2007 Oregon Code - Chapter 115 :: Chapter 115 - Claims - Actions and Suits
Chapter 115 —
Claims; Actions and Suits
2007 EDITION
CLAIMS; ACTIONS AND SUITS
PROBATE LAW
CLAIMS AGAINST ESTATES
115.001Â Â Â Â Effect
of direction to pay debts, charges, taxes or expenses
115.003Â Â Â Â Personal
representative to make diligent search for claimants; notice to claimants;
contents; proof of compliance
115.004Â Â Â Â Recovery
for failure to make search or give notice; indemnification; time for commencing
action
115.005Â Â Â Â Presentation
of claims; time limitations
115.008Â Â Â Â Application
of time limitations to public bodies
115.025Â Â Â Â Form
of claims
115.035Â Â Â Â Waiver
of defect or insufficiency
115.045Â Â Â Â Written
evidence of claim
115.055Â Â Â Â Claims
on debts due
115.065Â Â Â Â Claims
on secured debts due
115.070Â Â Â Â Claims
on debts reduced to judgments
115.075Â Â Â Â Claims
on debts not due
115.085Â Â Â Â Claims
on contingent and unliquidated debts
115.095Â Â Â Â Compromise
of claims
115.105Â Â Â Â Claims
of personal representative
115.115Â Â Â Â Payment
of claims
115.125Â Â Â Â Order
of payment of expenses and claims
115.135Â Â Â Â Allowance
and disallowance of claims
115.145Â Â Â Â Procedure
by claimant on disallowance of claim
115.155Â Â Â Â Separate
action required by personal representative
115.165Â Â Â Â Summary
determination procedure
115.175Â Â Â Â Interested
persons heard in summary determination or separate action
115.185Â Â Â Â Creditor
may obtain order for payment
115.195Â Â Â Â Proof
for court allowance of disallowed claim; claims for recovery of public
assistance
115.205Â Â Â Â Waiver
of statute of limitations
115.215Â Â Â Â Extension
of statute of limitations
DISCHARGE OF ENCUMBRANCES
115.255Â Â Â Â Discharge
of encumbrances
115.265Â Â Â Â Power
to redeem estate property
115.275Â Â Â Â Encumbered
assets; powers of personal representative
ACTIONS AND SUITS
115.305Â Â Â Â Survival
of causes of action
115.315Â Â Â Â Continuation
of action without claim presentation
115.325Â Â Â Â Action
not to be commenced until claim presented and disallowed
APPLICATION TO NONTESTAMENTARY TRUSTS
115.335Â Â Â Â Chapter
does not apply to certain trusts
CLAIMS AGAINST ESTATES
     115.001
Effect of direction to pay debts, charges, taxes or expenses. A mere testamentary direction to pay debts,
charges, taxes or expenses of administration shall not be considered a
direction for exoneration from encumbrances. [1973 c.506 §35]
     115.003
Personal representative to make diligent search for claimants; notice to
claimants; contents; proof of compliance. (1) During the three months following appointment, unless a longer
time is allowed by the court, the personal representative shall make reasonably
diligent efforts to investigate the financial records and affairs of the
decedent and shall take such further actions as may be reasonably necessary to
ascertain the identity and address of each person who has or asserts a claim
against the estate. The personal representative shall request and the court
shall allow a longer time for ascertaining claims if the personal
representative cannot complete reasonably diligent efforts to identify persons
with claims during the time required by this section or by a previous order of
the court.
     (2) Not later than 30 days after
expiration of the period, including any extensions, described in subsection (1)
of this section, the personal representative shall cause to be delivered or
mailed to each person known by the personal representative during such period
to have or assert a claim against the estate a notice containing the
information required in subsection (3) of this section, except that it shall
not be necessary to give notice on account of a claim that has already been
presented, accepted or paid in full or on account of a claim that is merely conjectural.
The personal representative may also cause such a notice to be delivered or
mailed to any person discovered by the personal representative after expiration
of the period described in subsection (1) of this section to have or assert a
claim against the estate.
     (3) The notice shall include:
     (a) The title of the court in which the
estate proceeding is pending;
     (b) The name of the decedent;
     (c) The name of the personal
representative and the address at which claims are to be presented;
     (d) A statement that claims against the
estate not presented to the personal representative within 30 days of the date
of the notice may be barred; and
     (e) The date of the notice, which shall be
the date on which it is delivered or mailed.
