Probate is a legal process whereby the court oversees the distribution of assets left by a deceased person. Assets are anything a person owns with value (such as real and personal property and cash.)
Probate is not always necessary; if the deceased person owned assets with a spouse, the surviving co-owner will often inherit that property automatically. If a person dies and leaves behind very few assets, these items can usually be distributed among the rightful beneficiaries without court involvement.
In some cases, probate is needed for purposes of title clearing, debt collection, or to settle disputes between various individuals who believe they are entitled to the deceased’s assets. It can also be utilized to resolve any will validity disputes.
If the deceased person had a will, the will is “proved” before being delivered to the court. A personal representative is selected (someone to handle the affairs of the deceased). If the will does not explicitly name a representative, or there is not a will in place at all, the court will select a personal representative (typically the spouse, adult child, or a close relative.) If the previously stated are not willing or not able to accept the responsibility, the court may choose a bank or trust company to step in as representative.
Any debts are paid out from the trust and notices are sent to any creditors (through a publication in a local newspaper and by the personal representative.) Creditors then have 4 months to bring any claim against the estate for fulfillment; All creditors must be repaid before any remaining assets can be distributed among the beneficiaries.
Heirs are listed, assets are identified and catalogued, and filed with the court by the personal representative. Dependent upon how many variables are involved, this step can be quite straightforward or quite difficult and time consuming.
The personal representative also pays any taxes that are due, prepares state and/or federal tax returns and any inheritance, gift, and estate tax returns.
Washington allows for an abbreviated procedure when handling small estates that would otherwise often require a full probate. If an estate fits in this category, the cost and time for distributing the estate assets could be greatly reduced. The procedure for determining whether or not you are eligible for this procedure involves filing a document called an “affidavit of claiming successor.” This abbreviated procedure can be used if the estate’s personal property is valued below $75,000 and real property is valued below $200,000, for a total aggregate estate value of no more than $275,000. (These rates are accurate as of April 2018 but may have been altered by the state legislature. Please consult an attorney or advisor to ensure that they are still accurate.) Real property includes land and any buildings or structures placed on land (such as houses, commercial buildings and agricultural buildings.) Personal property includes all other property (such as cars, boats, clothing, stocks, bonds and personal items.)
Under Oregon law, a personal representative is entitled to a fixed percentage of the value of the total estate; additional costs may be approved by the court for the personal representative and a lawyer if the estate is particularly complicated. Other costs can include court filing fees, legal notices published in the local newspaper, and any other necessary expenses such as retaining lawyers, who generally charge an hourly rate for their services.
The process(es) of probate can require a substantial amount of paperwork that needs to be filed by their required deadlines in a timely manner. A probate lawyer can help you understand the complex issues which can arise from a probate matter (such as tax legalities and other issues) and achieve the goals you have for yourself and your family. An experienced probate attorney can also assist you with the necessary preparation for filing the appropriate legal documents and appearing in court.
(Information compiled from Legal Editor: Don Johnson, April 2018: Oregon State Bar)