AN OVERVIEW OF PROBATE PROCEEDINGS IN OREGON
Probate is a legal process for handling your assets when you die. Assets are basically anything that you own , such as real estate, personal property, financial accounts, or cash. When you die, the ownership of your assets must be formally transferred to your heirs (usually your family members, friends, or charities).
When you die, it creates a legal entity called your “estate”. The estate holds ownership of your assets until your affairs are set in order and those assets can be passed on to your heirs.
At its most basic, “probate” is the court-supervised process for locating your assets, paying your final bills, expenses and taxes (if any), and then transferring the remaining assets to your heirs. Another way to think of probate is that probate is the formal process for changing the legal ownership of your assets from you to your heirs.
- How does your Will affect Probate?
Some people think that probate only applies if you have a Will. On the other hand, other people think that, by having a Will, they can avoid the probate process. Neither is true. Whether your estate will go through the probate process depends on the assets you own at your death. Rather, a Will serves as a roadmap through the probate process, if probate is necessary.
If you have a valid Will, your Will nominates the person or people that you want to act as your personal representative (formerly known as your executor). In addition, your Will dictates who your heirs will be (i.e.: who will inherit from you) and what each heir will receive from you. If you do not leave a Will, then distribution of your estate will be handled by Oregon’s laws of intestate succession, which basically leave your assets to your closest relatives.
- Is Probate Always Necessary?
Not always. Probate is only necessary when you own assets solely in your own name at the time of your death. For example, probate is usually required to change title to real estate, financial accounts, and other formally-titled assets.
However, probate may not be necessary when your assets are jointly-titled, held in a financial account that has a valid beneficiary designation, or in a valid trust.
For more information about circumstances when probate may not be necessary, please review the page about transfer of assets without probate.
- How Does Probate Work?
In Oregon, the probate process can take two forms: regular probate and small estates. Each type of probate proceedings has its own rules and procedures. Generally speaking, certain documents must be filed with the Court and notice has to be provided to your heirs, your creditors, and the State of Oregon. For more information, please visit the pages about regular probate and small estates.
Probate proceedings can be fairly simple. However, even with simple probate proceedings, it is wise to seek assistance from an experienced probate attorney. For more information about the probate process in Oregon, please feel free to contact me.