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| Home > Statutes > Usa Oregon |
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USA Statutes : oregon
Title : TITLE 12 PROBATE LAW
Chapter : Chapter 115 Claims; Actions and Suits
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A mere testamentary direction to pay debts, charges, taxes or
expenses of administration shall not be considered a direction for
exoneration from encumbrances. [1973 c.506 §35](1)
During the three months following appointment, unless a longer time is
allowed by the court, the personal representative shall make reasonably
diligent efforts to investigate the financial records and affairs of the
decedent and shall take such further actions as may be reasonably
necessary to ascertain the identity and address of each person who has or
asserts a claim against the estate. The personal representative shall
request and the court shall allow a longer time for ascertaining claims
if the personal representative cannot complete reasonably diligent
efforts to identify persons with claims during the time required by this
section or by a previous order of the court.
(2) Not later than 30 days after expiration of the period,
including any extensions, described in subsection (1) of this section,
the personal representative shall cause to be delivered or mailed to each
person known by the personal representative during such period to have or
assert a claim against the estate a notice containing the information
required in subsection (3) of this section, except that it shall not be
necessary to give notice on account of a claim that has already been
presented, accepted or paid in full or on account of a claim that is
merely conjectural. The personal representative may also cause such a
notice to be delivered or mailed to any person discovered by the personal
representative after expiration of the period described in subsection (1)
of this section to have or assert a claim against the estate.
(3) The notice shall include:
(a) The title of the court in which the estate proceeding is
pending;
(b) The name of the decedent;
(c) The name of the personal representative and the address at
which claims are to be presented;
(d) A statement that claims against the estate not presented to the
personal representative within 30 days of the date of the notice may be
barred; and
(e) The date of the notice, which shall be the date on which it is
delivered or mailed.
(4) Not later than 60 days after expiration of the period,
including any extensions, described in subsection (1) of this section,
the personal representative shall cause to be filed in the estate
proceeding proof by an affidavit of compliance with subsections (1) and
(2) of this section. The affidavit shall include a copy of the form of
any notice delivered or mailed, the date on which each notice was
delivered or mailed and the name and address of the person to whom each
notice was delivered or mailed.
(5) The failure of the personal representative to make reasonably
diligent efforts to ascertain claims as required by subsection (1) of
this section or to cause a notice to be delivered or mailed as required
by subsection (2) of this section is a breach of duty to the persons
concerned, but does not affect the validity of appointment, duties or
powers or the exercise of duties or powers. [1989 c.229 §2]If, as a result of breach of
a duty imposed by ORS 115.003, a claim or any part of a claim is not paid
from the estate during administration, the amount of the claim may be
recovered as follows:
(1) The claimant shall have a cause of action against the personal
representative and the surety for the personal representative for the
amount the claimant would have been paid from the estate had all claims
not barred from payment been presented within the time required by ORS
115.005 (2) and allowed by the personal representative, provided that any
payment on account of a judgment entered under subsection (2) of this
section shall also satisfy a judgment entered under this subsection in
the amount of the payment.
(2) The claimant shall have a cause of action against each
interested person who received a distribution or other payment from the
estate for the amount by which the payment received would have been
reduced by payment of the claim from the estate had all claims not barred
from payment been presented within the time required by ORS 115.005 (2)
and allowed by the personal representative, provided that any payment on
account of a judgment entered under subsection (1) of this section shall
also satisfy a pro rata portion of each judgment entered under this
subsection.
(3) Each interested person who received a distribution or other
payment from the estate shall indemnify the personal representative and
the surety for the personal representative against liability on the claim
in the amount by which the payment received would have been reduced by
payment of the claim from the estate had all claims not barred from
payment been presented within the time required by ORS 115.005 (2) and
allowed by the personal representative.
(4) Each interested person who received a distribution or other
payment from the estate shall indemnify the personal representative and
the surety for the personal representative against the reasonable costs,
including attorney fees, of defense of the action in the same proportion
and to the same extent as such distributee would be required to indemnify
against the claim under subsection (3) of this section:
(a) If the personal representative prevails against the claimant,
in such proportion of the full amount of such costs; or
(b) If the claimant prevails against the personal representative,
in such proportion of the amount of any such costs which could have been
reasonably incurred by the estate upon disallowance of the claim had it
been presented within the time required by ORS 115.005 (2).
