Any part of the net estate of a
decedent not effectively disposed of by the will of the decedent shall
pass as provided in ORS 112.025 to 112.055. [1969 c.591 §19]
If the
decedent leaves a surviving spouse and issue, the intestate share of the
surviving spouse is:
(1) If there are surviving issue of the decedent all of whom are
issue of the surviving spouse also, the entire net intestate estate.
(2) If there are surviving issue of the decedent one or more of
whom are not issue of the surviving spouse, one-half of the net intestate
estate. [1969 c.591 §20; 1987 c.329 §1] If
the decedent leaves a surviving spouse and no issue, the surviving spouse
shall have all of the net intestate estate. [1969 c.591 §21] The part of the net
intestate estate not passing to the surviving spouse shall pass:
(1) To the issue of the decedent. If the issue are all of the same
degree of kinship to the decedent, they shall take equally, but if of
unequal degree, then those of more remote degrees take by representation.
(2) If there is no surviving issue, to the surviving parents of the
decedent.
(3) If there is no surviving issue or parent, to the brothers and
sisters of the decedent and the issue of any deceased brother or sister
of the decedent by representation. If there is no surviving brother or
sister, the issue of brothers and sisters take equally if they are all of
the same degree of kinship to the decedent, but if of unequal degree,
then those of more remote degrees take by representation.
(4) If there is no surviving issue, parent or issue of a parent, to
the grandparents of the decedent and the issue of any deceased
grandparent of the decedent by representation. If there is no surviving
grandparent, the issue of grandparents take equally if they are all of
the same degree of kinship to the decedent, but if of unequal degree,
then those of more remote degrees take by representation.
(5) If, at the time of taking, surviving parents or grandparents of
the decedent are married to each other, they shall take real property as
tenants by the entirety and personal property as joint owners with the
right of survivorship. [1969 c.591 §22](1) Property that would pass by intestate succession under ORS
112.045 from the estate of a decedent to a parent of the decedent shall
pass and be vested as if the parent had predeceased the decedent if the
decedent was an adult when the decedent died and:
(a) The parent of the decedent willfully deserted the decedent for
the 10-year period immediately preceding the date on which the decedent
became an adult; or
(b) The parent neglected without just and sufficient cause to
provide proper care and maintenance for the decedent for the 10-year
period immediately preceding the date on which the decedent became an
adult.
(2) Property that would pass by intestate succession under ORS
112.045 from the estate of a decedent to a parent of the decedent shall
pass and be vested as if the parent had predeceased the decedent if the
decedent was a minor when the decedent died and:
(a) The parent of the decedent willfully deserted the decedent for
the life of the decedent or for the 10-year period immediately preceding
the date on which the decedent died; or
(b) The parent neglected without just and sufficient cause to
provide proper care and maintenance for the decedent for the life of the
decedent or for the 10-year period immediately preceding the date on
which the decedent died.
(3) For the purposes of subsections (1) and (2) of this section,
the court may disregard incidental visitations, communications and
contributions in determining whether a parent willfully deserted the
decedent or neglected without just and sufficient cause to provide proper
care and maintenance for the decedent.
(4) For the purposes of subsections (1) and (2) of this section, in
determining whether the parent willfully deserted the decedent or
neglected without just and sufficient cause to provide proper care and
maintenance for the decedent, the court may consider whether a custodial
parent or other custodian attempted, without good cause, to prevent or to
impede contact between the decedent and the parent whose intestate share
would be forfeited under this section.
(5) The intestate share of a parent of a decedent may be forfeited
under this section only pursuant to an order of the court entered after
the filing of a petition under ORS 112.049. A petition filed under ORS
113.035 may not request the forfeiture of the intestate share of a parent
of a decedent under this section. [2005 c.741 §2]Note: Section 6, chapter 741, Oregon Laws 2005, provides:
Sec. 6. Section 2 of this 2005 Act [112.047] and the amendments to
ORS 113.035 and 113.145 by sections 4 and 5 of this 2005 Act apply only
to the estates of persons who die on or after the effective date of this
2005 Act [January 1, 2006]. [2005 c.741 §6] (1) A petition
may be filed in probate proceedings to assert that the intestate share of
a parent of a decedent is subject to forfeiture under ORS 112.047. A
petition may be filed under this section only by a person who would be
benefited by a forfeiture of the parent’s share.
(2) A petition under this section must be filed not later than:
(a) Four months after the date of delivery or mailing of the
information described in ORS 113.145 if that information was required to
be delivered or mailed to the person on whose behalf the petition is
filed; or
(b) Four months after the first publication of notice to interested
persons if the person on whose behalf the petition is filed was not
required to be named as an interested person in the petition for
appointment of a personal representative.
(3) The petitioner has the burden of proving the facts alleged in a
petition filed under this section by clear and convincing evidence. [2005
c.741 §3]Note: See note under 112.047.(1) If no person takes under ORS 112.025 to
112.045, the net intestate estate escheats to the State of Oregon.
(2) If a devisee or a person entitled to take under ORS 112.025 to
112.045 is not identified or found, the share of that person escheats to
the State of Oregon.
(3) If a devisee or a person entitled to take under ORS 112.025 to
112.045 is not identified or found:
(a) The Department of State Lands has the same preference as the
missing devisee or person for the purpose of appointment as personal
representative under ORS 113.085;
(b) Title to property of the decedent that would vest in the
missing devisee or person under ORS 114.215 vests in the Department of
State Lands; and
(c) The Department of State Lands has all of the rights of the
missing devisee or person for the purposes of ORS chapters 111, 112, 113,
114, 115, 116 and 117, including but not limited to the following:
(A) The right to contest any will of the decedent under ORS
113.075; and
(B) The right to information under ORS 113.145. [1969 c.591 §23;
2003 c.395 §2] (1) In
any proceeding to determine the escheat share of the estate of a decedent
whose estate is wholly or partially subject to probate in this state:
(a) No preference shall be given to any person over escheat; and
(b) After diligent search and inquiry appropriate to the
circumstances, the following presumptions apply in a proceeding to
determine whether a missing person has died:
(A) A missing person whose death cannot be proved by other means
lives to 100 years of age.
(B) A missing person who was exposed to a specific peril at the
time the person became missing has died if it is reasonable to expect
from the nature of the peril that proof of death would be impractical.
(C) A missing person whose absence is unexplained has died if the
character and habits of the person are inconsistent with a voluntary
absence for the time that the person has been missing.
(D) A missing person known to have been alive who has not been seen
or heard from for seven years has died if the person has been absent from
the person’s usual residence, the absence is unexplained, there are other
persons who would have been likely to have heard from the missing person
during that period were the missing person alive, and those other persons
have not heard from the missing person.
(2) In any proceeding described by subsection (1) of this section,
a missing person who is presumed to be dead is also presumed to have had
two children in addition to any known issue of the person unless the
presumption of death arises by reason of the application of subsection
(1)(b)(B) or (C) of this section. [2003 c.395 §4] “Representation” means the method
of determining the passing of the net intestate estate when the
distributees are of unequal degrees of kinship to the decedent. It is
accomplished as follows: The estate shall be divided into as many shares
as there are surviving heirs of the nearest degree of kinship and
deceased persons of the same degree who left issue who survive the
decedent, each surviving heir of the nearest degree receiving one share
and the share of each deceased person of the same degree being divided
among the issue of the deceased person in the same manner. [1969 c.591
§24] The
relationships existing at the time of the death of the decedent govern
the passing of the net intestate estate, but persons conceived before the
death of the decedent and born alive thereafter inherit as though they
were alive at the time of the death of the decedent. [1969 c.591 §25] Persons of the half blood
inherit the same share that they would inherit if they were of the whole
blood. [1969 c.591 §27] (1) For all purposes
of intestate succession, full effect shall be given to all relationships
as described in ORS 109.060, except as otherwise provided by law in case
of adoption.
