Administration Of Estates -- Probate

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_100/oar_141/141_035.html
Published: 2015

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

 

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DEPARTMENT OF STATE LANDS




 








DIVISION 35
ADMINISTRATION OF ESTATES -- PROBATE

141-035-0005
Purpose
The purpose of these rules is to provide a uniform procedure for the administration of estates of decedents who die intestate without known heirs or with some missing heirs and to testate estates with missing heirs or missing devisees in accordance with Oregon Revised Statutes 111 through 119. These rules shall be liberally construed to secure just, speedy determination of the assets, liabilities, net worth and disposition of the decedents' estates.
Stat. Auth.: ORS 273.045, 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0011
Rights of Department of State Lands in Escheated Estates
(1) Any portion of a net estate that is not effectively disposed of by will or by intestate succession under ORS 112-025 to 112.045 escheats to the State of Oregon. Such property vests in the State of Oregon at the time the court enters its decree or order and is subject to a condition subsequent of divestment if a qualified claimant successfully asserts a claim for recovery under ORS 116.253 and OAR 141-030-0025. The Department of State Lands shall administer the estate or represent the interests of the State of Oregon with regard to the estate.
(2) If a devisee or a person entitled to take under intestate succession is not identified or found:
(a) The share of that person escheats to the State of Oregon;
(b) The Department has the same preference as the missing devisee or person for the purpose of appointment as personal representative under ORS 113.085;
(c) Title to property of the decedent that would vest in the missing devisee or person under ORS 114.215 vests in the Department; and
(d) The Department has all of the rights of the missing devisee or person for the purposes of ORS chapters 111, 112, 113, 114, 115, 116 and 117, including but not limited to the following:
(A) The right to contest any will of the decedent under ORS 113.075; and
(B) The right to information under ORS 113.145.
Stat. Auth.: ORS 273.045, ORS 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04
141-035-0012
Authority of Department of State Lands in Administration of Estates
(1) In any estate administered by the
Department pursuant to 141-035-0011, the Department may:
(a) Administer the estate
under the probate laws of Oregon in accordance with ORS Chapters 113 to 116;
(b) Administer the estate
under the provisions for small estates in ORS 114.505 to 114.560;
(c) Submit an affidavit and
receive funds from a financial institution under ORS 708A.430;
(d) Submit an affidavit to
examine the contents of a safe deposit box under ORS 708A.655, 722.660 or 723.844;
(e) Submit an affidavit and
receive the withdrawal of value of property in accordance with ORS 722.262;
(f) Submit an affidavit and
receive the moneys of the decedent on deposit with a credit union in accordance
with ORS 723.466; or
(g) Deposit to the Common
School Fund without formal proceedings assets of a decedent which are voluntarily
delivered to the Department or secured by the Department in accordance with ORS
113.242. In such cases, the Department shall take reasonable steps under the circumstances
to identify and notify heirs and to identify and pay from the assets received creditors
of the estate.
(2) Except for expenses disallowed
by the court with authority over the probate, any expenses of the Department in
carrying out the authority set forth in subsection (1) of this rule shall be paid
from the proceeds of the estate. Such expenses shall be calculated in the manner
described in OAR 141-035-0068. The Department encourages personal representatives
sending notices and documents required by statute to the Department to include a
letter explaining the practical circumstances of the estate and such additional
information as will assist the estate administrator in protecting the interest of
the State of Oregon in the estate.
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; DSL 1-2014, f. 1-13-14, cert. ef. 2-1-14
141-035-0013
Delivery of Information to Division
(1) Upon appointment, a personal representative
shall deliver or mail to an estate administrator a copy of the petition filed under
ORS 113.035, and a copy of any last will of the decedent, if the personal representative
has not identified and found all heirs and devisees of the decedent. The personal
representative shall file an affidavit in the probate proceeding proving the delivery
or mailing.
(2) If, within 60 days after
the appointment of a personal representative it appears that any heir or devisee
of the decedent cannot be identified and found, the personal representative shall
promptly deliver or mail to an estate administrator a notice indicating that an
heir or devisee cannot be identified and found. The personal representative shall
file an affidavit in the probate proceeding proving the delivery or mailing.
(3) A personal representative
who files a report under ORS 116.203 that shows that payment or delivery of property
cannot be made to a distributee entitled to the property shall provide to the Department
of State Lands:
(a) A copy of the order of
escheat;
(b) The property;
(c) The name of the person
entitled to the property; and
