2005 Oregon Code - Chapter 111 :: TITLE 12
Chapter 111 General Provisions
2005 EDITION
TITLE 12
PROBATE LAW
Chapter 111. General Provisions
112. Intestate Succession and Wills
113. Initiation of Estate Proceedings
114. Administration of Estates Generally
115. Claims; Actions and Suits
116. Accounting, Distribution and Closing
117. Estates of Absentees
118. Inheritance Tax
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Chapter 111 General Provisions
2005 EDITION
GENERAL PROVISIONS
PROBATE LAW
DEFINITIONS AND APPLICATION OF PROBATE LAW
111.005 Definitions for probate law
111.015 Application of chapter 591, Oregon Laws 1969
111.025 Oregon Tax Court jurisdiction
PROBATE COURTS AND COMMISSIONERS
111.055 Transfer of probate jurisdiction
111.075 Probate jurisdiction vested
111.085 Probate jurisdiction described
111.095 Powers of probate court
111.105 Appeals from probate court; reexamination of issues
111.115 Transfer of estate proceeding from county court to circuit court
111.175 Appointment of probate commissioner
111.185 Powers of probate commissioner
PROBATE PROCEDURE GENERALLY
111.205 Pleadings and mode of procedure
111.215 Notice; method and time of giving
111.225 Waiver of notice
111.235 Filing objections to petition
111.245 Proof of documents; certification
111.255 Translation of documents
111.265 Stenographic record
111.275 Limited judgments
DEFINITIONS AND APPLICATION OF PROBATE LAW
111.005
Definitions for probate law. As used in ORS chapters 111, 112, 113, 114,
115, 116 and 117, unless the context requires otherwise:
(1) Abate means to reduce a devise on account of the insufficiency of the estate to pay all claims, expenses and devises in full.
(2) Action includes suits and legal proceedings.
(3) Administration means any proceeding relating to the estate of a decedent, whether the decedent died testate, intestate or partially intestate.
(4) Advancement means a gift by a decedent to an heir to enable the donee to anticipate the inheritance to the extent of the gift.
(5) All purposes of intestate succession means succession by, through or from a person, both lineal and collateral.
(6) Assets includes real, personal and intangible property.
(7) Claim includes liabilities of a decedent, whether arising in contract, in tort or otherwise.
(8) Court or probate court means the court in which jurisdiction of probate matters, causes and proceedings is vested as provided in ORS 111.075.
(9) Decedent means a person who has died leaving property that is subject to administration.
(10) Devise, when used as a noun, means property disposed of by a will, and includes legacy and bequest.
(11) Devise, when used as a verb, means to dispose of property by a will, and includes bequeath.
(12) Devisee includes legatee and beneficiary.
(13) Distributee means a person entitled to any property of a decedent under the will of the decedent or under intestate succession.
(14) Domicile means the place of abode of a person, where the person intends to remain and to which, if absent, the person intends to return.
(15) Estate means the real and personal property of a decedent, as from time to time changed in form by sale, reinvestment or otherwise, and augmented by any accretions or additions thereto and substitutions therefor or diminished by any decreases and distributions therefrom.
(16) Funeral includes burial or other disposition of the remains of a decedent, including the plot or tomb and other necessary incidents to the disposition of the remains.
(17) General devise means a devise chargeable generally on the estate of a testator and not distinguishable from other parts thereof or not so given as to amount to a specific devise.
(18) Heir means any person, including the surviving spouse, who is entitled under intestate succession to the property of a decedent who died wholly or partially intestate.
(19) Interested person includes heirs, devisees, children, spouses, creditors and any others having a property right or claim against the estate of a decedent that may be affected by the proceeding. It also includes fiduciaries representing interested persons.
(20) Intestate means one who dies without leaving a valid will, or the circumstance of dying without leaving a valid will, effectively disposing of all the estate.
(21) Intestate succession means succession to property of a decedent who dies intestate or partially intestate.
(22) Issue includes adopted children and their issue and, when used to refer to persons who take by intestate succession, includes all lineal descendants, except those who are the lineal descendants of living lineal descendants.
(23) Net estate means the real and personal property of a decedent, except property used for the support of the surviving spouse and children and for the payment of expenses of administration, funeral expenses, claims and taxes.
(24) Net intestate estate means any part of the net estate of a decedent not effectively disposed of by the will.
(25) Personal property includes all property other than real property.
(26) Personal representative includes executor, administrator, administrator with will annexed and administrator de bonis non, but does not include special administrator.
