Probate is the legal process of overseeing the transfer of a decedent’s assets upon their death. If the decedent died with a will, the will is submitted with a petition filed by the person seeking to become the personal representative of the estate, asking for the will to be admitted to probate and the personal representative appointed. If the decedent died without a will, or intestate, then the same procedure is followed except that there is no will to admit, and instead the person seeking appointment of the personal representative asks the court only to admit the estate to probate and confirm their appointment.
Probate is not only designed to transfer the assets of the decedent, it is also the process through which all debts the decedent owed will be addressed and if properly submitted, will be paid. This component can be particularly helpful if the decedent died with a lot of debts, especially if that person did not maintain thorough records. Part of the probate process is publication in the local newspaper of the decedent’s passing with notice to creditors to submit claims. Certain claims submitted outside the timeframe initiated by publication, may be barred. There are instances in which there may be more debts owed by the decedent than there are assets to cover those debts, in which case the estate will be considered insolvent and the statutes list a priority of payments for how creditors are paid.
Distribution of Assets Outside of Probate
Not all assets go through the probate process. Some examples include:
- Property passed through the decedent’s living trusts are distributed according to the terms of the trusts.
- Pay on death accounts such as investment accounts or retirement accounts.
- Accounts or property held with right of survivorship.
- Small estates. Certain estates with minimal assets that would otherwise require probate might be eligible for resolution through a small estate proceeding.
Duties of the Personal Representative (Executor)
In order to settle the estate and have all assets distributed and all creditors paid, the executor is charged with a number of legal tasks.
- Petition the court to admit the will to probate.
- If there is no will, petition the court to initiate the probate process of an intestate estate.
- Submit the final death certificate to the probate court verifying the decedent’s death.
- Locating, identifying, and keeping safe all the decedent’s assets.
- Prepare and submit an Inventory to the court identifying all known assets of the estate and their estimated value.
- Personal notice to known creditors.
- Publishing notice in the newspaper of the estate proceedings to allow unknown creditors to submit claims to the estate. After four months, unless good cause exists, claims submitted after this window has ended will be denied.
- Assess decedent’s tax obligations. Prepare the decedent’s last tax return if required by law. If there are outstanding taxes due from previous years, these must be paid from the estate.
- Prepare a tax return for the estate if the estate generated income during the probate process. This may happen if there are rental properties and tenants paid rent to the estate during the probate process.
- Payment of properly submitted claims or debts of the estate.
- Prepare and submit a final accounting representing to the court that the personal representative has fulfilled all duties of the estate, provide a narrative for what transpired during the probate proceedings, identify all remaining assets of the estate, and request permission to proceed with distribution.
- After receiving approval from the court to distribute the estate, the personal representative must ensure the estate is distributed to the heirs or devisees and obtain a final distribution receipt from each recipient.
- File the final distribution receipts with a final supplemental judgment asking the court to close the probate proceedings and discharge the personal representative.
It usually takes a minimum of nine months to close an estate. It can take longer, even years, to settle an estate when heirs challenge the distribution of the assets, there are many creditors, liens from Medicare, or completing litigation that was pending at the time the person died.
When people die and leave a will establishing how they want their assets distributed, there are sometimes heirs and other people who thought they would be included as beneficiaries and who are surprised to learn they were left out of the will, or that the will did not say what they thought it would say. They may also claim the decedent promised them money or an item that is not listed in the will. At Posey Legal, P.C., we assist those who need to contest the terms of the will. We also defend a will when it is met with challenges.
According to Oregon law, “Any interested person may contest the probate of the will or the validity of the will or asset an interest in the estate.” An interested person must be an heir or beneficiary of the decedent.
Grounds for Contesting a Will
There are three grounds set forth in Oregon for contesting a will:
The will is ineffective. A challenge that the will is ineffective may be made on several separate grounds including that:
- The will was written under duress.
- The testator was mentally incompetent and not of sound mind.
- The testator was unduly pressured or influenced to sign the will.
- There was fraud and mistake in the drafting and signing of the will.
You must present proof to back up your claim. Search for proof of any medically debilitating illness. Obtain a statement from the testator’s physician including the date, time, and diagnosis of any condition that affected the mental competence of the testator at the time of the signing of the will.
Locate and get statements from witnesses who know the will was written under duress or undue pressure.
There is another will. The contest is that there is another, more recent, will that needs to be submitted to the probate court. You must locate the other will. Check every place the testator kept important papers. Talk to witnesses who may also know about the other will.
The testator made promises not mentioned in the will. This is a very difficult challenge. The testator can leave their property to anyone they choose. You must prove that the will is ineffective in order to prevail on this claim. One way to do this is to compare a previous will with the current one. Was there a gift to someone that is different that would be expected based on what the testator’s previous wishes were? Is there any suspicious circumstance that amounts to undue influence?
Why You Need an Attorney
Oregon law has strict provisions for how much time you have to challenge a will. The court where your petition to contest the will is filed depends on the grounds you are using to challenge the will.
At Posey Legal, P.C., our attorneys can guide you through the process and answer your questions about probate. Contact us to schedule a consultation.