or

      (5) Any property that is held by either spouse solely in a fiduciary capacity. [2009 c.574 §9; 2011 c.305 §1]

 

(Decedent’s Probate Estate)

 

      114.650 Decedent’s probate estate. For purposes of ORS 114.600 to 114.725, a decedent’s probate estate is the value of all estate property that is subject to probate and that is available for distribution after payment of claims and expenses of administration. A decedent’s probate estate includes all property that could be administered under a small estate affidavit pursuant to ORS 114.505 to 114.560. A decedent’s probate estate does not include any property that constitutes a probate transfer to the decedent’s surviving spouse under ORS 114.685. [2009 c.574 §10]

 

(Decedent’s Nonprobate Estate)

 

      114.660 Decedent’s nonprobate estate. For purposes of ORS 114.600 to 114.725, a decedent’s nonprobate estate consists of the property described in ORS 114.665 that is not included in the decedent’s probate estate and that does not constitute a transfer to the decedent’s surviving spouse. The value of the decedent’s nonprobate estate is reduced by all debts and liabilities of the decedent that are not paid in probate, and by all costs of administering the decedent’s nonprobate estate that are incurred for the purpose of settling claims against the nonprobate estate and distributing the nonprobate estate property to the persons entitled to that property. [2009 c.574 §11; 2011 c.305 §2]

 

      114.665 Decedent’s nonprobate estate; property owned immediately before death. (1) A decedent’s nonprobate estate includes the decedent’s fractional interest in property held by the decedent in any form of survivorship tenancy immediately before the death of the decedent. The amount included in the decedent’s nonprobate estate under the provisions of this subsection is the value of the decedent’s fractional interest, to the extent the fractional interest passes by right of survivorship at the decedent’s death to a surviving tenant other than the decedent’s surviving spouse.

      (2) A decedent’s nonprobate estate includes the decedent’s ownership interest in property or accounts held immediately before death under a payable on death designation or deed, under a transfer on death registration or in co-ownership registration with a right of survivorship. The amount included in the decedent’s nonprobate estate under the provisions of this subsection is the value of the decedent’s ownership interest, to the extent the decedent’s ownership interest passed at the decedent’s death to any person other than the decedent’s estate or surviving spouse or for the benefit of any person other than the decedent’s estate or surviving spouse.

      (3) A decedent’s nonprobate estate includes any property owned by the decedent immediately before death for which the decedent had the power to designate a beneficiary, but only to the extent that the decedent could have designated the decedent, or the spouse of the decedent, as the beneficiary.

      (4) A decedent’s nonprobate estate includes any property that immediately before death the decedent could have acquired by the exercise of a revocation, without regard to whether the revocation was required to be made by the decedent alone or in conjunction with other persons.

      (5) A decedent’s nonprobate estate does not include the present value of any life insurance policy payable on the death of the decedent. [2009 c.574 §12; 2011 c.305 §3]

 

(Surviving Spouse’s Estate)

 

      114.675 Surviving spouse’s estate. (1) For purposes of ORS 114.600 to 114.725, a surviving spouse’s estate is:

      (a) The decedent’s probate transfers to the spouse, as described in ORS 114.685.

      (b) The decedent’s nonprobate transfers to the spouse, as described in ORS 114.690.

      (c) All other property of the spouse, as determined on the date of the decedent’s death.

      (d) Any property that would have been included under paragraph (a), (b) or (c) of this subsection except for the exercise of a disclaimer by the spouse after the death of the decedent.

      (2)(a) For the purpose of establishing the value of the surviving spouse’s estate under this section, the estate includes 100 percent of the corpus of any trust or portion of a trust from which all income must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse, and for which the surviving spouse has a general power of appointment that the surviving spouse, acting alone, may exercise, during the surviving spouse’s lifetime or at death of the surviving spouse, to or for the benefit of the surviving spouse or the surviving spouse’s estate.