(5) Except as provided in subsection (6) of this section, an action
under this section against a personal representative, the surety for a
personal representative or an interested person shall be commenced within
two years after the death of the decedent or within the statute of
limitations applicable to the claim, whichever is earlier.
(6) An action for indemnity under subsection (3) or (4) of this
section shall be commenced within the time required by subsection (5) of
this section, unless:
(a) Notice of the action giving rise to the claim for indemnity is
given to each party from whom indemnity is sought personally or by mail
to the party’s last-known address within 180 days after the complaint in
the action is served on the party seeking indemnity; and
(b) The action is commenced within one year after a judgment in the
action giving rise to the claim for indemnity becomes final and not
subject to further appeal. [1989 c.229 §3] (1) Claims
against the estate of a decedent, other than claims of the personal
representative as a creditor of the decedent, shall be presented to the
personal representative.
(2) Except as provided in subsection (3) of this section, a claim
is barred from payment from the estate if not presented within the
statute of limitations applicable to the claim and before the later of:
(a) Four months after the date of first publication of notice to
interested persons; or
(b) If the claim was one with respect to which the personal
representative was required to deliver or mail a notice under ORS 115.003
(2), 30 days after a notice meeting the requirements of ORS 115.003 (3)
is delivered or mailed to the last-known address of the person asserting
the claim.
(3) A claim against the estate presented after claims are barred
under subsection (2) of this section shall be paid from the estate if the
claim:
(a) Is presented before the expiration of the statute of
limitations applicable to the claim and before the personal
representative files the final account;
(b) Is presented by a person who did not receive a notice under ORS
115.003 mailed or delivered more than 30 days prior to the date on which
the claim is presented and who is not an assignee of a person who
received such notice; and
(c) Would be allowable but for the time at which the claim is
presented.
(4) A claim against an estate may be paid under subsection (3) of
this section only after payment of all expenses having priority over
claims under ORS 115.125 and payment of all previously presented claims.
(5) This section does not affect or prevent:
(a) Any proceeding to enforce a mortgage, pledge or other lien upon
property of the estate, or to quiet title or reform any instrument with
respect to title to property; or
(b) To the limits of the insurance protection only, any proceeding
to establish liability of the decedent or the personal representative for
which the decedent or personal representative is protected by liability
insurance at the time the proceeding is commenced. [1969 c.591 §141; 1973
c.506 §29; 1989 c.229 §4; 1993 c.214 §1; 2001 c.620 §3; 2003 c.523 §1]Note: Section 4, chapter 523, Oregon Laws 2003, provides:
Sec. 4. (1) Except as provided in subsection (2) of this section,
the amendments to ORS 115.005 by section 1 of this 2003 Act apply to
claims against the estates of all decedents, without regard to whether
death occurs before, on or after the effective date of this 2003 Act
[January 1, 2004]. Except as provided in subsection (2) of this section,
the amendments to ORS 115.005 by section 1 of this 2003 Act revive claims
barred by the requirement of ORS 115.005 (4), as in effect immediately
before the effective date of this 2003 Act, that claims be made within
two years after the death of the decedent.
(2) The amendments to ORS 115.005 by section 1 of this 2003 Act do
not apply to the estate of any decedent for which a decree of final
distribution has been entered under ORS 116.113. [2003 c.523 §4]
Notwithstanding ORS 12.250, and except as otherwise specifically provided
in this chapter, all statutes of limitation and other time limitations
imposed under this chapter apply to actions brought in the name of the
state, or brought in the name of any county or public corporation, and to
actions brought for the benefit of the state or for the benefit of any
county or public corporation. [1999 c.675 §3; 2001 c.620 §4] Each claim presented shall:
(1) Be in writing.
(2) Describe the nature and the amount thereof, if ascertainable.
