What is Probate?
Probate is a legal process that occurs following an individual’s death. The probate court will process their assets and debts, whether the deceased had a will or not. When an individual is alive, all their assets are generally in their name—barring the creation of a trust or some other estate planning vehicle intended to keep specific property from passing through probate. Following that person’s death, a court will undertake the process of transferring ownership to the decedent’s beneficiaries of their will or follow state statutes regarding intestate succession to next of kin if there is no will.
Does Oregon always require probate?
Oregon actually has provisions in place for “small estates.” Small estates are defined as estates having less than $200,000 in real property (generally real estate holdings) and less than $75,000 in personal assets. In this situation, all an individual need do is to file an “affidavit of claiming successor.” Keep in mind that these values are subject to the discretion of Oregon lawmakers. It is further important to note that an affidavit cannot be filed until thirty days following death. Once the affidavit is completely filed, it is accepted by the court.
Probate is also generally not required for the following assets:
- Property and assets held in a trust
- Accounts made payable upon death with listed beneficiaries
- Property held as a joint tenancy
- Property held with survivorship rights
- Beneficiaries of life insurance, retirement accounts, and pensions
Is a lawyer necessary?
Technically, a lawyer is not necessary to handle the probate process, but it is strongly advised. Especially in cases where the deceased had a lot of property in different states, multiple assets, or where there are disputes over the will, the procedure can become extremely complicated. If there are disputes over a will, then family members should get their own lawyer with expertise in this complex field. Generally speaking, undertaking probate on your own can be costly and full of potential pitfalls which a skilled probate attorney would know to avoid.
How long will probate take?
In Oregon, as in most states, the length of probate can vary greatly depending on the nature of the deceased’s assets or even their lack of will. Generally, probate will start right after death. Then, the process will usually take a minimum of four months to complete. Expect delays for complex wills, failures to sell property, and arguments over intestacy, which oftentimes leads to family disagreements.
I am the executor—am I allowed to take fees?
Yes—as the executor of the will or personal representative of the estate you are entitled to collect fees for your services. Generally, the rate is fixed and proportional to the overall value of the estate. If needed, an executor or personal representative can petition the court for more money. An executor is appointed by a will. If the deceased left no will, then a court will appoint an executor. Often, the terms “executor/executrix” and “personal representative” of an estate are used interchangeably.
Are there additional fees associated with probate?
Expect some additional fees in the processing of the estate. These could include costs for filing in court, standard attorney fees, and public publications. In most instances, you will have to post to the public to make sure all possible claims to the estate are settled in one probate action. Upon death, certain estate taxes are charged by both Oregon and the federal government. These numbers are subject to change and are congruent to the value of the estate.
If your loved one has passed, it is always a good idea to enlist the services of a skilled probate attorney to help administer this potentially complex process. Additionally, if you prefer to help minimize the burden of probate on your loved ones when you yourself pass by effectively planning your estate now, you should also find yourself a good estate planning attorney. The lawyers at the law office of ClarkeGriffin can help with each of these scenarios and more, so please do not hesitate to contact us and set up a consultation today!
