Chapter 114 — Administration
of Estates Generally
2011 EDITION
ADMINISTRATION OF ESTATES GENERALLY
PROBATE LAW
SUPPORT OF SPOUSE AND CHILDREN
114.005 Occupancy
of family abode by spouse and children
114.015 Support
of spouse and children
114.025 Petition
for support and answer
114.035 Temporary
support
114.045 Modification
or termination of support
114.055 Nature
of support
114.065 Limitations
on support
114.075 Priority
of support; treated as administration expense
114.085 Setting
apart whole estate for support; termination of administration
TITLE AND POSSESSION OF PROPERTY
114.205 No
distinction between real and personal property
114.215 Devolution
of and title to property
114.225 Possession
and control of decedent’s estate
DUTIES AND POWERS OF PERSONAL
REPRESENTATIVES
114.255 Commencement
of duties and powers of personal representative; prior acts
114.265 General
duties of personal representative
114.275 Personal
representative to proceed without court order; application for authority,
approval or instructions
114.285 Naming
or appointment of personal representative does not discharge claim
114.295 Discharge
or devise in will of claim of testator
114.305 Transactions
authorized for personal representative
114.315 Right
to perfect lien or security interest
114.325 Power
to sell, mortgage, lease and deal with property
114.333 Transfer
of title and interest to real property by foreign personal representative
114.335 Court
order for sale, mortgage or lease
114.345 Title
conveyed free of claims of creditors
114.355 Sale
or encumbrance to personal representative voidable; exceptions
114.365 Validation
of certain sales
114.375 Nonliability
of transfer agents
114.385 Persons
dealing with personal representative; protection
114.395 Improper
exercise of power; breach of fiduciary duty
114.405 Personal
liability of personal representative
114.415 Copersonal
representatives; when joint action required
114.425 Discovery
of property, writings and information
114.435 Power
to avoid transfers
SMALL ESTATES
114.505 Definitions
for ORS 114.505 to 114.560
114.515 Value
of estate; where affidavit filed; fee; amended affidavit; supplemental
affidavit
114.517 Approval
of attorneys filing affidavits for recipients of Medicaid or other public
assistance
114.520 Authorization
from Department of State Lands required for filing of affidavit by creditor if
decedent dies intestate and without heirs; rules
114.525 Content
of affidavit
114.535 Transfer
of decedent’s property to affiant; proceedings to compel transfer
114.537 Safe
deposit boxes
114.540 Procedure
for claims; disallowance; summary determination
114.545 Duties
of person filing affidavit; payment of claims; conveyance of real property;
liability of person to whom property transferred or payment made
114.550 Summary
review of administration of estate; hearing
114.552 Filing
fees
114.555 Effect
of failure to appoint personal representative
114.560 Exclusive
remedy
ELECTIVE SHARE FOR DECEDENTS WHO DIE ON
OR AFTER JANUARY 1, 2011
(Generally)
114.600 Elective
share generally
114.605 Amount
of elective share
114.610 Manner
of making election
114.615 Payment
of elective share
114.620 Waiver
of right to elect and other rights
114.625 Who
may exercise right of election
(Augmented Estate)
114.630 Augmented
estate
114.635 Exclusions
from augmented estate
(Decedent’s Probate Estate)
114.650 Decedent’s
probate estate
(Decedent’s Nonprobate Estate)
114.660 Decedent’s
nonprobate estate
114.665 Decedent’s
nonprobate estate; property owned immediately before death
(Surviving Spouse’s Estate)
114.675 Surviving
spouse’s estate
(Decedent’s Probate Transfers to Spouse)
114.685 Decedent’s
probate transfers to surviving spouse
(Decedent’s Nonprobate Transfers to
Spouse)
114.690 Decedent’s
nonprobate transfers to surviving spouse
(Payment of Elective Share)
114.700 Priority
of sources from which elective share payable
114.705 Liability
of recipients of decedent’s nonprobate estate
114.710 Protective
order
(Procedure)
114.720 Proceedings
to claim elective share
114.725 Effect
of separation
SUPPORT OF SPOUSE AND CHILDREN
114.005 Occupancy of family abode by
spouse and children. The spouse and dependent
children of a decedent, or any of them, may continue to occupy the principal place
of abode of the decedent until one year after the death of the decedent or, if
the estate therein is an estate of leasehold or an estate for the lifetime of
another, until one year after the death of the decedent or the earlier
termination of the estate. During that occupancy:
(1)
The occupants shall not commit or permit waste to the abode, or cause or permit
mechanic’s or materialman’s or other liens to attach thereto.
(2)
The occupants shall keep the abode insured, to the extent of the fair market value
of the improvements, against fire and other hazards within the extended
coverage provided by fire insurance policies. In the event of loss or damage
from those hazards, to the extent of the proceeds of the insurance, they shall
restore the abode to its former condition.
(3)
The occupants shall pay taxes and improvement liens on the abode as payment
thereof becomes due.
(4)
The abode is exempt from execution to the extent that it was exempt when the
decedent was living. [1969 c.591 §103]
114.010 [Repealed
by 1969 c.591 §305]
114.015 Support of spouse and children.
The court by order shall make necessary and reasonable provision from the
estate of a decedent for the support of the spouse and dependent children of
the decedent, or any of them, upon:
(1)
Petition therefor by or on behalf of the spouse or any dependent child;
(2)
Service of the petition and notice of hearing thereon to the personal
representative, unless the petitioner is the personal representative;
(3)
Notice to persons whose distributive shares of the estate may be diminished by
the granting of the petition, unless the court by order directs otherwise; and
(4)
Hearing. [1969 c.591 §104]
114.020
[Amended by 1955 c.69 §1; repealed by 1969 c.591 §305]
114.025 Petition for support and answer.
(1) The petition for support under ORS 114.015 shall include a description of
property, other than property of the estate, available for the support of the
spouse and children, and an estimate of the expenses anticipated for their
support. If the petitioner is the personal representative, the petition shall
also include, so far as known, a statement of the nature and estimated value of
the property of the estate and of the nature and estimated amount of claims,
taxes and expenses of administration.
(2)
If the personal representative is not the petitioner, the personal
representative shall answer the petition for support. The answer shall include,
so far as known, a statement of the nature and estimated value of the property
of the estate and of the nature and estimated amount of claims, taxes and
expenses of administration. [1969 c.591 §105]
114.030
[Repealed by 1969 c.591 §305]
114.035 Temporary support.
Pending hearing upon the petition under ORS 114.015, temporary support may be
allowed by order of the court in an amount and of a nature the court considers
reasonably necessary for the welfare of the surviving spouse and dependent
children of the decedent or any of them. [1969 c.591 §106]
114.040
[Repealed by 1969 c.591 §305]
114.045 Modification or termination of
support. Provision for support under ORS 114.015
ordered by the court may be modified or terminated by the court by further
order. [1969 c.591 §107]
114.050
[Repealed by 1969 c.591 §305]
114.055 Nature of support.
(1) Provision for support under ORS 114.015 ordered by the court may consist of
any one or more of the following:
(a)
Transfer of title to personal property.
(b)
Transfer of title to real property.
(c)
Periodic payment of moneys during administration of the estate, but the
payments may not continue for more than two years after the date of death of
the decedent.
(2)
The court, in determining provision for support, shall take into consideration
the solvency of the estate, property available for support other than property
of the estate, and property of the estate inherited by or devised to the spouse
and children. [1969 c.591 §108]
114.060
[Repealed by 1969 c.591 §305]