(3) State the names and addresses of the claimant and, if any, the
attorney of the claimant. [1969 c.591 §142; 1973 c.506 §31] A defect of form of a
claim timely presented may be waived by the personal representative or by
the court. [1969 c.591 §143; 1973 c.506 §32] When it appears that there is
written evidence of a claim that has been presented to the personal
representative, the claimant, upon demand by the personal representative,
shall produce the evidence or account for its nonproduction. [1969 c.591
§144] If a claim on a debt due is presented
and allowed, allowance shall be in the amount of the debt remaining
unpaid on the date of allowance. [1969 c.591 §145] (1) A claim on a debt due for
which the creditor holds security may be presented as a claim on an
unsecured debt due, or the creditor may elect to rely entirely on the
security without presentation of the claim.
(2) If the claim is presented, it shall describe the security. If
the security is an encumbrance that is recorded, it is sufficient to
describe the encumbrance by reference to the book, page, date and place
of recording.
(3) If the claim is presented and allowed, allowance shall be in
the amount of the debt remaining unpaid on the date of allowance.
(4) If the creditor surrenders the security, payment shall be on
the basis of the amount allowed.
(5) If the creditor does not surrender the security, payment shall
be on the basis of:
(a) If the creditor exhausts the security before receiving payment,
unless precluded by other law, the amount allowed, less the amount
realized on exhausting the security; or
(b) If the creditor does not exhaust the security before receiving
payment or does not have the right to exhaust the security, the amount
allowed, less the value of the security determined by agreement or as the
court may order.
(6) The personal representative may convey the secured property to
the creditor in consideration of the satisfaction or partial satisfaction
of the claim. [1969 c.591 §146; 1989 c.229 §5] If a judgment was
entered on a claim prior to the death of the decedent, the claim shall be
presented in the same manner as if no judgment had been entered, and a
copy of the judgment shall be attached to the claim. Such a claim may be
disallowed only if the judgment was void or voidable, or if the judgment
could have been set aside on the date of the decedent’s death, or if the
claim is not presented within the time required by ORS 115.005. If the
judgment was a lien against the property of the estate on the date of the
decedent’s death it shall be treated as a claim on a debt due for which
the creditor holds security. In all other respects a claim which has been
reduced to judgment shall have the same priority under ORS 115.125 as it
would have had were it not reduced to judgment. [1989 c.229 §11] A claim on a debt not due, whether
or not the creditor holds security therefor, may be presented as a claim
on a debt due. If the claim is allowed, allowance shall be in an amount
equal to the value of the debt on the date of allowance. The creditor,
after allowance of the claim, may withdraw the claim without prejudice to
other remedies. Payment on the basis of the amount allowed discharges the
debt and the security, if any, held by the creditor therefor. [1969 c.591
§147] (1) A claim on
a contingent or unliquidated debt shall be presented as any other claim.
(2) If the debt becomes absolute or liquidated before distribution
of the estate, the claim shall be paid in the same manner as a claim on
an absolute or liquidated debt.
(3) If the debt does not become absolute or liquidated before
distribution of the estate, the court shall provide for payment of the
claim by any of the following methods:
(a) The creditor and personal representative may determine, by
agreement, arbitration or compromise, the value of the debt, and upon
approval thereof by the court, the claim may be allowed and paid in the
same manner as a claim on an absolute or liquidated debt.
(b) The court may order the personal representative to make
distribution of the estate, but to retain sufficient funds to pay the
claim if and when the debt becomes absolute or liquidated. The estate may
not be kept open for this purpose more than two years after distribution
of the remainder of the estate. If the debt does not become absolute or
liquidated within that time, the funds retained, after payment therefrom
of any expenses accruing during that time, shall be distributed to the
distributees.
(c) The court may order the personal representative to make
distribution of the estate as though the claim did not exist.
(d) If after distribution under paragraph (b) or (c) of this
subsection the debt becomes absolute or liquidated, the distributees are
liable to the creditor to the extent of the estate received by them.
