2007 Oregon Code - Chapter 116 :: Chapter 116 - Accounting - Distribution and Closing
Chapter 116 —
Accounting, Distribution and Closing
2007 EDITION
ACCOUNTING, DISTRIBUTION AND CLOSING
PROBATE LAW
ALLOCATION OF INCOME
116.007Â Â Â Â Allocation
of income
PARTIAL DISTRIBUTION
116.013Â Â Â Â Petition
and order for partial distribution
116.023Â Â Â Â Bond
or other security
116.033Â Â Â Â Discharge
of personal representative
116.043Â Â Â Â Petition
and order for refund by distributee
ACCOUNTING AND DISTRIBUTION
116.063Â Â Â Â Liability
of personal representative
116.073Â Â Â Â Nonliability
of personal representative
116.083Â Â Â Â Accounting
by personal representative; rules
116.093Â Â Â Â Notice
for filing objections to final account and petition for distribution
116.103Â Â Â Â Objections
to final account and petition
116.113Â Â Â Â Judgment
of final distribution
116.123Â Â Â Â Effect
of approval of final account
116.133Â Â Â Â Distribution;
order in which assets appropriated; abatement
116.143Â Â Â Â Interest
on pecuniary devises
116.153Â Â Â Â Right
of offset and retainer
116.163Â Â Â Â Distribution
to foreign personal representative
116.173Â Â Â Â Compensation
of personal representative
116.183Â Â Â Â Expenses
of personal representative; determination of attorney fees
116.193Â Â Â Â Order
of escheat
116.203Â Â Â Â Disposition
of unclaimed assets
116.213Â Â Â Â Discharge
of personal representative
116.223Â Â Â Â Recording
of personal representativeÂ’s deed in other counties
116.233Â Â Â Â Reopening
estate of decedent
116.243Â Â Â Â Reports
by court clerks, county clerks or court administrators to Department of State
Lands
116.253Â Â Â Â Recovery
of escheated property
116.263Â Â Â Â Payment
of debt and delivery of property to foreign personal representative without
local administration
APPORTIONMENT OF ESTATE TAXES
116.303Â Â Â Â Definitions
for ORS 116.303 to 116.383
116.313Â Â Â Â Apportionment
among interested persons; valuations; testamentary apportionment
116.323Â Â Â Â Apportionment
proceedings; equitable apportionment; penalties and interest; court
determination
116.333Â Â Â Â Withholding
of tax; recovery from distributee; bond of distributee
116.343Â Â Â Â Allowances
for exemptions, deductions and credits
116.353Â Â Â Â Income
interests; life or temporary interests; charging corpus
116.363Â Â Â Â Proceedings
for recovery of tax; liability of personal representative; apportionment of
amount not recovered
116.373Â Â Â Â Foreign
personal representatives and estates
116.383Â Â Â Â Construction
ALLOCATION OF INCOME
     116.003 [1969 c.591 §168; 1973 c.506 §36; repealed by 1975 c.717 §14 (116.007
enacted in lieu of 116.003)]
     116.005 [Repealed by 1969 c.591 §305]
     116.007
Allocation of income. (1)
Unless the will otherwise provides and subject to subsection (2) of this
section, all expenses incurred in connection with the settlement of a decedentÂ’s
estate, including debts, funeral expenses, estate taxes, interest and penalties
concerning taxes, family allowances, fees of attorneys and personal
representatives and court costs, shall be charged against the principal of the
estate.
     (2) Unless the will otherwise provides,
income from the assets of a decedentÂ’s estate after the death of the testator
and before distribution, including income from property used to discharge
liabilities, shall be determined in accordance with the rules applicable to a
trustee under ORS chapter 129 and this section and distributed as follows:
     (a) To specific legatees and devisees, the
income from the property bequeathed or devised to them respectively, less
taxes, ordinary repairs, and other expenses of management and operation of the
property, and an appropriate portion of interest accrued since the death of the
testator and of taxes imposed on income, excluding taxes on capital gains, that
accrue during the period of administration.
     (b) To all other legatees and devisees,
except legatees of pecuniary bequests that are not in trust and that do not
qualify for the marital deduction provided for in section 2056 of the Internal
Revenue Code (26 U.S.C. 2056), the balance of the income, less the balance of
taxes, ordinary repairs, and other expenses of management and operation of all
property from which the estate is entitled to income, interest accrued since
the death of the testator, and taxes imposed on income, excluding taxes on
capital gains, that accrue during the period of administration, in proportion
to their respective interests in the undistributed assets of the estate
computed at times of distribution on the basis of inventory value.
