71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2243
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor John A. Kitzhaber,
M.D., for Department of Human Services)
CHAPTER ................
AN ACT
Relating to decedents' estates; amending ORS 113.145, 114.525,
115.005, 115.008 and 414.105.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 113.145 is amended to read:
113.145. (1) Upon appointment a personal representative shall
deliver or mail to the devisees, heirs and the persons described
in ORS 113.035 (7) who were required to be named in the petition
for appointment of a personal representative, at the addresses
therein shown, information that shall include:
(a) The title of the court in which the estate proceeding is
pending and the clerk's file number;
(b) The name of the decedent and the place and date of the
death of the decedent;
(c) Whether or not a will of the decedent has been admitted to
probate;
(d) The name and address of the personal representative and the
attorney of the personal representative;
(e) The date of the appointment of the personal representative;
(f) A statement advising the devisee, heir or other interested
person that the rights of the devisee, heir or other interested
person may be affected by the proceeding and that additional
information may be obtained from the records of the court, the
personal representative or the attorney for the personal
representative; and
(g) If information under this section is required to be
delivered or mailed to a person described in ORS 113.035 (7), a
statement that the rights of the person in the estate may be
barred unless the person proceeds as provided in ORS 113.075
within four months of the delivery or mailing of the information.
(2) If the personal representative is a devisee, heir or other
interested person named in the petition the personal
representative is not required to deliver or mail the information
under this section to the personal representative.
(3) The failure of the personal representative to give
information under 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.
(4) Within 30 days after the date of appointment a personal
representative shall cause to be filed in the estate proceeding
proof by an affidavit of the delivery or mailing required by this
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section or a waiver of notice as provided under ORS 111.225. The
affidavit shall include a copy of the information delivered or
mailed and the names of the persons to whom it was delivered or
mailed.
(5) If before the filing of the final account the personal
representative has actual knowledge that the petition did not
include the name and address of any person described in ORS
113.035 (4), (5), (6) or (7), the personal representative shall:
(a) Make reasonable efforts under the circumstances to
ascertain each of those names and addresses;
(b) Promptly deliver or mail information as described in
subsection (1) of this section to each of those persons located
after the filing of the petition and before the filing of the
final account; and
(c) File in the estate proceeding, on or before filing the
final account under ORS 116.083, proof by affidavit of compliance
with this subsection or a waiver of notice as provided under ORS
111.225.
{ + (6) Within 30 days after the appointment of a personal
representative, the personal representative must mail or deliver
the information specified in subsection (1) of this section and a
copy of the death certificate of the decedent to the Estate
Administration Unit within the Department of Human Services. + }
SECTION 2. ORS 114.525 is amended to read:
114.525. 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;
(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 which the
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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 { - Adult and Family
Services Division, - } Estate Administration { - Section,
Salem, Oregon - } { + Unit within 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 which 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.
SECTION 3. ORS 115.005 is amended to read:
115.005. (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
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 subsequent to the day
after which claims are barred under subsection (2) of this
section shall be paid from the estate, but only to the extent
that payment can be made without prejudice to payment of expenses
having priority over claims under ORS 115.125 and payment of the
previously presented claims of other persons, if it meets each of
the following requirements:
(a) It is presented on or before the day after which claims are
barred under subsection (4) of this section and also before the
day on which the personal representative files the final account;
(b) It 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) It would be allowable but for the time at which it is
presented.
(4) Claims not presented within two years after the death of
the decedent or within the applicable statute of limitations,
whichever is earlier, are barred from payment from the estate.
(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
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(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.
{ + (6) A claim by the state for the recovery of public
assistance, as defined by ORS 411.010, is not subject to
subsection (4) of this section if the public assistance was
provided to the decedent or the spouse of the decedent and assets
were not disclosed to the state at the time the public assistance
was provided. The provisions of this subsection do not affect the
application of the time limits imposed by subsections (2) and (3)
of this section to claims made by the state for the recovery of
public assistance. + }
SECTION 4. ORS 115.008 is amended to read:
115.008. 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.
SECTION 5. ORS 414.105 is amended to read:
414.105. (1) The Department of Human Services may recover from
any person the amounts of medical assistance incorrectly paid on
behalf of such person.
(2) Medical assistance pursuant to ORS 411.405 and this chapter
paid on behalf of an individual who was 55 years of age or older
when the individual received such assistance { + , or paid on
behalf of a person of any age who was a permanently
institutionalized inpatient in a nursing facility, intermediate
care facility for the mentally retarded or other medical
institution, + }may be recovered from the estate of the
individual or from any recipient of property or other assets held
by the individual at the time of death including the estate of
the surviving spouse. Claim for such medical assistance correctly
paid to the individual may be established against the estate, but
there shall be no adjustment or recovery thereof until after the
death of the surviving spouse, if any, and only at a time when
the individual has no surviving child who is under 21 years of
age or who is blind or permanently and totally disabled.
Transfers of real or personal property by recipients of such aid
without adequate consideration are voidable and may be set aside
under ORS 411.620 (2).
(3) Nothing in this section authorizes the recovery of the
amount of any aid from the estate or surviving spouse of a
recipient to the extent that the need for aid resulted from a
crime committed against the recipient.
(4) In any action or proceeding under this section to recover
medical assistance paid, it shall be the legal burden of the
person who receives the property or other assets from a Medicaid
recipient to establish the extent and value of the Medicaid
recipient's legal title or interest in the property or assets in
accordance with rules established by the department.
(5) As used in this section, 'estate' includes all real and
personal property and other assets in which the deceased
individual had any legal title or interest at the time of death
including assets conveyed to a survivor, heir or assign of the
deceased individual through joint tenancy, tenancy in common,
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survivorship, life estate, living trust or other similar
arrangement.
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Passed by House May 8, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 1, 2001
...........................................................
President of Senate
Enrolled House Bill 2243 (HB 2243-A) Page 5
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2243 (HB 2243-A) Page 6