2007 Oregon Code - Chapter 112 :: Chapter 112 - Intestate Succession and Wills
Chapter 112 —
Intestate Succession and Wills
2007 EDITION
INTESTATE SUCCESSION AND WILLS
PROBATE LAW
INTESTATE SUCCESSION
112.015Â Â Â Â Net
intestate estate
112.025Â Â Â Â Share
of surviving spouse if decedent leaves issue
112.035Â Â Â Â Share
of surviving spouse if decedent leaves no issue
112.045Â Â Â Â Share
of others than surviving spouse
112.047Â Â Â Â Forfeiture
of parentÂ’s share by reason of desertion or neglect
112.049Â Â Â Â Petition
for forfeiture of parentÂ’s share
112.055Â Â Â Â Escheat
112.058Â Â Â Â Preferences
and presumptions in escheat proceedings
112.065Â Â Â Â Representation
defined
112.075Â Â Â Â Time
of determining relationships; afterborn heirs
112.095Â Â Â Â Persons
of the half blood
112.105Â Â Â Â Succession
where parents not married
112.115Â Â Â Â Persons
related to decedent through two lines
ADVANCEMENTS
112.135Â Â Â Â When
gift is an advancement
112.145Â Â Â Â Effect
of advancement on distribution
112.155Â Â Â Â Death
of advancee before decedent
STATUS OF ADOPTED PERSONS
112.175Â Â Â Â Adopted
persons
112.185Â Â Â Â Effect
of more than one adoption
112.195Â Â Â Â References
in wills, deeds and other instruments to accord with law of intestate
succession
WILLS
112.225Â Â Â Â Who
may make a will
112.227Â Â Â Â Intention
of testator expressed in will as controlling
112.230Â Â Â Â Local
law of state selected by testator controlling unless against public policy
112.232Â Â Â Â Uniform
International Wills Act
112.235Â Â Â Â Execution
of a will
112.245Â Â Â Â Witness
as beneficiary
112.255Â Â Â Â Validity
of execution of a will
112.265Â Â Â Â Testamentary
additions to trusts
112.270Â Â Â Â Procedure
to establish contract to make will or devise or not to revoke will or devise
112.272Â Â Â Â In
terrorem clauses valid and enforceable; exceptions
112.275Â Â Â Â Manner
of revocation or alteration exclusive
112.285Â Â Â Â Express
revocation or alteration
112.295Â Â Â Â Revival
of revoked or invalid will
112.305Â Â Â Â Revocation
by marriage
112.315Â Â Â Â Revocation
by divorce or annulment
112.325Â Â Â Â Contract
of sale of property devised not a revocation
112.335Â Â Â Â Encumbrance
or disposition of property after making will
112.345Â Â Â Â Devise
of life estate
112.355Â Â Â Â Devise
passes all interest of testator
112.365Â Â Â Â Property
acquired after making will
112.385Â Â Â Â Nonademption
of specific devises in certain cases
112.395Â Â Â Â When
estate passes to issue of devisee; anti-lapse; class gifts
112.400Â Â Â Â Effect
of failure of devise
112.405Â Â Â Â Children
born or adopted after execution of will; pretermitted children
112.410Â Â Â Â Effect
of general disposition or residuary clause on testatorÂ’s power of appointment
112.415Â Â Â Â Persons
not entitled to estate of testator
112.435Â Â Â Â Disposition
of wills deposited with county clerk
EFFECT OF HOMICIDE OR ABUSE ON INTESTATE SUCCESSION, WILLS, JOINT
ASSETS, LIFE INSURANCE AND BENEFICIARY DESIGNATIONS
112.455Â Â Â Â Definitions
for ORS 112.455 to 112.555
112.457Â Â Â Â Application
to abuser
112.465Â Â Â Â Slayer
or abuser considered to predecease decedent
112.475Â Â Â Â Jointly
owned property
112.485Â Â Â Â Property
jointly owned with others
112.495Â Â Â Â Reversions,
vested remainders, contingent remainders and future interests
112.505Â Â Â Â Property
appointed; powers of revocation or appointment
112.515Â Â Â Â Proceeds
of insurance on life and other benefit plans of decedent
112.525Â Â Â Â Proceeds
of insurance on life of slayer or abuser
112.535Â Â Â Â Payment
by insurance company, financial institution, trustee or obligor; no additional
liability
112.545Â Â Â Â Rights
of persons without notice dealing with slayer or abuser
112.555Â Â Â Â Evidence
of felonious and intentional killing; conviction as conclusive
UNIFORM SIMULTANEOUS DEATH ACT
112.570Â Â Â Â Definitions
for ORS 112.570 to 112.590
112.572Â Â Â Â Requirement
of survival
112.578Â Â Â Â Construction
of survivorship provisions in governing instruments
112.580Â Â Â Â Co-owners
with right of survivorship; requirement of survival
112.582Â Â Â Â Evidence
of death or status
112.586Â Â Â Â Exceptions
112.588Â Â Â Â Protection
of payors and other third parties
112.590Â Â Â Â Protection
of bona fide purchasers; personal liability of recipient
DOWER AND CURTESY ABOLISHED
112.685Â Â Â Â Dower
and curtesy abolished
112.695Â Â Â Â Statute
of limitation for recovery of dower or curtesy
UNIFORM DISPOSITION OF COMMUNITY PROPERTY
RIGHTS AT DEATH ACT
112.705Â Â Â Â Short
title
112.715Â Â Â Â Application
to certain property
112.725Â Â Â Â Rebuttable
presumptions
112.735Â Â Â Â One-half
of property not subject to testamentary disposition or right to elect against
will
112.745Â Â Â Â Proceedings
to perfect title
112.755Â Â Â Â Who
may institute proceedings
112.765Â Â Â Â Rights
of purchaser
112.775Â Â Â Â Application
and construction
DISPOSITION OF WILLS
112.800Â Â Â Â Definition
for ORS 112.800 to 112.830
112.805Â Â Â Â Exclusive
manner of disposing of wills; destroyed will not revoked
112.810Â Â Â Â Duties
of custodian of will
112.815Â Â Â Â Conditions
for disposal of will
112.820Â Â Â Â Procedure
for destruction of will; filing of affidavit; fee
112.825Â Â Â Â Liability
for destruction of will
112.830Â Â Â Â Court
may order delivery of will
     112.010 [Amended by 1969 c.591 §69; renumbered 112.575]
INTESTATE SUCCESSION
     112.015
Net intestate estate. Any
part of the net estate of a decedent not effectively disposed of by the will of
the decedent shall pass as provided in ORS 112.025 to 112.055. [1969 c.591 §19]
     112.017 [1993 c.598 §4; 1995 c.235 §1; repealed by
1999 c.133 §1]
     112.020 [Amended by 1969 c.591 §70; renumbered
112.585]
     112.025
Share of surviving spouse if decedent leaves issue. If the decedent leaves a surviving spouse
and issue, the intestate share of the surviving spouse is:
     (1) If there are surviving issue of the
decedent all of whom are issue of the surviving spouse also, the entire net
intestate estate.
     (2) If there are surviving issue of the
decedent one or more of whom are not issue of the surviving spouse, one-half of
the net intestate estate. [1969 c.591 §20; 1987 c.329 §1]
     112.030 [Amended by 1969 c.591 §71; renumbered
112.595]
     112.035
Share of surviving spouse if decedent leaves no issue. If the decedent leaves a surviving spouse
and no issue, the surviving spouse shall have all of the net intestate estate. [1969
c.591 §21]
     112.040 [Amended by 1969 c.591 §73; renumbered
112.615]
     112.045
Share of others than surviving spouse. The part of the net intestate estate not passing to the surviving
spouse shall pass:
     (1) To the issue of the decedent. If the
issue are all of the same degree of kinship to the decedent, they shall take
equally, but if of unequal degree, then those of more remote degrees take by
representation.
     (2) If there is no surviving issue, to the
surviving parents of the decedent.
     (3) If there is no surviving issue or
parent, to the brothers and sisters of the decedent and the issue of any
deceased brother or sister of the decedent by representation. If there is no
surviving brother or sister, the issue of brothers and sisters take equally if
they are all of the same degree of kinship to the decedent, but if of unequal
degree, then those of more remote degrees take by representation.
     (4) If there is no surviving issue, parent
or issue of a parent, to the grandparents of the decedent and the issue of any
deceased grandparent of the decedent by representation. If there is no
surviving grandparent, the issue of grandparents take equally if they are all
of the same degree of kinship to the decedent, but if of unequal degree, then
those of more remote degrees take by representation.
     (5) If, at the time of taking, surviving
parents or grandparents of the decedent are married to each other, they shall
take real property as tenants by the entirety and personal property as joint
owners with the right of survivorship. [1969 c.591 §22]
     112.047
Forfeiture of parentÂ’s share by reason of desertion or neglect. (1) Property that would pass by intestate
succession under ORS 112.045 from the estate of a decedent to a parent of the
decedent shall pass and be vested as if the parent had predeceased the decedent
if the decedent was an adult when the decedent died and:
     (a) The parent of the decedent willfully
deserted the decedent for the 10-year period immediately preceding the date on
which the decedent became an adult; or
     (b) The parent neglected without just and
sufficient cause to provide proper care and maintenance for the decedent for
the 10-year period immediately preceding the date on which the decedent became
an adult.