(d) The relationship of the
devisee or heir to the decedent.
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; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04; DSL 1-2014, f. 1-13-14,
cert. ef. 2-1-14
141-035-0016
Notice to Department of Decedent
Who Died Without Known Heirs
(1) Any person who has knowledge that
a decedent died wholly intestate, that the decedent owned property subject to probate
in Oregon and that the decedent died without a known heir shall give notice of the
death within 48 hours after acquiring that knowledge to an estate administrator
of the Department of State Lands.
(2) Except as provided by
ORS 708A.430 and 723.466, a person may not dispose of or diminish any assets of
the estate of a decedent who has died wholly intestate, who owned property subject
to probate in Oregon and who died without a known heir unless the person has prior
written approval of an estate administrator of the Department of State Lands. The
prohibition of this subsection:
(a) Applies to a guardian
or conservator for the decedent; and
(b) Does not apply to a personal
representative appointed under ORS 113.085(3) or to an affiant authorized under
114.520 to file an affidavit under 114.515.
(3) For purposes of this
rule, "person" includes, but is not limited to friends, neighbors, care centers,
nursing homes, hospitals, banking institutions, attorneys, guardians and conservators.
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; DSL 1-2014, f. 1-13-14, cert. ef. 2-1-14
141-035-0018
Taking Custody of Property; Payment
of Expenses of Estate
(1) An estate administrator of the Department
of State Lands may take custody of the property of a decedent who died owning property
subject to probate in Oregon upon the estate administrator receiving notice that:
(a) The decedent died wholly
intestate and without a known heir; or
(b) The decedent left a valid
will, but no devisee has been identified and found.
(2) For any estate described
in subsection (1) of this section, an estate administrator of the Department of
State Lands may:
(a) Incur expenses for the
funeral, burial or other disposition of the remains of the decedent in a manner
suitable to the condition in life of the decedent;
(b) Incur expenses for the
protection of the property of the estate;
(c) Incur expenses searching
for a will or for heirs or devisees of the decedent;
(d) Have access to the property
and records of the decedent other than records that are made confidential or privileged
by statute;
(e) With proof of the death
of the decedent, have access to all financial records of accounts or safe deposit
boxes of the decedent at banks or other financial institutions; and
(f) Sell or dispose of perishable
property of the estate.
(3) The reasonable funeral
and administrative expenses of the Department of State Lands incurred under this
section, including a reasonable attorney fee, shall be paid from the assets of the
estate with the same priority as funeral and administration expenses under ORS 115.125.
(4) When the Department receives
notice of a person who has died and for whom it appears there are no known heirs
to inherit and no known will, the Estate Administrator shall complete an intake
form, which shall include, but need not be limited to, the following information:
(a) Decedent’s name,
address, Social Security number, date of death, place of death, and date of birth,
if known;
(b) Notifier’s name,
contact information, and relationship to the decedent;
(c) Funeral home where the
body has been taken, name of the director or principal;
(d) The decedent’s
place of residence, personal property, financial assets, and any other information
determined to be pertinent;
(e) Names, addresses and
phone numbers of friends and neighbors who can lend assistance in trying to establish
identity of nearest of kin; and
(f) Any other information
regarding relatives of the decedent, or that might assist in locating heirs.
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; DSL 1-2014, f. 1-13-14, cert. ef. 2-1-14
141-035-0020
Initial Proceedings
(1) Pursuant to ORS 113.085(2), if it
appears that the decedent died wholly intestate and without known heirs, the Court
shall appoint the Department of State Lands as personal representative or small
estates affiant. The Department of Justice shall represent the Department of State
Lands in the administration of the estate.
(2) The court may appoint
a person other than the Department of State Lands to administer the estate of a
decedent who died wholly intestate and without known heirs if the person filing
a petition under ORS 113.085(3) attaches written authorization from an estate administrator
approving the filing of the petition by the person. Except as provided in subsection
(3) of this rule, an estate administrator may consent to the appointment of another
person to act as personal representative only if it appears after investigation
that the estate is insolvent.
(3) Any person who wishes
to petition the court for appointment as a personal representative for the estate
of a decedent who died wholly intestate and without known heirs shall submit a written
request to the Department. The estate administrator may authorize the appointment
of another person to act as personal representative if:
(a) After investigation,
the estate administrator determines the estate is insolvent; or
(b) The estate administrator
determines that the appointment is the most cost-effective method to administer
