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| Home > Statutes > Usa Oregon |
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USA Statutes : oregon
Title : TITLE 12 PROBATE LAW
Chapter : Chapter 116 Accounting, Distribution and Closing
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(1) Unless the will otherwise
provides and subject to subsection (2) of this section, all expenses
incurred in connection with the settlement of a decedent’s estate,
including debts, funeral expenses, estate taxes, interest and penalties
concerning taxes, family allowances, fees of attorneys and personal
representatives, and court costs shall be charged against the principal
of the estate.
(2) Unless the will otherwise provides, income from the assets of a
decedent’s estate after the death of the testator and before
distribution, including income from property used to discharge
liabilities, shall be determined in accordance with the rules applicable
to a trustee under ORS chapter 129 and this section and distributed as
follows:
(a) To specific legatees and devisees, the income from the property
bequeathed or devised to them respectively, less taxes, ordinary repairs,
and other expenses of management and operation of the property, and an
appropriate portion of interest accrued since the death of the testator
and of taxes imposed on income, excluding taxes on capital gains, that
accrue during the period of administration.
(b) To all other legatees and devisees, except legatees of
pecuniary bequests that are not in trust and that do not qualify for the
marital deduction provided for in section 2056 of the Internal Revenue
Code (26 U.S.C. 2056), the balance of the income, less the balance of
taxes, ordinary repairs, and other expenses of management and operation
of all property from which the estate is entitled to income, interest
accrued since the death of the testator, and taxes imposed on income,
excluding taxes on capital gains, that accrue during the period of
administration, in proportion to their respective interests in the
undistributed assets of the estate computed at times of distribution on
the basis of inventory value.
(3) Income received by a trustee under subsection (2) of this
section shall be treated as income of the trust. [1975 c.717 §15 (enacted
in lieu of 116.003); 2003 c.279 §33; 2005 c.22 §94] Upon petition
by the personal representative or other interested person, and after such
notice and hearing as the court may prescribe, the court may order the
personal representative to distribute, prior to final settlement and
distribution, property of the estate to the person or persons who would
be entitled to the property under the will or under intestate succession
on final distribution, if the court finds that:
(1) After the distribution sufficient assets will remain to pay
support of spouse and children, expenses of administration, unpaid claims
and all known unpaid creditors of the decedent or of the estate; and
(2) The distribution may be made without loss to creditors or
injury to the estate or to any interested person. [1969 c.591 §169; 1987
c.646 §1]
The court may require a bond or
other security of any distributee for the protection of creditors and
other interested persons who might suffer loss or injury because of the
distribution of property under ORS 116.013. [1969 c.591 §170] The distribution of
property in accordance with the order of the court under ORS 116.013 is a
full discharge of the personal representative in respect to all property
embraced in the order, except as otherwise provided in ORS chapters 111,
112, 113, 114, 115, 116 and 117. [1969 c.591 §171] If, after the
distribution of property under ORS 116.013, it appears that all or any
part of the property distributed is required for the payment of claims
and expenses of administration, including determined and undetermined
state and federal tax liability, the personal representative shall
petition the court to order the return of the property. Notice of the
hearing on the petition shall be given as provided in ORS 111.215. Upon
the hearing the court may order the distributee to return the property
distributed or any part thereof, or to pay its value as of the time of
distribution, and may specify the time within which the return or payment
must be made. If the property is not returned or the payment is not made
within the time ordered, the person failing to return the property or pay
the value may be adjudged in contempt of court and judgment may be
entered against the person and the sureties of the person, if any. [1969
c.591 §172] A personal
representative may be liable for and is chargeable in the accounts of the
personal representative with:
(1) All of the estate of the decedent that comes into the
possession of the personal representative at any time, including the
income therefrom.
(2) All property not a part of the estate if:
(a) The personal representative has commingled the property with
the assets of the estate; or
(b) The property was received under a duty imposed on the personal
representative by law in the capacity of personal representative.