     (2) Property that would pass by intestate
succession under ORS 112.045 from the estate of a decedent to a parent of the
decedent shall pass and be vested as if the parent had predeceased the decedent
if the decedent was a minor when the decedent died and:
     (a) The parent of the decedent willfully
deserted the decedent for the life of the decedent or for the 10-year period
immediately preceding the date on which the decedent died; or
     (b) The parent neglected without just and
sufficient cause to provide proper care and maintenance for the decedent for
the life of the decedent or for the 10-year period immediately preceding the
date on which the decedent died.
     (3) For the purposes of subsections (1)
and (2) of this section, the court may disregard incidental visitations,
communications and contributions in determining whether a parent willfully
deserted the decedent or neglected without just and sufficient cause to provide
proper care and maintenance for the decedent.
     (4) For the purposes of subsections (1)
and (2) of this section, in determining whether the parent willfully deserted
the decedent or neglected without just and sufficient cause to provide proper
care and maintenance for the decedent, the court may consider whether a
custodial parent or other custodian attempted, without good cause, to prevent
or to impede contact between the decedent and the parent whose intestate share
would be forfeited under this section.
     (5) The intestate share of a parent of a
decedent may be forfeited under this section only pursuant to an order of the
court entered after the filing of a petition under ORS 112.049. A petition
filed under ORS 113.035 may not request the forfeiture of the intestate share
of a parent of a decedent under this section. [2005 c.741 §2]
     Note: Section 6, chapter 741, Oregon Laws 2005,
provides:
     Sec.
6. Section 2 of this 2005
Act [112.047] and the amendments to ORS 113.035 and 113.145 by sections 4 and 5
of this 2005 Act apply only to the estates of persons who die on or after the
effective date of this 2005 Act [January 1, 2006]. [2005 c.741 §6]
     112.049
Petition for forfeiture of parentÂ’s share. (1) A petition may be filed in probate proceedings to assert that the
intestate share of a parent of a decedent is subject to forfeiture under ORS
112.047. A petition may be filed under this section only by a person who would
be benefited by a forfeiture of the parentÂ’s share.
     (2) A petition under this section must be
filed not later than:
     (a) Four months after the date of delivery
or mailing of the information described in ORS 113.145 if that information was
required to be delivered or mailed to the person on whose behalf the petition
is filed; or
     (b) Four months after the first
publication of notice to interested persons if the person on whose behalf the
petition is filed was not required to be named as an interested person in the
petition for appointment of a personal representative.
     (3) The petitioner has the burden of
proving the facts alleged in a petition filed under this section by clear and
convincing evidence. [2005 c.741 §3]
     112.050 [Repealed by 1969 c.591 §305]
     112.055
Escheat. (1) If no person
takes under ORS 112.025 to 112.045, the net intestate estate escheats to the
State of
     (2) If a devisee or a person entitled to
take under ORS 112.025 to 112.045 is not identified or found, the share of that
person escheats to the State of
     (3) If a devisee or a person entitled to
take under ORS 112.025 to 112.045 is not identified or found:
     (a) The Department of State Lands has the
same preference as the missing devisee or person for the purpose of appointment
as personal representative under ORS 113.085;
     (b) Title to property of the decedent that
would vest in the missing devisee or person under ORS 114.215 vests in the
Department of State Lands; and
     (c) The Department of State Lands has all
of the rights of the missing devisee or person for the purposes of ORS chapters
111, 112, 113, 114, 115, 116 and 117, including but not limited to the
following:
     (A) The right to contest any will of the
decedent under ORS 113.075; and
     (B) The right to information under ORS
113.145. [1969 c.591 §23; 2003 c.395 §2]
     112.058
Preferences and presumptions in escheat proceedings. (1) In any proceeding to determine the
escheat share of the estate of a decedent whose estate is wholly or partially
subject to probate in this state:
     (a) No preference shall be given to any
person over escheat; and
     (b) After diligent search and inquiry
appropriate to the circumstances, the following presumptions apply in a
proceeding to determine whether a missing person has died:
     (A) A missing person whose death cannot be
proved by other means lives to 100 years of age.
     (B) A missing person who was exposed to a
specific peril at the time the person became missing has died if it is reasonable
to expect from the nature of the peril that proof of death would be
impractical.
     (C) A missing person whose absence is
unexplained has died if the character and habits of the person are inconsistent
with a voluntary absence for the time that the person has been missing.
     (D) A missing person known to have been
alive who has not been seen or heard from for seven years has died if the
person has been absent from the personÂ’s usual residence, the absence is
unexplained, there are other persons who would have been likely to have heard
from the missing person during that period were the missing person alive, and
those other persons have not heard from the missing person.
     (2) In any proceeding described by
subsection (1) of this section, a missing person who is presumed to be dead is
also presumed to have had two children in addition to any known issue of the
person unless the presumption of death arises by reason of the application of
subsection (1)(b)(B) or (C) of this section. [2003 c.395 §4]
     112.060 [Amended by 1969 c.591 §74; renumbered
112.625]
     112.065
Representation defined. “Representation”
means the method of determining the passing of the net intestate estate when
the distributees are of unequal degrees of kinship to the decedent. It is
accomplished as follows: The estate shall be divided into as many shares as
there are surviving heirs of the nearest degree of kinship and deceased persons
of the same degree who left issue who survive the decedent, each surviving heir
of the nearest degree receiving one share and the share of each deceased person
of the same degree being divided among the issue of the deceased person in the
same manner. [1969 c.591 §24]
     112.070 [Amended by 1969 c.591 §75; renumbered
112.635]
     112.075
Time of determining relationships; afterborn heirs. The relationships existing at the time of
the death of the decedent govern the passing of the net intestate estate, but
persons conceived before the death of the decedent and born alive thereafter
inherit as though they were alive at the time of the death of the decedent. [1969
c.591 §25]
     112.080 [Amended by 1969 c.591 §76; renumbered
112.645]
     112.085 [1969 c.591 §26; 1973 c.506 §6; 1975 c.244 §1;
repealed by 1999 c.131 §11]
     112.095
Persons of the half blood.
Persons of the half blood inherit the same share that they would inherit if
they were of the whole blood. [1969 c.591 §27]
     112.105
Succession where parents not married. (1) For all purposes of intestate succession, full effect shall be
given to all relationships as described in ORS 109.060, except as otherwise
provided by law in case of adoption.
     (2) For all purposes of intestate
succession and for those purposes only, before the relationship of father and
child and other relationships dependent upon the establishment of paternity
shall be given effect under subsection (1) of this section:
     (a) The paternity of the child shall have
been established under ORS 109.070 during the lifetime of the child or;
     (b) The father shall have acknowledged
himself to be the father in writing signed by him during the lifetime of the
child. [1969 c.591 §28]
     112.115
Persons related to decedent through two lines. A person who is related to the decedent
through two lines of relationship is entitled to only a single share based on
the relationship which would entitle the person to the larger share. [1969
c.591 §29]
ADVANCEMENTS
     112.135
When gift is an advancement.
If a person dies intestate as to all the estate of the person, property which
the person gave in the lifetime of the person to an heir shall be treated as an
advancement against the heirÂ’s share of the estate if declared in writing by
the decedent or acknowledged in writing by the heir to be an advancement. For
that purpose the property advanced shall be valued as of the time the heir came
into possession or enjoyment of the property or as of the time of death of the
decedent, whichever occurs first. [1969 c.591 §30]
     112.145
Effect of advancement on distribution. (1) If the value of the advancement exceeds the heirÂ’s share of the estate,
the heir shall be excluded from any further share of the estate, but the heir
shall not be required to refund any part of the advancement. If the value of
the advancement is less than the heirÂ’s share, the heir shall be entitled upon
distribution of the estate to such additional amount as will give the heir the
heirÂ’s share of the estate.
     (2) The property advanced is not a part of
the estate, but for the purpose of determining the shares of the heirs the
advancement shall be added to the estate, the sum then divided among the heirs
and the advancement then deducted from the share of the heir to whom the
advancement was made. [1969 c.591 §31]
     112.155
Death of advancee before decedent. If the recipient of the property advanced fails to survive the decedent,
the amount of the advancement shall be taken into account in computing the
share of the issue of the recipient, whether or not the issue take by
representation. [1969 c.591 §32]
STATUS OF
ADOPTED PERSONS
     112.175
Adopted persons. (1) An
adopted person, the issue and kindred of the adopted person shall take by
intestate succession from the adoptive parents, their issue and kindred, and
the adoptive parents, their issue and kindred shall take by intestate
succession from the adopted person, the issue and kindred of the adopted
person, as though the adopted person were the natural child of the adoptive
parents.
