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Wendell L. Belknap
411 5th Street
Oregon City, OR 97045

Tel: 503-657-8946
Fax: 503-655-2775

Email Wendell
wendell@belknaplaw.com

Website:
www.belknaplaw.com

Probate




General Outline of a Probate


While each probate case is likely to have something unusual about it, set forth below is a general outline of a "typical," "uncontested" probate.*

First, the estate is opened. This means that a Petition is filed with the court. If the deceased person left a will, the initial step in the probate process is to have the will admitted as being valid (the courts call this having the will “proved”) and the person nominated in the will appointed as the Personal Representative. If the deceased person did not leave a will, the first step is the opening of an estate and the appointment of an Administrator (like a Personal Representative, but for cases with no will). This person is usually the closest heir of the deceased person. Regardless which process applies, the court will appoint a person to act on behalf of the estate.

If the decedent left a will, the will probably waived the requirement of a bond and the court will immediately issue Letters Testamentary authorizing the Personal Representative to act on behalf of the estate. If the decedent died without a will, the court will require that the Administrator apply for and obtain a bond, and file the bond with the court, before the court will issue the Letters authorizing the Administrator to act on behalf of the estate.

Once a Personal Representative or Administrator is appointed, a notice to creditors is published in a local newspaper. This public notice tells any creditors or persons with a claim against the estate that they have four (4) months to bring any claim against the estate for debts the deceased person owes them. At this time, the Personal Representative also gives written notice to all known and possible creditors, as well as to the heirs of the deceased person and the people named in the will.

Upon appointment, the Personal Representative identifies the assets of the estate and their values, and an Inventory is prepared and filed with the court.

The Personal Representative pays the debts of the deceased person. It is the law of the State of Oregon that creditors must be repaid from the estate before the remaining estate assets can be distributed to the rightful beneficiaries. The Personal Representative must complete and file a document labeled an “Affidavit of Compliance Respecting Search for Claims and Notice to Claimants,” verifying for the court that the Personal Representative has searched to determine what creditors exist. As part of the Final Account, the Personal Representative must represent that any claims of creditors have been satisfied.

Usually with the help of an accountant, the Personal Representative prepares state and/or federal tax returns in the name of the deceased person for income earned before the person died, if necessary. In some cases, it may also be necessary to prepare and file a tax return on behalf of and in the name of the estate, for income earned by the estate while the “Probate” process took place, or if the estate sold a substantial asset, such as a home. And, in even fewer cases, the Personal Representative will file any inheritance, gift and/or estate tax returns and pay any taxes due, if any.

Most of the time, upon the passage of four (4) months after publishing the notice in the newspaper, the Personal Representative can consider closing the estate. One way this can take place is by preparing and filing a full-blown accounting to the parties who are entitled to receive the estate assets, which accounting lists every penny that came into the estate, as well as every penny that was spent as part of administration of the estate. Another way the estate can be wrapped up, which is a way that is far more-common in estates I handle, is by preparing and filing a document labeled a “Verified Statement in Lieu of Final Account,” which is signed by the Personal Representative and all parties who are entitled to receive the estate assets, asking the court to distribute the estate assets without the need of a full accounting. In this instance, the parties who are entitled to receive the estate assets may still talk to the Personal Representative informally about income and expenses, but choose not to make it part of the court record, which only slows matters down and increases the expenses of administration, such as attorney’s fees.

After court approval of the account and payment of all unpaid probate expenses, the estate assets are distributed to the people named in the will or, if the person died without a will, to the heirs of the deceased person. These people sign and return Receipts verifying that they received their money, which Receipts are filed with the court, and the estate is closed.

*This is an outline of the major steps in the probate process. There are quite a few minor steps and/or considerations in the process not contained in this outline. Please feel free to contact me if you would like to schedule a consultation.