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Probate

All Probate forms can be found in the Forms section of our website.

Filing Fees can be found here.

Conservatorships

Basic Information

Duties of a Conservator

A conservator undertakes serious duties and responsibilities that are required by the laws of Oregon. Chapter 125 of the Oregon Revised Statutes governs conservatorships and outlines those responsibilities.
 
"Training for non-professional fiduciaries is now required by Presiding Judge Order. Beginning March 1, 2017, any non-professional fiduciary appointed will be required to attend training through Guardian Partners. For general information regarding the program, please contact: Kristy Wood, Executive Director, 971.409.1359 , or visit their website at http://www.guardian-partners.org/. For questions regarding the Court's policy and procedures, please contact the probate department at 503.588.5141."
 

A conservator must:

  • Promptly report to the court any change of the conservator's name, residence, or mailing address.
  • Follow the laws about being a conservator (see Chapter 125).
  • Take immediate control of and safeguard the protected person's property. The property of the estate is the conservator's responsibility.
  • Keep all money, bank accounts, and other property of the estate separate from the conservator's own and all other persons' property.
  • File with the court an inventory of all of the property of the protected person that the conservator knows about with estimates of the value of the items listed. The inventory must be filed within 90 days after the date of appointment, unless the court grants an extension of time.
  • If the estate includes real property, record a certified copy of the inventory or an abstract in the deed records of each county in which the estate owns property. File with the court proof of this recording.
  • File with the court each year a written accounting. The accounting must be filed within 30 days of the anniversary of appointment as conservator, unless the court grants an extension of time. The accounting must include:
    • the time period of the accounting;
    • for the first accounting, the total value of the property of the protected person as shown on the inventory;
    • for the second or later accountings, the ending balance of the prior accounting;
    • a list of all money and property received during the accounting period;
    • a list of all disbursements made during the accounting period, including date, check number, payee, amount, and purpose; and
    • the amount of bond posted by the conservator during the accounting period.
With the accounting the conservator must send vouchers or canceled checks unless the court waives this requirement.
  • Send copies of each accounting to the following people:
    • the protected person (if age 14 or older), unless service would not help the protected person understand the proceedings; and
    • any person who has filed with the court a request for notice of the proceedings. (To find out who has requested notice, go to the Records office on the first floor of the Marion County Courthouse.
  • Prepare and file all federal and state income tax returns when due and pay the taxes due.
  • File a final accounting when the conservatorship ends because protected person reached age 18 or dies, or for some other reason.
  • Keep any bond required by the court in effect during the entire term of the conservatorship, unless the court orders otherwise.
  • Get court approval before paying fees to the conservator, the protected person's guardian, or to the attorney for the guardian or conservator.
  • Get court approval before paying for room and board to the protected person's guardian or the guardian's family members.
  • Get court approval before paying the fees of a court visitor or a doctor if the fees are for services done because of an objection to a petition or motion to the court.
  • Get court approval before selling an adult protected person's primary residence.
  • Get court approval before making certain gifts.

Liability of Conservator to Protected Person

Standard of care
  • The conservator is held to the standard of care presented under Oregon's prudent investor rule, ORS 128.196.
  • The court may apply a higher standard of care to a conservator who claims to have greater than ordinary skill or expertise. ORS 125.225(2)
The conservator may be personally liable for the following:
  • Sums not properly accounted for.
  • Attorney fees incurred by a respondent or PP because of the conservator's failure to perform a fiduciary duty or other duty imposed under the law. ORS 125.025(3)(e).
  • Funds lost because of failing to follow the statutory investment standard.
  • Issues of liability of the conservator to the estate can be brought before the court by an objection to an accounting or by separate action for surcharge, indemnification, and so on. ORS 125.485(4). The court may also act on its own motion. ORS 125.025.

Liability of Conservator to Third Parties

In general the conservator is not personally liable on contracts entered into as conservator. See ORS 125.485 and 125.490 for further explanation. The conservator is personally liable for obligations arising from ownership or control of the estate property and torts committed during administration only if the conservator is personally at fault. ORS 125.485(2).

Conservatorship Forms

All Local forms can be found on in the Forms Section.

Estates

Transfer of Property Following Death

How Property is Transferred.

After a person dies, the person's property can be transferred to others in three different ways:

1. "Automatic" transfer of assets without court involvement.

