January 2, 2021

What is Probate?

Probate is the court process to transfer assets of a decedent to the named beneficiaries under a will or via intestate succession if the decedent did not execute a will. Intestate succession is the statutorily defined default order of beneficiaries.

If the estate exceeds $200,000 in real property or $75,000 in cash accounts and personal property, a full probate is required. If the decedent had a will naming a personal representative, that individual has preference to serve as Personal Representative. If the decedent did not have a will, then Oregon law defines the order of preference. If the decedent had a will naming a personal representative, that individual has preference to serve as personal representative. If the decedent did not have a will, then Oregon law defines the order of preference.

In addition, Julia files a proposed limited judgment requesting that the court admit the will to probate, if applicable, and appoint the personal representative. Once the judge signs the limited judgment, the court issues Letters Testamentary (if there was a will) or Letters of Administration (if there was not a will). This document is very important because it provides the personal representative with the authority to handle estate assets, including selling the home or liquidating stocks.

Julia also sends a notice to a newspaper company in the county where the probate is taking place. This provides notice to the creditors. Notice must be published for three consecutive weeks with the first date of publication starting the four-month creditor waiting period. Julia also prepares and mails notices to heirs, devisees, the Oregon Health Authority, and the Department of Human Services. Julia then files a proof of service with the court.

The next document filed with the court is the inventory. The inventory will include date-of-death values for all of the assets subject to probate. Assets such as IRAs, life insurance, and 401(k)s are not subject to probate unless they do not list a living beneficiary or the estate is listed as the beneficiary. In that case, this type of asset will become a probate asset. Vehicles are subject to probate if a probate is required. Otherwise, there is a simplified procedure through the Department of Motor Vehicles. Once the Personal Representative approves and signs the inventory, Julia files it with the court.

During the next four months, the Personal Representative will work to compile estate assets with any cash received from sales or cashing out accounts to be deposited in an estate account. Julia will obtain a tax identification number, which is used rather than the decedent’s Social Security Number for the estate account and any other assets that are reporting income. Julia works in conjunction with the accountant to file the estate tax return, if required, and pay any tax that is due. Income tax returns for the estate will be completed by the accountant.

Julia will then file a Declaration of Compliance signed by the Personal Representative stating that he or she has diligently searched for outstanding creditors. Once the four-month creditor waiting period expires, Julia will complete and file a Verified Statement in Lieu of Final Account with the court outlining the status of the probate and requesting that the court authorize distributions pursuant the terms of the will or statute, payment of attorney fees, payment of the Personal Representative’s fees, and reimbursement of expenses. If the probate has lasted for longer than a year, then a full accounting must be completed rather than the simplified Verified Statement in Lieu of Final Account. Prior to filing the verified statement, Julia will mail a copy to the beneficiaries, along with consents.

Julia will also file with the court a Statement of Attorney Fees outlining attorney fees incurred to date and expected remaining fees to complete the probate. Once the beneficiaries sign and return the consents, Julia will file the Verified Statement in Lieu of Final Account, the consents, the Statement of Attorney Fees, and the proposed General Judgment with the court. Once the judge signs the General Judgment Authorizing Distribution, the Personal Representative will distribute funds to the beneficiaries and pay the attorney fees due. Julia will then file receipts signed by the beneficiaries with the court, along with a proposed Supplemental Judgment. The Supplemental Judgment asks the court to close the probate and discharge the Personal Representative. Once the court signs the Supplemental Judgment, the probate is complete. In Oregon, the average probate lasts approximately 7 to 10 months depending on the county and complexity.

Julia guides clients through the probate process while ensuring they comply with the terms of the governing instrument and Oregon law. Julia prides herself on her ability to assist clients with the administration of their loved one’s estate while remaining in tune to their emotional needs during this challenging process.