Payment of the debt may be arranged by creating a trust, giving a
mortgage, securing a bond from a distributee or by such other method as
the court may order. [1969 c.591 §148] The personal representative may
compromise a claim against the estate of a decedent. [1969 c.591 §149] A claim of a personal
representative shall be filed with the clerk of the court within the time
required by law for presentment of claims. Upon application by the
personal representative or by any interested person the claim may be
considered by the court on the hearing of the final account of the
personal representative or prior to the hearing of the final account upon
notice to interested persons. [1969 c.591 §150; 1973 c.506 §33] After the day on which all known claims
are barred under ORS 115.005 (2), the personal representative, after
making provision for support of spouse and children ordered by the court,
for expenses of administration and for claims already presented which
have not been allowed or allowance of which has been appealed, shall
proceed to pay the claims allowed against the estate in the order of
priority prescribed by ORS 115.125. After payment of those claims, claims
presented and allowed under ORS 115.005 (3) shall be paid in the order in
which they are received and to the extent of the remaining assets of the
estate. [1969 c.591 §151; 1989 c.229 §6] (1) If the
applicable assets of the estate are insufficient to pay all expenses and
claims in full, the personal representative shall make payment in the
following order:
(a) Support of spouse and children, subject to the limitations
imposed by ORS 114.065.
(b) Expenses of administration.
(c) Expenses of a plain and decent funeral and disposition of the
remains of the decedent.
(d) Debts and taxes with preference under federal law.
(e) Reasonable and necessary medical and hospital expenses of the
last illness of the decedent, including compensation of persons attending
the decedent.
(f) Taxes with preference under the laws of this state that are due
and payable while possession of the estate of the decedent is retained by
the personal representative.
(g) Debts owed employees of the decedent for labor performed within
90 days immediately preceding the date of death of the decedent.
(h) Child support arrearages.
(i) The claim of the Department of Human Services for the net
amount of assistance paid to or for the decedent, in the following order:
(A) The amount of the state’s monthly contribution to the federal
government to defray the costs of outpatient prescription drug coverage
provided to a person who is eligible for Medicare Part D prescription
drug coverage and who receives benefits under the state medical
assistance program or Title XIX of the Social Security Act;
(B) Public assistance, as defined in ORS 411.010, funded entirely
by moneys from the General Fund; and
(C) Public assistance, as defined in ORS 411.010, funded by a
combination of state and federal funds.
(j) The claim of the Department of Corrections for care and
maintenance of any decedent who was at a state institution to the extent
provided in ORS 179.610 to 179.770.
(k) All other claims against the estate.
(2) If the applicable assets of the estate are insufficient to pay
in full all expenses or claims of any one class specified in subsection
(1) of this section, each expense or claim of that class shall be paid
only in proportion to the amount thereof. [1969 c.591 §152; 1969 c.597
§279; 1973 c.402 §32; 1979 c.684 §17; 2001 c.316 §1; 2001 c.487 §13; 2001
c.900 §19a; 2005 c.754 §3]Note: Section 4, chapter 754, Oregon Laws 2005, provides:
Sec. 4. The amendments to ORS 115.125 by section 3 of this 2005 Act
apply to claims against an estate filed on or after the effective date of
this 2005 Act [August 17, 2005]. [2005 c.754 §4] (1) A claim presented
to the personal representative shall be considered allowed as presented
unless within 60 days after the date of presentment of the claim the
personal representative mails or delivers a notice of disallowance of the
claim in whole or in part to the claimant and, if any, the attorney of
the claimant. The personal representative shall file in the estate
proceeding the claim as presented and a copy of the notice of
disallowance.
(2) 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 the claimant proceeds as provided in
ORS 115.145.
(3) The personal representative may rescind the previous allowance
of an unpaid claim, if the claim was allowed because of error,
misinformation or excusable neglect. Not less than 30 days before the
date of the filing of the final account the personal representative shall
give notice of rescission of previous allowance of a claim to the
claimant and, if any, the attorney of the claimant in the same manner and
containing the same information as a notice of disallowance. [1969 c.591
§153] (1) If the
personal representative disallows a claim in whole or in part, the
claimant, within 30 days after the date of mailing or delivery of the
notice of disallowance, may either:
(a) File in the estate proceeding a request for summary
determination of the claim by the probate court, with proof of service of
a copy of the request upon the personal representative or the attorney of
the personal representative; or
(b) Commence a separate action against the personal representative
on the claim in any court of competent jurisdiction. The action shall
proceed and be tried as any other action.