114.065 Limitations on support.
If it appears to the court that after provision for support under ORS 114.015
is made the estate will be insolvent, the provision for support ordered by the
court shall not exceed one-half of the estimated value of the property of the
estate, and any periodic payment of moneys so ordered shall not continue for more
than one year after the date of death of the decedent. [1969 c.591 §109]
114.070 [1957
c.345 §1; repealed by 1969 c.591 §305]
114.075 Priority of support; treated as
administration expense. Subject to the limitations
imposed by ORS 114.065, provision for support under ORS 114.015 ordered by the
court has priority over claims and expenses of administration. The provision is
not charged against the distributive share of the person receiving support. The
provision is treated as an expense of administration, but not as a deduction
for estate tax purposes. [1969 c.591 §110; 2011 c.526 §18]
114.085 Setting apart whole estate for
support; termination of administration. If it
appears, after the expiration of four months after the date of the first
publication of notice to interested persons, that reasonable provision for
support of the spouse and dependent children of the decedent, or any of them,
warrants that the whole of the estate, after payment of claims, taxes and
expenses of administration, be set apart for such support, the court may so
order. There shall be no further proceeding in the administration of the
estate, and the estate shall summarily be closed. [1969 c.591 §111]
114.105 [1969
c.591 §112; 1997 c.99 §22; repealed by 2009 c.574 §25]
114.110
[Repealed by 1969 c.591 §305]
114.115 [1969
c.591 §113; repealed by 2009 c.574 §25]
114.120
[Repealed by 1969 c.591 §305]
114.125 [1969
c.591 §114; repealed by 2009 c.574 §25]
114.130
[Amended by 1955 c.266 §1; 1965 c.506 §1; repealed by 1969 c.591 §305]
114.135 [1969
c.591 §115; 2003 c.576 §374; repealed by 2009 c.574 §25]
114.140
[Repealed by 1969 c.591 §305]
114.145 [1969
c.591 §116; repealed by 2009 c.574 §25]
114.150
[Repealed by 1969 c.591 §305]
114.155 [1969
c.591 §117; 1973 c.823 §109; 1995 c.664 §85; repealed by 2009 c.574 §25]
114.165 [1969
c.591 §118; repealed by 2009 c.574 §25]
TITLE AND POSSESSION OF PROPERTY
114.205 No distinction between real and
personal property. ORS chapters 111, 112, 113, 114,
115, 116 and 117 apply without distinction between real and personal property. [1969
c.591 §119]
114.210
[Repealed by 1969 c.591 §305]
114.215 Devolution of and title to
property. (1) Upon the death of a decedent, title
to the property of the decedent vests:
(a)
In the absence of testamentary disposition, in the heirs of the decedent,
subject to support of spouse and children, rights of creditors, administration
and sale by the personal representative; or
(b)
In the persons to whom it is devised by the will of the decedent, subject to
support of spouse and children, rights of creditors, right of the surviving
spouse to elect against the will, administration and sale by the personal
representative.
(2)
The power of a person to leave property by will, and the rights of creditors,
devisees and heirs to the property of the person, are subject to the
restrictions and limitations expressed or implicit in ORS chapters 111, 112,
113, 114, 115, 116 and 117 to facilitate the prompt settlement of estates.
(3)
Any animal of a value of less than $2,500 that belonged to the decedent and
that was kept by the decedent as a pet need not be listed on the inventory of
the estate. Any family member of the decedent, friend of the decedent or animal
shelter may take custody of the animal immediately upon the death of the
decedent. A family member, friend or animal shelter that takes custody of an
animal under this subsection is entitled to payment from the estate for the
cost of caring for the animal. A family member, friend or animal shelter that
takes custody of an animal under this subsection shall deliver the animal to
the personal representative for the decedent, or to any heir or devisee
entitled to possession of the animal, upon request of the personal
representative, heir or devisee. [1969 c.591 §120; 1999 c.675 §1]
114.220
[Repealed by 1969 c.591 §305]
114.225 Possession and control of decedent’s
estate. A personal representative has a right
to and shall take possession and control of the estate of the decedent, but the
personal representative is not required to take possession of or be accountable
for property in the possession of an heir or devisee unless in the opinion of
the personal representative possession by the personal representative is
reasonably required for purposes of administration. [1969 c.591 §121]
114.230
[Repealed by 1969 c.591 §305]
114.240
[Repealed by 1969 c.591 §305]
114.250
[Repealed by 1969 c.591 §305]
DUTIES AND POWERS OF PERSONAL
REPRESENTATIVES
114.255 Commencement of duties and powers
of personal representative; prior acts. The duties
and powers of a personal representative commence upon the issuance of the
letters of the personal representative. The powers of a personal representative
relate back in time to give the acts of the personal representative occurring
prior to appointment the same effect as those occurring thereafter. A personal
representative may ratify and accept acts on behalf of the estate done by
others where those acts would have been proper for a personal representative. [1969
c.591 §122]
114.260
[Repealed by 1969 c.591 §305]
114.265 General duties of personal representative.
A personal representative is a fiduciary who is under a general duty to and
shall collect the income from property of the estate in the possession of the
personal representative and preserve, settle and distribute the estate in
accordance with the terms of the will and ORS chapters 111, 112, 113, 114, 115,
116 and 117 as expeditiously and with as little sacrifice of value as is
reasonable under the circumstances. [1969 c.591 §123]
114.270
[Repealed by 1969 c.591 §305]
114.275 Personal representative to proceed
without court order; application for authority, approval or instructions.
A personal representative shall proceed with the administration, settlement and
distribution of the estate without adjudication, order or direction of the
court, except as otherwise provided in ORS chapters 111, 112, 113, 114, 115,
116 and 117. However, a personal representative or any interested person may
apply to the court for authority, approval or instructions on any matter
concerning the administration, settlement or distribution of the estate, and
the court, without hearing or upon such hearing as it may prescribe, shall
instruct the personal representative or rule on the matter as may be
appropriate. [1969 c.591 §124]
114.285 Naming or appointment of personal
representative does not discharge claim. The naming or
appointment of any person as personal representative does not discharge any
claim which the decedent had against that person. The claim shall be included
in the inventory. If the person agrees to act as personal representative, the
person is liable for the claim as for so much money in the hands of the person
at the time the claim becomes due and payable; otherwise the person is liable
for the claim as any other debtor of the decedent. [1969 c.591 §125]
114.295 Discharge or devise in will of
claim of testator. The discharge or devise in a
will of a claim of the testator against a personal representative or against
any other person is of no effect as against creditors of the decedent. The
claim shall be included in the inventory and for purposes of administration
shall be regarded and treated as a specific devise of the amount of the claim. [1969
c.591 §126]
114.305 Transactions authorized for personal
representative. Subject to the provisions of ORS
97.130 (2) and (10) and except as restricted or otherwise provided by the will
of the decedent, a document of anatomical gift under ORS 97.965 or by court
order, a personal representative, acting reasonably for the benefit of
interested persons, is authorized to:
(1)
Direct and authorize disposition of the remains of the decedent pursuant to ORS
97.130 and incur expenses for the funeral, burial or other disposition of the
remains in a manner suitable to the condition in life of the decedent. Only
those funeral expenses necessary for a plain and decent funeral and disposition
of the remains of the decedent may be paid from the estate if the assets are
insufficient to pay the claims of the Department of Human Services and the
Oregon Health Authority for the net amount of public assistance, as defined in
ORS 411.010, paid to or for the decedent and for care and maintenance of any
decedent who was at a state institution to the extent provided in ORS 179.610
to 179.770.
(2)
Retain assets owned by the decedent pending distribution or liquidation.
(3)
Receive assets from fiduciaries or other sources.
(4)
Complete, compromise or refuse performance of contracts of the decedent that
continue as obligations of the estate, as the personal representative may
determine under the circumstances. In performing enforceable contracts by the
decedent to convey or lease real property, the personal representative, among
other courses of action, may:
(a)
Execute and deliver a deed upon satisfaction of any sum remaining unpaid or
upon receipt of the note of the purchaser adequately secured; or
(b)
Deliver a deed in escrow with directions that the proceeds, when paid in
accordance with the escrow agreement, be paid to the successors of the
decedent, as designated in the escrow agreement.
(5)
Satisfy written pledges of the decedent for contributions, whether or not the
pledges constituted binding obligations of the decedent or were properly presented
as claims.
(6)
Deposit funds not needed to meet currently payable debts and expenses, and not
immediately distributable, in bank or savings and loan association accounts, or
invest the funds in bank or savings and loan association certificates of
deposit, or federally regulated money-market funds and short-term investment
funds suitable for investment by trustees under ORS 130.750 to 130.775, or
short-term United States Government obligations.
(7)
Abandon burdensome property when it is valueless, or is so encumbered or is in
a condition that it is of no benefit to the estate.
(8)
Vote stocks or other securities in person or by general or limited proxy.
(9)
Pay calls, assessments and other sums chargeable or accruing against or on
account of securities.
(10)
Sell or exercise stock subscription or conversion rights.
(11)
Consent, directly or through a committee or other agent, to the reorganization,
consolidation, merger, dissolution or liquidation of a corporation or other
business enterprise.
(12)
Hold a security in the name of a nominee or in other form without disclosure of
the interest of the estate, but the personal representative is liable for any
act of the nominee in connection with the security so held.
(13)
Insure the assets of the estate against damage and loss, and insure the
personal representative against liability to third persons.
(14)
Advance or borrow money with or without security.
(15)
Compromise, extend, renew or otherwise modify an obligation owing to the
estate. A personal representative who holds a mortgage, pledge, lien or other
security interest may accept a conveyance or transfer of the encumbered asset
in lieu of foreclosure in full or partial satisfaction of the indebtedness.