(2) For all purposes of intestate succession and for those purposes
only, before the relationship of father and child and other relationships
dependent upon the establishment of paternity shall be given effect under
subsection (1) of this section:
(a) The paternity of the child shall have been established under
ORS 109.070 during the lifetime of the child or;
(b) The father shall have acknowledged himself to be the father in
writing signed by him during the lifetime of the child. [1969 c.591 §28] A person who
is related to the decedent through two lines of relationship is entitled
to only a single share based on the relationship which would entitle the
person to the larger share. [1969 c.591 §29]ADVANCEMENTS If a person dies intestate as
to all the estate of the person, property which the person gave in the
lifetime of the person to an heir shall be treated as an advancement
against the heir’s share of the estate if declared in writing by the
decedent or acknowledged in writing by the heir to be an advancement. For
that purpose the property advanced shall be valued as of the time the
heir came into possession or enjoyment of the property or as of the time
of death of the decedent, whichever occurs first. [1969 c.591 §30] (1) If the value of
the advancement exceeds the heir’s share of the estate, the heir shall be
excluded from any further share of the estate, but the heir shall not be
required to refund any part of the advancement. If the value of the
advancement is less than the heir’s share, the heir shall be entitled
upon distribution of the estate to such additional amount as will give
the heir the heir’s share of the estate.
(2) The property advanced is not a part of the estate, but for the
purpose of determining the shares of the heirs the advancement shall be
added to the estate, the sum then divided among the heirs and the
advancement then deducted from the share of the heir to whom the
advancement was made. [1969 c.591 §31] If the recipient of the
property advanced fails to survive the decedent, the amount of the
advancement shall be taken into account in computing the share of the
issue of the recipient, whether or not the issue take by representation.
[1969 c.591 §32]STATUS OF ADOPTED PERSONS (1) An adopted person, the issue and
kindred of the adopted person shall take by intestate succession from the
adoptive parents, their issue and kindred, and the adoptive parents,
their issue and kindred shall take by intestate succession from the
adopted person, the issue and kindred of the adopted person, as though
the adopted person were the natural child of the adoptive parents.
(2) An adopted person shall cease to be treated as the child of the
person’s natural parents for all purposes of intestate succession by the
adopted person, the issue and kindred of the adopted person and the
natural parents, their issue and kindred, except:
(a) If a natural parent of a person marries or remarries and the
person is adopted by the stepparent, the adopted person shall continue
also to be treated, for all purposes of intestate succession, as the
child of the natural parent who is the spouse of the adoptive parent.
(b) If a natural parent of a person dies, the other natural parent
remarries and the person is adopted by the stepparent, the adopted person
shall continue also to be treated, for all purposes of intestate
succession by any person through the deceased natural parent, as the
child of the deceased natural parent.
(3) ORS chapters 111, 112, 113, 114, 115, 116 and 117 apply to
adopted persons who were adopted in this state or elsewhere. [1969 c.591
§33] For all purposes of
intestate succession, a person who has been adopted more than once shall
be treated as the child of the parents who have most recently adopted the
person and, except as otherwise provided in this section, shall cease to
be treated as the child of the previous adoptive parents. The person
shall continue also to be treated as the child of a natural parent or
previous adoptive parent only to the extent provided in ORS 112.175 (2),
and for the purpose of applying that subsection with reference to a
previous adoptive parent, “natural parent” in that subsection means the
previous adoptive parent. [1969 c.591 §34]Unless a contrary intent is established
by the instrument, all references in a will, deed, trust instrument or
other instrument to an individual or member of a class described
generically in relation to a particular person as children, issue,
grandchildren, descendants, heirs, heirs of the body, next of kin,
distributees, grandparents, brothers, nephews or other relatives shall
include any person who would be treated as so related for all purposes of
intestate succession, except that an adopted person so included must have
been adopted as a minor or after having been a member of the household of
the adoptive parent while a minor. [1969 c.591 §35]WILLS Any person who is 18 years of age or
older or who has been lawfully married, and who is of sound mind, may
make a will. [1969 c.591 §36] The
intention of a testator as expressed in the will of the testator controls
the legal effect of the dispositions of the testator. The rules of
construction expressed in this section, ORS 112.230 and 112.410 apply
unless a contrary intention is indicated by the will. [1973 c.506 §10]The meaning and legal effect of a disposition in a
will shall be determined by the local law of a particular state selected
by the testator in the instrument of the testator unless the application
of that law is contrary to the public policy of this state. [1973 c.506
§11] (1) As used in this
section:
(a) “International will” means a will executed in conformity with
subsections (2) to (5) of this section.
(b) “Authorized person” and “person authorized to act in connection
with international wills” means a person who by subsection (9) of this
section, or by the laws of the United States including members of the
diplomatic and consular service of the United States designated by
foreign service regulations, is empowered to supervise the execution of
international wills.
(2)(a) A will is valid as regards form, irrespective particularly
of the place where it is made, of the location of the assets and of the
nationality, domicile or residence of the testator, if it is made in the
form of an international will complying with the requirements of this
section.
(b) The invalidity of the will as an international will does not
affect its formal validity as a will of another kind.
(c) This section does not apply to the form of testamentary
dispositions made by two or more persons in one instrument.
(3)(a) The will must be made in writing. It need not be written by
the testator. It may be written in any language, by hand or by any other
means.
(b) The testator shall declare in the presence of two witnesses and
of a person authorized to act in connection with international wills that
the document is the will of the testator and that the testator knows the
contents thereof. The testator need not inform the witnesses, or the
authorized person, of the contents of the will.
(c) In the presence of the witnesses, and of the authorized person,
the testator shall sign the will or, if the testator has previously
signed it, shall acknowledge the signature.
(d) If the testator is unable to sign, the absence of that
signature does not affect the validity of the international will if the
testator indicates the reason for inability to sign and the authorized
person makes note thereof on the will. In that case, it is permissible
for any other person present, including the authorized person or one of
the witnesses, at the direction of the testator, to sign the testator’s
name for the testator if the authorized person makes note of this on the
will, but it is not required that any person sign the testator’s name for
the testator.
(e) The witnesses and the authorized person shall there and then
attest the will by signing in the presence of the testator.
(4)(a) The signatures must be placed at the end of the will. If the
will consists of several sheets, each sheet must be signed by the
testator or, if the testator is unable to sign, by the person signing on
behalf of the testator or, if there is no such person, by the authorized
person. In addition, each sheet must be numbered.
(b) The date of the will must be the date of its signature by the
authorized person. That date must be noted at the end of the will by the
authorized person.
(c) The authorized person shall ask the testator whether the
testator wishes to make a declaration concerning the safekeeping of the
will. If so and at the express request of the testator, the place where
the testator intends to have the will kept must be mentioned in the
certificate provided for in subsection (5) of this section.
(d) A will executed in compliance with subsection (3) of this
section is not invalid merely because it does not comply with this
subsection.
