ORS Chapter 113 - Oregon Statutes

Chapter 113 — Initiationof Estate Proceedings

 

2009 EDITION

 

INITIATIONOF ESTATE PROCEEDINGS

 

PROBATELAW

 

113.005     Specialadministrators

 

113.015     Venue

 

113.025     Proceedingscommenced in more than one county

 

113.027     Limitationon admission of will to probate

 

113.035     Petitionfor appointment of personal representative and probate of will

 

113.045     Informationof escheat to Department of State Lands

 

113.055     Testimonyof attesting witnesses to will

 

113.065     Establishingforeign wills

 

113.075     Contestof will

 

113.085     Preferencein appointing personal representative

 

113.086     Approvalof attorneys who are eligible to be personal representative for decedent whoreceived Medicaid or other public assistance

 

113.087     Effectof accepting appointment as personal representative; notices to be sent torepresentative

 

113.092     Convictedfelon as nominated personal representative

 

113.095     Personsnot qualified to act as personal representatives

 

113.105     Necessityand amount of bond; exceptions; bond notwithstanding will

 

113.115     Increasing,reducing or requiring new bond

 

113.125     Letterstestamentary or of administration

 

113.135     Designationof attorney to be filed

 

113.145     Informationto devisees, heirs, interested persons, Department of Human Services and OregonHealth Authority

 

113.155     Publicationof notice to interested persons

 

113.165     Filinginventory and evaluation

 

113.175     Propertydiscovered after inventory filed

 

113.185     Appraisement;employment and appointment of appraisers

 

113.195     Removalof personal representative

 

113.205     Powersof surviving personal representative

 

113.215     Appointmentof successor personal representative

 

113.225     Noticeto interested persons by successor personal representative

 

113.235     Appointmentof estate administrators by Director of Department of State Lands

 

113.238     Requirementsand prohibitions related to certain decedents who die intestate and withoutheirs

 

113.242     Authorityof estate administrator

 

      113.005Special administrators. (1) If, prior to appointment and qualification of apersonal representative, property of a decedent is in danger of loss, injury ordeterioration, or disposition of the remains of a decedent is required, thecourt may appoint a special administrator to take charge of the property or theremains. The petition for appointment shall state the reasons for specialadministration and specify the property, so far as known, requiringadministration, and the danger to which it is subject.

      (2)The special administrator shall qualify by filing a bond in the amount set bythe court, conditioned upon the special administrator faithfully performing theduties of the trust.

      (3)The special administrator may:

      (a)Incur expenses for the funeral, burial or other disposition of the remains ofdecedent in a manner suitable to the condition in life of the decedent;

      (b)Incur expenses for the protection of the property of the estate; and

      (c)Sell perishable property of the estate, whether or not listed in the petition,if necessary to prevent loss to the estate.

      (4)The special administrator shall not approve or reject claims of creditors orpay claims or expenses of administration or take possession of assets of theestate other than those in danger of loss, injury or deterioration pending theappointment of a personal representative.

      (5)Upon the appointment and qualification of a personal representative the powersof the special administrator shall cease. Within 30 days after the issuance ofletters testamentary to a personal representative, the special administratorshall make and file an account and deliver to the personal representative theassets of the estate in the possession of the special administrator. If thepersonal representative objects to the account of the special administrator,the court shall hear the objections, and, whether or not objections are made,shall examine the account.

      (6)To the extent approved by the court, the compensation of the specialadministrator and expenses properly incurred by the special administrator,including a reasonable fee of the attorney of the special administrator, shallbe paid as expenses of administration. [1969 c.591 §80; 1999 c.592 §1]

 

      113.010 [Repealed by1969 c.591 §305]

 

      113.015Venue.(1) The venue for a proceeding seeking the appointment of a personalrepresentative and for a proceeding to probate a will is:

      (a)In the county where the decedent had a domicile or where the decedent had aplace of abode at the time of death;

      (b)In any county where property of the decedent was located at the time of deathor is located at the time the proceeding is commenced; or

      (c)In the county in which the decedent died.