(16)
Accept other real property in part payment of the purchase price of real
property sold by the personal representative.
(17)
Pay taxes, assessments and expenses incident to the administration of the
estate.
(18)
Employ qualified persons, including attorneys, accountants and investment advisers,
to advise and assist the personal representative and to perform acts of
administration, whether or not discretionary, on behalf of the personal
representative.
(19)
Prosecute or defend actions, claims or proceedings in any jurisdiction for the
protection of the estate and of the personal representative in the performance
of duties as personal representative.
(20)
Prosecute claims of the decedent including those for personal injury or
wrongful death.
(21)
Continue any business or venture in which the decedent was engaged at the time
of death to preserve the value of the business or venture.
(22)
Incorporate or otherwise change the business form of any business or venture in
which the decedent was engaged at the time of death.
(23)
Discontinue and wind up any business or venture in which the decedent was
engaged at the time of death.
(24)
Provide for exoneration of the personal representative from personal liability
in any contract entered into on behalf of the estate.
(25)
Satisfy and settle claims and distribute the estate as provided in ORS chapters
111, 112, 113, 114, 115, 116 and 117.
(26)
Perform all other acts required or permitted by law or by the will of the
decedent. [1969 c.591 §127; 1969 c.597 §278; 1977 c.211 §1; 1981 c.278 §1; 1995
c.157 §16; 1997 c.472 §10; 2001 c.900 §17; 2005 c.348 §126; 2007 c.681 §25;
2011 c.164 §4; 2011 c.720 §59]
114.310
[Repealed by 1969 c.591 §305]
114.315 Right to perfect lien or security
interest. A personal representative has the same
rights to perfect a lien or security interest as the decedent would have had if
the decedent were living. [1969 c.591 §128]
114.320
[Repealed by 1969 c.591 §305]
114.325 Power to sell, mortgage, lease and
deal with property. (1) A personal representative
has power to sell, mortgage, lease or otherwise deal with property of the
estate without notice, hearing or court order.
(2)
Exercise of the power of sale by the personal representative is improper,
except after notice, hearing and order of the court, if:
(a)
The sale is in contravention of the provisions of the will; or
(b)
The property is specifically devised and the will does not authorize its sale;
or
(c)
A bond of the personal representative has been required and filed, the sale
price of the property to be sold exceeds $5,000 and the bond of the personal
representative has not been increased by the amount of cash to be realized on
the sale, unless the court has directed otherwise. [1969 c.591 §129]
114.330
[Repealed by 1969 c.591 §305]
114.333 Transfer of title and interest to
real property by foreign personal representative.
Upon performance of a recorded contract of sale of real property the foreign
personal representative of a deceased vendor whose estate is being administered
in a foreign jurisdiction may convey the title and interest of the vendor in
the property to the vendee or the assignee of the vendee upon recording in the
deed records of the county where the property is located a certified copy of
letters testamentary or of administration. The certificate shall include a
statement that the letters are in effect. [1973 c.506 §28]
114.335 Court order for sale, mortgage or
lease. Upon proof satisfactory to the court by
an interested person that a sale, mortgage or lease of property of the estate
is required for paying support of spouse and children, elective share of
surviving spouse, claims or expenses of administration, or for distribution,
and that the personal representative has failed or declined to act, the court
may order the personal representative to make the sale, mortgage or lease. [1969
c.591 §130]
114.340
[Repealed by 1969 c.591 §305]
114.345 Title conveyed free of claims of
creditors. Property sold, mortgaged or leased by a
personal representative is subject to liens and encumbrances against the
decedent or the estate of the decedent, but is not subject to rights of
creditors of the decedent or liens or encumbrances against the heirs or
devisees of the decedent. The filing and allowance of a claim in an estate
proceeding does not make the claimant a secured creditor. [1969 c.591 §131]
114.350
[Repealed by 1963 c.287 §1]
114.355 Sale or encumbrance to personal
representative voidable; exceptions. (1) Any sale
or encumbrance to the personal representative, the spouse, agent or attorney of
the personal representative, or any corporation or trust in which the personal
representative has more than a one-third beneficial interest, is voidable
unless:
(a)
The transaction was consented to by all interested persons affected thereby; or
(b)
The will expressly authorizes the transaction by the personal representative;
or
(c)
The transaction was made in compliance with another statute or with a contract
or other instrument executed by the decedent.
(2)
The title of a purchaser for value without notice of the circumstances of the
transaction with the personal representative is not affected unless the
purchaser should have known of the defect in the title of the seller. [1969
c.591 §132]
114.360
[Repealed by 1963 c.287 §1]
114.365 Validation of certain sales.
The following are the subject of validating Acts:
(1)
Certain sales of decedent’s real property made prior to 1903 where confirmation
of sale was premature, validated by page 133, section 2, General Laws of Oregon
1903.
(2)
Certain sales of decedent’s property made prior to 1907 under power in will,
validated by chapter 175, General Laws of Oregon 1907.
(3)
Certain sales of decedent’s real property made prior to 1917 where publication
of the notice of sale was improper, validated by section 2, chapter 114,
General Laws of Oregon 1917.
(4)
Certain sales by executors or administrators made prior to 1943, validated by
chapter 26, Oregon Laws 1943. [Formerly 116.835]
114.370
[Repealed by 1963 c.287 §1]
114.375 Nonliability of transfer agents.
A transfer agent or a corporation transferring its own securities incurs no
liability to any person by making a transfer of securities of an estate as
requested or directed by a personal representative. [1969 c.591 §134]
114.385 Persons dealing with personal representative;
protection. A person dealing with or assisting a
personal representative without actual knowledge that the personal
representative is improperly exercising the power of the personal
representative is protected as if the personal representative properly
exercised the power. The person is not bound to inquire whether the personal
representative is properly exercising the power of the personal representative,
and is not bound to inquire concerning the provisions of any will or any order
of court that may affect the propriety of the acts of the personal
representative. No provision in any will or order of court purporting to limit
the power of a personal representative is effective except as to persons with
actual knowledge thereof. A person is not bound to see to the proper
application of estate assets paid or delivered to a personal representative.
The protection expressed in this section extends to a person dealing with or
assisting a personal representative appointed under ORS 113.085 without actual
knowledge that the personal representative was not qualified as provided in ORS
113.095 or that the appointment of the personal representative involved
procedural irregularity. [1969 c.591 §135]
114.395 Improper exercise of power; breach
of fiduciary duty. If the exercise of power by a
personal representative in the administration of an estate is improper, the
personal representative is liable for breach of fiduciary duty to interested
persons for resulting damage or loss to the same extent as a trustee of an
express trust. Exercise of power in violation of a court order is a breach of
duty. Exercise of power contrary to the provisions of the will may be a breach
of duty. [1969 c.591 §136]
114.405 Personal liability of personal
representative. (1) The personal liability of a
personal representative to third parties, as distinguished from fiduciary
accountability to the estate, arising from the administration of the estate is
that of an agent for a disclosed principal.
(2)
A personal representative is not personally liable on contracts properly
entered into in the fiduciary capacity in the course of administration of the
estate unless the personal representative expressly agrees to be personally
liable.
(3)
A personal representative is not personally liable for obligations arising from
possession or control of property of the estate or for torts committed in the
course of administration of the estate unless the personal representative is
personally at fault.
(4)
Claims based upon contracts, obligations and torts of the types described in
subsections (2) and (3) of this section may be allowed against the estate
whether or not the personal representative is personally liable therefor. [1969
c.591 §137]
114.410
[Repealed by 1969 c.591 §305]
114.415 Copersonal representatives; when joint
action required. (1) When two or more persons are
appointed copersonal representatives, the concurrence of all is required for
all acts connected with the administration and distribution of the estate, except:
(a)
Any copersonal representative may receive and receipt for property due the
estate.
(b)
When the concurrence of all cannot readily be obtained in the time reasonably
available for emergency action.
(c)
Where any others have delegated their power to act.
(d)
Where the will provides otherwise.
(e)
Where the court otherwise directs.
(2)
Persons dealing with a copersonal representative who are actually unaware that
another has been appointed to serve with the person are as fully protected as
if the person with whom they dealt had been the sole personal representative. [1969
c.591 §138]
114.420
[Repealed by 1969 c.591 §305]
114.425 Discovery of property, writings
and information. (1) The court may order any
person to appear and give testimony by deposition if it appears probable that
the person:
(a)
Has concealed, secreted or disposed of any property of the estate of a
decedent;
(b)
Has been entrusted with property of the estate of a decedent and fails to
account therefor to the personal representative;
(c)
Has concealed, secreted or disposed of any writing, instrument or document
pertaining to the estate;
(d)
Has knowledge or information that is necessary to the administration of the
estate; or
(e)
As an officer or agent of a corporation, has refused to allow examination of
the books and records of the corporation that the decedent had the right to
examine.
