Rules Of Procedure For The Recovery Of Escheat Property

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_100/oar_141/141_030.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF STATE LANDS




 







DIVISION 30
RULES OF PROCEDURE FOR THE

RECOVERY OF ESCHEAT PROPERTY

141-030-0010
Purpose
The purpose of these rules is to prescribe uniform procedures for making claims to recover escheat property held by the Division of State Lands as provided for by ORS 112.055, 114.555, 116.193, 116.203, 708A.430, 722.262, 723.466, any form of non-probate administration of an escheat estate, and property received by the Division pursuant to ORS 179.540-179.550 prior to October 4, 1997.
Stat. Auth.: ORS 273.045, ORS 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 31, f. & ef. 10-3-75; LB 5-1996, f. & cert. ef. 10-15-96; DSL 10-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04
141-030-0015
Definitions
As used in this division and division
35 of these rules:
(1) "Administration" means
any proceeding relating to the estate of a decedent, whether the decedent died testate,
intestate or partially intestate.
(2) "Affiant" means the person
or persons signing an affidavit for a small estate filed under ORS 114.515.
(3) "Agent" means a person
who is filing a petition to recover escheat property on behalf of a claimant.
(4) "Assets" includes real,
personal and intangible property.
(5) "Claim" includes liabilities
of a decedent, whether arising in contract, in tort or otherwise.
(6) "Claimant" means a person
or entity claiming to be the rightful owner and legally entitled to escheat property
held by the Department.
(7) "Claiming Successor"
means:
(a) If the decedent died
intestate, the heir or heirs of the decedent, or if there is no heir, the Director
of the Department of State Lands;
(b) If the decedent died
testate, the devisee or devisees of the decedent; and
(c) Any creditor of the estate
entitled to payment or reimbursement from the estate under ORS 114.545(1)(c) who
has not been paid or reimbursed the full amount owed such creditor within 60 days
after the date of the decedent's death.
(8) "Court" or "probate court"
means the court in which jurisdiction of probate matters, causes and proceeding
is vested as provided in ORS 111.075.
(9) "Decedent" means a person
who has died.
(10) "Department" means the
Department of State Lands.
(11) "Devisee" includes "legatee"
and "beneficiary".
(12) "Director" means the
Director of the Department of State Lands or the designee of the director.
(13) "Distributee" means
a person entitled to any property of a decedent under the will of the decedent or
under intestate succession.
(14) "Escheat property" means
property paid or delivered to the Department because the devisee or heir could not
be found, or refused to accept the property.
(15) "Estate" means the real
and personal property of a decedent as from time to time changed in form by sale,
reinvestment or otherwise, and augmented by any accretions or additions thereto
and substitutions therefore or diminished by any decreases and distributions therefrom.
(16) "Estate Administrator"
means an employee of the Department appointed by the Director to protect the assets
of a decedent, and administer the estate on behalf of the Department.
(17) "Finder" means any person
who independently searches for and finds the owners of escheat property for a fee
paid by the owner.
(18) "Funeral" includes burial,
cremation or other disposition of the remains of a decedent, including the plot
or tomb and other necessary incidents to the disposition of the remains.
(19) "Heir" means any person,
including the surviving spouse, who is entitled under intestate succession to the
property of a decedent who died wholly or partially intestate.
(20) "Interested person"
includes heirs, devisees, children, spouses, creditors and any others having a property
right or claim against the estate of a decedent that may be affected by the proceeding.
It also includes fiduciaries representing interested persons.
(21) "Intestate" means one
who dies without leaving a valid will, or the circumstance of dying without leaving
a valid will, effectively disposing of all the estate.
(22) "Intestate succession"
means succession to property of a decedent who dies intestate or partially intestate.
(23) "Issue" includes adopted
children and their issue and, when used to refer to persons who take by intestate
succession, includes all lineal descendants, except those who are the lineal descendants
of living lineal descendants.
(24) "Known heir" means an
heir who has been identified and found.
(25) "Personal property"
includes all property other than real property.
(26) "Personal Representative"
includes executor, administrator, administrator with will annexed and administrator
de bonis non, but does not include special administrator.
(27) "Property" means both
real and personal property.
(28) "Probate" means the
court procedure that encompasses all matters and proceedings pertaining to administration
of estates as described in ORS 111.085, including but not limited to appointment
and qualification of personal representatives, determination of heirships, construction
of wills, and the administration, settlement and distribution of estates of decedents.
As to the estate of a decedent, "settlement" includes, the full process of administration,
distribution and closing.
(29) "Real property" means
all legal and equitable interests in land, in fee and for life.
(30) "Testate" means the
circumstances of dying with a legal, valid will that effectively disposes of all
the estate.
(31) "Will" means the legal,
valid, written document that disposes of the estate. "Will" includes a codicil or
a testamentary instrument that merely appoints an executor or that merely revokes
or revives another will.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 31, f. & cert.
ef. 10-3-75; LB 5-1996, f. & cert. ef. 10-15-96; DSL 10-1999, f. & cert.
ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert.
ef. 1-1-04; DSL 1-2014, f. 1-13-14, cert. ef. 2-1-14
141-030-0025
Petitions to Recover Estate Property
(1) Pursuant to ORS 116.253, a claimant
or agent may initiate a claim to recover escheat estate property by filing a petition
with the Department within the later of 10 years after the death of a decedent from
whose estate the Department received the property, or eight years after the entry
of a decree or order escheating the property to the state.
(2) A petition shall be considered
filed upon its receipt by the Department.
(3) The petition shall provide
all information required under subsections (4) and (5) of this rule. The petition
shall be verified and state the following:
(a) The name, age, and place
of residence of the claimant by whom or on whose behalf the petition is filed.
(b) That the claimant is
lawfully entitled to the property or proceeds, and a brief description of the property
or proceeds.
(c) That at the time the
property escheated to the state, the claimant had no knowledge or notice thereof
or was unable to prove entitlement to the escheated property and has subsequently
acquired new evidence of that entitlement.
(d) That the claimant claims
the property or proceeds as:
(A) (For escheat of an estate)
An heir or as the personal representative of the estate of an heir.
(B) (For escheat of a distributive
share of an estate) The person who was entitled to receive the distributive share
or that person's personal representative.
(e) That 10 years have not
elapsed since the death of the decedent from whose estate the Department received
the property, or that eight years have not elapsed since the entry of the decree
or order escheating the property to the state.
(f) If the petition is filed
on behalf of the claimant, the identity and authority of the claimant's agent.
(4) The petition to recover
estates and distributive shares shall be supported by the following documents:
(a) Current photo identification
of the claimant, or other satisfactory proof of identity.
(b) An acknowledged indemnification
agreement signed by the claimant(s) and acceptable to the Department.
(c) If the petition is being
filed by an agent for a claimant, a Power of Attorney or written, acknowledged authorization
given by each claimant to the agent to act on behalf of the claimant. The original
Power of Attorney or authorization shall be filed with the petition. A finder who
is acting as an agent for a claimant shall be licensed and comply with the requirements
of ORS 703.401 to 703.470. The finder shall forward a copy of the finder's current
license issued by the Department of Public Safety Standards and Training with the
initial Power of Attorney. Subsequent claims filed by a finder shall include the
current license number on the Power of Attorney.
(d) If the property was paid
or delivered to the Department because a decedent died intestate with no known heirs,
a genealogical chart showing the relationship of all heirs of the decedent. If the
line has lapsed, a statement shall be included that no issue exists and proof that
the line lapsed by death. If persons in a line have not been identified or found,
the statement shall include information on the efforts made to identify and find
the persons in that line and all known information on that line.
(e) If the property was paid
or delivered to the Department because a decedent died intestate with no known heirs,
certified copies of birth, death, and/or marriage certificates, that show the family
relationships of the heirs to the decedent.
(5) In addition to the documents
required by subsection (4) of this rule, a petition may also include the following
records to verify and establish the relationship of the heirs to the decedent:
(a) Bureau of Census Records;
(b) Published obituaries
and funeral Notices;
(c) Wills of deceased family
members, which show the relationship of heirs to each other;
(d) Church records showing
birth, death, baptism, or marriages;
(e) Applications for Social
Security cards, naturalization records, employee pension plans or any records containing
the signature of the applicant/claimant and listing any designated beneficiaries,
other family members or parents;
(f) Court records and duly
authenticated records of proceedings conducted before domestic and foreign courts
to show the heirs of the decedent and the entitlement of the claimant to the escheat
funds.
(6) Copies of documents submitted
to support a petition shall be certified by the custodian of the original document
or shall include an appropriate reference to the source at which they may be verified.
(7) The burden is on the
claimant to provide sufficient proof to establish the elements of the claim, and
it is the claimant's responsibility to contact persons and to search out documents
relating to the application.
(8) In order to assist the
Department in determining the rightful owner of an account, a claimant may voluntarily
include the claimant's Social Security number on the petition.
(9) For the purposes of this
rule, the death of the decedent is presumed to have occurred on the date shown in
the decedent's death certificate or in any other similar document issued by the
jurisdiction in which the death occurred or issued by an agency of the federal government.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 31, f. & ef.
10-3-75; LB 5-1996, f. & cert. ef. 10-15-96; DSL 10-1999, f. & cert. ef.
4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert.
ef. 1-1-04; DSL 1-2014, f. 1-13-14, cert. ef. 2-1-14
141-030-0034
Recovery of Costs
The Department shall recover its actual costs of reviewing a petition, including those of the Attorney General. The actual costs and any tax on the property shall be deducted from the proceeds before payment is made to the claimant. As used in this section, "actual costs" shall include but need not be limited to the actual staff time incurred in reviewing the petition and any overhead costs to the Department in handling the petition, calculated in the manner described in 141-035-0068 (2).