(5) The authorized person shall attach to the will a certificate to
be signed by the authorized person establishing that the requirements of
this section for valid execution of an international will have been
fulfilled. The authorized person shall keep a copy of the certificate and
deliver another to the testator. The certificate must be substantially in
the following form:
___________________________________________________________________________
___
CERTIFICATE
(Convention of October 26, 1973)1. I, _________(name, address and
capacity), a person authorized to act
in connection with international wills,
2. certify that on _________ (date)
at _________ (place)
3. (testator) _________(name, address,
date and place of birth) in my presence
and that of the witnesses
4. (a) _________(name, address, date
and place of birth)
(b) _________(name, address, date
and place of birth) has declared that
the attached document is the will of
the testator and that the testator
knows the contents thereof.
5. I furthermore certify that:
6. (a) in my presence and in that of the
witnesses
(1) the testator has signed
the will or has acknowledged
the testator’s signature
previously affixed.
(2) following a declaration of the testator stating that
the testator was unable to
sign the will for the following
reason____________,
I have mentioned this declar-
ation on the will, *and the
signature has been affixed by
_________ (name and address)
7. (b) the witnesses and I have signed
the will;
8. (c) each page of the will has been
signed by ________
and numbered;
9. (d) I have satisfied myself as to
the identity of the testator and
of the witnesses as designated above;
10. (e) the witnesses met the conditions
requisite to act as such according
to the law under which I am acting;
11. *(f) the testator has requested me
to include the following statement
concerning the safekeeping of
the will: _______________12. PLACE OF EXECUTION
13. DATE
14. SIGNATURE and, if necessary, SEAL
*to be completed if appropriate
___________________________________________________________________________
___
(6) In the absence of evidence to the contrary, the certificate of
the authorized person is conclusive of the formal validity of the
instrument as a will under this section. The absence or irregularity of a
certificate does not affect the formal validity of a will under this
section.
(7) An international will is subject to the ordinary rules of
revocation of wills.
(8) Subsections (1) to (7) of this section derive from Annex to
Convention of October 26, 1973, Providing a Uniform Law on the Form of an
International Will. In interpreting and applying this section, regard
shall be had to its international origin and to the need for uniformity
in its interpretation.
(9) Individuals who have been admitted to practice law before the
courts of this state and are currently licensed so to do are authorized
persons in relation to international wills.
(10) This section may be referred to and cited as the Uniform
International Wills Act. [1981 c.481 §2; 1993 c.98 §2] A will shall be in writing and shall
be executed with the following formalities:
(1) The testator, in the presence of each of the witnesses, shall:
(a) Sign the will; or
(b) Direct one of the witnesses or some other person to sign
thereon the name of the testator; or
(c) Acknowledge the signature previously made on the will by the
testator or at the testator’s direction.
(2) Any person who signs the name of the testator as provided in
subsection (1)(b) of this section shall sign the signer’s own name on the
will and write on the will that the signer signed the name of the
testator at the direction of the testator.
(3) At least two witnesses shall each:
(a) See the testator sign the will; or
(b) Hear the testator acknowledge the signature on the will; and
(c) Attest the will by signing the witness’ name to it.
(4) A will executed in compliance with the Uniform International
Wills Act shall be deemed to have complied with the formalities of this
section. [1969 c.591 §37; 1973 c.506 §7; 1981 c.481 §4] A will attested by an interested
witness is not thereby invalidated. An interested witness is one to whom
is devised a personal and beneficial interest in the estate. [1969 c.591
§38; 1973 c.506 §8] (1) A will is lawfully
executed if it is in writing, signed by or at the direction of the
testator and otherwise executed in accordance with the law of:
(a) This state at the time of execution or at the time of death of
the testator; or
(b) The domicile of the testator at the time of execution or at the
time of the testator’s death; or
(c) The place of execution at the time of execution.
(2) A will is lawfully executed if it complies with the Uniform
International Wills Act. [1969 c.591 §39; 1981 c.481 §5] (1) A devise may be made
by a will to the trustee or trustees of a trust, regardless of the
existence, size or character of the corpus of the trust, if:
(a) The trust is established or will be established by the
testator, or by the testator and some other person or persons, or by some
other person or persons;
(b) The trust is identified in the testator’s will; and
(c) The terms of the trust are set forth in a written instrument,
other than a will, executed before, concurrently with, or after the
execution of the testator’s will, or in the valid last will of a person
who has predeceased the testator.
(2) The trust may be funded during the testator’s lifetime or upon
the testator’s death by the testator’s devise to the trustee or trustees.
The trust may be a funded or unfunded life insurance trust, although the
trustor has reserved any or all of the rights of ownership of the
insurance contracts.
(3) The devise shall not be invalid because the trust:
(a) Is amendable or revocable, or both; or
(b) Was amended after the execution of the testator’s will or after
the death of the testator.
(4) Unless the testator’s will provides otherwise, the property so
devised:
(a) Shall not be considered to be held under a testamentary trust
of the testator, but shall become a part of the trust to which it is
given; and
(b) Shall be administered and disposed of in accordance with the
provisions of the instrument or will setting forth the terms of the
trust, including any amendments thereto made before or after the death of
the testator, regardless of whether made before or after the execution of
the testator’s will.
(5) Unless the testator’s will provides otherwise, a revocation or
termination of the trust before the death of the testator shall cause the
devise to lapse.
(6) This section shall not be construed as providing an exclusive
method for making devises to the trustee or trustees of a trust
established otherwise than by the will of the testator making the devise.
(7) This section shall be so construed as to effectuate its general
purpose to make uniform the law of those states that enact the same or
similar provisions. [1969 c.591 §40; 1999 c.132 §1](1) A contract to make a will or devise, or
not to revoke a will or devise, or to die intestate, executed after
January 1, 1974, shall be established only by:
(a) Provisions of a will stating material provisions of the
contract;
(b) An express reference in a will to a contract and extrinsic
evidence proving the terms of the contract; or
(c) A writing signed by the decedent evidencing the contract.
(2) The execution of a joint will or mutual wills does not create a
presumption of a contract not to revoke the will or wills. [1973 c.506
§13] (1)
Except as provided in this section, an in terrorem clause in a will is
valid and enforceable. If a devisee contests a will that contains an in
terrorem clause that applies to the devisee, the court shall enforce the
clause against the devisee even though the devisee establishes that there
was probable cause for the contest.
(2) The court shall not enforce an in terrorem clause if the
devisee contesting the will establishes that the devisee has probable
cause to believe that the will is a forgery or that the will has been
revoked.
(3) The court shall not enforce an in terrorem clause if the
contest is brought by a fiduciary acting on behalf of a protected person
under the provisions of ORS chapter 125, a guardian ad litem appointed
for a minor, or a guardian ad litem appointed for an incapacitated or
financially incapable person.
(4) For the purposes of this section, “in terrorem clause” means a
provision in a will that reduces or eliminates a devise to a devisee if
the devisee contests the will. [1997 c.151 §2] A will may be
revoked or altered only as provided in ORS 112.285 to 112.315. [1969
c.591 §41] (1) A will may be revoked
or altered by another will.
(2) A will may be revoked by being burned, torn, canceled,
obliterated or destroyed, with the intent and purpose of the testator of
revoking the will, by the testator, or by another person at the direction
of the testator and in the presence of the testator. The injury or
destruction by a person other than the testator at the direction and in
the presence of the testator shall be proved by at least two witnesses.
