As used in ORS chapters 111,
112, 113, 114, 115, 116 and 117, unless the context requires otherwise:
(1) “Abate” means to reduce a devise on account of the
insufficiency of the estate to pay all claims, expenses and devises in
full.
(2) “Action” includes suits and legal proceedings.
(3) “Administration” means any proceeding relating to the estate of
a decedent, whether the decedent died testate, intestate or partially
intestate.
(4) “Advancement” means a gift by a decedent to an heir to enable
the donee to anticipate the inheritance to the extent of the gift.
(5) “All purposes of intestate succession” means succession by,
through or from a person, both lineal and collateral.
(6) “Assets” includes real, personal and intangible property.
(7) “Claim” includes liabilities of a decedent, whether arising in
contract, in tort or otherwise.
(8) “Court” or “probate court” means the court in which
jurisdiction of probate matters, causes and proceedings is vested as
provided in ORS 111.075.
(9) “Decedent” means a person who has died leaving property that is
subject to administration.
(10) “Devise,” when used as a noun, means property disposed of by a
will, and includes “legacy” and “bequest.”
(11) “Devise,” when used as a verb, means to dispose of property by
a will, and includes “bequeath.”
(12) “Devisee” includes “legatee” and “beneficiary.”
(13) “Distributee” means a person entitled to any property of a
decedent under the will of the decedent or under intestate succession.
(14) “Domicile” means the place of abode of a person, where the
person intends to remain and to which, if absent, the person intends to
return.
(15) “Estate” means the real and personal property of a decedent,
as from time to time changed in form by sale, reinvestment or otherwise,
and augmented by any accretions or additions thereto and substitutions
therefor or diminished by any decreases and distributions therefrom.
(16) “Funeral” includes burial or other disposition of the remains
of a decedent, including the plot or tomb and other necessary incidents
to the disposition of the remains.
(17) “General devise” means a devise chargeable generally on the
estate of a testator and not distinguishable from other parts thereof or
not so given as to amount to a specific devise.
(18) “Heir” means any person, including the surviving spouse, who
is entitled under intestate succession to the property of a decedent who
died wholly or partially intestate.
(19) “Interested person” includes heirs, devisees, children,
spouses, creditors and any others having a property right or claim
against the estate of a decedent that may be affected by the proceeding.
It also includes fiduciaries representing interested persons.
(20) “Intestate” means one who dies without leaving a valid will,
or the circumstance of dying without leaving a valid will, effectively
disposing of all the estate.
(21) “Intestate succession” means succession to property of a
decedent who dies intestate or partially intestate.
(22) “Issue” includes adopted children and their issue and, when
used to refer to persons who take by intestate succession, includes all
lineal descendants, except those who are the lineal descendants of living
lineal descendants.
(23) “Net estate” means the real and personal property of a
decedent, except property used for the support of the surviving spouse
and children and for the payment of expenses of administration, funeral
expenses, claims and taxes.
(24) “Net intestate estate” means any part of the net estate of a
decedent not effectively disposed of by the will.
(25) “Personal property” includes all property other than real
property.
(26) “Personal representative” includes executor, administrator,
administrator with will annexed and administrator de bonis non, but does
not include special administrator.
(27) “Property” includes both real and personal property.
(28) “Real property” includes all legal and equitable interests in
land, in fee and for life.
(29) “Settlement” includes, as to the estate of a decedent, the
full process of administration, distribution and closing.
(30) “Specific devise” means a devise of a specific thing or
specified part of the estate of a testator that is so described as to be
capable of identification. It is a gift of a part of the estate
identified and differentiated from all other parts.
(31) “Will” includes codicil; it also includes a testamentary
instrument that merely appoints an executor or that merely revokes or
revives another will. [1969 c.591 §1] Except as
specifically provided otherwise in chapter 591, Oregon Laws 1969, on July
1, 1970:
(1) Chapter 591, Oregon Laws 1969, applies to wills of decedents
dying thereon or thereafter, and a will executed before July 1, 1970,
shall be considered lawfully executed if the application of ORS 112.255
would make it so, but the construction of a will executed before July 1,
1970, shall be governed by the law in effect on the date of execution
unless a contrary intent is established by the will.
(2) The procedure prescribed by chapter 591, Oregon Laws 1969,
applies to any proceedings commenced thereon or thereafter regardless of
the time of the death of a decedent, and also as to any further procedure
in proceedings then pending except to the extent that in the opinion of
the court the former procedure should be made applicable in a particular
case in the interest of justice or because of infeasibility of
application of the procedure prescribed by chapter 591, Oregon Laws 1969.
(3) A personal representative, guardian or conservator holding an
appointment on that date shall continue to hold the appointment, but
shall have only the powers conferred and be subject to the duties imposed
by chapter 591, Oregon Laws 1969, with respect to any act occurring or
done thereon or thereafter, other than acts pursuant to powers or duties
validly conferred or imposed by a will executed before July 1, 1970.