(3) Any loss to the estate arising from:
(a) Neglect or unreasonable delay in collecting the assets of the
estate.
(b) Neglect in paying over money or delivering property of the
estate.
(c) Failure to pay taxes as required by law or to close the estate
within a reasonable time.
(d) Embezzlement or commingling of the assets of the estate with
other property.
(e) Unauthorized self-dealing.
(f) Wrongful acts or omissions of copersonal representatives that
the personal representative could have prevented by the exercise of
ordinary care.
(g) Any other negligent or willful act or nonfeasance in the
administration of the estate by which loss to the estate arises. [1969
c.591 §173] A personal
representative is not liable for or chargeable in the accounts of the
personal representative with:
(1) Debts due the decedent or other assets of the estate that
remain uncollected without the fault of the personal representative.
(2) Loss by the decrease in value or destruction of property of the
estate if the loss is caused without the fault of the personal
representative. [1969 c.591 §174] (1) A
personal representative shall make and file in the estate proceeding a
verified account of the personal representative’s administration:
(a) Unless the court orders otherwise, annually within 60 days
after the anniversary date of the personal representative’s appointment.
(b) Within 30 days after the date of the personal representative’s
removal or resignation or the revocation of the personal representative’s
letters.
(c) When the estate is ready for final settlement and distribution.
(d) At such other times as the court may order.
(2) Each account must include the following information:
(a) The period of time covered by the account.
(b) The total value of the property with which the personal
representative is chargeable according to the inventory, or, if there was
a prior account, the amount of the balance of the prior account.
(c) All money and property received during the period covered by
the account.
(d) All disbursements made during the period covered by the
account. Vouchers for disbursements must accompany the account, unless
otherwise provided by order or rule of the court, or unless the personal
representative is a trust company that has complied with ORS 709.030, but
that personal representative shall:
(A) Maintain the vouchers for a period of not less than one year
following the date on which the order approving the final account is
entered;
(B) Permit interested persons to inspect the vouchers and receive
copies thereof at their own expense at the place of business of the
personal representative during the personal representative’s normal
business hours at any time prior to the end of the one-year period
following the date on which the order approving the final account is
entered; and
(C) Include in each annual account and in the final account a
statement that the vouchers are not filed with the account but are
maintained by the personal representative and may be inspected and copied
as provided in subparagraph (B) of this paragraph.
(e) The money and property of the estate on hand.
(f) Such other information as the personal representative considers
necessary to show the condition of the affairs of the estate or as the
court may require.
(3) When the estate is ready for final settlement and distribution,
the account must also include:
(a) A statement that all Oregon income, inheritance and personal
property taxes, if any, have been paid, or if not so paid, that payment
of those taxes has been secured by bond, deposit or otherwise, and that
all required tax returns have been filed.
(b) A petition for a judgment authorizing the personal
representative to distribute the estate to the persons and in the
portions specified therein.
(4) If the distributees consent thereto in writing and all
creditors of the estate have been paid in full, the personal
representative, in lieu of the final account otherwise required by this
section, may file a verified statement that includes the following:
(a) The period of time covered by the statement.
(b) A statement that all creditors have been paid in full.
(c) The statement and petition referred to in subsection (3) of
this section.
(5) Notice of time for filing objections to the verified statement
described in subsection (4) of this section is not required.
(6) The Chief Justice of the Supreme Court may by rule specify the
form and contents of accounts that must be filed by a personal
representative. [1969 c.591 §175; 1973 c.506 §37; 1985 c.304 §1; 1995
c.453 §2; 1997 c.631 §405; 1999 c.592 §2; 2003 c.576 §375; 2005 c.22 §95;
2005 c.123 §1]Note: Section 3, chapter 123, Oregon Laws 2005, provides:
Sec. 3. The amendments to ORS 116.083 and 125.475 by sections 1 and
2 of this 2005 Act:
(1) Do not apply to any account or accounting that is due before
the effective date of this 2005 Act [January 1, 2006], under the
provisions of ORS 116.083 and 125.475 as in effect on the day immediately
preceding the effective date of this 2005 Act.
