The
spouse and dependent children of a decedent, or any of them, may continue
to occupy the principal place of abode of the decedent until one year
after the death of the decedent or, if the estate therein is an estate of
leasehold or an estate for the lifetime of another, until one year after
the death of the decedent or the earlier termination of the estate.
During that occupancy:
(1) The occupants shall not commit or permit waste to the abode, or
cause or permit mechanic’s or materialman’s or other liens to attach
thereto.
(2) The occupants shall keep the abode 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. In the
event of loss or damage from those hazards, to the extent of the proceeds
of the insurance, they shall restore the abode to its former condition.
(3) The occupants shall pay taxes and improvement liens on the
abode as payment thereof becomes due.
(4) The abode is exempt from execution to the extent that it was
exempt when the decedent was living. [1969 c.591 §103] 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] (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] 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] 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] (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] 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]
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 shall not be charged against
the distributive share of the person receiving support. The provision
shall be treated as an expense of administration, but shall not be a
deduction for inheritance tax purposes. [1969 c.591 §110]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]ELECTIVE SHARE OF SURVIVING SPOUSE (1) If a
decedent is domiciled in this state at the time of death and dies
testate, the surviving spouse of the decedent has a right to elect to
take the share provided by this section. The elective share consists of
one-fourth of the value of the net estate of the decedent, but the
elective share shall be reduced by the value of the following property
given to the surviving spouse under the will of the decedent:
(a) Property given outright;
(b) The present value of legal life estates; and
(c) The present value of the right of the surviving spouse to
income or an annuity, or a right of withdrawal, from any property
transferred in trust by the will that is capable of valuation with
reasonable certainty without regard to the powers forfeited under
subsection (2) of this section.
(2) Except as to property applied under subsection (1) of this
section to reduce the elective share, an election to take under this
section forfeits any other right to take under the will and under the law
of intestate succession. If the will would otherwise create a power of
appointment in the surviving spouse, the spouse by electing to take under
this section retains the power only if it is not a general power of
appointment as defined in subsection (4) of this section and the testator
has not provided otherwise, but the spouse forfeits any general power of
appointment. A power to pay more than the income or annuity or
withdrawals, the value of which reduced the elective share under
subsection (1)(c) of this section, or to apply additional principal or
income in behalf of the electing spouse, may not be exercised in favor of
the electing spouse.
(3) The right to elect may be barred under ORS 114.115, the share
limited by ORS 114.125 or the right denied or the share reduced under ORS
114.135.
(4) A general power of appointment is one that the donee may
exercise in favor of the donee, the estate of the donee, the creditors of
the donee or the creditors of the estate of the donee, during lifetime or
at death, and includes one under which the donee may convey or transfer
ownership of the property to whomever the donee may choose. A power to
consume, invade or appropriate property for the benefit of the donee that
is limited by an ascertainable standard relating to the health,
education, support or maintenance of the donee shall not be deemed a
general power of appointment. [1969 c.591 §112; 1997 c.99 §22] The right of the surviving
spouse to elect under ORS 114.105 may be barred by the terms of a written
agreement signed by both spouses. The agreement may be entered into
before or after marriage. [1969 c.591 §113] (1) The
surviving spouse may not receive by election under ORS 114.105 any amount
which, together with any of the following property received by the
surviving spouse, exceeds one-half of the total of the following
property, such property to be reduced by the amount of the federal estate
tax payable by reason of the property:
(a) The property passing under the will;
(b) Joint annuities furnished by the decedent;
(c) Proceeds of insurance on the life of the decedent, whether or
not the decedent had any of the incidents of ownership at the death of
the decedent;
(d) Transfers by the decedent within three years before the date of
death, to the extent the decedent did not receive full consideration in
money or money’s worth;
(e) Transfers by the decedent during the lifetime of the decedent
as to which the decedent retained power, alone or in conjunction with any
other person, to alter, amend, revoke or terminate or to designate a
beneficiary;
(f) Payments from the employer of the decedent or from a plan
created by the employer or under a contract between the decedent and the
employer of the decedent, excluding workers’ compensation and Social
Security payments;
(g) Property appointed by the decedent by will or by deed executed
within three years before the date of death, whether the power is general
or special, but only if the property is effectively appointed in favor of
the surviving spouse; and
(h) Property in the joint names of the decedent and one or more
other persons, except such proportion as is attributable to consideration
furnished by persons other than the decedent.
