Probate and More

GUIDANCE THROUGH PROBATE AND ESTATE ADMINISTRATION

Depending on the size and nature of an estate, probate is not always necessary. We will always explore your least restrictive options when assisting with estate administration. 

The Personal Representative is the person that is responsible for the administration of your estate (other states use the term “executor”). These responsibilities of the Personal Representative may be simplified with the extensive estate administration experience of our attorney. We have been probating wills, administering estate and ensuring the orderly disposition of estate assets since 2002. 

WHAT IS PROBATE?

Probate is the process the court uses to distribute the assets of a person who has died. Probate may not be required if all the assets are owned jointly with another person or if the value of the estate is low, although even in these cases probate may be useful to ensure that creditors are paid and taxes filed. 

Once the probate has been opened, assets can be accessed, bills paid, and property bought and sold. In addition to the attorney fee, the expenses include publication in a local newspaper and the court filing fees. Attorney fees will vary depending on the complexity of the estate. Many probates can be closed within six months. 

THE PROBATE PROCESS

1.  A petition is filed in probate court.

The Personal Representative named in the Will is responsible for starting the probate process by filing the Will in a courthouse within the county where the deceased lived. The petition is the formal presentation of the Will to the court.

2.  The Personal Representative of the will takes inventory and gives notice to creditors.

The Personal Representative gives written notice to all creditors of the estate. The Personal Representative will file a written inventory of all of the deceased’s assets, including real estate, promissory notes, stocks, bonds and other valuable possessions.

3.  Estate and funeral expenses, as well as debts and taxes, are paid from the estate.

The Personal Representative determines which creditors’ claims on the estate are valid and pays them with funds held in the estate. If there is not enough cash to do so, the Personal Representative is often allowed to sell assets held within the estate to pay the debt. 

4.  Final assets are transferred.

Once the four month time period for creditors to make a claim has passed, the probate process moves into the next step. The Personal Representative then asks the court for authority to transfer the assets as indicated by the will. Once the authority is granted by the court, the Personal Representative then can transfer deeds, stocks and liquidate other assets to get them to the intended recipients.

WHEN IS PROBATE NEEDED?

Probate is used primarily to settle the debts of the deceased and to pass title of assets to heirs. Probate is necessary to give the Personal Representative the legal authority to deal with the decedent's probate assets. The Personal Representative has a duty to protect the assets of the decedent for the beneficiaries, heirs, creditors and other persons due money from the estate, and to ensure the collection of money due to the estate. Probate also provides for payment of outstanding debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs.

Probate is not always necessary. If all the assets of the deceased person are owned jointly, or have named beneficiaries, the surviving joint owner or beneficiary will become the owner of the asset automatically. In addition, if the estate is small (total assets are less than $275,000, the real property is valued at less than $200,000, and the personal property of the estate is valued at less than $75,000), then a “small estate” probate proceeding is available.

WHAT HAPPENS DURING THE PROBATE PROCESS?

Most people have rarely, if ever, probated a will; they know little about the process. We can guide you through all aspects of probate, including:

•An individual named as the Personal Representative under the Will must be appointed by the Court in the county where the deceased person resided. If a person dies intestate (without a will), the Court will choose who to appoint as personal representative.

•The Personal Representative must file with the court an inventory of the estate assets. The estate assets may be sold if funds are needed or if selling the assets is not contrary to the Will.

•A notice is published in a local newspaper to let creditors know that they have four months from the publication date to bring any claim against the estate. Notice is also given to the deceased person’s next of kin and to anyone named in the Will.

• It is the duty of the Personal Representative to see that any required tax returns are filed and paid.

•Once the four month notice period has passed, and all required tax returns filed, the personal representative must file an accounting of the estate assets. After the account is approved by the Court, the deceased person’s assets may be distributed to the people and entities named in the Will, or if the deceased died intestate, the assets are distributed as determined by Oregon statute.

Unique complexities may arise from this process. An personal representative may or may not have to liquidate property, defend against disputes or manage special assets. Due to the elaborate nature of probate, we highly recommend speaking with a lawyer as soon as possible.

HOW LONG WILL PROBATE TAKE?

Probate can usually be started immediately after death. (For a “small estate” the papers cannot be filed with the Court until 30 days after death.) The typical probate proceeding takes about six months. If there is property to be sold, or tax issues, or family disputes, the process can last longer.

WHAT ARE THE COSTS OF PROBATE?

The Personal Representative will earn a fixed percentage of the value of the total estate. Other typical costs include the attorney fees, court filing fees, and publication costs. Attorney fees charged for handling matters of the estate must be approved by the court and typically are based on an hourly rate for the actual services performed by the attorney.

DOES PROBATE AFFECT TAXES?

Having a Will or a probate proceeding does not affect the taxes that must be paid. Federal Estate taxes apply to estates with a value greater than $11.4 Million (for an unmarried individual). Oregon Estate taxes will apply to estates with a value greater than $1 Million. If the deceased person typically paid income tax, then it is likely that an income tax return will be required.

REQUEST ASSISTANCE TO ADMINISTER AN ESTATE

Our firm is here for you with cost-effective, caring advice. Explore your legal options for any situation with confidence and an experienced attorney. Your attorney will reduce the stress of estate administration by communicating with all other parties and offering legal guidance through the process. Schedule your consultation by calling our firm at (503) 308-1438 or send us a message through our website.