(2) Do apply to an account or accounting that is due on or after
the effective date of this 2005 Act under the provisions of ORS 116.083
and 125.475 as in effect on the day immediately preceding the effective
date of this 2005 Act. [2005 c.123 §3](1) Upon filing the final account and petition for a
judgment of distribution, the personal representative shall fix a time
for filing objections thereto in a notice thereof. Not less than 20 days
before the time fixed in the notice, the personal representative shall
cause a copy of the notice to be mailed to:
(a) Each heir at the last-known address of the heir, if the
decedent died intestate.
(b) Each devisee at the last-known address of the devisee, if the
decedent died testate.
(c) Each creditor who has not received payment in full and whose
claim has not otherwise been barred.
(d) Any other person known to the personal representative to have
or to claim an interest in the estate being distributed.
(2) The notice need not be mailed to the personal representative.
(3) Proof of the mailing to those persons entitled to notice shall
be made by affidavit and filed in the estate proceeding at or before
approval of the final account.
(4) If the Department of Human Services has presented a claim under
ORS chapter 411 or 414 or ORS 416.310 to 416.340, 416.510 to 416.990 or
417.010 to 417.080, or the Department of Corrections or the authorized
agent of the Department of Corrections has presented a claim under ORS
179.620 (3), and the claim has not been settled or paid in full, the
personal representative shall mail to the appropriate department a copy
of the final account at the same time, and shall make proof of the
mailing in the same manner, as the notice provided for in this section.
[1969 c.591 §176; 1969 c.597 §280; 1989 c.348 §14; 2001 c.487 §14; 2001
c.900 §20a; 2003 c.576 §376; 2005 c.381 §21] Any person
entitled to notice under ORS 116.093 may, within the time fixed for the
filing, file in the estate proceeding objections to the final account and
petition for distribution, specifying the particulars of the objections.
Upon the filing of objections the court shall fix the time for hearing
thereon. [1969 c.591 §177] (1) If no objections to the
final account and petition for distribution are filed, or if objections
are filed, upon the hearing, the court shall enter a general judgment of
final distribution. In the judgment the court shall designate the persons
in whom title to the estate available for distribution is vested and the
portion of the estate or property to which each is entitled under the
will, by agreement approved by the court or pursuant to intestate
succession. The judgment shall also contain any findings of the court in
respect to:
(a) Advancements.
(b) Election against will by the surviving spouse.
(c) Renunciation.
(d) Lapse.
(e) Adjudicated controversies.
(f) Partial distribution, which shall be confirmed or modified.
(g) Retainer.
(h) Claims for which a special fund is set aside, and the amount
set aside.
(i) Contingent claims that have been allowed and are still unpaid.
(j) Approval of the final account in whole or in part.
(2) The personal representative is not entitled to approval of the
final account until Oregon income and personal property taxes, if any,
have been paid and appropriate receipts and clearances therefor have been
filed, or until payment of those taxes has been secured by bond, deposit
or otherwise, provided, however, that no such receipts or clearances
shall be required with regard to damages accepted upon settlement of a
claim or recovered on a judgment in an action for wrongful death as
provided in ORS 30.010 to 30.100.
(3) If, by agreement approved by the court, property is distributed
to persons in whom title is vested by the judgment of final distribution
otherwise than as provided by the will or pursuant to intestate
succession, the judgment operates as a transfer of the property between
those persons.
(4) The judgment of final distribution is a conclusive
determination of the persons who are the successors in interest to the
estate and of the extent and character of their interest therein, subject
only to the right of appeal and the power of the court to vacate the
judgment. [1969 c.591 §178; 1987 c.646 §2; 1989 c.921 §1; 1995 c.453 §3;
1999 c.59 §26; 2003 c.576 §377; 2005 c.568 §34] To the extent that the
final account is approved, the personal representative and the surety of
the personal representative, subject to the right of appeal, to the power
of the court to vacate its final orders and to the provisions of ORS
116.213, are relieved from liability for the administration of the trust.