(2) For the purpose of subsection (1) of this section, the
surviving spouse is considered to receive:
(a) Any property as to which the spouse is given all the income and
a general power to appoint the principal.
(b) Life insurance proceeds settled by the decedent on option, if
the spouse is entitled to the interest and has a general power to appoint
the proceeds or to withdraw proceeds, or if the spouse is entitled to an
annuity for life or installments of the entire principal and interest for
any period equal to or less than the normal life expectancy of the spouse.
(3) As used in subsection (1) of this section, “property in the
joint names” means all property held or owned under any form of ownership
with right of survivorship, including cotenancy with remainder to the
survivor; stocks, bonds or bank accounts in the name of two or more
persons payable to the survivor; United States Government bonds in
coownership form or payable on death to a designated person; and shares
in credit unions or savings and loan associations payable on death to a
designated person or in joint form. [1969 c.591 §114]If the decedent and the surviving spouse
were living apart at the time of the death of the decedent, whether or
not there was a judgment for legal separation, the court in its
discretion may deny any right to elect against the will, may reduce the
elective share of the spouse to such amount as the court determines
reasonable and proper or may grant the full elective share in accordance
with the circumstances of the particular case. The court, in deciding
what elective share, if any, should be granted, shall consider the length
of the marriage, 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. [1969 c.591 §115; 2003 c.576 §374] The surviving spouse is
considered to have elected to take under the will unless, within 90 days
after the date of the admission of the will to probate or 30 days after
the date of the filing of the inventory, whichever is later, the
surviving spouse serves on the personal representative or the attorney of
the personal representative and files in the estate proceeding a
statement that the surviving spouse elects to take under ORS 114.105
instead of under the will. The surviving spouse may bar any right to take
under ORS 114.105 by filing in the estate proceeding a writing, signed by
the spouse, electing to take under the will. [1969 c.591 §116] An
election under ORS 114.105 may be filed on behalf of a financially
incapable surviving spouse by a court acting under ORS 125.650 or by the
conservator of the estate of the spouse. The court or conservator may
elect against the will only if additional assets are needed for the
reasonable support of the surviving spouse, taking into account the
probable needs of the spouse, the provisions of the will, any nonprobate
property arrangements made by the decedent for the support of the spouse
and any other assets, whether or not owned by the spouse, available for
such support. The election is subject to the approval of the court, with
or without notice to other interested persons. [1969 c.591 §117; 1973
c.823 §109; 1995 c.664 §85] Estate property shall be applied
in satisfaction of the elective share in the following order, unless the
will provides otherwise:
(1) Any intestate property;
(2) After the intestate property is exhausted, each devisee shall
contribute ratably to the elective share out of the portion of the estate
passing to the devisee under the will, except that in abating the
interests of the devisees the character of the testamentary plan adopted
by the testator shall be preserved so far as possible. [1969 c.591 §118] ORS
chapters 111, 112, 113, 114, 115, 116 and 117 apply without distinction
between real and personal property. [1969 c.591 §119] (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
(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.
(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] 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]DUTIES AND POWERS OF PERSONAL REPRESENTATIVESThe 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] 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]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]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] 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]
Subject to the provisions of ORS 97.130 (2) and except as restricted or
otherwise provided by the will of the decedent, a document of anatomical
gift under ORS 97.952 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, burial or
other disposition of the remains in a manner suitable to the condition in
life of the decedent. Only those funeral expenses necessary for a plain
and decent funeral and disposition of the remains of the decedent may be
paid from the estate if the assets are insufficient to pay the claims of
the Department of Human Services for the net amount of public assistance,
as defined in ORS 411.010, 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] 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] (1)
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; or
(c) A bond of the personal representative has been required and
filed, the sale price of the property to be sold exceeds $5,000 and the
bond of the personal representative has not been increased by the amount
of cash to be realized on the sale, unless the court has directed
otherwise. [1969 c.591 §129]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] 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] 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](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] 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] 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] 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 thereof. 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] 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] (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] (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] (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] 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]SMALL ESTATES As used in ORS
114.505 to 114.560:
(1) “Affiant” means the person or persons signing an affidavit
filed under ORS 114.515.
