74th OREGON LEGISLATIVE ASSEMBLY--2007 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 690
A-Engrossed
House Bill 2362
Ordered by the House March 13
Including House Amendments dated March 13
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Oregon State Bar Estate Planning Section)
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.
Requires that petitions, reports and accounts in proceedings
before probate court must include declaration under penalty of
perjury in lieu of notarized verification. { + Requires that
proof of delivery and publication to be filed in probate court be
made in form required by Oregon Rules of Civil Procedure. + }
Clarifies that short form final accounting may be used in
estate proceedings even though administrative expenses requiring
court approval have not been paid at time account is filed.
A BILL FOR AN ACT
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 Oregon:
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 ______
COURT ________ COUNTY,
STATE OF OREGON
DEPARTMENT OF PROBATE
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
In the Matter of )hNo. ____
Guardianship of )
________
, )
(Name of protecte)
person) )
A Protected )
Person. )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ -
STATE OF OREGON ) - }
{ -
) ss. - }
{ -
County of _____
) - }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ - 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 OREGON - }
{ - My commission expires: _____ - }
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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. + }
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