Ades

ADMINISTERING
OREGON ESTATES
2012
REVISION
NOTE: This package contains the 2012 revision of

Administering Oregon Estates, with tab dividers. This revision completely replaces the 2004 revision and 2006 supplement. Place the
tab dividers in front of the appropriate chapters and insert the pages
into your empty Administering Oregon Estates binder.
If you have any comments regarding this publication, please
call 503-431-6345 (toll-free in Oregon 1-800-452-8260, ext. 345).
To order OSB Legal Publications, please call the Service Desk at
503-684-7413 or toll-free in Oregon, 1-800-452-8260, ext. 413, or
visit www.osbar.org.
ADMINISTERING
OREGON ESTATES
2012
REVISION
The Oregon State Bar Legal Publications resources are designed to help
lawyers maintain their professional competence. Although all material in this book is
reviewed carefully before publication, in dealing with specific legal matters the
lawyer should research original sources of authority. Neither the Oregon State Bar
nor the contributors make either express or implied warranties regarding the use of
these materials. Each lawyer must depend on his or her own research, knowledge of
the law, and expertise in using or modifying these materials.
Drafting forms is essentially rendering legal advice. No handbook can assume
that responsibility. The responsibility ultimately rests with the individual lawyer. The
forms in this book are suggested only. They have been carefully checked for
conformity with the law. Still, the facts in every case inevitably require a variation
from the published form. The forms are offered here for the limited purposes of
illustrating the text and encouraging the elimination of obsolete and superfluous
language.
The case citations in this book were Key Cite checked through December 12,
2012. The ORS citations were checked through 2012.
Printing History:
First edition ..................................................1970
Second edition ..............................................1972
Third edition.................................................1977
Supplement ..................................................1983
Supplement ..................................................1986
Fourth edition ...............................................1991
Supplement ..................................................1996
Cumulative supplement ...............................2000
Legislation supplement ................................2002
Fifth edition..................................................2004
Legislative supplement ................................2006
Sixth edition .................................................2012
NOTE: This edition completely replaces the 2004 edition and

2006 legislative supplement.
This handbook may be cited as:

ADMINISTERING OREGON ESTATES (OSB Legal Pubs 2012)
Library of Congress Catalog Card No. 91-60289
8 2012 by the Oregon State Bar
ISBN 1-879049-16-3
OREGON STATE BAR

BOARD OF GOVERNORS
Mitzi M. Naucler, President
Michael E. Haglund, President-Elect
Barbara M. DiIaconi, Vice President
Steve D. Larson, Vice President
Jenifer S. Billman (public member)
Hunter B. Emerick
Ann L. Fisher
Michelle C. Garcia (public member)
Matthew H. Kehoe
Ethan D. Knight
Theresa M. Kohlhoff
Tom Kranovich
Audrey T. Matsumonji (public member)
Kenneth S. Mitchell-Phillips
Maureen C. OConnor (public member)
Travis S. Prestwich
Richard G. Spier
David Wade
OREGON STATE BAR

EXECUTIVE DIRECTOR
Sylvia Stevens
EDITORS:
JONATHAN A. LEVY, A.B., Harvard College (1977); J.D., University of
Michigan Law School (1982); member of the Oregon State Bar
since 1988; partner, Cavanaugh Levy Bilyeu LLP, Portland.
PHILIP N. JONES, B.A., Lewis & Clark College (1973); J.D., Lewis &
Clark Law School (1976); member of the Oregon State Bar since
1976; partner, Duffy Kekel LLP, Portland.
OREGON STATE BAR

LEGAL PUBLICATIONS STAFF
Linda L. Kruschke, Director
Jenni Abalan, Administrative Assistant
Lorraine Jacobs, Coordinating Attorney Editor
Dean Land, Attorney Editor
Cheryl L. McCord, Attorney Editor
Karen L. Zinn, Attorney Editor
Stacey Malagamba, Production Coordinator
Mauri Baggiano, of iNTELLiNDEX, Indexer
EDITORS PREFACE
This volume represents the sixth edition of Administering Oregon
Estates since its original publication in 1970. A number of substantial
changessome appearing in the 2006 supplement and some new to this
latest revisionhave been made since the 2004 fifth edition. These
changes reflect Oregons statutes regarding orders and judgments;
changes to the small estate statute; revisions to the anatomical gift
statutes; registration of domestic partners; the authorization of transfer on
death deeds; the revamp of the spousal elective share; the significant
increase in the federal estate tax exemption; the revisions to the Oregon
estate tax (formerly known as the Oregon inheritance tax) and its
continuing disconnect from the federal estate tax; and many other
changes.
As always, we are indebted to the chapter authors of this and
previous editions, and the untold hours of work they have contributed to
the cause. Without their generosity, probate lawyers and judges in
Oregon would have many more trails to blaze and thickets to untangle.
We would appreciate hearing from readers who have comments or
corrections to offer.
JONATHAN A. LEVY
PHILIP N. JONES
Editors
CONTENTS
Alternatives to Probate .......................................David C. Streicher
Probate Jurisdiction and Procedures ..................... Nikki C. Hatton
3
4
Preadministration Procedures............................. Holly N. Mitchell

Intestate Succession, Wills,
and Community Property ................................ Melinda Leaver Roy
Initiating Probate and

Small Estate Proceedings ...................................... Lisa N. Bertalan
Special Considerations ............................................... Janice Hatton

Leslie Sutton
Initial Responsibilities and Liabilities

of Personal Representative ................................ William D. Brewer
Nicholas Frost
Rights of Interested Persons .............................Timothy J. Wachter
Claims Against the Estate ................................... Helen Rives Pruitt
10
Managing Estate Assets ....................................... Jonathan A. Levy

Katie Groblewski
11
Accounting, Distribution, and Closing ................. Sam Friedenberg

Amy Bilyeu
12
Federal Estate Tax .............................................Steven A. Nicholes
13
Generation-Skipping Transfer Tax ..................... Richard W. Miller
14
Oregon Estate Tax ................................................... Philip N. Jones

Jeffrey M. Cheyne
15
Litigation ................................................................... Jan K. Kitchel

Katherine VanZanten
Table of Forms
Table of Statutes and Rules
Table of Cases
Subject Index
Chapter 1
ALTERNATIVES TO PROBATE
DAVID C. STREICHER, B.S., Portland State University (1979); J.D., University of
Oregon School of Law (1984); member of the Oregon State Bar since 1984;
member, Black Helterline LLP, Portland.
The author acknowledges the work of D. Charles Mauritz and Kimberly K. Tellin,
who contributed to the prior edition of this chapter.
1.1
INTRODUCTION ..................................................................... 1-3
1.2
GENERAL OVERVIEW OF PROBATE ................................. 1-3
1.3
PROBATE PROPERTY AND NONPROBATE

PROPERTY DEFINED ............................................................ 1-5
1.4
ASSESSING THE NEED OR DESIRABILITY FOR

PROBATE ................................................................................. 1-6
1.5
1.4-1
In General ..................................................................... 1-6
1.4-2
Perfecting Chain of Title .............................................. 1-6
1.4-3
Resolving Disputes Among Heirs and

Beneficiaries ................................................................. 1-7
1.4-4
Protecting Against Creditors Claims ........................... 1-7
1.4-5
Settling Tax Matters and Allocations ........................... 1-7
1.4-6
Value of Probate Assets ................................................ 1-7
NONPROBATE TRANSFERS OF PROBATE