     (3) Income received by a trustee under
subsection (2) of this section shall be treated as income of the trust. [1975
c.717 §15 (enacted in lieu of 116.003); 2003 c.279 §33; 2005 c.22 §94; 2007
c.71 §29]
     116.010 [Repealed by 1969 c.591 §305]
PARTIAL
DISTRIBUTION
     116.013
Petition and order for partial distribution. Upon petition by the personal representative or other interested
person, and after such notice and hearing as the court may prescribe, the court
may order the personal representative to distribute, prior to final settlement
and distribution, property of the estate to the person or persons who would be
entitled to the property under the will or under intestate succession on final
distribution, if the court finds that:
     (1) After the distribution sufficient
assets will remain to pay support of spouse and children, expenses of
administration, unpaid claims and all known unpaid creditors of the decedent or
of the estate; and
     (2) The distribution may be made without
loss to creditors or injury to the estate or to any interested person. [1969
c.591 §169; 1987 c.646 §1]
     116.015 [Repealed by 1969 c.591 §305]
     116.020 [Amended by 1957 c.352 §1; repealed by 1969
c.591 §305]
     116.023
Bond or other security. The
court may require a bond or other security of any distributee for the protection
of creditors and other interested persons who might suffer loss or injury
because of the distribution of property under ORS 116.013. [1969 c.591 §170]
     116.025 [Repealed by 1969 c.591 §305]
     116.033
Discharge of personal representative. The distribution of property in accordance with the order of the court
under ORS 116.013 is a full discharge of the personal representative in respect
to all property embraced in the order, except as otherwise provided in ORS
chapters 111, 112, 113, 114, 115, 116 and 117. [1969 c.591 §171]
     116.043
Petition and order for refund by distributee. If, after the distribution of property under ORS 116.013, it appears
that all or any part of the property distributed is required for the payment of
claims and expenses of administration, including determined and undetermined
state and federal tax liability, the personal representative shall petition the
court to order the return of the property. Notice of the hearing on the
petition shall be given as provided in ORS 111.215. Upon the hearing the court
may order the distributee to return the property distributed or any part
thereof, or to pay its value as of the time of distribution, and may specify
the time within which the return or payment must be made. If the property is not
returned or the payment is not made within the time ordered, the person failing
to return the property or pay the value may be adjudged in contempt of court
and judgment may be entered against the person and the sureties of the person,
if any. [1969 c.591 §172]
ACCOUNTING
AND DISTRIBUTION
     116.063
Liability of personal representative. A personal representative may be liable for and is chargeable in the
accounts of the personal representative with:
     (1) All of the estate of the decedent that
comes into the possession of the personal representative at any time, including
the income therefrom.
     (2) All property not a part of the estate
if:
     (a) The personal representative has
commingled the property with the assets of the estate; or
     (b) The property was received under a duty
imposed on the personal representative by law in the capacity of personal
representative.
     (3) Any loss to the estate arising from:
     (a) Neglect or unreasonable delay in
collecting the assets of the estate.
     (b) Neglect in paying over money or
delivering property of the estate.
     (c) Failure to pay taxes as required by
law or to close the estate within a reasonable time.
     (d) Embezzlement or commingling of the
assets of the estate with other property.
     (e) Unauthorized self-dealing.
     (f) Wrongful acts or omissions of
copersonal representatives that the personal representative could have
prevented by the exercise of ordinary care.
     (g) Any other negligent or willful act or
nonfeasance in the administration of the estate by which loss to the estate
arises. [1969 c.591 §173]
     116.073
Nonliability of personal representative. A personal representative is not liable for or chargeable in the
accounts of the personal representative with:
     (1) Debts due the decedent or other assets
of the estate that remain uncollected without the fault of the personal
representative.
     (2) Loss by the decrease in value or
destruction of property of the estate if the loss is caused without the fault
of the personal representative. [1969 c.591 §174]
     116.083
Accounting by personal representative; rules. (1) A personal representative shall make and file in the estate
proceeding an account of the personal representativeÂ’s administration:
     (a) Unless the court orders otherwise,
annually within 60 days after the anniversary date of the personal
representativeÂ’s appointment.
     (b) Within 30 days after the date of the
personal representativeÂ’s removal or resignation or the revocation of the
personal representativeÂ’s letters.
     (c) When the estate is ready for final
settlement and distribution.
     (d) At such other times as the court may
order.
     (2) Each account must include the
following information:
     (a) The period of time covered by the
account.
     (b) The total value of the property with
which the personal representative is chargeable according to the inventory, or,
if there was a prior account, the amount of the balance of the prior account.
     (c) All money and property received during
the period covered by the account.
     (d) All disbursements made during the
period covered by the account. Vouchers for disbursements must accompany the
account, unless otherwise provided by order or rule of the court, or unless the
personal representative is a trust company that has complied with ORS 709.030,
but that personal representative shall:
     (A) Maintain the vouchers for a period of
not less than one year following the date on which the order approving the
final account is entered;
     (B) Permit interested persons to inspect
the vouchers and receive copies thereof at their own expense at the place of
business of the personal representative during the personal representativeÂ’s
normal business hours at any time prior to the end of the one-year period
following the date on which the order approving the final account is entered;
and
     (C) Include in each annual account and in
the final account a statement that the vouchers are not filed with the account
but are maintained by the personal representative and may be inspected and
copied as provided in subparagraph (B) of this paragraph.
     (e) The money and property of the estate
on hand.
     (f) Such other information as the personal
representative considers necessary to show the condition of the affairs of the
estate or as the court may require.
     (g) A declaration under penalty of perjury
in the form required by ORCP 1 E.
     (3) When the estate is ready for final
settlement and distribution, the account must also include:
     (a) A statement that all Oregon income,
inheritance and personal property taxes, if any, have been paid, or if not so
paid, that payment of those taxes has been secured by bond, deposit or
otherwise, and that all required tax returns have been filed.
     (b) A petition for a judgment authorizing
the personal representative to distribute the estate to the persons and in the
portions specified therein.