the estate and protect the assets of the estate.
(4) A creditor of an estate
shall give written notice to the Department informing the Director that the creditor
intends to file a Small Estates Affidavit. The Department shall investigate the
assets and liabilities of the estate, and within 30 days after receipt of the notice,
either:
(a) Give written authorization
to the creditor to file the Small Estates Affidavit; or
(b) Inform the creditor that
the Department will file a Small Estates Affidavit, and include the creditor as
an interested person.
Stat. Auth.: ORS 273.045
& 111 - 119
Stats. Implemented: ORS 111 - 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0025
Funeral Arrangements
(1) If the body is delivered to a funeral
home and it appears the decedent has died intestate and without known heirs, the
funeral director shall contact the Estate Administrator within two working days
after receipt of the body. The Department must approve all funeral arrangements.
(2) Either the funeral director
or the Estate Administrator, after consultation with the funeral director, shall
complete applications for Social Security, Veterans Administration, and other available
death benefits.
(3) The Estate Administrator
and the funeral director shall negotiate appropriate funeral charges and disposition
of the remains pursuant to ORS 113.242(2).
(4) In determining the nature
and amount of services to be rendered for a "plain and decent funeral," the Estate
Administrator shall consider the amount of assets available in the estate, the expressed
desires of the decedent's friends and associates concerning appropriate funeral
services, the number of persons expected to attend any funeral services offered,
and the prominence of the decedent in the local community.
(5) Burial and cemetery costs
are considered separate from funeral costs and the amount payable is contingent
upon the amount of funds available in the estate. The funeral director shall notify
the Estate Administrator of the proposed cemetery and the cost estimate for burial
expenses. Expenses are limited to the available resources in the estate.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0030
Assessment of Assets
(1) As soon as possible but not more
than five working days after the Department receives notification under OAR 141-035-0016(1)
or 141-035-0025, the Estate Administrator may travel to the decedent's residence
to:
(a) Inventory, evaluate,
and determine best method of liquidation of tangible assets.
(b) Gather and secure all
pertinent papers and records of the decedent to provide a source of information
that may be reviewed to determine whether a will exists, and whether there are existing
heirs as defined in ORS Chapter 111, and 112.015 to 112.055, 112.065, 112.075, 112.095,
112.105 and 112.115.
(2) If the search of the
residence does not produce evidence of a will or heirs, the Estate Administrator
shall:
(a) Contact local banks,
savings and loan associations, credit unions, and other financial institutions to
freeze accounts pending delivery of appropriate documents to withdraw the accounts
and to obtain balances of accounts and information regarding safe deposit boxes.
(b) Contact utilities, delivery
services, and postal authorities to forward billings and statements to the Department
and to arrange for the termination of services if in the best interest of the estate
to protect the property.
(3) The Estate Administrator
may request assistance from available law enforcement personnel to provide for the
security of real property, personal property, and household goods.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0035
Inventory
(1) Within five working days after verifying
that the decedent apparently has no legal will, nor known heirs, the Estate Administrator
shall compile an inventory of the decedent’s assets.
(2) The Estate staff shall
assign an estimated value to the inventory. The value of investment-type assets
shall be recorded at the value of the asset as of the date of death.
(3) Any items with commercial
value will be itemized on the inventory.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0040
Administration of the Estate
(1) If the value of the estate does
not exceed the amounts stated in ORS 114.515 for a Small Estates Affidavit, the
Department as a claiming successor of the decedent may file an affidavit for a proceeding
with the appropriate court as described in ORS 114.505 to 114.560. If the value
of the estate exceeds the limits authorized under the procedure for a Small Estate,
the Estate Administrator shall file a petition with the appropriate court to be
appointed personal representative and administer the estate according to ORS 111.005
through 117.095.
(2) The Estate Administrator
may pay funeral and cemetery costs as soon as the Estate Administrator determines
that enough funds will remain to pay administrative costs.
(3) A formal claim against
the estate may be allowed, contingent on the validity of the claim. If it appears
there are insufficient funds to pay all claims in full, the Estate Administrator
shall follow the order of payment of expenses and claims as set forth in ORS 115.125.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 3-1982, f. & ef. 6-10-82; LB 5-1989, f. & cert. ef. 11-2-89;
DSL 11-1999, 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
141-035-0045
Search for Heirs
(1) The Estate Administrator shall conduct