[1969 c.591 §42] If a will or a part
thereof has been revoked or is invalid, it can be revived only by a
re-execution of the will or by the execution of another will in which the
revoked or invalid will or part thereof is incorporated by reference.
[1969 c.591 §43] A will is revoked by the subsequent
marriage of the testator if the testator is survived by a spouse, unless:
(1) The will evidences an intent that it not be revoked by the
subsequent marriage or was drafted under circumstances establishing that
it was in contemplation of the marriage; or
(2) The testator and spouse entered into a written contract before
the marriage that either makes provision for the spouse or provides that
the spouse is to have no rights in the estate of the testator. [1969
c.591 §44] Unless a will evidences
a different intent of the testator, the divorce or annulment of the
marriage of the testator after the execution of the will revokes all
provisions in the will in favor of the former spouse of the testator and
any provision therein naming the former spouse as executor, and the
effect of the will is the same as though the former spouse did not
survive the testator. [1969 c.591 §45] An
executory contract of sale made by a testator to convey property devised
in a will previously made, is not a revocation of the previous devise,
either in law or equity; but the property shall pass by the devise,
subject to the same remedies on the agreement, for specific performance
or otherwise, against devisees as might be had against the heirs of the
testator if the property had descended to them. [1969 c.591 §46]
An encumbrance or disposition of property by a testator after the
testator makes a will does not affect the operation of the will upon a
remaining interest therein that is subject to the disposal of the
testator at the time of the death of the testator. [1969 c.591 §47] A devise of property to any person
for the term of the life of the person, and after the death of the person
to the children or heirs of the person, vests an estate or interest for
life only in the devisee and remainder in the children or heirs. [1969
c.591 §48] A devise of
property passes all of the interest of the testator therein at the time
of the death of the testator, unless the will evidences the intent of the
testator to devise a lesser interest. [1969 c.591 §49] Any property acquired
by the testator after the making of a will passes thereby, and in like
manner as if title thereto were vested in the testator at the time of
making the will, unless the intent expressed in the will is clear and
explicit to the contrary. [1969 c.591 §50] (1) In
the situations and under the circumstances provided in and governed by
this section, specific devises will not fail or be extinguished by the
destruction, damage, sale, condemnation or change in form of the property
specifically devised. This section is inapplicable if the intent that the
devise fail under the particular circumstances appears in the will or if
the testator during the lifetime of the testator gives property to the
specific devisee with the intent of satisfying the specific devise.
(2) Whenever the subject of a specific devise is property only part
of which is destroyed, damaged, sold or condemned, the specific devise of
any remaining interest in the property owned by the testator at the time
of death is not affected by this section; but this section applies to the
part which would have been adeemed under the common law by the
destruction, damage, sale or condemnation.
(3) If insured property that is the subject of a specific devise is
destroyed or damaged, the specific devisee has the right to receive,
reduced by any amount expended or incurred by the testator in restoration
or repair of the property:
(a) Any insurance proceeds paid to the personal representative
after the death of the testator, with the incidents of the specific
devise; and
(b) A general pecuniary legacy equivalent to any insurance proceeds
paid to the testator within six months before the death of the testator.
(4) If property that is the subject of a specific devise is sold by
the testator, the specific devisee has the right to receive:
(a) Any balance of the purchase price unpaid at the time of the
death of the testator, including any security interest in the property
and interest accruing before the death, if part of the estate, with the
incidents of the specific devise; and
(b) A general pecuniary legacy equivalent to the amount of the
purchase price paid to the testator within six months before the death of
the testator. Acceptance of a promissory note of the purchaser or a third
party is not considered payment, but payment on the note is payment on
the purchase price. Sale by an agent of the testator or by a trustee
under a revocable living trust created by the testator, the principal of
which is to be paid to the personal representative or estate of the
testator on the death of the testator, is a sale by the testator for
purposes of this section.
(5) If property that is the subject of a specific devise is taken
by condemnation before the death of the testator, the specific devisee
has the right to receive:
(a) Any amount of the condemnation award unpaid at the time of the
death, with the incidents of the specific devise; and
(b) A general pecuniary legacy equivalent to the amount of an award
paid to the testator within six months before the death of the testator.
In the event of an appeal in a condemnation proceeding, the award, for
purposes of this section, is limited to the amount established on the
appeal.
(6) If property that is the subject of a specific devise is sold by
a conservator of the testator, or insurance proceeds or a condemnation
award are paid to a conservator of the testator, the specific devisee has
the right to receive a general pecuniary legacy equivalent to the
proceeds of the sale, the insurance proceeds or the condemnation award,
reduced by any amount expended or incurred in restoration or repair of
the property. This subsection does not apply if the testator, after the
sale, receipt of insurance proceeds or award, is adjudicated competent
and survives such adjudication by six months.
(7) If securities are specifically devised, and after the execution
of the will other securities in the same or another entity are
distributed to the testator by reason of ownership of the specifically
devised securities and as a result of a partial liquidation, stock
dividend, stock split, merger, consolidation, reorganization,
recapitalization, redemption, exchange or any other similar transaction,
and if the other securities are part of the estate of the testator at
death, the specific devise is considered to include the additional or
substituted securities. Distributions prior to death with respect to a
specifically devised security not provided for in this subsection are not
part of the specific devise. As used in this subsection, “securities”
means the same as defined in ORS 59.015.
(8) The amount a specific devisee receives as provided in this
section is reduced by any expenses of the sale or of collection of
proceeds of insurance, sale or condemnation award and by any amount by
which the income tax of the decedent or the estate of the decedent is
increased by reason of items provided for in this section. Expenses
include legal fees paid or incurred. [1969 c.591 §52; 1973 c.506 §14;
1975 c.491 §6; 1995 c.664 §84]When property is devised to any person who is related by blood or
adoption to the testator and who dies before the testator leaving lineal
descendants, the descendants take by representation the property the
devisee would have taken if the devisee had survived the testator, unless
otherwise provided in the will of the testator. Unless otherwise provided
in the will of the testator, one who would have been a devisee under a
class gift if the person had survived the testator is treated as a
devisee for purposes of this section if death occurred after execution of
the will. [1969 c.591 §53; 1973 c.506 §15] Except as provided in ORS
112.395:
(1) If a devise other than a residuary devise fails for any reason,
it becomes a part of the residue.
(2) If the residue is devised to two or more persons and the share
of one of the residuary devisees fails for any reason, the share passes
to the other residuary devisee or to other residuary devisees in
proportion to their interests in the residue. [1973 c.506 §17](1) As used in this section, “pretermitted child”
means a child of a testator who is born or adopted after the execution of
the will of the testator, who is neither provided for in the will nor in
any way mentioned in the will and who survives the testator.
(2) If a testator has one or more children living when the testator
executes a will and no provision is made in the will for any such living
child, a pretermitted child shall not take a share of the estate of the
testator disposed of by the will.
(3) If a testator has one or more children living when the testator
executes a will and provision is made in the will for one or more of such
living children, a pretermitted child is entitled to share in the estate
of the testator disposed of by the will as follows:
(a) The pretermitted child may share only in the portion of the
estate devised to the living children by the will.
(b) The share of each pretermitted child shall be the total value
of the portion of the estate devised to the living children by the will
divided by the number of pretermitted children plus the number of living
children for whom provision, other than nominal provision, is made in the
will.