     (4) If the distributees consent thereto in
writing and all creditors of the estate have been paid in full other than
creditors owed administrative expenses that require court approval, the
personal representative, in lieu of the final account otherwise required by
this section, may file a statement that includes the following:
     (a) The period of time covered by the
statement.
     (b) A statement that all creditors have
been paid in full other than creditors owed administrative expenses that
require court approval.
     (c) The statement and petition referred to
in subsection (3) of this section.
     (d) A declaration under penalty of perjury
in the form required by ORCP 1 E.
     (5) Notice of time for filing objections
to the statement described in subsection (4) of this section is not required.
     (6) The Chief Justice of the Supreme Court
may by rule specify the form and contents of accounts that must be filed by a
personal representative. [1969 c.591 §175; 1973 c.506 §37; 1985 c.304 §1; 1995
c.453 §2; 1997 c.631 §405; 1999 c.592 §2; 2003 c.576 §375; 2005 c.22 §95; 2005
c.123 §1; 2007 c.284 §2]
     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]
     116.093
Notice for filing objections to final account and petition for distribution. (1) Upon filing the final account and
petition for a judgment of distribution, the personal representative shall fix
a time for filing objections thereto in a notice thereof. Not less than 20 days
before the time fixed in the notice, the personal representative shall cause a
copy of the notice to be mailed to:
     (a) Each heir at the last-known address of
the heir, if the decedent died intestate.
     (b) Each devisee at the last-known address
of the devisee, if the decedent died testate.
     (c) Each creditor who has not received
payment in full and whose claim has not otherwise been barred.
     (d) Any other person known to the personal
representative to have or to claim an interest in the estate being distributed.
     (2) The notice need not be mailed to the
personal representative.
     (3) Proof of the mailing to those persons
entitled to notice shall be filed in the estate proceeding at or before
approval of the final account.
     (4) If the Department of Human Services
has presented a claim under ORS chapter 411 or 414 or ORS 416.310 to 416.340,
416.510 to 416.990 or 417.010 to 417.080, or the Department of Corrections or
the authorized agent of the Department of Corrections has presented a claim
under ORS 179.620 (3), and the claim has not been settled or paid in full, the
personal representative shall mail to the appropriate department a copy of the
final account at the same time, and shall make proof of the mailing in the same
manner, as the notice provided for in this section. [1969 c.591 §176; 1969
c.597 §280; 1989 c.348 §14; 2001 c.487 §14; 2001 c.900 §20a; 2003 c.576 §376;
2005 c.381 §21; 2007 c.284 §13]
     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]
     116.103
Objections to final account and petition. Any person entitled to notice under ORS 116.093 may, within the time
fixed for the filing, file in the estate proceeding objections to the final
account and petition for distribution, specifying the particulars of the
objections. Upon the filing of objections the court shall fix the time for
hearing thereon. [1969 c.591 §177]
     116.105 [Repealed by 1969 c.591 §305]
     116.110 [Repealed by 1969 c.591 §305]
     116.113
Judgment of final distribution.
(1) If no objections to the final account and petition for distribution are filed,
or if objections are filed, upon the hearing, the court shall enter a general
judgment of final distribution. In the judgment the court shall designate the
persons in whom title to the estate available for distribution is vested and
the portion of the estate or property to which each is entitled under the will,
by agreement approved by the court or pursuant to intestate succession. The
judgment shall also contain any findings of the court in respect to:
     (a) Advancements.
     (b) Election against will by the surviving
spouse.
     (c) Renunciation.
     (d) Lapse.
     (e) Adjudicated controversies.
     (f) Partial distribution, which shall be
confirmed or modified.
     (g) Retainer.
     (h) Claims for which a special fund is set
aside, and the amount set aside.
     (i) Contingent claims that have been
allowed and are still unpaid.
     (j) Approval of the final account in whole
or in part.
     (2) The personal representative is not
entitled to approval of the final account until Oregon income and personal
property taxes, if any, have been paid and appropriate receipts and clearances
therefor have been filed, or until payment of those taxes has been secured by
bond, deposit or otherwise, provided, however, that no such receipts or
clearances shall be required with regard to damages accepted upon settlement of
a claim or recovered on a judgment in an action for wrongful death as provided
in ORS 30.010 to 30.100.
     (3) If, by agreement approved by the
court, property is distributed to persons in whom title is vested by the
judgment of final distribution otherwise than as provided by the will or
pursuant to intestate succession, the judgment operates as a transfer of the
property between those persons.
     (4) The judgment of final distribution is
a conclusive determination of the persons who are the successors in interest to
the estate and of the extent and character of their interest therein, subject
only to the right of appeal and the power of the court to vacate the judgment. [1969
c.591 §178; 1987 c.646 §2; 1989 c.921 §1; 1995 c.453 §3; 1999 c.59 §26; 2003
c.576 §377; 2005 c.568 §34]
     116.115 [1961 c.674 §4; 1969 c.175 §11; renumbered
97.295]
     116.120 [Repealed by 1969 c.591 §305]
     116.123
Effect of approval of final account. To the extent that the final account is approved, the personal representative
and the surety of the personal representative, subject to the right of appeal,
to the power of the court to vacate its final orders and to the provisions of
ORS 116.213, are relieved from liability for the administration of the trust.
