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Probate FAQ

A Small Estate Affidavit is a document that starts a process that is shorter and less expensive than the probate process. This alternative is limited to situations in which the deceased person has assets that are under $275,000. The fair market value of real property (land or house) cannot exceed $200,000 and everything else must be less than $75,000. You must wait 30 days after the death. The original will and a certified death certificate must be included. You will not receive letters testamentary.

Court staff are not allowed to give legal advice. Every case is specific to the facts involved. If you have questions about your rights in any matter, you should consult with a lawyer.

Several people must be personally “served” (given the legal papers in person) in a guardianship case involving a minor. These include the child’s parents and, if the child is 14 or older, the child as well. Depending on the case, you may need to serve other individuals, too. The Petition, notice, and a blank objection form must be served. Service must be done by someone who is not a party to the case, is at least 18 years old, and lives in the same state as the person being served. The person who serves the papers must sign a statement under oath stating when, where, and to whom they gave the documents. If notice is not done correctly or not at all, your appointment as guardian will likely be denied.

Probate cases are often complicated. Handling them often requires knowledge about many different rules and laws, including banking and tax laws. Multnomah County Supplemental Local Rule 9.085 requires you to give the court notice if you are or want to be a fiduciary (a guardian, conservator, or personal representative) and want to proceed without a lawyer. You will be scheduled to meet with a judge who will decide if you are competent to represent yourself. This step occurs because you would be managing the issues involving another person or their property. If you cannot clearly explain your understanding of the steps required to complete a probate case, you may be required to retain a lawyer or be removed as fiduciary.

Some probate matters are simpler and may be done without a lawyer. For example, a Small Estate Affidavit or applying to be a guardian of a child can sometimes be done without an attorney’s help. However, probate cases can become complicated, and you may want to contact a lawyer for advice. Court staff are not allowed to give legal advice. If you have any questions about your rights or responsibilities, you may want to contact an attorney.

As with all court matters, the answer to this question depends on the work load of the court. Most orders or judgments are reviewed and signed within a week. Some matters may be signed more quickly if there is an emergency.

Estate assets cannot be distributed without court approval. The court will not approve distributions from the estate until after:

  • 4 months from the first publishing date.
  • The required notice to heirs, devisees, and State agencies (DHS) has been given
  • An affidavit of compliance (search for creditors) has been filed
  • Notice and time to object to the distribution has been given to heirs and devisees.

All matters handled in probate court must be reviewed by court staff before they are submitted to the judge. Most require extensive review that cannot be done when litigants are waiting. If you submit your orders to the probate department they will be processed quickly. Also, judges are very rarely allowed to hear about a case when only one party is present. In almost all situations, notice of anything to do with a case must go to all parties. All probate matters (even those you expect to be short) must be prescheduled

The court provides a very limited number of forms. The ones we offer are:

  • Small Estate Affidavit,
  • Minor Guardianship,
  • Guardian’s Report, and
  • Acknowledgment of Restricted Assets.

These forms are available at the Multnomah County Central Courthouse in the Probate Department on the Fourth Floor or in the Legal Resource Center on the Second Floor, ​and on this website. The court does not offer or provide any other probate forms. You should consult with a lawyer whenever you are considering filing a probate case. You may find other resources on the website of the Oregon State Bar.

Letters Testamentary or Letters of Administration are issued by the court, once the court has appointed you the Personal Representative of the estate. These documents authorize you to handle the claims, releases, transfers, and other issues in the estate. Even if you are named in a will as the personal representative, you are not the Personal Representative of the Estate until you are appointed by the court. You must start a probate case by filing a petition and giving notice to those entitled to notice. The court will not issue letters with a Small Estate Affidavit because there is no appointment made in that instance.

In all cases filed after July 15, 2014, all non-professional guardians and conservators are required to complete a class for non-professional fiduciaries. If your case is older than that and you do not properly fulfill your duties, the court may require you to take the class. The court could also impose other sanctions in this situation. After February 2015, the requirement for the class is in effect for all types of cases. More information about the class is available at Guardian Partners website.

Oregon law requires that both parents of a minor child be served, or signed consent forms be obtained, before the court can grant the guardianship.

​Conservator – where a fiduciary who is appointed to protect and conserve the assets of an incapacitated person, or a minor child.

Devisees – persons who are to receive property according to a will.

Fiduciary – a person who has been appointed to manage another person’s affairs, and owes that person a duty of good faith, trust, confidence, and truthfulness.

Guardian – a fiduciary who is appointed to protect and care for the health and well-being of an incapacitated person, or a minor child.

Heirs - persons who are related to the decedent, and would inherit the estate under the laws of intestacy.

Intestate – where a person has died without a will. State laws govern how the estate will be divided.

Letters Testamentary/of Administration/of Guardianship/Conservatorship – these are letters issued to the fiduciary by the court as evidence that they have been duly appointed.

Personal Representative – the person who has been appointed by the Court to act as a fiduciary to administer the estate.

Power of Attorney – a document that one person (grantor) uses to grant authority to another person to act as grantor’s agent or attorney-in-fact. This is done outside the authority of the court, and any authority granted ends once the grantor dies.

Probate – a legal process where a court oversees the distribution of assets left by a deceased person.

Small Estate Affidavit – is a document that starts a process that is shorter and less expensive than the probate process.

Trustee – a fiduciary who has been appointed to administer the assets of a trust. This fiduciary must follow the directions in the trust document, and owes a duty to the beneficiaries of the trust.

Power of attorney forms are not filed with the court. You may be able to record it. Check with the Multnomah County recorder’s office. Power of Attorney forms simply show that one person has authorized another person to take actions or make decisions that would otherwise belong to the first person. Often the decision-making is about a child but it can involve other issues. It is a good idea to consult a lawyer before signing any Power Of Attorney. The court does not have Power of Attorney forms.

Court-certified copies of documents from the case can be requested through the Multnomah County Circuit Court Records Department. Copy and certification costs apply. Certified copies of fiduciary letters will only be issued to the appointed fiduciary or their attorney of record. Fiduciary letters are issued by the Probate Department and questions regarding copies of letters should be directed to the Probate Department.

No. Once filed with the court, no document can be returned. The court will safeguard the original will and copies are available upon request. A small fee applies for copies.

 

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