2007 Oregon Code - Chapter 114 :: Chapter 114 - Administration of Estates Generally
Chapter 114 —
Administration of Estates Generally
2007 EDITION
ADMINISTRATION OF ESTATES GENERALLY
PROBATE LAW
SUPPORT OF SPOUSE AND CHILDREN
114.005Â Â Â Â Occupancy
of family abode by spouse and children
114.015Â Â Â Â Support
of spouse and children
114.025Â Â Â Â Petition
for support and answer
114.035Â Â Â Â Temporary
support
114.045Â Â Â Â Modification
or termination of support
114.055Â Â Â Â Nature
of support
114.065Â Â Â Â Limitations
on support
114.075Â Â Â Â Priority
of support; treated as administration expense
114.085Â Â Â Â Setting
apart whole estate for support; termination of administration
ELECTIVE SHARE OF SURVIVING SPOUSE
114.105Â Â Â Â Right
to elective share; effect of election
114.115Â Â Â Â Election
barred by agreement
114.125Â Â Â Â Elective
share limited by total property received
114.135Â Â Â Â Denial
of election or share reduction when decedent and surviving spouse living apart
114.145Â Â Â Â What
constitutes election
114.155Â Â Â Â Election
by court or conservator of surviving spouse
114.165Â Â Â Â Payment
of elective share
TITLE AND POSSESSION OF PROPERTY
114.205Â Â Â Â No
distinction between real and personal property
114.215Â Â Â Â Devolution
of and title to property
114.225Â Â Â Â Possession
and control of decedentÂ’s estate
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
114.255Â Â Â Â Commencement
of duties and powers of personal representative; prior acts
114.265Â Â Â Â General
duties of personal representative
114.275Â Â Â Â Personal
representative to proceed without court order; application for authority,
approval or instructions
114.285Â Â Â Â Naming
or appointment of personal representative does not discharge claim
114.295Â Â Â Â Discharge
or devise in will of claim of testator
114.305Â Â Â Â Transactions
authorized for personal representative
114.315Â Â Â Â Right
to perfect lien or security interest
114.325Â Â Â Â Power
to sell, mortgage, lease and deal with property
114.333Â Â Â Â Transfer
of title and interest to real property by foreign personal representative
114.335Â Â Â Â Court
order for sale, mortgage or lease
114.345Â Â Â Â Title
conveyed free of claims of creditors
114.355Â Â Â Â
114.365Â Â Â Â Validation
of certain sales
114.375Â Â Â Â Nonliability
of transfer agents
114.385Â Â Â Â Persons
dealing with personal representative; protection
114.395Â Â Â Â Improper
exercise of power; breach of fiduciary duty
114.405Â Â Â Â Personal
liability of personal representative
114.415Â Â Â Â Copersonal
representatives; when joint action required
114.425Â Â Â Â Discovery
of property, writings and information
114.435Â Â Â Â Power
to avoid transfers
SMALL ESTATES
114.505Â Â Â Â Definitions
for ORS 114.505 to 114.560
114.515Â Â Â Â Value
of estate; where affidavit filed; fee; amended affidavit; supplemental
affidavit
114.520Â Â Â Â Authorization
from Department of State Lands required for filing of affidavit by creditor if
decedent dies intestate and without heirs; rules
114.525Â Â Â Â Content
of affidavit
114.535Â Â Â Â Transfer
of decedentÂ’s property to affiant; proceedings to compel transfer
114.540Â Â Â Â Procedure
for claims; disallowance; summary determination
114.545Â Â Â Â Duties
of person filing affidavit; payment of claims; conveyance of real property;
liability of person to whom property transferred or payment made
114.550Â Â Â Â Summary
review of administration of estate; hearing
114.555Â Â Â Â Effect
of failure to appoint personal representative
114.560Â Â Â Â Exclusive
remedy
SUPPORT OF SPOUSE AND CHILDREN
     114.005
Occupancy of family abode by spouse and children. The spouse and dependent children of a
decedent, or any of them, may continue to occupy the principal place of abode
of the decedent until one year after the death of the decedent or, if the
estate therein is an estate of leasehold or an estate for the lifetime of
another, until one year after the death of the decedent or the earlier
termination of the estate. During that occupancy:
     (1) The occupants shall not commit or
permit waste to the abode, or cause or permit mechanicÂ’s or materialmanÂ’s or
other liens to attach thereto.
     (2) The occupants shall keep the abode
insured, to the extent of the fair market value of the improvements, against
fire and other hazards within the extended coverage provided by fire insurance
policies. In the event of loss or damage from those hazards, to the extent of
the proceeds of the insurance, they shall restore the abode to its former
condition.
     (3) The occupants shall pay taxes and
improvement liens on the abode as payment thereof becomes due.
     (4) The abode is exempt from execution to
the extent that it was exempt when the decedent was living. [1969 c.591 §103]
     114.010 [Repealed by 1969 c.591 §305]
     114.015
Support of spouse and children.
The court by order shall make necessary and reasonable provision from the
estate of a decedent for the support of the spouse and dependent children of
the decedent, or any of them, upon:
     (1) Petition therefor by or on behalf of
the spouse or any dependent child;
     (2) Service of the petition and notice of
hearing thereon to the personal representative, unless the petitioner is the
personal representative;
     (3) Notice to persons whose distributive
shares of the estate may be diminished by the granting of the petition, unless
the court by order directs otherwise; and
     (4) Hearing. [1969 c.591 §104]
     114.020 [Amended by 1955 c.69 §1; repealed by 1969
c.591 §305]
     114.025
Petition for support and answer. (1) The petition for support under ORS 114.015 shall include a
description of property, other than property of the estate, available for the
support of the spouse and children, and an estimate of the expenses anticipated
for their support. If the petitioner is the personal representative, the
petition shall also include, so far as known, a statement of the nature and
estimated value of the property of the estate and of the nature and estimated
amount of claims, taxes and expenses of administration.
     (2) If the personal representative is not
the petitioner, the personal representative shall answer the petition for support.