(c) To the extent feasible, the interest of a pretermitted child in
the estate shall be of the same character, whether equitable or legal, as
the interest the testator gave to the living children by the will.
(4) If a testator has no child living when the testator executes a
will, a pretermitted child shall take a share of the estate as though the
testator had died intestate.
(5) A pretermitted child may recover the share of the estate to
which the child is entitled, as provided in this section, either from the
other children under subsection (3) of this section or from the
testamentary beneficiaries under subsection (4) of this section, ratably,
out of the portions of the estate passing to those persons under the
will. In abating the interests of those beneficiaries, the character of
the testamentary plan adopted by the testator shall be preserved so far
as possible. [1969 c.591 §54]A general residuary clause in a will or
a will making general disposition of all of the testator’s property does
not exercise a power of appointment held by the testator unless specific
reference is made to the power or there is some other indication of
intention to include the property subject to the power. [1973 c.506 §12] Except as
otherwise expressly provided by law, a person, including a child of the
testator and a descendant of that child, shall not take or be entitled to
take any portion of the estate of a testator disposed of by the will of
the testator other than as provided in the will. [1969 c.591 §55] So far as
the county clerk is able, the county clerk of each county shall deliver
to the testator, or to the person to whom the will is to be delivered
after the death of the testator, each will deposited in the office of the
county clerk for safekeeping pursuant to ORS 114.410 (1965 Replacement
Part). Any will the county clerk has been unable to so deliver before
January 1, 2010, may be destroyed by the county clerk. [1969 c.591 §57]EFFECT OF HOMICIDE OR ABUSE ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS,
LIFE INSURANCE AND BENEFICIARY DESIGNATIONS As used in ORS
112.455 to 112.555:
(1) “Abuser” means a person who is convicted of a felony by reason
of conduct that constitutes physical abuse as described in ORS 124.105 or
financial abuse as described in ORS 124.110.
(2) “Decedent” means:
(a) A person whose life is taken by a slayer; or
(b) A person whose date of death is not later than five years after
an abuser is convicted of a felony by reason of conduct against the
person that constitutes physical abuse as described in ORS 124.105 or
financial abuse as described in ORS 124.110.
(3) “Slayer” means a person who, with felonious intent, takes or
procures the taking of the life of a decedent. [1969 c.591 §58; 2005
c.270 §1]Note: Section 11, chapter 270, Oregon Laws 2005, provides:
Sec. 11. (1) Except as provided by subsection (2) of this section,
the amendments to ORS 112.455, 112.465, 112.475, 112.485, 112.495,
112.505, 112.515, 112.525, 112.535 and 112.545 by sections 1 to 10 of
this 2005 Act apply to all conduct that constitutes physical abuse as
described in ORS 124.105 or financial abuse as described in ORS 124.110,
whether occurring before, on or after the effective date of this 2005 Act
[January 1, 2006].
(2) The amendments to ORS 112.455, 112.465, 112.475, 112.485,
112.495, 112.505, 112.515, 112.525, 112.535 and 112.545 by sections 1 to
10 of this 2005 Act do not apply to persons who die before the effective
date of this 2005 Act. [2005 c.270 §11]ORS 112.455 to 112.555 apply to an
abuser only if the decedent dies within five years after the abuser is
convicted of a felony by reason of conduct that constitutes physical
abuse of the decedent, as described in ORS 124.105, or financial abuse of
the decedent, as described in ORS 124.110. [2005 c.671 §7] (1)
Property that would have passed by reason of the death of a decedent to a
person who was a slayer or an abuser of the decedent, whether by
intestate succession, by will or by trust, passes and vests as if the
slayer or abuser had predeceased the decedent.
(2) Property that would have passed by reason of the death of an
heir or devisee of a decedent to a person who was the slayer or abuser of
the decedent, whether by intestate succession, by will or by trust,
passes and vests as if the slayer or abuser had predeceased the decedent
unless the heir or devisee specifically provides otherwise in a will or
other instrument executed after the death of the decedent. [1969 c.591
§59; 2005 c.270 §2; 2005 c.535 §1a]Note: Section 3, chapter 535, Oregon Laws 2005, provides:
Sec. 3. The amendments to ORS 112.465 and 112.515 by sections 1a
and 2a of this 2005 Act apply only to heirs or devisees who die on or
after the effective date of this 2005 Act [January 1, 2006]. [2005 c.535
§3; 2005 c.535 §3a]Note: See note under 112.455. If a slayer of a decedent and the
decedent, or an abuser of a decedent and the decedent, owned property as
tenants by the entirety or with a right of survivorship, upon the death
of the decedent an undivided one-half interest remains in the slayer or
abuser for the lifetime of the slayer or abuser and subject to that
interest the property passes to and is vested in the heirs or devisees of
the decedent other than the slayer or abuser. [1969 c.591 §60; 2005 c.270
§3]Note: See note under 112.455. If a slayer of a
decedent, the decedent and one or more other persons owned property with
a right of survivorship, or if an abuser of a decedent, the decedent and
one more other persons owned property with a right of survivorship, upon
the death of the decedent the interest of the slayer or abuser remains as
an undivided interest in the slayer or abuser for the lifetime of the
slayer or abuser and subject to that interest the property passes to and
is vested in the other surviving owner or owners. [1969 c.591 §61; 2005
c.270 §4]Note: See note under 112.455.(1) Property in which a slayer of a decedent, or an
abuser of a decedent, owns a reversion or vested remainder subject to an
estate for the lifetime of the decedent passes to the heirs or devisees
of the decedent for a period of time equal to the normal life expectancy
of a person of the sex and age of the decedent at the time of death. If
the particular estate is owned by a third person for the lifetime of the
decedent, the estate continues in the third person for a period of time
equal to the normal life expectancy of a person of the sex and age of the
decedent at the time of death.
(2) As to a contingent remainder or executory or other future
interest owned by a slayer of a decedent or an abuser of a decedent that
becomes vested in the slayer or abuser or increased in any way for the
slayer or abuser upon the death of the decedent:
(a) If the interest would not have increased or become vested if
the slayer or abuser had predeceased the decedent, the slayer or abuser
is considered to have predeceased the decedent; and
(b) In any case, the interest shall not be so vested or increased
during a period of time equal to the normal life expectancy of a person
of the sex and age of the decedent at the time of death. [1969 c.591 §62;
2005 c.270 §5]Note: See note under 112.455.
(1) Property appointed by the will of the decedent to or for the benefit
of a slayer of a decedent or an abuser of a decedent is distributed as if
the slayer or abuser had predeceased the decedent.
(2) Property owned either presently or in remainder by a slayer of
a decedent or an abuser of a decedent, subject to be divested by the
exercise by the decedent of a power of revocation or a general power of
appointment, passes to and is vested in the heirs or devisees of the
decedent other than the slayer or abuser. Property so owned by the slayer
or abuser, subject to be divested by the exercise by the decedent of a
power of appointment to a particular person or persons or to a class of
persons, passes to the person or persons or in equal shares to the
members of the class of persons to the exclusion of the slayer or abuser.
