You may have recently lost a loved one, or you yourself may be contemplating estate planning in the event of your own untimely passing, and you are trying to understand exactly what it entails. What makes for a proper will? What if I die without one? What is probate? Can I avoid lengthy court hearings for my heirs?
At Bearman Law, we have years of experience offering compassionate counsel for clients going through or preparing for the probate process. When you have questions or concerns, attorney David A. Bearman will make sure to provide comprehensive answers and options. If you live in Salem or Lake Oswego or the Willamette Valley, Oregon, call us for a free consultation.
What Is Probate and What Does It Entail?
Probate is a legal process whereby a court supervises the distribution of assets left by a deceased person, also referred to as the decedent. Generally, probate is a legal proceeding that centers on the decedent’s will, but if the person dies intestate — without a will — the process can become more complicated with a process known as intestate succession (i.e., the court will basically dictate a will).
If the person dies when all assets are held jointly with a spouse or other person, then the assets can generally transfer seamlessly without probate proceedings. Likewise, if the decedent has set up a trust, probate can often be avoided.
If there is a will, the court must first determine if the will is valid; for instance, as we’ve all heard in movies and TV shows, was the decedent of “sound mind” when he or she forged the document? Generally, the will is “proved” by witnesses — family members or close friends — who can attest to the validity of the document.
Key to probate proceedings, which in Oregon take at least four months, is the appointment of a personal representative, also commonly referred to as an executor or executrix. If the will has named such a person, that can speed matters, but if not, the court will have to select one. If no relative or friend of the deceased is willing to serve as a personal representative, the court may appoint a bank, trust company, or lawyer to fulfill the responsibilities. If a person is named in the will, that person becomes the “executor” of the will. If an outside person or entity is appointed, they are the “administrator.”
It is the responsibility of the executor or administrator, among other matters, to execute the following:
Publish a notice to creditors in a local newspaper;
Identify and inventory all assets and file a list with the court;
Make sure all the decedent’s debts are paid;
Prepare state and federal tax returns and make sure all inheritance, gift or estate and other taxes are paid; and
Prepare an account of all money collected and paid out and present the account to the court, the heirs, and all those named in the will.
Once the personal representative has finished these steps, assets can be distributed.
Small Estate Provisions in Oregon Law
If a deceased’s assets total no more than $275,000 — $75,000 for personal property and $200,000 for real property — the process can be expedited by filing a document called “affidavit of claiming successor,” exercising the small estate exception in Oregon law. Real property generally comprises houses and other structures. Personal property includes cars, stocks, bonds, furniture, clothing, and other assets.
Guardianship of Children of the Deceased
If a person dies and leaves behind under-age children, a guardian may be appointed to either care for the child (called “guardian of the person”) or to oversee inherited assets (called “guardian of the estate”) until the child turns 18.
Generally, a surviving parent would become the guardian, but if there is none — or the surviving parent is proved to be incapable of being a guardian — the court may appoint a guardian of the person and a guardian of the estate, who can be the same person in some cases. Additionally, if an adult heir is deemed incapable of making proper life and financial decisions, a guardian may be appointed as well.
Do I Need a Lawyer in Probate Proceedings?
Probate can be a long and involved process. In addition, there are court costs and the administrator or personal representative is also entitled to a portion of assets distributed. Some probate proceedings can be more complicated than others due to the number and variety of assets involved, because of conflicting interests among the heirs, or other issues.
Therefore, probate is something you probably don’t want to face alone. Hiring legal counsel can help minimize legal hiccups, help file required paperwork, and represent your interests better as well. If you’re facing the prospect of probate proceedings and you reside in Salem, Lake Oswego, or the Willamette Valley areas of Oregon, call us at Bearman Law today for a free consultation. We have the experience and resources necessary to guide you through the probate process.