Frequently Asked Questions about Probate in Oregon
Does Oregon require probate?
Oregon requires an estate to go through probate if a person dies owning property solely in their name.
Do you have to have probate if there is no will?
Yes. Probate is required with a Will (which is your ticket to get into probate court) and without a will (in which case who receives the property in your estate is determined by the state’s “intestacy” laws).
What triggers probate in Oregon?
Probate in Oregon is triggered when a person dies owning property in their name, that is not otherwise designated through a probate substitute (i.e. payable on death or transfer on death designation, holding property joint with survivorship, holding property with beneficiary designations, or holding real property with a Transfer on Death Deed). It does not matter is a person has a Will or does not have a Will, the estate is still going to go through probate if there is property that is owned solely in the deceased person’s name.
Do all estates have to go through probate in Oregon?
No. Probate can be avoided by placing all of a person’s assets into a Trust or by placing assets in a form of probate substitute that will transfer your property at your death (i.e. payable on death or transfer on death designation, holding property joint with survivorship, holding property with beneficiary designations, or holding real property with a Transfer on Death Deed). Some estates do not have to go through probate because the person who died did not have anything left when they died.
How much does an estate have to be worth to go to probate in Oregon?
It depends. If a person’s estate has no more than $200,000 in real property and no more than $75,000 in personal property, the property is eligible to go through a small estate procedure, which is generally faster and less expensive than a full estate. If a person has property in their estate that exceeds those limits, the estate will have to go through a full probate estate proceeding.
What assets are subject to probate in Oregon?
Assets that are held in your name that do not also have an alternate means of distribution attached to them, such as a beneficiary designation, holding property joint with survivorship, or holding an account with a transfer on death or payable on death designation.
How long does probate usually take?
Average time for a probate estate is about 18 months, although many are done faster and some take much longer than that.
What is the process of probate in Oregon and why does probate take so long?
Probate is a long process to make sure that the title to the assets of a decedent are properly distributed and that the claims of creditors, including government claims for taxes, are paid by the decedent’s estate. Probate is a closely monitored process by the Courts that requires a petition, limited judgment, a bond (unless it is waived in a Will), notices to 2 State of Oregon offices, publication of Notice to Creditors (followed by a 4-month waiting period for creditors to make claims), notice to heirs and devisees, payment and possible litigation of creditor claims, search for creditor claims and filings of an affidavit for search of creditor claims, affidavits of service on heirs, devisees and State of Oregon, accountings, general judgment authorizing distributions, payment of attorney fees and costs and payment of personal representative fees, receipts for distribution and a supplemental judgment closing the estate, at a minimum (there may be a lot more involved depending on the size and complexity of the estate).
How long after probate do I get the money?
In general, assets from a probate estate are not distributed until the end of the probate proceeding. However, a Personal Representative of the estate can ask the Court to authorize distributions prior to the end of the estate so long as there are enough funds after that to still pay all creditor claims.
How do you avoid probate in Oregon?
The best way to avoid probate in Oregon is to set up a Trust, with an experienced probate attorney, into which you have placed ownership of all of your assets. You get to use those assets as you wish during your lifetime, but upon your death, your trust owns all of your property (not you personally) and your property can be transferred (per the terms of your trust document) immediately to whoever you have designated as your heirs in your Trust.
You can also set up your property to pass through “probate substitutes such as holding property joint with survivorship, or using beneficiary designations, payable on death designations, or transfer on death designations.
Oregon probate timeline.
Who are considered heirs in Oregon?
There is a difference between an “heir” and a “beneficiary.” An heir is a person who would receive a part of your estate through “intestate succession” upon your death if you do not have a valid estate plan. Typically this will be a spouse, children, parents, and siblings, in that order. Heirs in Oregon can go all the way up to the grandparent level and then down from the grandparents (aunts and uncles, cousins) if there is no closer relative.
A beneficiary is a person who is named in your estate plan to receive part of your estate upon your death. These may be the same persons, but not necessarily. Some people do not want their immediate family members (“heirs”) to receive part of their estate when they die. In order to make that happen, you have to name other persons as “beneficiaries” of your estate in either a will or a trust.
Who inherits if no will in Oregon?
If a person dies without a valid will in Oregon, who receives their property at that person’s death through any probate proceeding is determined by the “intestacy” laws of Oregon. (A person may have a Will, but if it is not done properly, the Court will not follow it and the person’s estate will still be distributed under Oregon’s intestacy laws). The intestacy laws are located at ORS 112.015 through 112.055. In general, a person’s spouse will receive their estate.
If there are children from a prior relationship, however, the children from that prior relationship will share half of the estate and the surviving spouse will receive the other half. If there is no surviving spouse, the surviving children will receive the entire estate. If there is no surviving spouse or children, the following persons receive the estate in equal shares at the first level of inheritance where there are surviving heirs: parents, siblings, nieces and nephews, grandparents, aunts and uncles, first cousins. Intestacy stops at the grandparent level.
When a spouse dies what is the surviving spouse entitled to in Oregon?
It depends. If there are no children or children only of that marriage, the surviving spouse will get 100 percent of the estate. If there are surviving children of a prior relationship of the deceased spouse, the surviving spouse gets 50 percent of the deceased person’s estate, and the surviving children share the other 50 percent.
What is a beneficiary law?
A “beneficiary” and a “devisee” are the same thing under Oregon law. A “devisee is a person designated in your Will or trust to receive a part of your estate. These definitions are contained in ORS 111.005. “Beneficiary laws” refers generally to those laws that control distribution of your estate through the probate laws of the State of Oregon. See Title 12 of Oregon Laws (Probate Law), Oregon Revised Statutes chapters 111 through 119.
What is trust administration?
Trust Administration is a court procedure to extinguish creditor claims or to otherwise administer the terms of a trust. A petition (but not the actual trust) is filed with the Court, notice of the proceeding is published in the newspaper and a 4-month creditor claim period is commenced in order to administer and then cut off any future creditor claims against the estate.
Trust administration also involves following the terms of the trust after the one or more makers of the trust die. This may involve setting up additional trusts, selling property, managing or selling business interests, distributing property, filing tax returns, and anything else the trust document instructs the successor trustee (the manager of the trust) to do.
What is the difference between a trust and probate?
A trust is a separate entity that is set up to hold a person’s property during their lifetime and distribute the property at their death without a probate proceeding. A probate proceeding is a court-administered public proceeding that is required to pay creditor claims and distribute a person’s property after their death when that property is held in the name of the person that died (not in a trust and does not pass through an alternate form of distribution such as a beneficiary designation, transfer on death designation or holding property joint with survivorship).
What does administration mean in probate?
“Administration” in a probate proceeding refers to the court process that an estate has go through in order to transfer title of the assets of a person who died, to their heirs (intestate) or devisees (through a Will).