The answer shall include, so far as known, a statement of the nature and
estimated value of the property of the estate and of the nature and estimated
amount of claims, taxes and expenses of administration. [1969 c.591 §105]
     114.030 [Repealed by 1969 c.591 §305]
     114.035
Temporary support. Pending
hearing upon the petition under ORS 114.015, temporary support may be allowed
by order of the court in an amount and of a nature the court considers
reasonably necessary for the welfare of the surviving spouse and dependent
children of the decedent or any of them. [1969 c.591 §106]
     114.040 [Repealed by 1969 c.591 §305]
     114.045
Modification or termination of support. Provision for support under ORS 114.015 ordered by the court may be
modified or terminated by the court by further order. [1969 c.591 §107]
     114.050 [Repealed by 1969 c.591 §305]
     114.055
Nature of support. (1)
Provision for support under ORS 114.015 ordered by the court may consist of any
one or more of the following:
     (a) Transfer of title to personal
property.
     (b) Transfer of title to real property.
     (c) Periodic payment of moneys during
administration of the estate, but the payments may not continue for more than
two years after the date of death of the decedent.
     (2) The court, in determining provision
for support, shall take into consideration the solvency of the estate, property
available for support other than property of the estate, and property of the
estate inherited by or devised to the spouse and children. [1969 c.591 §108]
     114.060 [Repealed by 1969 c.591 §305]
     114.065
Limitations on support. If
it appears to the court that after provision for support under ORS 114.015 is
made the estate will be insolvent, the provision for support ordered by the
court shall not exceed one-half of the estimated value of the property of the
estate, and any periodic payment of moneys so ordered shall not continue for
more than one year after the date of death of the decedent. [1969 c.591 §109]
     114.070 [1957 c.345 §1; repealed by 1969 c.591 §305]
     114.075
Priority of support; treated as administration expense. Subject to the limitations imposed by ORS
114.065, provision for support under ORS 114.015 ordered by the court has
priority over claims and expenses of administration. The provision shall not be
charged against the distributive share of the person receiving support. The
provision shall be treated as an expense of administration, but shall not be a
deduction for inheritance tax purposes. [1969 c.591 §110]
     114.085
Setting apart whole estate for support; termination of administration. If it appears, after the expiration of four
months after the date of the first publication of notice to interested persons,
that reasonable provision for support of the spouse and dependent children of
the decedent, or any of them, warrants that the whole of the estate, after
payment of claims, taxes and expenses of administration, be set apart for such
support, the court may so order. There shall be no further proceeding in the
administration of the estate, and the estate shall summarily be closed. [1969
c.591 §111]
ELECTIVE
SHARE OF SURVIVING SPOUSE
     114.105
Right to elective share; effect of election. (1) If a decedent is domiciled in this state at the time of death and
dies testate, the surviving spouse of the decedent has a right to elect to take
the share provided by this section. The elective share consists of one-fourth
of the value of the net estate of the decedent, but the elective share shall be
reduced by the value of the following property given to the surviving spouse
under the will of the decedent:
     (a) Property given outright;
     (b) The present value of legal life
estates; and
     (c) The present value of the right of the
surviving spouse to income or an annuity, or a right of withdrawal, from any property
transferred in trust by the will that is capable of valuation with reasonable
certainty without regard to the powers forfeited under subsection (2) of this
section.
     (2) Except as to property applied under
subsection (1) of this section to reduce the elective share, an election to
take under this section forfeits any other right to take under the will and
under the law of intestate succession. If the will would otherwise create a
power of appointment in the surviving spouse, the spouse by electing to take
under this section retains the power only if it is not a general power of
appointment as defined in subsection (4) of this section and the testator has
not provided otherwise, but the spouse forfeits any general power of
appointment. A power to pay more than the income or annuity or withdrawals, the
value of which reduced the elective share under subsection (1)(c) of this
section, or to apply additional principal or income in behalf of the electing
spouse, may not be exercised in favor of the electing spouse.
     (3) The right to elect may be barred under
ORS 114.115, the share limited by ORS 114.125 or the right denied or the share
reduced under ORS 114.135.
     (4) A general power of appointment is one
that the donee may exercise in favor of the donee, the estate of the donee, the
creditors of the donee or the creditors of the estate of the donee, during
lifetime or at death, and includes one under which the donee may convey or
transfer ownership of the property to whomever the donee may choose. A power to
consume, invade or appropriate property for the benefit of the donee that is
limited by an ascertainable standard relating to the health, education, support
or maintenance of the donee shall not be deemed a general power of appointment.
[1969 c.591 §112; 1997 c.99 §22]
     114.110 [Repealed by 1969 c.591 §305]
     114.115
Election barred by agreement.
The right of the surviving spouse to elect under ORS 114.105 may be barred by
the terms of a written agreement signed by both spouses. The agreement may be
entered into before or after marriage. [1969 c.591 §113]
     114.120 [Repealed by 1969 c.591 §305]
     114.125
Elective share limited by total property received. (1) The surviving spouse may not receive by
election under ORS 114.105 any amount which, together with any of the following
property received by the surviving spouse, exceeds one-half of the total of the
following property, such property to be reduced by the amount of the federal
estate tax payable by reason of the property:
     (a) The property passing under the will;
     (b) Joint annuities furnished by the
decedent;
     (c) Proceeds of insurance on the life of
the decedent, whether or not the decedent had any of the incidents of ownership
at the death of the decedent;
     (d) Transfers by the decedent within three
years before the date of death, to the extent the decedent did not receive full
consideration in money or moneyÂ’s worth;
     (e) Transfers by the decedent during the
lifetime of the decedent as to which the decedent retained power, alone or in
conjunction with any other person, to alter, amend, revoke or terminate or to
designate a beneficiary;
     (f) Payments from the employer of the
decedent or from a plan created by the employer or under a contract between the
decedent and the employer of the decedent, excluding workersÂ’ compensation and
Social Security payments;
     (g) Property appointed by the decedent by
will or by deed executed within three years before the date of death, whether
the power is general or special, but only if the property is effectively
appointed in favor of the surviving spouse; and
     (h) Property in the joint names of the
decedent and one or more other persons, except such proportion as is
attributable to consideration furnished by persons other than the decedent.
     (2) For the purpose of subsection (1) of
this section, the surviving spouse is considered to receive:
     (a) Any property as to which the spouse is
given all the income and a general power to appoint the principal.