     (2) An adopted person shall cease to be
treated as the child of the personÂ’s natural parents for all purposes of
intestate succession by the adopted person, the issue and kindred of the
adopted person and the natural parents, their issue and kindred, except:
     (a) If a natural parent of a person
marries or remarries and the person is adopted by the stepparent, the adopted
person shall continue also to be treated, for all purposes of intestate
succession, as the child of the natural parent who is the spouse of the
adoptive parent.
     (b) If a natural parent of a person dies,
the other natural parent remarries and the person is adopted by the stepparent,
the adopted person shall continue also to be treated, for all purposes of
intestate succession by any person through the deceased natural parent, as the
child of the deceased natural parent.
     (3) ORS chapters 111, 112, 113, 114, 115,
116 and 117 apply to adopted persons who were adopted in this state or
elsewhere. [1969 c.591 §33]
     112.185
Effect of more than one adoption. For all purposes of intestate succession, a person who has been
adopted more than once shall be treated as the child of the parents who have
most recently adopted the person and, except as otherwise provided in this
section, shall cease to be treated as the child of the previous adoptive
parents. The person shall continue also to be treated as the child of a natural
parent or previous adoptive parent only to the extent provided in ORS 112.175
(2), and for the purpose of applying that subsection with reference to a
previous adoptive parent, “natural parent” in that subsection means the
previous adoptive parent. [1969 c.591 §34]
     112.195
References in wills, deeds and other instruments to accord with law of
intestate succession. Unless
a contrary intent is established by the instrument, all references in a will,
deed, trust instrument or other instrument to an individual or member of a
class described generically in relation to a particular person as children,
issue, grandchildren, descendants, heirs, heirs of the body, next of kin,
distributees, grandparents, brothers, nephews or other relatives shall include
any person who would be treated as so related for all purposes of intestate
succession, except that an adopted person so included must have been adopted as
a minor or after having been a member of the household of the adoptive parent
while a minor. [1969 c.591 §35]
WILLS
     112.225
Who may make a will. Any
person who is 18 years of age or older or who has been lawfully married, and
who is of sound mind, may make a will. [1969 c.591 §36]
     112.227
Intention of testator expressed in will as controlling. The intention of a testator as expressed in
the will of the testator controls the legal effect of the dispositions of the
testator. The rules of construction expressed in this section, ORS 112.230 and
112.410 apply unless a contrary intention is indicated by the will. [1973 c.506
§10]
     112.230
Local law of state selected by testator controlling unless against public
policy. The meaning and
legal effect of a disposition in a will shall be determined by the local law of
a particular state selected by the testator in the instrument of the testator
unless the application of that law is contrary to the public policy of this
state. [1973 c.506 §11]
     112.232
Uniform International Wills Act. (1) As used in this section:
     (a) “International will” means a will
executed in conformity with subsections (2) to (5) of this section.
     (b) “Authorized person” and “person
authorized to act in connection with international wills” means a person who by
subsection (9) of this section, or by the laws of the United States including
members of the diplomatic and consular service of the United States designated
by foreign service regulations, is empowered to supervise the execution of
international wills.
     (2)(a) A will is valid as regards form,
irrespective particularly of the place where it is made, of the location of the
assets and of the nationality, domicile or residence of the testator, if it is
made in the form of an international will complying with the requirements of
this section.
     (b) The invalidity of the will as an
international will does not affect its formal validity as a will of another
kind.
     (c) This section does not apply to the
form of testamentary dispositions made by two or more persons in one
instrument.
     (3)(a) The will must be made in writing.
It need not be written by the testator. It may be written in any language, by
hand or by any other means.
     (b) The testator shall declare in the
presence of two witnesses and of a person authorized to act in connection with
international wills that the document is the will of the testator and that the
testator knows the contents thereof. The testator need not inform the
witnesses, or the authorized person, of the contents of the will.
     (c) In the presence of the witnesses, and
of the authorized person, the testator shall sign the will or, if the testator
has previously signed it, shall acknowledge the signature.
     (d) If the testator is unable to sign, the
absence of that signature does not affect the validity of the international
will if the testator indicates the reason for inability to sign and the authorized
person makes note thereof on the will. In that case, it is permissible for any
other person present, including the authorized person or one of the witnesses,
at the direction of the testator, to sign the testatorÂ’s name for the testator
if the authorized person makes note of this on the will, but it is not required
that any person sign the testatorÂ’s name for the testator.
     (e) The witnesses and the authorized
person shall there and then attest the will by signing in the presence of the
testator.
     (4)(a) The signatures must be placed at
the end of the will. If the will consists of several sheets, each sheet must be
signed by the testator or, if the testator is unable to sign, by the person
signing on behalf of the testator or, if there is no such person, by the
authorized person. In addition, each sheet must be numbered.
     (b) The date of the will must be the date
of its signature by the authorized person. That date must be noted at the end
of the will by the authorized person.
     (c) The authorized person shall ask the
testator whether the testator wishes to make a declaration concerning the
safekeeping of the will. If so and at the express request of the testator, the
place where the testator intends to have the will kept must be mentioned in the
certificate provided for in subsection (5) of this section.
     (d) A will executed in compliance with
subsection (3) of this section is not invalid merely because it does not comply
with this subsection.
     (5) The authorized person shall attach to
the will a certificate to be signed by the authorized person establishing that
the requirements of this section for valid execution of an international will
have been fulfilled. The authorized person shall keep a copy of the certificate
and deliver another to the testator. The certificate must be substantially in
the following form:
______________________________________________________________________________
CERTIFICATE
(Convention of October 26, 1973)
1.  I, _________(name, address and
capacity), a person authorized to act in connection with international wills,
2.  certify that on _________
(date) at _________ (place)
3.  (testator) _________(name,
address, date and place of birth) in my presence and that of the witnesses
4.  (a) _________(name, address,
date and place of birth)
     (b) _________(name, address,
date and place of birth) has declared that the attached document is the will of
the testator and that the testator knows the contents thereof.
5.  I furthermore certify that:
6.  (a) in my presence and in that
of the witnesses
     (1)   the testator has signed the will or has
acknowledged the testatorÂ’s signature previously affixed.
     *(2) following a declaration of the testator
stating that the testator was unable to sign the will for the following reason____________,
I have mentioned this declaration on the will, *and the signature has been
affixed by _________ (name and address)
7.  (b) the witnesses and I have
signed the will;
8.  *(c) each page of the will has
been signed by ________ and numbered;
9.  (d) I have satisfied myself as
to the identity of the testator and of the witnesses as designated above;
10. (e) the witnesses met the
conditions requisite to act as such according to the law under which I am
acting;
     11. *(f) the testator has requested me to include the following statement
concerning the safekeeping of the will: _______________
     12. PLACE OF EXECUTION
     13. DATE
     14. SIGNATURE and, if necessary, SEAL
*to be completed if
appropriate
______________________________________________________________________________
     (6) In the absence of evidence to the
contrary, the certificate of the authorized person is conclusive of the formal
validity of the instrument as a will under this section. The absence or
irregularity of a certificate does not affect the formal validity of a will
under this section.
     (7) An international will is subject to
the ordinary rules of revocation of wills.
     (8) Subsections (1) to (7) of this section
derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on
the Form of an International Will. In interpreting and applying this section,
regard shall be had to its international origin and to the need for uniformity
in its interpretation.
     (9) Individuals who have been admitted to
practice law before the courts of this state and are currently licensed so to
do are authorized persons in relation to international wills.
     (10) This section may be referred to and
cited as the Uniform International Wills Act. [1981 c.481 §2; 1993 c.98 §2]
     112.235
Execution of a will. A will
shall be in writing and shall be executed with the following formalities:
     (1) The testator, in the presence of each
of the witnesses, shall:
     (a) Sign the will; or
     (b) Direct one of the witnesses or some
other person to sign thereon the name of the testator; or
     (c) Acknowledge the signature previously
made on the will by the testator or at the testatorÂ’s direction.
     (2) Any person who signs the name of the
testator as provided in subsection (1)(b) of this section shall sign the signerÂ’s
own name on the will and write on the will that the signer signed the name of
the testator at the direction of the testator.
     (3) At least two witnesses shall each:
     (a) See the testator sign the will; or
     (b) Hear the testator acknowledge the
signature on the will; and
     (c) Attest the will by signing the witness’
name to it.
     (4) A will executed in compliance with the
Uniform International Wills Act shall be deemed to have complied with the
formalities of this section. [1969 c.591 §37; 1973 c.506 §7; 1981 c.481 §4]
     112.237 [1981 c.481 §3; repealed by 1993 c.98 §26]
     112.245
Witness as beneficiary. A
will attested by an interested witness is not thereby invalidated. An
interested witness is one to whom is devised a personal and beneficial interest
in the estate. [1969 c.591 §38; 1973 c.506 §8]
     112.255
Validity of execution of a will. (1) A will is lawfully executed if it is in writing, signed by or at
the direction of the testator and otherwise executed in accordance with the law
of:
     (a) This state at the time of execution or
at the time of death of the testator; or
     (b) The domicile of the testator at the
time of execution or at the time of the testatorÂ’s death; or
     (c) The place of execution at the time of
execution.
