71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 581
Senate Bill 121
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Judiciary
Committee for Estate Planning section of Oregon State Bar)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Creates simplified procedure for administering property
discovered after closure of probated estate.
A BILL FOR AN ACT
Relating to estate property discovered after probate.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 7 of this 2001 Act are added to
and made a part of ORS chapter 116. + }
SECTION 2. { + (1) Any of the persons specified in subsection
(2) of this section may file an affidavit under this section for
the purpose of administering property of a decedent that is
discovered after the entry of a decree of final distribution for
the estate under ORS 116.113.
(2) An affidavit may be filed under this section by:
(a) The person who served as a personal representative for the
estate in which the decree of final distribution was entered;
(b) Any heir or devisee of the decedent whose estate was
probated; or
(c) Any creditor whose claim was allowed in the probate of the
estate, but who did not receive payment in full from the estate
because the estate lacked adequate funds.
(3) An affidavit may be filed under the provisions of this
section only if:
(a) The fair market value of the newly discovered property is
$140,000 or less;
(b) Not more than $50,000 of the fair market value of the newly
discovered property is attributable to personal property; and
(c) Not more than $90,000 of the fair market value of the newly
discovered property is attributable to real property.
(4) In determining fair market value under this section, the
fair market value of the entire interest of the decedent in the
newly discovered property shall be used without reduction for
liens or other debts.
(5) An affidavit under this section must be filed in the
probate court in which the personal representative was appointed.
The clerk of the probate court shall charge and collect a fee of
$21 for the filing of the affidavit. + }
SECTION 3. { + An affidavit filed under section 2 of this 2001
Act must include:
(1) The name the decedent;
(2) The name of the court and the case number of the probate
proceeding in which the personal representative was appointed;
(3) A statement of the fair market value of all the newly
discovered property, including a legal description of any real
property;
(4) Unless the affidavit is filed by the person who acted as
personal representative in the probate proceeding, the name and
address of the personal representative;
(5) A list of the heirs of the decedent as determined in the
probate proceedings;
(6) A list of the devisees of the decedent as determined in the
probate proceedings;
(7) A list of all creditors of the estate who were not paid in
the probate proceeding because the estate lacked adequate funds;
and
(8) A statement of the interest that each heir or devisee has
in the newly discovered property. + }
SECTION 4. { + Unless the estate of the decedent is reopened
under ORS 116.233 within four months after the filing of an
affidavit under section 2 of this 2001 Act, the interest of the
decedent in all of the property described in an affidavit filed
under section 2 of this 2001 Act is transferred to the person or
persons shown by the affidavit to be entitled the property, and
any other claims against the property are barred except as
provided in section 6 of this 2001 Act. + }
SECTION 5. { + (1) A person filing an affidavit under section
2 of this 2001 Act shall take control of the newly discovered
property described in the affidavit. Within 30 days after filing
the affidavit, the person shall personally deliver a copy of the
affidavit showing the date of filing to each of the following
persons, or shall mail a copy of the affidavit showing the date
of filing to the each of the following persons at the last-known
address of the person:
(a) All heirs, devisees and creditors listed in the affidavit;
and
(b) If the affidavit is filed by any person other than the
person who served as personal representative for the estate, to
the person who served as personal representative for the estate.
(2) A person filing an affidavit under section 2 of this 2001
Act shall pay claims that were allowed during the administration
of the estate, but that were not paid because the estate lacked
adequate funds, to the extent the newly discovered property
allows payment of those claims.
(3) A person filing an affidavit under section 2 of this 2001
Act may transfer or sell any vehicle that is part of the newly
discovered property if the person filing the affidavit complies
with the requirements established by the Department of
Transportation for such purposes under ORS 803.094.
(4) A person filing an affidavit under section 2 of this 2001
Act may convey any real or personal property that is part of the
newly discovered property if all heirs or devisees with an
interest in the property join in the conveyance. Any proceeds of
sale, less 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, are subject to sections 2 to 7 of this 2001 Act.
A conveyance to a purchaser made in good faith and for a valuable
consideration made under this subsection, or made by the heir or
devisee succeeding to the interest conveyed, conveys the interest
stated in the conveyance free of any interest of any heir,
devisee or creditor of the estate.
(5) Any devisee, heir or creditor to whom newly discovered
property is transferred under sections 2 to 7 of this 2001 Act is
personally liable for the value of the transferred property to:
(a) The creditors of the estate, to the extent such creditors
are entitled to payment under subsection (2) of this section; and
(b) To the personal representative of the estate of the
decedent, if the estate is subsequently reopened under ORS
116.233 within the time allowed by section 4 of this 2001 Act.
(6) The person filing the affidavit shall cause to be recorded
in the deed records of any county in which real property
belonging to the decedent is situated a deed executed in the
manner required by ORS chapter 93. + }
SECTION 6. { + (1) A person who has filed an affidavit under
section 2 of this 2001 Act, or any devisee, heir or creditor of
the estate who has not been paid the full amount owed to the
devisee, heir or creditor, may within ___ years after the filing
of an affidavit under section 2 of this 2001 Act file with the
probate court a petition for summary review of administration of
the newly discovered property. The court shall hear the matter
without a jury, after notice to the person filing the affidavit
and to all other persons listed in the affidavit. Any interested
person may be heard in the proceeding.
(2) In a hearing conducted under this section, the court shall
review administration of the newly discovered property in a
summary manner and may:
(a) Order the person who filed the affidavit to pay creditors
of the estate from the newly discovered property;
(b) Order the person who filed the affidavit to sell all or
part of the newly discovered property of the estate and pay
creditors from the proceeds;
(c) Order the person who filed the affidavit to distribute
newly discovered property to the heirs or devisees of the
decedent; or
(d) Order any person who has received any of the newly
discovered property to pay amounts owed to heirs, devisees or
creditors. + }
SECTION 7. { + The exclusive remedy of a person who is injured
by the failure of a person who files an affidavit under section 2
of this 2001 Act to comply with the requirements of sections 2 to
7 of this 2001 Act is summary review of administration under
section 6 of this 2001 Act or reopening of an estate within the
time allowed by section 4 of this 2001 Act. + }
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