The court may disapprove the account in whole or in part, surcharge the
personal representative for any loss caused by any breach of duty and deny in
whole or in part the right of the personal representative to receive
compensation. [1969 c.591 §179]
     116.125 [Repealed by 1969 c.591 §305]
     116.130 [Repealed by 1969 c.591 §305]
     116.133
Distribution; order in which assets appropriated; abatement. (1) If the will expresses an order of
abatement, or the testamentary plan or the express or implied purpose of the
devise would be defeated by the order of abatement stated in subsection (2) of
this section, the shares of the distributees abate as may be found necessary to
give effect to the intention of the testator.
     (2) Except as provided in ORS 112.405 as
to the shares of pretermitted children, and in ORS 114.105 as to the share of
the surviving spouse who elects to take against the will, shares of
distributees abate without any preference or priority as between real and
personal property in the following order:
     (a) Property not disposed of by the will.
     (b) Residuary devises.
     (c) General devises.
     (d) Specific devises.
     (3) A general devise charged on any
specific property or fund is considered, for purposes of abatement, property
specifically devised to the extent of the value of the thing on which it is
charged. Upon the failure or insufficiency of the thing on which it is charged,
it is considered a general devise to the extent of the failure or
insufficiency.
     (4) Abatement within each classification
is in proportion to the amounts of property each of the distributees would have
received had full distribution of the property been made in accordance with the
terms of the will.
     (5) Persons to whom the will gives
tangible personal property not used in trade, agriculture or other business are
not required to contribute from that property unless the particular devise
forms a substantial amount of the total estate and the court specifically
orders contribution because of the devise.
     (6) When the subject matter of a preferred
devise is sold or used incident to administration, abatement shall be achieved
by appropriate adjustments in, or contribution from, other interests in the
remaining assets. [1969 c.591 §180]
     116.135 [Repealed by 1969 c.591 §305]
     116.140 [Repealed by 1969 c.591 §305]
     116.143
Interest on pecuniary devises.
(1) As used in this section, “discount rate” means the auction average rate on
91-day United States Treasury bills, as established by the most recent auction
of these Treasury bills and as reported by the United States Department of the
Treasury, Bureau of the Public Debt. The discount rate shall be determined,
with reference to the most recent auction date, before May 15 and before
November 15 of each year.
     (2) General pecuniary devises not entitled
to a share of income under ORS 116.007 (2) bear interest payable from the
residuary estate at the discount rate for a period beginning one year after the
first appointment of a personal representative until payment, unless a contrary
intent is evidenced in the will or unless otherwise ordered by the court. [1969
c.591 §181; 2005 c.125 §1]
     116.145 [Repealed by 1969 c.591 §305]
     116.150 [Repealed by 1969 c.591 §305]
     116.153
Right of offset and retainer.
The amount of the indebtedness of a distributee to the estate if due, or its
present worth if not due, shall be offset against the interest of the
distributee in the estate; but the distributee has the benefit of any defense
that would be available to the distributee in a direct proceeding for recovery
of the debt. The right of offset and retainer is prior and superior to the
rights of judgment creditors, heirs or assignees of the distributee. [1969
c.591 §182]
     116.155 [Repealed by 1969 c.591 §305]
     116.160 [Repealed by 1969 c.591 §305]
     116.163
Distribution to foreign personal representative. When administration of an estate in this
state has been completed and the estate is in a condition to be distributed,
the court, upon application by the personal representative, may authorize the
delivery to the personal representative of an estate of a decedent pending in a
foreign jurisdiction of such property as the court finds appropriate for the
payment of debts, taxes or other charges or for distribution to the
distributees of the estate in the foreign jurisdiction. [1969 c.591 §183]
     116.165 [Repealed by 1969 c.591 §305]
     116.170 [Repealed by 1969 c.591 §305]
     116.173
Compensation of personal representative. (1) Upon application to the court a personal representative is
entitled to receive compensation for services as provided in this section. If
there is more than one personal representative acting concurrently, the
compensation shall not be increased, but may be divided among them as they
agree or as the court may order. The compensation is a commission upon the
whole estate, as follows:
     (a) Upon the property subject to the
jurisdiction of the court, including income and realized gains:
     (A) Seven percent of any sum not exceeding
$1,000.
     (B) Four percent of all above $1,000 and
not exceeding $10,000.
     (C) Three percent of all above $10,000 and
not exceeding $50,000.
     (D) Two percent of all above $50,000.
     (b) One percent of the property, exclusive
of life insurance proceeds, not subject to the jurisdiction of the court but
reportable for Oregon inheritance tax or federal estate tax purposes.
     (2) In all cases, further compensation as
is just and reasonable may be allowed by the court for any extraordinary and
unusual services not ordinarily required of a personal representative in the
performance of duties as a personal representative.