PROPERTY ............................................................................... 1-8
1.5-1
In General ..................................................................... 1-8
1.5-2
Untitled Assets .............................................................. 1-8
1.5-3
Affidavit of Heirship .................................................... 1-8
1.5-4
Small-Estate Affidavits................................................. 1-9
1.5-5
Settlement Agreements ................................................. 1-9
1.5-6
Indemnification Agreements ........................................ 1-9
1.5-7
Transfers of Interests in Closely Held

Businesses ................................................................... 1-10
1-1
2012 Revision
Chapter 1 / Alternatives to Probate
1.6
1.5-8
Real Estate Title Insurance.......................................... 1-10
1.5-9
Real Estate Transfer on Death Deeds ......................... 1-11
1.5-10
Funding Disclaimers Without Probate ........................ 1-11
1.5-11
Community Property ................................................... 1-12
1.5-12
Motor Vehicles ............................................................ 1-13
1.5-13
Bank, Trust Company, or National Bank

Deposits ....................................................................... 1-14
1.5-14
Other Deposits ............................................................. 1-14
1.5-15
Wages .......................................................................... 1-15
1.5-16
Money Due from the State of Oregon......................... 1-15
1.5-17
Bearer Bonds ............................................................... 1-15
1.5-18
Pets .............................................................................. 1-15
TYPES OF NONPROBATE PROPERTY .............................. 1-15

1.6-1
1.7
Right of Survivorship Property ............................... 1-15
1.6-1(a)
Real Property ................................................... 1-15
1.6-1(b)
Personal Property............................................. 1-16
1.6-1(c)
Stocks and Bonds ............................................ 1-16
1.6-1(d)
Contracts Requiring Payment to

Survivor ........................................................... 1-18
1.6-1(e)
Multiple-Party Bank Accounts ........................ 1-18
1.6-2
U.S. Savings Bonds ..................................................... 1-20
1.6-3
Life Insurance.............................................................. 1-21
1.6-4
IRAs, Annuities, and Retirement Plans ...................... 1-22
1.6-5
Social Security Benefits .............................................. 1-22
1.6-6
Veterans Benefits ........................................................ 1-23
PROBATE OF NONPROBATE PROPERTY ........................ 1-23
Form 1-1
Affidavit of Heirship ........................................................ 1-24
Form 1-2
Affidavit Pursuant to ORS 708A.430(2).......................... 1-26
1-2
2012 Revision
Alternatives to Probate / Chapter 1
1.1
INTRODUCTION
Some form of estate administration inevitably occurs on the death

of a person. It can take many forms, ranging from formal probate administration to several informal avenues for transferring the decedents
property to the persons entitled to it under the decedents will or by
operation of law. No single form of estate administration achieves the
desired result in every situation. The lawyer must have a working
knowledge of the alternatives available, and match the most efficient and
economical approach with the underlying facts and circumstances.
Probate is the most common form of administration after death. To
most clients, probate is a mysterious term; they do not know what it
means, but believe it is a costly bureaucratic nightmare that will delay
receipt of their inheritances and should be avoided if at all possible.
Probate is the court-supervised procedure for settling the decedents
liabilities, determining who is entitled to the decedents property, and
making the transfers. Mechanically, probate is effectuated through
approximately a dozen filings with the court over a period ranging from
six months to two years.
As this chapter demonstrates, probate is not always necessary or
desirable. The lawyer must look ahead and identify potential circumstances that may tilt one way or the other on the decision whether to
commence probate administration. The ability to make this judgment call
is the mark of capable probate counsel.
1.2
GENERAL OVERVIEW OF PROBATE
Probate requires the appointment of a personal representative

(referred to as the executor in some states). If the decedent dies testate,
the personal representative ultimately appointed is usually the first
nominee named in the decedents will. If the decedent dies intestate, the
personal representative is usually the decedents spouse, child, or close
relative. See ORS 113.085. In many counties (including Multnomah
County), petitioners who lack preference under ORS 113.085 will usually
not be appointed. Among petitioners with equal preference, the first to
file will usually be appointed. See chapter 5.
1-3
2012 Revision
For testate estates, the will is proved and admitted by the court.
Proof is usually through an affidavit of attesting witnesses to the will. See
ORS 113.055(1). See also 5.2-4(a) to 5.2-4(b).
Within 30 days after the appointment of the personal representative, the heirs, devisees, and persons described in ORS 113.035(8)
(9) are notified of the decedents death and the pending probate
administration. ORS 113.145(6). See 2.5-1 to 2.5-7, 7.3-1(a).
The personal representative identifies and values the assets of the
estate and, within 60 days after appointment, files an inventory with the
court. ORS 113.165. See 7.4-1 to 7.4-6.
The personal representative must make a reasonably diligent
search for creditors of the estate and provide them with notice of the
probate proceeding. ORS 115.003. Unidentified creditors are notified by
publishing notice of the personal representatives appointment once in
each of three consecutive weeks in a local newspaper of general
circulation. ORS 113.155(1). Each creditor must file a claim against the
estate for debts owed by the decedent no later than 30 days after personal
notice is mailed or four months after the newspaper notice is published,
whichever occurs later. ORS 115.005(2). If the claim is not filed within
the applicable period, the underlying debt is either subordinated to timely
filed claims or is barred. ORS 115.005(3). A different procedure applies
to mortgage loans and other secured debt. See chapters 7, 9.
As appropriate, the personal representative liquidates some or all
of the decedents property and pays allowed claims and expenses of
administration. See, e.g., chapters 7, 10.
The personal representative files any required state or federal
income and death tax returns and pays any taxes due. See ORS
114.305(17). See also 7.6-1 to 7.6-6(p); chapters 1214.
After completion of the foregoing steps, the personal representative files a final account with the court. ORS 116.083(3). See
chapter 11.
1-4
2012 Revision
After court approval of the final account, the assets of the estate
are distributed to the beneficiaries under the will or to the heirs at law.
ORS 116.113. See 11.8-2 to 11.8-2(d).
CAVEAT: Probate is deceptively complicated. Although
generic probate filings can be routine, there are ample
opportunities for malpractice. If claims are not disallowed within
60 days, they are deemed allowed. ORS 115.135(1). Death taxes
must be paid within nine months after the decedents death or there
will be substantial penalties (usually 5% per month). See, e.g.,
ORS 118.260(4); IRC 6651(a)(1). Death taxes may have to be
apportioned among various classes of beneficiaries. It may be
necessary to select a fiscal taxable year so that excess deductions
are transferred to the beneficiaries under IRC 642(h), and not lost.
It may be necessary to fund tax-planning trusts based on a formula
clause in the will. Although not technically part of the probate, tax
guidance on distributions from IRAs is often necessary. This list
could go on for pages. Supervision by an experienced probate
lawyer with a tax background is recommended.
1.3
PROBATE PROPERTY AND NONPROBATE PROPERTY

