January 19, 2022

Do I Need to File for Probate in Oregon?

Potential clients frequently inquire whether a probate in Oregon is necessary for a loved one’s estate. Probate is the court process to transfer assets to the intended recipients after someone passes away. There are numerous factors that lead potential clients to question the necessity of probate. For example, the decedent may have lived out of state when he or she passed away, the assets are minimal, or the decedent only left behind a home.

First and foremost, a probate will not be required for assets titled to the decedent as trustee of his or her trust. On the other hand, if assets are titled to the decedent individually, then we must look at how title was held by the decedent in the asset and whether there were any beneficiary designations. Generally, if the asset had a beneficiary designation, then a probate will not be required. There are exceptions to this rule, such as when the beneficiary named is deceased or the beneficiary is the decedent’s estate.

Given the above, if a bank or investment account has a beneficiary designation, then probate is not required. These types of beneficiary designations are referred to as pay-on-death designations for bank accounts and transfer-on-death designations for brokerage accounts. IRAs, 401(k)s, and life insurance policies typically bypass probate provided they have a beneficiary designation and no exceptions apply.

Real property transfers without probate under following circumstances: (1) there is a transfer-on-death deed; (2) title is held as tenants by the entirety and there is a surviving spouse; or (3) title is held as joint tenants with right of survivorship and one of the title holders is still living. If title to real property is held individually or as tenants in common, then a probate will be required to clear title and transfer or sell the property. An Oregon probate is necessary even if the decedent lived out of state and simply owned real property in Oregon.

Oregon does not have an ancillary probate process, but property can be transferred to the Personal Representative of the out-of-state probate if deemed appropriate by the Personal Representative and the court. As your attorney, Julia will guide you through the probate process and ensure you meet the filing deadlines, file the required notices, and comply with all other court requirements.