The court may disapprove the account in whole or in part, surcharge the
personal representative for any loss caused by any breach of duty and
deny in whole or in part the right of the personal representative to
receive compensation. [1969 c.591 §179](1) If the will expresses an order of abatement, or the
testamentary plan or the express or implied purpose of the devise would
be defeated by the order of abatement stated in subsection (2) of this
section, the shares of the distributees abate as may be found necessary
to give effect to the intention of the testator.
(2) Except as provided in ORS 112.405 as to the shares of
pretermitted children, and in ORS 114.105 as to the share of the
surviving spouse who elects to take against the will, shares of
distributees abate without any preference or priority as between real and
personal property in the following order:
(a) Property not disposed of by the will.
(b) Residuary devises.
(c) General devises.
(d) Specific devises.
(3) A general devise charged on any specific property or fund is
considered, for purposes of abatement, property specifically devised to
the extent of the value of the thing on which it is charged. Upon the
failure or insufficiency of the thing on which it is charged, it is
considered a general devise to the extent of the failure or insufficiency.
(4) Abatement within each classification is in proportion to the
amounts of property each of the distributees would have received had full
distribution of the property been made in accordance with the terms of
the will.
(5) Persons to whom the will gives tangible personal property not
used in trade, agriculture or other business are not required to
contribute from that property unless the particular devise forms a
substantial amount of the total estate and the court specifically orders
contribution because of the devise.
(6) When the subject matter of a preferred devise is sold or used
incident to administration, abatement shall be achieved by appropriate
adjustments in, or contribution from, other interests in the remaining
assets. [1969 c.591 §180] (1) As used in this section,
“discount rate” means the auction average rate on 91-day United States
Treasury bills, as established by the most recent auction of these
Treasury bills and as reported by the United States Department of the
Treasury, Bureau of the Public Debt. The discount rate shall be
determined, with reference to the most recent auction date, before May 15
and before November 15 of each year.
(2) General pecuniary devises not entitled to a share of income
under ORS 116.007 (2) bear interest payable from the residuary estate at
the discount rate for a period beginning one year after the first
appointment of a personal representative until payment, unless a contrary
intent is evidenced in the will or unless otherwise ordered by the court.
[1969 c.591 §181; 2005 c.125 §1]Note: Section 2, chapter 125, Oregon Laws 2005, provides:
Sec. 2. The amendments to ORS 116.143 by section 1 of this 2005 Act
apply to the determination of discount rates beginning on or after
November 15, 2005. [2005 c.125 §2] The amount of the
indebtedness of a distributee to the estate if due, or its present worth
if not due, shall be offset against the interest of the distributee in
the estate; but the distributee has the benefit of any defense that would
be available to the distributee in a direct proceeding for recovery of
the debt. The right of offset and retainer is prior and superior to the
rights of judgment creditors, heirs or assignees of the distributee.
[1969 c.591 §182] When
administration of an estate in this state has been completed and the
estate is in a condition to be distributed, the court, upon application
by the personal representative, may authorize the delivery to the
personal representative of an estate of a decedent pending in a foreign
jurisdiction of such property as the court finds appropriate for the
payment of debts, taxes or other charges or for distribution to the
distributees of the estate in the foreign jurisdiction. [1969 c.591 §183] (1) Upon
application to the court a personal representative is entitled to receive
compensation for services as provided in this section. If there is more
than one personal representative acting concurrently, the compensation
shall not be increased, but may be divided among them as they agree or as
the court may order. The compensation is a commission upon the whole
estate, as follows:
(a) Upon the property subject to the jurisdiction of the court,
including income and realized gains:
(A) Seven percent of any sum not exceeding $1,000.
(B) Four percent of all above $1,000 and not exceeding $10,000.
(C) Three percent of all above $10,000 and not exceeding $50,000.
(D) Two percent of all above $50,000.