     (b) Life insurance proceeds settled by the
decedent on option, if the spouse is entitled to the interest and has a general
power to appoint the proceeds or to withdraw proceeds, or if the spouse is
entitled to an annuity for life or installments of the entire principal and
interest for any period equal to or less than the normal life expectancy of the
spouse.
     (3) As used in subsection (1) of this
section, “property in the joint names” means all property held or owned under
any form of ownership with right of survivorship, including cotenancy with
remainder to the survivor; stocks, bonds or bank accounts in the name of two or
more persons payable to the survivor; United States Government bonds in
coownership form or payable on death to a designated person; and shares in
credit unions or savings and loan associations payable on death to a designated
person or in joint form. [1969 c.591 §114]
     114.130 [Amended by 1955 c.266 §1; 1965 c.506 §1;
repealed by 1969 c.591 §305]
     114.135
Denial of election or share reduction when decedent and surviving spouse living
apart. If the decedent and
the surviving spouse were living apart at the time of the death of the
decedent, whether or not there was a judgment for legal separation, the court
in its discretion may deny any right to elect against the will, may reduce the
elective share of the spouse to such amount as the court determines reasonable
and proper or may grant the full elective share in accordance with the
circumstances of the particular case. The court, in deciding what elective
share, if any, should be granted, shall consider the length of the marriage,
whether the marriage was a first or subsequent marriage for either or both of
the spouses, the contribution of the surviving spouse to the property of the
decedent in the form of services or transfers of property, the length and cause
of the separation and any other relevant circumstances. [1969 c.591 §115; 2003
c.576 §374]
     114.140 [Repealed by 1969 c.591 §305]
     114.145
What constitutes election.
The surviving spouse is considered to have elected to take under the will
unless, within 90 days after the date of the admission of the will to probate
or 30 days after the date of the filing of the inventory, whichever is later,
the surviving spouse serves on the personal representative or the attorney of
the personal representative and files in the estate proceeding a statement that
the surviving spouse elects to take under ORS 114.105 instead of under the
will. The surviving spouse may bar any right to take under ORS 114.105 by
filing in the estate proceeding a writing, signed by the spouse, electing to
take under the will. [1969 c.591 §116]
     114.150 [Repealed by 1969 c.591 §305]
     114.155
Election by court or conservator of surviving spouse. An election under ORS 114.105 may be filed
on behalf of a financially incapable surviving spouse by a court acting under
ORS 125.650 or by the conservator of the estate of the spouse. The court or
conservator may elect against the will only if additional assets are needed for
the reasonable support of the surviving spouse, taking into account the probable
needs of the spouse, the provisions of the will, any nonprobate property
arrangements made by the decedent for the support of the spouse and any other
assets, whether or not owned by the spouse, available for such support. The
election is subject to the approval of the court, with or without notice to
other interested persons. [1969 c.591 §117; 1973 c.823 §109; 1995 c.664 §85]
     114.165
Payment of elective share.
Estate property shall be applied in satisfaction of the elective share in the
following order, unless the will provides otherwise:
     (1) Any intestate property;
     (2) After the intestate property is
exhausted, each devisee shall contribute ratably to the elective share out of
the portion of the estate passing to the devisee under the will, except that in
abating the interests of the devisees the character of the testamentary plan
adopted by the testator shall be preserved so far as possible. [1969 c.591 §118]
TITLE AND
POSSESSION OF PROPERTY
     114.205
No distinction between real and personal property. ORS chapters 111, 112, 113, 114, 115, 116
and 117 apply without distinction between real and personal property. [1969
c.591 §119]
     114.210 [Repealed by 1969 c.591 §305]
     114.215
Devolution of and title to property. (1) Upon the death of a decedent, title to the property of the
decedent vests:
     (a) In the absence of testamentary
disposition, in the heirs of the decedent, subject to support of spouse and
children, rights of creditors, administration and sale by the personal
representative; or
     (b) In the persons to whom it is devised
by the will of the decedent, subject to support of spouse and children, rights
of creditors, right of the surviving spouse to elect against the will,
administration and sale by the personal representative.
     (2) The power of a person to leave
property by will, and the rights of creditors, devisees and heirs to the
property of the person, are subject to the restrictions and limitations
expressed or implicit in ORS chapters 111, 112, 113, 114, 115, 116 and 117 to
facilitate the prompt settlement of estates.
     (3) Any animal of a value of less than
$2,500 that belonged to the decedent and that was kept by the decedent as a pet
need not be listed on the inventory of the estate. Any family member of the
decedent, friend of the decedent or animal shelter may take custody of the
animal immediately upon the death of the decedent. A family member, friend or
animal shelter that takes custody of an animal under this subsection is
entitled to payment from the estate for the cost of caring for the animal. A
family member, friend or animal shelter that takes custody of an animal under
this subsection shall deliver the animal to the personal representative for the
decedent, or to any heir or devisee entitled to possession of the animal, upon request
of the personal representative, heir or devisee. [1969 c.591 §120; 1999 c.675 §1]
     114.220 [Repealed by 1969 c.591 §305]
     114.225
Possession and control of decedentÂ’s estate. A personal representative has a right to and shall take possession and
control of the estate of the decedent, but the personal representative is not
required to take possession of or be accountable for property in the possession
of an heir or devisee unless in the opinion of the personal representative
possession by the personal representative is reasonably required for purposes
of administration. [1969 c.591 §121]
     114.230 [Repealed by 1969 c.591 §305]
     114.240 [Repealed by 1969 c.591 §305]
     114.250 [Repealed by 1969 c.591 §305]
DUTIES AND
POWERS OF PERSONAL REPRESENTATIVES
     114.255
Commencement of duties and powers of personal representative; prior acts. The duties and powers of a personal
representative commence upon the issuance of the letters of the personal
representative. The powers of a personal representative relate back in time to
give the acts of the personal representative occurring prior to appointment the
same effect as those occurring thereafter. A personal representative may ratify
and accept acts on behalf of the estate done by others where those acts would
have been proper for a personal representative. [1969 c.591 §122]
     114.260 [Repealed by 1969 c.591 §305]
     114.265
General duties of personal representative. A personal representative is a fiduciary who is under a general duty
to and shall collect the income from property of the estate in the possession
of the personal representative and preserve, settle and distribute the estate
in accordance with the terms of the will and ORS chapters 111, 112, 113, 114,
115, 116 and 117 as expeditiously and with as little sacrifice of value as is
