ORS Chapter 111 - Oregon Statutes

TITLE 12

PROBATE LAW

 

Chapter     111.     GeneralProvisions

                  112.     IntestateSuccession and Wills

                  113.     Initiationof Estate Proceedings

                  114.     Administrationof Estates Generally

                  115.     Claims;Actions and Suits

                  116.     Accounting,Distribution and Closing

                  117.     Estatesof Absentees

                  118.     InheritanceTax

_______________

 

Chapter 111 — GeneralProvisions

 

2009 EDITION

 

 

GENERALPROVISIONS

 

PROBATELAW

 

DEFINITIONSAND APPLICATION OF PROBATE LAW

 

111.005     Definitionsfor probate law

 

111.015     Applicationof chapter 591, Oregon Laws 1969

 

111.025     OregonTax Court jurisdiction

 

PROBATECOURTS AND COMMISSIONERS

 

111.055     Transferof probate jurisdiction

 

111.075     Probatejurisdiction vested

 

111.085     Probatejurisdiction described

 

111.095     Powersof probate court

 

111.105     Appealsfrom probate court; reexamination of issues

 

111.115     Transferof estate proceeding from county court to circuit court

 

111.175     Appointmentof probate commissioner

 

111.185     Powersof probate commissioner

 

PROBATEPROCEDURE GENERALLY

 

111.205     Pleadingsand mode of procedure

 

111.215     Notice;method and time of giving

 

111.218     Proofof mailing or other delivery; proof of publication

 

111.225     Waiverof notice

 

111.235     Filingobjections to petition

 

111.245     Proofof documents; certification

 

111.255     Translationof documents

 

111.265     Stenographicrecord

 

111.275     Limitedjudgments

 

DEFINITIONSAND APPLICATION OF PROBATE LAW

 

      111.005Definitions for probate law. As used in ORS chapters 111, 112, 113,114, 115, 116 and 117, unless the context requires otherwise:

      (1)“Abate” means to reduce a devise on account of the insufficiency of the estateto pay all claims, expenses and devises in full.

      (2)“Action” includes suits and legal proceedings.

      (3)“Administration” means any proceeding relating to the estate of a decedent,whether the decedent died testate, intestate or partially intestate.

      (4)“Advancement” means a gift by a decedent to an heir to enable the donee toanticipate the inheritance to the extent of the gift.

      (5)“All purposes of intestate succession” means succession by, through or from aperson, both lineal and collateral.

      (6)“Assets” includes real, personal and intangible property.

      (7)“Claim” includes liabilities of a decedent, whether arising in contract, intort or otherwise.

      (8)“Court” or “probate court” means the court in which jurisdiction of probatematters, causes and proceedings is vested as provided in ORS 111.075.

      (9)“Decedent” means a person who has died leaving property that is subject toadministration.

      (10)“Devise,” when used as a noun, means property disposed of by a will, andincludes “legacy” and “bequest.”

      (11)“Devise,” when used as a verb, means to dispose of property by a will, andincludes “bequeath.”

      (12)“Devisee” includes “legatee” and “beneficiary.”

      (13)“Distributee” means a person entitled to any property of a decedent under thewill of the decedent or under intestate succession.

      (14)“Domicile” means the place of abode of a person, where the person intends toremain and to which, if absent, the person intends to return.

      (15)“Estate” means the real and personal property of a decedent, as from time totime changed in form by sale, reinvestment or otherwise, and augmented by anyaccretions or additions thereto and substitutions therefor or diminished by anydecreases and distributions therefrom.

      (16)“Funeral” includes burial or other disposition of the remains of a decedent,including the plot or tomb and other necessary incidents to the disposition ofthe remains.

      (17)“General devise” means a devise chargeable generally on the estate of atestator and not distinguishable from other parts thereof or not so given as toamount to a specific devise.

      (18)“Heir” means any person, including the surviving spouse, who is entitled underintestate succession to the property of a decedent who died wholly or partiallyintestate.

      (19)“Interested person” includes heirs, devisees, children, spouses, creditors andany others having a property right or claim against the estate of a decedentthat may be affected by the proceeding. It also includes fiduciariesrepresenting interested persons.

      (20)“Intestate” means one who dies without leaving a valid will, or thecircumstance of dying without leaving a valid will, effectively disposing ofall the estate.

      (21)“Intestate succession” means succession to property of a decedent who diesintestate or partially intestate.

      (22)“Issue” includes adopted children and their issue and, when used to refer topersons who take by intestate succession, includes all lineal descendants, exceptthose who are the lineal descendants of living lineal descendants.

      (23)“Net estate” means the real and personal property of a decedent, exceptproperty used for the support of the surviving spouse and children and for thepayment of expenses of administration, funeral expenses, claims and taxes.

      (24)“Net intestate estate” means any part of the net estate of a decedent noteffectively disposed of by the will.

      (25)“Personal property” includes all property other than real property.