a search of records to locate any heirs that may have a legal right to inherit.
The search may include but not be limited to the following:
(a) Papers, records, albums,
newspaper clippings, letters, personal telephone books, etc., included in the personal
effects of the decedent;
(b) Friends and neighbors;
(c) Employee unions, businesses
or places of employment, retirement funds, insurance companies or any other association
of which the decedent may have been a member;
(d) Banks, credit unions
and other financial institutions, savings and loan associations, mortgage and investment
funds with which the decedent may have conducted financial affairs;
(e) Public agencies;
(f) Paid genealogists or
other heir searching method.
(2) If the Estate Administrator
finds a valid will before filing a full probate or Small Estates Affidavit, the
Estate Administrator shall immediately contact the personal representative named
in the will. If the Estate Administrator cannot locate the personal representative,
the Estate Administrator shall notify the primary beneficiary. The Department shall
then make arrangements to turn over all assets, less the Department's administrative
costs to the appropriate individual upon proof of identity.
(3) The Department’s
probate file is a public record under Oregon's public meetings and records laws.
The Department file may contain privileged and/or protected information subject
to being withheld. Researching firms or heir finders must make an appointment with
the Estate Administrator to view the Department files after the Department has filed
the records with the probate court.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0047
When Heirs Are Discovered
(1) A person claiming to be an heir
of the decedent during the administration of a full probate or Small Estates Affidavit
must submit to the Estate Administrator acceptable proof to substantiate kinship
to the decedent. Acceptable proof includes, but is not limited to, certified copies
of death and birth certificates, genealogical search records, obituaries, funeral
notices, Baptism records, and family Bibles. The Department may continue to administer
the estate until the Estate Administrator determines that evidence submitted is
sufficient to prove that the person is legally entitled to the decedent's assets.
If other heirs are identified but not located, the Department may continue to administer
the estate in order to protect the interest of the missing heirs and the Common
School Fund, or if administration of the probate is substantially complete and the
Estate Administrator and the known heirs agree that it is in the best interests
of the estate for the Department to complete the administration.
(2) If the Department has
filed a probate, and all heirs are subsequently identified and found, the heir shall
file a substitution of personal representative with the probate court, and a court
certified copy of the order of substitution with the Department.
(3) If the administration
is by a Small Estates Affidavit, the heir shall file an amended Small Estates Affidavit
with the court, which shows that the heir is taking over control and responsibility
of the estate from the Department, and submit a court certified copy to the Department.
(4) Upon receipt of the court
certified copy of the amended Small Estates Affidavit or the order of substitution
of Personal Representative, the Estate Administrator shall turn over the assets,
less the Department's administrative costs and attorney fees, to the claiming successor
or successor Personal Representative, including all bills and claims against the
estate.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 5-1989, f. &
cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0048
Disclaimer Of Interest In Estate
(1) In accordance with ORS 105.623 to
105.649, any heir or devisee to an estate may disclaim all interest in an estate
by delivering the disclaimer to the Department as personal representative of the
estate, or if the Department is not serving at the time the disclaimer is made,
by delivering the disclaimer:
(a) If a personal representative
other than the Department is presently serving, to that personal representative;
or
(b) If a personal representative
is not serving at the time the disclaimer is made the disclaimer must be filed with
a court having jurisdiction to appoint the personal representative.
(2) Upon notification to
the Department of any heir or devisee who refuses to act as personal representative
of the estate of a decedent, and who refuses an interest in the estate, the Department
may forward a disclaimer to the person disclaiming.
(3) The disclaimer shall:
(a) Be in writing or otherwise
recorded by inscription on a tangible medium or by storage in an electronic or other
medium in a manner that allows the disclaimer to be retrieved in perceivable form;
(b) Declare that the person
disclaims the interest in the property or in the power of appointment;
(c) Describe the interest
in property or power over property that is disclaimed;
(d) Be signed by the person
making the disclaimer; and
(e) Be delivered in the manner
provided in ORS 105.642.
(4) Upon receipt of the properly
executed disclaimer by the Department, the decedent shall be treated as though he
or she died wholly intestate and without heirs with respect to the disclaimant,
and the Estate Administrator shall petition the court to be appointed as personal
representative or Small Estates Affiant to administer the estate in the usual manner.