     (2) A will is lawfully executed if it
complies with the Uniform International Wills Act. [1969 c.591 §39; 1981 c.481 §5]
     112.265
Testamentary additions to trusts. (1) A devise may be made by a will to the trustee or trustees of a
trust, regardless of the existence, size or character of the corpus of the
trust, if:
     (a) The trust is established or will be
established by the testator, or by the testator and some other person or
persons, or by some other person or persons;
     (b) The trust is identified in the
testatorÂ’s will; and
     (c) The terms of the trust are set forth
in a written instrument, other than a will, executed before, concurrently with,
or after the execution of the testatorÂ’s will, or in the valid last will of a
person who has predeceased the testator.
     (2) The trust may be funded during the
testatorÂ’s lifetime or upon the testatorÂ’s death by the testatorÂ’s devise to
the trustee or trustees. The trust may be a funded or unfunded life insurance
trust, although the trustor has reserved any or all of the rights of ownership
of the insurance contracts.
     (3) The devise shall not be invalid
because the trust:
     (a) Is amendable or revocable, or both; or
     (b) Was amended after the execution of the
testatorÂ’s will or after the death of the testator.
     (4) Unless the testator’s will provides
otherwise, the property so devised:
     (a) Shall not be considered to be held
under a testamentary trust of the testator, but shall become a part of the
trust to which it is given; and
     (b) Shall be administered and disposed of
in accordance with the provisions of the instrument or will setting forth the
terms of the trust, including any amendments thereto made before or after the
death of the testator, regardless of whether made before or after the execution
of the testatorÂ’s will.
     (5) Unless the testator’s will provides
otherwise, a revocation or termination of the trust before the death of the
testator shall cause the devise to lapse.
     (6) This section shall not be construed as
providing an exclusive method for making devises to the trustee or trustees of
a trust established otherwise than by the will of the testator making the
devise.
     (7) This section shall be so construed as
to effectuate its general purpose to make uniform the law of those states that
enact the same or similar provisions. [1969 c.591 §40; 1999 c.132 §1]
     112.270
Procedure to establish contract to make will or devise or not to revoke will or
devise. (1) A contract to
make a will or devise, or not to revoke a will or devise, or to die intestate,
executed after January 1, 1974, shall be established only by:
     (a) Provisions of a will stating material
provisions of the contract;
     (b) An express reference in a will to a
contract and extrinsic evidence proving the terms of the contract; or
     (c) A writing signed by the decedent
evidencing the contract.
     (2) The execution of a joint will or
mutual wills does not create a presumption of a contract not to revoke the will
or wills. [1973 c.506 §13]
     112.272
In terrorem clauses valid and enforceable; exceptions. (1) Except as provided in this section, an
in terrorem clause in a will is valid and enforceable. If a devisee contests a
will that contains an in terrorem clause that applies to the devisee, the court
shall enforce the clause against the devisee even though the devisee
establishes that there was probable cause for the contest.
     (2) The court shall not enforce an in
terrorem clause if the devisee contesting the will establishes that the devisee
has probable cause to believe that the will is a forgery or that the will has
been revoked.
     (3) The court shall not enforce an in
terrorem clause if the contest is brought by a fiduciary acting on behalf of a
protected person under the provisions of ORS chapter 125, a guardian ad litem
appointed for a minor, or a guardian ad litem appointed for an incapacitated or
financially incapable person.
     (4) For the purposes of this section, “in
terrorem clause” means a provision in a will that reduces or eliminates a
devise to a devisee if the devisee contests the will. [1997 c.151 §2]
     112.275
Manner of revocation or alteration exclusive. A will may be revoked or altered only as provided in ORS 112.285 to
112.315. [1969 c.591 §41]
     112.285
Express revocation or alteration. (1) A will may be revoked or altered by another will.
     (2) A will may be revoked by being burned,
torn, canceled, obliterated or destroyed, with the intent and purpose of the
testator of revoking the will, by the testator, or by another person at the
direction of the testator and in the presence of the testator. The injury or
destruction by a person other than the testator at the direction and in the
presence of the testator shall be proved by at least two witnesses. [1969 c.591
§42]
     112.295
Revival of revoked or invalid will. If a will or a part thereof has been revoked or is invalid, it can be
revived only by a re-execution of the will or by the execution of another will
in which the revoked or invalid will or part thereof is incorporated by
reference. [1969 c.591 §43]
     112.305
Revocation by marriage. A
will is revoked by the subsequent marriage of the testator if the testator is
survived by a spouse, unless:
     (1) The will evidences an intent that it
not be revoked by the subsequent marriage or was drafted under circumstances
establishing that it was in contemplation of the marriage; or
     (2) The testator and spouse entered into a
written contract before the marriage that either makes provision for the spouse
or provides that the spouse is to have no rights in the estate of the testator.
[1969 c.591 §44]
     112.315
Revocation by divorce or annulment. Unless a will evidences a different intent of the testator, the
divorce or annulment of the marriage of the testator after the execution of the
will revokes all provisions in the will in favor of the former spouse of the
testator and any provision therein naming the former spouse as executor, and
the effect of the will is the same as though the former spouse did not survive
the testator. [1969 c.591 §45]
     112.325
Contract of sale of property devised not a revocation. An executory contract of sale made by a
testator to convey property devised in a will previously made, is not a
revocation of the previous devise, either in law or equity; but the property
shall pass by the devise, subject to the same remedies on the agreement, for
specific performance or otherwise, against devisees as might be had against the
heirs of the testator if the property had descended to them. [1969 c.591 §46]
     112.335
Encumbrance or disposition of property after making will. An encumbrance or disposition of property by
a testator after the testator makes a will does not affect the operation of the
will upon a remaining interest therein that is subject to the disposal of the
testator at the time of the death of the testator. [1969 c.591 §47]
     112.345
Devise of life estate. A
devise of property to any person for the term of the life of the person, and
after the death of the person to the children or heirs of the person, vests an
estate or interest for life only in the devisee and remainder in the children
or heirs. [1969 c.591 §48]
     112.355
Devise passes all interest of testator. A devise of property passes all of the interest of the testator
therein at the time of the death of the testator, unless the will evidences the
intent of the testator to devise a lesser interest. [1969 c.591 §49]
     112.365
Property acquired after making will. Any property acquired by the testator after the making of a will
passes thereby, and in like manner as if title thereto were vested in the
testator at the time of making the will, unless the intent expressed in the
will is clear and explicit to the contrary. [1969 c.591 §50]
     112.375 [1969 c.591 §51; repealed by 1973 c.506 §46]
     112.385
Nonademption of specific devises in certain cases. (1) In the situations and under the
circumstances provided in and governed by this section, specific devises will
not fail or be extinguished by the destruction, damage, sale, condemnation or
change in form of the property specifically devised. This section is
inapplicable if the intent that the devise fail under the particular
circumstances appears in the will or if the testator during the lifetime of the
testator gives property to the specific devisee with the intent of satisfying
the specific devise.
     (2) Whenever the subject of a specific
devise is property only part of which is destroyed, damaged, sold or condemned,
the specific devise of any remaining interest in the property owned by the
testator at the time of death is not affected by this section; but this section
applies to the part which would have been adeemed under the common law by the
destruction, damage, sale or condemnation.
     (3) If insured property that is the
subject of a specific devise is destroyed or damaged, the specific devisee has
the right to receive, reduced by any amount expended or incurred by the
testator in restoration or repair of the property:
     (a) Any insurance proceeds paid to the
personal representative after the death of the testator, with the incidents of
the specific devise; and
     (b) A general pecuniary legacy equivalent
to any insurance proceeds paid to the testator within six months before the
death of the testator.
     (4) If property that is the subject of a
specific devise is sold by the testator, the specific devisee has the right to
receive:
     (a) Any balance of the purchase price
unpaid at the time of the death of the testator, including any security
interest in the property and interest accruing before the death, if part of the
estate, with the incidents of the specific devise; and
     (b) A general pecuniary legacy equivalent
to the amount of the purchase price paid to the testator within six months
before the death of the testator. Acceptance of a promissory note of the
purchaser or a third party is not considered payment, but payment on the note
is payment on the purchase price.
     (5) If property that is the subject of a
specific devise is taken by condemnation before the death of the testator, the
specific devisee has the right to receive:
     (a) Any amount of the condemnation award
unpaid at the time of the death, with the incidents of the specific devise; and
     (b) A general pecuniary legacy equivalent
to the amount of an award paid to the testator within six months before the
death of the testator. In the event of an appeal in a condemnation proceeding,
the award, for purposes of this section, is limited to the amount established
on the appeal.