DEFINED
Broadly speaking, probate property is any asset for which title or

ownership does not automatically transfer by survivorship, beneficiary
designation, contract, or operation of law on a decedents death. The type
of propertytangible or intangible, personalty or realtyis not relevant.
Instead, the focus is on the form of ownership.
Ownership or title is usually evident from monthly statements (for
bank or brokerage accounts) or commonly used documents, such as
deeds for real property, certificates for stocks and bonds, and certificates
of title for vehicles. Such documentation may be particular to items such
as patents, mineral and royalty interests, or interests in sole proprietorships and informal partnerships. Finally, most tangible personal
property (e.g., personal effects, household furnishings, and currency) has
1-5
2012 Revision
no formal ownership documentation, which can be problematic in a

second marriage or contentious family situation.
For purposes of this chapter, nonprobate property is property that
automatically transfers at death without probate. This chapter discusses
several types of nonprobate property, including:
(1) Property that transfers by form of ownership to the survivor
on the decedents death (e.g., tenancy by the entirety real property and
joint bank accounts);
(2) Property that transfers by beneficiary designation on the
decedents death (e.g., payable-on-death accounts, IRA accounts,
annuities, life insurance, and trusts); and
(3) Property having a statutory nonprobate status (e.g., Social
Security and veterans benefits).
1.4
1.4-1
ASSESSING THE NEED OR DESIRABILITY FOR

PROBATE
In General
Most estates include at least some probate property, but this does
not automatically mean that probate is necessary or desirable. No Oregon
statute requires a probate simply because the estate contains probate
assets. The necessity of probate hinges on the purposes to be
accomplished and the adequacy of nonprobate means to achieve these
results. Factors to consider when assessing the need or desirability of
commencing a probate are discussed in 1.4-2 to 1.4-6.
1.4-2
Perfecting Chain of Title
Perhaps the most obvious purpose of probate is to transfer title to

property. The personal representatives conveyance establishes the
legitimacy of the successors interests. Real estate is the most commonly
affected class of property for which the chain of title is critical. Probate
can resolve past title deficiencies and ensure that the successor can sell
the property without title complications.
1-6
2012 Revision
1.4-3
Resolving Disputes Among Heirs and Beneficiaries
Most nonprobate alternatives require cooperation and agreement

among all interested parties. If this is not realistic, or if there are disputes
among heirs and devisees, probate is probably necessary to bring a
conclusive resolution. See 1.5-5.
1.4-4
Protecting Against Creditors Claims
Probate assets transferred without probate administration generally

remain subject to all claims available against the decedent. Conversely, a
probate insulates the successors from all unsecured claims. Particular
attention should be paid to potential claims against the decedent for
guarantees of business indebtedness, professional negligence, and
personal injuries. These potential liabilities may warrant probate even
though nonprobate alternatives are available.
1.4-5
Settling Tax Matters and Allocations
The absence of a probate proceeding does not avoid the obligation

to file income tax returns and death tax returns and to pay all outstanding
taxes. See 7.6-1 to 7.6-6(p); chapters 1214. A probate will identify the
person or persons liable for taxes. Without a probate, tax liabilities may
unknowingly attach via transferee liability to the heirs or devisees. A
probate may cause these taxes to be apportioned to, and deducted from,
their shares, but this will extinguish their personal liability.
1.4-6
Value of Probate Assets
As a practical matter, the use of nonprobate means to transfer

probate property becomes less desirable and more difficult as the value of
the property increases. For example, real estate is typically transferred
through probate because the value usually warrants expending the time
and resources necessary to avoid future title problems. In addition, a
small-estate affidavit cannot be used if the value of the estate exceeds the
dollar amounts discussed in 1.5-4 and 5.3-2.
1-7
2012 Revision
1.5
1.5-1
NONPROBATE TRANSFERS OF PROBATE PROPERTY

In General
The objective of transferring probate property through nonprobate

means is to achieve a valid transfer in a more efficient and economical
manner. The quality of the title received is largely based on whether third
parties (e.g., purchasers, title companies, transfer agents, and banks) will
respect the transfer. The risk of nonprobate transfers is that potential
creditors will not be barred. Techniques for transferring probate property
through nonprobate means are discussed in 1.5-2 to 1.5-18.
1.5-2
Untitled Assets
Assets without formal documents of title are generally assumed to

be owned by the person in possession. Such assets include currency,
personal effects, sole proprietorship equipment, household furnishings,
and jewelry. The key document memorializing distribution of these items
is a receipt acknowledging delivery and possession. Business assets may
warrant a Uniform Commercial Code search to confirm that they are not
encumbered by security interests. If so, the interested parties should
investigate the status of the underlying debt and consider abandoning the
item or requiring the recipient to sign an agreement assuming the debt.
1.5-3
Affidavit of Heirship
An affidavit of heirship is a verified statement of the facts

surrounding a proposed distribution. It typically includes the same
information required under ORS 114.525 for a small-estate affidavit. See
1.5-4, 5.3-3(a). Many financial institutions and insurance companies
have preprinted forms available. The purpose of the affidavit is to
substantiate the right to receive property from a decedent, or to create a
public record of the chain of title to a particular asset or from a particular
ancestor. The affidavit is not a transfer document in itself, but merely
substantiates the interests of the heirs and devisees. An affidavit given to
authorize the transfer of property in the possession of a third party is
usually combined with an indemnification agreement. An example of an
affidavit of heirship is included as Form 1-1.
1-8
2012 Revision
1.5-4
Small-Estate Affidavits
When a probate is unavoidable, a lawyer should evaluate whether

to use a small-estate affidavit under ORS 114.505114.560. Under current law, the small-estate affidavit procedure is available if the probate
estate contains no more than $75,000 of personal property, no more than
$200,000 of real property, and no more than $275,000 in the aggregate.
ORS 114.515(2). Estates within these limits may be transferred by filing
an affidavit with the court, rather than a full probate. This approach is
usually faster and cheaper, albeit with several drawbacks. A detailed
discussion of the small-estates law is set forth in 5.3-1 to 5.3-8(d).
1.5-5
Settlement Agreements
Probate is frequently used to settle disputes among heirs and to

determine the persons to whom third parties may transfer estate assets. If
the assets in dispute are transferable by nonprobate means, a settlement
agreement among the parties may be sufficient. The basis of the
settlement agreement is contract law rather than the probate statutes. The
primary limitation of a settlement agreement is that it binds only the
parties to the agreement. Consequently, unnamed parties may still assert
an interest in the estate, which may cause third parties to insist on a
probate. Conversely, a probate settles the interests of all parties in the
assets of the estate, whether or not the parties are identified.
1.5-6
Indemnification Agreements
Third parties having a direct or indirect interest in assets of an

estate may be willing to participate in a nonprobate administration if they
are adequately protected from liability. For example, a title company may
agree to insure a successors title on presentation of an affidavit of
heirship and an agreement holding the title company harmless from any
defects in title not appearing on their records. See 1.5-8. A similar
arrangement may be acceptable to a transfer agent who is requested to
informally transfer shares in a closely held business. An indemnification
agreement is not a transfer document; it merely shifts the risk of a title
defect away from the person in possession to those who receive it, or who
have the benefit of the recognition of their ownership. Indemnity
1-9
2012 Revision
agreements have no specific terms and are wholly subject to the

negotiations between the parties involved.
1.5-7
Transfers of Interests in Closely Held Businesses
Absent a payable-on-death designation, publicly traded securities