(2) If the claimant fails to either request a summary determination
or commence a separate action as provided in subsection (1) of this
section, the claim, to the extent disallowed by the personal
representative, is barred.
(3) In a proceeding for summary determination of a claim or in a
separate action on a claim the claim shall be allowed or judgment entered
on the claim in the full amount of the liability, if any, of the decedent
to the claimant. However, the claim shall be paid only to the extent of
the assets of the estate allocable to the payment of the claim pursuant
to ORS 115.115 and 115.125. [1969 c.591 §154; 1989 c.229 §7] If the
claimant files a request for summary determination of the claim as
provided in ORS 115.145, the personal representative, within 30 days
after the date of service of a copy of the request upon the personal
representative or the attorney of the personal representative, may notify
the claimant in writing that if the claimant desires to prove the claim
the claimant must commence a separate action against the personal
representative on the claim within 60 days after the date of receipt of
such notice. If the claimant fails to commence a separate action within
60 days after the date of receipt of the notice, the claim, to the extent
disallowed by the personal representative, is barred. [1969 c.591 §155] In a proceeding for
summary determination by the probate court of a claim disallowed in whole
or in part by the personal representative:
(1) The personal representative shall move or plead to the claim as
though the claim were a complaint filed in an action.
(2) The court shall hear the matter without a jury, after notice to
the claimant and personal representative. 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.
(3) No appeal may be taken from the order of the court made upon
the summary determination. [1969 c.591 §156]Any interested person may be heard in a proceeding for
summary determination by the probate court of a claim, and may intervene
in a separate action against the personal representative on the claim.
[1969 c.591 §157] A creditor whose
claim has been allowed or established by summary determination or
separate action, and who has not received payment within six months after
the date of the first publication of notice to interested persons, may
apply to the court for an order directing the personal representative to
pay the claim to the extent that funds of the estate are available for
that payment. [1969 c.591 §158](1) A claim that has been disallowed by
the personal representative may not be allowed by any court except upon
some competent, satisfactory evidence other than the testimony of the
claimant.
(2) Notwithstanding subsection (1) of this section, claims for
recovery of public assistance as defined by ORS 411.010 may be allowed
based on evidence in the form of documents from the Department of Human
Services that contain information relating to that public assistance,
such as the date that services were provided to the decedent, the
classification of those services, the name of the provider or the
provider’s identification number, and the amount of the public assistance
payment made for the services. The documents may be prints obtained from
microfilm or microfiche, or printouts from computer records or other
electronic storage medium. Notwithstanding ORS 40.460 and 40.510, a
document described in this subsection is prima facie evidence of the
information contained in the document and is not excluded from
introduction as hearsay, and extrinsic evidence of authenticity of the
document as a condition precedent to admissibility is not required, if
the document bears a seal that on its face is the seal of the Director of
Human Services or the designee of the director and:
(a) For a print obtained from microfilm or microfiche, also bears a
statement indicating that the print is a true copy of the microfilm or
microfiche record, signed by a person who purports to be an officer or
employee of the Department of Human Services; or
(b) For a printout from computer records or other electronic
storage medium, also bears a statement indicating that the printout
accurately reflects the data retrieved, signed by a person who purports
to be an officer or employee of the Department of Human Services. [1969
c.591 §159; 2003 c.523 §2] A claim barred by the
statute of limitations may not be allowed by the personal representative
or by any court except upon the written direction or consent of those
interested persons who would be adversely affected by allowance of the
claim. [1969 c.591 §160] If a claim is not
barred by the statute of limitations on the date of death of the
decedent, the claim is not barred by the statute of limitations
thereafter until at least one year after the date of death. [1969 c.591
§161]DISCHARGE OF ENCUMBRANCES (1) As used in this section:
(a) “Voluntary encumbrance” means any mortgage, trust deed,
security agreement, pledge or public improvement assessment lien, or any
lien arising from labor or services performed or materials supplied or
furnished, or any combination thereof, upon or in respect of property.