(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)(c) 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) “Estate” means decedent’s property subject to administration in
Oregon. [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](1) If the estate of a decedent meets
the requirements of subsection (2) of this section, any of the following
persons may file an 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.
(2) An affidavit under this section may be filed only if:
(a) The fair market value of the estate is $200,000 or less;
(b) Not more than $50,000 of the fair market value of the estate is
attributable to personal property; and
(c) Not more than $150,000 of the fair market value of the estate
is attributable to real property.
(3) An affidavit under this section may not be filed until 30 days
after the death of the decedent.
(4) An affidavit filed under the provisions of this section must
contain the information required in ORS 114.525 and shall be made a part
of the probate records.
(5) 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.
(6) The clerk of the probate court shall charge and collect a fee
of $21 for the filing of any affidavit under this section.
(7) Any error or omission in an affidavit filed under this section
may be corrected by filing an amended affidavit within four months after
the filing of the affidavit.
(8) One or more supplemental affidavits may be filed at any time
after the filing of an affidavit under this section for the purpose of
including property not described in the original affidavit. Copies of all
previously filed affidavits must be attached to the supplemental
affidavit and all information required in ORS 114.525 must be reflected
in the supplemental affidavit. A supplemental affidavit may not be filed
if by reason of the additional property described in the supplemental
affidavit any limitation imposed by subsection (2) of this section is
exceeded.
(9) In addition to the fee provided for in subsection (6) 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 $6 upon the filing of an affidavit under this section. [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]Note: The amendments to 114.515 by section 71, chapter 702, Oregon
Laws 2005, become operative January 1, 2007. See section 72, chapter 702,
Oregon Laws 2005. The text that is operative on and after January 1,
2007, is set forth for the user’s convenience.
114.515. (1) If the estate of a decedent meets the requirements of
subsection (2) of this section, any of the following persons may file an
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.
(2) An affidavit under this section may be filed only if:
(a) The fair market value of the estate is $200,000 or less;
(b) Not more than $50,000 of the fair market value of the estate is
attributable to personal property; and
(c) Not more than $150,000 of the fair market value of the estate
is attributable to real property.
(3) An affidavit under this section may not be filed until 30 days
after the death of the decedent.
(4) An affidavit filed under the provisions of this section must
contain the information required in ORS 114.525 and shall be made a part
of the probate records.
(5) 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.
(6) The clerk of the probate court shall charge and collect a fee
of $23 for the filing of any affidavit under this section.
(7) Any error or omission in an affidavit filed under this section
may be corrected by filing an amended affidavit within four months after
the filing of the affidavit.
(8) One or more supplemental affidavits may be filed at any time
after the filing of an affidavit under this section for the purpose of
including property not described in the original affidavit. Copies of all
previously filed affidavits must be attached to the supplemental
affidavit and all information required in ORS 114.525 must be reflected
in the supplemental affidavit. A supplemental affidavit may not be filed
if by reason of the additional property described in the supplemental
affidavit any limitation imposed by subsection (2) of this section is
exceeded.Note: Section 3, chapter 122, Oregon Laws 2005, provides:
Sec. 3. The amendments to ORS 114.515 by sections 1 and 2 of this
2005 Act apply to all affidavits filed under ORS 114.505 to 114.560,
whether filed before, on or after the effective date of this 2005 Act
[January 1, 2006]. [2005 c.122 §3]Note: Section 3, chapter 273, Oregon Laws 2005, provides:
Sec. 3. The amendments to ORS 114.515 by sections 1 and 2 of this
2005 Act apply only to decedents who die on or after the effective date
of this 2005 Act [January 1, 2006]. [2005 c.273 §3](1) If a decedent dies intestate and without heirs, a
creditor of an estate who is a claiming successor may not file an
affidavit under ORS 114.515 unless the creditor has received written
authorization from an estate administrator of the Department of State
Lands appointed under ORS 113.235. Except as provided by rule adopted by
the Director of the Department of State Lands, an estate administrator
shall consent to the filing of an affidavit under ORS 114.515 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 an estate administrator of the
Department of State Lands informing the estate administrator that the
creditor intends to file an affidavit under ORS 114.515. Upon receiving
the notice permitted by this subsection, the estate administrator shall
investigate the assets and liabilities of the estate. Within 30 days
after receiving the notice required by this subsection, the estate
administrator shall either:
(a) Give written authorization to the creditor for the filing of an
affidavit by the creditor under ORS 114.515; or
(b) Inform the creditor that the Department of State Lands will
file an affidavit as claiming successor under ORS 114.515.