Stat. Auth.: ORS 273.045, ORS 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 5-1996, f. & cert. ef. 10-15-96; DSL 10-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04
141-030-0035
Contested Case Procedures
(1) If the Department is unable to determine legal entitlement from information provided in the petition, and any supporting documentation received or provided by supplemental filings, the Department shall give written notice of denial.
(2) The notice of denial shall include the specific reason(s) for denial and shall provide an opportunity for a contested case hearing.
(3) Within 60 days after the date the Department provides written notice of denial, the claimant may request a hearing on the matter.
(a) A request for hearing shall be in writing and shall identify issues of law or fact raised by the denial and shall include a summary of the evidence of ownership on which the claim was originally submitted.
(b) Within 30 days after the Department receives a written request, the Department shall contact the claimant to schedule a hearing date by mutual agreement. The Department shall confirm the hearing date by providing written notice to the claimant.
(c) The Director or a hearings officer appointed by the Director shall conduct the hearing.
Stat. Auth.: ORS 273.045, ORS 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 31, f. & ef. 10-3-75; LB 37, f. & ef. 9-1-76; LB 5-1996, f. & cert. ef. 10-15-96; DSL 10-1999, f. & cert. ef. 4-5-99 ; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04
141-030-0037
Review by the Department
(1) The Department shall review the
petition and the sufficiency of the supporting documents. If a preponderance of
the evidence indicates that the claimant is legally entitled to the property, the
Department shall satisfy charges due, if any, to the Department of Human Resources,
and prepare the necessary administrative deeds and assignment of contracts for property
that is part of the estate. The Department may require the Department of Justice
to review the petition or claim and supporting documents.
(2) Upon completion of the
requirements of subsection (1) of this section, the Department shall request a warrant
from the State Treasurer and make payment to the claimant, agent, or attorney for
the claimant.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 5-1996, f. &
cert. ef. 10-15-96; DSL 10-1999, f. & cert. ef 4-5-99; DSL 8-2002, f. 12-24-02
cert. ef. 1-1-03; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04; DSL 1-2014, f. 1-13-14,
cert. ef. 2-1-14
141-030-0039 [Renumbered to 141-030-0050]
141-030-0040 [Renumbered to 141-030-0055]
141-030-0045
Standards for Determining Escheat Share of the Estate
(1) In determining the escheat share of the estate of a decedent whose estate is wholly or partially subject to probate in this state:
(a) The Department shall not give preference to any person over escheat; and
(b) After diligent search and inquiry appropriate to the circumstances, the Department shall apply the following presumptions in a proceeding to determine whether a missing person has died:
(A) A missing person whose death cannot be proved by other means lives to 100 years of age.
(B) A missing person who was exposed to a specific peril at the time the person became missing has died if it is reasonable to expect from the nature of the peril that proof of death would be impractical.
(C) A missing person whose absence is unexplained has died if the character and habits of the person are inconsistent with a voluntary absence for the time that the person has been missing.
(D) A missing person known to have been alive who has not been seen or heard from for seven years has died if the person has been absent from the person's usual residence, the absence is unexplained, there are other persons who would have been likely to have heard from the missing person during that period were the missing person alive, and those other persons have not heard from the missing person.
(2) In any proceeding to determine the escheat share of an estate, a missing person who is presumed to be dead is also presumed to have had two children in addition to any known issue of the person unless the presumption of death arises by reason of the application of subsection (1)(b)(B) or (C) of this rule.
Stat. Auth.: ORS 273.045, 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04
141-030-0050
Expiration of Recovery Period
If a petition to recover escheat property is not received by the Department within 10 years after the death of the decedent from whose estate the Department received the property, or within eight years after the entry of a decree or order escheating the property to the state, and upon resolution of any petitions filed during that period, the Department shall summarily close the file and permanently transfer the remainder of the estate to the Common School Fund.
Stat. Auth.: ORS 273.045, ORS 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 5-1996, f. & cert. ef. 10-15-96; DSL 10-1999, f. & cert. ef. 4-5-99; DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; Renumbered from 141-030-0039; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04
141-030-0055
Interest Derived From Escheated Property
(1) All interest derived from escheated property before the date a claimant's right to the property is established belongs to the State of Oregon.
(2) A claimant's right to the property is established at the time the claimant negotiates the warrant.
Stat. Auth.: ORS 273.045, 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: DSL 8-2002, f. 12-24-02 cert. ef. 1-1-03; Renumbered from 141-030-0040; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04







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