     (3) When a decedent by will has made
special provision for the compensation of a personal representative, the
personal representative is not entitled to any other compensation for services
unless prior to appointment the personal representative signs and files with
the clerk of the court a written renunciation of the compensation provided by
the will. [Formerly 117.680; 2005 c.126 §1]
     116.175 [Repealed by 1969 c.591 §305]
     116.180 [Repealed by 1969 c.591 §305]
     116.183
Expenses of personal representative; determination of attorney fees. (1) A personal representative shall be
allowed in the settlement of the final account all necessary expenses incurred
in the care, management and settlement of the estate, including reasonable fees
of appraisers, attorneys and other qualified persons employed by the personal
representative. A partial award of such expenses, including fees, may be
allowed prior to settlement of the final account upon petition, showing that
the final account reasonably cannot be filed at that time, and upon notice as
directed by the court. An award of reasonable attorney fees under this section
shall be made after consideration of the customary fees in the community for
similar services, the time spent by counsel, counselÂ’s experience in such
matters, the skill displayed by counsel, the excellence of the result obtained,
any agreement as to fees which may exist between the personal representative
and the counsel of the personal representative, the amount of responsibility
assumed by counsel considering the total value of the estate, and such other
factors as may be relevant. No single factor shall be controlling.
     (2) A personal representative who defends
or prosecutes any proceeding in good faith and with just cause, whether
successful or not, is entitled to receive from the estate necessary expenses
and disbursements, including reasonable attorney fees, in the proceeding. [1969
c.591 §185; 1977 c.733 §1; 1987 c.518 §1]
     116.185 [Repealed by 1961 c.417 §2]
     116.186 [1961 c.417 §1; repealed by 1969 c.591 §305]
     116.190 [Repealed by 1969 c.591 §305]
     116.193
Order of escheat. If it
appears to the court, at any time after the expiration of four months after the
date of the first publication of notice to interested persons, that there is no
known person to take by descent the net intestate estate, the court shall order
that the estate escheat to the State of Oregon and that the whole of the
estate, after payment of claims, taxes and expenses of administration, be
distributed to the Department of State Lands. There shall be no further
proceeding in the administration of the estate, and the estate shall summarily
be closed. [1969 c.591 §186]
     116.195 [Repealed by 1969 c.591 §305]
     116.203
Disposition of unclaimed assets. If a report filed in the estate proceeding by the personal
representative not less than 30 days after the date of entry of the judgment of
distribution shows that payment or delivery of property in the possession of
the personal representative or under the control of the personal representative
cannot be made to a distributee entitled thereto, either because the
distributee refuses to accept the property or because the distributee cannot be
found, the court may direct the personal representative to pay or deliver the
property to the Department of State Lands, to be placed in the escheat funds of
the state. The personal representative shall take the receipt of the Department
of State Lands stating from whom the property was received, a description of
the property and the name of the person entitled to the property. The person
entitled thereto may apply for and recover the property in the manner provided
for recovery of escheat funds. [1969 c.591 §187; 2003 c.576 §378]
     116.213
Discharge of personal representative. Upon the filing of receipts or other evidence satisfactory to the
court that distribution has been made as ordered in the general judgment, the
court shall enter a supplemental judgment of discharge. Except as provided in
ORS 115.004, the discharge so entered operates as a release of the personal
representative from further duties and as a bar to any action against the
personal representative and the surety of the personal representative. The
court may, in its discretion and upon such terms as may be just, within one
year after entry of the supplemental judgment of discharge, permit an action to
be brought against the personal representative and the surety of the personal
representative if the supplemental judgment of discharge was taken through
fraud or misrepresentation of the personal representative or the surety of the
personal representative or through the mistake, inadvertence, surprise or
excusable neglect of the claimant. [1969 c.591 §188; 1989 c.229 §9; 2003 c.576 §379]
     116.223
Recording of personal representativeÂ’s deed in other counties. The personal representative shall cause to
be recorded in the deed records of any county in which real property belonging
to the estate is situated, a personal representativeÂ’s deed executed in the manner
required by ORS chapter 93. The execution of the personal representativeÂ’s deed
shall not place the personal representative in the chain of title to the
property so conveyed unless the personal representative is also an heir,
devisee or claiming successor to the property conveyed. [1969 c.591 §189; 1991
c.191 §1]
     116.233
Reopening estate of decedent.
Upon the petition of any interested person, the court, with such notice as it
may prescribe, may order the estate of a decedent reopened if other property is
discovered, if any necessary act remains unperformed or for any other proper
cause appearing to the court. The court may reappoint the former personal
representative, or appoint another personal representative, to administer any
additional property or to perform such other acts as are considered necessary.
The provisions of law as to original administration apply, in so far as
applicable, to accomplish the purpose for which the estate is reopened, but a
claim that already is adjudicated or barred may not be asserted in the reopened
administration. [1969 c.591 §190]
     116.243
Reports by court clerks, county clerks or court administrators to Department of
State Lands. A court clerk
of any county in which the county court has judicial functions, the clerk of
any county court that has jurisdiction over probate matters under ORS 111.075
or a court administrator, upon request, shall furnish to an estate
administrator of the Department of State Lands appointed under ORS 113.235 the
titles of estates of decedents that have remained open for more than three
years and in which no heirs, or only persons whose right to inherit the
proceeds thereof is being contested, have appeared to claim the estate. [1969
c.591 §191; 1991 c.230 §24; 1991 c.790 §9a; 2003 c.395 §17]
     116.253
Recovery of escheated property.
(1) Within 10 years after the death of a decedent whose estate escheated in
whole or in part to the state, or within eight years after the entry of a
judgment or order escheating property of an estate to the state, a claim may be
made for the property escheated, or the proceeds thereof, by or on behalf of a
person not having actual knowledge of the escheat or by or on behalf of a
person who at the time of the escheat was unable to prove entitlement to the
escheated property.
