CONTENTS 1 Alternatives to Probate...David C. Streicher 2 Probate Jurisdiction and Procedures... Nikki C. Hatton William D. Peek 3 Preadministration Procedures... Kornelia A. Dormire 4 Intestate Succession, Wills, and Community Property... Melinda Leaver Roy 5 Initiating Probate and Small Estate Proceedings... J. Anthony Giacomini 6 Special Considerations...Stuart B. Allen Tara M. Hendison 7 Initial Responsibilities and Liabilities of Personal Representative... William D. Brewer 8 Rights of Interested Persons...Timothy J. Wachter 9 Claims Against the Estate... Helen Rives Pruitt 10 Managing Estate Assets... Sally C. Landauer 11 Accounting, Distribution, and Closing...David R. Allen Sam Friedenberg 12 Federal Estate Tax; Generation-Skipping Transfer Tax... Steven A. Nicholes Richard W. Miller 13 Litigation... Robert D. Dayton Jan K. Kitchel Table of Forms Table of Statutes and Rules Table of Cases Subject Index vii
2 NIKKI C. HATTON WILLIAM D. PEEK PROBATE JURISDICTION AND PROCEDURES I. ( 2.1) RIGHT OF THE STATE TO CONTROL PROBATE MATTERS II. PROBATE JURISDICTION A. ( 2.2) Historically B. Jurisdiction Under the Probate Code 1. ( 2.3) Subject-Matter Jurisdiction 2. ( 2.4) Venue 3. ( 2.5) Powers of Probate Court 4. ( 2.6) Due Process and Jurisdiction C. Forums for Probate 1. ( 2.7) Probate Jurisdiction 2. Transfer from County Court to Circuit Court a. ( 2.8) Discretionary Transfer b. ( 2.9) Mandatory Transfer c. ( 2.10) Procedure for Transfer NIKKI C. HATTON, B.A., University of Washington (1971); J.D., LL.M., University of Florida (1976, 1977); member of the Oregon State Bar since 1980 and the Washington State Bar Association since 2003; shareholder, Schwabe, Williamson & Wyatt, P.C., Portland. WILLIAM D. PEEK, B.S., LL.B., University of Oregon (1961, 1964); member of the Oregon State Bar since 1964 (inactive); retired, Schwabe, Williamson & Wyatt, P.C., Portland. 2-1
III. IV. 3. The Probate Commissioner a. ( 2.11) Generally b. ( 2.12) Identity and Appointment c. ( 2.13) Powers of Probate Commissioner d. ( 2.14) Finality of Commissioner s Orders VENUE A. ( 2.15) Choices for Probate and Administration B. ( 2.16) Petition for Appointment of Personal Representative C. ( 2.17) Venue as Jurisdictional Defect D. Second Administration Started in Another County 1. ( 2.18) Generally 2. ( 2.19) Transfer to Another Court 3. ( 2.20) Venue Determined to Be in Original County 4. ( 2.21) Accounting by Displaced Personal Representative PETITIONS A. ( 2.22) Form B. ( 2.23) Verification C. ( 2.24) Who May Petition D. ( 2.25) When Petitions Required V. NOTICE A. ( 2.26) Generally B. ( 2.27) Notice to Persons Under Disability C. ( 2.28) Manner of Giving Notice D. ( 2.29) Timing of Notice E. ( 2.30) Proof of Notice F. ( 2.31) Waiver of Notice G. ( 2.32) Effect of Failure to Give Notice VI. HEARINGS A. ( 2.33) When Required B. Conduct of Hearings 1. ( 2.34) Generally 2-2
VII. VIII. IX. 2. ( 2.35) Subpoena Powers 3. ( 2.36) Summary Determination of Claims C. ( 2.37) Stenographic Record ORDERS AND JUDGMENTS A. ( 2.38) Generally B. ( 2.39) Required and Permissible Orders or Judgments C. ( 2.40) Orders of Probate Commissioner D. Effect of Violation of Orders 1. ( 2.41) Contempt of Court 2. ( 2.42) Breach of Fiduciary Duty PROBATE COSTS; EXPENSES A. ( 2.43) Publication Costs B. ( 2.44) Appraiser s Fees C. ( 2.45) Bond Costs D. Personal Representative s Compensation; Expenses 1. Personal Representative s Compensation a. ( 2.46) Amount of Compensation b. ( 2.47) Denial of Compensation 2. ( 2.48) Expenses E. ( 2.49) Attorney Fees FINALITY OF ORDERS AND JUDGMENTS; APPEALS A. ( 2.50) Generally B. ( 2.51) Finality of Orders of Probate Commissioner C. ( 2.52) Finality of Order Admitting Will to Probate D. ( 2.53) Finality of Summary Determination of Claim E. ( 2.54) Finality of Judgment of Distribution F. ( 2.55) Finality of Judgment Discharging Personal Representative G. ( 2.56) Effect of Order Reopening Estate H. ( 2.57) Recovery of Escheated Property APPENDIXES 2A Table of Situations Requiring Petitions 2B Table of Notice Requirements 2C Table of Orders/Judgments 2D Table of Time Limitations 2-3