[1969 c.591 §63; 2005 c.270 §6]Note: See note under 112.455.(1) Except as provided under subsection (2) of this section,
proceeds payable under any of the following instruments to or for the
benefit of a slayer of a decedent or an abuser of a decedent, as
beneficiary or assignee of the decedent or as beneficiary or assignee of
an heir or devisee of the decedent, must be paid to the secondary
beneficiary or, if there is no secondary beneficiary, to the personal
representative of the estate of the decedent or the decedent’s heir or
devisee:
(a) A policy or certificate of insurance on the life of the
decedent.
(b) A certificate of membership in any benevolent association or
organization on the life of the decedent.
(c) Rights of the decedent as survivor of a joint life policy.
(d) Proceeds under any pension, profit-sharing or other plan.
(2) Proceeds payable under any of the instruments specified in
subsection (1) of this section to or for the benefit of a slayer of a
decedent or an abuser of a decedent as beneficiary or assignee of an heir
or devisee of the decedent shall be paid to the slayer or abuser if the
heir or devisee specifically provides for that payment by written
instrument executed after the death of the decedent. [1969 c.591 §64;
2005 c.270 §7; 2005 c.535 §2a]Note: See note under 112.455.Note: See first note under 112.465. If a
decedent is beneficiary or assignee of any policy or certificate of
insurance on the life of a slayer of the decedent or an abuser of the
decedent, the proceeds shall be paid to the personal representative of
the decedent’s estate unless:
(1) The policy or certificate names some person other than the
slayer or abuser, or the personal representative of the slayer or abuser,
as the secondary beneficiary.
(2) The slayer or abuser, by naming a new beneficiary or assignee,
performs an act which would have deprived the decedent of the interest of
the decedent if the decedent had been living. [1969 c.591 §65; 2005 c.270
§8]Note: See note under 112.455.Any insurance company making
payment according to the terms of its policy, or any financial
institution, trustee or other person performing an obligation to a slayer
of a decedent or an abuser of a decedent is not subject to additional
liability because of ORS 112.455 to 112.555 if the payment or performance
is made without written notice by a claimant of a claim arising under
those sections. Upon receipt of written notice the person to whom it is
directed may withhold any disposition of the property pending
determination of the duties of the person. [1969 c.591 §66; 1997 c.631
§403; 2005 c.270 §9]Note: See note under 112.455.ORS 112.455 to 112.555 do not affect the rights of any person who
for value and without notice purchases or agrees to purchase property
that a slayer of a decedent or an abuser of a decedent would have
acquired except for ORS 112.455 to 112.555, but all proceeds received by
the slayer or abuser from the sale shall be held by the slayer or abuser
in trust for the persons entitled to the property as provided in ORS
112.455 to 112.555. The slayer or abuser is liable for any portion of the
proceeds of the sale that the slayer or abuser spends and for the
difference, if any, between the amount received from the sale and the
actual value of the property. [1969 c.591 §67; 2005 c.270 §10]Note: See note under 112.455.A final judgment of conviction of felonious and
intentional killing is conclusive for purposes of ORS 112.455 to 112.555.
In the absence of a conviction of felonious and intentional killing the
court may determine by a preponderance of evidence whether the killing
was felonious and intentional for purposes of ORS 112.455 to 112.555.
[1969 c.591 §68; 1973 c.506 §18]UNIFORM SIMULTANEOUS DEATH ACT As used in ORS
112.570 to 112.590:
(1) “Co-owners with right of survivorship” means joint tenants,
tenants by the entirety and any other co-owners of property or accounts
that are held in a manner that entitles one or more of the owners to
ownership of the whole of the property or account upon the death of one
or more of the other owners.
(2) “Governing instrument” means:
(a) A deed;
(b) A will;
(c) A trust;
(d) An insurance or annuity policy account with a payable-on-death
designation;
(e) A pension, profit-sharing, retirement or similar benefit plan;
(f) An instrument creating or exercising a power of appointment or
a power of attorney; or
(g) Any other dispositive, appointive or nominative instrument of a
type similar to those instruments specified in this subsection.
(3) “Payor” means a trustee, insurer, employer, governmental
agency, political subdivision or any other person authorized or obligated
by law or by a governing instrument to make payments. [1999 c.131 §1]Note: 112.570 to 112.590 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 112 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.Except as provided in ORS 112.586,
if the title to property, the devolution of property, the right to elect
an interest in property or the right to exempt property depends upon
whether a specified person survives the death of another person, the
specified person shall be deemed to have died before the other person
unless it is established by clear and convincing evidence that the
specified person survived the other person by at least 120 hours. [1999
c.131 §2]Note: See note under 112.570.Except as provided in ORS 112.586, if a governing instrument
contains a provision the operation of which is conditioned on whether a
specified person survives the death of another person or survives another
event, the specified person shall be deemed to have died before the other
person or before the other event unless it is established by clear and
convincing evidence that the specified person survived the other person
or event by at least 120 hours. [1999 c.131 §3]Note: See note under 112.570.(1) Except as provided in ORS 112.586, if property is held by
two co-owners with right of survivorship and both co-owners are deceased,
one-half of the property passes as if one co-owner had survived the
second co-owner by 120 hours or more, and one-half of the property passes
as if the second co-owner had survived the first co-owner by 120 hours or
more, unless it is established by clear and convincing evidence that one
of two co-owners survived the other co-owner by at least 120 hours.
(2) Except as provided in ORS 112.586, if property is held by more
than two co-owners and it is not established by clear and convincing
evidence that at least one of the owners survived the others by at least
120 hours, the property passes in the proportion that one bears to the
whole number of co-owners. [1999 c.131 §4]Note: See note under 112.570. (1) For the purpose of
establishing death under the survivorship rules established under ORS
112.570 to 112.590, death occurs when an individual has sustained
irreversible cessation of circulatory and respiratory functions, or when
there has been an irreversible cessation of all functions of the entire
brain, including the brain stem. A determination of death must be made in
accordance with accepted medical standards.
(2)(a) For the purpose of establishing death under the survivorship
rules established under ORS 112.570 to 112.590, a certified or
authenticated copy of a death certificate purporting to be issued by an
official or agency of the place where the death is alleged to have
occurred is prima facie evidence of the identity of the decedent and of
the fact, place, date and time of death.
(b) A certified or authenticated copy of any record or report of a
governmental agency, domestic or foreign, that an individual is missing,
detained, dead or alive is prima facie evidence of the status of the
person and of the dates, circumstances and places disclosed by the record
or report.
(3) In the absence of prima facie evidence of death under
subsection (2) of this section, the facts surrounding a person’s death
may be established by clear and convincing evidence. Circumstantial
evidence may be considered in determining whether a person has died and
the circumstances of the death.
(4) An individual whose death is not otherwise established under
this section but who is absent for a continuous period of five years is
presumed to be dead if the person has made no contact with another person
during the five-year period and the absence of the person cannot be
satisfactorily explained after diligent search or inquiry. A person
presumed dead under this subsection is presumed to have died at the end
of the five-year period unless it is proved by a preponderance of the
evidence that death occurred at a different time.
(5) In the absence of evidence contradicting a time of death
specified in a document described in subsection (2) of this section, a
document described in subsection (2) of this section that indicates a
time of death 120 hours or more after the time of death of another person
conclusively establishes that the person specified in the document
survived the other person by at least 120 hours, without regard to the
manner in which the time of death of the other person is determined.
[1999 c.131 §5]Note: See note under 112.570. (1) The survivorship rules established under
ORS 112.570 to 112.590 do not apply in any situation in which application
would result in escheat of an intestate estate to the state.
