Southwest Portland Law Group represents personal representatives in probate, successor trustees in trust administrations, affiants in small estate proceedings, and heirs and devisees involved in estate proceedings. Often, we encounter questions about what to do immediately after someone dies. The simplest advice we can give is to protect the deceased person’s property, and contact an attorney. We never charge for a phone call related to the recent death of a loved one. We are happy to give basic advice and set up a free consultation to discuss the steps involved in handling an estate.
Step one – Protect the Decedent’s Property
If the deceased person owned any property, whether real property, vehicles, or personal items, the best thing to do is to consider that property frozen in time. Nobody should take possession of the property, unless for the purpose of safeguarding such property. Personal items should not be given to family members. Vehicles should not be driven. Real estate should not be used, rented, or sold. There are, of course, exceptions to these basic rules. Property that was owned jointly with another person is generally presumed to belong to the surviving owner immediately. For example, if the deceased person was a joint owner of a vehicle, the surviving owner can continue to own and operate that vehicle. If the decedent owned real estate where other people live, whether with the decedent, or as tenants, they may continue to occupy the real estate until further notice from the estate. This brings us to the next important issue – what is an estate?
Estate Property Defined:
In Oregon, estate property is property that remains in the name of the decedent after the decedent’s death. Property that transfers automatically, such as life insurance, property owned by a revocable living trust, jointly owned property with rights of survivorship, or accounts with a TOD, POD, or beneficiary designation, are not considered part of the estate, and are instead referred to as “non-probate” property. Examples of items that remain in the name of the decedent include bank accounts owned individually, real estate owned individually, or jointly without rights of survivorship, vehicles owned individually or without rights of survivorship, and personal items, such as jewelry, art, guns, precious metals, digital assets, antiques, cash, or any other items of personal property. These types of property are referred to as “probate assets.”
Step Two – Contact an Experienced Estate Lawyer
An experienced probate attorney will be able to determine, through a simple phone interview, whether their services are needed to handle the affairs of the deceased person. In Oregon, probate assets must be transferred to the heirs or devisees of the decedent through the estate administration process, generally referred to as probate.
Heirs and Devisees Defined
Heirs are determined by Oregon law, and not by a will or trust. Generally, the decedent’s spouse is the first heir. If there is no living spouse, then the decedent’s children, as a group, are the heirs. If there are no children, then the decedent’s parents are the heirs. If there are no parents, then the decedent’s siblings, as a group, are the heirs. If there are no siblings, then the decedent’s nieces and nephews are the heirs. This continues through grandparents, aunts and uncles, cousins, and so on, until a group is identified as the decedent’s heirs. Devisees, on the other hand, are those people or entities identified in the last will and testament of the decedent as the recipients of the decedent’s property upon their death.
Is Probate Required?
If the total assets of the decedent do not exceed $75,000 in personal property, and $200,000 in real estate, you have the option to handle the estate yourself. The probate court allows for an “affidavit of claiming successor,” usually referred to as a “small estate affidavit,” which can be filed by any claiming successor to the decedent’s estate. You don’t have to have a lawyer to complete and file the affidavit, but many people decide to hire one anyway. The process is still somewhat complex, requiring notices to the state of Oregon, as well as all heirs and devisees of the decedent. There are other issues that can arise in a small estate proceeding that make it necessary to do a formal probate anyway. You should at least speak with an attorney before attempting to handle a small estate on your own. If the decedent’s gross probate assets exceed the numbers above, a standard probate procedure is required.
The Probate Process – What to Expect
Estate administration is the formal court procedure to transfer the assets of a deceased person to the heirs or devisees of that person. The word probate literally means to prove the validity of a will. If the decedent did not have a valid will, the process is technically referred to as an administration of an intestate estate. Most people refer to both procedures as probate. If the decedent had a valid last will and testament, the person nominated in the will has preference to serve as personal representative of the estate, historically referred to as executor or executrix. If the decedent didn’t have a will, there is an order of preference under the Oregon statute as to who may serve as the personal representative. Generally, the court prefers the surviving spouse, or their nominee, or any other person who stands to inherit something from the decedent. Probate begins with a petition to the court to appoint the personal representative. The petition may not be filed until 30 days after the decedent’s death. Once the court accepts the petition and any necessary bond is filed, the court appoints the personal representative. The court will then issue letters testamentary (for an estate with a will), or letters of administration (for an estate without a will). The personal representative then has several duties, including sending notices to heirs, devisees, and the state of Oregon, providing an inventory to the court, safeguarding the decedent’s property, publishing notice in the newspaper, paying just debts of the decedent, managing and liquidating property, filing a final accounting with the court, filing taxes on behalf of the decedent, and making the final distributions to the heirs or devisees. The process can become even more complicated by challenges to the will, unusual property interests, contracts or businesses of the decedent that the estate must resolve, and many other issues. An experienced probate attorney will handle most of the process for you.
Personal Representative Compensation
In Oregon, the personal representative is entitled to compensation in the amount of $1,630 for the first $50,000 of gross estate value, plus 2% of the value of the estate in excess of $50,000. For example, if the total gross assets of the estate are $550,000, the personal representative would be entitled to $1,630, plus 2% of $500,000, which is $10,000, for a total fee of $11,630.
What Does Probate Cost?
The entire probate procedure generally costs between $4,000 and $10,000. The bulk of that cost is attorney fees, but there are also filing fees, publication fees, and other necessary fees, depending on the specific estate.
Generally, if the estate has sufficient assets, the attorney will wait until the probate closes to get paid out of the assets of the estate. You may have to cover the actual costs of filing, publication, and other related fees.