There are a number of ways assets can be transferred to a person’s beneficiaries at death. Many accounts allow a person to name a beneficiary, in which case the account automatically transfers upon death. In the case of jointly owned properties, the surviving party will often automatically own the entire property at the death of the deceased. If assets are held in a trust, the trustee can follow the instructions outlined in the Trust Agreement to distribute trust assets. For other assets, however, a court order is needed to transfer ownership from one person (the deceased) to another. This requires probate.
To start probate, someone must file a Petition with the court. If the deceased left a Will, then the person named in the Will as the personal representative should file the Petition. If there is no Will, then an heir or a creditor can file the Petition. The court will officially appoint a personal representative, who will be responsible for collecting the decedent’s assets, paying the decedent’s debts (with the decedent’s assets), and notifying heirs, beneficiaries and creditors. The personal representative should keep careful account of everything that comes in and out of the estate. The personal representative should be careful not to commingle personal funds with the decedent’s funds. After all objection and claim periods have passed, the personal representative asks the court for authority to distribute the remaining assets to the heirs and devisees (people named in the Will). If the decedent left a Will, then the personal representative should distribute the assets under the terms of the Will. If the decedent did not leave a Will, then the assets should be distributed as described by Oregon statute – generally to the closest relative or relatives.
If the value of the decedent’s property is under a certain amount, then a more streamlined process is available. This is called a Small Estate Affidavit.
If you are facing the need to initiate probate proceedings – or just have questions as to whether probate is necessary – Larson Family Law can help.