(b) One percent of the property, exclusive of life insurance
proceeds, not subject to the jurisdiction of the court but reportable for
Oregon inheritance tax or federal estate tax purposes.
(2) In all cases, further compensation as is just and reasonable
may be allowed by the court for any extraordinary and unusual services
not ordinarily required of a personal representative in the performance
of duties as a personal representative.
(3) When a decedent by will has made special provision for the
compensation of a personal representative, the personal representative is
not entitled to any other compensation for services unless prior to
appointment the personal representative signs and files with the clerk of
the court a written renunciation of the compensation provided by the
will. [Formerly 117.680; 2005 c.126 §1]Note: Section 2, chapter 126, Oregon Laws 2005, provides:
Sec. 2. The amendments to ORS 116.173 by section 1 of this 2005 Act
apply to applications for compensation by a personal representative made
on or after the effective date of this 2005 Act [January 1, 2006]. [2005
c.126 §2](1) A personal representative shall be allowed in the
settlement of the final account all necessary expenses incurred in the
care, management and settlement of the estate, including reasonable fees
of appraisers, attorneys and other qualified persons employed by the
personal representative. A partial award of such expenses, including
fees, may be allowed prior to settlement of the final account upon
petition, showing that the final account reasonably cannot be filed at
that time, and upon notice as directed by the court. An award of
reasonable attorney fees under this section shall be made after
consideration of the customary fees in the community for similar
services, the time spent by counsel, counsel’s experience in such
matters, the skill displayed by counsel, the excellence of the result
obtained, any agreement as to fees which may exist between the personal
representative and the counsel of the personal representative, the amount
of responsibility assumed by counsel considering the total value of the
estate, and such other factors as may be relevant. No single factor shall
be controlling.
(2) A personal representative who defends or prosecutes any
proceeding in good faith and with just cause, whether successful or not,
is entitled to receive from the estate necessary expenses and
disbursements, including reasonable attorney fees, in the proceeding.
[1969 c.591 §185; 1977 c.733 §1; 1987 c.518 §1] If it appears to the court, at any time
after the expiration of four months after the date of the first
publication of notice to interested persons, that there is no known
person to take by descent the net intestate estate, the court shall order
that the estate escheat to the State of Oregon and that the whole of the
estate, after payment of claims, taxes and expenses of administration, be
distributed to the Department of State Lands. There shall be no further
proceeding in the administration of the estate, and the estate shall
summarily be closed. [1969 c.591 §186] If a report filed in the
estate proceeding by the personal representative not less than 30 days
after the date of entry of the judgment of distribution shows that
payment or delivery of property in the possession of the personal
representative or under the control of the personal representative cannot
be made to a distributee entitled thereto, either because the distributee
refuses to accept the property or because the distributee cannot be
found, the court may direct the personal representative to pay or deliver
the property to the Department of State Lands, to be placed in the
escheat funds of the state. The personal representative shall take the
receipt of the Department of State Lands stating from whom the property
was received, a description of the property and the name of the person
entitled to the property. The person entitled thereto may apply for and
recover the property in the manner provided for recovery of escheat
funds. [1969 c.591 §187; 2003 c.576 §378] Upon the filing of
receipts or other evidence satisfactory to the court that distribution
has been made as ordered in the general judgment, the court shall enter a
supplemental judgment of discharge. Except as provided in ORS 115.004,
the discharge so entered operates as a release of the personal
representative from further duties and as a bar to any action against the
personal representative and the surety of the personal representative.
The court may, in its discretion and upon such terms as may be just,
within one year after entry of the supplemental judgment of discharge,
permit an action to be brought against the personal representative and
the surety of the personal representative if the supplemental judgment of
discharge was taken through fraud or misrepresentation of the personal
representative or the surety of the personal representative or through
the mistake, inadvertence, surprise or excusable neglect of the claimant.