(3) If a decedent dies intestate and without heirs, a creditor of
an estate who is a claiming successor and who files an affidavit under
ORS 114.515 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 an estate administrator of 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]An affidavit filed under ORS 114.515
shall:
(1) State the name, age, domicile, post-office address and Social
Security number of the decedent;
(2) State the date and place of the decedent’s death. A certified
copy of the death certificate shall be attached to the affidavit;
(3) Describe and state the fair market value of all property in the
estate, including a legal description of any real property;
(4) State that no application or petition for the appointment of a
personal representative has been granted in Oregon;
(5) State whether the decedent died testate or intestate, and if
the decedent died testate, the will shall be attached to the affidavit;
(6) 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;
(7) 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;
(8) 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;
(9) State that reasonable efforts have been made to ascertain
creditors of the estate. List the expenses of and claims against the
estate remaining 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 thereof 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;
(10) 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 thereof 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;
(11) State that a copy of the affidavit showing the date of filing
will be mailed or delivered to the Department of Human Services;
(12) 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 at the address stated in the affidavit for
presentment of claims; or
(b) A personal representative of the estate is appointed within the
time allowed under ORS 114.555; and
(13) 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 personal representative of the estate is appointed within the
time allowed under ORS 114.555. [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](1) Any person indebted to the decedent or having
possession of personal property belonging to the estate, to whom a
certified copy of the affidavit filed under ORS 114.515 is delivered by
the affiant on or after the 10th day following the filing of the
affidavit, shall pay, transfer or deliver the personal property to the
affiant. Any person who has received property of the decedent under ORS
446.616, 722.262 or 803.094, or any similar statute providing for the
transfer of property of an estate which is not being probated shall pay,
transfer or deliver the property to the affiant if the person would be
required to pay, transfer or deliver the property to a personal
representative of the estate. The transferor is discharged and released
from any liability or responsibility for the transfer in the same manner
and with the same effect as if the property had been transferred,
delivered or paid to a personal representative of the estate of the
decedent.
(2) A transfer agent of any corporate security registered in the
name of the decedent shall change the registered ownership on the books
of the corporation to the person entitled thereto on presentation of a
certified copy of the affidavit filed under ORS 114.515.
(3) If a person to whom an affidavit is delivered refuses to pay,
deliver or transfer any personal property to the affiant or the person
entitled to the property as disclosed in the affidavit filed under ORS
114.515, the property may be recovered or its payment, delivery or
transfer compelled upon proof of the transferee’s entitlement in a
proceeding brought for the purpose by or on behalf of the transferee.
(4) If the affidavit was signed by the Director of Human Services
or a designee of the director, the director or the designee may certify a
copy of the affidavit for the purposes described in subsection (1) or (2)
of 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]
(1) A claim against an estate with respect to which an affidavit is filed
under ORS 114.515 may be presented to the affiant within four months
after the affidavit was filed. If an amended affidavit is filed under ORS
114.515 (7), claims against the estate must be filed within four months
after the filing of the amended affidavit. If a supplemental affidavit is
filed under ORS 114.515 (8), claims against the estate must be filed
within four months after the filing of the supplemental affidavit. Each
claim presented to the affiant must include the information required by
ORS 115.025.
(2) A claim presented to the affiant 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 shall 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 proceeds as provided in subsection (3) of this
section; or
(b) A personal representative is appointed within the time allowed
under ORS 114.555.
