74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
HA to HB 2362
LC 690/HB 2362-2
HOUSE AMENDMENTS TO
HOUSE BILL 2362
By COMMITTEE ON JUDICIARY
March 13
On page 1 of the printed bill, delete line 3 and insert '
111.215, 113.045, 113.145, 113.155, 115.003, 116.083, 116.093,
116.253, 117.015 and 125.325.'.
On page 5, after line 14, insert:
' 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.'.
Delete lines 30 through 32.
After line 37, insert:
' { + 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. + } ' .
----------