      (b) For the purpose of establishing the value of the surviving spouse’s estate under this section, the estate includes 100 percent of the corpus of a trust or portion of a trust created by the decedent spouse, if all income from the trust or portion of a trust must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse and the trust principal may be accessed only by the trustee or the spouse and only for the purpose of providing for the health, education, support or maintenance of the spouse.

      (c) For the purpose of establishing the value of the surviving spouse’s estate under this section, the estate includes 50 percent of the corpus of a trust or portion of a trust created by the decedent spouse if all income from the trust or portion of a trust must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse and neither the trustee nor the spouse has the power to distribute trust principal to or for the benefit of the surviving spouse or any other person during the spouse’s lifetime.

      (d) For the purposes of this section, all amounts distributed to a surviving spouse from a unitrust that meets the requirements of ORS 129.225 (4) shall be considered income.

      (e) The value of the surviving spouse’s beneficial interest in a trust other than a trust described in paragraphs (a) to (d) of this subsection shall be determined under the provisions of ORS 114.630 (3) and (4). [2009 c.574 §13; 2011 c.305 §5]

 

(Decedent’s Probate Transfers to Spouse)

 

      114.685 Decedent’s probate transfers to surviving spouse. The decedent’s probate transfers to the decedent’s surviving spouse include all estate property that is subject to probate, that passes to the surviving spouse by testate or intestate succession, and that is available for distribution to the surviving spouse after payment of claims and expenses of administration. [2009 c.574 §14]

 

(Decedent’s Nonprobate Transfers to Spouse)

 

      114.690 Decedent’s nonprobate transfers to surviving spouse. (1) Except as provided in subsection (2) of this section, the decedent’s nonprobate transfers to the decedent’s surviving spouse include all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:

      (a) The decedent’s fractional interest in property held in any form of survivorship tenancy, as described in ORS 114.665 (1), to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving tenant;

      (b) The decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent that the decedent’s ownership interest passed to the surviving spouse as surviving co-owner;

      (c) Insurance proceeds payable to the surviving spouse by reason of the death of the decedent; and

      (d) All other property that would have been included in the decedent’s nonprobate estate under ORS 114.660 and 114.665 had it passed to or for the benefit of a person other than the decedent’s spouse.

      (2) The decedent’s nonprobate transfers to the decedent’s surviving spouse do not include any property passing to the surviving spouse under the federal Social Security Act. [2009 c.574 §15]

 

(Payment of Elective Share)

 

      114.700 Priority of sources from which elective share payable. (1) The surviving spouse’s estate, as described in ORS 114.675, shall be applied first to satisfy the dollar amount of the elective share and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others.

      (2) If after application of the surviving spouse’s estate under subsection (1) of this section the elective share amount is not fully satisfied, the following amounts shall be applied to the extent necessary to satisfy the balance of the elective share amount:

      (a) Amounts included in the decedent’s probate estate.

      (b) Amounts included in the decedent’s nonprobate estate under ORS 114.600 to 114.725.

      (3) Unless otherwise provided by a will, trust or other instrument executed by the decedent spouse:

      (a) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section shall be collected from both the probate and nonprobate estates of the decedent in a manner that ensures that the probate and nonprobate estates bear proportionate liability for the amounts necessary to pay the elective share amount.

      (b) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the probate estate of the decedent must be apportioned among all recipients of the decedent’s probate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s probate estate.

      (c) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the nonprobate estate of the decedent must be apportioned among all recipients of the decedent’s nonprobate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s nonprobate estate.

      (4) All apportionments under this section between the probate and nonprobate estates of the decedent and among the recipients of those estates shall be based on the assets of each estate that are subject to distribution by the court under the provisions of ORS 114.600 to 114.725.