(27) Property includes both real and personal property.
(28) Real property includes all legal and equitable interests in land, in fee and for life.
(29) Settlement includes, as to the estate of a decedent, the full process of administration, distribution and closing.
(30) Specific devise means a devise of a specific thing or specified part of the estate of a testator that is so described as to be capable of identification. It is a gift of a part of the estate identified and differentiated from all other parts.
(31) Will includes codicil; it also includes a testamentary instrument that merely appoints an executor or that merely revokes or revives another will. [1969 c.591 §1]
111.010
[Repealed by 1969 c.591 §305]
111.015
Application of chapter 591, Oregon Laws 1969. Except as specifically
provided otherwise in chapter 591, Oregon Laws 1969, on July 1, 1970:
(1) Chapter 591, Oregon Laws 1969, applies to wills of decedents dying thereon or thereafter, and a will executed before July 1, 1970, shall be considered lawfully executed if the application of ORS 112.255 would make it so, but the construction of a will executed before July 1, 1970, shall be governed by the law in effect on the date of execution unless a contrary intent is established by the will.
(2) The procedure prescribed by chapter 591, Oregon Laws 1969, applies to any proceedings commenced thereon or thereafter regardless of the time of the death of a decedent, and also as to any further procedure in proceedings then pending except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure prescribed by chapter 591, Oregon Laws 1969.
(3) A personal representative, guardian or conservator holding an appointment on that date shall continue to hold the appointment, but shall have only the powers conferred and be subject to the duties imposed by chapter 591, Oregon Laws 1969, with respect to any act occurring or done thereon or thereafter, other than acts pursuant to powers or duties validly conferred or imposed by a will executed before July 1, 1970.
(4) An act done before July 1, 1970, in any proceeding and any accrued right shall not be impaired by chapter 591, Oregon Laws 1969. When a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before July 1, 1970, those provisions shall remain in force with respect to that right. [1969 c.591 §303]
111.020
[Repealed by 1969 c.591 §305]
111.025
Oregon Tax Court jurisdiction. For purposes of ORS chapters 111 to 116, the
Oregon Tax Court is not a court having probate jurisdiction and is limited to
the trial of appeals on inheritance tax matters. [1971 c.567 §3; 1997 c.99 §25]
111.030
[Repealed by 1969 c.591 §305]
111.040
[Repealed by 1969 c.591 §305]
111.050
[Repealed by 1969 c.591 §305]
PROBATE COURTS AND COMMISSIONERS
111.055
Transfer of probate jurisdiction. (1) All probate jurisdiction, authority,
powers, functions and duties of the county courts and the judges thereof are
transferred to the circuit courts and the judges thereof in all counties except
Gilliam, Grant, Harney, Malheur, Sherman and Wheeler Counties.
(2) All probate jurisdiction, authority, powers, functions and duties of the circuit courts and the judges thereof are transferred to the county courts and the judges thereof in Gilliam, Grant, Harney, Malheur, Sherman and Wheeler Counties. [1969 c.591 §2; 1995 c.658 §71]
111.060
[Repealed by 1969 c.591 §305]
111.065
[1969 c.591 §3; 1979 c.683 §34; repealed by 1983 c.740 §12]
111.070
[Repealed by 1969 c.591 §305]
111.075
Probate jurisdiction vested. Jurisdiction of all probate matters, causes
and proceedings is vested in the county courts of Gilliam, Grant, Harney,
Malheur, Sherman and Wheeler Counties and in the circuit court for each other
county and as provided in ORS 111.115. [1969 c.591 §4]
111.085
Probate jurisdiction described. The jurisdiction of the probate court
includes, but is not limited to:
(1) Appointment and qualification of personal representatives.
(2) Probate and contest of wills.
(3) Determination of heirship.
(4) Determination of title to and rights in property claimed by or against personal representatives, guardians and conservators.
(5) Administration, settlement and distribution of estates of decedents.
(6) Construction of wills, whether incident to the administration or distribution of an estate or as a separate proceeding.
(7) Guardianships and conservatorships, including the appointment and qualification of guardians and conservators and the administration, settlement and closing of guardianships and conservatorships.
(8) Supervision and disciplining of personal representatives, guardians and conservators.
