US Laws, Codes, Statutes & Cases

Chapter 114 — Administration of Estates Generally

 

2007 EDITION

 

ADMINISTRATION OF ESTATES GENERALLY

 

PROBATE LAW

 

SUPPORT OF SPOUSE AND CHILDREN

 

114.005     Occupancy of family abode by spouse and children

 

114.015     Support of spouse and children

 

114.025     Petition for support and answer

 

114.035     Temporary support

 

114.045     Modification or termination of support

 

114.055     Nature of support

 

114.065     Limitations on support

 

114.075     Priority of support; treated as administration expense

 

114.085     Setting apart whole estate for support; termination of administration

 

ELECTIVE SHARE OF SURVIVING SPOUSE

 

114.105     Right to elective share; effect of election

 

114.115     Election barred by agreement

 

114.125     Elective share limited by total property received

 

114.135     Denial of election or share reduction when decedent and surviving spouse living apart

 

114.145     What constitutes election

 

114.155     Election by court or conservator of surviving spouse

 

114.165     Payment of elective share

 

TITLE AND POSSESSION OF PROPERTY

 

114.205     No distinction between real and personal property

 

114.215     Devolution of and title to property

 

114.225     Possession and control of decedent’s estate

 

DUTIES AND POWERS OF PERSONAL REPRESENTATIVES

 

114.255     Commencement of duties and powers of personal representative; prior acts

 

114.265     General duties of personal representative

 

114.275     Personal representative to proceed without court order; application for authority, approval or instructions

 

114.285     Naming or appointment of personal representative does not discharge claim

 

114.295     Discharge or devise in will of claim of testator

 

114.305     Transactions authorized for personal representative

 

114.315     Right to perfect lien or security interest

 

114.325     Power to sell, mortgage, lease and deal with property

 

114.333     Transfer of title and interest to real property by foreign personal representative

 

114.335     Court order for sale, mortgage or lease

 

114.345     Title conveyed free of claims of creditors

 

114.355     Sale or encumbrance to personal representative voidable; exceptions

 

114.365     Validation of certain sales

 

114.375     Nonliability of transfer agents

 

114.385     Persons dealing with personal representative; protection

 

114.395     Improper exercise of power; breach of fiduciary duty

 

114.405     Personal liability of personal representative

 

114.415     Copersonal representatives; when joint action required

 

114.425     Discovery of property, writings and information

 

114.435     Power to avoid transfers

 

SMALL ESTATES

 

114.505     Definitions for ORS 114.505 to 114.560

 

114.515     Value of estate; where affidavit filed; fee; amended affidavit; supplemental affidavit

 

114.520     Authorization from Department of State Lands required for filing of affidavit by creditor if decedent dies intestate and without heirs; rules

 

114.525     Content of affidavit

 

114.535     Transfer of decedent’s property to affiant; proceedings to compel transfer

 

114.540     Procedure for claims; disallowance; summary determination

 

114.545     Duties of person filing affidavit; payment of claims; conveyance of real property; liability of person to whom property transferred or payment made

 

114.550     Summary review of administration of estate; hearing

 

114.555     Effect of failure to appoint personal representative

 

114.560     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 mechanic’s or materialman’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 money’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 workers’ 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 decedent’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 Sale or encumbrance to personal representative voidable; exceptions. (1) Any sale or encumbrance to the personal representative, the spouse, agent or attorney of the personal representative, or any corporation or trust in which the personal representative has more than a one-third beneficial interest, is voidable unless:

      (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 Oregon 1903.

      (2) Certain sales of decedent’s property made prior to 1907 under power in will, validated by chapter 175, General Laws of Oregon 1907.

      (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 Oregon 1917.

      (4) Certain sales by executors or administrators made prior to 1943, validated by chapter 26, Oregon Laws 1943. [Formerly 116.835]

 

      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]