     (4) Not later than 60 days after
expiration of the period, including any extensions, described in subsection (1)
of this section, the personal representative shall cause to be filed in the
estate proceeding proof of compliance with subsections (1) and (2) of this
section. The proof shall include a copy of the form of any notice delivered or
mailed, the date on which each notice was delivered or mailed and the name and
address of the person to whom each notice was delivered or mailed.
     (5) The failure of the personal
representative to make reasonably diligent efforts to ascertain claims as
required by subsection (1) of this section or to cause a notice to be delivered
or mailed as required by subsection (2) of this section is a breach of duty to
the persons concerned, but does not affect the validity of appointment, duties
or powers or the exercise of duties or powers. [1989 c.229 §2; 2007 c.284 §12]
     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]
     115.004
Recovery for failure to make search or give notice; indemnification; time for
commencing action. If, as a
result of breach of a duty imposed by ORS 115.003, a claim or any part of a
claim is not paid from the estate during administration, the amount of the
claim may be recovered as follows:
     (1) The claimant shall have a cause of
action against the personal representative and the surety for the personal
representative for the amount the claimant would have been paid from the estate
had all claims not barred from payment been presented within the time required
by ORS 115.005 (2) and allowed by the personal representative, provided that
any payment on account of a judgment entered under subsection (2) of this
section shall also satisfy a judgment entered under this subsection in the
amount of the payment.
     (2) The claimant shall have a cause of
action against each interested person who received a distribution or other
payment from the estate for the amount by which the payment received would have
been reduced by payment of the claim from the estate had all claims not barred
from payment been presented within the time required by ORS 115.005 (2) and
allowed by the personal representative, provided that any payment on account of
a judgment entered under subsection (1) of this section shall also satisfy a
pro rata portion of each judgment entered under this subsection.
     (3) Each interested person who received a
distribution or other payment from the estate shall indemnify the personal
representative and the surety for the personal representative against liability
on the claim in the amount by which the payment received would have been
reduced by payment of the claim from the estate had all claims not barred from
payment been presented within the time required by ORS 115.005 (2) and allowed
by the personal representative.
     (4) Each interested person who received a
distribution or other payment from the estate shall indemnify the personal
representative and the surety for the personal representative against the
reasonable costs, including attorney fees, of defense of the action in the same
proportion and to the same extent as such distributee would be required to
indemnify against the claim under subsection (3) of this section:
     (a) If the personal representative
prevails against the claimant, in such proportion of the full amount of such
costs; or
     (b) If the claimant prevails against the
personal representative, in such proportion of the amount of any such costs
which could have been reasonably incurred by the estate upon disallowance of
the claim had it been presented within the time required by ORS 115.005 (2).
     (5) Except as provided in subsection (6)
of this section, an action under this section against a personal
representative, the surety for a personal representative or an interested
person shall be commenced within two years after the death of the decedent or
within the statute of limitations applicable to the claim, whichever is
earlier.
     (6) An action for indemnity under
subsection (3) or (4) of this section shall be commenced within the time
required by subsection (5) of this section, unless:
     (a) Notice of the action giving rise to
the claim for indemnity is given to each party from whom indemnity is sought
personally or by mail to the partyÂ’s last-known address within 180 days after
the complaint in the action is served on the party seeking indemnity; and
     (b) The action is commenced within one
year after a judgment in the action giving rise to the claim for indemnity
becomes final and not subject to further appeal. [1989 c.229 §3]
     115.005
Presentation of claims; time limitations. (1) Claims against the estate of a decedent, other than claims of the
personal representative as a creditor of the decedent, shall be presented to
the personal representative.
     (2) Except as provided in subsection (3)
of this section, a claim is barred from payment from the estate if not
presented within the statute of limitations applicable to the claim and before
the later of:
     (a) Four months after the date of first
publication of notice to interested persons; or
     (b) If the claim was one with respect to
which the personal representative was required to deliver or mail a notice
under ORS 115.003 (2), 30 days after a notice meeting the requirements of ORS
115.003 (3) is delivered or mailed to the last-known address of the person
asserting the claim.