reasonable under the circumstances. [1969 c.591 §123]
     114.270 [Repealed by 1969 c.591 §305]
     114.275
Personal representative to proceed without court order; application for
authority, approval or instructions. A personal representative shall proceed with the administration,
settlement and distribution of the estate without adjudication, order or
direction of the court, except as otherwise provided in ORS chapters 111, 112,
113, 114, 115, 116 and 117. However, a personal representative or any
interested person may apply to the court for authority, approval or
instructions on any matter concerning the administration, settlement or
distribution of the estate, and the court, without hearing or upon such hearing
as it may prescribe, shall instruct the personal representative or rule on the
matter as may be appropriate. [1969 c.591 §124]
     114.285
Naming or appointment of personal representative does not discharge claim. The naming or appointment of any person as
personal representative does not discharge any claim which the decedent had
against that person. The claim shall be included in the inventory. If the
person agrees to act as personal representative, the person is liable for the
claim as for so much money in the hands of the person at the time the claim
becomes due and payable; otherwise the person is liable for the claim as any
other debtor of the decedent. [1969 c.591 §125]
     114.295
Discharge or devise in will of claim of testator. The discharge or devise in a will of a claim
of the testator against a personal representative or against any other person
is of no effect as against creditors of the decedent. The claim shall be
included in the inventory and for purposes of administration shall be regarded
and treated as a specific devise of the amount of the claim. [1969 c.591 §126]
     114.305
Transactions authorized for personal representative. Subject to the provisions of ORS 97.130 (2)
and except as restricted or otherwise provided by the will of the decedent, a
document of anatomical gift under ORS 97.965 or by court order, a personal
representative, acting reasonably for the benefit of interested persons, is
authorized to:
     (1) Direct and authorize disposition of
the remains of the decedent pursuant to ORS 97.130 and incur expenses for the
funeral, burial or other disposition of the remains in a manner suitable to the
condition in life of the decedent. Only those funeral expenses necessary for a
plain and decent funeral and disposition of the remains of the decedent may be
paid from the estate if the assets are insufficient to pay the claims of the
Department of Human Services for the net amount of public assistance, as
defined in ORS 411.010, paid to or for the decedent and for care and
maintenance of any decedent who was at a state institution to the extent
provided in ORS 179.610 to 179.770.
     (2) Retain assets owned by the decedent
pending distribution or liquidation.
     (3) Receive assets from fiduciaries or
other sources.
     (4) Complete, compromise or refuse
performance of contracts of the decedent that continue as obligations of the
estate, as the personal representative may determine under the circumstances.
In performing enforceable contracts by the decedent to convey or lease real
property, the personal representative, among other courses of action, may:
     (a) Execute and deliver a deed upon
satisfaction of any sum remaining unpaid or upon receipt of the note of the
purchaser adequately secured; or
     (b) Deliver a deed in escrow with
directions that the proceeds, when paid in accordance with the escrow
agreement, be paid to the successors of the decedent, as designated in the
escrow agreement.
     (5) Satisfy written pledges of the
decedent for contributions, whether or not the pledges constituted binding
obligations of the decedent or were properly presented as claims.
     (6) Deposit funds not needed to meet
currently payable debts and expenses, and not immediately distributable, in
bank or savings and loan association accounts, or invest the funds in bank or
savings and loan association certificates of deposit, or federally regulated
money-market funds and short-term investment funds suitable for investment by
trustees under ORS 130.750 to 130.775, or short-term United States Government
obligations.
     (7) Abandon burdensome property when it is
valueless, or is so encumbered or is in a condition that it is of no benefit to
the estate.
     (8) Vote stocks or other securities in
person or by general or limited proxy.
     (9) Pay calls, assessments and other sums
chargeable or accruing against or on account of securities.
     (10) Sell or exercise stock subscription
or conversion rights.
     (11) Consent, directly or through a
committee or other agent, to the reorganization, consolidation, merger,
dissolution or liquidation of a corporation or other business enterprise.
     (12) Hold a security in the name of a
nominee or in other form without disclosure of the interest of the estate, but
the personal representative is liable for any act of the nominee in connection
with the security so held.
     (13) Insure the assets of the estate
against damage and loss, and insure the personal representative against
liability to third persons.
     (14) Advance or borrow money with or
without security.
     (15) Compromise, extend, renew or
otherwise modify an obligation owing to the estate. A personal representative
who holds a mortgage, pledge, lien or other security interest may accept a
conveyance or transfer of the encumbered asset in lieu of foreclosure in full
or partial satisfaction of the indebtedness.
     (16) Accept other real property in part
payment of the purchase price of real property sold by the personal
representative.
     (17) Pay taxes, assessments and expenses
incident to the administration of the estate.
     (18) Employ qualified persons, including
attorneys, accountants and investment advisers, to advise and assist the
personal representative and to perform acts of administration, whether or not
discretionary, on behalf of the personal representative.
     (19) Prosecute or defend actions, claims
or proceedings in any jurisdiction for the protection of the estate and of the
personal representative in the performance of duties as personal
representative.
     (20) Prosecute claims of the decedent
including those for personal injury or wrongful death.
     (21) Continue any business or venture in
which the decedent was engaged at the time of death to preserve the value of
the business or venture.
     (22) Incorporate or otherwise change the
business form of any business or venture in which the decedent was engaged at
the time of death.
     (23) Discontinue and wind up any business
or venture in which the decedent was engaged at the time of death.
     (24) Provide for exoneration of the
personal representative from personal liability in any contract entered into on
behalf of the estate.
     (25) Satisfy and settle claims and
distribute the estate as provided in ORS chapters 111, 112, 113, 114, 115, 116
and 117.
     (26) Perform all other acts required or
permitted by law or by the will of the decedent. [1969 c.591 §127; 1969 c.597 §278;
1977 c.211 §1; 1981 c.278 §1; 1995 c.157 §16; 1997 c.472 §10; 2001 c.900 §17;
2005 c.348 §126; 2007 c.681 §25]
     114.310 [Repealed by 1969 c.591 §305]
     114.315
Right to perfect lien or security interest. A personal representative has the same rights to perfect a lien or security
interest as the decedent would have had if the decedent were living. [1969
c.591 §128]
     114.320 [Repealed by 1969 c.591 §305]
     114.325
Power to sell, mortgage, lease and deal with property. (1) A personal representative has power to
sell, mortgage, lease or otherwise deal with property of the estate without
notice, hearing or court order.