(2) The survivorship rules established under ORS 112.570 to 112.590
do not apply if a governing instrument contains language that
specifically addresses the possibility of simultaneous deaths or deaths
in a common disaster, and the language of the instrument is controlling
under the circumstances of the deaths.
(3) The survivorship rules established under ORS 112.570 to 112.590
do not apply if a governing instrument expressly provides that a person
is not required to survive the death of another person or to survive
another event by any specified period.
(4) The survivorship rules established under ORS 112.570 to 112.590
do not apply if the governing instrument expressly requires the person to
survive the death of another person or to survive another event for a
specified period of time other than provided under the survivorship rules
established under ORS 112.570 to 112.590. If the governing instrument so
provides, survival of the death of the other person or survival of the
other event by at least the specified amount of time must be established
by clear and convincing evidence.
(5) The survivorship rules established under ORS 112.570 to 112.590
do not apply if application of those rules would cause a nonvested
property interest or a power of appointment to be invalid under ORS
105.950 (1)(a), (2)(a) or (3)(a). In cases subject to this subsection,
survival of the death of the other person or survival of the other event
must still be established by clear and convincing evidence.
(6) The survivorship rules established under ORS 112.570 to 112.590
do not apply in cases in which there are multiple governing instruments
and application of the rules to the governing instruments would result in
an unintended failure or duplication of a disposition. In cases subject
to this subsection, survival of the death of the other person or survival
of the other event must still be established by clear and convincing
evidence. [1999 c.131 §6]Note: See note under 112.570. (1) Unless a
payor or other third party has received written notice of a claim under
subsection (2) of this section, the payor or other third party is not
liable for making a payment to, transferring property to, or conferring
any other benefit on a person who appears to be entitled to the payment,
property or benefit under a good faith reading of a governing instrument
but who is not entitled to the payment, property or benefit by reason of
the survivorship rules established under ORS 112.570 to 112.590. A payor
or other third party is liable for a payment, property or other benefit
conveyed after the payor or other third party receives written notice of
a claim under subsection (2) of this section.
(2) Written notice of a claim that a person is not entitled to
payment, property or other benefit by reason of the survivorship rules
established under ORS 112.570 to 112.590 must be:
(a) Mailed to the main office or home of a payor or other third
party by registered or certified mail, return receipt requested; or
(b) Served upon the payor or other third party in the manner
provided by ORCP 7 for service of summons in a civil action.
(3) Upon receipt of written notice of a claim under subsection (2)
of this section, a payor or other third party may deposit any money or
property that is subject to the claim with any court conducting probate
proceedings for one of the decedents’ estates. If probate proceedings
have not been commenced, the money or property may be deposited with the
court with probate jurisdiction in the county in which one of the
decedents resided. The court shall hold the funds or property and shall
determine the rights of all parties under the governing instrument.
Deposits made with the court under this subsection discharge the payor or
other third party from all claims for the value of amounts paid to or
items of property deposited with the court. [1999 c.131 §7]Note: See note under 112.570.(1) Unless the person has notice of the claim at the time the
purchase, payment or delivery is made, a person who purchases property
for value, or who receives payment, property or other benefit in full or
partial satisfaction of a legally enforceable obligation, is not liable
to another person with a claim to the payment, property or benefit by
reason of the operation of the survivorship rules established under ORS
112.570 to 112.590 and need not return the payment, property or other
benefit.
(2) A person who receives payment, property, or other benefit to
which the person is not entitled by reason of the survivorship rules
established under ORS 112.570 to 112.590 must return the payment,
property or other benefit if:
(a) The person was aware of a claim to the payment, property or
other benefit under the survivorship rules established under ORS 112.570
to 112.590 at the time the purchase, payment or delivery was made; or
(b) The person received the payment, property or other benefit for
no value.
(3) A person who receives any payment, property or other benefit to
which the person is not entitled because any part of ORS 112.570 to
112.590 is preempted by federal law must return the payment, property or
other benefit if the person received the payment, property or other
benefit for no value.
(4) Any person who is required to return any payment, property or
other benefit under this section and who does not return the payment,
property or other benefit is personally liable to a person with a right
to the property under the survivorship rules established under ORS
112.570 to 112.590 or with a right to the property by reason of federal
preemption of all or part of the survivorship rules. [1999 c.131 §8]Note: See note under 112.570.DOWER AND CURTESY ABOLISHED Dower and curtesy, including
inchoate dower and curtesy, are abolished, but any right to or estate of
dower or curtesy of the surviving spouse of any person who died before
July 1, 1970, shall continue and be governed by the law in effect
immediately before that date. [1969 c.591 §78] No
action or suit shall be brought after 10 years from the death of a
decedent to recover or reduce to possession curtesy or dower by the
surviving spouse of the decedent. [Formerly 113.090]UNIFORM DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACTORS 112.705 to 112.775 may be cited as the
Uniform Disposition of Community Property Rights at Death Act. [1973
c.205 §11]ORS 112.705 to 112.775
apply to the disposition at death of the following property acquired by a
married person:
(1) All personal property, wherever situated:
(a) Which was acquired as or became, and remained, community
property under the laws of another jurisdiction; or
(b) All or the proportionate part of that property acquired with
the rents, issues, or income of, or the proceeds from, or in exchange
for, that community property; or
(c) Traceable to that community property.
(2) All or the proportionate part of any real property situated in
this state which was acquired with the rents, issues or income of, the
proceeds from, or in exchange for, property acquired as or which became,
and remained, community property under the laws of another jurisdiction,
or property traceable to that community property. [1973 c.205 §1]In determining whether ORS 112.705
to 112.775 apply to specific property the following rebuttable
presumptions apply:
(1) Property acquired during marriage by a spouse of that marriage
while domiciled in a jurisdiction under whose laws property could then be
acquired as community property is presumed to have been acquired as or to
have become, and remained, property to which ORS 112.705 to 112.775
apply; and
(2) Real property situated in this state and personal property
wherever situated acquired by a married person while domiciled in a
jurisdiction under whose laws property could not then be acquired as
community property, title to which was taken in a form which created
rights of survivorship, is presumed not to be property to which ORS
112.705 to 112.775 apply. [1973 c.205 §2]Upon death of a married
person, one-half of the property to which ORS 112.705 to 112.775 apply is
the property of the surviving spouse and is not subject to testamentary
disposition by the decedent or distribution under the laws of succession
of this state. One-half of that property is the property of the decedent
and is subject to testamentary disposition or distribution under the laws
of succession of this state. With respect to property to which ORS
112.705 to 112.775 apply, the one-half of the property which is the
property of the decedent is not subject to the surviving spouse’s right
to elect against the will. [1973 c.205 §3] If the title to any property
to which ORS 112.705 to 112.775 apply was held by the decedent at the
time of death, title of the surviving spouse may be perfected by an order
of the probate court or by execution of an instrument by the personal
representative or the heirs or devisees of the decedent with the approval
of the court. Neither the personal representative nor the court in which
the decedent’s estate is being administered has a duty to discover or
attempt to discover whether property held by the decedent is property to
which ORS 112.705 to 112.775 apply, unless a written demand is made by
the surviving spouse or the spouse’s successor in interest. [1973 c.205
§4] If the title to any property
to which ORS 112.705 to 112.775 apply is held by the surviving spouse at
the time of the decedent’s death, the personal representative or an heir
or devisee of the decedent may institute an action to perfect title to
the property. The personal representative has no fiduciary duty to
discover or attempt to discover whether any property held by the
surviving spouse is property to which ORS 112.705 to 112.775 apply,
unless a written demand is made by an heir, devisee, or creditor of the
decedent. [1973 c.205 §5] (1) If a surviving spouse has apparent
title to property to which ORS 112.705 to 112.775 apply, a purchaser for
value or a lender taking a security interest in the property takes
interest in the property free of any rights of the personal
representative or an heir or devisee of the decedent.