      (2)Filing a proceeding in a county other than specified in subsection (1) of thissection does not constitute a jurisdictional defect. [1969 c.591 §81]

 

      113.020 [Repealed by1969 c.591 §305]

 

      113.025Proceedings commenced in more than one county. (1) Ifproceedings seeking the appointment of a personal representative of the sameestate or proceedings to probate a will of the same decedent are commenced inmore than one county, they shall be stayed except in the county where firstcommenced until final determination there of venue. A proceeding is consideredcommenced by the filing of a petition. In determining venue, if the court findsthat transfer to another county where a proceeding has been commenced is forthe best interest of the estate, it may in its discretion order such transfer.

      (2)If the proper venue is determined to be in another county, the clerk of thecourt shall transmit to the clerk of the court for the other county atranscript of the proceeding with all the original papers filed therein, andthe court for the other county thereupon has exclusive jurisdiction of theproceeding to the same extent and with like effect as though the proceeding werein the court on original jurisdiction. [1969 c.591 §82]

 

      113.027Limitation on admission of will to probate. A will may not be admitted toprobate or an estate reopened to admit a will to probate more than one yearafter the estate of the decedent has been administered in Oregon and closed. [1973c.506 §21]

 

      113.030 [Amended by1963 c.308 §1; repealed by 1969 c.591 §305]

 

      113.035Petition for appointment of personal representative and probate of will. Any interestedperson or executor named in the will may petition for the appointment of apersonal representative and for the probate of a will. The petition shallinclude the following information, so far as known:

      (1)The name, age, domicile, post-office address, date and place of death, andSocial Security account number or taxpayer identification number of thedecedent.

      (2)Whether the decedent died testate or intestate.

      (3)The facts relied upon to establish venue.

      (4)The name and post-office address of the person nominated as personal representativeand the facts that show the person is qualified to act.

      (5)The names, relationship to the decedent and post-office addresses of personswho are or would be the heirs of the decedent upon the death of the decedentintestate, and the ages of any who are minors.

      (6)A statement that reasonable efforts have been made to identify and locate allheirs of the decedent. If the petitioner knows of any actual or possibleomissions from the list of heirs, the petition must include a statementindicating that there are omissions from the information relating to heirs.

      (7)If the decedent died testate, the names and post-office addresses of thedevisees, and the ages of any who are minors. If the will devises property to aperson who did not survive the decedent or who is otherwise not entitled toreceive the devise, the petition must include a statement explaining why thedevise failed. If the petitioner knows of any actual or possible omissions fromthe list of devisees, the petition must include a statement indicating thatthere are omissions from the information relating to devisees.

      (8)The name and post-office address of any person asserting an interest in theestate, or on whose behalf an interest has been asserted, based on a contentionthat:

      (a)The will alleged in the petition to be the will of the decedent is ineffectivein whole or part;

      (b)There exists a will that has not been alleged in the petition to be the will ofthe decedent; or

      (c)The decedent agreed, promised or represented that the decedent would make orrevoke a will or devise, or not revoke a will or devise, or die intestate.

      (9)The name and post-office address of any person asserting an interest in theestate, or on whose behalf an interest has been asserted, based on a contentionthat a parent of the decedent willfully deserted the decedent or neglectedwithout just and sufficient cause to provide proper care and maintenance forthe decedent, as provided by ORS 112.047.

      (10)Whether the original of the last will of the decedent is in the possession ofthe court or accompanies the petition. If the original will is not in thepossession of the court or accompanying the petition and an authenticated copyof the will probated in another jurisdiction does not accompany the petition,the petition shall also state the contents of the will and indicate that it islost, destroyed or otherwise unavailable and that it was not revoked.

      (11)A statement of the extent and nature of assets of the estate, to enable thecourt to set the amount of bond of the personal representative. [1969 c.591 §83;1973 c.506 §19; 1991 c.704 §1; 2003 c.395 §10; 2005 c.741 §4]

 

      113.040 [Amended by1963 c.308 §2; repealed by 1969 c.591 §305]

 

      113.045Information of escheat to Department of State Lands. (1) Upon appointment,a personal representative shall deliver or mail to an estate administrator ofthe Department of State Lands appointed under ORS 113.235 a copy of thepetition filed under ORS 113.035, and a copy of any last will of the decedent,if the personal representative has not identified and found all heirs anddevisees of the decedent. The personal representative shall file proof of thedelivery or mailing with the court.

      (2)If at any time after the appointment of a personal representative it appearsthat any heir or devisee of the decedent cannot be identified and found, thepersonal representative shall promptly deliver or mail to an estateadministrator of the Department of State Lands appointed under ORS 113.235 anotice indicating that an heir or devisee cannot be identified and found. Thepersonal representative shall file proof of the delivery or mailing with thecourt.