      (26)“Personal representative” includes executor, administrator, administrator withwill annexed and administrator de bonis non, but does not include specialadministrator.

      (27)“Property” includes both real and personal property.

      (28)“Real property” includes all legal and equitable interests in land, in fee andfor life.

      (29)“Settlement” includes, as to the estate of a decedent, the full process ofadministration, distribution and closing.

      (30)“Specific devise” means a devise of a specific thing or specified part of theestate of a testator that is so described as to be capable of identification.It is a gift of a part of the estate identified and differentiated from allother parts.

      (31)“Will” includes codicil; it also includes a testamentary instrument that merelyappoints an executor or that merely revokes or revives another will. [1969c.591 §1]

 

      111.010 [Repealed by1969 c.591 §305]

 

      111.015Application of chapter 591, Oregon Laws 1969. Except as specifically providedotherwise in chapter 591, Oregon Laws 1969, on July 1, 1970:

      (1)Chapter 591, Oregon Laws 1969, applies to wills of decedents dying thereon orthereafter, and a will executed before July 1, 1970, shall be consideredlawfully executed if the application of ORS 112.255 would make it so, but theconstruction of a will executed before July 1, 1970, shall be governed by thelaw in effect on the date of execution unless a contrary intent is establishedby the will.

      (2)The procedure prescribed by chapter 591, Oregon Laws 1969, applies to anyproceedings commenced thereon or thereafter regardless of the time of the deathof a decedent, and also as to any further procedure in proceedings then pendingexcept to the extent that in the opinion of the court the former procedureshould be made applicable in a particular case in the interest of justice orbecause of infeasibility of application of the procedure prescribed by chapter591, Oregon Laws 1969.

      (3)A personal representative, guardian or conservator holding an appointment onthat date shall continue to hold the appointment, but shall have only thepowers conferred and be subject to the duties imposed by chapter 591, OregonLaws 1969, with respect to any act occurring or done thereon or thereafter,other than acts pursuant to powers or duties validly conferred or imposed by awill executed before July 1, 1970.

      (4)An act done before July 1, 1970, in any proceeding and any accrued right shallnot be impaired by chapter 591, Oregon Laws 1969. When a right is acquired,extinguished or barred upon the expiration of a prescribed period of time whichhas commenced to run by the provisions of any statute before July 1, 1970,those provisions shall remain in force with respect to that right. [1969 c.591 §303]

 

      111.020 [Repealed by1969 c.591 §305]

 

      111.025Oregon Tax Court jurisdiction. For purposes of ORS chapters 111 to116, the Oregon Tax Court is not a court having probate jurisdiction and islimited to the trial of appeals on inheritance tax matters. [1971 c.567 §3;1997 c.99 §25]

 

      111.030 [Repealed by 1969c.591 §305]

 

      111.040 [Repealed by1969 c.591 §305]

 

      111.050 [Repealed by1969 c.591 §305]

 

PROBATECOURTS AND COMMISSIONERS

 

      111.055Transfer of probate jurisdiction. (1) All probate jurisdiction,authority, powers, functions and duties of the county courts and the judgesthereof are transferred to the circuit courts and the judges thereof in allcounties except Gilliam, Grant, Harney, Malheur, Sherman and Wheeler Counties.

      (2)All probate jurisdiction, authority, powers, functions and duties of the circuitcourts and the judges thereof are transferred to the county courts and thejudges thereof in Gilliam, Grant, Harney, Malheur, Sherman and WheelerCounties. [1969 c.591 §2; 1995 c.658 §71]

 

      111.060 [Repealed by1969 c.591 §305]

 

      111.065 [1969 c.591 §3;1979 c.683 §34; repealed by 1983 c.740 §12]

 

      111.070 [Repealed by1969 c.591 §305]

 

      111.075Probate jurisdiction vested. Jurisdiction of all probate matters,causes and proceedings is vested in the county courts of Gilliam, Grant,Harney, Malheur, Sherman and Wheeler Counties and in the circuit court for eachother county and as provided in ORS 111.115. [1969 c.591 §4]

 

      111.085Probate jurisdiction described. The jurisdiction of the probate courtincludes, but is not limited to:

      (1)Appointment and qualification of personal representatives.

      (2)Probate and contest of wills.

      (3)Determination of heirship.

      (4)Determination of title to and rights in property claimed by or against personalrepresentatives, guardians and conservators.

      (5)Administration, settlement and distribution of estates of decedents.

      (6)Construction of wills, whether incident to the administration or distributionof an estate or as a separate proceeding.

      (7)Guardianships and conservatorships, including the appointment and qualificationof guardians and conservators and the administration, settlement and closing ofguardianships and conservatorships.

      (8)Supervision and disciplining of personal representatives, guardians andconservators.