are difficult to transfer without probate. If the decedent holds the
certificates, the transfer agent will inevitably demand letters testamentary. The same is generally true if the securities are held in street
name in a brokerage account.
Shares of closely held businesses are different. Third-party transfer
agents are rarely used. If the other owners cooperate, interests in such
businesses can often be transferred on the entitys books with only
modest supporting documentation. In general, a business entitys
ownership of its assets is not affected by transfers of interests in the
entity itself. There are, however, exceptions. For example, if individual
partners are the record owners of partnership assets, an informal transfer
of a partnership interest may need to be coupled with a formal record
transfer (such as a deed) of the underlying assets.
For securities and security accounts transferable on death to a
named beneficiary, see 1.6-1(c).
1.5-8
Real Estate Title Insurance
If the sole purpose of a probate is to establish marketable title to

real property, this result may be achieved through title insurance. Albeit
in limited circumstances, title companies may be willing to insure title to
real property without a probate or small-estate affidavit.
A universal prerequisite is that all devisees and heirs at law sign an
affidavit of heirship similar to that described in 1.5-3. If one or more
heirs are excluded as owners of the property (or if the county will not
record a stand-alone affidavit of heirship), quitclaim deeds will also be
necessary to vest title in the owners.
Finally, the title insurance premium may be increased by
approximately 100%, 50%, or 25% of the normal rate, depending on
whether the sale occurs within six years after the decedents death, six to
15 years after death, or more than 15 years after death, respectively. Real
1-10
2012 Revision
property insured without a probate or small-estate affidavit typically has

a value of $200,000 or less.
1.5-9
Real Estate Transfer on Death Deeds
Effective January 1, 2012, Oregon enacted the Uniform Real

Property Transfer on Death Act (URPTDA), ORS 93.94893.979. In
general, the URPTDA allows an individual to execute and record a deed
during his or her life that is not effective until his or her death. See ORS
93.961, 93.969. The deed can be revoked at any time during life, and
does not prevent the grantor from encumbering or conveying the
property. See ORS 93.955, 93.967, 93.977.
Oregons URPTDA deviates from the uniform act by giving
interested parties 18 months after the transferors death to challenge the
deed on grounds of incapacity, fraud, duress, or undue influence. ORS
93.959(3).
PRACTICE TIP: If real property is the decedents only probate
asset, the lawyer should check for a transfer-on-death deed before
commencing probate.
1.5-10 Funding Disclaimers Without Probate
Disclaimer wills are a popular tax-planning vehicle. In general, the
will states that all the decedents property passes to the surviving spouse,
except to the extent the spouse disclaims any of the property. The
disclaimed property typically passes to a credit-shelter trust for the
benefit of the spouse.
Disclaimer wills are often used for couples who have only modest
death-tax exposure and may not need a credit shelter trust. Usually, all
their property is jointly owned and would (absent a disclaimer) pass free
of probate when the first spouse dies. This begs the question whether a
probate is necessary to effectuate a disclaimer of a one-half interest in
jointly held property. As an alternative, the surviving spouse might
convey a one-half interest to the credit shelter trust within nine months
after death, and note on the instrument of conveyance or a side agreement
that the spouse has not accepted any interest in the decedents one-half
interest and is making a direct conveyance as a means of effectuating a
1-11
2012 Revision
disclaimer without a probate. Some lawyers use variations of this

technique.
The literal language of IRC 2518(c)(3) suggests that a direct deed
is a qualified disclaimer if it is executed and delivered within nine
months after death, and the disclaiming party accepts no interest or
benefits in the disclaimed property. However, rulings and cases suggest
otherwise. In IRS Tech Adv Mem 200437032 (Sept 10, 2004), the IRS
took the position that IRC 2518(c)(3) treats a direct transfer as a
qualified disclaimer only if a state-law disclaimer is not available. This is
consistent with the IRS ruling in Priv Ltr Rul 9135043 (Aug 30, 1991)
that a direct deed from a surviving spouse was treated as a disclaimer
because state law barred a surviving joint tenant from disclaiming any
interest created by his or her contributions. Finally, the Tax Court denied
disclaimer treatment for disclaimers delivered to the personal
representative within nine months after death, but not filed with the court
(as required under state law) until after the nine-month deadline. Estate of
Bennett, 100 TC 42 (1993). Thus, if there is no state-law impediment to
executing qualified disclaimers and effectuating the transfer through
probate, it is uncertain whether IRC 2518(c)(3) causes direct deeding to
be treated as a qualified disclaimer.
1.5-11 Community Property
An in-depth analysis of community property and avoiding probate
with community-property agreements is beyond the scope of this
publication. Rather, the following discussion is merely intended to assist
lawyers in identifying probate issues related to community property.
In general, a decedents interest in community property does not
automatically pass to the surviving spouse, nor does the surviving spouse
have elective-share rights against the decedents interest. Instead, the
decedents interest passes under the decedents will or by intestate
succession, both of which usually necessitate a probate. In communityproperty jurisdictions, spouses frequently use a community-property
agreement to override these default rules. Typically, the communityproperty agreement attaches a right of survivorship, which avoids
probate. See, e.g., RCW 26.16.120. In Washington, for example, a
1-12
2012 Revision
transfer of a decedents community-property interest in real estate to the

surviving spouse is memorialized by recording the community-property
agreement and a death certificate in the local deed records. See
SHERLAND, NONPROBATE TRANSFERS, WSBA PROBATE DESKBOOK 4.4
(2005) (citation not verified by publisher).
QUERY: Do these dispositive rules or community-property
agreements apply to (1) Oregon property purchased by residents of
a community-property state, or (2) Oregon property purchased by
Oregon residents with the proceeds of community property?
Maybe. The determination is based on Oregons version of the
Uniform Disposition of Community Property Rights at Death Act
(UDCPRDA), ORS 112.705112.775, which generally preserves
dispositive rights similar to those of the current or former
community-property jurisdiction. As a practical matter, the issue is
usually overlooked. Oregon real property owned by married
persons is usually titled as husband and wife, which (as a tenancy
by the entirety) passes by right of survivorship. The parties do not
realize or care that the UDCPRDA might be used to defeat the
right of survivorship. However, in a second marriage scenario, for
example, the decedents children might look to the UDCPRDA to
defeat rights of survivorship or an elective share. For an extensive
discussion of the UDCPRDA, see 4.3 to 4.3-5.
1.5-12 Motor Vehicles
The transfer at death of an interest in a vehicle is governed by ORS
803.094. The statute sets forth certain procedures that must be followed
for the Driver and Motor Vehicle Services Division (DMV) to transfer an
interest in a vehicle if the decedents estate is not being probated. ORS
803.094(2)(b)(c). See Oregon DMV Form 516 (Inheritance Affidavit) or
Oregon DMV Form 6797 (Small Estate Certification). Both forms are
available at <www.oregon.gov/ODOT/DMV/pages/form/forms.aspx>.
Local offices of the DMV are usually willing to assist in the completion
of these forms.
1-13
2012 Revision
1.5-13 Bank, Trust Company, or National Bank Deposits