(2)
If a person cited as provided in subsection (1) of this section fails to appear
or to answer questions asked as authorized by the order of the court, the
person is in contempt and may be punished as for other contempts. [1969 c.591 §139;
1979 c.284 §106]
114.430
[Repealed by 1969 c.591 §305]
114.435 Power to avoid transfers.
The property liable for the payment of expenses of administration, funeral
expenses, claims and taxes shall include property transferred by the decedent
with intent to defraud the creditors of the decedent or transferred by any
means which is in law void or voidable as against the creditors of the
decedent. The right to recover that property so far as necessary for the
payment of those expenses, claims and taxes is in the personal representative,
who shall take necessary steps to recover it. That property constitutes general
assets for the payment of creditors. [1969 c.591 §140]
114.440
[Repealed by 1969 c.591 §305]
SMALL ESTATES
114.505 Definitions for ORS 114.505 to
114.560. As used in ORS 114.505 to 114.560:
(1)
“Affiant” means the person or persons signing an affidavit filed under ORS
114.515.
(2)
“Claiming successors” means:
(a)
If the decedent died intestate, the heir or heirs of the decedent, or if there
is no heir, an estate administrator of the Department of State Lands appointed
under ORS 113.235;
(b)
If the decedent died testate, the devisee or devisees of the decedent; and
(c)
Any creditor of the estate entitled to payment or reimbursement from the estate
under ORS 114.545 (1)(c) who has not been paid or reimbursed the full amount
owed such creditor within 60 days after the date of the decedent’s death.
(3)
“Estate” means decedent’s property subject to administration in Oregon. [1973
c.710 §2; 1977 c.239 §1; 1979 c.340 §1; 1979 c.467 §3; 1989 c.228 §1; 2003
c.395 §14; 2005 c.22 §92]
114.515 Value of estate; where affidavit
filed; fee; amended affidavit; supplemental affidavit.
(1) If the estate of a decedent meets the requirements of subsection (2) of
this section, any of the following persons may file an affidavit with the clerk
of the probate court in any county where there is venue for a proceeding
seeking the appointment of a personal representative for the estate:
(a)
One or more of the claiming successors of the decedent.
(b)
If the decedent died testate, any person named as personal representative in
the decedent’s will.
(c)
The Director of Human Services, the Director of the Oregon Health Authority or
an attorney approved under ORS 114.517, if the decedent received public
assistance pursuant to ORS chapter 411 or 414 or received care at an
institution as defined in ORS 179.010, and it appears that the assistance or
the cost of care may be recovered from the estate of the decedent.
(2)
An affidavit under this section may be filed only if:
(a)
The fair market value of the estate is $275,000 or less;
(b)
Not more than $75,000 of the fair market value of the estate is attributable to
personal property; and
(c)
Not more than $200,000 of the fair market value of the estate is attributable
to real property.
(3)
An affidavit under this section may not be filed until 30 days after the death
of the decedent.
(4)
An affidavit filed under the provisions of this section must contain the
information required in ORS 114.525 and shall be made a part of the probate
records. If the affiant is an attorney approved by the Director of Human
Services or the Director of the Oregon Health Authority, a copy of the document
approving the attorney must be attached to the affidavit.
(5)
In determining fair market value under this section, the fair market value of
the entire interest in the property included in the estate shall be used
without reduction for liens or other debts.
(6)
The clerk of the probate court shall charge and collect the fee established
under ORS 21.145 for the filing of any affidavit under this section.
(7)
Any error or omission in an affidavit filed under this section may be corrected
by filing an amended affidavit within four months after the filing of the
affidavit.
(8)
One or more supplemental affidavits may be filed at any time after the filing
of an affidavit under this section for the purpose of including property not
described in the original affidavit. Copies of all previously filed affidavits
must be attached to the supplemental affidavit and all information required in
ORS 114.525 must be reflected in the supplemental affidavit. A supplemental
affidavit may not be filed if by reason of the additional property described in
the supplemental affidavit any limitation imposed by subsection (2) of this
section is exceeded. [1973 c.710 §§3, 8; 1977 c.239 §2; 1979 c.467 §1; 1981
s.s. c.3 §36; 1985 c.368 §1; 1985 c.496 §6; 1987 c.586 §28; 1989 c.228 §2; 1989
c.856 §1; 1995 c.682 §1; 1997 c.447 §1; 1997 c.801 §32; 2003 c.737 §§59,60;
2005 c.122 §§1,2; 2005 c.273 §§1,2; 2005 c.702 §§69,70,71; 2009 c.262 §7; 2009
c.413 §1; 2009 c.828 §10; 2011 c.595 §22]
Note:
Section 2, chapter 413, Oregon Laws 2009, provides:
Sec. 2. The
amendments to ORS 114.515 by section 1 of this 2009 Act apply only to decedents
who die on or after the effective date of this 2009 Act [January 1, 2010].
[2009 c.413 §2]
114.517 Approval of attorneys filing
affidavits for recipients of Medicaid or other public assistance.
The Director of Human Services, or the director’s designated representative, or
the Director of the Oregon Health Authority, or the director’s designated
representative, may approve in writing attorneys who are eligible to file an
affidavit under ORS 114.515 if the decedent received public assistance pursuant
to ORS chapter 411 or 414 or received care at an institution as defined in ORS
179.010, and it appears that the assistance or the cost of care may be
recovered from the estate of the decedent. An attorney approved under this
section does not represent the Director of Human Services or the Director of
the Oregon Health Authority when the attorney files an affidavit under ORS
114.515. [2009 c.262 §6; 2009 c.828 §9]
114.520 Authorization from Department of
State Lands required for filing of affidavit by creditor if decedent dies
intestate and without heirs; rules. (1) If a
decedent dies intestate and without heirs, a creditor of an estate who is a
claiming successor may not file an affidavit under ORS 114.515 unless the
creditor has received written authorization from an estate administrator of the
Department of State Lands appointed under ORS 113.235. Except as provided by
rule adopted by the Director of the Department of State Lands, an estate
administrator shall consent to the filing of an affidavit under ORS 114.515 by
a creditor only if it appears after investigation that the estate is insolvent.
(2)
A creditor of an estate who is subject to subsection (1) of this section may
give written notice to an estate administrator of the Department of State Lands
informing the estate administrator that the creditor intends to file an
affidavit under ORS 114.515. Upon receiving the notice permitted by this
subsection, the estate administrator shall investigate the assets and
liabilities of the estate. Within 30 days after receiving the notice required
by this subsection, the estate administrator shall either:
(a)
Give written authorization to the creditor for the filing of an affidavit by
the creditor under ORS 114.515; or
(b)
Inform the creditor that the Department of State Lands will file an affidavit
as claiming successor under ORS 114.515.
(3)
If a decedent dies intestate and without heirs, a creditor of an estate who is
a claiming successor and who files an affidavit under ORS 114.515 must notate
at the top of the affidavit that the affidavit is being filed by a creditor of
the estate. If the affidavit contains the notation required by this subsection,
the clerk of the probate court may not accept the affidavit for filing unless
there is attached to the affidavit written authorization for the filing of the
affidavit by the creditor from an estate administrator of the Department of
State Lands. The written authorization may be a copy of a memorandum of an
interagency agreement between the Department of State Lands and another state
agency. [1997 c.88 §2; 2003 c.395 §15]
114.525 Content of affidavit.
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 and the interest, if any, that will escheat;
(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 that the 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 Department of Human Services and the Oregon Health Authority;
(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 that 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. [1973 c.710 §6; 1977 c.239 §3; 1979 c.340 §2; 1989 c.228 §3;
1991 c.191 §3; 1995 c.453 §1; 2001 c.104 §35; 2001 c.620 §2; 2001 c.900 §18a;
2003 c.196 §1; 2003 c.395 §16; 2005 c.22 §93; 2009 c.595 §79]
114.535 Transfer of decedent’s property to
affiant; proceedings to compel transfer. (1) Not
sooner than 10 days after the filing of an affidavit under ORS 114.515, the
affiant may deliver a certified copy of the affidavit to any person who was
indebted to the decedent or who has possession of personal property belonging
to the estate. Except as provided in this section, upon receipt of the copy,
the person shall pay, transfer, deliver, provide access to and allow possession
of the personal property to the affiant.
