The Law Office of David Johnson located in Salem, Oregon can help you with your estate planning needs while striving to avoid probate. David Johnson is a Salem Probate Attorney and he would love to answer any questions that you may have.
What is Probate?
After a person has passed away their last will and testament goes through a process called probate in which their wishes are handled by distributing their personal property.
Probate is when the deceased’s last written directives are legally certified as the final statement of their wishes with regards to their possessions. The probate will also state who they would like to handle their estate which is typically called an executor or personal representative.
Is There a Difference Between Executor and Personal Representative?
There is no difference between an executor and a personal representative. In the state of Oregon, an executor has since been changed to personal representative.
Is Probate Necessary?
Not all estates have to go through probate. The necessity of probate does not have to do with whether or not the deceased left a will. An estate may still need to go through regular probate regardless of the will.
You will need to consider two factors when determining whether or not you will have to conduct a probate court proceeding for the deceased’s estate. The factors include the kind of assets in the estate and the total monetary value of estate property.
Why is Probate Required?
There must be some sort of legal process to transfer the legal title and ownership of the deceased’s property into the name of the beneficiaries. How long does the probate process take in the state of Oregon?
In Oregon, there is a 30 day waiting period before paperwork can be filed with the court. The mandatory minimum time a probate can be open is four months. However, typically it takes anywhere from nine to 18 months.
What Problems Might I Come Across in the Probate Process?
Although it is ideal to get through probate quickly and finalize the process in the minimum four month requirement, that is not typically the outcome. Many problems can arise through probate which can cause delays.
The most common problem in probate is trying to determine who should obtain which possessions and property of the deceased. This is encountered when the deceased did not create a will or other estate planning documents.
Family members or friends might cause more problems if they feel like they have been unfairly treated and were not given what they believe they deserve from the deceased.
Why Would Probate be Delayed?
- Tax matters that may be more complicated
- Bond certificates or Individual stocks that must be processed
- Arguments and disputes that may be occurring among the beneficiaries or heirs
- Property and possessions that must be sold
What Does a Probate Process Look Like?
- Appoint the Personal Representative: If there is a will, there should be a selected personal representative. If there is no will then the courts will appoint an administrator of the estate.
- Give written notice and take inventory: Once a personal representative is appointed they must give written notice to all creditors of the estate. They must also make a written list of the deceased property and make an inventory of all possessions including property, stocks, bonds and business interests.
- Pay all expenses: The personal representative must then pay for all of the funeral costs. They must also use the estate to pay for the deceased’s taxes as well as any debts.
- Transfer property according to the will: The personal representative petitions the court to transfer the remaining assets to the beneficiaries that are stated in the deceased’s will. After the petition has been granted, the personal represented will need to draw up a new deed in which they liquidate assets by transferring property and stocks to the appropriate recipients.
What are the Main Responsibilities of the Personal Representative?
- First determine if there are any probate assets
- Identify and gather all of the assets of the deceased and make an inventory of the possessions.
- Receive payments due to the estate; including interest, dividends and other income. For example, unpaid salary, vacation pay, and other benefits that may be from their company.
- Set up a bank account for the estate.
- Must divide the property up and decide who will get what.
- Pay all of the outstanding debts and also pay all funeral bills.
- Handling all of the unfinished paperwork from the deceased such as canceling utility services and credit cards, and contacting social security and informing them about the death.
- File and pay all income and estate taxes of the deceased
- Follow the instructions from the will and distribute all of the remaining property accordingly.
- Close probate
Letters Testamentary, What are Those?
Letters Testamentary is a document from the court that states you are legally able to act as the personal authority for the estate of the deceased individual.
The letters are one piece of paper that is stamped and sealed by the court allowing you to access the deceased’s bank accounts, property and all of their assets.
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