     (6) If property that is the subject of a
specific devise is sold by a conservator of the testator, or insurance proceeds
or a condemnation award are paid to a conservator of the testator, the specific
devisee has the right to receive a general pecuniary legacy equivalent to the
proceeds of the sale, the insurance proceeds or the condemnation award, reduced
by any amount expended or incurred in restoration or repair of the property.
This subsection does not apply if the testator, after the sale, receipt of
insurance proceeds or award, is adjudicated competent and survives such
adjudication by six months.
     (7) If securities are specifically
devised, and after the execution of the will other securities in the same or
another entity are distributed to the testator by reason of ownership of the
specifically devised securities and as a result of a partial liquidation, stock
dividend, stock split, merger, consolidation, reorganization, recapitalization,
redemption, exchange or any other similar transaction, and if the other
securities are part of the estate of the testator at death, the specific devise
is considered to include the additional or substituted securities.
Distributions prior to death with respect to a specifically devised security
not provided for in this subsection are not part of the specific devise. As
used in this subsection, “securities” means the same as defined in ORS 59.015.
     (8) The amount a specific devisee receives
as provided in this section is reduced by any expenses of the sale or of
collection of proceeds of insurance, sale or condemnation award and by any
amount by which the income tax of the decedent or the estate of the decedent is
increased by reason of items provided for in this section. Expenses include
legal fees paid or incurred. [1969 c.591 §52; 1973 c.506 §14; 1975 c.491 §6;
1995 c.664 §84]
     112.395
When estate passes to issue of devisee; anti-lapse; class gifts. When property is devised to any person who
is related by blood or adoption to the testator and who dies before the
testator leaving lineal descendants, the descendants take by representation the
property the devisee would have taken if the devisee had survived the testator,
unless otherwise provided in the will of the testator. Unless otherwise
provided in the will of the testator, one who would have been a devisee under a
class gift if the person had survived the testator is treated as a devisee for
purposes of this section if death occurred after execution of the will. [1969
c.591 §53; 1973 c.506 §15]
     112.400
Effect of failure of devise.
Except as provided in ORS 112.395:
     (1) If a devise other than a residuary
devise fails for any reason, it becomes a part of the residue.
     (2) If the residue is devised to two or more
persons and the share of one of the residuary devisees fails for any reason,
the share passes to the other residuary devisee or to other residuary devisees
in proportion to their interests in the residue. [1973 c.506 §17]
     112.405
Children born or adopted after execution of will; pretermitted children. (1) As used in this section, “pretermitted
child” means a child of a testator who is born or adopted after the execution
of the will of the testator, who is neither provided for in the will nor in any
way mentioned in the will and who survives the testator.
     (2) If a testator has one or more children
living when the testator executes a will and no provision is made in the will
for any such living child, a pretermitted child shall not take a share of the
estate of the testator disposed of by the will.
     (3) If a testator has one or more children
living when the testator executes a will and provision is made in the will for
one or more of such living children, a pretermitted child is entitled to share
in the estate of the testator disposed of by the will as follows:
     (a) The pretermitted child may share only
in the portion of the estate devised to the living children by the will.
     (b) The share of each pretermitted child
shall be the total value of the portion of the estate devised to the living
children by the will divided by the number of pretermitted children plus the
number of living children for whom provision, other than nominal provision, is
made in the will.
     (c) To the extent feasible, the interest
of a pretermitted child in the estate shall be of the same character, whether
equitable or legal, as the interest the testator gave to the living children by
the will.
     (4) If a testator has no child living when
the testator executes a will, a pretermitted child shall take a share of the
estate as though the testator had died intestate.
     (5) A pretermitted child may recover the
share of the estate to which the child is entitled, as provided in this
section, either from the other children under subsection (3) of this section or
from the testamentary beneficiaries under subsection (4) of this section,
ratably, out of the portions of the estate passing to those persons under the
will. In abating the interests of those beneficiaries, the character of the
testamentary plan adopted by the testator shall be preserved so far as
possible. [1969 c.591 §54]
     112.410
Effect of general disposition or residuary clause on testatorÂ’s power of
appointment. A general
residuary clause in a will or a will making general disposition of all of the
testatorÂ’s property does not exercise a power of appointment held by the
testator unless specific reference is made to the power or there is some other
indication of intention to include the property subject to the power. [1973
c.506 §12]
     112.415
Persons not entitled to estate of testator. Except as otherwise expressly provided by law, a person, including a
child of the testator and a descendant of that child, shall not take or be
entitled to take any portion of the estate of a testator disposed of by the
will of the testator other than as provided in the will. [1969 c.591 §55]
     112.425 [1969 c.591 §56; repealed by 1989 c.770 §11]
     112.435
Disposition of wills deposited with county clerk. So far as the county clerk is able, the
county clerk of each county shall deliver to the testator, or to the person to
whom the will is to be delivered after the death of the testator, each will
deposited in the office of the county clerk for safekeeping pursuant to ORS
114.410 (1965 Replacement Part). Any will the county clerk has been unable to
so deliver before January 1, 2010, may be destroyed by the county clerk. [1969
c.591 §57]
EFFECT OF HOMICIDE
OR ABUSE ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS, LIFE INSURANCE AND
BENEFICIARY DESIGNATIONS
     112.455
Definitions for ORS 112.455 to 112.555. As used in ORS 112.455 to 112.555:
     (1) “Abuser” means a person who is
convicted of a felony by reason of conduct that constitutes physical abuse as
described in ORS 124.105 or financial abuse as described in ORS 124.110.
     (2) “Decedent” means:
     (a) A person whose life is taken by a
slayer; or
     (b) A person whose date of death is not
later than five years after an abuser is convicted of a felony by reason of
conduct against the person that constitutes physical abuse as described in ORS
124.105 or financial abuse as described in ORS 124.110.
     (3) “Slayer” means a person who, with
felonious intent, takes or procures the taking of the life of a decedent. [1969
c.591 §58; 2005 c.270 §1]
     Note: Section 11, chapter 270, Oregon Laws 2005,
provides:
     Sec.
11. (1) Except as provided
by subsection (2) of this section, the amendments to ORS 112.455, 112.465,
112.475, 112.485, 112.495, 112.505, 112.515, 112.525, 112.535 and 112.545 by
sections 1 to 10 of this 2005 Act apply to all conduct that constitutes
physical abuse as described in ORS 124.105 or financial abuse as described in
ORS 124.110, whether occurring before, on or after the effective date of this
2005 Act [January 1, 2006].
     (2) The amendments to ORS 112.455, 112.465,
112.475, 112.485, 112.495, 112.505, 112.515, 112.525, 112.535 and 112.545 by
sections 1 to 10 of this 2005 Act do not apply to persons who die before the
effective date of this 2005 Act. [2005 c.270 §11]
     112.457
Application to abuser. ORS
112.455 to 112.555 apply to an abuser only if the decedent dies within five
years after the abuser is convicted of a felony by reason of conduct that
constitutes physical abuse of the decedent, as described in ORS 124.105, or
financial abuse of the decedent, as described in ORS 124.110. [2005 c.671 §7]
     112.465
Slayer or abuser considered to predecease decedent. (1) Property that would have passed by
reason of the death of a decedent to a person who was a slayer or an abuser of
the decedent, whether by intestate succession, by will or by trust, passes and
vests as if the slayer or abuser had predeceased the decedent.
     (2) Property that would have passed by
reason of the death of an heir or devisee of a decedent to a person who was the
slayer or abuser of the decedent, whether by intestate succession, by will or
by trust, passes and vests as if the slayer or abuser had predeceased the
decedent unless the heir or devisee specifically provides otherwise in a will
or other instrument executed after the death of the decedent. [1969 c.591 §59;
2005 c.270 §2; 2005 c.535 §1a]
     Note: Section 3, chapter 535, Oregon Laws 2005,
provides:
     Sec.
3. The amendments to ORS
112.465 and 112.515 by sections 1a and 2a of this 2005 Act apply only to heirs
or devisees who die on or after the effective date of this 2005 Act [January 1,
2006]. [2005 c.535 §3; 2005 c.535 §3a]
     Note: See note under 112.455.
     112.475
Jointly owned property. If a
slayer of a decedent and the decedent, or an abuser of a decedent and the
decedent, owned property as tenants by the entirety or with a right of
survivorship, upon the death of the decedent an undivided one-half interest
remains in the slayer or abuser for the lifetime of the slayer or abuser and
subject to that interest the property passes to and is vested in the heirs or
devisees of the decedent other than the slayer or abuser. [1969 c.591 §60; 2005
c.270 §3]
     Note: See note under 112.455.
     112.485
Property jointly owned with others. If a slayer of a decedent, the decedent and one or more other persons
owned property with a right of survivorship, or if an abuser of a decedent, the
decedent and one more other persons owned property with a right of
survivorship, upon the death of the decedent the interest of the slayer or
abuser remains as an undivided interest in the slayer or abuser for the
lifetime of the slayer or abuser and subject to that interest the property
passes to and is vested in the other surviving owner or owners. [1969 c.591 §61;
2005 c.270 §4]
     Note: See note under 112.455.