(2)
Subject to ORS 114.537, if a copy of an affidavit is delivered under subsection
(1) of this section to a person that controls access to personal property
belonging to the estate of the decedent, including personal property held in a
safe deposit box for which the decedent was the sole lessee or the last
surviving lessee, the person shall:
(a)
Provide the affiant with access to the decedent’s personal property; and
(b)
Allow the affiant to take possession of the personal property.
(3)
Subject to ORS 114.537, if a copy of an affidavit is delivered under subsection
(1) of this section to a person who has received property of the decedent under
ORS 446.616, 708A.430, 723.466 or 803.094, or a similar statute providing for
the transfer of property of an estate that is not being probated, the person
shall pay, transfer, deliver, provide access to or allow possession of the
property to the affiant if the person would be required to pay, transfer,
deliver, provide access to or allow possession of the property to a personal
representative of the estate.
(4)
Any person that pays, transfers, delivers, provides access to or allows
possession of property of a decedent in the manner provided by this section is
discharged and released from any liability or responsibility for the property
in the same manner and with the same effect as if the property had been
transferred, delivered or paid to a personal representative of the estate of
the decedent.
(5)
A transfer agent of any corporate security registered in the name of the
decedent shall change the registered ownership on the books of the corporation
to the person entitled thereto on presentation of a certified copy of the
affidavit filed under ORS 114.515.
(6)
If a person to whom an affidavit is delivered refuses to pay, deliver,
transfer, provide access to or allow possession of any personal property as
required by this section, the property may be recovered or payment, delivery,
transfer of or access to the property may be compelled upon proof of the
transferee’s entitlement in a proceeding brought for the purpose by or on
behalf of the transferee.
(7)
If the affidavit was signed by the Director of Human Services, the Director of
the Oregon Health Authority or an attorney approved under ORS 114.517, the
Director of Human Services, the Director of the Oregon Health Authority or the
attorney may certify a copy of the affidavit for the purposes described in this
section. [1973 c.710 §4; 1979 c.340 §3; 1989 c.228 §4; 1991 c.67 §23; 1997
c.631 §404; 2003 c.196 §2; 2003 c.655 §60; 2009 c.541 §4; 2009 c.595 §80; 2009
c.828 §11; 2011 c.422 §3]
114.537 Safe deposit boxes.
(1) If a claiming successor or other person who is eligible to file an
affidavit under ORS 114.515 is aware that the decedent was the sole lessee or
the last surviving lessee of a safe deposit box at the time of the decedent’s
death, the claiming successor or other person may not file an affidavit under ORS
114.515 until the person requests an inventory of the box under ORS 708A.655,
if the lessor of the box is an Oregon operating institution as defined in ORS
706.008, or under ORS 723.844, if the lessor of the box is a credit union as
defined in ORS 723.008. Upon receiving the request, the lessor of the box shall
cause an inventory of the contents of the box to be made. The lessor shall
retain the original inventory in the box and shall provide a copy of the
inventory to the person requesting the inventory. The person requesting the
inventory shall take the contents of the box into consideration in determining
whether the estate of the decedent is within the limits prescribed by ORS
114.515 (2). If an affidavit under ORS 114.515 is filed by the person, the
value of the contents of the box shall be stated in the affidavit.
(2)
If a person who has filed an affidavit under ORS 114.515 becomes aware after
the filing of the affidavit that the decedent was the sole lessee or the last
surviving lessee of a safe deposit box at the time of the decedent’s death, the
person shall promptly request an inventory of the box under ORS 708A.655, if
the lessor of the box is an Oregon operating institution as defined in ORS
706.008, or under ORS 723.844, if the lessor of the box is a credit union as
defined in ORS 723.008. Upon receiving the request, the lessor of the box shall
cause an inventory of the contents of the box to be made. The lessor shall
retain the original inventory in the box and shall provide a copy of the inventory
to the person requesting the inventory. If the estate of the decedent remains
within the limits prescribed by ORS 114.515 (2) after consideration of the
value of the contents of the box, the person shall file an amended affidavit
under ORS 114.515. Upon providing the lessor of the box with a certified copy
of the amended affidavit, the lessor shall allow the person to take possession
of the contents of the box. If the estate of the decedent exceeds the limits
prescribed by ORS 114.515 (2) after consideration of the value of the contents
of the box, the person may not file an amended affidavit under ORS 114.515 and
shall file notice with the court that the estate of the decedent is not subject
to ORS 114.505 to 114.560 and shall serve a copy of the notice on the lessor of
the box. The lessor of the box shall thereafter deliver the contents of the box
to the personal representative for the decedent, or to such other person as may
be provided for under the terms of the lease of the box. [2011 c.422 §2]
114.540 Procedure for claims; disallowance;
summary determination. (1) A claim against an estate
with respect to which an affidavit is filed under ORS 114.515 may be presented
to the affiant within four months after the affidavit was filed. If an amended
affidavit is filed under ORS 114.515 (7), claims against the estate must be
filed within four months after the filing of the amended affidavit. If a
supplemental affidavit is filed under ORS 114.515 (8), claims against the
estate must be filed within four months after the filing of the supplemental
affidavit. Each claim presented to the affiant must include the information
required by ORS 115.025.
(2)
A claim presented to the affiant shall be considered allowed as presented
unless within 60 days after the date of presentment of the claim the affiant
mails or delivers a notice of disallowance of the claim in whole or in part to
the claimant and any attorney for the claimant. A notice of disallowance of a
claim shall inform the claimant that the claim has been disallowed in whole or
in part and, to the extent disallowed, will be barred unless:
(a)
The claimant proceeds as provided in subsection (3) of this section; or
(b)
A personal representative is appointed within the time allowed under ORS
114.555.
(3)
A creditor of the estate whose claim has been presented within the time
permitted by subsection (1) of this section and disallowed by the affiant may
within 30 days after the date of mailing or delivery of the notice of
disallowance file with the probate court a petition for summary determination
of the claim by the court. A creditor of the decedent whose claim is listed in
the affidavit as disputed may within four months after the filing of the
affidavit file with the probate court a petition for summary determination of
the creditor’s claim by the court. The court shall hear the matter without a
jury, after notice to the creditor and affiant, and any interested person may
be heard in the proceeding. The claim may be proved as provided in ORS 115.195
(2). Upon the hearing the court shall determine the claim in a summary manner
and shall make an order allowing or disallowing the claim in whole or in part.
If the court allows the claim in whole or in part, the order shall direct the
affiant, to the extent of property of the estate allocable to the payment of
the claim pursuant to ORS 115.125, or any claiming successor to whom payment,
delivery or transfer has been made under ORS 114.505 to 114.560 as a person
entitled thereto as disclosed in the affidavit, to the extent of the value of
the property received, to pay to the creditor the amount so allowed. No appeal
may be taken from the order of the court made upon the summary determination. [1989
c.228 §7; 2003 c.523 §3; 2005 c.122 §4]
114.545 Duties of person filing affidavit;
payment of claims; conveyance of real property; liability of person to whom
property transferred or payment made. (1) The
affiant:
(a)
Shall take control of the property of the estate coming into the possession of
the affiant.
(b)
Within 30 days after filing the affidavit shall mail, deliver or cause to be
recorded each instrument which the affidavit states will be mailed, delivered
or recorded.
(c)
From and to the extent of the property of the estate, shall pay or reimburse
any person who has paid:
(A)
Expenses described in ORS 115.125 (1)(b) and (c) and listed in the affidavit;
(B)
Claims listed in the affidavit as undisputed;
(C)
Allowed claims presented to the affiant within the time permitted by ORS
114.540; and
(D)
Claims which the probate court directs the affiant to pay.
(d)
Shall pay claims and expenses under paragraph (c) of this subsection in the
order of priority prescribed by ORS 115.125.
(e)
May transfer or sell any vehicle that is part of the estate before the completion
of the period established under ORS 114.555 if the affiant complies with the
requirements established by the Department of Transportation for such purposes
under ORS 803.094.
(f)
May convey any real or personal property that is part of the estate before the
completion of the period established under ORS 114.555, provided that each heir
or devisee succeeding to the interest conveyed joins in the conveyance and that
any proceeds of sale, net of 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, shall become a part of the estate subject to ORS 114.505 to 114.560.
If the property is a manufactured structure as defined in ORS 446.561, the
affiant must assign interest in the structure as provided in ORS 446.616. Any
conveyance to a purchaser in good faith and for a valuable consideration made
by the affiant and the heir or devisee succeeding to the interest conveyed, or
made by the heir or devisee succeeding to the interest conveyed after
completion of the period established under ORS 114.555, conveys the interest
stated in the conveyance free of any interest of the claiming successors, and
the purchaser has no duty with respect to application of the consideration paid
for the conveyance.