      (9)Appointment of a successor testamentary trustee where the vacancy occurs priorto, or during the pendency of, the probate proceeding. [1969 c.591 §5; 1973c.177 §1]

 

      111.095Powers of probate court. (1) The general legal and equitable powers of acircuit court are applicable to effectuate the jurisdiction of a probate court,punish contempts and carry out its determinations, orders and judgments as acourt of record with general jurisdiction, and the same validity, finality andpresumption of regularity shall be accorded to its determinations, orders andjudgments, including determinations of its own jurisdiction, as to those of acourt of record with general jurisdiction.

      (2)A probate court has full, legal and equitable powers to make declaratoryjudgments, as provided in ORS 28.010 to 28.160, in all matters involved in theadministration of an estate, including those pertaining to the title of realproperty, the determination of heirship and the distribution of the estate. [1969c.591 §6; 1979 c.284 §102]

 

      111.105Appeals from probate court; reexamination of issues. (1) Except asotherwise provided in this section, no issue determined in a probate courtshall be tried again on appeal or otherwise reexamined in a manner other thanthose appropriate to issues determined by a court of record with generaljurisdiction.

      (2)Appeals from a circuit court sitting in probate shall be taken to the Court ofAppeals in the manner provided by law for appeals from the circuit court.

      (3)Appeals from a county court sitting in probate shall be taken to the circuitcourt and Court of Appeals in the manner provided by ORS 5.120. [1969 c.591 §7;1979 c.284 §103]

 

      111.110 [Repealed by1969 c.591 §305]

 

      111.115Transfer of estate proceeding from county court to circuit court. (1) An estateproceeding, including all probate matters, causes and proceedings pertainingthereto, may be transferred at any time from a county court sitting in probateto the circuit court for the county by order of the county court.

      (2)An estate proceeding, including all probate matters, causes and proceedingspertaining thereto, commenced in a county court sitting in probate and in whichthe county judge is a party or directly interested shall be transferred fromthe county court to the circuit court for the county by order of the countycourt.

      (3)Upon transfer of an estate proceeding from a county court to the circuit courtunder this section, the county clerk shall certify and cause to be filed in therecords of the circuit court all original papers and proceedings pertaining tothe estate proceeding, and thereafter jurisdiction of all probate matters,causes and proceedings pertaining to the estate proceeding is vested in thecircuit court as if that jurisdiction had been originally and exclusivelyvested in the circuit court. [1969 c.591 §8]

 

      111.120 [Repealed by1969 c.591 §305]

 

      111.130 [Repealed by1969 c.591 §305]

 

      111.140 [Repealed by1969 c.591 §305]

 

      111.150 [Repealed by1969 c.591 §305]

 

      111.160 [Repealed by1969 c.591 §305]

 

      111.165 [1969 c.591 §9;repealed by 1995 c.658 §127]

 

      111.170 [Repealed by1969 c.591 §305]

 

      111.175Appointment of probate commissioner. The court may appoint the clerk of theprobate court or some other suitable person at the county seat to act asprobate commissioner within the county. If the clerk of the probate court isappointed probate commissioner, the deputy of the clerk has the power toperform any act as probate commissioner that the clerk has, and the clerk isresponsible for conduct of the deputy so acting. [1969 c.591 §10]

 

      111.185Powers of probate commissioner. (1) A probate commissioner may act uponuncontested petitions for appointment of special administrators, for probate ofwills and for appointment of personal representatives, guardians andconservators, to the extent authorized by rule of the court. Pursuant theretothe probate commissioner may make and enter orders on behalf of the courtadmitting wills to probate and appointing and setting the amount of the bondsof special administrators, personal representatives, guardians andconservators, subject to the orders of the probate commissioner being set asideor modified by the judge of the court within 30 days after the date an order isentered.

      (2)Any matter presented to the probate commissioner may be referred by the probatecommissioner to the judge.

      (3)Unless set aside or modified by the judge, the orders of the probatecommissioner have the same effect as if made by the judge. [1969 c.591 §11]

 

PROBATEPROCEDURE GENERALLY

 

      111.205Pleadings and mode of procedure. No particular pleadings or formsthereof are required in the exercise of jurisdiction of probate courts. Themode of procedure in the exercise of jurisdiction is in the nature of an actionnot triable by right to a jury except as otherwise provided by statute. Theproceedings shall be in writing and upon the petition of a party in interest orthe order of the court. All petitions, reports and accounts in proceedingsbefore a probate court must include a declaration under penalty of perjury inthe form required by ORCP 1 E made by at least one of the persons making thepetitions, reports and accounts or by the attorney for the person, or in caseof a corporation by its agent. The court exercises its powers by means of:

      (1)A petition of a party in interest.

      (2)A notice to a party.

      (3)A subpoena to a witness.

      (4)Orders and judgments.

      (5)An execution or warrant to enforce its orders and judgments. [1969 c.591 §12;1979 c.284 §104; 2007 c.284 §1]

 

      111.210 [Repealed by1969 c.591 §305]