Chapter 284
AN ACT
HB 2362
Relating to proceedings in probate courts;
creating new provisions; and amending ORS 111.205, 111.215, 113.045, 113.145,
113.155, 115.003, 116.083, 116.093, 116.253, 117.015 and 125.325.
Be It Enacted by the People of
the State of
SECTION 1. ORS 111.205 is amended to read:
111.205. No particular
pleadings or forms thereof are required in the exercise of jurisdiction of
probate courts. The mode of procedure in the exercise of jurisdiction is in the
nature of an action not triable by right to a jury except as otherwise provided
by statute. The proceedings shall be in writing and upon the petition of a
party in interest or the order of the court. All petitions, reports and
accounts [shall be verified] in
proceedings before a probate court must include a declaration under penalty of
perjury in the form required by ORCP 1 E made by at least one of the
persons making [them] the
petitions, reports and accounts or by the attorney for the person, or in
case of a corporation by its agent. The court exercises its powers by means of:
(1) A petition of a
party in interest.
(2) A notice to a party.
(3) A subpoena to a
witness.
(4) Orders and
judgments.
(5) An execution or
warrant to enforce its orders and judgments.
SECTION 2. ORS 116.083 is amended to read:
116.083. (1) A personal representative shall make and file in the estate
proceeding [a verified] an
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.
(g) A declaration
under penalty of perjury in the form required by ORCP 1 E.
(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 other than creditors owed administrative
expenses that require court approval, 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 other than creditors owed administrative
expenses that require court approval.
(c) The statement and
petition referred to in subsection (3) of this section.
(d) A declaration
under penalty of perjury in the form required by ORCP 1 E.
(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.
SECTION 3. ORS 116.253 is amended to read:
116.253. (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] must include a declaration under penalty of perjury
in the form required by ORCP 1 E 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.
SECTION 4. ORS 125.325 is amended to read:
125.325. Within 30 days
after each anniversary of appointment, a guardian for an adult protected person
shall file with the court a [verified]
written report. The report must include a declaration under penalty of
perjury in the form required by ORCP 1 E. Copies of the guardian’s report
must be given to those persons specified in ORS 125.060 (3). The report shall
be in substantially the following form:
______________________________________________________________________________
IN THE
STATE OF
DEPARTMENT OF PROBATE
In the Matter of the ) No. ______
Guardianship of )
____________, )
(Name of protected )
person) )
A Protected )
Person. )
GUARDIAN’S REPORT
I am the guardian for
the person named above, and I make the following report to the court as
required by law:
1. My name is ____________.
2. My address and
telephone number are:
___________________
___________________
Phone ____________
3. The
name, if applicable, and address of the place where the person now resides
are:
___________________
___________________
4. The person is
currently residing at the following type of facility or residence:
___________________
5. The person is
currently engaged in the following programs and activities and receiving the
following services (brief description):
___________________
6. I was paid for
providing the following items of lodging, food or other services to the person:
___________________
___________________
7. The name of the
person primarily responsible for the care of the person at the person’s place
of residence is:
___________________
8. The name and address
of any hospital or other institution where the person is now admitted on a
temporary or permanent basis are:
___________________
___________________
9. The person’s physical
condition is as follows (brief description):
___________________
___________________
10. The person’s mental
condition is as follows (brief description):
___________________
___________________
11. I made the following
contacts with the person during the past year (brief description):
___________________
12. I made the following
major decisions on behalf of the person during the past year (brief
description):
___________________
13. I believe the
guardianship should or should not continue because:
___________________
14. At the time of my
last report, I held the following amount of money on behalf of the person: $______.
Since my last report, I received the following amount of money on behalf of the
person: $______. I spent the following amount of money on behalf of the person:
$______. I now hold the following amount of money on behalf of the person: $______.
15. A true copy of this
report will be given to the person, any conservator for the person and any
other person who has requested notice.
16. Since
my last report:
(a) I have been
convicted of the following crimes (not including traffic violations):
___________________
(b) I have filed for or
received protection from creditors under the Federal Bankruptcy Code (yes or
no): ____.
(c) I have had a professional
or occupational license revoked or suspended (yes or no): ____.
(d) I have had my driver
license revoked or suspended (yes or no): ____.
17. Since my last
report, I have delegated the following powers over the protected person for the
following periods of time (provide name of person powers delegated to):
___________________
I hereby declare that
the above statement is true to the best of my knowledge and belief, and that I
understand it is made for use as evidence in court and is subject to penalty
for perjury.
Dated
this ___ day of ________, 2___.
___________________
Guardian
[STATE OF
) ss.
County of ________ )
I, _________ (guardian’s name), being first
duly sworn, say that the above statements are true.
___________________
(Guardian’s signature)
SUBSCRIBED AND SWORN TO before me this ____ day of ________, 2___.
___________________
NOTARY PUBLIC FOR
My commission expires: ________]
______________________________________________________________________________
SECTION 5. The amendments to ORS 111.205, 116.083,
116.253 and 125.325 by sections 1 to 4 of this 2007 Act apply only to
petitions, reports and accounts filed in proceedings before a probate court on
or after the effective date of this 2007 Act.
SECTION 6. Section 7 of this 2007 Act is added to and
made a part of ORS chapter 111.