     (2) Exercise of the power of sale by the
personal representative is improper, except after notice, hearing and order of
the court, if:
     (a) The sale is in contravention of the
provisions of the will; or
     (b) The property is specifically devised
and the will does not authorize its sale; or
     (c) A bond of the personal representative
has been required and filed, the sale price of the property to be sold exceeds
$5,000 and the bond of the personal representative has not been increased by
the amount of cash to be realized on the sale, unless the court has directed
otherwise. [1969 c.591 §129]
     114.330 [Repealed by 1969 c.591 §305]
     114.333
Transfer of title and interest to real property by foreign personal
representative. Upon
performance of a recorded contract of sale of real property the foreign
personal representative of a deceased vendor whose estate is being administered
in a foreign jurisdiction may convey the title and interest of the vendor in
the property to the vendee or the assignee of the vendee upon recording in the
deed records of the county where the property is located a certified copy of
letters testamentary or of administration. The certificate shall include a
statement that the letters are in effect. [1973 c.506 §28]
     114.335
Court order for sale, mortgage or lease. Upon proof satisfactory to the court by an interested person that a
sale, mortgage or lease of property of the estate is required for paying
support of spouse and children, elective share of surviving spouse, claims or
expenses of administration, or for distribution, and that the personal
representative has failed or declined to act, the court may order the personal
representative to make the sale, mortgage or lease. [1969 c.591 §130]
     114.340 [Repealed by 1969 c.591 §305]
     114.345
Title conveyed free of claims of creditors. Property sold, mortgaged or leased by a personal representative is
subject to liens and encumbrances against the decedent or the estate of the
decedent, but is not subject to rights of creditors of the decedent or liens or
encumbrances against the heirs or devisees of the decedent. The filing and
allowance of a claim in an estate proceeding does not make the claimant a
secured creditor. [1969 c.591 §131]
     114.350 [Repealed by 1963 c.287 §1]
     114.355
     (a) The transaction was consented to by
all interested persons affected thereby; or
     (b) The will expressly authorizes the
transaction by the personal representative; or
     (c) The transaction was made in compliance
with another statute or with a contract or other instrument executed by the
decedent.
     (2) The title of a purchaser for value
without notice of the circumstances of the transaction with the personal
representative is not affected unless the purchaser should have known of the
defect in the title of the seller. [1969 c.591 §132]
     114.360 [Repealed by 1963 c.287 §1]
     114.365
Validation of certain sales.
The following are the subject of validating Acts:
     (1) Certain sales of decedent’s real
property made prior to 1903 where confirmation of sale was premature, validated
by page 133, section 2, General Laws of
     (2) Certain sales of decedent’s property
made prior to 1907 under power in will, validated by chapter 175, General Laws
of
     (3) Certain sales of decedent’s real
property made prior to 1917 where publication of the notice of sale was
improper, validated by section 2, chapter 114, General Laws of
     (4) Certain sales by executors or
administrators made prior to 1943, validated by chapter 26,
     114.370 [Repealed by 1963 c.287 §1]
     114.375
Nonliability of transfer agents. A transfer agent or a corporation transferring its own securities
incurs no liability to any person by making a transfer of securities of an
estate as requested or directed by a personal representative. [1969 c.591 §134]
     114.385
Persons dealing with personal representative; protection. A person dealing with or assisting a
personal representative without actual knowledge that the personal
representative is improperly exercising the power of the personal
representative is protected as if the personal representative properly
exercised the power. The person is not bound to inquire whether the personal
representative is properly exercising the power of the personal representative,
and is not bound to inquire concerning the provisions of any will or any order
of court that may affect the propriety of the acts of the personal
representative. No provision in any will or order of court purporting to limit
the power of a personal representative is effective except as to persons with
actual knowledge thereof. A person is not bound to see to the proper
application of estate assets paid or delivered to a personal representative.
The protection expressed in this section extends to a person dealing with or
assisting a personal representative appointed under ORS 113.085 without actual
knowledge that the personal representative was not qualified as provided in ORS
113.095 or that the appointment of the personal representative involved
procedural irregularity. [1969 c.591 §135]
     114.395
Improper exercise of power; breach of fiduciary duty. If the exercise of power by a personal
representative in the administration of an estate is improper, the personal
representative is liable for breach of fiduciary duty to interested persons for
resulting damage or loss to the same extent as a trustee of an express trust.
Exercise of power in violation of a court order is a breach of duty. Exercise
of power contrary to the provisions of the will may be a breach of duty. [1969
c.591 §136]
     114.405
Personal liability of personal representative. (1) The personal liability of a personal
representative to third parties, as distinguished from fiduciary accountability
to the estate, arising from the administration of the estate is that of an
agent for a disclosed principal.
     (2) A personal representative is not
personally liable on contracts properly entered into in the fiduciary capacity
in the course of administration of the estate unless the personal
representative expressly agrees to be personally liable.
     (3) A personal representative is not
personally liable for obligations arising from possession or control of
property of the estate or for torts committed in the course of administration
of the estate unless the personal representative is personally at fault.
     (4) Claims based upon contracts, obligations
and torts of the types described in subsections (2) and (3) of this section may
be allowed against the estate whether or not the personal representative is
personally liable therefor. [1969 c.591 §137]
     114.410 [Repealed by 1969 c.591 §305]
     114.415
Copersonal representatives; when joint action required. (1) When two or more persons are appointed
copersonal representatives, the concurrence of all is required for all acts
connected with the administration and distribution of the estate, except:
     (a) Any copersonal representative may
receive and receipt for property due the estate.
     (b) When the concurrence of all cannot
readily be obtained in the time reasonably available for emergency action.
     (c) Where any others have delegated their
power to act.
     (d) Where the will provides otherwise.
     (e) Where the court otherwise directs.