FORMS 2-1 Order Transferring Venue 2-2 Order Establishing Venue Where First Commenced 2-3 Notice of Hearing 2-4 Admission of Personal Service 2-5 Waiver of Notice 2-6 Waiver of Notice and Consent to Entry of Order I. ( 2.1) RIGHT OF THE STATE TO CONTROL PROBATE MATTERS Probate jurisdiction and procedures in Oregon are generally contained in ORS 111.005 118.990. These statutes compose the current Probate Code as amended or modified subsequent to its enactment in 1969. The state has the power to control the disposition and administration of decedents estates, subject to federal constitutional rights. The Oregon Supreme Court has stated that the right of an individual to dispose of his property by will is not a natural right, but is one conferred by law. Hartung v. Unander, 224 Or 165, 171, 355 P2d 738 (1960). Even the right of intestate succession has been said to be a creature of the law and not a natural right. Hartung, supra; U.S. Bank of Portland v. Snodgrass, 202 Or 530, 540, 275 P2d 860 (1954). The United States Supreme Court has made similar holdings. In Irving Trust Co. v. Day, 314 US 556, 562, 62 S Ct 398, 86 L Ed 452 (1942), the Court ruled that the [r]ights of succession to the property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. The state s power to legislate matters dealing with inheritance is not unlimited. In Zschernig v. Miller, 389 US 429, 436, 88 S Ct 664, 19 L Ed2d 683 (1968), the Court held that the operation and effect of former ORS 111.070, dealing with the right of aliens to inherit, amounted to a state involvement in foreign affairs and international relations matters which the Constitution entrusts solely to the Federal Government. Recognizing that the states have traditionally regulated the descent and distribution of estates, the majority held that a state s 2-4
Probate Jurisdiction and Procedures / 2.2 probate laws must give way if they impair the effective exercise of the Nation s foreign policy. Zschernig, supra, 389 US at 440. The U.S. Supreme Court ruled in Tulsa Professional Collection Services v. Pope, 485 US 478, 108 S Ct 1340, 99 L Ed2d 565 (1988), that an Oklahoma probate claim statute was unconstitutional. In deciding that the Fourteenth Amendment protected the right of an estate creditor to more than published notice, the Court stated: Nor is the State s involvement in the mere running of a general statute of limitation generally sufficient to implicate due process.... But when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found........ Here, in contrast, there is significant state action. The probate court is intimately involved throughout, and without that involvement the time bar is never activated. Tulsa Professional Collection Services, supra, 485 US at 485 487 (citations omitted). See also 2.32, infra. The Supreme Court found the state court involvement so pervasive and substantial that it had to be considered state action subject to the restrictions of the Fourteenth Amendment. All provisions of Oregon s Probate Code can be assumed to be subject to the same due process scrutiny. II. PROBATE JURISDICTION A. ( 2.2) Historically The probate court has historically been one of limited jurisdiction. Murray s Estate, 56 Or 132, 139, 107 P 19 (1910); In re Elder s Estate, 164 Or 347, 351 352, 101 P2d 412 (1940). Property of a decedent must be located in Oregon before an Oregon probate court will accept jurisdiction, and [w]hether there is property in Oregon upon which probate will operate depends on the situs of the property. West v. White, 307 Or 296, 300, 766 P2d 383 (1988) (citation omitted). In West, supra, a decedent who had been domiciled in Massachusetts held a note secured by a trust deed on Oregon real property. The court held that the note was personal property, that its situs was in Massachusetts, and that the security was merely incident to the debt. Accordingly, there was no jurisdiction in Oregon. Prior Oregon law made proper venue a jurisdictional matter. If venue was in the wrong county, the courts of that county lacked 2-5