      (5) In any proceeding described in ORS 114.610, the court may allocate the cost of storing and maintaining property included in the augmented estate pending distribution of the property. [2009 c.574 §16; 2011 c.305 §6]

 

      114.705 Liability of recipients of decedent’s nonprobate estate. (1) The following recipients of the decedent’s nonprobate estate are the only persons who may be required to make a proportional contribution toward the satisfaction of the surviving spouse’s elective share under the provisions of ORS 114.600 to 114.725:

      (a) An original recipient of all or part of the decedent’s nonprobate estate.

      (b) A person who has received all or part of the decedent’s nonprobate estate for less than fair consideration from an original recipient of the property, to the extent the person has the property or proceeds of the property.

      (2) A recipient of all or part of the decedent’s nonprobate estate who is required to make a proportional contribution toward the satisfaction of the surviving spouse’s elective share may elect to make the contribution by returning property determined to be adequate to satisfy the recipient’s obligation or by paying money equal to the value of that property. [2009 c.574 §17]

 

      114.710 Protective order. (1) If a surviving spouse has filed a motion or petition described in ORS 114.610, the surviving spouse or any person who has received any part of the decedent’s probate or nonprobate estate may request, at any time after the filing, that the court issue a protective order. The protective order shall prohibit or impose conditions on the transfer of property included in the augmented estate. The protective order may be served on any person holding property included in the augmented estate.

      (2) Upon the filing of a motion or petition under ORS 114.610, any person who has received any part of the decedent’s probate or nonprobate estate and who is required to make a contribution toward the satisfaction of the elective share may file a motion or petition with the court requesting a determination of the amount of the person’s proportionate contribution toward the satisfaction of the elective share. Upon that determination being made, the person may deposit with the court the amount so determined in the form of money or a bond or other security. The deposit discharges the person from all claims relating to the satisfaction of the elective share. In lieu of deposit with the court under this subsection the court may require that the money or security be deposited with a person designated by the court.

      (3) If a surviving spouse has filed a motion or petition described in ORS 114.610, and a notice of pendency of action under ORS 93.740 is recorded, a temporary restraining order is issued under ORCP 79, or provisional process is issued under ORCP 83, an owner of the property that is subject to the notice, order or process may seek relief from the notice, order or process by providing a bond or other security to the court in such amount as the court may determine adequate to satisfy the person’s proportionate contribution toward the satisfaction of the elective share. [2009 c.574 §18]

 

(Procedure)

 

      114.720 Proceedings to claim elective share. (1) A surviving spouse may claim the elective share by filing a petition for the exercise of the election in a circuit court within the time allowed by ORS 114.610 (1)(c). Venue for the proceeding is as provided in ORS 113.015. A copy of the petition must be served on all persons who would be entitled to receive information under ORS 113.145 and on all distributees and recipients of portions of the augmented estate known to the surviving spouse who can be located with reasonable efforts. The fee for filing a petition under this subsection shall be the amount prescribed in ORS 21.170, based on the value of the nonprobate estate. The Oregon Rules of Civil Procedure apply to proceedings under this section. Any party to a proceeding under this section may request that the pleadings and records in the proceeding be sealed.

      (2) A surviving spouse may withdraw a petition filed under this section at any time before entry of a judgment on the petition.

      (3) If a probate proceeding is commenced for the estate of the deceased spouse under ORS 113.035 either before or after a petition is filed under this section, the court shall consolidate the proceedings under this section with the probate proceedings. [2009 c.574 §19; 2011 c.595 §125]

 

      114.725 Effect of separation. If the decedent and the surviving spouse were living apart at the time of the decedent’s death, whether or not there was a judgment of legal separation, the court may deny any right to an elective share or may reduce the elective share to such amount as the court determines reasonable and proper. In deciding if all or part of the elective share should be denied, the court shall consider whether the marriage was a first or subsequent marriage for either or both of the spouses, the contribution of the surviving spouse to the property of the decedent in the form of services or transfers of property, the length and cause of the separation and any other relevant circumstances. [2009 c.574 §20]

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