SECTION 7. (1) When proof of mailing, or other delivery
of notice or other documents, is required to be filed in probate court, proof
shall be made in the form required by ORCP 9 C.
(2) When proof of
publication is required to be filed in probate court, proof shall be made in
the form required by ORCP 7 F.
SECTION 8. ORS 111.215 is amended to read:
111.215. (1) Except as
otherwise specifically provided in ORS chapters 111, 112, 113, 114, 115, 116
and 117, whenever notice is required to be given of a hearing on any petition
or other matter upon which an order is sought, the petitioner or other person
filing the matter shall cause notice of the date, time and place of the hearing
to be given to each person interested in the subject of the hearing or to the
attorney of the person, if the person has appeared by attorney or requested
that notice be sent to the attorney of the person, in any one or more of the
following ways and within the following times:
(a) By mailing a copy
thereof addressed to the person or the attorney of the person at least 14 days
before the date set for the hearing.
(b) By delivering a copy
thereof to the person personally or to the attorney of the person at least five
days before the date set for the hearing.
(c) If the address of
any person is not known or cannot be ascertained with reasonable diligence, by
publishing a copy thereof once in each of three consecutive weeks in a
newspaper of general circulation in the county where the hearing is to be held,
the last publication of which shall be at least 10 days before the date set for
the hearing.
(2) Upon good cause
shown the court may change the requirements as to the method or time of giving
notice for any hearing.
(3) Proof of the giving
of notice must be made at or before the hearing and filed in the proceeding. [Proof shall be by an admission of service, a
return receipt from the postal authorities or an affidavit or certificate of
the person giving notice or the publisher, or one of the employees of the
publisher, of the newspaper publishing the notice.]
SECTION 9. ORS 113.045 is amended to read:
113.045. (1) Upon
appointment, a personal representative shall deliver or mail to an estate
administrator of the Department of State Lands appointed under ORS 113.235 a
copy of the petition filed under ORS 113.035, and a copy of any last will of
the decedent, if the personal representative has not identified and found all
heirs and devisees of the decedent. The personal representative shall file [an affidavit in the probate proceeding
proving] proof of the delivery or mailing with the court.
(2) If at any time after
the appointment of a personal representative it appears that any heir or
devisee of the decedent cannot be identified and found, the personal
representative shall promptly deliver or mail to an estate administrator of the
Department of State Lands appointed under ORS 113.235 a notice indicating that
an heir or devisee cannot be identified and found. The personal representative
shall file [an affidavit in the probate
proceeding proving] proof of the delivery or mailing with the
court.
(3) This section does
not affect the requirements of ORS 113.085 (2).
SECTION 10. 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 (8) and (9) 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;
(g) If information under
this section is required to be delivered or mailed to a person described in ORS
113.035 (8), 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; and
(h) If information under
this section is required to be delivered or mailed to a person described in ORS
113.035 (9), a statement that the rights of the person in the estate may be
barred unless the person proceeds as provided in ORS 112.049 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 section or a waiver
of notice as provided under ORS 111.225. The [affidavit] proof 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), (7), (8) or (9), 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 Department of Human
Services.
SECTION 11. ORS 113.155 is amended to read:
113.155. (1) Upon appointment a personal representative shall cause a
notice to interested persons to be published once in each of three consecutive
weeks in:
(a) A newspaper
published in the county in which the estate proceeding is pending; or
(b) If no newspaper is
published in the county in which the estate proceeding is pending, a newspaper
designated by the court.
(2) 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
requiring all persons having claims against the estate to present them, within
four months after the date of the first publication of the notice to the
personal representative at the address designated in the notice for the
presentation of claims or they may be barred;
(e) The date of the
first publication of the notice; and
(f) A statement advising
all persons whose rights may be affected by the proceeding that additional
information may be obtained from the records of the court, the personal
representative or the attorney for the personal representative.
(3) The failure of the
personal representative to cause a notice to be published 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) A personal
representative shall file in the estate proceeding proof [by an affidavit] of the publication of notice required by this
section. The [affidavit] proof
shall include a copy of the published notice.
SECTION 12. ORS 115.003 is amended to read:
115.003. (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] proof 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.
SECTION 13. ORS 116.093 is amended to read:
116.093. (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.
SECTION 14. ORS 117.015 is amended to read:
117.015. (1) Upon the
filing of a petition under ORS 117.005, the clerk of the court shall set a date
for hearing not less than 30 days after the date of filing the petition, unless
the court sets an earlier date. A copy of the notice of the hearing shall be
sent:
(a) To the absentee at
the last-known address of the absentee by registered mail or by certified mail
with return receipt.
(b) By ordinary mail to
the devisees and heirs named in the petition.
(2) The court may order
that additional notice of the hearing be given by publication or by other
means. Proof of mailing [may]
or other notice shall be made by the petitioner [by affidavit] and filed in the proceeding.
SECTION 15. Section 7 of this 2007 Act and the
amendments to ORS 111.215, 113.045, 113.145, 113.155, 115.003, 116.093 and
117.015 by sections 8 to 14 of this 2007 Act apply only to proofs filed in
probate court on or after the effective date of this 2007 Act.
Approved by the Governor June 1, 2007
Filed in the office of Secretary of State June 1, 2007
Effective date January 1, 2008
__________