      (3)This section does not affect the requirements of ORS 113.085 (2). [1969 c.591 §84;2003 c.395 §11; 2007 c.284 §9]

 

      113.050 [Amended by1963 c.272 §1; repealed by 1969 c.591 §305]

 

      113.055Testimony of attesting witnesses to will. (1) Upon an ex parte hearing ofa petition for the probate of a will, an affidavit of an attesting witness maybe used instead of the personal presence of the witness in court. The witnessmay give evidence of the execution of the will by attaching the affidavit tothe will or to a photographic or other facsimile copy of the will, and mayidentify the signature of the testator and witnesses to the will by use of thewill or the copy. The affidavit shall be received in evidence by the court andhave the same weight as to matters contained in the affidavit as if thetestimony were given by the witness in open court. The affidavit of theattesting witness may be made at the time of execution of the will or at anytime thereafter.

      (2)However, upon motion of any person interested in the estate filed within 30days after the order admitting the will to probate is made, the court mayrequire that the witness making the affidavit be brought before the court. Ifthe witness is outside the reach of a subpoena, the court may order that thedeposition of the witness be taken.

      (3)If the evidence of none of the attesting witnesses is available, the court mayallow proof of the will by testimony or other evidence that the signature ofthe testator or at least one of the witnesses is genuine.

      (4)In the event of contest of the will or of probate thereof in solemn form, proofof any facts shall be made in the same manner as in an action tried without ajury. [1969 c.591 §85; 1979 c.284 §105]

 

      113.060 [Amended by1963 c.271 §1; repealed by 1969 c.591 §305]

 

      113.065Establishing foreign wills. (1) The written will of a testator who dieddomiciled outside this state, which upon probate may operate upon property inthis state, may be admitted to probate upon petition therefor, by filing acertified copy of the will and a certified copy of the order admitting the willto probate or evidencing its establishment in the jurisdiction where thetestator died domiciled.

      (2)A will offered for probate under this section may be contested for a causewhich would be grounds for rejection of a will of a testator who died domiciledin this state. [1969 c.591 §86]

 

      113.070 [Repealed by 1969c.591 §305]

 

      113.075Contest of will.(1) Any interested person may contest the probate of the will or the validityof the will or assert an interest in the estate for the reason that:

      (a)The will alleged in the petition to be the will of the decedent is ineffectivein whole or part;

      (b)There exists a will that has not been alleged in the petition to be the will ofthe decedent; or

      (c)The decedent agreed, promised or represented that the decedent would make orrevoke a will or devise, or not revoke a will or devise, or die intestate.

      (2)An action described in subsection (1) of this section shall be commenced by thefiling of a petition in the probate proceedings, except that an actiondescribed in subsection (1)(c) of this section may be commenced by the filingof a separate action in any court of competent jurisdiction.

      (3)An action described in subsection (1) of this section shall be commenced beforethe later of:

      (a)Four months after the date of delivery or mailing of the information describedin ORS 113.145 if that information was required to be delivered or mailed tothe person on whose behalf the petition is filed; or

      (b)Four months after the first publication of notice to interested persons if theperson on whose behalf the petition is filed was not required to be named inthe petition as an interested person.

      (4)A cause of action described in subsection (1)(c) of this section shall not bepresented as a claim under ORS chapter 115. [1969 c.591 §87; 1973 c.506 §23;1991 c.704 §2]

 

      113.080 [Repealed by1969 c.591 §305]

 

      113.085Preference in appointing personal representative. (1) Except asprovided in subsection (2) of this section, upon the filing of the petition, ifthere is no will or there is a will and it has been proved, the court shallappoint a qualified person it finds suitable as personal representative, givingpreference in the following order:

      (a)The executor named in the will.

      (b)The surviving spouse of the decedent or the nominee of the surviving spouse ofthe decedent.

      (c)The nearest of kin of the decedent or the nominee of the nearest of kin of thedecedent.

      (d)The Director of Human Services, or an attorney approved by the director underORS 113.086, if the decedent received public assistance pursuant to ORS chapter411 or received care at an institution described in ORS 179.321 (1), and itappears that the assistance or the cost of care may be recovered from theestate of the decedent.