     112.495
Reversions, vested remainders, contingent remainders and future interests. (1) Property in which a slayer of a
decedent, or an abuser of a decedent, owns a reversion or vested remainder
subject to an estate for the lifetime of the decedent passes to the heirs or
devisees of the decedent for a period of time equal to the normal life
expectancy of a person of the sex and age of the decedent at the time of death.
If the particular estate is owned by a third person for the lifetime of the
decedent, the estate continues in the third person for a period of time equal
to the normal life expectancy of a person of the sex and age of the decedent at
the time of death.
     (2) As to a contingent remainder or
executory or other future interest owned by a slayer of a decedent or an abuser
of a decedent that becomes vested in the slayer or abuser or increased in any
way for the slayer or abuser upon the death of the decedent:
     (a) If the interest would not have
increased or become vested if the slayer or abuser had predeceased the
decedent, the slayer or abuser is considered to have predeceased the decedent;
and
     (b) In any case, the interest shall not be
so vested or increased during a period of time equal to the normal life
expectancy of a person of the sex and age of the decedent at the time of death.
[1969 c.591 §62; 2005 c.270 §5]
     Note: See note under 112.455.
     112.505
Property appointed; powers of revocation or appointment. (1) Property appointed by the will of the
decedent to or for the benefit of a slayer of a decedent or an abuser of a
decedent is distributed as if the slayer or abuser had predeceased the
decedent.
     (2) Property owned either presently or in
remainder by a slayer of a decedent or an abuser of a decedent, subject to be
divested by the exercise by the decedent of a power of revocation or a general
power of appointment, passes to and is vested in the heirs or devisees of the
decedent other than the slayer or abuser. Property so owned by the slayer or
abuser, subject to be divested by the exercise by the decedent of a power of
appointment to a particular person or persons or to a class of persons, passes
to the person or persons or in equal shares to the members of the class of
persons to the exclusion of the slayer or abuser. [1969 c.591 §63; 2005 c.270 §6]
     Note: See note under 112.455.
     112.515
Proceeds of insurance on life and other benefit plans of decedent. (1) Except as provided under subsection (2)
of this section, proceeds payable under any of the following instruments to or
for the benefit of a slayer of a decedent or an abuser of a decedent, as
beneficiary or assignee of the decedent or as beneficiary or assignee of an
heir or devisee of the decedent, must be paid to the secondary beneficiary or,
if there is no secondary beneficiary, to the personal representative of the
estate of the decedent or the decedentÂ’s heir or devisee:
     (a) A policy or certificate of insurance
on the life of the decedent.
     (b) A certificate of membership in any
benevolent association or organization on the life of the decedent.
     (c) Rights of the decedent as survivor of
a joint life policy.
     (d) Proceeds under any pension,
profit-sharing or other plan.
     (2) Proceeds payable under any of the
instruments specified in subsection (1) of this section to or for the benefit
of a slayer of a decedent or an abuser of a decedent as beneficiary or assignee
of an heir or devisee of the decedent shall be paid to the slayer or abuser if
the heir or devisee specifically provides for that payment by written
instrument executed after the death of the decedent. [1969 c.591 §64; 2005
c.270 §7; 2005 c.535 §2a]
     Note: See note under 112.455.
     Note: See first note under 112.465.
     112.525
Proceeds of insurance on life of slayer or abuser. If a decedent is beneficiary or assignee of
any policy or certificate of insurance on the life of a slayer of the decedent
or an abuser of the decedent, the proceeds shall be paid to the personal
representative of the decedentÂ’s estate unless:
     (1) The policy or certificate names some
person other than the slayer or abuser, or the personal representative of the
slayer or abuser, as the secondary beneficiary.
     (2) The slayer or abuser, by naming a new
beneficiary or assignee, performs an act which would have deprived the decedent
of the interest of the decedent if the decedent had been living. [1969 c.591 §65;
2005 c.270 §8]
     Note: See note under 112.455.
     112.535
Payment by insurance company, financial institution, trustee or obligor; no
additional liability. Any
insurance company making payment according to the terms of its policy, or any
financial institution, trustee or other person performing an obligation to a
slayer of a decedent or an abuser of a decedent is not subject to additional
liability because of ORS 112.455 to 112.555 if the payment or performance is
made without written notice by a claimant of a claim arising under those
sections. Upon receipt of written notice the person to whom it is directed may
withhold any disposition of the property pending determination of the duties of
the person. [1969 c.591 §66; 1997 c.631 §403; 2005 c.270 §9]
     Note: See note under 112.455.
     112.545
Rights of persons without notice dealing with slayer or abuser. ORS 112.455 to 112.555 do not affect the
rights of any person who for value and without notice purchases or agrees to
purchase property that a slayer of a decedent or an abuser of a decedent would
have acquired except for ORS 112.455 to 112.555, but all proceeds received by
the slayer or abuser from the sale shall be held by the slayer or abuser in
trust for the persons entitled to the property as provided in ORS 112.455 to
112.555. The slayer or abuser is liable for any portion of the proceeds of the
sale that the slayer or abuser spends and for the difference, if any, between
the amount received from the sale and the actual value of the property. [1969
c.591 §67; 2005 c.270 §10]
     Note: See note under 112.455.
     112.555
Evidence of felonious and intentional killing; conviction as conclusive. A final judgment of conviction of felonious
and intentional killing is conclusive for purposes of ORS 112.455 to 112.555.
In the absence of a conviction of felonious and intentional killing the court
may determine by a preponderance of evidence whether the killing was felonious
and intentional for purposes of ORS 112.455 to 112.555. [1969 c.591 §68; 1973
c.506 §18]
UNIFORM
SIMULTANEOUS DEATH ACT
     112.570
Definitions for ORS 112.570 to 112.590. As used in ORS 112.570 to 112.590:
     (1) “Co-owners with right of survivorship”
means joint tenants, tenants by the entirety and any other co-owners of
property or accounts that are held in a manner that entitles one or more of the
owners to ownership of the whole of the property or account upon the death of
one or more of the other owners.
     (2) “Governing instrument” means:
     (a) A deed;
     (b) A will;
     (c) A trust;
     (d) An insurance or annuity policy account
with a payable-on-death designation;
     (e) A pension, profit-sharing, retirement
or similar benefit plan;
     (f) An instrument creating or exercising a
power of appointment or a power of attorney; or
     (g) Any other dispositive, appointive or
nominative instrument of a type similar to those instruments specified in this
subsection.
     (3) “Payor” means a trustee, insurer,
employer, governmental agency, political subdivision or any other person authorized
or obligated by law or by a governing instrument to make payments. [1999 c.131 §1]
     Note: 112.570 to 112.590 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
112 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     112.572
Requirement of survival.
Except as provided in ORS 112.586, if the title to property, the devolution of
property, the right to elect an interest in property or the right to exempt
property depends upon whether a specified person survives the death of another
person, the specified person shall be deemed to have died before the other
person unless it is established by clear and convincing evidence that the
specified person survived the other person by at least 120 hours. [1999 c.131 §2]
     Note: See note under 112.570.
     112.575 [Formerly 112.010; repealed by 1999 c.131 §11]
     112.578
Construction of survivorship provisions in governing instruments. Except as provided in ORS 112.586, if a
governing instrument contains a provision the operation of which is conditioned
on whether a specified person survives the death of another person or survives
another event, the specified person shall be deemed to have died before the
other person or before the other event unless it is established by clear and
convincing evidence that the specified person survived the other person or
event by at least 120 hours. [1999 c.131 §3]
     Note: See note under 112.570.
     112.580
Co-owners with right of survivorship; requirement of survival. (1) Except as provided in ORS 112.586, if
property is held by two co-owners with right of survivorship and both co-owners
are deceased, one-half of the property passes as if one co-owner had survived
the second co-owner by 120 hours or more, and one-half of the property passes
as if the second co-owner had survived the first co-owner by 120 hours or more,
unless it is established by clear and convincing evidence that one of two
co-owners survived the other co-owner by at least 120 hours.
     (2) Except as provided in ORS 112.586, if
property is held by more than two co-owners and it is not established by clear
and convincing evidence that at least one of the owners survived the others by
at least 120 hours, the property passes in the proportion that one bears to the
whole number of co-owners. [1999 c.131 §4]
     Note: See note under 112.570.
     112.582
Evidence of death or status.
(1) For the purpose of establishing death under the survivorship rules
established under ORS 112.570 to 112.590, death occurs when an individual has
sustained irreversible cessation of circulatory and respiratory functions, or
when there has been an irreversible cessation of all functions of the entire
brain, including the brain stem. A determination of death must be made in
accordance with accepted medical standards.
     (2)(a) For the purpose of establishing
death under the survivorship rules established under ORS 112.570 to 112.590, a
certified or authenticated copy of a death certificate purporting to be issued
by an official or agency of the place where the death is alleged to have
occurred is prima facie evidence of the identity of the decedent and of the
fact, place, date and time of death.