(4) An act done before July 1, 1970, in any proceeding and any
accrued right shall not be impaired by chapter 591, Oregon Laws 1969.
When a right is acquired, extinguished or barred upon the expiration of a
prescribed period of time which has commenced to run by the provisions of
any statute before July 1, 1970, those provisions shall remain in force
with respect to that right. [1969 c.591 §303] For purposes of ORS chapters
111 to 116, the Oregon Tax Court is not a court having probate
jurisdiction and is limited to the trial of appeals on inheritance tax
matters. [1971 c.567 §3; 1997 c.99 §25]PROBATE COURTS AND COMMISSIONERS (1) All probate
jurisdiction, authority, powers, functions and duties of the county
courts and the judges thereof are transferred to the circuit courts and
the judges thereof in all counties except Gilliam, Grant, Harney,
Malheur, Sherman and Wheeler Counties.
(2) All probate jurisdiction, authority, powers, functions and
duties of the circuit courts and the judges thereof are transferred to
the county courts and the judges thereof in Gilliam, Grant, Harney,
Malheur, Sherman and Wheeler Counties. [1969 c.591 §2; 1995 c.658 §71] Jurisdiction of all probate
matters, causes and proceedings is vested in the county courts of
Gilliam, Grant, Harney, Malheur, Sherman and Wheeler Counties and in the
circuit court for each other county and as provided in ORS 111.115. [1969
c.591 §4] The jurisdiction of the
probate court includes, but is not limited to:
(1) Appointment and qualification of personal representatives.
(2) Probate and contest of wills.
(3) Determination of heirship.
(4) Determination of title to and rights in property claimed by or
against personal representatives, guardians and conservators.
(5) Administration, settlement and distribution of estates of
decedents.
(6) Construction of wills, whether incident to the administration
or distribution of an estate or as a separate proceeding.
(7) Guardianships and conservatorships, including the appointment
and qualification of guardians and conservators and the administration,
settlement and closing of guardianships and conservatorships.
(8) Supervision and disciplining of personal representatives,
guardians and conservators.
(9) Appointment of a successor testamentary trustee where the
vacancy occurs prior to, or during the pendency of, the probate
proceeding. [1969 c.591 §5; 1973 c.177 §1] (1) The general legal and
equitable powers of a circuit court are applicable to effectuate the
jurisdiction of a probate court, punish contempts and carry out its
determinations, orders and judgments as a court of record with general
jurisdiction, and the same validity, finality and presumption of
regularity shall be accorded to its determinations, orders and judgments,
including determinations of its own jurisdiction, as to those of a court
of record with general jurisdiction.
(2) A probate court has full, legal and equitable powers to make
declaratory judgments, as provided in ORS 28.010 to 28.160, in all
matters involved in the administration of an estate, including those
pertaining to the title of real property, the determination of heirship
and the distribution of the estate. [1969 c.591 §6; 1979 c.284 §102] (1)
Except as otherwise provided in this section, no issue determined in a
probate court shall be tried again on appeal or otherwise reexamined in a
manner other than those appropriate to issues determined by a court of
record with general jurisdiction.
(2) Appeals from a circuit court sitting in probate shall be taken
to the Court of Appeals in the manner provided by law for appeals from
the circuit court.
(3) Appeals from a county court sitting in probate shall be taken
to the circuit court and Court of Appeals in the manner provided by ORS
5.120. [1969 c.591 §7; 1979 c.284 §103](1) An estate proceeding, including all probate matters, causes
and proceedings pertaining thereto, may be transferred at any time from a
county court sitting in probate to the circuit court for the county by
order of the county court.
(2) An estate proceeding, including all probate matters, causes and
proceedings pertaining thereto, commenced in a county court sitting in
probate and in which the county judge is a party or directly interested
shall be transferred from the county court to the circuit court for the
county by order of the county court.
(3) Upon transfer of an estate proceeding from a county court to
the circuit court under this section, the county clerk shall certify and
cause to be filed in the records of the circuit court all original papers
and proceedings pertaining to the estate proceeding, and thereafter
jurisdiction of all probate matters, causes and proceedings pertaining to
the estate proceeding is vested in the circuit court as if that
jurisdiction had been originally and exclusively vested in the circuit
court. [1969 c.591 §8] The court may appoint
the clerk of the probate court or some other suitable person at the
county seat to act as probate commissioner within the county. If the
clerk of the probate court is appointed probate commissioner, the deputy
of the clerk has the power to perform any act as probate commissioner
that the clerk has, and the clerk is responsible for conduct of the
deputy so acting. [1969 c.591 §10] (1) A probate commissioner
may act upon uncontested petitions for appointment of special
administrators, for probate of wills and for appointment of personal
representatives, guardians and conservators, to the extent authorized by
rule of the court. Pursuant thereto the probate commissioner may make and
enter orders on behalf of the court admitting wills to probate and
appointing and setting the amount of the bonds of special administrators,
personal representatives, guardians and conservators, subject to the
orders of the probate commissioner being set aside or modified by the
judge of the court within 30 days after the date an order is entered.
