Small Estate Affidavit
If the estate of a decedent is relatively small, Oregon law allows a person who qualifies as a "claiming successor" to avoid a full probate proceeding by filing what is commonly called a "small estate affidavit." The affidavit is filed with the circuit court in the county in which the decedent lived or passed away, or in which the decedent owned property.
A small estate affidavit can only be used if the fair market value of the decedent’s estate is $275,000 or less. Of this amount, the real property must be valued at $200,000 or less and the personal property (e.g., vehicles, personal effects, and bank or investment accounts) must be valued at $75,000 or less.
A small estate affidavit is not always appropriate even if the estate value limits are met. Starting January 1, 2020, there are new requirements in place for small estate affidavits. An attorney at Hilary Carter Law can help you determine if a small estate affidavit is appropriate for your loved one’s estate and, if so, prepare the affidavit, provide the required notices, and assist with transfer of the property.
What is probate?
Probate is a legal process whereby a court oversees the distribution of assets left by a deceased person. Assets are anything a person owns with value, such as real and personal property and cash.
Probate is a court-supervised process used to transfer property from someone who has passed away to the persons devisees under a will or, if there is no will, to the person’s heirs under the laws of intestacy. The probate process is used when the decedent owned assets that do not transfer to another person in any other manner, as under a beneficiary designation or to a surviving joint owner.
In addition to ensuring that title to assets is transferred to the rightful devisees or heirs, the probate process may be used to collect debts owed to the decedent and is intended to identify creditors who may need to be paid from the assets prior to distribution.
The probate court is the forum where disputes between people who claim they are entitled to assets of the deceased person are settled and to resolve any disputes about the validity of the deceased person’s will.
How does probate begin?
Probate begins with the filing of a petition in the circuit court (or in a few counties, the county court) of the county in which the decedent lived, died, or owned property. Oregon law lists the information that must be included in the petition. If the decedent had a will, then the will must be filed with the petition and it is called a "testate estate." If the decedent died without leaving a will, the estate is called an "intestate estate."
The petition asks the court to appoint a personal representative to manage the estate. This is usually the person nominated in the decedent's will. If there is no will, then the nominee is a person who has preference to serve under ORS 113.085.
Who must be notified?
The personal representative must provide certain notices that are required by Oregon law. Usually the attorney for the personal representative will prepare and mail the notice to the decedent's heirs, and devisees if there is a will, and the State. The attorney will also arrange for publication of the newspaper notice required to alert any potential creditors to the probate.
What are the duties of the personal representative?
The personal representative takes charge of all of the probate assets of the decedent and prepares an inventory. This inventory is filed with the court.
The decedent's final income tax return must be prepared and filed. The personal representative may also need to work with a CPA or the attorney to have other tax returns prepared. These may include the estate's income tax returns (also called a fiduciary income tax return) or, in an estate exceeding $1,000,000 in value, federal and state estate tax returns.
The personal representative identifies creditors of the decedent, and receives and settles claims with creditors. If there is not enough money to pay all creditor claims, the personal representative ensures that claims are paid according to the priority set forth in Oregon law.
After the personal representative has taken all steps necessary to administer the estate, he or she prepares an accounting detailing the actions taken during the proceeding. The accounting if filed with the court and a copy of mailed to all heirs, devisees and unpaid creditors. These interested persons are given 23 days to object. If no objections are filed, the court will approve the accounting and order distribution of the estate's assets to the persons entitled to receive them.
When there are no unpaid creditors and call persons entitled to receive a distribution from the estate consent, a full accounting is not required. The personal representative may instead file a Verified Statement in Lieu of Accounting.
Contact Hilary Carter Law for assistance with all aspects of probate: the preparation and filing of documents with the court, inventorying and gathering together estate assets, settlement of claims, preparation of tax returns, interpretation of wills and the establishment of trusts included in wills, distribution of assets and post-death tax planning in the form of disclaimers.