     (2) The claim shall be made by a petition
filed with the Director of the Department of State Lands. The claim is
considered a contested case as provided in ORS 183.310 and there is the right
of judicial review as provided in ORS 183.480. The petition must include a
declaration under penalty of perjury in the form required by ORCP 1 E and shall
state:
     (a) The age and place of residence of the
claimant by whom or on whose behalf the petition is filed;
     (b) That the claimant lawfully is entitled
to the property or proceeds, briefly describing the property or proceeds;
     (c) That at the time the property
escheated to the state the claimant had no knowledge or notice thereof or was
unable to prove entitlement to the escheated property and has subsequently
acquired new evidence of that entitlement;
     (d) That the claimant claims the property
or proceeds as an heir or devisee or as the personal representative of the
estate of an heir or devisee, setting forth the relationship, if any, of the
claimant to the decedent who at the time of death was the owner;
     (e) That 10 years have not elapsed since
the death of the decedent, or that eight years have not elapsed since the entry
of the judgment or order escheating the property to the state; and
     (f) If the petition is not filed by the
claimant, the status of the petitioner.
     (3) If it is determined that the claimant
is entitled to the property or the proceeds thereof, the Director of the
Department of State Lands shall deliver the property to the petitioner, subject
to and charged with any tax on the property and the costs and expenses of the
state in connection therewith.
     (4) If the person whose property escheated
or reverted to the state was at any time an inmate of a state institution in
Oregon for persons with mental illness or mental retardation, the reasonable
unpaid cost, as determined by the Department of Human Services, of the care and
maintenance of the person while a ward of the institution, regardless of when
the cost was incurred, may be deducted from, or, if necessary, be offset in
full against, the amount of the escheated property.
     (5) For the purposes of this section, the
death of the decedent is presumed to have occurred on the date shown in the
decedentÂ’s death certificate or in any other similar document issued by the
jurisdiction in which the death occurred or issued by an agency of the federal
government. [Formerly 120.130; 2003 c.395 §18; 2003 c.576 §380a; 2007 c.70 §23;
2007 c.284 §3]
     Note: See note under 116.083.
     116.263
Payment of debt and delivery of property to foreign personal representative without
local administration. (1)
Three months or more after the death of a nonresident decedent, any person
indebted to the estate of the nonresident decedent or having possession of
personal property or an instrument evidencing a debt, obligation, stock or
chose in action belonging to the estate of the nonresident decedent may make
payment of the indebtedness, in whole or in part, or deliver the personal
property or the instrument evidencing the debt, obligation, stock or chose in
action to the foreign personal representative of the nonresident decedent, upon
an affidavit made by or on behalf of the foreign personal representative
stating:
     (a) The date of the death of the
nonresident decedent;
     (b) That no local administration or
application therefor is pending in this state; and
     (c) That the foreign personal
representative is entitled to payment or delivery.
     (2) Payment or delivery made in good faith
on the basis of the affidavit is a discharge of the debtor or person having
possession of the personal property.
     (3) Payment or delivery may not be made
under this section if a resident creditor of the nonresident decedent has
notified the debtor of the nonresident decedent or the person having possession
of the personal property belonging to the nonresident decedent that the debt
should not be paid nor the property delivered to the foreign personal
representative. [1969 c.591 §193; 1987 c.646 §3]
APPORTIONMENT
OF ESTATE TAXES
     116.303
Definitions for ORS 116.303 to 116.383. As used in ORS 116.303 to 116.383:
     (1) “Estate” means the gross estate of a
decedent as determined for the purpose of federal estate tax and the
inheritance tax payable to this state under ORS 118.005 to 118.840.
     (2) “Person” means any individual,
partnership, association, joint stock company, corporation, government,
political subdivision, governmental agency or local governmental agency.
     (3) “Person interested in the estate”
means any person entitled to receive, or who has received, from a decedent or
by reason of the death of a decedent any property or interest therein included
in the decedentÂ’s estate. It includes a personal representative, guardian,
conservator or trustee.
     (4) “State” means any state, territory or
possession of the
     (5) “Tax” means the federal estate tax and
the inheritance tax payable to this state under ORS 118.005 to 118.840, and
interest and penalties imposed in addition to the tax. [1969 c.591 §194; 1977
c.666 §32]
     116.305 [Repealed by 1969 c.591 §305]
     116.310 [Repealed by 1969 c.591 §305]
     116.313
Apportionment among interested persons; valuations; testamentary apportionment. Unless the will otherwise provides, the tax
shall be apportioned among all persons interested in the estate. The
apportionment shall be made in the proportion that the value of the interest of
each person interested in the estate bears to the total value of the interests
of all persons interested in the estate. The values used in determining the tax
shall be used for that purpose. In the event the decedentÂ’s will directs a
method of apportionment of tax different from the method described in ORS
116.303 to 116.383, the method described in the will shall control. A mere
testamentary direction to pay debts, charges, taxes or expenses of
administration shall not be considered a direction against apportionment of
estate taxes. [1969 c.591 §195; 1973 c.506 §38]
     116.315 [Repealed by 1969 c.591 §305]
     116.320 [Repealed by 1969 c.591 §305]
     116.323
Apportionment proceedings; equitable apportionment; penalties and interest;
court determination. (1) The
court in which the administration of the estate is proceeding may on petition
for the purpose determine the apportionment of the tax.