     (3) A claim against the estate presented
after claims are barred under subsection (2) of this section shall be paid from
the estate if the claim:
     (a) Is presented before the expiration of
the statute of limitations applicable to the claim and before the personal
representative files the final account;
     (b) Is presented by a person who did not
receive a notice under ORS 115.003 mailed or delivered more than 30 days prior
to the date on which the claim is presented and who is not an assignee of a
person who received such notice; and
     (c) Would be allowable but for the time at
which the claim is presented.
     (4) A claim against an estate may be paid
under subsection (3) of this section only after payment of all expenses having
priority over claims under ORS 115.125 and payment of all previously presented
claims.
     (5) This section does not affect or
prevent:
     (a) Any proceeding to enforce a mortgage,
pledge or other lien upon property of the estate, or to quiet title or reform
any instrument with respect to title to property; or
     (b) To the limits of the insurance
protection only, any proceeding to establish liability of the decedent or the
personal representative for which the decedent or personal representative is
protected by liability insurance at the time the proceeding is commenced. [1969
c.591 §141; 1973 c.506 §29; 1989 c.229 §4; 1993 c.214 §1; 2001 c.620 §3; 2003
c.523 §1]
     115.008
Application of time limitations to public bodies. Notwithstanding ORS 12.250, and except as
otherwise specifically provided in this chapter, all statutes of limitation and
other time limitations imposed under this chapter apply to actions brought in
the name of the state, or brought in the name of any county or public corporation,
and to actions brought for the benefit of the state or for the benefit of any
county or public corporation. [1999 c.675 §3; 2001 c.620 §4]
     115.010 [Repealed by 1969 c.591 §305]
     115.015 [1969 c.591 §141a; 1973 c.506 §30; repealed
by 1989 c.229 §15]
     115.020 [Repealed by 1969 c.591 §305]
     115.025
Form of claims. Each claim
presented shall:
     (1) Be in writing.
     (2) Describe the nature and the amount
thereof, if ascertainable.
     (3) State the names and addresses of the
claimant and, if any, the attorney of the claimant. [1969 c.591 §142; 1973
c.506 §31]
     115.035
Waiver of defect or insufficiency. A defect of form of a claim timely presented may be waived by the
personal representative or by the court. [1969 c.591 §143; 1973 c.506 §32]
     115.045
Written evidence of claim.
When it appears that there is written evidence of a claim that has been
presented to the personal representative, the claimant, upon demand by the
personal representative, shall produce the evidence or account for its
nonproduction. [1969 c.591 §144]
     115.055
Claims on debts due. If a
claim on a debt due is presented and allowed, allowance shall be in the amount
of the debt remaining unpaid on the date of allowance. [1969 c.591 §145]
     115.065
Claims on secured debts due.
(1) A claim on a debt due for which the creditor holds security may be
presented as a claim on an unsecured debt due, or the creditor may elect to
rely entirely on the security without presentation of the claim.
     (2) If the claim is presented, it shall
describe the security. If the security is an encumbrance that is recorded, it
is sufficient to describe the encumbrance by reference to the book, page, date
and place of recording.
     (3) If the claim is presented and allowed,
allowance shall be in the amount of the debt remaining unpaid on the date of
allowance.
     (4) If the creditor surrenders the
security, payment shall be on the basis of the amount allowed.
     (5) If the creditor does not surrender the
security, payment shall be on the basis of:
     (a) If the creditor exhausts the security
before receiving payment, unless precluded by other law, the amount allowed,
less the amount realized on exhausting the security; or
     (b) If the creditor does not exhaust the
security before receiving payment or does not have the right to exhaust the
security, the amount allowed, less the value of the security determined by
agreement or as the court may order.
     (6) The personal representative may convey
the secured property to the creditor in consideration of the satisfaction or
partial satisfaction of the claim. [1969 c.591 §146; 1989 c.229 §5]
     115.070
Claims on debts reduced to judgments. If a judgment was entered on a claim prior to the death of the
decedent, the claim shall be presented in the same manner as if no judgment had
been entered, and a copy of the judgment shall be attached to the claim. Such a
claim may be disallowed only if the judgment was void or voidable, or if the
judgment could have been set aside on the date of the decedentÂ’s death, or if
the claim is not presented within the time required by ORS 115.005. If the
judgment was a lien against the property of the estate on the date of the
decedentÂ’s death it shall be treated as a claim on a debt due for which the
creditor holds security. In all other respects a claim which has been reduced
to judgment shall have the same priority under ORS 115.125 as it would have had
were it not reduced to judgment. [1989 c.229 §11]
     115.075
Claims on debts not due. A
claim on a debt not due, whether or not the creditor holds security therefor,
may be presented as a claim on a debt due. If the claim is allowed, allowance
shall be in an amount equal to the value of the debt on the date of allowance.