A bank may, but is not required to, disburse a deceased depositors
account of $25,000 or less if the claimant furnishes the affidavit
prescribed in ORS 708A.430(2). This procedure is available only if the
decedents aggregate deposits in all Oregon financial institutions (e.g.,
banks and credit unions) do not exceed $25,000. ORS 708A.430(2)(b).
The deposit is payable in the following order of priority: (1) the
surviving spouse, (2) the Oregon Health Authority or the Department of
Human Services (if it has filed a claim), (3) the surviving children who
are age 18 or older, (4) the surviving parents, or (5) the surviving
brothers and sisters who are age 18 or older. ORS 708A.430(1).
Except when the claimant is the surviving spouse, the bank must
wait 75 days after the date of the depositors death before disbursing the
deposit, unless the bank first confirms that neither the Oregon Health
Authority nor the Department of Human Services has a claim. ORS
708A.430(1)(b).
In the affidavit, the claimant must promise to pay all the decedents
debts (including medical and funeral costs) up to the amount of the
deposit, and disburse the remaining money to the persons entitled to it
under Oregon law. ORS 708A.430(2)(d). If a personal representative is
appointed, the claimant must account for the deposit to the personal
representative. ORS 708A.430(5). See Form 1-2 for an example of an
ORS 708A.430(2) affidavit.
1.5-14 Other Deposits
Provisions similar to those in ORS 708A.430 (see 1.5-13) also
apply to a decedents deposits held by mutual savings banks and credit
unions. ORS 716.024, 723.466.
Similarly, a cooperative may pay up to $10,000 to the surviving
spouse, adult children, parents, or adult siblings, in that order, for the
redemption or refund value of a decedents capital credit or retains with
the cooperative, if permitted by the bylaws of the organization. ORS
62.430.
1-14
2012 Revision
1.5-15 Wages
Wages earned by the decedent not in excess of $10,000 are payable
to the surviving spouse or, if there is no surviving spouse, to the
dependent children or their guardian or conservator. ORS 652.190.
1.5-16 Money Due from the State of Oregon
The payment of money due from the state of Oregon to the
decedent may be made on compliance with the provisions of ORS
293.490293.500. Except for payment of salary or wages of a deceased
state employee, no payment under those statutes may exceed $10,000.
1.5-17 Bearer Bonds
Securities (usually bonds) payable to the bearer can be transferred
by delivery. Although probate is not required, it may be appropriate.
1.5-18 Pets
Any animal being kept as a pet by the decedent and having a value
of less than $2,500 may be delivered to a member of the family, a friend
of the decedent, or an animal shelter as temporary custodian. The animal
is not required to be listed as an asset in the inventory of the estate. The
custodian of the animal must deliver it to the heir or devisee entitled to it
on request of the personal representative, heir, or devisee. ORS
114.215(3).
1.6
1.6-1
TYPES OF NONPROBATE PROPERTY
Right of Survivorship Property
One means of avoiding probate is to own property with another

person in such a manner that the decedents interest in the property
automatically passes to the survivor at the decedents death. See 1.61(a) to 1.6-1(e).
1.6-1(a)
Real Property
Absent specific language to the contrary, a conveyance to a

husband and wife, as such, creates a tenancy by the entirety. ORS
93.180(1)(b). Immediately after the death of either spouse, the survivor
owns the entire interest in the property. No postmortem action is
1-15
2012 Revision
necessary to accomplish this resultexcept, perhaps, to record a death

certificate in the county where the property is located.
If tenants by the entirety sell real property for an installment note
secured by the property, and one of them dies before all payments are
received, the surviving spouse automatically has the right to receive all
the remaining payments, unless a contrary intention is expressed in the
instrument of conveyance. ORS 93.240(2).
A right of survivorship can be attached to property conveyed to
unmarried persons by adding the phrase as joint tenants with right of
survivorship after the grantees names. ORS 93.180(1)(a). Merely
adding the words joint tenants, without mention of survivorship,
creates a tenancy in common. ORS 93.180(3).
1.6-1(b)
Personal Property
Oregon law specifically provides for a joint tenancy with right of

survivorship in personal property. ORS 105.920. It is created by a written
instrument that expressly declares the interest created to be a joint
tenancy with right of survivorship.
1.6-1(c)
Stocks and Bonds
If marketable securities are held in a brokerage account (i.e., in

street name), they may be transferred at death free of probate by
designating a beneficiary pursuant to the account agreement.
Alternatively, if the brokerage account is jointly owned, it normally
passes by right of survivorship. The specific requirements are controlled
by the account agreement.
CAVEAT: If X transfers stock to X and Y as joint tenants with
right of survivorship, but X intends merely to use the transfer to
avoid probate and has no intent to transfer a present interest, the
transaction is testamentary and void. See Neuschafer v. McHale, 76
Or App 360, 367369, 709 P2d 734 (1985).
A different procedure applies when marketable securities are
registered directly by the issuer to the decedent, who may have
possession of the stock certificates or own the shares in book entry
form. Such securities may be transferred at death without probate
1-16
2012 Revision
through a payable-on-death designation conforming to the applicable

Uniform TOD Security Registration Act. The following commentary is
based on Oregons version of the Uniform TOD Security Registration
Act, which is found at ORS 59.53559.585.
Direct owners may register a beneficiary to whom the securities or
accounts will be transferred at the owners death. If multiple owners hold
the securities as tenants in common, they cannot register a beneficiary.
ORS 59.540. Multiple owners may register a beneficiary only if their
ownership is with right of survivorship, in which case the registered
beneficiary receives the securities after the death of the last surviving
owner. ORS 59.565.
The registering entity may use abbreviations to show the
beneficiary designations. Acceptable formats include TOD (for transfer
on death) or POD (for pay on death) after the name of the registered
owner and before the name of the beneficiary. ORS 59.555. Also
appropriate are abbreviations such as LDPS, which means that if the
named beneficiary predeceases the owner, his or her lineal descendants
per stirpes are substituted as beneficiaries. ORS 59.580. A registration in
beneficiary form may be changed or canceled at any time by the owner or
owners without the consent of the beneficiary. ORS 59.560.
On the death of the last surviving owner, the registering entity may
re-register the security in the beneficiarys name on receiving proof of
death of all owners and compliance with any applicable requirements of
the registering entity. ORS 59.565. If no named beneficiary survives, the
security belongs to the estate of the deceased sole owner or the estate of
the last to die of all multiple owners. ORS 59.565.
Registering entities are not required to offer or to accept requests
for security registration in beneficiary form. ORS 59.570(1). Registering
entities are discharged from liability for registering or transferring a
security, if done in good-faith reliance on the registration, the Uniform
TOD Security Registration Act, and the information provided in an
affidavit by the claiming beneficiary or certain other persons. ORS
59.570(3).
1-17
2012 Revision
1.6-1(d)
Contracts Requiring Payment to Survivor
A contract providing for the payment of money (or the delivery of

property) to a survivor is valid. Beach v. Holland, 172 Or 396, 412, 142
P2d 990 (1943); Leibee v. Leibee, 220 Or 256, 264265, 349 P2d 486
(1960). If such a contract exists, the interest of the decedent is not subject
to probate.
1.6-1(e)
Multiple-Party Bank Accounts
Joint bank accounts are a popular vehicle for transferring wealth at