(2) If a personal representative or an heir or devisee of the
decedent has apparent title to property to which ORS 112.705 to 112.775
apply, a purchaser for value or a lender taking a security interest in
the property takes interest in the property free of any rights of the
surviving spouse.
(3) A purchaser for value or a lender need not inquire whether a
vendor or borrower acted properly.
(4) The proceeds of a sale or creation of a security interest shall
be treated in the same manner as the property transferred to the
purchaser for value or a lender. [1973 c.205 §6](1) ORS 112.705 to 112.775 do
not affect rights of creditors with respect to property to which ORS
112.705 to 112.775 apply.
(2) ORS 112.705 to 112.775 do not prevent married persons from
severing or altering their interests in property to which ORS 112.705 to
112.775 apply.
(3) ORS 112.705 to 112.775 do not authorize a person to dispose of
property by will if it is held under limitations imposed by law
preventing testamentary disposition by that person.
(4) ORS 112.705 to 112.775 shall be so applied and construed as to
effectuate their general purpose to make uniform the law with respect to
the subject of ORS 112.705 to 112.775 among those states which enact it.
[1973 c.205 §§7,8,9,10]DISPOSITION OF WILLS As used in ORS
112.800 to 112.830, unless the context requires otherwise, “person” means
a natural person, a partnership, a corporation, a bank, a trust company
and any other organization or legal entity. [1989 c.770 §1]Note: 112.800 to 112.830 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 112 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.(1) Any person having custody of a will has a duty to maintain
custody of the will and may not destroy or discard the will, disclose its
contents to any person or deliver the will to any person except as
authorized by the testator or as permitted by ORS 112.800 to 112.830.
(2) Nothing in ORS 112.800 to 112.830 bars a testator from
destroying, revoking, delivering to any person or otherwise dealing with
the will of the testator.
(3) A will destroyed in accordance with ORS 112.800 to 112.830
shall not be revoked by virtue of such destruction and its contents may
be proved by secondary evidence. [1989 c.770 §§2,7,10]Note: See note under 112.800. (1) Any person having custody
of a will:
(a) Shall deliver the will to the testator upon demand from the
testator, unless the person having custody of the will is an attorney and
is entitled to retain the will pursuant to ORS 87.430;
(b) May at any time deliver the will to the testator;
(c) Upon demand from the conservator, shall deliver the will to a
conservator for the testator;
(d) Upon demand from the attorney-in-fact, shall deliver the will
to an attorney-in-fact acting under a durable power of attorney signed by
the testator expressly authorizing the attorney-in-fact to demand custody
of the will;
(e) May deliver the will to any attorney licensed to practice law
in Oregon willing to accept delivery of the will if the person does not
know or cannot ascertain, upon diligent inquiry, the address of the
testator; or
(f) Shall deliver the will to a court having jurisdiction of the
estate of the testator or to a personal representative named in the will
within 30 days after the date of receiving information that the testator
is dead.
(2) With respect to a will held in a safe deposit box, compliance
with ORS 708A.655, 722.660 or 723.844 by the financial institution, trust
company, savings association or credit union within which the box is
located shall be deemed to be compliance with the requirements of this
section. [1989 c.770 §3; 1999 c.506 §3]Note: See note under 112.800. An attorney who has
custody of a will may dispose of the will in accordance with ORS 112.820
if:
(1) The attorney is licensed to practice law in the State of Oregon;
(2) At least 40 years has elapsed since execution of the will;
(3) The attorney does not know and after diligent inquiry cannot
ascertain the address of the testator; and
(4) The will is not subject to a contract to make a will or devise
or not to revoke a will or devise. [1989 c.770 §4]Note: See note under 112.800.(1) An attorney authorized to destroy a will under ORS 112.815 may
proceed as follows:
(a) The attorney shall first publish a notice in a newspaper of
general circulation in the county of the last-known address of the
testator, if any, otherwise in the county of the principal place of
business of the attorney. The notice shall state the name of the
testator, the date of the will and the intent of the attorney to destroy
the will if the testator does not contact the attorney within 90 days
after the date of the notice.
(b) If the testator fails to contact the attorney within 90 days
after the date of the notice, the attorney may destroy the will.
(c) Within 30 days after destruction of the will, the attorney
shall file with the probate court in the county where the notice was
published an affidavit stating the name of the testator, the name and
relationship of each person named in the will whom the testator
identified as related to the testator by blood, adoption or marriage, the
date of the will, proof of the publication and the date of destruction.
(d) The clerk of the probate court shall charge and collect a fee
of $15 for filing of the affidavit.
(2) If a will has not been admitted to probate within 40 years
following the death of the testator, an attorney having custody of the
will may destroy the will without notice to any person or court.
(3) In addition to the fee provided for in subsection (1)(d) of
this section, for the period commencing September 1, 2003, and ending
December 31, 2006, the clerk of the probate court shall charge and
collect a surcharge of $5 for filing of an affidavit under subsection (1)
of this section. [1989 c.770 §§5,6; 2003 c.737 §§56,57; 2005 c.702
§§65,66]Note: The amendments to 112.820 by section 67, chapter 702, Oregon
Laws 2005, become operative January 1, 2007. See section 68, chapter 702,
Oregon Laws 2005. The text that is operative on and after January 1,
2007, is set forth for the user’s convenience.
112.820. (1) An attorney authorized to destroy a will under ORS
112.815 may proceed as follows:
(a) The attorney shall first publish a notice in a newspaper of
general circulation in the county of the last-known address of the
testator, if any, otherwise in the county of the principal place of
business of the attorney. The notice shall state the name of the
testator, the date of the will and the intent of the attorney to destroy
the will if the testator does not contact the attorney within 90 days
after the date of the notice.
(b) If the testator fails to contact the attorney within 90 days
after the date of the notice, the attorney may destroy the will.
(c) Within 30 days after destruction of the will, the attorney
shall file with the probate court in the county where the notice was
published an affidavit stating the name of the testator, the name and
relationship of each person named in the will whom the testator
identified as related to the testator by blood, adoption or marriage, the
date of the will, proof of the publication and the date of destruction.
(d) The clerk of the probate court shall charge and collect a fee
of $17 for filing of the affidavit.
(2) If a will has not been admitted to probate within 40 years
following the death of the testator, an attorney having custody of the
will may destroy the will without notice to any person or court.Note: See note under 112.800. A person who violates
any provision of ORS 112.800 to 112.830 shall be liable to any person
injured by such violation for any damages sustained thereby. An attorney
who destroys a will in accordance with ORS 112.800 to 112.830 shall not
be liable to the testator or any other person for such destruction or
disposal. [1989 c.770 §8]Note: See note under 112.800. If it appears to a court
having jurisdiction of the estate of a decedent that a person has custody
of a will made by the decedent, the court may issue an order requiring
that person to deliver the will to the court. [1989 c.770 §9]Note: See note under 112.800.
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