(2)
Any claiming successor to whom payment, delivery or transfer is made under ORS
114.505 to 114.560 as a person entitled thereto as disclosed in the affidavit
is personally answerable and accountable:
(a)
To the extent of the value of the property received, to creditors of the estate
to the extent such creditors are entitled to payment under subsection (1) of
this section; and
(b)
To any personal representative of the estate of the decedent thereafter
appointed.
(3)
The affiant shall cause to be recorded in the deed records of any county in
which real property belonging to the decedent is situated an affiant or
claiming successor’s deed executed in the manner required by ORS chapter 93.
(4)
For a manufactured structure as defined in ORS 446.561 belonging to a decedent
and assessed as personal property, the affiant shall file with the Department
of Consumer and Business Services the necessary information for recording the
successor’s interest in the manufactured structure on an ownership document. [1973
c.710 §7; 1979 c.340 §4; 1985 c.300 §5; 1989 c.148 §6; 1989 c.228 §5; 1991
c.191 §4; 2003 c.655 §61]
114.550 Summary review of administration
of estate; hearing. The affiant or any claiming
successor of the estate who has not been paid the full amount owed such
claiming successor may, within two years after the filing of an affidavit under
ORS 114.515, file with the probate court a petition for summary review of
administration of the estate. A creditor may not file a petition under this
section if the creditor received a copy of an affidavit filed under ORS 114.515
delivered or mailed to such creditor within 30 days after the date the
affidavit was filed, the creditor was shown as a disputed creditor in the
affidavit, and the creditor has not filed a petition for summary determination
under ORS 114.540. The court shall hear the matter without a jury, after notice
to the claiming successor and the affiant, and any interested person may be
heard in the proceeding. Upon the hearing the court shall review administration
of the estate in a summary manner and may order the affiant to sell property of
the estate and pay creditors, to pay creditors of the estate from property of
the estate or of the affiant, or to distribute property of the estate to the claiming
successors, or may order any person who has received property of the estate to
pay amounts owed to claiming successors of the estate in whole or in part. [1989
c.228 §8; 2003 c.196 §3]
114.552 Filing fees.
(1) A person filing a petition for summary determination under ORS 114.540 or a
petition for summary review of administration of estate under ORS 114.550, or
any other appearance in a proceeding under ORS 114.505 to 114.560, must pay the
filing fee established under ORS 21.135.
(2)
If at any time after the filing of an affidavit under ORS 114.515 a petition
for appointment of a personal representative is filed for the same estate, the
person filing the petition must pay the fees established under ORS 21.170. [2011
c.595 §25]
114.555 Effect of failure to appoint
personal representative. If a personal representative is
not appointed within four months after the filing of the affidavit authorized
by ORS 114.515, the interest of the decedent in all of the property described
in the affidavit is transferred to the person or persons shown by the affidavit
to be entitled thereto, and any other claims against the property are barred,
except:
(1)
As provided in ORS 114.540, 114.545 and 114.550; and
(2)
For the purposes of a surviving spouse’s claim for an elective share in the
manner provided by ORS 114.600 to 114.725. [1973 c.710 §5; 1977 c.239 §4; 1989
c.228 §10; 2009 c.574 §21]
114.560 Exclusive remedy.
The exclusive remedy of a person injured by the failure of the affiant or any
claiming successor to comply with the requirements of ORS 114.505 to 114.560
shall be a summary determination under ORS 114.540, a summary review of
administration under ORS 114.550, or appointment of a personal representative
for the estate within the time allowed by ORS 114.555. [1989 c.228 §9]
ELECTIVE SHARE FOR DECEDENTS WHO DIE ON
OR AFTER JANUARY 1, 2011
(Generally)
114.600 Elective share generally.
(1) If a decedent is domiciled in this state on the decedent’s date of death,
and the decedent is survived by a spouse, the surviving spouse of the decedent
may elect to receive the elective share provided by ORS 114.600 to 114.725. An
election under ORS 114.600 to 114.725 must be made before the death of the
surviving spouse by the filing of a motion or petition in the manner described
in ORS 114.610. If a motion or petition is filed within the time specified in
ORS 114.610, and the surviving spouse dies before payment of the elective
share, the personal representative for the estate of the surviving spouse may
take all steps necessary to secure payment of the elective share under ORS
114.600 to 114.725.
(2)
Any amounts received under ORS 114.015 are in addition to the elective share
provided for in ORS 114.600 to 114.725.
(3)
If a decedent dies while domiciled outside this state, any right of a surviving
spouse of the decedent to take an elective share in property in this state is
governed by the law of the decedent’s domicile at death. [2009 c.574 §2]
Note:
Section 23, chapter 574, Oregon Laws 2009, provides:
Sec. 23.
Sections 2 to 20 of this 2009 Act [114.600 to 114.725] and the amendments to
ORS 114.555 by section 21 of this 2009 Act apply only to the surviving spouses
of decedents who die on or after the effective date of this 2009 Act [January
1, 2011]. Notwithstanding the repeal of ORS 114.105, 114.115, 114.125, 114.135,
114.145, 114.155 and 114.165 by section 25 of this 2009 Act, the rights of a
surviving spouse of a decedent who dies before the effective date of this 2009
Act shall continue to be governed by the law in effect immediately before the
effective date of this 2009 Act. [2009 c.574 §23]
114.605 Amount of elective share.
(1) Except as otherwise provided in ORS 114.600 to 114.725, the amount of the
elective share is a dollar amount determined by multiplying the augmented
estate by the percentage provided in this section. All properties included in
the augmented estate shall be determined as provided in ORS 114.600 to 114.725.
A court of this state has authority to order distribution under ORS 114.600 to
114.725 of all properties included in the augmented estate under ORS 114.600 to
114.725.
(2)
The elective share of a surviving spouse is determined by the length of time
the spouse and decedent were married to each other, in accordance with the
following schedule:
If the decedent The elective-share
and the spouse percentage is:
were married to
each other:
Less than 2 years 5% of the
augmented
estate
2 years but less
than 3 years 7% of the
augmented
estate
3 years but less
than 4 years 9% of the
augmented
estate
4 years but less
than 5 years 11% of the
augmented
estate
5 years but less
than 6 years 13% of the
augmented
estate
6 years but less
than 7 years 15% of the
augmented
estate
7 years but less
than 8 years 17% of the
augmented
estate
8 years but less
than 9 years 19% of the
augmented
estate
9 years but less
than 10 years 21% of the
augmented
estate
10 years but less
than 11 years 23% of the
augmented
estate
11 years but less
than 12 years 25% of the
augmented
estate
12 years but less
than 13 years 27% of the
augmented
estate
13 years but less
than 14 years 29% of the
augmented
estate
14 years but less
than 15 years 31% of the
augmented
estate
15 years or more33% of the
augmented
estate
[2009
c.574 §3]
114.610
Manner of making election. (1) A surviving spouse may claim
the elective share only by:
(a) Filing a petition for the appointment
of a personal representative for the estate of the deceased spouse, and a
motion for the exercise of the election as described in paragraph (b) of this
subsection, within nine months after the spouse dies.
(b) Filing a motion for the exercise of
the election in a probate proceeding commenced for the estate of the deceased
spouse under ORS 113.035. The motion must be filed not later than nine months
after the death of the decedent. A copy of the motion must be served on the
personal representative, on all persons who would be entitled to receive
information under ORS 113.145 and on all distributees and recipients of
portions of the augmented estate known to the surviving spouse who can be
located with reasonable efforts. A surviving spouse may withdraw a motion for
an election filed under this subsection at any time before the court enters an
order granting the motion.
(c) Filing a petition for the exercise of
the election under ORS 114.720 (1) within nine months after the death of the
decedent.
(2) If a court determines that the
elective share is payable, the court shall determine the amount of the elective
share and shall order its payment pursuant to the priorities established under
ORS 114.700. If it appears that property has not come into the possession of
the personal representative, or has been distributed by the personal
representative, the court nevertheless shall fix the liability of any person
who has any interest in the property or who has possession thereof, whether as
trustee or otherwise. [2009 c.574 §4]
114.615
Payment of elective share. In determining whether any
payment is required to a surviving spouse in satisfaction of the elective share
provided for in ORS 114.605, the court shall consider the values of the
decedent’s probate estate, the decedent’s nonprobate estate, the surviving
spouse’s estate, the decedent’s probate transfers to the surviving spouse and
the decedent’s nonprobate transfers to the surviving spouse. If the court
determines that the aggregate value of the surviving spouse’s estate, the
decedent’s probate transfers to the surviving spouse and the decedent’s
nonprobate transfers to the surviving spouse do not satisfy the amount of the
elective share, any additional amount required to satisfy the elective share
shall be paid out of the decedent’s probate estate and the decedent’s
nonprobate estate in the manner provided by ORS 114.700. [2009 c.574 §5]
114.620
Waiver of right to elect and other rights. (1)
The right of election under ORS 114.600 to 114.725 may be waived, wholly or
partially, before or after marriage by a written contract, agreement or waiver
signed by the surviving spouse.
