What is Probate?

What is Probate?

Probate is a legal process that is sometimes necessary in order to transfer assets that a deceased individual owned at their death to another person. Technically, the term “probate” is specific to instances where the decedent left behind a will. However, it is common to refer to the administration of an estate both with and without a will as “probate.”

Individuals or entities that receive assets under a will are generally referred to as beneficiaries or devisees. In contrast, individuals who receive assets when there is no will are referred to as intestate heirs.

If probate is needed and the decedent did not have a will, the Oregon laws of intestate succession will determine who is entitled to the assets. The intestacy laws act as a default set of rules only, meaning that they only apply if you die leaving no will, trust, or other beneficiary designation for an asset.

For example, if you are married and all of your children are also children of your spouse, your surviving spouse would inherit your entire estate upon your death under the laws of intestacy. ORS 112.025(1). In contrast, if you are married and have any children from a previous relationship, your surviving spouse will receive half of your estate and your children will receive the other half collectively. ORS 112.025(2).

If you are unmarried to a life partner or have a blended family, the laws of intestacy may result in your assets being distributed differently than you want. Luckily, it is easy to avoid having the laws of intestacy applied to your estate by creating a will, trust, or beneficiary designation for an asset.

How Do I Know if I Need Probate?

Probate is needed if there are assets left in a decedent’s name without any sort of beneficiary or survivorship mechanism in place. For example, if a person owned only bank accounts at their death, and each of those accounts listed a beneficiary, probate would not be needed. The listed beneficiaries would simply bring a copy of the decedent’s death certificate to the account custodian to have the funds released to them.

If you are trying to gain access to a deceased individual’s bank account and are told you need “letters testamentary,” that is likely the bank’s way of telling you that you need to go through the probate process before you can access the funds.

One common misconception about wills is that they avoid probate. This is untrue. A will allows an individual to determine how their assets will be distributed, name a person to oversee the administration of their estate (a personal representative/ executor), and will usually waive the bonding requirement for the named personal representative. However, simply listing a recipient of an item in a will does not transfer legal title of the property to them.

When a person dies, their will must be submitted to the Court, and be proven as the decedent’s last will and testament. From there, the Court will need to formally appoint a personal representative (usually the person nominated in the decedent’s will), and  oversee the process of distributing the assets from the decedent’s name to the individuals listed in the will or the individuals entitled to receive assets under the laws of intestacy (for a more detailed overview of the probate process, click here).  When assets are subject to probate, a court order is needed before assets can be distributed. If the asset is something with a title like real estate, the personal representative will issue a new deed to the recipient listed in the will.

How Do I Figure Out What Assets a Person Owned?

Oftentimes when a loved one dies, their close family members or friends have a good picture of what they owned and who they intended to leave assets to. If that is your situation, a good starting point is to figure out which of those assets have beneficiaries listed, and which of them, if any, are subject to probate.

If you do not know whether a person left a will or where they kept assets the first step is to search through personal records. If no banking or other financial information is discovered from a search of the decedent’s personal effects, you may have to call various financial institutions and ask if there is an account under the decedent’s name. If you think the decedent owned real property you can contact a title company within the county where the property is located and ask them to pull up any deeds with the decedent’s name listed.

Unfortunately, without some sort of clue from the decedent, you are basically left with a scavenger hunt for assets. For this reason, I try to impress upon my clients the importance of keeping a list of assets somewhere that there next of kin can locate.

Do I need a Lawyer?

Except in rare instances, a lawyer is needed to initiate probate in Oregon. If you need assistance with a current probate matter or need help figuring our whether or not probate is needed we offer free consultations that can be scheduled online or by calling (503) 206.6401.

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