Oregon Revised Statutes
Except as provided in subsection (3) of this section, the spouse and dependent children of a decedent occupying the principal dwelling of the decedent at the time of the decedent’s death, or any of them, may continue to occupy the dwelling until: One year after the death of the decedent; or If the decedent’s interest in the dwelling is a leasehold or other…
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: Petition therefor by or on behalf of the spouse or any dependent child; Service of the petition and notice of hearing thereon to the personal representative, unless the pe…
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 natur…
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.
Provision for support under ORS 114.015 ordered by the court may be modified or terminated by the court by further order.
Provision for support under ORS 114.015 ordered by the court may consist of any one or more of the following: Transfer of title to personal property. Transfer of title to real property. 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. The cou…
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 th…
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 pu…
If it appears, after the expiration of four months after the date of 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 c…
TITLE AND POSSESSION OF PROPERTY
ORS chapters 111, 112, 113, 114, 115, 116 and 117 apply without distinction between real and personal property.
Upon the death of a decedent, title to the property of the decedent vests: 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 affiant as defined in ORS 114.505; or In the persons to whom it is devised by the will …
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 …
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
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 a…
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 sacr…
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 relief pursuant to ORS 111.0…
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 a…
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.
Subject to the provisions of ORS 97.130 (2) and (11) 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: Direct and authorize disposition of the remains of the deceden…
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.
Except as provided in subsection (2) of this section, and subject to ORS 113.105, a personal representative has power to sell, mortgage, lease or otherwise deal with property of the estate without notice, hearing or court order. Exercise of the power of sale by the personal representative is improper, except after notice, hearing and order of the court, if:…
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 i…
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 …
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…
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: The transaction was consented to by all interested persons affected thereby; or The will expressly authorize…
The following are the subject of validating Acts: 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. Certain sales of decedent’s property made prior to 1907 under power in will, validated by chapter 175, General Laws of Oregon 1907. Certain s…
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.
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 …
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 …
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. A personal representative is not personally liable on contracts properly entered into in the fiduciary capacity in the course of admin…
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: Any copersonal representative may receive and receipt for property due the estate. When the concurrence of all cannot readily be obtained in the time reasonably availabl…
The court may order any person to appear and give testimony by deposition if it appears probable that the person: Has concealed, secreted or disposed of any property of the estate of a decedent; Has been entrusted with property of the estate of a decedent and fails to account therefor to the personal representative; Has concealed, secreted or disposed of …
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 necess…
WRONGFUL DEATH CLAIMS AND ESTATES WITH PERSONAL INJURY CLAIMS (Generally)
As used in ORS 114.441 to 114.462: “Beneficiary” means a person for whose benefit an action against a wrongdoer may be brought under ORS 30.020. “Interested person” has the meaning given that term in ORS 111.005. “Personal injury claim” means a cause of action arising out of injuries to a decedent, caused by the wrongful act or omission of another, that d…
Except as specifically provided in ORS 114.441 to 114.462, ORS 30.010 to 30.100 and 119.006 to 119.081 and ORS chapters 111, 112, 113, 114, 115, 116, 117 and 118 apply to wrongful death claims and estates with personal injury claims. Note: See note under 114.441. (Court Approval of Settlement)
The parties to a personal injury claim or a wrongful death claim may enter into a settlement agreement, subject to the approval of the probate court, whether or not an action asserting the personal injury claim or the wrongful death claim has been commenced. The personal representative shall petition the probate court for approval of the proposed settlement.…
If the only asset of an estate is a personal injury cause of action that has not been adjudicated or settled, the court shall: Defer bond requirements until a settlement of the personal injury claim is approved under ORS 114.447; and Accept an annual report on the status of the personal injury claim in lieu of the annual account required under ORS 116.083.…
Any beneficiary, any interested person or the person nominated as personal representative named in the will may petition for the appointment of a personal representative for the sole purpose of pursuing a claim for the wrongful death of the decedent. Except as provided in ORS 114.459, a personal representative appointed under this section has all the duties …
A personal representative appointed under ORS 114.453 shall deliver or mail to the beneficiaries at their last-known address information that must include: The title of the court in which the estate proceeding is pending and the case number; The name of the decedent and the place and date of the death of the decedent; The name and address of the personal …
When a personal representative is appointed ORS 114.453 and no assets of the estate have been discovered: The following requirements are waived: Information to devisees, heirs and interested persons of appointment of personal representative under ORS 113.145; Publication of notice under ORS 113.155; The bond required under ORS 113.105; Proof of complian…
When a personal representative is appointed under ORS 114.453 and no assets of the estate have been discovered, the personal representative may move to close the estate after resolution of the wrongful death claim and distribution of any funds recovered in the wrongful death claim, but no earlier than four months after the latest date of delivery or mailing …
As used in ORS 114.505 to 114.560: “Affiant” means the person or persons signing a simple estate affidavit. “Claiming successors” means: If the decedent died intestate, the heir or heirs of the decedent, or if there is no heir, an estate administrator of the State Treasurer appointed under ORS 113.235; If the decedent died testate, the devisee or devisee…