     (2) If the court finds that it is
inequitable to apportion interest and penalties in the manner provided in ORS
116.313 because of special circumstances, it may direct apportionment thereof
in the manner it finds equitable.
     (3) If the court finds that the assessment
of penalties and interest assessed in relation to the tax is due to delay
caused by the negligence of the personal representative, the court may charge
the personal representative with the amount of the assessed penalties and
interest.
     (4) In any suit or judicial proceeding to
recover from any person interested in the estate the amount of the tax
apportioned to the person in accordance with ORS 116.303 to 116.383, the
determination of the probate court in respect thereto is prima facie correct. [1969
c.591 §196]
     116.325 [Repealed by 1969 c.591 §305]
     116.330 [Repealed by 1969 c.591 §305]
     116.333
Withholding of tax; recovery from distributee; bond of distributee. (1) The personal representative or other
person who is in possession of the property of the decedent and who is required
to pay the tax may withhold from any property distributable to any person
interested in the estate, upon its distribution to the person, the amount of
tax attributable to the interest of the person. If the property in possession
of the personal representative or other person required to pay the tax and
distributable to any person interested in the estate is insufficient to satisfy
the proportionate amount of the tax determined to be due from the person, the
personal representative or other person required to pay the tax may recover the
deficiency from the person interested in the estate. If the property is not in
the possession of the personal representative or the other person required to
pay the tax, the personal representative or the other person required to pay
the tax may recover from any person interested in the estate the amount of the
tax apportioned to the person in accordance with ORS 116.303 to 116.383.
     (2) If property held by the personal
representative is distributed prior to final apportionment of the tax, the
distributee shall provide a bond or other security for the apportionment
liability in the form and amount prescribed by the personal representative. [1969
c.591 §197]
     116.335 [Repealed by 1969 c.591 §305]
     116.340 [Repealed by 1969 c.591 §305]
     116.343
Allowances for exemptions, deductions and credits. (1) In making an apportionment, allowances
shall be made for any exemptions granted, any classification made of persons
interested in the estate and any deductions and credits allowed by the law
imposing the tax.
     (2) Any exemption or deduction allowed by
reason of the relationship of any person to the decedent or by reason of the
purpose of the gift inures to the benefit of the person bearing that
relationship or receiving the gift, except that when an interest is subject to
a prior present interest that is not allowable as a deduction, the tax
apportionable against the present interest shall be paid from principal.
     (3) Any deduction for property previously
taxed and any credit for gift taxes or death taxes of a foreign country paid by
the decedent or the estate of the decedent inures to the proportionate benefit
of all persons liable to apportionment.
     (4) Any credit for inheritance, succession
or estate taxes or taxes in the nature thereof in respect to property or
interests includable in the estate inures to the benefit of the persons or
interests chargeable with the payment thereof to the extent that, or in proportion
as, the credit reduces the tax.
     (5) To the extent that property passing to
or in trust for a surviving spouse or any charitable, public or similar gift or
bequest does not constitute an allowable deduction for purposes of the tax
solely by reason of an inheritance tax or other death tax imposed upon and
deductible from the property, the property shall not be included in the
computation provided for in ORS 116.313, and to that extent no apportionment
shall be made against the property. This subsection does not apply to any case
in which the result will be to deprive the estate of a deduction otherwise
allowable under section 2053 (d) of the Internal Revenue Code (26 U.S.C. 2053
(d)) relating to deduction for state death taxes on transfers for public, charitable
or religious uses. [1969 c.591 §198; 2005 c.22 §96]
     116.353
Income interests; life or temporary interests; charging corpus. No interest in income and no estate for
years or for life or other temporary interest in any property or fund is
subject to apportionment as between the temporary interest and the remainder.