2.3 / Probate Jurisdiction and Procedures authority (jurisdiction) even to appoint an administrator. Now proper venue is not a jurisdictional matter. ORS 113.015(2). B. Jurisdiction Under the Probate Code 1. ( 2.3) Subject-Matter Jurisdiction Under ORS 111.085, the jurisdiction of the probate court includes but is not limited to: (1) Appointment and qualification of personal representatives; (2) Probate and contest of wills; (3) Determination of heirship; (4) Determination of title to and rights in property claimed by or against personal representatives, guardians, and conservators; (5) Administration, settlement, and distribution of estates of decedents; (6) Construction of wills, whether incident to the administration or distribution of an estate or as a separate proceeding; (7) Guardianships and conservatorships, including the appointment and the qualification of guardians and conservators and the administration, settlement, and closing of guardianships and conservatorships; (8) Supervision and disciplining of personal representatives, guardians, and conservators; and (9) Appointment of a successor testamentary trustee when the vacancy occurs before, or during the pendency of, the probate proceeding. Subsection (3) of ORS 111.085 allows heirship determinations even when there is no estate to administer. Subsection (6) permits the probate court to construe wills, whether or not incident to the administration or distribution of an estate. The probate court has jurisdiction, for instance, to construe a will to determine if the will exercised a power of appointment given by a separate trust agreement to the testator, even in the absence of assets to be administered. If the probate court has jurisdiction over an estate but an error is committed in appointing the personal representative, the appointment is voidable, not void. If, however, the court lacks jurisdiction over the estate, the appointment is void and the acts of the personal representative 2-6
Probate Jurisdiction and Procedures / 2.4 are generally without effect. In Rennie v. Pozzi, 294 Or 334, 343, 656 P2d 934 (1982), the court decided that the provisions of ORS 114.255 supported (under certain conditions) the relation back validity of a personal representative s reappointment. The initial invalid appointment was not due to a jurisdictional problem. The probate court has authority to entertain an action for a declaratory judgment. Buresh v. First National Bank, 10 Or App 463, 473, 500 P2d 1063, aff d as modified, 262 Or 104 (1972). Designating an action based on the purported invalidity of a will as a declaratory judgment action does not, however, permit a plaintiff to avoid the limitation for bringing a will contest. Martin v. Kenworthy, 92 Or App 697, 698, 759 P2d 335 (1988). The jurisdiction of the probate court is not limited to the areas of authority listed in ORS 111.085. For example, in Plue v. Hill, 63 Or App 677, 682, 666 P2d 835 (1983), the court ruled that although the Oregon Tax Court had exclusive jurisdiction to determine the amount of inheritance tax, the probate court, under the provisions of ORS 111.085(5) (6), had jurisdiction to decide whether the tax liability would be apportioned among the persons interested in the estate. During the entire administration process, the probate court has exclusive jurisdiction over the decedent s property. In Verberes v. Phillips, 23 Or App 363, 368, 542 P2d 928 (1975), the court ruled that jurisdiction remained in the probate court until final distribution was decreed. In the Verberes case, a separate partition suit involving land that was the subject of the probate administration was held to be ineffective as to the property in administration. The court stated: The issues on appeal are whether the probate court erred in distributing the decedent s farm to the heirs as tenants in common despite a decree of partition by the circuit court entered by consent of the parties decreeing otherwise while the estate was in administration. Verberes, supra, 23 Or App at 364. 2. ( 2.4) Venue Although prior Oregon law made proper venue a jurisdictional prerequisite, ORS 113.015(2) expressly provides to the contrary. Filing a proceeding in an improper county is not a jurisdictional defect. See 2.17, infra, for further discussion. 2-7