[1969 c.591 §188; 1989 c.229 §9; 2003 c.576 §379]The personal representative shall cause to be recorded in the
deed records of any county in which real property belonging to the estate
is situated, a personal representative’s deed executed in the manner
required by ORS chapter 93. The execution of the personal
representative’s deed shall not place the personal representative in the
chain of title to the property so conveyed unless the personal
representative is also an heir, devisee or claiming successor to the
property conveyed. [1969 c.591 §189; 1991 c.191 §1] Upon the petition of any
interested person, the court, with such notice as it may prescribe, may
order the estate of a decedent reopened if other property is discovered,
if any necessary act remains unperformed or for any other proper cause
appearing to the court. The court may reappoint the former personal
representative, or appoint another personal representative, to administer
any additional property or to perform such other acts as are considered
necessary. The provisions of law as to original administration apply, in
so far as applicable, to accomplish the purpose for which the estate is
reopened, but a claim that already is adjudicated or barred may not be
asserted in the reopened administration. [1969 c.591 §190]A court clerk of any county
in which the county court has judicial functions, the clerk of any county
court that has jurisdiction over probate matters under ORS 111.075 or a
court administrator, upon request, shall furnish to an estate
administrator of the Department of State Lands appointed under ORS
113.235 the titles of estates of decedents that have remained open for
more than three years and in which no heirs, or only persons whose right
to inherit the proceeds thereof is being contested, have appeared to
claim the estate. [1969 c.591 §191; 1991 c.230 §24; 1991 c.790 §9a; 2003
c.395 §17] (1) Within 10 years after
the death of a decedent whose estate escheated in whole or in part to the
state, or within eight years after the entry of a judgment or order
escheating property of an estate to the state, a claim may be made for
the property escheated, or the proceeds thereof, by or on behalf of a
person not having actual knowledge of the escheat or by or on behalf of a
person who at the time of the escheat was unable to prove entitlement to
the escheated property.
(2) The claim shall be made by a petition filed with the Director
of the Department of State Lands. The claim is considered a contested
case as provided in ORS 183.310 and there is the right of judicial review
as provided in ORS 183.480. The petition shall be verified in the same
manner as a petition in probate and shall state:
(a) The age and place of residence of the claimant by whom or on
whose behalf the petition is filed;
(b) That the claimant lawfully is entitled to the property or
proceeds, briefly describing the property or proceeds;
(c) That at the time the property escheated to the state the
claimant had no knowledge or notice thereof or was unable to prove
entitlement to the escheated property and has subsequently acquired new
evidence of that entitlement;
(d) That the claimant claims the property or proceeds as an heir or
devisee or as the personal representative of the estate of an heir or
devisee, setting forth the relationship, if any, of the claimant to the
decedent who at the time of death was the owner;
(e) That 10 years have not elapsed since the death of the decedent,
or that eight years have not elapsed since the entry of the judgment or
order escheating the property to the state; and
(f) If the petition is not filed by the claimant, the status of the
petitioner.
(3) If it is determined that the claimant is entitled to the
property or the proceeds thereof, the Director of the Department of State
Lands shall deliver the property to the petitioner, subject to and
charged with any tax on the property and the costs and expenses of the
state in connection therewith.
(4) If the person whose property escheated or reverted to the state
was at any time an inmate of a state institution in Oregon for the
mentally ill or mentally deficient, the reasonable unpaid cost, as
determined by the Department of Human Services, of the care and
maintenance of the person while a ward of the institution, regardless of
when the cost was incurred, may be deducted from, or, if necessary, be
offset in full against, the amount of the escheated property.