(9) Appointment of a successor testamentary trustee where the vacancy occurs prior to, or during the pendency of, the probate proceeding. [1969 c.591 §5; 1973 c.177 §1]
111.095
Powers of probate court. (1) The general legal and equitable powers of a
circuit court are applicable to effectuate the jurisdiction of a probate court,
punish contempts and carry out its determinations, orders and judgments as a
court of record with general jurisdiction, and the same validity, finality and
presumption of regularity shall be accorded to its determinations, orders and
judgments, including determinations of its own jurisdiction, as to those of a
court of record with general jurisdiction.
(2) A probate court has full, legal and equitable powers to make declaratory judgments, as provided in ORS 28.010 to 28.160, in all matters involved in the administration of an estate, including those pertaining to the title of real property, the determination of heirship and the distribution of the estate. [1969 c.591 §6; 1979 c.284 §102]
111.105
Appeals from probate court; reexamination of issues. (1) Except as
otherwise provided in this section, no issue determined in a probate court
shall be tried again on appeal or otherwise reexamined in a manner other than
those appropriate to issues determined by a court of record with general jurisdiction.
(2) Appeals from a circuit court sitting in probate shall be taken to the Court of Appeals in the manner provided by law for appeals from the circuit court.
(3) Appeals from a county court sitting in probate shall be taken to the circuit court and Court of Appeals in the manner provided by ORS 5.120. [1969 c.591 §7; 1979 c.284 §103]
111.110
[Repealed by 1969 c.591 §305]
111.115
Transfer of estate proceeding from county court to circuit court. (1) An
estate proceeding, including all probate matters, causes and proceedings
pertaining thereto, may be transferred at any time from a county court sitting
in probate to the circuit court for the county by order of the county court.
(2) An estate proceeding, including all probate matters, causes and proceedings pertaining thereto, commenced in a county court sitting in probate and in which the county judge is a party or directly interested shall be transferred from the county court to the circuit court for the county by order of the county court.
(3) Upon transfer of an estate proceeding from a county court to the circuit court under this section, the county clerk shall certify and cause to be filed in the records of the circuit court all original papers and proceedings pertaining to the estate proceeding, and thereafter jurisdiction of all probate matters, causes and proceedings pertaining to the estate proceeding is vested in the circuit court as if that jurisdiction had been originally and exclusively vested in the circuit court. [1969 c.591 §8]
111.120
[Repealed by 1969 c.591 §305]
111.130
[Repealed by 1969 c.591 §305]
111.140
[Repealed by 1969 c.591 §305]
111.150
[Repealed by 1969 c.591 §305]
111.160
[Repealed by 1969 c.591 §305]
111.165
[1969 c.591 §9; repealed by 1995 c.658 §127]
111.170
[Repealed by 1969 c.591 §305]
111.175
Appointment of probate commissioner. The court may appoint the clerk of the
probate court or some other suitable person at the county seat to act as
probate commissioner within the county. If the clerk of the probate court is
appointed probate commissioner, the deputy of the clerk has the power to
perform any act as probate commissioner that the clerk has, and the clerk is
responsible for conduct of the deputy so acting. [1969 c.591 §10]
111.185
Powers of probate commissioner. (1) A probate commissioner may act upon
uncontested petitions for appointment of special administrators, for probate of
wills and for appointment of personal representatives, guardians and
conservators, to the extent authorized by rule of the court. Pursuant thereto
the probate commissioner may make and enter orders on behalf of the court
admitting wills to probate and appointing and setting the amount of the bonds
of special administrators, personal representatives, guardians and conservators,
subject to the orders of the probate commissioner being set aside or modified
by the judge of the court within 30 days after the date an order is entered.
(2) Any matter presented to the probate commissioner may be referred by the probate commissioner to the judge.
(3) Unless set aside or modified by the judge, the orders of the probate commissioner have the same effect as if made by the judge. [1969 c.591 §11]
PROBATE PROCEDURE GENERALLY
111.205
Pleadings and mode of procedure. No particular pleadings or forms thereof
are required in the exercise of jurisdiction of probate courts. The mode of
procedure in the exercise of jurisdiction is in the nature of an action not
triable by right to a jury except as otherwise provided by statute. The proceedings
shall be in writing and upon the petition of a party in interest or the order
of the court. All petitions, reports and accounts shall be verified by at least
one of the persons making them or by the attorney for the person, or in case of
a corporation by its agent. The court exercises its powers by means of:
(1) A petition of a party in interest.
(2) A notice to a party.
(3) A subpoena to a witness.
(4) Orders and judgments.