(2) Unless specifically provided
otherwise, a written agreement that waives all rights in the property or estate
of a present or prospective spouse, using the phrase “all rights” or other
equivalent language, or a complete property settlement entered into after or in
anticipation of separation or divorce is a waiver of all rights to an elective
share under ORS 114.600 to 114.725 by each spouse in the property of the other
and a renunciation by each of all benefits that would otherwise pass to each
spouse from the other by intestate succession or by virtue of any will executed
before the written agreement or property settlement. [2009 c.574 §6]
Note:
Section 24, chapter 574, Oregon Laws 2009, provides:
Sec.
24. A written contract, agreement or waiver
entered into before the effective date of this 2009 Act [January 1, 2011],
whether prenuptial or post-nuptial, that waives in whole or in part the
elective share of a surviving spouse is effective as a waiver under section 6
of this 2009 Act [114.620] unless a court determines that the contract,
agreement or waiver is not enforceable under the standards of section 6 of this
2009 Act. Section 6 (2) of this 2009 Act applies to contracts, agreements or
waivers entered into before, on or after the effective date of this 2009 Act.
[2009 c.574 §24]
114.625
Who may exercise right of election. The elective
share may be personally claimed by a surviving spouse, or may be claimed on the
surviving spouse’s behalf by a conservator, guardian or agent under the
authority of a power of attorney. [2009 c.574 §7]
(Augmented
Estate)
114.630
Augmented estate. (1) Except as otherwise provided
in ORS 114.600 to 114.725, the augmented estate consists of all of the
following property, whether real or personal, movable or immovable, or tangible
or intangible, wherever situated:
(a) The decedent’s probate estate as
described in ORS 114.650.
(b) The decedent’s nonprobate estate as
described in ORS 114.660 and 114.665.
(c) The surviving spouse’s estate, as
described in ORS 114.675.
(2) The value attributable to any property
included in the augmented estate under ORS 114.600 to 114.725 must be reduced
by the amount of all enforceable claims against the property and all
encumbrances on the property. Any exemption or deduction that is allowed for
the purpose of determining estate or inheritance taxes on the augmented estate
and that is attributable to the marriage of the decedent and the surviving
spouse inures to the benefit of the surviving spouse as provided in ORS 116.343
(2).
(3) The value attributable to any property
included in the augmented estate includes the present value of any present or
future interest and the present value of amounts payable under any trust, life
insurance settlement option, annuity contract, public or private pension,
disability compensation, death benefit or retirement plan, or any similar
arrangement, exclusive of the federal Social Security Act.
(4) The value attributable to property
included in the augmented estate is equal to the value that would be used for
purposes of federal estate and gift tax laws if the property had passed without
consideration to an unrelated person on the date that the value of the property
is determined for the purposes of ORS 114.600 to 114.725.
(5) In no event may the value of property
be included in the augmented estate more than once. [2009 c.574 §8; 2011 c.305 §4]
Note:
Section 7, chapter 305, Oregon Laws 2011, provides:
Sec.
7. The amendments to ORS 114.630, 114.635,
114.660, 114.665, 114.675 and 114.700 by sections 1 to 6 of this 2011 Act apply
to the surviving spouses of all decedents who die on or after the effective
date of this 2011 Act [June 9, 2011]. [2011 c.305 §7]
114.635
Exclusions from augmented estate. The augmented
estate does not include:
(1) Any value attributable to future
enhanced earning capacity of either spouse;
(2) Any property that is irrevocably
transferred before the death of the decedent spouse;
(3) Any property that is transferred on or
after the date of the death of the decedent spouse with the written joinder or
written consent of the surviving spouse;
(4) Any property that is community
property under ORS 112.705 to 112.775 or under the laws of the jurisdiction
where the property is located; or
(5) Any property that is held by either
spouse solely in a fiduciary capacity. [2009 c.574 §9; 2011 c.305 §1]
Note:
See note under 114.630.
(Decedent’s
Probate Estate)
114.650
Decedent’s probate estate. For purposes of ORS 114.600 to
114.725, a decedent’s probate estate is the value of all estate property that
is subject to probate and that is available for distribution after payment of
claims and expenses of administration. A decedent’s probate estate includes all
property that could be administered under a small estate affidavit pursuant to
ORS 114.505 to 114.560. A decedent’s probate estate does not include any
property that constitutes a probate transfer to the decedent’s surviving spouse
under ORS 114.685. [2009 c.574 §10]
(Decedent’s
Nonprobate Estate)
114.660
Decedent’s nonprobate estate. For purposes
of ORS 114.600 to 114.725, a decedent’s nonprobate estate consists of the
property described in ORS 114.665 that is not included in the decedent’s
probate estate and that does not constitute a transfer to the decedent’s surviving
spouse. The value of the decedent’s nonprobate estate is reduced by all debts
and liabilities of the decedent that are not paid in probate, and by all costs
of administering the decedent’s nonprobate estate that are incurred for the
purpose of settling claims against the nonprobate estate and distributing the
nonprobate estate property to the persons entitled to that property. [2009
c.574 §11; 2011 c.305 §2]
Note:
See note under 114.630.
114.665
Decedent’s nonprobate estate; property owned immediately before death.
(1) A decedent’s nonprobate estate includes the decedent’s fractional interest
in property held by the decedent in any form of survivorship tenancy
immediately before the death of the decedent. The amount included in the
decedent’s nonprobate estate under the provisions of this subsection is the
value of the decedent’s fractional interest, to the extent the fractional
interest passes by right of survivorship at the decedent’s death to a surviving
tenant other than the decedent’s surviving spouse.
(2) A decedent’s nonprobate estate
includes the decedent’s ownership interest in property or accounts held
immediately before death under a payable on death designation or deed, under a
transfer on death registration or in co-ownership registration with a right of
survivorship. The amount included in the decedent’s nonprobate estate under the
provisions of this subsection is the value of the decedent’s ownership
interest, to the extent the decedent’s ownership interest passed at the
decedent’s death to any person other than the decedent’s estate or surviving
spouse or for the benefit of any person other than the decedent’s estate or
surviving spouse.
(3) A decedent’s nonprobate estate
includes any property owned by the decedent immediately before death for which
the decedent had the power to designate a beneficiary, but only to the extent
that the decedent could have designated the decedent, or the spouse of the
decedent, as the beneficiary.
(4) A decedent’s nonprobate estate
includes any property that immediately before death the decedent could have
acquired by the exercise of a revocation, without regard to whether the
revocation was required to be made by the decedent alone or in conjunction with
other persons.
(5) A decedent’s nonprobate estate does
not include the present value of any life insurance policy payable on the death
of the decedent. [2009 c.574 §12; 2011 c.305 §3]
Note:
See note under 114.630.
(Surviving
Spouse’s Estate)
114.675
Surviving spouse’s estate. (1) For purposes of ORS 114.600
to 114.725, a surviving spouse’s estate is:
(a) The decedent’s probate transfers to
the spouse, as described in ORS 114.685.
(b) The decedent’s nonprobate transfers to
the spouse, as described in ORS 114.690.
(c) All other property of the spouse, as
determined on the date of the decedent’s death.
(d) Any property that would have been
included under paragraph (a), (b) or (c) of this subsection except for the
exercise of a disclaimer by the spouse after the death of the decedent.
(2)(a) For the purpose of establishing the
value of the surviving spouse’s estate under this section, the estate includes
100 percent of the corpus of any trust or portion of a trust from which all
income must be distributed to or for the benefit of the surviving spouse during
the life of the surviving spouse, and for which the surviving spouse has a
general power of appointment that the surviving spouse, acting alone, may
exercise, during the surviving spouse’s lifetime or at death of the surviving
spouse, to or for the benefit of the surviving spouse or the surviving spouse’s
estate.
(b) For the purpose of establishing the
value of the surviving spouse’s estate under this section, the estate includes
100 percent of the corpus of a trust or portion of a trust created by the
decedent spouse, if all income from the trust or portion of a trust must be
distributed to or for the benefit of the surviving spouse during the life of
the surviving spouse and the trust principal may be accessed only by the
trustee or the spouse and only for the purpose of providing for the health,
education, support or maintenance of the spouse.