death without probate. They are also used by individuals (usually elderly)
who need the assistance of a child or friend in handling banking matters;
such accounts are often referred to as convenience accounts. These
objectives are in conflict when the person added as a party to the account
is not the intended beneficiary of the account at the owners death.
Another nuance lost on some clients is that rights of survivorship arising
from a joint account trump the owners will. ORS 708A.470(5). It is an
understatement that joint accounts are a frequent source of probate
disputes.
Sums remaining on deposit in a bank at the death of a party to a
joint account are rebuttably presumed to belong to the surviving party or
parties as against the estate of the decedent. ORS 708A.470(1). If there
are two or more surviving parties, a determination of their respective
interests involves a hypothetical division of the account into two
components. First, to the extent that the surviving parties have made
contributions to the account, their ownership is in proportion to each
partys net contributions. Second, the portion of the account attributable
to the decedents contributions is allocated to the surviving parties in
equal shares. The right of survivorship continues between the surviving
parties. ORS 708A.470(1). The rebuttable-presumption standard also
applies to credit union accounts. ORS 723.480(1).
The rebuttable presumption in ORS 708A.470(1) may be
overcome by evidence that the decedent intended a different result or
lacked capacity when the joint account was established. ORS
708A.470(6).
1-18
2012 Revision
Even if a claimant successfully rebuts the survivorship presumption of ORS 708A.470, a bank is not liable for distributing the
account to the surviving party unless the bank receives prior notice of the
adverse claim, and the claimant proceeds under ORS 708A.435. ORS
708A.470(7). To prevent immediate payment to the surviving party, the
claimant must give notice to the bank and either (1) procure a restraining
order or injunction against the bank in an action joining the surviving
party, or (2) deliver to the bank a surety bond or irrevocable letter of
credit indemnifying the bank against liability. ORS 708A.435(1). A bank
may, on its own initiative, interplead a deposit that is subject to an
adverse claim. ORS 708A.435(3). In this manner, a bank can avoid
immediate payment to the surviving party, even if the complaining party
has not complied with ORS 708A.435(1). Newton v. Bank of the W., 183
Or App 347, 351, 51 P3d 1281 (2002).
ORS 708A.470(7) effectively extricates banks from disputes over
ownership of joint accounts. Given the heavy burden of ORS
708A.435(1)which requires an injunction, restraining order, surety
bond, or letter of creditmost claimants will be reluctant to try to
prevent a bank from disbursing a joint account to the surviving party.
If the account is a POD account:
(a)
On the death of one of two or more original parties, the
rights to any sums remaining on deposit are governed by [ORS
708A.470(1)].
(b)
On the death of the sole original party or the survivor of
two or more original parties, any sums remaining on deposit belong to
the P.O.D payee or payees, if surviving, or to the survivor of them if
one or more die before the original party. If two or more P.O.D payees
survive, there is no right of survivorship in the event of death of a
P.O.D payee thereafter unless the terms of the account or deposit
agreement expressly provide for survivorship between them.
ORS 708A.470(2).
If the account is a trust account:
(a)
On the death of one of two or more trustees, the rights
to any sums remaining on deposit are governed by [ORS
708A.470(1)].
1-19
2012 Revision

(b)
On the death of the sole trustee or the survivor of two or
more trustees, any sums remaining on deposit belong to the person or
persons named as beneficiaries, if surviving, or to the survivor of them
if one or more die before the trustee, unless there is clear and
convincing evidence of a contrary intent. If two or more beneficiaries
survive, there is no right of survivorship in event of death of any
beneficiary thereafter unless the terms of the account or deposit
agreement expressly provide for survivorship between them.
ORS 708A.470(3)(b).
For purposes of ORS 708A.470(3), a trust account is not an
account governed by trust provisions in a will or traditional trust
agreement. Instead, the trustee-beneficiary relationship is based solely on
the deposit agreement with the bank, and affects only the money on
deposit with the bank. ORS 708A.455(12).
In other cases, the death of any party to a multiple-party account
has no effect on beneficial ownership of the account, other than to
transfer the rights of the decedent as part of the estate of the decedent.
ORS 708A.470(4).
A right of survivorship arising from the express terms of the
account or under [ORS 708A.470], a beneficiary designation in a trust
account, or a P.O.D. payee designation, cannot be changed by will. ORS
708A.470(5). In other words, a right of survivorship normally trumps
the will.
1.6-2
U.S. Savings Bonds
If a co-owner named on a U.S. savings bond dies, the survivor is

recognized as the sole owner, and the decedents interest in the bond
passes without probate. The bond will be reissued upon furnishing a
death certificate and a completed Bureau of Public Debt Form 4000.
31 CFR 353.70(b) (Series EE and HH); 31 CFR 360.70(b) (Series I);
31 CFR 315.70(b) (all other Series).
Likewise, if the owner of a bond registered in beneficiary form
dies, the surviving beneficiary is recognized as the sole owner upon proof
of the decedent-owners death. 31 CFR 353.70(c) (Series EE and HH);
1-20
2012 Revision
31 CFR 360.70(c) (Series I); 31 CFR 315.70(c) (all other Series). See
<www.treasurydirect.gov/forms/sav4000.pdf>.
Even if the bonds are property of the decedents estate, transfer
without probate or a small-estate affidavit is possible if (1) the
redemption value is $100,000 or less, (2) no probate administration or
small-estate affidavit is pending or contemplated, and (3) a voluntary
representative steps forward and files Bureau of Public Debt Form 5336.
31 CFR 353.71(e) (Series EE and HH); 31 CFR 360.71(e) (Series I);
31 CFR 315.71(3) (all other Series). See <www.treasurydirect.gov/
forms/sav5336.pdf>.
The voluntary representative may redeem the bonds or distribute
them in kind. The order of preference for a voluntary representative is
similar to that in the Oregon laws of intestate succession. 31 CFR
353.71(e)(3). In Form 5336, the voluntary representative warrants that
the bonds or proceeds will be distributed in accordance with local law.
Form 5336 requires certification of the voluntary representatives
signature, which is usually done with a medallion signature guarantee
stamp. A notary acknowledgment is not acceptable.
1.6-3
Life Insurance
If a decedents estate is the named beneficiary of a life insurance

policy on the decedents life, the proceeds are included in the probate
estate. If an organization or living person other than the estate is the
named beneficiary, the life insurance proceeds are not assets of the
probate estate.
Payment of the insurance proceeds can usually be obtained by
submitting a death certificate and a proof-of-claim form provided by the
insurer. The insurance contract establishes the procedures to be followed.
If no beneficiary survives the insured decedent, the default
provisions of the insurance contract will usually assign the proceeds to
the decedents estate.
PRACTICE TIP: When the designated beneficiary is a former
spouse, the dissolution decree and property-settlement agreement
should be examined. If the property settlement expressly awards
1-21
2012 Revision
ownership of the life insurance policy to the decedent, or divests

the former spouse of beneficial rights in the policy proceeds, the
policy proceeds might belong to the decedents probate estate. See
In re Marriage of Keller, 232 Or App 341, 222 P3d 1111 (2009);
Prudential Ins. Co. v. Weatherford, 49 Or App 835, 621 P2d 83
(1980). The general rule is that divorce, by itself, does not affect
the former spouses rights as a beneficiary of a life insurance
policy. 4 COUCH ON INSURANCE 3D 64.14 (1997) (supplemented
periodically) (citation not verified by publisher).
1.6-4
IRAs, Annuities, and Retirement Plans
Several types of agreements other than life insurance policies

create rights or entitlements that pass to others on the death of the
decedent beneficiary without probate, normally through a beneficiary
designation. These include pension and profit-sharing plans, individual
retirement accounts, and annuities. See 3 ADVISING OREGON BUSINESSES
ch 46 (Oregon CLE 2003 & Supp 2009); ELDER LAW ch 3 (Oregon CLE
2000 & Supp 2005).
1.6-5
Social Security Benefits
On the death of a person receiving Social Security benefits, no