(b) “Involuntary encumbrance” means any encumbrance upon property
other than a voluntary encumbrance.
(2) If property upon which an encumbrance exists on the date of the
death of the testator is specifically devised, the devisee takes it
subject to the encumbrance, and the personal representative is not
required to make any payment on account of the obligation secured by the
encumbrance, whether or not the testator was personally liable on the
obligation secured by the encumbrance, except as provided otherwise in
the will or in subsection (3) or (4) of this section.
(3) Unless the will provides otherwise, the devisee of specifically
devised property may require that an encumbrance thereon be fully or
partially discharged out of other assets of the estate not specifically
devised, if:
(a) The encumbrance is an involuntary encumbrance; or
(b) The encumbrance is a voluntary encumbrance and:
(A) The will specifically directs full or partial discharge of the
encumbrance out of other assets; or
(B) The personal representative receives rents or profits, or both,
from the property and the devisee requests that the personal
representative apply all or part of the rents or profits, or both, in
full or partial discharge of the obligation secured by the encumbrance,
in which event the personal representative shall apply the rents or
profits, or both, upon principal or interest, or both, owing upon the
obligation, as requested; or
(C) Any devisee requests, in a writing signed by the devisee and
delivered to the personal representative, that the obligation secured by
the encumbrance be fully or partially discharged out of property, or the
proceeds of the sale thereof, which otherwise would pass to the devisee.
(4) If a claim based upon an obligation secured by a voluntary
encumbrance upon specifically devised property is presented and paid, or
if specifically devised real property subject to a voluntary encumbrance
is redeemed, and the devisee is not entitled to exoneration pursuant to
subsection (3) of this section, the personal representative has a lien
upon the property in the amount paid, and the lien shall be administered
upon as an asset of the estate.
(5) If property is specifically devised by a will executed before
the effective date of this section, and if an encumbrance upon that
property exists on the date of the death of the testator, the rights of
the devisee of that property in respect of exoneration thereof out of
other assets of the estate shall be determined in accordance with the law
in effect on the date the will was executed. [1969 c.591 §162] Unless otherwise provided
by the will, the personal representative may redeem property of the
estate sold on foreclosure of mortgage or upon execution if it appears
that the redemption would be for the benefit of the estate and would not
be prejudicial to creditors. [1969 c.591 §163] When
any assets of the estate are encumbered by an involuntary or voluntary
encumbrance, the personal representative may discharge the encumbrance or
any part thereof, renew or extend any obligation secured by the
encumbrance or convey or transfer the assets to the creditor in
satisfaction of the lien, in whole or in part, whether or not the holder
of the encumbrance has filed a claim, if it appears to be for the best
interest of the estate. Discharge of an encumbrance shall not increase
the share of the distributee entitled to the encumbered assets unless the
distributee is entitled to exoneration under ORS 115.255 (3). [1969 c.591
§164]ACTIONS AND SUITS All causes of action or suit,
by one person against another, survive to the personal representative of
the former and against the personal representative of the latter.
[Formerly 121.020] An
action against a decedent commenced before and pending on the date of
death of the decedent may be continued as provided in ORCP 34 B(2)
without presentation of a claim against the estate of the decedent. [1969
c.591 §166; 1979 c.284 §107]Except as provided in ORS 115.004, 115.005 (5) and 115.065,
no action against a personal representative on account of a claim shall
be commenced until the claim of the plaintiff has been presented to and
disallowed by the personal representative. [Formerly 121.090; 1989 c.229
§8; 1993 c.214 §2]APPLICATION TO NONTESTAMENTARY TRUSTS The provisions of
this chapter do not apply to claims against trusts that are subject to
the provisions of ORS 130.350 to 130.450. [2001 c.593 §17; 2005 c.348
§120a]Note: Section 18, chapter 593, Oregon Laws 2001, provides:
apply only to
claims against trust estates that are based on debts or liabilities of
grantors who die on or after January 1, 2002. [2001 c.593 §18; 2003 c.84
§14]
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