(5) For the purposes of this section, the death of the decedent is
presumed to have occurred on the date shown in the decedent’s death
certificate or in any other similar document issued by the jurisdiction
in which the death occurred or issued by an agency of the federal
government. [Formerly 120.130; 2003 c.395 §18; 2003 c.576 §380a]Note: Section 27 (4), chapter 395, Oregon Laws 2003, provides:
Sec. 27. (4) Before January 1, 2005, the amendments to ORS 116.253
by section 18 of this 2003 Act apply only to the estates of decedents who
die on or after the effective date of this 2003 Act [January 1, 2004]. On
and after January 1, 2005, the amendments to ORS 116.253 by section 18 of
this 2003 Act apply to the estates of all decedents, whether the death
occurs before, on or after the effective date of this 2003 Act. [2003
c.395 §27(4)](1) Three months or
more after the death of a nonresident decedent, any person indebted to
the estate of the nonresident decedent or having possession of personal
property or an instrument evidencing a debt, obligation, stock or chose
in action belonging to the estate of the nonresident decedent may make
payment of the indebtedness, in whole or in part, or deliver the personal
property or the instrument evidencing the debt, obligation, stock or
chose in action to the foreign personal representative of the nonresident
decedent, upon an affidavit made by or on behalf of the foreign personal
representative stating:
(a) The date of the death of the nonresident decedent;
(b) That no local administration or application therefor is pending
in this state; and
(c) That the foreign personal representative is entitled to payment
or delivery.
(2) Payment or delivery made in good faith on the basis of the
affidavit is a discharge of the debtor or person having possession of the
personal property.
(3) Payment or delivery may not be made under this section if a
resident creditor of the nonresident decedent has notified the debtor of
the nonresident decedent or the person having possession of the personal
property belonging to the nonresident decedent that the debt should not
be paid nor the property delivered to the foreign personal
representative. [1969 c.591 §193; 1987 c.646 §3]APPORTIONMENT OF ESTATE TAXES As used in ORS
116.303 to 116.383:
(1) “Estate” means the gross estate of a decedent as determined for
the purpose of federal estate tax and the inheritance tax payable to this
state under ORS 118.005 to 118.840.
(2) “Person” means any individual, partnership, association, joint
stock company, corporation, government, political subdivision,
governmental agency or local governmental agency.
(3) “Person interested in the estate” means any person entitled to
receive, or who has received, from a decedent or by reason of the death
of a decedent any property or interest therein included in the decedent’s
estate. It includes a personal representative, guardian, conservator or
trustee.
(4) “State” means any state, territory or possession of the United
States, the District of Columbia or the Commonwealth of Puerto Rico.
(5) “Tax” means the federal estate tax and the inheritance tax
payable to this state under ORS 118.005 to 118.840, and interest and
penalties imposed in addition to the tax. [1969 c.591 §194; 1977 c.666
§32]Unless the will otherwise provides, the tax
shall be apportioned among all persons interested in the estate. The
apportionment shall be made in the proportion that the value of the
interest of each person interested in the estate bears to the total value
of the interests of all persons interested in the estate. The values used
in determining the tax shall be used for that purpose. In the event the
decedent’s will directs a method of apportionment of tax different from
the method described in ORS 116.303 to 116.383, the method described in
the will shall control. A mere testamentary direction to pay debts,
charges, taxes or expenses of administration shall not be considered a
direction against apportionment of estate taxes. [1969 c.591 §195; 1973
c.506 §38](1) The court in which the
administration of the estate is proceeding may on petition for the
purpose determine the apportionment of the tax.
(2) If the court finds that it is inequitable to apportion interest
and penalties in the manner provided in ORS 116.313 because of special
circumstances, it may direct apportionment thereof in the manner it finds
equitable.
(3) If the court finds that the assessment of penalties and
interest assessed in relation to the tax is due to delay caused by the
negligence of the personal representative, the court may charge the
personal representative with the amount of the assessed penalties and
interest.
(4) In any suit or judicial proceeding to recover from any person
interested in the estate the amount of the tax apportioned to the person
in accordance with ORS 116.303 to 116.383, the determination of the
probate court in respect thereto is prima facie correct. [1969 c.591 §196](1) The personal representative or other person who is in
possession of the property of the decedent and who is required to pay the
tax may withhold from any property distributable to any person interested
in the estate, upon its distribution to the person, the amount of tax
attributable to the interest of the person. If the property in possession
of the personal representative or other person required to pay the tax
and distributable to any person interested in the estate is insufficient
to satisfy the proportionate amount of the tax determined to be due from
the person, the personal representative or other person required to pay
the tax may recover the deficiency from the person interested in the
estate. If the property is not in the possession of the personal
representative or the other person required to pay the tax, the personal
representative or the other person required to pay the tax may recover
from any person interested in the estate the amount of the tax
apportioned to the person in accordance with ORS 116.303 to 116.383.