     (2) Persons dealing with a copersonal
representative who are actually unaware that another has been appointed to
serve with the person are as fully protected as if the person with whom they
dealt had been the sole personal representative. [1969 c.591 §138]
     114.420 [Repealed by 1969 c.591 §305]
     114.425
Discovery of property, writings and information. (1) The court may order any person to appear
and give testimony by deposition if it appears probable that the person:
     (a) Has concealed, secreted or disposed of
any property of the estate of a decedent;
     (b) Has been entrusted with property of
the estate of a decedent and fails to account therefor to the personal
representative;
     (c) Has concealed, secreted or disposed of
any writing, instrument or document pertaining to the estate;
     (d) Has knowledge or information that is
necessary to the administration of the estate; or
     (e) As an officer or agent of a
corporation, has refused to allow examination of the books and records of the
corporation that the decedent had the right to examine.
     (2) If a person cited as provided in
subsection (1) of this section fails to appear or to answer questions asked as
authorized by the order of the court, the person is in contempt and may be
punished as for other contempts. [1969 c.591 §139; 1979 c.284 §106]
     114.430 [Repealed by 1969 c.591 §305]
     114.435
Power to avoid transfers.
The property liable for the payment of expenses of administration, funeral
expenses, claims and taxes shall include property transferred by the decedent
with intent to defraud the creditors of the decedent or transferred by any
means which is in law void or voidable as against the creditors of the
decedent. The right to recover that property so far as necessary for the
payment of those expenses, claims and taxes is in the personal representative,
who shall take necessary steps to recover it. That property constitutes general
assets for the payment of creditors. [1969 c.591 §140]
     114.440 [Repealed by 1969 c.591 §305]
SMALL ESTATES
     114.505
Definitions for ORS 114.505 to 114.560. As used in ORS 114.505 to 114.560:
     (1) “Affiant” means the person or persons
signing an affidavit filed under ORS 114.515.
     (2) “Claiming successors” means:
     (a) If the decedent died intestate, the
heir or heirs of the decedent, or if there is no heir, an estate administrator
of the Department of State Lands appointed under ORS 113.235;
     (b) If the decedent died testate, the
devisee or devisees of the decedent; and
     (c) Any creditor of the estate entitled to
payment or reimbursement from the estate under ORS 114.545 (1)(c) who has not
been paid or reimbursed the full amount owed such creditor within 60 days after
the date of the decedentÂ’s death.
     (3) “Estate” means decedent’s property
subject to administration in
     114.515
Value of estate; where affidavit filed; fee; amended affidavit; supplemental
affidavit. (1) If the estate
of a decedent meets the requirements of subsection (2) of this section, any of
the following persons may file an affidavit with the clerk of the probate court
in any county where there is venue for a proceeding seeking the appointment of
a personal representative for the estate:
     (a) One or more of the claiming successors
of the decedent.
     (b) If the decedent died testate, any
person named as personal representative in the decedentÂ’s will.
     (2) An affidavit under this section may be
filed only if:
     (a) The fair market value of the estate is
$200,000 or less;
     (b) Not more than $50,000 of the fair
market value of the estate is attributable to personal property; and
     (c) Not more than $150,000 of the fair
market value of the estate is attributable to real property.
     (3) An affidavit under this section may
not be filed until 30 days after the death of the decedent.
     (4) An affidavit filed under the
provisions of this section must contain the information required in ORS 114.525
and shall be made a part of the probate records.
     (5) In determining fair market value under
this section, the fair market value of the entire interest in the property
included in the estate shall be used without reduction for liens or other
debts.
     (6) The clerk of the probate court shall
charge and collect a fee of $23 for the filing of any affidavit under this
section.
     (7) Any error or omission in an affidavit
filed under this section may be corrected by filing an amended affidavit within
four months after the filing of the affidavit.
     (8) One or more supplemental affidavits
may be filed at any time after the filing of an affidavit under this section
for the purpose of including property not described in the original affidavit.
Copies of all previously filed affidavits must be attached to the supplemental
affidavit and all information required in ORS 114.525 must be reflected in the
supplemental affidavit. A supplemental affidavit may not be filed if by reason
of the additional property described in the supplemental affidavit any
limitation imposed by subsection (2) of this section is exceeded. [1973 c.710 §§3,
8; 1977 c.239 §2; 1979 c.467 §1; 1981 s.s. c.3 §36; 1985 c.368 §1; 1985 c.496 §6;
1987 c.586 §28; 1989 c.228 §2; 1989 c.856 §1; 1995 c.682 §1; 1997 c.447 §1;
1997 c.801 §32; 2003 c.737 §§59,60; 2005 c.122 §§1,2; 2005 c.273 §§1,2; 2005
c.702 §§69,70,71]
     Note: Section 3, chapter 273, Oregon Laws 2005,
provides:
     Sec.
3. The amendments to ORS
114.515 by sections 1 and 2 of this 2005 Act apply only to decedents who die on
or after the effective date of this 2005 Act [January 1, 2006]. [2005 c.273 §3]
     Note: Section 15 (19), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (19) In addition to the
fee provided for in ORS 114.515 (6), for the period commencing September 1,
2007, and ending June 30, 2009, the clerk of the probate court shall collect a
surcharge of $1 upon the filing of an affidavit under ORS 114.515. [2007 c.860 §15(19)]
     114.520
Authorization from Department of State Lands required for filing of affidavit
by creditor if decedent dies intestate and without heirs; rules. (1) If a decedent dies intestate and without
heirs, a creditor of an estate who is a claiming successor may not file an
affidavit under ORS 114.515 unless the creditor has received written
authorization from an estate administrator of the Department of State Lands
appointed under ORS 113.235. Except as provided by rule adopted by the Director
of the Department of State Lands, an estate administrator shall consent to the
filing of an affidavit under ORS 114.515 by a creditor only if it appears after
investigation that the estate is insolvent.
     (2) A creditor of an estate who is subject
to subsection (1) of this section may give written notice to an estate
administrator of the Department of State Lands informing the estate
administrator that the creditor intends to file an affidavit under ORS 114.515.
Upon receiving the notice permitted by this subsection, the estate
administrator shall investigate the assets and liabilities of the estate.
Within 30 days after receiving the notice required by this subsection, the
estate administrator shall either:
     (a) Give written authorization to the
creditor for the filing of an affidavit by the creditor under ORS 114.515; or
     (b) Inform the creditor that the
Department of State Lands will file an affidavit as claiming successor under
ORS 114.515.