Some assets are held in ways that provide for transfer to others after the death of the owner or one of the owners. Examples include:
  • Certain bank accounts, such as accounts owned jointly with right of survivorship, pay on death accounts ("POD"), and in trust for accounts ("ITF").
  • Real property held as "tenants by the entirety" (or by husband and wife) or "joint tenants with right of survivorship."
  • Life insurance proceeds for which a beneficiary is named or which provide a default beneficiary other than the decedent's estate.
  • Pension, 401(k), or IRA benefits in which a beneficiary is named or which provide a default beneficiary other than the decedent's estate.
  • Investment or brokerage accounts or stock certificates held as "joint tenants with right of survivorship."
  • Trust assets, depending on the wording of the trust agreement.
  • Vehicles owned as "joint tenants with right of survivorship."
If all assets are in this category, probate is not needed, as long as a joint tenant or beneficiary survives the decedent.
 
Even though probate is not needed, some action may be required to transfer the asset to the survivor or beneficiary. Examples of steps for transferring property to a survivor include: recording the death certificate in real property records to transfer real property; a title change with DMV to transfer a vehicle; filling out forms as required by the bank or investment company; and so on. Beneficiaries should contact life insurance or pension companies to learn how to obtain those assets.

2. Transfer of assets by affidavit.

Some sort of court process will be needed if a person dies leaving property that does not transfer as described above. For certain estates with values less than $140,000, a shortened process is available. This process is by an "affidavit of claiming successor" or "small estate affidavit". See the Small Estate handout.

3. Transfer of assets through probate.

If a person dies leaving property that does not transfer as described in 1. above and does not qualify for treatment as a small estate, probate will be necessary. In a probate, an interested person petitions the court to appoint a personal representative ("PR"). The PR collects the assets, pays the debts, accounts to the court, and distributes the property. The property is distributed according to the decedent's will, if one exists; if no will exists, the property is distributed according to the laws of intestacy. (ORS 112.015 to 112.045.) Costs of the probate include:
  • A filing fee based on the value of the estate.
  • The costs of publishing notice.
  • The cost of a bond, if required.
  • The fee for the PR, which is set by statute, but can be waived. ($4,630 for a $200,000 estate.)
  • The fee for the attorney for the PR, if any. Almost all PRs have an attorney to help with the probate process. The attorney fee varies greatly depending on the size and complexity of the estate. For simple estates, the attorney fee is usually less than the PR fee, sometimes a lot less.
  • Other expenses, such as for accountants, appraisers, repairs of assets, sale of assets, and so on.
Probate takes a minimum of four months. Most probates take less than a year to close. The average time is six to nine months.

Get legal advice.

Even if the decedent's property can transfer without probate, it may be wise to get a lawyer's advice. A lawyer can help with the following:
  • Advising whether it would be best to have a probate (even if one is not required) to cut off rights of the decedent's creditors.
  • Planning to minimize future income or estate taxes.
  • Transferring the assets in an efficient way.
  • Advising about any taxes owing or other legal issues involving the decedent's property.
The Oregon State Bar Lawyer Referral Service can provide names of lawyers in your area who accept referrals in this area. The number for the referral service is 1.800.452.7636.

Duties of a Personal Representative

A personal representative undertakes serious duties and responsibilities that are required by the laws of Oregon. A personal representative ("PR") must:
  • Take immediate control of and safeguard the decedent's property. The property of the estate is the PR's responsibility until it is distributed.
  • Open a separate bank account in the PR's name as personal representative. Keep all money, bank accounts, and other property of the estate separate from the PR's own and all other persons' property.
  • Notify the heirs and beneficiaries of the will (if a will has been filed) of the PR's address and the PR's attorney's name and address. File a copy of this notice and proof of mailing with the court.
  • File with the court an inventory of all of the property in the estate with estimates of the value of the items listed. The inventory must be filed within 60 days after the date of appointment, unless the court grants an extension of time.
  • Get a receipt or keep the canceled check for any payment or transfer of the estate's property.
  • Determine the creditors of the estate, determine whether their claims are valid, and pay valid claims if estate assets permit. · Prepare and file all federal and state income tax returns when due and pay the taxes due. Prepare a federal estate tax return if one is required.
  • File with the court each year a written accounting of all monies received and paid by the estate. The accounting must be filed within 30 days of the anniversary of appointment, unless the court grants an extension of time.
  • If the PR is required to be bonded, the PR must make sure that the amount of the bond filed at least equals the value of the assets of the estate.
  • Get court approval before paying fees to the PR or the attorney for the PR, or before distributing property to heirs or beneficiaries.