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; DSL 3-2003, f. 12-15-03, cert. ef. 1-1-04; DSL 1-2014, f. 1-13-14,
cert. ef. 2-1-14
141-035-0050
Sale of Real Property and Personal
Effects
When serving as affiant or personal
representative for an estate, the Department shall sell those items determined to
have significant commercial value and dispose of the items with little or no value
in accordance with OAR 141-045-0185.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0055
Accounting for Funds
(1) There is created within the Common School Fund a separate trust account for estate administration.
(2) All funds received by the Department in the Department's capacity of personal representative shall be deposited daily into the trust account, and credited to the appropriate subsidiary account established for each separate estate.
(3) The Estate Administrator may pay just, proper, and approved claims from an estate subsidiary account established pursuant to subsection (2) of this rule within the limits of the estate's resources in accordance with ORS 115.125 and OAR 141-035-0040(2)(c).
(4) At the end of each fiscal year, the Estate Administrator shall file a report setting forth the value of non-cash assets of each estate.
Stat. Auth.: ORS 273.045, 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0060
Income and Inheritance Taxes
The personal representative shall file and pay all taxes due on the estate. The Estate Administrator may obtain the services of a tax consultant when necessary to prepare appropriate and necessary tax returns.
Stat. Auth.: ORS 273.045, 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0065
Closing the Estate and Escheat of Assets
(1) The Department shall make every
effort to close full estates admitted to probate within one year after the court
appointment date. If the full probate cannot be closed within one year the Estate
Administrator shall file an annual accounting with the appropriate probate court.
(2) Prior to closing, the
Estate Administrator shall compute the administrative and Department of Justice
expenses. If the estate was admitted to full probate, fees shall be computed in
accordance with ORS 116.173. The Estate Administrator shall compute administrative
expenses of the Department in the manner described in OAR 141-350-0068. In addition,
extraordinary expenses such as special trips by the Estate Administrator, additional
manpower required to inventory, transport or dispose of personal property shall
be computed and included as administrative expenses in the final account submitted
to the court.
(3) If the estate was filed
under the Small Estates procedure, the Estate Administrator shall:
(a) Complete administration
and processing of claims and expenses immediately after the end of the four month
period after the affidavit is filed with the probate court; and
(b) Compute administrative
and legal expenses as actual costs incurred in accordance with ORS 116.183. The
Estate Administrator shall compute administrative expenses of the Department in
the manner described in OAR 141-350-0068.
(4) The amount remaining
after payment of expenses shall be placed in a trust fund of the Department and
held for ten (10) years after the date of death or eight (8) years after of the
date entry of the judgment or order of escheat. If heirs claim the estate during
that period, Department shall apply the procedures of OAR 141-030-0025 and ORS 116.253.
If an heir does not file a petition for recovery within the time period, the Department
shall deposit the total amount credited to the estate subsidiary account in the
Common School Fund.
Stat. Auth.: ORS 273.045 & 111 -
119
Stats. Implemented: ORS 111
- 119
Hist.: LB 4-1980, f. &
ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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
141-035-0068
Computation of Department Expenses
(1) The Department shall recover its
actual expenses incurred in administering an estate, including attorney fees, probated
under ORS Chapter 113 and 114, a small estate proceeding under 114.505 to 114.560,
actions to recover the escheated portion of an estate under 116.203, investigation
or recovery of assets under 708A.430, 708A.655, 722.262, 722.660, 723.466 or 723.844
and for any expenses incurred in securing an estate and identifying heirs when it
is unknown as to whether the decedent died intestate and without known heirs.
(2) The calculation of the
expenses of the Department under subsection (1) of this rule shall consist of the
amount of the basic hourly rate of the employee in addition to the overhead for
the time spent. As used in this subsection:
(a) "Basic hourly rate" means
the actual salary and other personnel expenses of the employee, divided by the annual
number of hours of employment.
(b) "Overhead" includes all
other expenses of the agency proportionately attributable to the activities of the
employee that are not separately itemized and billable as expenses.
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; DSL 1-2014, f. 1-13-14, cert. ef. 2-1-14
141-035-0070
Appeal
Any person aggrieved by a decision of the Department as personal representative or the designated Estate Administrator may request a hearing before the Director of the Department of State Lands in accordance with the applicable provisions of ORS 183.310 to 183.550 or file an objection or petition with the probate court.
Stat. Auth.: ORS 273.045, 111 - 119