The creditor, after allowance of the claim, may withdraw the claim without
prejudice to other remedies. Payment on the basis of the amount allowed
discharges the debt and the security, if any, held by the creditor therefor. [1969
c.591 §147]
     115.085
Claims on contingent and unliquidated debts. (1) A claim on a contingent or unliquidated debt shall be presented as
any other claim.
     (2) If the debt becomes absolute or
liquidated before distribution of the estate, the claim shall be paid in the
same manner as a claim on an absolute or liquidated debt.
     (3) If the debt does not become absolute
or liquidated before distribution of the estate, the court shall provide for
payment of the claim by any of the following methods:
     (a) The creditor and personal
representative may determine, by agreement, arbitration or compromise, the
value of the debt, and upon approval thereof by the court, the claim may be
allowed and paid in the same manner as a claim on an absolute or liquidated
debt.
     (b) The court may order the personal
representative to make distribution of the estate, but to retain sufficient
funds to pay the claim if and when the debt becomes absolute or liquidated. The
estate may not be kept open for this purpose more than two years after
distribution of the remainder of the estate. If the debt does not become
absolute or liquidated within that time, the funds retained, after payment
therefrom of any expenses accruing during that time, shall be distributed to
the distributees.
     (c) The court may order the personal
representative to make distribution of the estate as though the claim did not
exist.
     (d) If after distribution under paragraph
(b) or (c) of this subsection the debt becomes absolute or liquidated, the
distributees are liable to the creditor to the extent of the estate received by
them. Payment of the debt may be arranged by creating a trust, giving a
mortgage, securing a bond from a distributee or by such other method as the
court may order. [1969 c.591 §148]
     115.095
Compromise of claims. The
personal representative may compromise a claim against the estate of a
decedent. [1969 c.591 §149]
     115.105
Claims of personal representative. A claim of a personal representative shall be filed with the clerk of
the court within the time required by law for presentment of claims. Upon
application by the personal representative or by any interested person the
claim may be considered by the court on the hearing of the final account of the
personal representative or prior to the hearing of the final account upon
notice to interested persons. [1969 c.591 §150; 1973 c.506 §33]
     115.110 [Repealed by 1969 c.591 §305]
     115.115
Payment of claims. After the
day on which all known claims are barred under ORS 115.005 (2), the personal
representative, after making provision for support of spouse and children
ordered by the court, for expenses of administration and for claims already
presented which have not been allowed or allowance of which has been appealed,
shall proceed to pay the claims allowed against the estate in the order of
priority prescribed by ORS 115.125. After payment of those claims, claims
presented and allowed under ORS 115.005 (3) shall be paid in the order in which
they are received and to the extent of the remaining assets of the estate. [1969
c.591 §151; 1989 c.229 §6]
     115.120 [Repealed by 1969 c.591 §305]
     115.125
Order of payment of expenses and claims. (1) If the applicable assets of the estate are insufficient to pay all
expenses and claims in full, the personal representative shall make payment in
the following order:
     (a) Support of spouse and children,
subject to the limitations imposed by ORS 114.065.
     (b) Expenses of administration.
     (c) Expenses of a plain and decent funeral
and disposition of the remains of the decedent.
     (d) Debts and taxes with preference under
federal law.
     (e) Reasonable and necessary medical and
hospital expenses of the last illness of the decedent, including compensation
of persons attending the decedent.
     (f) Taxes with preference under the laws
of this state that are due and payable while possession of the estate of the
decedent is retained by the personal representative.
     (g) Debts owed employees of the decedent
for labor performed within 90 days immediately preceding the date of death of
the decedent.
     (h) Child support arrearages.
     (i) The claim of the Department of Human
Services for the net amount of assistance paid to or for the decedent, in the
following order:
     (A) The amount of the state’s monthly
contribution to the federal government to defray the costs of outpatient
prescription drug coverage provided to a person who is eligible for Medicare
Part D prescription drug coverage and who receives benefits under the state
medical assistance program or Title XIX of the Social Security Act;
     (B) Public assistance, as defined in ORS
411.010, funded entirely by moneys from the General Fund;
     (C) Public assistance, as defined in ORS
411.010, funded by a combination of state and federal funds; and
     (D) Care and maintenance of the decedent
at a state institution, as provided in ORS 179.610 to 179.770.