     (b) A certified or authenticated copy of
any record or report of a governmental agency, domestic or foreign, that an
individual is missing, detained, dead or alive is prima facie evidence of the
status of the person and of the dates, circumstances and places disclosed by
the record or report.
     (3) In the absence of prima facie evidence
of death under subsection (2) of this section, the facts surrounding a personÂ’s
death may be established by clear and convincing evidence. Circumstantial
evidence may be considered in determining whether a person has died and the circumstances
of the death.
     (4) An individual whose death is not
otherwise established under this section but who is absent for a continuous
period of five years is presumed to be dead if the person has made no contact
with another person during the five-year period and the absence of the person
cannot be satisfactorily explained after diligent search or inquiry. A person
presumed dead under this subsection is presumed to have died at the end of the
five-year period unless it is proved by a preponderance of the evidence that
death occurred at a different time.
     (5) In the absence of evidence
contradicting a time of death specified in a document described in subsection
(2) of this section, a document described in subsection (2) of this section
that indicates a time of death 120 hours or more after the time of death of
another person conclusively establishes that the person specified in the
document survived the other person by at least 120 hours, without regard to the
manner in which the time of death of the other person is determined. [1999
c.131 §5]
     Note: See note under 112.570.
     112.585 [Formerly 112.020; repealed by 1999 c.131 §11]
     112.586
Exceptions. (1) The
survivorship rules established under ORS 112.570 to 112.590 do not apply in any
situation in which application would result in escheat of an intestate estate
to the state.
     (2) The survivorship rules established
under ORS 112.570 to 112.590 do not apply if a governing instrument contains
language that specifically addresses the possibility of simultaneous deaths or
deaths in a common disaster, and the language of the instrument is controlling
under the circumstances of the deaths.
     (3) The survivorship rules established
under ORS 112.570 to 112.590 do not apply if a governing instrument expressly
provides that a person is not required to survive the death of another person
or to survive another event by any specified period.
     (4) The survivorship rules established
under ORS 112.570 to 112.590 do not apply if the governing instrument expressly
requires the person to survive the death of another person or to survive
another event for a specified period of time other than provided under the
survivorship rules established under ORS 112.570 to 112.590. If the governing
instrument so provides, survival of the death of the other person or survival
of the other event by at least the specified amount of time must be established
by clear and convincing evidence.
     (5) The survivorship rules established
under ORS 112.570 to 112.590 do not apply if application of those rules would
cause a nonvested property interest or a power of appointment to be invalid
under ORS 105.950 (1)(a), (2)(a) or (3)(a). In cases subject to this
subsection, survival of the death of the other person or survival of the other
event must still be established by clear and convincing evidence.
     (6) The survivorship rules established
under ORS 112.570 to 112.590 do not apply in cases in which there are multiple
governing instruments and application of the rules to the governing instruments
would result in an unintended failure or duplication of a disposition. In cases
subject to this subsection, survival of the death of the other person or
survival of the other event must still be established by clear and convincing
evidence. [1999 c.131 §6]
     Note: See note under 112.570.
     112.588
Protection of payors and other third parties. (1) Unless a payor or other third party has received written notice of
a claim under subsection (2) of this section, the payor or other third party is
not liable for making a payment to, transferring property to, or conferring any
other benefit on a person who appears to be entitled to the payment, property
or benefit under a good faith reading of a governing instrument but who is not
entitled to the payment, property or benefit by reason of the survivorship
rules established under ORS 112.570 to 112.590. A payor or other third party is
liable for a payment, property or other benefit conveyed after the payor or
other third party receives written notice of a claim under subsection (2) of
this section.
     (2) Written notice of a claim that a
person is not entitled to payment, property or other benefit by reason of the
survivorship rules established under ORS 112.570 to 112.590 must be:
     (a) Mailed to the main office or home of a
payor or other third party by registered or certified mail, return receipt
requested; or
     (b) Served upon the payor or other third
party in the manner provided by ORCP 7 for service of summons in a civil
action.
     (3) Upon receipt of written notice of a
claim under subsection (2) of this section, a payor or other third party may
deposit any money or property that is subject to the claim with any court
conducting probate proceedings for one of the decedentsÂ’ estates. If probate
proceedings have not been commenced, the money or property may be deposited
with the court with probate jurisdiction in the county in which one of the
decedents resided. The court shall hold the funds or property and shall
determine the rights of all parties under the governing instrument. Deposits
made with the court under this subsection discharge the payor or other third
party from all claims for the value of amounts paid to or items of property
deposited with the court. [1999 c.131 §7]
     Note: See note under 112.570.
     112.590
Protection of bona fide purchasers; personal liability of recipient. (1) Unless the person has notice of the
claim at the time the purchase, payment or delivery is made, a person who
purchases property for value, or who receives payment, property or other
benefit in full or partial satisfaction of a legally enforceable obligation, is
not liable to another person with a claim to the payment, property or benefit
by reason of the operation of the survivorship rules established under ORS
112.570 to 112.590 and need not return the payment, property or other benefit.
     (2) A person who receives payment,
property, or other benefit to which the person is not entitled by reason of the
survivorship rules established under ORS 112.570 to 112.590 must return the
payment, property or other benefit if:
     (a) The person was aware of a claim to the
payment, property or other benefit under the survivorship rules established
under ORS 112.570 to 112.590 at the time the purchase, payment or delivery was
made; or
     (b) The person received the payment,
property or other benefit for no value.
     (3) A person who receives any payment,
property or other benefit to which the person is not entitled because any part
of ORS 112.570 to 112.590 is preempted by federal law must return the payment,
property or other benefit if the person received the payment, property or other
benefit for no value.
     (4) Any person who is required to return
any payment, property or other benefit under this section and who does not
return the payment, property or other benefit is personally liable to a person
with a right to the property under the survivorship rules established under ORS
112.570 to 112.590 or with a right to the property by reason of federal
preemption of all or part of the survivorship rules. [1999 c.131 §8]
     Note: See note under 112.570.
     112.595 [Formerly 112.030; repealed by 1999 c.131 §11]
     112.605 [1969 c.591 §72; repealed by 1999 c.131 §11]
     112.615 [Formerly 112.040; repealed by 1999 c.131 §11]
     112.625 [Formerly 112.060; repealed by 1999 c.131 §11]
     112.635 [Formerly 112.070; repealed by 1999 c.131 §11]
     112.645 [Formerly 112.080; repealed by 1999 c.131 §11]
     112.650 [1975 c.480 §9 (enacted in lieu of 112.675);
repealed by 2001 c.245 §19]
     112.652 [1975 c.480 §2 (enacted in lieu of 112.675);
1981 c.55 §1; repealed by 2001 c.245 §19]
     112.655 [1975 c.480 §3 (enacted in lieu of 112.675);
1981 c.55 §2; repealed by 2001 c.245 §19]
     112.657 [1975 c.480 §4 (enacted in lieu of 112.675);
1981 c.55 §3; repealed by 2001 c.245 §19]
     112.660 [1975 c.480 §5 (enacted in lieu of 112.675);
1981 c.55 §4; repealed by 2001 c.245 §19]
     112.662 [1975 c.480 §6 (enacted in lieu of 112.675);
repealed by 2001 c.245 §19]
     112.665 [1975 c.480 §7 (enacted in lieu of 112.675);
1981 c.55 §5; repealed by 2001 c.245 §19]
     112.667 [1975 c.480 §8 (enacted in lieu of 112.675);
repealed by 2001 c.245 §19]
     112.675 [1969 c.591 §77; repealed by 1975 c.480 §1
(112.650 to 112.667 enacted in lieu of 112.675)]
DOWER AND CURTESY
ABOLISHED
     112.685
Dower and curtesy abolished.
Dower and curtesy, including inchoate dower and curtesy, are abolished, but any
right to or estate of dower or curtesy of the surviving spouse of any person
who died before July 1, 1970, shall continue and be governed by the law in
effect immediately before that date. [1969 c.591 §78]
     112.695
Statute of limitation for recovery of dower or curtesy. No action or suit shall be brought after 10
years from the death of a decedent to recover or reduce to possession curtesy
or dower by the surviving spouse of the decedent. [Formerly 113.090]
UNIFORM
DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACT
     112.705
Short title. ORS 112.705 to
112.775 may be cited as the Uniform Disposition of Community Property Rights at
Death Act. [1973 c.205 §11]
     112.715
Application to certain property. ORS 112.705 to 112.775 apply to the disposition at death of the
following property acquired by a married person:
     (1) All personal property, wherever
situated:
     (a) Which was acquired as or became, and
remained, community property under the laws of another jurisdiction; or
     (b) All or the proportionate part of that
property acquired with the rents, issues, or income of, or the proceeds from,
or in exchange for, that community property; or
     (c) Traceable to that community property.