(c) For the purpose of establishing the
value of the surviving spouse’s estate under this section, the estate includes
50 percent of the corpus of a trust or portion of a trust created by the
decedent spouse if all income from the trust or portion of a trust must be
distributed to or for the benefit of the surviving spouse during the life of
the surviving spouse and neither the trustee nor the spouse has the power to
distribute trust principal to or for the benefit of the surviving spouse or any
other person during the spouse’s lifetime.
(d) For the purposes of this section, all
amounts distributed to a surviving spouse from a unitrust that meets the requirements
of ORS 129.225 (4) shall be considered income.
(e) The value of the surviving spouse’s
beneficial interest in a trust other than a trust described in paragraphs (a)
to (d) of this subsection shall be determined under the provisions of ORS
114.630 (3) and (4). [2009 c.574 §13; 2011 c.305 §5]
Note:
See note under 114.630.
(Decedent’s
Probate Transfers to Spouse)
114.685
Decedent’s probate transfers to surviving spouse.
The decedent’s probate transfers to the decedent’s surviving spouse include all
estate property that is subject to probate, that passes to the surviving spouse
by testate or intestate succession, and that is available for distribution to
the surviving spouse after payment of claims and expenses of administration. [2009
c.574 §14]
(Decedent’s
Nonprobate Transfers to Spouse)
114.690
Decedent’s nonprobate transfers to surviving spouse.
(1) Except as provided in subsection (2) of this section, the decedent’s
nonprobate transfers to the decedent’s surviving spouse include all property
that passed outside probate at the decedent’s death from the decedent to the
surviving spouse by reason of the decedent’s death, including:
(a) The decedent’s fractional interest in
property held in any form of survivorship tenancy, as described in ORS 114.665
(1), to the extent that the decedent’s fractional interest passed to the
surviving spouse as surviving tenant;
(b) The decedent’s ownership interest in
property or accounts held in co-ownership registration with the right of
survivorship, to the extent that the decedent’s ownership interest passed to
the surviving spouse as surviving co-owner;
(c) Insurance proceeds payable to the
surviving spouse by reason of the death of the decedent; and
(d) All other property that would have
been included in the decedent’s nonprobate estate under ORS 114.660 and 114.665
had it passed to or for the benefit of a person other than the decedent’s
spouse.
(2) The decedent’s nonprobate transfers to
the decedent’s surviving spouse do not include any property passing to the
surviving spouse under the federal Social Security Act. [2009 c.574 §15]
(Payment
of Elective Share)
114.700
Priority of sources from which elective share payable.
(1) The surviving spouse’s estate, as described in ORS 114.675, shall be
applied first to satisfy the dollar amount of the elective share and to reduce
or eliminate any contributions due from the decedent’s probate estate and
recipients of the decedent’s nonprobate transfers to others.
(2) If after application of the surviving
spouse’s estate under subsection (1) of this section the elective share amount
is not fully satisfied, the following amounts shall be applied to the extent
necessary to satisfy the balance of the elective share amount:
(a) Amounts included in the decedent’s probate
estate.
(b) Amounts included in the decedent’s
nonprobate estate under ORS 114.600 to 114.725.
(3) Unless otherwise provided by a will,
trust or other instrument executed by the decedent spouse:
(a) Amounts applied against the
unsatisfied balance of an elective share amount under subsection (2) of this
section shall be collected from both the probate and nonprobate estates of the
decedent in a manner that ensures that the probate and nonprobate estates bear
proportionate liability for the amounts necessary to pay the elective share
amount.
(b) Amounts applied against the
unsatisfied balance of an elective share amount under subsection (2) of this
section out of the probate estate of the decedent must be apportioned among all
recipients of the decedent’s probate estate in a manner that ensures that each
recipient bears liability for a portion of the payment that is proportionate to
the recipient’s interest in the decedent’s probate estate.
(c) Amounts applied against the
unsatisfied balance of an elective share amount under subsection (2) of this
section out of the nonprobate estate of the decedent must be apportioned among
all recipients of the decedent’s nonprobate estate in a manner that ensures
that each recipient bears liability for a portion of the payment that is
proportionate to the recipient’s interest in the decedent’s nonprobate estate.
(4) All apportionments under this section
between the probate and nonprobate estates of the decedent and among the
recipients of those estates shall be based on the assets of each estate that
are subject to distribution by the court under the provisions of ORS 114.600 to
114.725.
(5) In any proceeding described in ORS
114.610, the court may allocate the cost of storing and maintaining property
included in the augmented estate pending distribution of the property. [2009
c.574 §16; 2011 c.305 §6]
Note:
See note under 114.630.
114.705
Liability of recipients of decedent’s nonprobate estate.
(1) The following recipients of the decedent’s nonprobate estate are the only
persons who may be required to make a proportional contribution toward the
satisfaction of the surviving spouse’s elective share under the provisions of
ORS 114.600 to 114.725:
(a) An original recipient of all or part
of the decedent’s nonprobate estate.
(b) A person who has received all or part
of the decedent’s nonprobate estate for less than fair consideration from an
original recipient of the property, to the extent the person has the property
or proceeds of the property.
(2) A recipient of all or part of the
decedent’s nonprobate estate who is required to make a proportional
contribution toward the satisfaction of the surviving spouse’s elective share
may elect to make the contribution by returning property determined to be
adequate to satisfy the recipient’s obligation or by paying money equal to the
value of that property. [2009 c.574 §17]
114.710
Protective order. (1) If a surviving spouse has
filed a motion or petition described in ORS 114.610, the surviving spouse or
any person who has received any part of the decedent’s probate or nonprobate
estate may request, at any time after the filing, that the court issue a
protective order. The protective order shall prohibit or impose conditions on
the transfer of property included in the augmented estate. The protective order
may be served on any person holding property included in the augmented estate.
(2) Upon the filing of a motion or
petition under ORS 114.610, any person who has received any part of the
decedent’s probate or nonprobate estate and who is required to make a
contribution toward the satisfaction of the elective share may file a motion or
petition with the court requesting a determination of the amount of the person’s
proportionate contribution toward the satisfaction of the elective share. Upon
that determination being made, the person may deposit with the court the amount
so determined in the form of money or a bond or other security. The deposit
discharges the person from all claims relating to the satisfaction of the elective
share. In lieu of deposit with the court under this subsection the court may
require that the money or security be deposited with a person designated by the
court.
(3) If a surviving spouse has filed a
motion or petition described in ORS 114.610, and a notice of pendency of action
under ORS 93.740 is recorded, a temporary restraining order is issued under
ORCP 79, or provisional process is issued under ORCP 83, an owner of the
property that is subject to the notice, order or process may seek relief from
the notice, order or process by providing a bond or other security to the court
in such amount as the court may determine adequate to satisfy the person’s
proportionate contribution toward the satisfaction of the elective share. [2009
c.574 §18]
(Procedure)
114.720
Proceedings to claim elective share. (1) A
surviving spouse may claim the elective share by filing a petition for the
exercise of the election in a circuit court within the time allowed by ORS
114.610 (1)(c). Venue for the proceeding is as provided in ORS 113.015. A copy
of the petition must be served on all persons who would be entitled to receive
information under ORS 113.145 and on all distributees and recipients of
portions of the augmented estate known to the surviving spouse who can be located
with reasonable efforts. The fee for filing a petition under this subsection
shall be the amount prescribed in ORS 21.170, based on the value of the
nonprobate estate. The Oregon Rules of Civil Procedure apply to proceedings
under this section. Any party to a proceeding under this section may request
that the pleadings and records in the proceeding be sealed.
(2) A surviving spouse may withdraw a
petition filed under this section at any time before entry of a judgment on the
petition.
(3) If a probate proceeding is commenced
for the estate of the deceased spouse under ORS 113.035 either before or after
a petition is filed under this section, the court shall consolidate the
proceedings under this section with the probate proceedings. [2009 c.574 §19;
2011 c.595 §125]
114.725
Effect of separation. If the decedent and the
surviving spouse were living apart at the time of the decedent’s death, whether
or not there was a judgment of legal separation, the court may deny any right
to an elective share or may reduce the elective share to such amount as the
court determines reasonable and proper. In deciding if all or part of the
elective share should be denied, the court shall consider whether the marriage
was a first or subsequent marriage for either or both of the spouses, the
contribution of the surviving spouse to the property of the decedent in the
form of services or transfers of property, the length and cause of the
separation and any other relevant circumstances. [2009 c.574 §20]
_______________