benefit is payable for the month of death. For example, if the person dies
in July, the benefit received in August (which is payment for July) must
be returned. A bank or other financial institution receiving electronic
deposits of Social Security benefits must be notified as soon as possible,
so it can return any payments received after death.
A lump-sum amount (currently $255) is payable by Social Security
to the surviving spouse. 42 USC 402(i). If the surviving spouse is at
least 65 years of age at the decedents death, he or she may be entitled to
monthly Social Security benefits based on the decedents work history.
42 USC 402(b). Reduced benefits may be available if the surviving
spouse is between 60 and 65 years of age. The decedents unmarried
children under age 18 (or up to 19 if attending high school) may also be
entitled to monthly Social Security benefits based on the decedents work
history. 42 USC 402(d). See ELDER LAW ch 4 (Oregon CLE 2000 &
Supp 2005).
1-22
2012 Revision
1.6-6
Veterans Benefits
Monthly veterans benefits are available to the surviving spouse and

children of deceased veterans who were totally disabled from a serviceconnected injury or disease at the time of death, or who died from a
service-connected injury or disease. 38 USC 1318, 38 USC 1310.
Furthermore, if the deceased veteran had wartime service, the surviving
spouse or children may be entitled to benefits based on need, even if no
service-connected disability, injury, or disease was present. 38 USC
15411542.
Other veterans benefits cover reimbursement of a portion of burial
expenses, entitlement of the veteran and certain relatives to be buried in a
national cemetery, and provision of free headstones and memorial
markers. 38 USC 2302, 38 USC 2306, 38 USC 2307, 38 USC 2402.
Inquiries about federal benefits should be made to the Veterans
Administration Office or to a representative. For a detailed list of
veterans benefits, see 38 USC 11012410.
1.7
PROBATE OF NONPROBATE PROPERTY
In both probate estates and nonprobate estates, members of the

family frequently distribute the decedents personal effects, furniture, and
other personalty among themselves without resort to probate. Usually,
the property is of small value, and no purpose would be served to conduct
a formal probate. However, a different conclusion may follow if items
are of sufficient value, such as vehicles, jewelry, artwork, or antiques.
The family members might not agree on who gets what, or (absent a
probate) potential claims of creditors may follow the personal property.
Thus, depending on the values involved, probate may be desirable even
though it is not mandatory.
The protection provided by probate, including insulation from
liabilities and determination of heirs and creditors, is not available
through any other means. But see ORS 130.350130.450 for procedures
governing resolution of creditors claims against assets passing under a
revocable trust.
1-23
2012 Revision
Form 1-1
AFFIDAVIT OF HEIRSHIP
The undersigned, being first duly sworn, states as follows:
1.
I reside at ______________________________________.
2.
I am the [relationship] of the decedent.
3.
The decedent died on ___/___/20___, in _________ County,
in the state of ___________. A copy of the death certificate is attached.
4.
The decedent died owning an interest in the followingdescribed real property:
(a)
5.
any state.
[describe real property]
The decedents estate has not been admitted to probate in
6.
The decedent died [with / without] a will. If the decedent
died with a will, a copy of the will is attached.
7.
If the decedent died with a will, the names, relationships,
and addresses of the devisees under the will are:
Name
Relationship
Address
8.
The names, relationships, and addresses of the decedents
heirs at law (i.e., those who would inherit if the decedent left no will) are:
Name
Relationship
Address
9.
The decedent was not married and had no registered
domestic partner. [Option: The decedents spouse or registered domestic
partner at death was _______________.]
10. The total value of the decedents estate, including the
interest in the above-described property, is $_______.
1-24
2012 Revision
11. No claims have been filed against the decedent, and all
expenses of the decedents last illness and funeral have been paid in full,
or will be paid from the proceeds of the above-described property.
12.
No federal or Oregon estate tax is due.
13. I make this affidavit to induce [name of title insurance

company] to issue its policy of title insurance and to show title in the
name of [intended owner], with full knowledge that [name of title
insurance company] will rely on the representations made herein to
insure title.
DATED: _____________, 20___.
/s/__________________________
[affiants name]
STATE OF __________
County of __________
)
) ss.
)
Personally appeared the above-named _______________, who

acknowledged the foregoing instrument to be [his / her] voluntary act and
deed on _____________, 20___.
/s/__________________________
Notary Public for Oregon
My commission expires: ________
COMMENT: See 1.5-3.
NOTE: See UTCR 2.010 for the form of documents.
CAVEAT: This form is illustrative only. Each lawyer must depend
on his or her own legal research, knowledge of the law, and expertise in
using or modifying this form.
1-25
2012 Revision
Form 1-2
Affidavit Pursuant to ORS 708A.430(2)
[name of bank] Account No. ___________

[name of decedent] (SSN ____-____-____), Deceased ___/___/20___
The undersigned, being first duly sworn, states as follows:

(a) The depositor, [name of decedent], died on __________,
20___, in _________, Oregon. Attached is a copy of [his / her] death
certificate.
(b) The total deposits of [name of decedent] in all financial
institutions in Oregon do not exceed $25,000.
(c) I am [state the relationship of the affiant to the deceased
depositor].
(d) [Name of decedent] was not married at death. The names of
the decedents surviving children and descendants of deceased children
are: ____________________________.
(e) I promise to pay the expenses of the last sickness, funeral
expenses, and just debts of [name of decedent] out of the deposit (to the
full extent of the deposit, if necessary) in the order of priority described
by ORS 115.125, and to distribute any remaining money to the persons
entitled to it by law.
This affidavit is made pursuant to ORS 708A.430, a copy of which
is attached.
DATED: ______________, 20____.
/s/__________________________
[affiants name]
1-26
2012 Revision
STATE OF __________
)
) ss.
)
Personally appeared the above-named ________________, who

acknowledged the foregoing instrument to be [his / her] voluntary act and
deed on ______________, 20___.
/s/__________________________
COMMENT: See 1.5-13.

1-27
2012 Revision
Chapter 2
PROBATE JURISDICTION AND PROCEDURES
NIKKI C. HATTON, B.A., University of Washington (1971); J.D., LL.M., University
of Florida (1976, 1977); member of the Oregon State Bar since 1980 and the
Washington State Bar Association since 2003; shareholder, Schwabe,
Williamson & Wyatt, P.C., Portland.
The author would like to thank Philip N. Jones, Duffy Kekel LLP, for preparing
Appendix 2C (Table of Judgments and Orders in Probate Court).
2.1
RIGHT OF THE STATE TO CONTROL PROBATE

MATTERS ................................................................................ 2-4
2.2
PROBATE JURISDICTION ..................................................... 2-6

2.2-1
Historically ................................................................... 2-6
2.2-2
Jurisdiction Under the Probate Code ............................ 2-6
2.2-2(a)
Subject-Matter Jurisdiction ............................... 2-6
2.2-2(b)
Venue ................................................................ 2-8
2.2-2(c)
Powers of Probate Court ................................... 2-9
2.2-2(d)
Due Process and Jurisdiction ............................ 2-9
2.2-3
Forums for Probate ..................................................... 2-10
2.2-3(a)
Probate Jurisdiction ......................................... 2-10
2.2-3(b)
Transfer from County Court to Circuit

Court ................................................................ 2-10
2.2-3(b)(1)
Discretionary Transfer ...................... 2-10
2.2-3(b)(2)
Mandatory Transfer .......................... 2-11
2.2-3(b)(3)
Procedure for Transfer ...................... 2-11
2.2-3(c)
The Probate Commissioner ............................. 2-11
2.2-3(c)(1)
Generally ........................................... 2-11
2.2-3(c)(2)
Identity and Appointment of

