2007 Oregon Code - Chapter 111 :: TITLE 12
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
2007 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
111.218 Proof
of mailing or other delivery; proof of publication
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,
(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
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,
(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,
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,
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 in proceedings before a probate court must
include a declaration under penalty of perjury in the form required by ORCP 1 E
made by at least one of the persons making the petitions, reports and accounts
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; 2007 c.284 §1]
Note: Section 5, chapter 284, Oregon Laws 2007, provides:
Sec.
5. The amendments to ORS
111.205, 116.083, 116.253 and 125.325 by sections 1 to 4 of this 2007 Act apply
only to petitions, reports and accounts filed in proceedings before a probate
court on or after the effective date of this 2007 Act [January 1, 2008]. [2007
c.284 §5]
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. [1969 c.591 §13;
2007 c.284 §8]
Note: See note under 111.218.
111.218
Proof of mailing or other delivery; proof of publication. (1) When proof of mailing, or other delivery
of notice or other documents, is required to be filed in probate court, proof
shall be made in the form required by ORCP 9 C.
(2) When proof of publication is required
to be filed in probate court, proof shall be made in the form required by ORCP
7 F. [2007 c.284 §7]
Note: Section 15, chapter 284, Oregon Laws 2007,
provides:
Sec.
15. Section 7 of this 2007
Act [111.218] and the amendments to ORS 111.215, 113.045, 113.145, 113.155,
115.003, 116.093 and 117.015 by sections 8 to 14 of this 2007 Act apply only to
proofs filed in probate court on or after the effective date of this 2007 Act
[January 1, 2008]. [2007 c.284 §15]
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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