Small Estate Forms

All Small Estate Forms can be found in the Forms section.

Marion County Newspapers for Publication of Notices

KeizerTimes
503.390.1051

Statesman Journal
503.399.6611 or 800.556.3975

Silverton Appeal Tribune
503.873.8385

The Stayton Mail
503.769.6338

Woodburn Independent
503.981.3441

Guardianships

Basic Information

Duties of a Guardian

A guardian undertakes serious duties and responsibilities that are required by the laws of Oregon. Chapter 125 of the Oregon Revised Statutes governs guardianships and outlines those responsibilities.

"Training for non-professional fiduciaries is now required by Presiding Judge Order. Beginning March 1, 2017, any non-professional fiduciary appointed will be required to attend training through Guardian Partners. For general information regarding the program, please contact: Kristy Wood, Executive Director, 971.409.1359, or visit their website at http://www.guardian-partners.org/. For questions regarding the Court's policy and procedures, please contact the probate department at 503.588.5141."

A guardian must:

  • Promptly report to the court any change of the guardian's name, residence, or mailing address.
  • Follow the laws about being a guardian (see Chapter 125).
  •  File a guardian's report every year (explained below).
  • Get court approval before using the protected person's funds for room and board that the guardian or the guardian's spouse, parent, or child have furnished to the protected person.
  •  File a statement with the court and notify the protected person before placing an adult protected person in a residential facility (explained below).
  •  Tell the court if the guardianship is no longer needed because the protected person has died or for other reasons.

Guardian's Report

A copy of the guardian's report is available in the forms section of this web site. The form must be signed before a notary public.

The report must be filed 30 days after the anniversary of the guardian's appointment each year, unless the court grants an extension of time.

Marion County does require a guardian's report for guardianships of minor children. (Some counties do not.)

The law requires the guardian to send copies of the report to certain people. These people are:

  • the protected person;
  •  the protected person's conservator, if any; and
  • any person who has filed with the court a request for notice of the proceedings. (To find out who has requested notice, go to the Records office on the first floor of the Marion County Courthouse.)

Each year, the guardian should fill out and send to the court a proof of mailing to show that the guardian sent the copies of the report as required by law.

Changing the Placement of a Protected Person

Per ORS 125.320(3)(a), you must file a statement with the court before changing the abode of a protected person -or- placing a protected person in a residential facility (a residential facility includes a foster care home, a nursing home, a mental health treatment, and so on). The statement tells the court where you intend to place the protected person. The statement must be filed and served in the manner provided for serving a motion under ORS 125.065 to the persons specified in ORS 125.060(3) and (8) at least 15 days prior to each change of abode or placement of the protected person. If no objection is received within 15 days from the date notice was given, you may then move the protected person without further court order. Failure to provide notices to the court or the interested parties is grounds for removing you as guardian(s). You must repeat this process each time intend to move the protected person.

Indigent Guardianship Program

The Program

The Indigent Guardianship Program is designed to help indigent adults by providing funds to establish guardianships or hire guardians or both. As part of the application process, the court may defer or waive filing fees. The funds will be provided only for people who show compelling need for a guardian and financial need. Given limited funds, only the most severe cases will be approved for funding.

The indigent guardianship packet with additional information is located in the forms section under Probate - Guardianships.

List of visitors approved for the indigent guardianship program.

Court Visitors

In an effort to make it easier for court visitors to ensure that their reports meet all statutory requirements while providing information that is useful to the court and the parties, a group of attorneys and court visitors has worked to develop a template form for court visitor reports. The presiding judge has adopted the form and required that our court visitors use it.

In addition, the Presiding Judge has ordered that all Marion County Court Visitors view the DVD prepared by the Visitor Improvement Project and certify to the court that they have done so. The DVD will be available to check out from our Probate Department. You may contact the probate department by phone to make arrangements to check the video out.

Per the Presiding Judge Order, you must read the Marion County Handbook for Court Visitors and sign the Training Certification before you will be approved as a court visitor. Please return the signed certification to the Trial Court Administrator's Office at the Marion County Circuit Court.