(3) A creditor of the estate whose claim has been presented within
the time permitted by subsection (1) of this section and disallowed by
the affiant 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. A creditor of the
decedent whose claim is listed in the affidavit as disputed may within
four months after the filing of the affidavit file with the probate court
a petition for summary determination of the creditor’s claim by the
court. The court shall hear the matter without a jury, after notice to
the creditor and affiant, and any interested person may be heard in the
proceeding. The claim may be proved as provided in ORS 115.195 (2). Upon
the hearing 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. If the court allows the claim in whole or in part, the order shall
direct the affiant, to the extent of property of the estate allocable to
the payment of the claim pursuant to ORS 115.125, or any claiming
successor to whom payment, delivery or transfer has been made under ORS
114.505 to 114.560 as a person entitled thereto as disclosed in the
affidavit, to the extent of the value of the property received, to pay to
the creditor the amount so allowed. No appeal may be taken from the order
of the court made upon the summary determination. [1989 c.228 §7; 2003
c.523 §3; 2005 c.122 §4](1) The affiant:
(a) Shall take control of the property of the estate coming into
the possession of the affiant.
(b) Within 30 days after filing the affidavit shall mail, deliver
or cause to be recorded each instrument which the affidavit states will
be mailed, delivered or recorded.
(c) 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 affidavit;
(B) Claims listed in the affidavit as undisputed;
(C) Allowed claims presented to the affiant within the time
permitted by ORS 114.540; and
(D) Claims which the probate court directs the affiant to pay.
(d) Shall pay claims and expenses under paragraph (c) of this
subsection in the order of priority prescribed by ORS 115.125.
(e) May transfer or sell any vehicle that is part of the estate
before the completion of the period established under ORS 114.555 if the
affiant complies with the requirements established by the Department of
Transportation for such purposes under ORS 803.094.
(f) May convey any real or personal property that is part of the
estate before the completion of the period established under ORS 114.555,
provided that each heir or devisee succeeding to the interest conveyed
joins in the conveyance and that any proceeds of sale, 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, shall become a
part of the estate subject to ORS 114.505 to 114.560. If the property is
a manufactured structure as defined in ORS 446.561, the affiant must
assign interest in the structure as provided in ORS 446.616. Any
conveyance to a purchaser in good faith and for a valuable consideration
made by the affiant and the heir or devisee succeeding to the interest
conveyed, or made by the heir or devisee succeeding to the interest
conveyed after completion of the period established under ORS 114.555,
conveys the interest stated in the 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 conveyance.
(2) Any claiming successor to whom payment, delivery or transfer is
made under ORS 114.505 to 114.560 as a person entitled thereto as
disclosed in the affidavit 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
thereafter appointed.
(3) The affiant shall cause to be recorded in the deed records of
any county in which real property belonging to the decedent is situated
an affiant or claiming successor’s deed executed in the manner required
by ORS chapter 93.
(4) For a manufactured structure as defined in ORS 446.561
belonging to a decedent and assessed as personal property, 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 §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] The
affiant or any claiming successor of the estate who has not been paid the
full amount owed such claiming successor may, within two years after the
filing of an affidavit under ORS 114.515, file with the probate court a
petition for summary review of administration of the estate. A creditor
may not file a petition under this section if the creditor received a
copy of an affidavit filed under ORS 114.515 delivered or mailed to such
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
114.540. 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. Upon the hearing 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. [1989
c.228 §8; 2003 c.196 §3] If a
personal representative is not appointed within four months after the
filing of the affidavit authorized by ORS 114.515, the interest of the
decedent in all of the property described in the affidavit is transferred
to the person or persons shown by the affidavit to be entitled thereto,
and any other claims against the property are barred except as provided
in ORS 114.540, 114.545 and 114.550. [1973 c.710 §5; 1977 c.239 §4; 1989
c.228 §10] 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 shall be a summary
determination under ORS 114.540, a summary review of administration under
ORS 114.550, or appointment of a personal representative for the estate
within the time allowed by ORS 114.555. [1989 c.228 §9]
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