The tax on the temporary interest and the tax, if any, on the remainder is
chargeable against the corpus of the property or funds subject to the temporary
interest and remainder. [1969 c.591 §199]
     116.363
Proceedings for recovery of tax; liability of personal representative;
apportionment of amount not recovered. Neither the personal representative nor other person required to pay
the tax is under any duty to institute any suit or proceeding to recover from
any person interested in the estate the amount of the tax apportioned to that
person until the expiration of three months next following final determination
of the tax. A personal representative or other person required to pay the tax
who institutes the suit or proceeding within a reasonable time after the
three-month period is not subject to any liability or surcharge because any
portion of the tax apportioned to any person interested in the estate was
collectible at a time following the death of the decedent but thereafter became
uncollectible. If the personal representative or other person required to pay
the tax cannot collect from any person interested in the estate the amount of
the tax apportioned to the person, the amount not recoverable shall be
equitably apportioned among the other persons interested in the estate who are
subject to apportionment. [1969 c.591 §200]
     116.373
Foreign personal representatives and estates. A personal representative acting in another state or a person required
to pay the tax who is domiciled in another state may institute an action in the
courts of this state and may recover a proportionate amount of the federal
estate tax, of an estate tax payable to another state or of a death duty due by
a decedentÂ’s estate to another state, from a person interested in the estate
who is either domiciled in this state or who owns property in this state
subject to attachment or execution. For the purposes of the action the
determination of apportionment by the court having jurisdiction of the
administration of the decedentÂ’s estate in the other state is prima facie
correct. [1969 c.591 §201]
     116.383
Construction. ORS 116.303 to
116.383 embody the Uniform Estate Tax Apportionment Act and shall be construed
to effectuate its general purpose to make uniform the law of those states which
enact it. [1969 c.591 §202]
     116.405 [Repealed by 1969 c.591 §305]
     116.410 [Repealed by 1969 c.591 §305]
     116.415 [Repealed by 1969 c.591 §305]
     116.420 [Amended by 1957 c.364 §1; repealed by 1969
c.591 §305]
     116.425 [Repealed by 1969 c.591 §305]
     116.430 [Repealed by 1969 c.591 §305]
     116.435 [Repealed by 1969 c.591 §305]
     116.440 [Repealed by 1969 c.591 §305]
     116.445 [Repealed by 1969 c.591 §305]
     116.450 [Repealed by 1969 c.591 §305]
     116.455 [Repealed by 1969 c.591 §305]
     116.460 [Repealed by 1969 c.591 §305]
     116.465 [Repealed by 1969 c.591 §305]
     116.505 [Repealed by 1969 c.591 §305]
     116.510 [Amended by 1957 c.410 §1; repealed by 1969
c.591 §305]
     116.515 [Repealed by 1969 c.591 §305]
     116.520 [Repealed by 1969 c.591 §305]
     116.525 [Amended by 1957 c.410 §2; repealed by 1969
c.591 §305]
     116.530 [Amended by 1957 c.410 §3; repealed by 1969
c.591 §305]
     116.535 [Repealed by 1969 c.591 §305]
     116.540 [Amended by 1957 c.410 §4; repealed by 1969
c.591 §305]
     116.545 [Amended by 1957 c.410 §5; repealed by 1969
c.591 §305]
     116.550 [Amended by 1969 c.198 §57; repealed by 1969
c.591 §305]
     116.555 [Repealed by 1969 c.591 §305]
     116.560 [Repealed by 1969 c.591 §305]
     116.565 [Repealed by 1969 c.591 §305]
     116.570 [Repealed by 1969 c.591 §305]
     116.575 [Repealed by 1969 c.591 §305]
     116.580 [Repealed by 1969 c.591 §305]
     116.585 [Repealed by 1969 c.591 §305]
     116.590 [Amended by 1955 c.444 §1; repealed by 1969 c.591
§305]
     116.595 [Amended by 1955 c.444 §2; repealed by 1969
c.591 §305]
     116.705 [Repealed by 1969 c.591 §305]
     116.710 [Repealed by 1969 c.591 §305]
     116.715 [Repealed by 1969 c.591 §305]
     116.720 [Amended by 1955 c.149 §1; repealed by 1969
c.591 §305]
     116.725 [Repealed by 1969 c.591 §305]
     116.730 [Repealed by 1969 c.591 §305]
     116.735 [Repealed by 1969 c.591 §305]
     116.740 [Repealed by 1969 c.591 §305]
     116.745 [Amended by 1963 c.417 §6; repealed by 1969
c.591 §305]
     116.750 [Repealed by 1969 c.591 §305]
     116.755 [Repealed by 1969 c.591 §305]
     116.760 [Repealed by 1969 c.591 §305]
     116.765 [Repealed by 1969 c.591 §305]
     116.770 [Repealed by 1969 c.591 §305]
     116.775 [Repealed by 1969 c.591 §305]
     116.780 [Repealed by 1969 c.591 §305]
     116.785 [Repealed by 1969 c.591 §305]
     116.790 [Repealed by 1969 c.591 §305]
     116.795 [Repealed by 1969 c.591 §305]
     116.800 [Repealed by 1969 c.591 §305]
     116.805 [Amended by 1965 c.504 §1; repealed by 1969
c.591 §305]
     116.810 [Repealed by 1965 c.399 §1 (116.811 enacted
in lieu of 116.810)]
     116.811 [1965 c.399 §2 (enacted in lieu of 116.810);
repealed by 1969 c.591 §305]
     116.815 [Repealed by 1969 c.591 §305]
     116.820 [Amended by 1953 c.350 §2; repealed by 1969
c.591 §305]
     116.825 [Amended by 1963 c.417 §11; repealed by 1969
c.591 §305]
     116.830 [Repealed by 1969 c.591 §305]
     116.835 [Subsection (1) enacted as 1903 p.133 §2;
subsection (2) enacted as 1907 c.175; subsection (3) enacted as 1917 c.114 §2;
subsection (4) enacted as 1943 c.26; 1969 c.591 §133; renumbered 114.365]
     116.840 [1963 c.417 §3; repealed by 1969 c.591 §305]
     116.850 [1963 c.417 §4; repealed by 1969 c.591 §305]
     116.860 [1963 c.417 §5; repealed by 1969 c.591 §305]
     116.870 [1963 c.417 §7; repealed by 1969 c.591 §305]
     116.880 [1963 c.417 §8; repealed by 1969 c.591 §305]
     116.890 [1963 c.417 §9; repealed by 1969 c.591 §305]
     116.900 [1963 c.417 §10; repealed by 1969 c.591 §305]
     116.990 [Repealed by 1969 c.591 §305]
_______________
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