     (j) The claim of the Department of
Corrections for care and maintenance of any decedent who was at a state
institution to the extent provided in ORS 179.610 to 179.770.
     (k) All other claims against the estate.
     (2) If the applicable assets of the estate
are insufficient to pay in full all expenses or claims of any one class
specified in subsection (1) of this section, each expense or claim of that
class shall be paid only in proportion to the amount thereof. [1969 c.591 §152;
1969 c.597 §279; 1973 c.402 §32; 1979 c.684 §17; 2001 c.316 §1; 2001 c.487 §13;
2001 c.900 §19a; 2005 c.754 §3; 2007 c.26 §1]
     Note: Section 2, chapter 26, Oregon Laws 2007,
provides:
     Sec.
2. The amendments to ORS
115.125 by section 1 of this 2007 Act apply only to a probate proceeding in
which a petition for appointment of personal representative is filed on or
after the effective date of this 2007 Act [April 9, 2007]. [2007 c.26 §2]
     115.130 [Repealed by 1969 c.591 §305]
     115.135
Allowance and disallowance of claims. (1) A claim presented to the personal representative shall be
considered allowed as presented unless within 60 days after the date of
presentment of the claim the personal representative mails or delivers a notice
of disallowance of the claim in whole or in part to the claimant and, if any,
the attorney of the claimant. The personal representative shall file in the
estate proceeding the claim as presented and a copy of the notice of
disallowance.
     (2) 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 the claimant proceeds
as provided in ORS 115.145.
     (3) The personal representative may
rescind the previous allowance of an unpaid claim, if the claim was allowed
because of error, misinformation or excusable neglect. Not less than 30 days
before the date of the filing of the final account the personal representative
shall give notice of rescission of previous allowance of a claim to the
claimant and, if any, the attorney of the claimant in the same manner and
containing the same information as a notice of disallowance. [1969 c.591 §153]
     115.140 [Amended by 1955 c.292 §1; repealed by 1969
c.591 §305]
     115.145
Procedure by claimant on disallowance of claim. (1) If the personal representative disallows
a claim in whole or in part, the claimant, within 30 days after the date of
mailing or delivery of the notice of disallowance, may either:
     (a) File in the estate proceeding a
request for summary determination of the claim by the probate court, with proof
of service of a copy of the request upon the personal representative or the
attorney of the personal representative; or
     (b) Commence a separate action against the
personal representative on the claim in any court of competent jurisdiction.
The action shall proceed and be tried as any other action.
     (2) If the claimant fails to either
request a summary determination or commence a separate action as provided in
subsection (1) of this section, the claim, to the extent disallowed by the
personal representative, is barred.
     (3) In a proceeding for summary
determination of a claim or in a separate action on a claim the claim shall be
allowed or judgment entered on the claim in the full amount of the liability,
if any, of the decedent to the claimant. However, the claim shall be paid only
to the extent of the assets of the estate allocable to the payment of the claim
pursuant to ORS 115.115 and 115.125. [1969 c.591 §154; 1989 c.229 §7]
     115.150 [Repealed by 1969 c.591 §305]
     115.155
Separate action required by personal representative. If the claimant files a request for summary
determination of the claim as provided in ORS 115.145, the personal
representative, within 30 days after the date of service of a copy of the
request upon the personal representative or the attorney of the personal
representative, may notify the claimant in writing that if the claimant desires
to prove the claim the claimant must commence a separate action against the
personal representative on the claim within 60 days after the date of receipt
of such notice. If the claimant fails to commence a separate action within 60
days after the date of receipt of the notice, the claim, to the extent
disallowed by the personal representative, is barred. [1969 c.591 §155]
     115.160 [Repealed by 1969 c.591 §305]
     115.165
Summary determination procedure. In a proceeding for summary determination by the probate court of a
claim disallowed in whole or in part by the personal representative:
     (1) The personal representative shall move
or plead to the claim as though the claim were a complaint filed in an action.
     (2) The court shall hear the matter
without a jury, after notice to the claimant and personal representative. 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.
