What is probate?  When is it necessary?  What does it cost?  Read the following Frequently Asked Questions to get answers to some basic probate questions.  Call me at no cost to learn more.

What is probate?

Probate is a very old legal process designed to make sure a deceased person’s creditors and taxes are paid before the family members or will beneficiaries receive their inheritances.

What assets need to be probated?

All assets owned by the deceased person in their name alone, without a surviving joint owner, must be probated.  Assets that have a surviving joint owner, or assets that have a beneficiary provision such as life insurance or annuities do not need to be probated usually.  If a person dies leaving very few assets, such as personal belongings or household goods, these items can often be distributed among the rightful beneficiaries without the supervision of the court.

The cost of probate.

Probate costs include the personal representative’s fee (a fixed percentage of the value of the estate), the filing fee, the publication fee, and the attorney fee.  Call me to discuss what these fees are.  I invite you to compare my attorney fee rates with those of other attorneys.  Attorneys are paid by the hour for their work, at the end of the probate process, at the same time the beneficiaries receive their inheritance.  However, I sometimes charge a flat rate for small estate probates.

There are two types of probate–regular probates and small estate probates

If the value of all real estate owned by the decedent is worth more than $200,000 then a regular probate is needed.  If the value of all other assets combined is worth more than $75,000, then a regular probate is needed.  However, if the value of real estate is worth less than $200,000 and all other assets (personal property) are worth less than $75,000, then a small estate probate, called an “Affidavit of Claiming Successor” may be used in some situations.  Real property includes land and buildings or structures placed on land, such as houses, commercial buildings, and agricultural buildings.  Personal property includes all other property, such as bank accounts, vehicles, stocks, bonds, and personal items.

The problem with small estate “Affidavit of Claiming Successor” probates

If the value of the decedent’s estate qualifies for a small estate probate, it still might not be a good choice.  Small estate probates only work in the most simple situations: Few heirs, few creditors, and no fighting between anyone.  Selling real estate after filing a small estate probate is often a huge problem.  All heirs and will beneficiaries must sign a deed transferring the real estate to any new buyer.  If even one heir or will beneficiary refuses to sign a deed, the title to the property will not be cleared, and any sale will not qualify for title insurance or financing.

How long does probate take?

Probate can be started immediately after death and takes a minimum of six to nine months.  If the estate includes property that takes a while to sell, or if there are complicated taxes or other matters, probate can last much longer.  A small estate proceeding can’t be filed until 30 days after death and generally takes four to six months.

What about bank accounts?

Bank accounts owned by the decedent in their name alone usually need to be probated, but if the only asset the decedent owned is a single bank account, and the decedent did not have any creditors, and there are no fighting relatives, please call me to discuss this situation.

What about vehicles?

Vehicles owned by the decedent in their name alone usually need to be probated, but if the only asset the decedent owned is a vehicle, and there are no creditors or fighting relatives, it is possible for the DMV to release the vehicle to an heir, who is responsible for making sure that creditor claims and family members get treated fairly.  Please call me to discuss this situation.

What about real estate?

Real estate owned by the decedent in their name alone, with no surviving spouse listed on the deed, must be probated.  If a decedent owned real estate with another person who was not a spouse, the decedent’s share of the property needs to be probated unless the last recorded deed shows the words “right of survivorship”.

Do I need to live in Oregon to be the personal representative?

No.  The personal representative can live anywhere, including out of the USA.  We can handle all probate matters by phone, fax, and email.  You will not have to appear in court unless there is a contested issue of some sort.

Sometimes probate is needed to:

• Collect debts owed to the deceased person.
• Settle a dispute among people who claim they are entitled to assets of the deceased person.
• Resolve any disputes about the validity of the deceased person’s will.

What happens during the probate process?

The will is “proved” and delivered to the court.  The deceased person’s will can be proved by an affidavit made under oath by the witnesses to the will.

A personal representative is selected.  A personal representative is someone who handles the deceased person’s affairs.  A will generally names a personal representative who, if willing to serve and otherwise qualified, will be approved by the court.  If a person dies without a will, the court will select the personal representative, usually the spouse, an adult child or another close relative.  If none of those people are available or willing to be the personal representative, the court may choose a bank, trust company, or lawyer.  If there is no will, a bond will usually be required, and the personal representative will have to submit to a rigorous credit check.

A notice to creditors is published in a local newspaper.  This public notice to creditors tells the creditors that they have four months to bring any claim against the estate for debts the deceased person owes them.  The personal representative also gives written notice to all known and possible creditors.

The heirs and people named in the will are notified of the probate proceeding.

Assets are identified and an inventory is prepared and filed with the court.  The personal representative works to identify and value the deceased person’s assets.  Depending upon the type of assets and the kind of records left by the deceased person, this step can be quite straightforward–or more difficult and time-consuming.

Debts are paid.  The personal representative ensures that creditors are paid.  Creditors must be prepaid from the estate before the remaining estate assets can be distributed to the rightful beneficiaries.

Tax returns are filed.  The personal representative prepares state and federal income and estate tax returns.

A final accounting is prepared.  The personal representative prepares and submits a final account to the people named in the will, the heirs of the deceased person, and the court.  After the court approves the final account, the will beneficiaries or heirs receive their inheritances, the attorney fees are paid, and the estate may be closed.

Do I need a lawyer?

Probate in Oregon involves a good deal of paperwork that must be filed in a timely manner.  To achieve the results you want, probate should be handled with an understanding of the legal principles involved.  A probate lawyer can help you avoid the many possible traps and other problems that could arise.

©Richard Huhtanen, Oregon Probate Lawyer