A person who meets the requirements of ORS 114.515 may file a simple estate affidavit only with regard to an estate in which: Not more than $75,000 of the fair market value of the estate is attributable to personal property other than manufactured homes; and Not more than $200,000 of the fair market value of the estate is attributable to the combined fair …
If the estate of a decedent meets the requirements of ORS 114.510, any of the following persons may file a simple estate 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: One or more of the claiming successors of the decedent. If the deceden…
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 a simple estate affidavit if the decedent received public assistance as defined in ORS 411.010, received medical assistance as defin…
If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor may not file a simple estate affidavit unless the creditor has received written authorization from the State Treasurer. Except as provided by rule adopted by the State Treasurer, the State Treasurer shall consent to the filing of a simple estate affidavit by a…
A simple estate affidavit must: Contain a notice in substantially the following form, printed in at least 14-point bold type immediately below the caption on the first page of the simple estate affidavit: ______________________________________________________________________________ NOTICE OF DUTY TO PAY DEBT OR TURN OVER PROPERTY To: Any person to whom…
The affiant may deliver a certified copy of a simple estate affidavit to any person who has possession of personal property belonging to the estate or who was indebted to the decedent. Except as provided in this section, upon receipt of the certified copy, the person shall pay the debt or transfer, deliver, provide access to and allow possession of the perso…
If a person who is eligible to file a simple estate affidavit is aware that the decedent was the sole lessee or the last surviving lessee of a safe deposit box or was the owner of the contents of a safe deposit box at the time of the decedent’s death, the claiming successor or other person may not file a simple estate affidavit until the person requests an i…
A claim against an estate with respect to which a simple estate affidavit is filed may be presented to the affiant within four months after the affidavit was filed. If an amended simple estate affidavit is filed under ORS 114.515 (6), claims against the estate may be presented within four months after the filing of the amended affidavit. Except as provided …
A creditor of an estate whose claim has been presented within the time permitted by ORS 114.540 (1) and disallowed by the affiant in whole or in part 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 who…
The affiant: Is a fiduciary who is under a general duty to administer, preserve, settle and distribute the estate in accordance with the terms of the will, the law of intestate succession and ORS 114.505 to 114.560 as expeditiously and with as little sacrifice of value as is reasonable under the circumstances. May not commingle property of the estate of wh…
Before the completion of the two-year period established in ORS 114.550, and in exchange for adequate consideration: The affiant may transfer or sell any real property if each heir or devisee who would succeed to the interest conveyed joins in the conveyance. The affiant may transfer or sell any personal property that is specifically devised to an individu…
An affiant may be liable for and is chargeable in the accounts of the affiant with: All of the estate of the decedent that comes into the possession of the affiant at any time, including income from the estate. All property not a part of the estate if: The affiant has commingled the property with the assets of the estate; or The property was received und…
The affiant or any claiming successor of the estate who has not been paid the full amount owed the claiming successor may, within two years after the filing of a simple estate affidavit, file with the probate court a petition for summary review of administration of the estate. Notwithstanding paragraph (a) of this subsection, a person may file a petition fo…
A person filing a petition for summary determination under ORS 114.542 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. If at any time after the filing of a simple estate affidavit a petition for appointm…
If a petition to appoint a personal representative is not filed within four months after the filing of a simple estate affidavit, then after the completion of the four-month period described in ORS 114.540, after all unsecured creditors of the estate have been paid to the extent of the property of the estate and before the completion of the two-year period e…
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 is a summary determination under ORS 114.542, a summary review of administration under ORS 114.550 or the filing of a petition for appointment of a personal representative for the estate within the time al…
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 petitio…
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 distribut…
A surviving spouse may claim the elective share only by: 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. Filing a motion for the exercise of the election in a pro…
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 tr…
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. 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 right…
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. (Augmented Estate)
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: The decedent’s probate estate as described in ORS 114.650. The decedent’s nonprobate estate as described in ORS 114.660 and 114.665. The surviv…
The augmented estate does not include: Any value attributable to future enhanced earning capacity of either spouse; Any property that is irrevocably transferred before the death of the decedent spouse; 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 spou…
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 simple estate affidavit pursuant to ORS 114.505 t…
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 ar…
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 frac…
For purposes of ORS 114.600 to 114.725, a surviving spouse’s estate is: The decedent’s probate transfers to the spouse, as described in ORS 114.685. The decedent’s nonprobate transfers to the spouse, as described in ORS 114.690. All other property of the spouse, as determined on the date of the decedent’s death. Any property that would have been included…
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. (Decedent’s Nonprobate Transfers to Spouse)
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: The decedent’s fractional interest in property held in any form of surviv…
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. If after application of the surviving spouse’s estate under subsection (1) o…
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: An original recipient of all or part of the decedent’s nonprobate estate. A person who has received all or …
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 incl…
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 distribut…
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 den…