     (3) If a decedent dies intestate and
without heirs, a creditor of an estate who is a claiming successor and who
files an affidavit under ORS 114.515 must notate at the top of the affidavit
that the affidavit is being filed by a creditor of the estate. If the affidavit
contains the notation required by this subsection, the clerk of the probate
court may not accept the affidavit for filing unless there is attached to the
affidavit written authorization for the filing of the affidavit by the creditor
from an estate administrator of the Department of State Lands. The written
authorization may be a copy of a memorandum of an interagency agreement between
the Department of State Lands and another state agency. [1997 c.88 §2; 2003
c.395 §15]
     114.525
Content of affidavit. An
affidavit filed under ORS 114.515 shall:
     (1) State the name, age, domicile,
post-office address and Social Security number of the decedent;
     (2) State the date and place of the
decedentÂ’s death. A certified copy of the death certificate shall be attached
to the affidavit;
     (3) Describe and state the fair market
value of all property in the estate, including a legal description of any real
property;
     (4) State that no application or petition
for the appointment of a personal representative has been granted in
     (5) State whether the decedent died
testate or intestate, and if the decedent died testate, the will shall be
attached to the affidavit;
     (6) List the heirs of the decedent and the
last address of each heir as known to the affiant, and state that a copy of the
affidavit showing the date of filing and a copy of the will, if the decedent
died testate, will be delivered to each heir or mailed to the heir at the
last-known address;
     (7) If the decedent died testate, list the
devisees of the decedent and the last address of each devisee as known to the
affiant and state that a copy of the will and a copy of the affidavit showing
the date of filing will be delivered to each devisee or mailed to the devisee
at the last-known address;
     (8) State the interest in the property
described in the affidavit to which each heir or devisee is entitled and the
interest, if any, that will escheat;
     (9) State that reasonable efforts have
been made to ascertain creditors of the estate. List the expenses of and claims
against the estate remaining unpaid or on account of which the affiant or any
other person is entitled to reimbursement from the estate, including the known
or estimated amounts thereof and the names and addresses of the creditors as
known to the affiant, and state that a copy of the affidavit showing the date
of filing will be delivered to each creditor who has not been paid in full or
mailed to the creditor at the last-known address;
     (10) Separately list the name and address
of each person known to the affiant to assert a claim against the estate that
the affiant disputes and the known or estimated amount thereof and state that a
copy of the affidavit showing the date of filing will be delivered to each such
person or mailed to the person at the last-known address;
     (11) State that a copy of the affidavit
showing the date of filing will be mailed or delivered to the Department of Human
Services;
     (12) State that claims against the estate
not listed in the affidavit or in amounts larger than those listed in the
affidavit may be barred unless:
     (a) A claim is presented to the affiant
within four months of the filing of the affidavit at the address stated in the
affidavit for presentment of claims; or
     (b) A personal representative of the
estate is appointed within the time allowed under ORS 114.555; and
     (13) If the affidavit lists one or more
claims that the affiant disputes, state that any such claim may be barred
unless:
     (a) A petition for summary determination
is filed within four months of the filing of the affidavit; or
     (b) A personal representative of the
estate is appointed within the time allowed under ORS 114.555. [1973 c.710 §6;
1977 c.239 §3; 1979 c.340 §2; 1989 c.228 §3; 1991 c.191 §3; 1995 c.453 §1; 2001
c.104 §35; 2001 c.620 §2; 2001 c.900 §18a; 2003 c.196 §1; 2003 c.395 §16; 2005
c.22 §93]
     114.535
Transfer of decedentÂ’s property to affiant; proceedings to compel transfer. (1) Any person indebted to the decedent or
having possession of personal property belonging to the estate, to whom a
certified copy of the affidavit filed under ORS 114.515 is delivered by the
affiant on or after the 10th day following the filing of the affidavit, shall
pay, transfer or deliver the personal property to the affiant. Any person who
has received property of the decedent under ORS 446.616, 722.262 or 803.094, or
any similar statute providing for the transfer of property of an estate which is
not being probated shall pay, transfer or deliver the property to the affiant
if the person would be required to pay, transfer or deliver the property to a
personal representative of the estate. The transferor is discharged and
released from any liability or responsibility for the transfer in the same
manner and with the same effect as if the property had been transferred,
delivered or paid to a personal representative of the estate of the decedent.
     (2) A transfer agent of any corporate
security registered in the name of the decedent shall change the registered
ownership on the books of the corporation to the person entitled thereto on
presentation of a certified copy of the affidavit filed under ORS 114.515.
     (3) If a person to whom an affidavit is
delivered refuses to pay, deliver or transfer any personal property to the
affiant or the person entitled to the property as disclosed in the affidavit
filed under ORS 114.515, the property may be recovered or its payment, delivery
or transfer compelled upon proof of the transfereeÂ’s entitlement in a
proceeding brought for the purpose by or on behalf of the transferee.
     (4) If the affidavit was signed by the
Director of Human Services or a designee of the director, the director or the
designee may certify a copy of the affidavit for the purposes described in
subsection (1) or (2) of this section. [1973 c.710 §4; 1979 c.340 §3; 1989
c.228 §4; 1991 c.67 §23; 1997 c.631 §404; 2003 c.196 §2; 2003 c.655 §60]
     114.540
Procedure for claims; disallowance; summary determination. (1) A claim against an estate with respect
to which an affidavit is filed under ORS 114.515 may be presented to the
affiant within four months after the affidavit was filed. If an amended
affidavit is filed under ORS 114.515 (7), claims against the estate must be
filed within four months after the filing of the amended affidavit. If a
supplemental affidavit is filed under ORS 114.515 (8), claims against the
estate must be filed within four months after the filing of the supplemental
affidavit. Each claim presented to the affiant must include the information
required by ORS 115.025.
     (2) A claim presented to the affiant shall
be considered allowed as presented unless within 60 days after the date of
presentment of the claim the affiant mails or delivers a notice of disallowance
of the claim in whole or in part to the claimant and any attorney for the
claimant. A notice of disallowance of a claim shall inform the claimant that
the claim has been disallowed in whole or in part and, to the extent disallowed,
will be barred unless:
     (a) The claimant proceeds as provided in
subsection (3) of this section; or
     (b) A personal representative is appointed
within the time allowed under ORS 114.555.