(2) Any matter presented to the probate commissioner may be
referred by the probate commissioner to the judge.
(3) Unless set aside or modified by the judge, the orders of the
probate commissioner have the same effect as if made by the judge. [1969
c.591 §11]PROBATE PROCEDURE GENERALLY No particular pleadings or
forms thereof are required in the exercise of jurisdiction of probate
courts. The mode of procedure in the exercise of jurisdiction is in the
nature of an action not triable by right to a jury except as otherwise
provided by statute. The proceedings shall be in writing and upon the
petition of a party in interest or the order of the court. All petitions,
reports and accounts shall be verified by at least one of the persons
making them or by the attorney for the person, or in case of a
corporation by its agent. The court exercises its powers by means of:
(1) A petition of a party in interest.
(2) A notice to a party.
(3) A subpoena to a witness.
(4) Orders and judgments.
(5) An execution or warrant to enforce its orders and judgments.
[1969 c.591 §12; 1979 c.284 §104] (1) Except as otherwise
specifically provided in ORS chapters 111, 112, 113, 114, 115, 116 and
117, whenever notice is required to be given of a hearing on any petition
or other matter upon which an order is sought, the petitioner or other
person filing the matter shall cause notice of the date, time and place
of the hearing to be given to each person interested in the subject of
the hearing or to the attorney of the person, if the person has appeared
by attorney or requested that notice be sent to the attorney of the
person, in any one or more of the following ways and within the following
times:
(a) By mailing a copy thereof addressed to the person or the
attorney of the person at least 14 days before the date set for the
hearing.
(b) By delivering a copy thereof to the person personally or to the
attorney of the person at least five days before the date set for the
hearing.
(c) If the address of any person is not known or cannot be
ascertained with reasonable diligence, by publishing a copy thereof once
in each of three consecutive weeks in a newspaper of general circulation
in the county where the hearing is to be held, the last publication of
which shall be at least 10 days before the date set for the hearing.
(2) Upon good cause shown the court may change the requirements as
to the method or time of giving notice for any hearing.
(3) Proof of the giving of notice must be made at or before the
hearing and filed in the proceeding. Proof shall be by an admission of
service, a return receipt from the postal authorities or an affidavit or
certificate of the person giving notice or the publisher, or one of the
employees of the publisher, of the newspaper publishing the notice. [1969
c.591 §13] When any notice or information is
required to be given under ORS chapters 111, 112, 113, 114, 115, 116 and
117, a guardian, a guardian ad litem, a conservator or a person who is
neither incompetent nor a minor may waive notice by a writing signed by
the guardian, guardian at litem, conservator or person or the attorney of
the guardian, guardian ad litem, conservator or person and filed in the
proceeding, or by the appearance of the guardian, guardian ad litem,
conservator or person at the hearing. [1969 c.591 §14; 1973 c.506 §5] Any interested person, on or
before the date set for a hearing, may file written objections to a
petition previously filed. [1969 c.591 §15] (1) Proof of documents
pursuant to ORS chapters 111, 112, 113, 114, 115, 116 and 117 may be made
as follows:
(a) Of a will, by a certified copy thereof.
(b) That a will has been probated or established in a foreign
jurisdiction, by a certified copy of the order admitting the will to
probate or evidencing its establishment.
(c) Of letters testamentary or of administration, by a certified
copy thereof. The certification may include a statement that the letters
have not been revoked.
(2) A document or order filed or entered in a foreign jurisdiction
may be proved by a copy thereof, certified by a clerk of the court in
which the document or order was filed or entered or by any other official
having legal custody of the original document or order. [1969 c.591 §16] If a document or part thereof is
not in the English language, a translation certified by the translator to
be accurate may be attached thereto and shall be regarded as sufficient
evidence of the contents of the document, unless objection is made
thereto. In the absence of objection, if any person relies in good faith
on the accuracy of the translation the person shall not be prejudiced
thereafter because of its inaccuracy. [1969 c.591 §17] The judge of the court may, on the
motion of the judge or on the request of an interested person, direct the
reporter of the court to attend any hearing and make a stenographic
record of the same. [1969 c.591 §18] (1) The court in a probate proceeding
under ORS chapters 111, 112, 113, 114, 115, 116 and 117 may enter a
limited judgment only for the following decisions of the court:
(a) A decision on a petition for appointment or removal of a
personal representative.
(b) A decision in a will contest filed in the probate proceeding.
(c) A decision on an objection to an accounting.
(d) A decision on a request made in the proceeding for a
declaratory judgment under ORS 111.095.
(e) Such decisions of the court as may be specified by rules or
orders of the Chief Justice of the Supreme Court under ORS 18.028.
(2) A court may enter a limited judgment under this section only if
the court determines that there is no just reason for delay. The judgment
document need not reflect the court’s determination that there is no just
reason for delay. [2005 c.568 §33]
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