Stats. Implemented: ORS 111 - 119

Hist.: LB 4-1980, f. & ef. 10-29-80; LB 5-1989, f. & cert. ef. 11-2-89; DSL 11-1999, 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

Small Estates

141-035-0075
Requirements for Small Estate
(1) If it appears that a decedent died wholly intestate and without known heirs, and the value of the estate does not exceed the values established in ORS 114.515, the Department may administer the estate by filing an affidavit with the clerk of the probate court under 114.515.
(2) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor may not file an affidavit under ORS 114.515 unless the Department gives written authorization. An estate administrator shall consent to the filing of an affidavit under 114.515 by a creditor only if it appears after investigation that the estate is insolvent.
(3) A creditor of an estate who is subject to subsection (2) of this section shall submit a written notice to an estate administrator informing the estate administrator that the creditor intends to file an affidavit under ORS 114.515. Upon receiving the notice, the estate administrator shall investigate the assets and liabilities of the estate. Within 30 days after receiving the notice required by this subsection, the estate administrator shall either:
(a) Give written authorization to the creditor to file an affidavit by the creditor under ORS 114.515; or
(b) Inform the creditor that the Department will file an affidavit as claiming successor under ORS 114.515.
(4) If a decedent dies intestate and without heirs, a creditor of an estate who is a claiming successor and who files an affidavit under ORS 114.515 must notate at the top of the affidavit that the affidavit is being filed by a creditor of the estate. If the affidavit contains the notation required by this subsection, the clerk of the probate court may not accept the affidavit for filing unless there is attached to the affidavit written authorization for the filing of the affidavit by the creditor from an estate administrator. The written authorization may be a copy of a memorandum of an interagency agreement between the Department of State Lands and another state agency.
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








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