(2) If property held by the personal representative is distributed
prior to final apportionment of the tax, the distributee shall provide a
bond or other security for the apportionment liability in the form and
amount prescribed by the personal representative. [1969 c.591 §197] (1) In
making an apportionment, allowances shall be made for any exemptions
granted, any classification made of persons interested in the estate and
any deductions and credits allowed by the law imposing the tax.
(2) Any exemption or deduction allowed by reason of the
relationship of any person to the decedent or by reason of the purpose of
the gift inures to the benefit of the person bearing that relationship or
receiving the gift, except that when an interest is subject to a prior
present interest that is not allowable as a deduction, the tax
apportionable against the present interest shall be paid from principal.
(3) Any deduction for property previously taxed and any credit for
gift taxes or death taxes of a foreign country paid by the decedent or
the estate of the decedent inures to the proportionate benefit of all
persons liable to apportionment.
(4) Any credit for inheritance, succession or estate taxes or taxes
in the nature thereof in respect to property or interests includable in
the estate inures to the benefit of the persons or interests chargeable
with the payment thereof to the extent that, or in proportion as, the
credit reduces the tax.
(5) To the extent that property passing to or in trust for a
surviving spouse or any charitable, public or similar gift or bequest
does not constitute an allowable deduction for purposes of the tax solely
by reason of an inheritance tax or other death tax imposed upon and
deductible from the property, the property shall not be included in the
computation provided for in ORS 116.313, and to that extent no
apportionment shall be made against the property. This subsection does
not apply to any case in which the result will be to deprive the estate
of a deduction otherwise allowable under section 2053 (d) of the Internal
Revenue Code (26 U.S.C. 2053 (d)) relating to deduction for state death
taxes on transfers for public, charitable or religious uses. [1969 c.591
§198; 2005 c.22 §96]No interest in income and no estate for years or for life or
other temporary interest in any property or fund is subject to
apportionment as between the temporary interest and the remainder. The
tax on the temporary interest and the tax, if any, on the remainder is
chargeable against the corpus of the property or funds subject to the
temporary interest and remainder. [1969 c.591 §199]Neither the
personal representative nor other person required to pay the tax is under
any duty to institute any suit or proceeding to recover from any person
interested in the estate the amount of the tax apportioned to that person
until the expiration of three months next following final determination
of the tax. A personal representative or other person required to pay the
tax who institutes the suit or proceeding within a reasonable time after
the three-month period is not subject to any liability or surcharge
because any portion of the tax apportioned to any person interested in
the estate was collectible at a time following the death of the decedent
but thereafter became uncollectible. If the personal representative or
other person required to pay the tax cannot collect from any person
interested in the estate the amount of the tax apportioned to the person,
the amount not recoverable shall be equitably apportioned among the other
persons interested in the estate who are subject to apportionment. [1969
c.591 §200] A personal
representative acting in another state or a person required to pay the
tax who is domiciled in another state may institute an action in the
courts of this state and may recover a proportionate amount of the
federal estate tax, of an estate tax payable to another state or of a
death duty due by a decedent’s estate to another state, from a person
interested in the estate who is either domiciled in this state or who
owns property in this state subject to attachment or execution. For the
purposes of the action the determination of apportionment by the court
having jurisdiction of the administration of the decedent’s estate in the
other state is prima facie correct. [1969 c.591 §201]ORS 116.303 to 116.383 embody the Uniform
Estate Tax Apportionment Act and shall be construed to effectuate its
general purpose to make uniform the law of those states which enact it.
[1969 c.591 §202]
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