Visitors List

Visitor Instructions and Report Templates

 

Other Useful Information

Mediation as an Option

You have another option besides a hearing for resolving your dispute: mediation. The Marion County Circuit Court encourages parties to mediate. Please discuss this option with your attorney (if you have one) and the other party or parties in your case. If all parties choose to participate in mediation, please notify the Probate Department.

What is mediation?

Mediation is a process in which the parties to a dispute meet together with a neutral third party. The mediator works with the parties to create a solution to the dispute that both parties can agree on. Mediation is voluntary; both parties must come up with a solution for mediation to be binding. If the parties cannot agree, they still have the right to have their case heard by a judge. Mediation is also confidential.

Advantages of Mediation

Mediation has many advantages over a court hearing. In mediation, the parties are the decision makers. In a hearing, the judge decides the outcome. In mediation, the parties may discuss their interests and concerns separate from the law. The judge may or may not understand your interests, and, to a great extent, will decide the case based on the law. In a successful mediation, all parties are winners because everyone agrees on the outcome. If a judge decides, often there is a "winner" and a "loser." In mediation the parties are often able to repair or preserve family or business relationships because the parties work toward agreement. When a judge decides, the opportunity for healing is lost.

Choice of Mediator

The parties may choose any mediator everyone agrees on. This mediator may be court approved or may be someone outside of the court system. If the parties cannot agree on who should serve, the court will allow the parties to state preferences and objections to a list of mediators and will appoint a mediator.

Result of Mediation

In a successful mediation, the parties will agree to a solution to the dispute. The mediator will report an outline of the terms of the agreement to the court. If either party is represented by a lawyer, the lawyer will incorporate the agreement into a stipulated order of the court, either establishing a judgment or dismissing the case. If neither party is represented by a lawyer, the court will draft the order.

If the parties do not reach agreement during mediation, the case will continue in the regular court process, which includes a hearing by a judge. All parties have the same rights they had before the mediation took place.

Cost of Mediation

The cost of mediation is $100 per hour, unless a different arrangement is made with the mediator. The parties split this fee equally, unless they agree otherwise. The parties must pay the mediator $500 (each side pays $250) before the first mediation session . Any sums not used for the mediation are refunded to the parties when the mediation ends.

Mediation has worked well in courts throughout the country. The Marion County Courts give you this option to provide better service to the community. We hope that through mediation, many parties will find a more satisfying and appropriate resolution of their dispute than they would get through the court system.

The choice is yours, after talking to your lawyer and the other parties in the case. If ALL parties do not tell the court they intend to mediate, you must appear at all scheduled court dates.

Definitions (ORS 125.005)

  • Protective proceeding: any proceeding governed by ORS Chapter 125. Generally this includes guardianships, conservatorships, temporary guardianships and conservatorships, but can also include other actions, including direct court action in the person's affairs. Protective order: a court order to protect the person or the estate of a respondent or protected person.
  • Respondent: a person for whom a protective order is sought.
  • Protected person ("PP"): a person for whom a protective order has been issued.
  • Fiduciary: a person appointed to assume duties for a PP under Chapter 125. Generally, this includes a guardian or conservator or temporary guardian or conservator.
  • Guardian: a person appointed to be responsible for the "person" of a PP.
  • Conservator: a person appointed to be responsible for the estate of a PP. For the court to appoint a conservator, the person must be "financially incapable."
  • Financially incapable: a condition in which a person is unable to manage his or her financial resources for various reasons including mental and physical illness or disability, chronic drug or alcohol use, confinement, disappearance, and others. "Manage financial resources" means those actions needed to hold, administer, and dispose of all property, benefits and income.

Policy Statements and Legal Resources

If the court does not provide the forms you are looking for some sample forms are also available through other resources. There are stationery stores that sell legal forms as well as legal reference books provided in the Marion County Law Library at 234 High St SE, Salem, 503.588.5090. These include:
  • Administering Oregon Estates (Probate and Small Estates)
  • Administering Oregon Trusts
  • Guardianships, Conservatorships and Transfers to Minors
  • Family Law (Chapter 18 Adoptions, Chapter 20, Name Changes)
The following statutes are also available through the law library and through the Oregon Legislature's website:

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