     (3) A creditor of the estate whose claim
has been presented within the time permitted by subsection (1) of this section
and disallowed by the affiant may within 30 days after the date of mailing or
delivery of the notice of disallowance file with the probate court a petition
for summary determination of the claim by the court. A creditor of the decedent
whose claim is listed in the affidavit as disputed may within four months after
the filing of the affidavit file with the probate court a petition for summary
determination of the creditorÂ’s claim by the court. The court shall hear the
matter without a jury, after notice to the creditor and affiant, and any
interested person may be heard in the proceeding. The claim may be proved as
provided in ORS 115.195 (2). Upon the hearing the court shall determine the
claim in a summary manner and shall make an order allowing or disallowing the
claim in whole or in part. If the court allows the claim in whole or in part,
the order shall direct the affiant, to the extent of property of the estate
allocable to the payment of the claim pursuant to ORS 115.125, or any claiming
successor to whom payment, delivery or transfer has been made under ORS 114.505
to 114.560 as a person entitled thereto as disclosed in the affidavit, to the
extent of the value of the property received, to pay to the creditor the amount
so allowed. No appeal may be taken from the order of the court made upon the
summary determination. [1989 c.228 §7; 2003 c.523 §3; 2005 c.122 §4]
     114.545
Duties of person filing affidavit; payment of claims; conveyance of real property;
liability of person to whom property transferred or payment made. (1) The affiant:
     (a) Shall take control of the property of
the estate coming into the possession of the affiant.
     (b) Within 30 days after filing the
affidavit shall mail, deliver or cause to be recorded each instrument which the
affidavit states will be mailed, delivered or recorded.
     (c) From and to the extent of the property
of the estate, shall pay or reimburse any person who has paid:
     (A) Expenses described in ORS 115.125
(1)(b) and (c) and listed in the affidavit;
     (B) Claims listed in the affidavit as
undisputed;
     (C) Allowed claims presented to the
affiant within the time permitted by ORS 114.540; and
     (D) Claims which the probate court directs
the affiant to pay.
     (d) Shall pay claims and expenses under
paragraph (c) of this subsection in the order of priority prescribed by ORS
115.125.
     (e) May transfer or sell any vehicle that
is part of the estate before the completion of the period established under ORS
114.555 if the affiant complies with the requirements established by the
Department of Transportation for such purposes under ORS 803.094.
     (f) May convey any real or personal
property that is part of the estate before the completion of the period
established under ORS 114.555, provided that each heir or devisee succeeding to
the interest conveyed joins in the conveyance and that any proceeds of sale,
net of the reasonable expenses of sale and any debt secured as of the date of
the decedentÂ’s death by a duly perfected lien on the property, shall become a
part of the estate subject to ORS 114.505 to 114.560. If the property is a
manufactured structure as defined in ORS 446.561, the affiant must assign
interest in the structure as provided in ORS 446.616. Any conveyance to a purchaser
in good faith and for a valuable consideration made by the affiant and the heir
or devisee succeeding to the interest conveyed, or made by the heir or devisee
succeeding to the interest conveyed after completion of the period established
under ORS 114.555, conveys the interest stated in the conveyance free of any
interest of the claiming successors, and the purchaser has no duty with respect
to application of the consideration paid for the conveyance.
     (2) Any claiming successor to whom
payment, delivery or transfer is made under ORS 114.505 to 114.560 as a person
entitled thereto as disclosed in the affidavit is personally answerable and
accountable:
     (a) To the extent of the value of the
property received, to creditors of the estate to the extent such creditors are
entitled to payment under subsection (1) of this section; and
     (b) To any personal representative of the
estate of the decedent thereafter appointed.
     (3) The affiant shall cause to be recorded
in the deed records of any county in which real property belonging to the
decedent is situated an affiant or claiming successorÂ’s deed executed in the
manner required by ORS chapter 93.
     (4) For a manufactured structure as
defined in ORS 446.561 belonging to a decedent and assessed as personal property,
the affiant shall file with the Department of Consumer and Business Services
the necessary information for recording the successorÂ’s interest in the
manufactured structure on an ownership document. [1973 c.710 §7; 1979 c.340 §4;
1985 c.300 §5; 1989 c.148 §6; 1989 c.228 §5; 1991 c.191 §4; 2003 c.655 §61]
     114.550
Summary review of administration of estate; hearing. The affiant or any claiming successor of the
estate who has not been paid the full amount owed such claiming successor may,
within two years after the filing of an affidavit under ORS 114.515, file with
the probate court a petition for summary review of administration of the
estate. A creditor may not file a petition under this section if the creditor
received a copy of an affidavit filed under ORS 114.515 delivered or mailed to
such creditor within 30 days after the date the affidavit was filed, the
creditor was shown as a disputed creditor in the affidavit, and the creditor
has not filed a petition for summary determination under ORS 114.540. The court
shall hear the matter without a jury, after notice to the claiming successor
and the affiant, and any interested person may be heard in the proceeding. Upon
the hearing the court shall review administration of the estate in a summary
manner and may order the affiant to sell property of the estate and pay
creditors, to pay creditors of the estate from property of the estate or of the
affiant, or to distribute property of the estate to the claiming successors, or
may order any person who has received property of the estate to pay amounts
owed to claiming successors of the estate in whole or in part. [1989 c.228 §8;
2003 c.196 §3]
     114.555
Effect of failure to appoint personal representative. If a personal representative is not
appointed within four months after the filing of the affidavit authorized by
ORS 114.515, the interest of the decedent in all of the property described in
the affidavit is transferred to the person or persons shown by the affidavit to
be entitled thereto, and any other claims against the property are barred
except as provided in ORS 114.540, 114.545 and 114.550. [1973 c.710 §5; 1977
c.239 §4; 1989 c.228 §10]
     114.560
Exclusive remedy. The
exclusive remedy of a person injured by the failure of the affiant or any
claiming successor to comply with the requirements of ORS 114.505 to 114.560
shall be a summary determination under ORS 114.540, a summary review of
administration under ORS 114.550, or appointment of a personal representative
for the estate within the time allowed by ORS 114.555. [1989 c.228 §9]
_______________
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