Legal Advice and Assistance With Probate

Probate is a judicial proceeding to manage the assets and debts of a decedent’s Estate. The court appoints a person (Personal Representative) to explore the affairs of a decedent’s Estate and gives the appointed Personal Representative authority to manage the assets and debts of the Estate. Probate helps ensure an orderly collection of assets, payment of debts and claims, and proper distribution of the Estate assets to heirs.

We have often heard the opinion that Probate should be avoided because of the expense and inconvenience of Probate. It is better to avoid Probate through sound estate planning, but Probate is often the only way, or the prudent way, to manage an Estate. There may be assets which only a judicial Probate can reach or can transfer title to the proper heirs. Estate assets may be in the possession of someone using Estate assets contrary to proper winding up of the decedent's Estate, and Probate becomes necessary to properly regain control, manage, and distribute the assets.

Many assets may not necessitate a judicial Probate proceeding. Examples of non-probate assets are co-owned assets with rights of survivorship, life insurance policies with named beneficiaries, retirement accounts with named beneficiaries, and bank or financial accounts with rights of survivorship or pay on death (POD) beneficiaries.

If real property, bank account, financial account, or some other titled asset is in the decedent’s sole name, then the real property, monies, or assets may be unavailable to the Estate and heirs until a Personal Representative is appointed in Probate.

The deceased person’s Last Will and Testament is the document used in Probate. The original Will is submitted to the court, and the court uses it as the document expressing the decedent's intent as to what should happen within Probate. The Last Will and Testament topically names the beneficiaries, designates a Personal Representative, appoints a guardian for minor child(ren), and states other conditions to be followed in the administration of the Estate.

The Last Will and Testament are not used to avoid Probate, but the document used in Probate.

If a person dies without a Last Will and Testament, Oregon law provides a Probate asset distribution scheme to the decedent’s family members. Probate without a Will is called Intestate Succession. Most of the procedures in Probate are the same for Estates with or without a Will. For many Oregon families, the Intestate Succession laws might be appropriate. However, with the many later-in-life marriages and/or contemporary blended families, the Intestate Succession laws probably will not match the decedent’s wishes. Even a modest estate plan, such as a simple Will, can avoid the application of the Intestate Succession laws - one of the best reasons to do a Will.

If Probate is necessary to deal with an Estate, Probate is initiated with the filing of a written document entitled Petition with an appropriate Oregon Circuit Court. The court appoints a Personal Representative (Executor) and issues a Letter of Testamentary (Will) or a Letter of Administration (Intestate). The Letters of Testamentary or Letter of Administration give the Personal Representative the authority to manage the assets and debts of the Estate. 

The Personal Representative notifies interested parties of the Estate proceeding, collects together the assets of the Estate, reports the assets to the court, makes an investigation of debts and claims against the Estate, pays valid claims, files tax returns, and does a periodic accounting to the court of the financial transactions within the Estate. When the Estate is ready to close, the Personal Representative does a Final Accounting to the court, obtains a Judgment of Distribution to beneficiaries, distributes the assets to beneficiaries, obtains acknowledgment of receipt from beneficiaries, reports the distribution to and receipt by the beneficiaries, and obtains an Order closing the Estate. There are many details that will probably require the attention of a knowledgeable and experienced Probate attorney.

Administration of an Estate can involve legal issues in many different areas of law, such as elder law, trust law, real estate law, insurance law, family law, contract law, business law, corporate law, debtor-creditor law, Federal and State tax law, and/or civil litigation. Choosing an attorney with extensive knowledge and a depth of experience in many areas of law and finance can make the difference between an orderly or chaotic administration of the Estate.