     (3) No appeal may be taken from the order
of the court made upon the summary determination. [1969 c.591 §156]
     115.170 [Repealed by 1969 c.591 §305]
     115.175
Interested persons heard in summary determination or separate action. Any interested person may be heard in a
proceeding for summary determination by the probate court of a claim, and may
intervene in a separate action against the personal representative on the
claim. [1969 c.591 §157]
     115.180 [Repealed by 1969 c.591 §305]
     115.185
Creditor may obtain order for payment. A creditor whose claim has been allowed or established by summary
determination or separate action, and who has not received payment within six
months after the date of the first publication of notice to interested persons,
may apply to the court for an order directing the personal representative to
pay the claim to the extent that funds of the estate are available for that
payment. [1969 c.591 §158]
     115.190 [Repealed by 1969 c.591 §305]
     115.195
Proof for court allowance of disallowed claim; claims for recovery of public
assistance. (1) A claim that
has been disallowed by the personal representative may not be allowed by any
court except upon some competent, satisfactory evidence other than the
testimony of the claimant.
     (2) Notwithstanding subsection (1) of this
section, claims for recovery of public assistance as defined by ORS 411.010 may
be allowed based on evidence in the form of documents from the Department of
Human Services that contain information relating to that public assistance,
such as the date that services were provided to the decedent, the
classification of those services, the name of the provider or the providerÂ’s
identification number, and the amount of the public assistance payment made for
the services. The documents may be prints obtained from microfilm or
microfiche, or printouts from computer records or other electronic storage
medium. Notwithstanding ORS 40.460 and 40.510, a document described in this
subsection is prima facie evidence of the information contained in the document
and is not excluded from introduction as hearsay, and extrinsic evidence of
authenticity of the document as a condition precedent to admissibility is not
required, if the document bears a seal that on its face is the seal of the
Director of Human Services or the designee of the director and:
     (a) For a print obtained from microfilm or
microfiche, also bears a statement indicating that the print is a true copy of
the microfilm or microfiche record, signed by a person who purports to be an
officer or employee of the Department of Human Services; or
     (b) For a printout from computer records
or other electronic storage medium, also bears a statement indicating that the
printout accurately reflects the data retrieved, signed by a person who
purports to be an officer or employee of the Department of Human Services. [1969
c.591 §159; 2003 c.523 §2]
     115.200 [Repealed by 1969 c.591 §305]
     115.205
Waiver of statute of limitations. A claim barred by the statute of limitations may not be allowed by the
personal representative or by any court except upon the written direction or
consent of those interested persons who would be adversely affected by
allowance of the claim. [1969 c.591 §160]
     115.210 [Repealed by 1969 c.591 §305]
     115.215
Extension of statute of limitations. If a claim is not barred by the statute of limitations on the date of
death of the decedent, the claim is not barred by the statute of limitations
thereafter until at least one year after the date of death. [1969 c.591 §161]
     115.220 [1963 c.447 §1; 1965 c.514 §1; repealed by
1969 c.591 §305]
DISCHARGE OF
ENCUMBRANCES
     115.255
Discharge of encumbrances.
(1) As used in this section:
     (a) “Voluntary encumbrance” means any
mortgage, trust deed, security agreement, pledge or public improvement
assessment lien, or any lien arising from labor or services performed or
materials supplied or furnished, or any combination thereof, upon or in respect
of property.
     (b) “Involuntary encumbrance” means any
encumbrance upon property other than a voluntary encumbrance.
     (2) If property upon which an encumbrance
exists on the date of the death of the testator is specifically devised, the
devisee takes it subject to the encumbrance, and the personal representative is
not required to make any payment on account of the obligation secured by the
encumbrance, whether or not the testator was personally liable on the
obligation secured by the encumbrance, except as provided otherwise in the will
or in subsection (3) or (4) of this section.
     (3) Unless the will provides otherwise,
the devisee of specifically devised property may require that an encumbrance
thereon be fully or partially discharged out of other assets of the estate not
specifically devised, if:
     (a) The encumbrance is an involuntary
encumbrance; or
     (b) The encumbrance is a voluntary
encumbrance and:
     (A) The will specifically directs full or
partial discharge of the encumbrance out of other assets; or
     (B) The personal representative receives
rents or profits, or both, from the property and the devisee requests that the
personal representative apply all or part of the rents or profits, or both, in
full or partial discharge of the obligation secured by the encumbrance, in
which event the personal representative shall apply the rents or profits, or
both, upon principal or interest, or both, owing upon the obligation, as
requested; or
     (C) Any devisee requests, in a writing
signed by the devisee and delivered to the personal representative, that the obligation
secured by the encumbrance be fully or partially discharged out of property, or
the proceeds of the sale thereof, which otherwise would pass to the devisee.