     (2) All or the proportionate part of any
real property situated in this state which was acquired with the rents, issues
or income of, the proceeds from, or in exchange for, property acquired as or
which became, and remained, community property under the laws of another
jurisdiction, or property traceable to that community property. [1973 c.205 §1]
     112.725
Rebuttable presumptions. In
determining whether ORS 112.705 to 112.775 apply to specific property the
following rebuttable presumptions apply:
     (1) Property acquired during marriage by a
spouse of that marriage while domiciled in a jurisdiction under whose laws
property could then be acquired as community property is presumed to have been
acquired as or to have become, and remained, property to which ORS 112.705 to
112.775 apply; and
     (2) Real property situated in this state
and personal property wherever situated acquired by a married person while
domiciled in a jurisdiction under whose laws property could not then be
acquired as community property, title to which was taken in a form which
created rights of survivorship, is presumed not to be property to which ORS
112.705 to 112.775 apply. [1973 c.205 §2]
     112.735
One-half of property not subject to testamentary disposition or right to elect
against will. Upon death of
a married person, one-half of the property to which ORS 112.705 to 112.775
apply is the property of the surviving spouse and is not subject to
testamentary disposition by the decedent or distribution under the laws of
succession of this state. One-half of that property is the property of the
decedent and is subject to testamentary disposition or distribution under the
laws of succession of this state. With respect to property to which ORS 112.705
to 112.775 apply, the one-half of the property which is the property of the
decedent is not subject to the surviving spouseÂ’s right to elect against the
will. [1973 c.205 §3]
     112.745
Proceedings to perfect title.
If the title to any property to which ORS 112.705 to 112.775 apply was held by
the decedent at the time of death, title of the surviving spouse may be
perfected by an order of the probate court or by execution of an instrument by
the personal representative or the heirs or devisees of the decedent with the
approval of the court. Neither the personal representative nor the court in
which the decedentÂ’s estate is being administered has a duty to discover or
attempt to discover whether property held by the decedent is property to which
ORS 112.705 to 112.775 apply, unless a written demand is made by the surviving
spouse or the spouse’s successor in interest. [1973 c.205 §4]
     112.755
Who may institute proceedings.
If the title to any property to which ORS 112.705 to 112.775 apply is held by
the surviving spouse at the time of the decedentÂ’s death, the personal
representative or an heir or devisee of the decedent may institute an action to
perfect title to the property. The personal representative has no fiduciary
duty to discover or attempt to discover whether any property held by the
surviving spouse is property to which ORS 112.705 to 112.775 apply, unless a
written demand is made by an heir, devisee, or creditor of the decedent. [1973
c.205 §5]
     112.765
Rights of purchaser. (1) If
a surviving spouse has apparent title to property to which ORS 112.705 to
112.775 apply, a purchaser for value or a lender taking a security interest in
the property takes interest in the property free of any rights of the personal
representative or an heir or devisee of the decedent.
     (2) If a personal representative or an
heir or devisee of the decedent has apparent title to property to which ORS
112.705 to 112.775 apply, a purchaser for value or a lender taking a security
interest in the property takes interest in the property free of any rights of
the surviving spouse.
     (3) A purchaser for value or a lender need
not inquire whether a vendor or borrower acted properly.
     (4) The proceeds of a sale or creation of
a security interest shall be treated in the same manner as the property
transferred to the purchaser for value or a lender. [1973 c.205 §6]
     112.775
Application and construction.
(1) ORS 112.705 to 112.775 do not affect rights of creditors with respect to
property to which ORS 112.705 to 112.775 apply.
     (2) ORS 112.705 to 112.775 do not prevent
married persons from severing or altering their interests in property to which
ORS 112.705 to 112.775 apply.
     (3) ORS 112.705 to 112.775 do not
authorize a person to dispose of property by will if it is held under
limitations imposed by law preventing testamentary disposition by that person.
     (4) ORS 112.705 to 112.775 shall be so
applied and construed as to effectuate their general purpose to make uniform
the law with respect to the subject of ORS 112.705 to 112.775 among those
states which enact it. [1973 c.205 §§7,8,9,10]
DISPOSITION OF
WILLS
     112.800
Definition for ORS 112.800 to 112.830. As used in ORS 112.800 to 112.830, unless the context requires
otherwise, “person” means a natural person, a partnership, a corporation, a
bank, a trust company and any other organization or legal entity. [1989 c.770 §1]
     Note: 112.800 to 112.830 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
112 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     112.805
Exclusive manner of disposing of wills; destroyed will not revoked. (1) Any person having custody of a will has
a duty to maintain custody of the will and may not destroy or discard the will,
disclose its contents to any person or deliver the will to any person except as
authorized by the testator or as permitted by ORS 112.800 to 112.830.
     (2) Nothing in ORS 112.800 to 112.830 bars
a testator from destroying, revoking, delivering to any person or otherwise
dealing with the will of the testator.
     (3) A will destroyed in accordance with
ORS 112.800 to 112.830 shall not be revoked by virtue of such destruction and
its contents may be proved by secondary evidence. [1989 c.770 §§2,7,10]
     Note: See note under 112.800.
     112.810
Duties of custodian of will.
(1) Any person having custody of a will:
     (a) Shall deliver the will to the testator
upon demand from the testator, unless the person having custody of the will is
an attorney and is entitled to retain the will pursuant to ORS 87.430;
     (b) May at any time deliver the will to
the testator;
     (c) Upon demand from the conservator,
shall deliver the will to a conservator for the testator;
     (d) Upon demand from the attorney-in-fact,
shall deliver the will to an attorney-in-fact acting under a durable power of
attorney signed by the testator expressly authorizing the attorney-in-fact to
demand custody of the will;
     (e) May deliver the will to any attorney
licensed to practice law in Oregon willing to accept delivery of the will if
the person does not know or cannot ascertain, upon diligent inquiry, the
address of the testator; or
     (f) Shall deliver the will to a court
having jurisdiction of the estate of the testator or to a personal
representative named in the will within 30 days after the date of receiving
information that the testator is dead.
     (2) With respect to a will held in a safe
deposit box, compliance with ORS 708A.655, 722.660 or 723.844 by the financial
institution, trust company, savings association or credit union within which
the box is located shall be deemed to be compliance with the requirements of
this section. [1989 c.770 §3; 1999 c.506 §3]
     Note: See note under 112.800.
     112.815
Conditions for disposal of will. An attorney who has custody of a will may dispose of the will in
accordance with ORS 112.820 if:
     (1) The attorney is licensed to practice
law in the State of
     (2) At least 40 years has elapsed since
execution of the will;
     (3) The attorney does not know and after
diligent inquiry cannot ascertain the address of the testator; and
     (4) The will is not subject to a contract
to make a will or devise or not to revoke a will or devise. [1989 c.770 §4]
     Note: See note under 112.800.
     112.820
Procedure for destruction of will; filing of affidavit; fee. (1) An attorney authorized to destroy a will
under ORS 112.815 may proceed as follows:
     (a) The attorney shall first publish a
notice in a newspaper of general circulation in the county of the last-known
address of the testator, if any, otherwise in the county of the principal place
of business of the attorney. The notice shall state the name of the testator,
the date of the will and the intent of the attorney to destroy the will if the
testator does not contact the attorney within 90 days after the date of the
notice.
     (b) If the testator fails to contact the
attorney within 90 days after the date of the notice, the attorney may destroy
the will.
     (c) Within 30 days after destruction of
the will, the attorney shall file with the probate court in the county where
the notice was published an affidavit stating the name of the testator, the
name and relationship of each person named in the will whom the testator
identified as related to the testator by blood, adoption or marriage, the date
of the will, proof of the publication and the date of destruction.
     (d) The clerk of the probate court shall
charge and collect a fee of $17 for filing of the affidavit.
     (2) If a will has not been admitted to
probate within 40 years following the death of the testator, an attorney having
custody of the will may destroy the will without notice to any person or court.
[1989 c.770 §§5,6; 2003 c.737 §§56,57; 2005 c.702 §§65,66,67]
     Note: Section 15 (18), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (18) In addition to the
fee provided for in ORS 112.820 (1)(d), for the period commencing September 1,
2007, and ending June 30, 2009, the clerk of the probate court shall collect a
surcharge of $1 for filing of an affidavit under ORS 112.820 (1). [2007 c.860 §15(18)]
     Note: See note under 112.800.
     112.825
Liability for destruction of will. A person who violates any provision of ORS 112.800 to 112.830 shall be
liable to any person injured by such violation for any damages sustained
thereby. An attorney who destroys a will in accordance with ORS 112.800 to
112.830 shall not be liable to the testator or any other person for such
destruction or disposal. [1989 c.770 §8]
     Note: See note under 112.800.
     112.830
Court may order delivery of will. If it appears to a court having jurisdiction of the estate of a
decedent that a person has custody of a will made by the decedent, the court
may issue an order requiring that person to deliver the will to the court. [1989
c.770 §9]
     Note: See note under 112.800.
_______________
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