Probate

Duties of a Conservator

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.

• 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

• 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)

• 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

How Property is Transferred.

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

• 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."

2. Transfer of assets by affidavit.

3. Transfer of assets through probate.

• 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.

Get legal advice.

• 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.

• 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.

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: Guardian Partners, 971-409-1358, or visit their website at http://www.guardian-partners.org/. Please go to Self Help/Forms to locate the Request to Attend Non-Professional Fiduciary Training Online OR submit a letter to the court explaining why it would be a hardship to attend the course in person and request to attend online. 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 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.

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 following 3 training videos developed by the Oregon Judicial Department.   

• What You Need to Know as a Court Visitor Training
• What Court Visitors Need to Know About Dementia and Delirium
• Mental Illness and Functional Capacity
  

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 Template Instructions
Temporary Guardian Visitor Report
Adult Guardian Report
Minor Guardian Visitor Report
OJD Court Visitor Website

• 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.

• 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)
  

• Probate: ORS Chapter 111 to 117
  
• Small Estates: ORS 114.505 to 114.560
• Guardianships, conservatorships ("protective proceedings"): ORS Chapter 125
• Trusts: ORS Chapter 128
• Uniform Transfers to Minors Act: ORS 126.805 to 126.886
• Adoptions: ORS 109.304 to 109.410
• Voluntary Adoption Registry: ORS 109.425 to 109.507
• Wrongful Death: ORS 30.010 to 30.100