      (e)The Director of the Oregon Health Authority, or an attorney approved by thedirector under ORS 113.086, if the decedent received public assistance pursuantto ORS chapter 414 or received care at an institution described in ORS 179.321(2), and it appears that the assistance or the cost of care may be recoveredfrom the estate of the decedent.

      (f)The Department of Veterans’ Affairs, if the decedent was a protected personunder ORS 406.050 (8), and the department has joined in the petition for suchappointment.

      (g)Any other person.

      (2)Except as provided in subsection (3) of this section, the court shall appointthe Department of State Lands as personal representative if it appears that thedecedent died wholly intestate and without known heirs. The Attorney Generalshall represent the Department of State Lands in the administration of theestate. Any funds received by the Department of State Lands in the capacity ofpersonal representative may be deposited in accounts, separate and distinctfrom the General Fund, established with the State Treasurer. Interest earned bysuch account shall be credited to that account.

      (3)The court may appoint a person other than the Department of State Lands toadminister the estate of a decedent who died wholly intestate and without knownheirs if the person filing a petition under ORS 113.035 attaches writtenauthorization from an estate administrator of the Department of State Landsappointed under ORS 113.235 approving the filing of the petition by the person.Except as provided by rule adopted by the Director of the Department of State Lands,an estate administrator may consent to the appointment of another person to actas personal representative only if it appears after investigation that theestate is insolvent. [1969 c.591 §88; 1971 c.421 §1; 1971 c.675 §1; 1973 c.370 §1;1987 c.158 §17a; 1987 c.425 §1; 1989 c.966 §2; 1995 c.106 §2; 2001 c.102 §3;2001 c.900 §15; 2003 c.395 §12; 2005 c.381 §20; 2005 c.625 §56; 2009 c.595 §76;2009 c.602 §2; 2009 c.828 §7]

 

      113.086Approval of attorneys who are eligible to be personal representative fordecedent who received Medicaid or other public assistance. The Director ofHuman Services, or the director’s designated representative, or the Director ofthe Oregon Health Authority, or the director’s designated representative, mayapprove in writing attorneys who are eligible to be appointed as personalrepresentatives under ORS 113.085 if the decedent received public assistancepursuant to ORS chapter 411 or 414 or received care at an institution asdefined in ORS 179.010, and it appears that the assistance or the cost of caremay be recovered from the estate of the decedent. An attorney approved underthis section does not represent the Director of Human Services or the Directorof the Oregon Health Authority when appointed as a personal representative. [2009c.262 §2; 2009 c.828 §6]

 

      113.087Effect of accepting appointment as personal representative; notices to be sentto representative.(1) By accepting appointment, a personal representative, whether a resident ornonresident of this state, submits personally to the jurisdiction of the courtin any proceeding relating to the estate that may be instituted by anyinterested person.

      (2)Notice of any proceeding shall be delivered to the personal representative ormailed to the personal representative by ordinary first class mail at theaddress as listed in the petition for appointment or as thereafter reported tothe court. If the personal representative has an address different from thatlisted in the petition or reported to the court, the person giving the noticeshall also mail the notice to that address if it is known to the person. [1973c.506 §22]

 

      113.090 [Amended by1969 c.591 §79; renumbered 112.695]

 

      113.092Convicted felon as nominated personal representative. (1) A personnominated as personal representative who has been convicted of a felony shallinform the court of the conviction. The conviction shall not disqualify thenominee from acting as personal representative unless the court finds that thefacts underlying the conviction are substantially similar to facts which wouldconstitute grounds for removal of a personal representative under ORS 113.195(2), and the court has reasonable grounds to believe that such person will beunfaithful to or neglectful of the trust.

      (2)A nominee who fails to inform the court of a felony conviction may bedisqualified from acting as personal representative. A personal representativewho so fails to inform the court may be removed. [1975 c.781 §8]

 

      113.095Persons not qualified to act as personal representatives. A person is notqualified to act as personal representative if the person is:

      (1)An incompetent.

      (2)A minor.

      (3)A person suspended for misconduct or disbarred from the practice of law, duringthe period of suspension or disbarment.

      (4)A person who has resigned from the Oregon State Bar when charges ofprofessional misconduct are under investigation or when disciplinaryproceedings are pending against the person, until the person is reinstated.

      (5)A licensed funeral service practitioner unless the decedent was:

      (a)A relative of the licensed funeral service practitioner; or