(5) An execution or warrant to enforce its orders and judgments. [1969 c.591 §12; 1979 c.284 §104]
111.210
[Repealed by 1969 c.591 §305]
111.212
[1953 c.650 §2; repealed by 1969 c.591 §305]
111.215
Notice; method and time of giving. (1) Except as otherwise specifically
provided in ORS chapters 111, 112, 113, 114, 115, 116 and 117, whenever notice
is required to be given of a hearing on any petition or other matter upon which
an order is sought, the petitioner or other person filing the matter shall
cause notice of the date, time and place of the hearing to be given to each
person interested in the subject of the hearing or to the attorney of the
person, if the person has appeared by attorney or requested that notice be sent
to the attorney of the person, in any one or more of the following ways and
within the following times:
(a) By mailing a copy thereof addressed to the person or the attorney of the person at least 14 days before the date set for the hearing.
(b) By delivering a copy thereof to the person personally or to the attorney of the person at least five days before the date set for the hearing.
(c) If the address of any person is not known or cannot be ascertained with reasonable diligence, by publishing a copy thereof once in each of three consecutive weeks in a newspaper of general circulation in the county where the hearing is to be held, the last publication of which shall be at least 10 days before the date set for the hearing.
(2) Upon good cause shown the court may change the requirements as to the method or time of giving notice for any hearing.
(3) Proof of the giving of notice must be made at or before the hearing and filed in the proceeding. Proof shall be by an admission of service, a return receipt from the postal authorities or an affidavit or certificate of the person giving notice or the publisher, or one of the employees of the publisher, of the newspaper publishing the notice. [1969 c.591 §13]
111.220
[Repealed by 1957 c.411 §7]
111.225
Waiver of notice. When any notice or information is required to be given
under ORS chapters 111, 112, 113, 114, 115, 116 and 117, a guardian, a guardian
ad litem, a conservator or a person who is neither incompetent nor a minor may
waive notice by a writing signed by the guardian, guardian at litem,
conservator or person or the attorney of the guardian, guardian ad litem,
conservator or person and filed in the proceeding, or by the appearance of the
guardian, guardian ad litem, conservator or person at the hearing. [1969 c.591
§14; 1973 c.506 §5]
111.230
[Repealed by 1957 c.411 §7]
111.231
[1957 c.411 §3; repealed by 1969 c.591 §305]
111.235
Filing objections to petition. Any interested person, on or before the date
set for a hearing, may file written objections to a petition previously filed.
[1969 c.591 §15]
111.240
[Repealed by 1957 c.411 §7]
111.245
Proof of documents; certification. (1) Proof of documents pursuant to ORS
chapters 111, 112, 113, 114, 115, 116 and 117 may be made as follows:
(a) Of a will, by a certified copy thereof.
(b) That a will has been probated or established in a foreign jurisdiction, by a certified copy of the order admitting the will to probate or evidencing its establishment.
(c) Of letters testamentary or of administration, by a certified copy thereof. The certification may include a statement that the letters have not been revoked.
(2) A document or order filed or entered in a foreign jurisdiction may be proved by a copy thereof, certified by a clerk of the court in which the document or order was filed or entered or by any other official having legal custody of the original document or order. [1969 c.591 §16]
111.255
Translation of documents. If a document or part thereof is not in the
English language, a translation certified by the translator to be accurate may
be attached thereto and shall be regarded as sufficient evidence of the
contents of the document, unless objection is made thereto. In the absence of
objection, if any person relies in good faith on the accuracy of the
translation the person shall not be prejudiced thereafter because of its
inaccuracy. [1969 c.591 §17]
111.265
Stenographic record. The judge of the court may, on the motion of the judge
or on the request of an interested person, direct the reporter of the court to
attend any hearing and make a stenographic record of the same. [1969 c.591 §18]
111.275
Limited judgments. (1) The court in a probate proceeding under ORS chapters
111, 112, 113, 114, 115, 116 and 117 may enter a limited judgment only for the
following decisions of the court:
(a) A decision on a petition for appointment or removal of a personal representative.
(b) A decision in a will contest filed in the probate proceeding.
(c) A decision on an objection to an accounting.
(d) A decision on a request made in the proceeding for a declaratory judgment under ORS 111.095.
(e) Such decisions of the court as may be specified by rules or orders of the Chief Justice of the Supreme Court under ORS 18.028.
(2) A court may enter a limited judgment under this section only if the court determines that there is no just reason for delay. The judgment document need not reflect the courts determination that there is no just reason for delay. [2005 c.568 §33]
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