     (4) If a claim based upon an obligation
secured by a voluntary encumbrance upon specifically devised property is
presented and paid, or if specifically devised real property subject to a
voluntary encumbrance is redeemed, and the devisee is not entitled to
exoneration pursuant to subsection (3) of this section, the personal
representative has a lien upon the property in the amount paid, and the lien
shall be administered upon as an asset of the estate.
     (5) If property is specifically devised by
a will executed before the effective date of this section, and if an
encumbrance upon that property exists on the date of the death of the testator,
the rights of the devisee of that property in respect of exoneration thereof
out of other assets of the estate shall be determined in accordance with the
law in effect on the date the will was executed. [1969 c.591 §162]
     115.265
Power to redeem estate property. Unless otherwise provided by the will, the personal representative may
redeem property of the estate sold on foreclosure of mortgage or upon execution
if it appears that the redemption would be for the benefit of the estate and
would not be prejudicial to creditors. [1969 c.591 §163]
     115.275
Encumbered assets; powers of personal representative. When any assets of the estate are encumbered
by an involuntary or voluntary encumbrance, the personal representative may
discharge the encumbrance or any part thereof, renew or extend any obligation
secured by the encumbrance or convey or transfer the assets to the creditor in
satisfaction of the lien, in whole or in part, whether or not the holder of the
encumbrance has filed a claim, if it appears to be for the best interest of the
estate. Discharge of an encumbrance shall not increase the share of the
distributee entitled to the encumbered assets unless the distributee is
entitled to exoneration under ORS 115.255 (3). [1969 c.591 §164]
ACTIONS AND
SUITS
     115.305
Survival of causes of action.
All causes of action or suit, by one person against another, survive to the
personal representative of the former and against the personal representative
of the latter. [Formerly 121.020]
     115.310 [Repealed by 1969 c.591 §305]
     115.315
Continuation of action without claim presentation. An action against a decedent commenced
before and pending on the date of death of the decedent may be continued as
provided in ORCP 34 B(2) without presentation of a claim against the estate of
the decedent. [1969 c.591 §166; 1979 c.284 §107]
     115.320 [Repealed by 1969 c.591 §305]
     115.325
Action not to be commenced until claim presented and disallowed. Except as provided in ORS 115.004, 115.005
(5) and 115.065, no action against a personal representative on account of a
claim shall be commenced until the claim of the plaintiff has been presented to
and disallowed by the personal representative. [Formerly 121.090; 1989 c.229 §8;
1993 c.214 §2]
     115.330 [Repealed by 1969 c.591 §305]
APPLICATION
TO NONTESTAMENTARY TRUSTS
     115.335
Chapter does not apply to certain trusts. The provisions of this chapter do not apply to claims against trusts
that are subject to the provisions of ORS 130.350 to 130.450. [2001 c.593 §17;
2005 c.348 §120a]
     Note: Section 18, chapter 593, Oregon Laws 2001,
provides:
     Sec.
18. ORS 115.335 and 128.256
[renumbered 130.350] apply only to claims against trust estates that are based
on debts or liabilities of grantors who die on or after January 1, 2002. [2001
c.593 §18; 2003 c.84 §14]
     115.340 [Repealed by 1969 c.591 §305]
     115.350 [Repealed by 1969 c.591 §305]
     115.410 [Repealed by 1969 c.591 §305]
     115.420 [Repealed by 1969 c.591 §305]
     115.430 [Repealed by 1969 c.591 §305]
     115.440 [Repealed by 1969 c.591 §305]
     115.450 [Repealed by 1969 c.591 §305]
     115.460 [Repealed by 1969 c.591 §305]
     115.470 [Repealed by 1969 c.591 §305]
     115.480 [Repealed by 1969 c.591 §305]
     115.490 [Repealed by 1969 c.591 §305]
     115.500 [Repealed by 1969 c.591 §305]
     115.510 [Repealed by 1969 c.591 §305]
     115.520 [Repealed by 1969 c.591 §305]
     115.990 [Repealed by 1969 c.591 §305]
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