Commissioner ................................... 2-11
2.2-3(c)(3)
Powers of Probate
Commissioner ................................... 2-12
2-1
2012 Revision
Chapter 2 / Probate Jurisdiction and Procedures
2.2-3(c)(4)
2.3
2.4
2.5
2.6
Finality of Commissioners
Orders ................................................ 2-13
VENUE .................................................................................... 2-13

2.3-1
Venue Choices for Probate ......................................... 2-13
2.3-2
Petition for Appointment of Personal

Representative ............................................................. 2-14
2.3-3
Venue as Jurisdictional Defect .................................... 2-14
2.3-4
Second Administration Started in Another

County ......................................................................... 2-14
2.3-4(a)
Generally ......................................................... 2-14
2.3-4(b)
Transfer to Another Court ............................... 2-15
2.3-4(c)
Venue Determined to Be in Original

County ............................................................. 2-15
2.3-4(d)
Accounting by Displaced Personal

Representative ................................................. 2-16
ETITIONS ................................................................................ 2-16

2.4-1
Form ............................................................................ 2-16
2.4-2
Declaration Under Penalty of Perjury ......................... 2-17
2.4-3
Who May Petition ....................................................... 2-17
2.4-4
When Petitions Required............................................. 2-18
NOTICE ................................................................................... 2-18

2.5-1
Generally ..................................................................... 2-18
2.5-2
Notice to Persons Under Disability ............................. 2-21
2.5-3
Manner of Giving Notice ............................................ 2-21
2.5-4
Timing of Notice ......................................................... 2-22
2.5-5
Proof of Notice ............................................................ 2-23
2.5-6
Waiver of Notice ......................................................... 2-23
2.5-7
Effect of Failure to Give Notice .................................. 2-23
HEARINGS.............................................................................. 2-26
2.6-1
When a Hearing Is Required ....................................... 2-26
2.6-2
Conduct of Hearings ................................................... 2-27
2.6-2(a)
2-2
2012 Revision
Generally ......................................................... 2-27
Probate Jurisdiction and Procedures / Chapter 2
2.6-2(b)
Subpoena Powers ............................................ 2-27
2.6-2(c)
Summary Determination of Claims ................ 2-28
2.6-3
2.7
2.8
Stenographic Record................................................... 2-28
ORDERS AND JUDGMENTS ............................................... 2-28

2.7-1
Generally..................................................................... 2-28
2.7-2
Required and Permissible Orders or Judgments......... 2-30
2.7-3
Orders of Probate Commissioner ............................... 2-31
2.7-4
Effect of Violation of Orders ...................................... 2-31
2.7-4(a)
Contempt of Court .......................................... 2-31
2.7-4(b)
Breach of Fiduciary Duty................................ 2-31
PROBATE COSTS; EXPENSES ........................................... 2-32

2.8-1
Publication Costs ........................................................ 2-32
2.8-2
Appraisers Fees ......................................................... 2-32
2.8-3
Bond Costs .................................................................. 2-32
2.8-4
Personal Representatives Compensation and

Expenses ..................................................................... 2-33
2.8-4(a)
2.8-4(a)(1)
Amount of Compensation ................. 2-33
2.8-4(a)(2)
Court May Deny Compensation ....... 2-35
2.8-4(b)
2.8-5
2.9
Personal Representatives Compensation ....... 2-33
Expenses.......................................................... 2-35
Attorney Fees .............................................................. 2-36
FINALITY OF ORDERS AND JUDGMENTS;

APPEALS ................................................................................ 2-40
2.9-1
Generally..................................................................... 2-40
2.9-2
Finality of Orders of Probate Commissioner ............. 2-41
2.9-3
Finality of Order Admitting Will to Probate .............. 2-41
2.9-4
Finality of Summary Determination of Claim ........... 2-43
2.9-5
Finality of Judgment of Distribution .......................... 2-43
2.9-6
Finality of Judgment Discharging Personal

Representative............................................................. 2-44
2.9-7
Effect of Order Reopening Estate............................... 2-45

2-3
2012 Revision
2.9-8
Recovery of Escheated Property ................................. 2-45
2.9-9
Judgments and Orders ................................................. 2-45
Appendix 2A Table of Situations Requiring Petitions ...................... 2-47

Appendix 2B Table of Notice Requirements .................................... 2-49
Appendix 2C Table of Judgments and Orders in Probate
Court ............................................................................ 2-55
Appendix 2D Table of Potential Probate Situations .......................... 2-59
Appendix 2E Table of Time Limitations .......................................... 2-63
Form 2-1
Order Transferring Venue ........................................... 2-68
Form 2-2
Order Establishing Venue Where First

Commenced................................................................. 2-71
Form 2-3
Notice of Hearing ........................................................ 2-74
Form 2-4
Admission of Personal Service ................................... 2-76
Form 2-5
Waiver of Notice ......................................................... 2-77
Form 2-6
Waiver of Notice and Consent to Entry of

Order............................................................................ 2-78
2.1
RIGHT OF THE STATE TO CONTROL PROBATE

MATTERS
Probate jurisdiction and procedures in Oregon are generally

contained in ORS 111.005118.990. These statutes compose the current
probate code as amended subsequent to its enactment in 1969.
The state has the power to control the disposition and administration of decedents estates, subject to federal Constitutional rights. The
Oregon Supreme Court has stated that the right of an individual to
dispose of his property by will is not a natural right, but is one conferred
by law. In re Broders Estate, 224 Or 165, 171, 355 P2d 738 (1960).
Even the right of intestate succession has been said to be a creature of
the law and not a natural right. In re Broders Estate, 224 Or at 171;
U. S. Nat. Bank of Portland v. Snodgrass, 202 Or 530, 540, 275 P2d 860
(1954). The United States Supreme Court has made similar holdings. In
Irving Trust Co. v. Day, 314 US 556, 562, 62 S Ct 398, 86 L Ed 452
2-4
2012 Revision
(1942), the Court ruled that the [r]ights of succession to the property of
a deceased, whether by will or by intestacy, are of statutory creation, and
the dead hand rules succession only by sufferance.
The states power to legislate matters dealing with inheritance is
not unlimited. In Zschernig v. Miller, 389 US 429, 436, 88 S Ct 664, 19
L Ed2d 683 (1968), the Court held that the operation and effect of former
ORS 111.070, dealing with the right of aliens to inherit, amounted to
state involvement in foreign affairs and international relationsmatters
which the Constitution entrusts solely to the Federal Government.
Recognizing that the states have traditionally regulated the descent and
distribution of estates, the majority held that a states probate laws
must give way if they impair the effective exercise of the Nations
foreign policy. Zschernig, 389 US at 440.
In Tulsa Profl Collection Services, Inc. v. Pope, 485 US 478, 108
S Ct 1340, 99 L Ed2d 565 (1988), the United States Supreme Court ruled
that an Oklahoma probate claim statute was unconstitutional. In deciding
that the Fourteenth Amendment protected the right of an estate creditor to
more than published notice, the Court stated:
Nor is the States involvement in the mere running of a general statute
of limitation generally sufficient to implicate due process. . . . But
when private parties make use of state procedures with the overt,
significant assistance of state officials, state action may be found.
....
. . . Here, in contrast, there is significant state action. The probate
court is intimately involved throughout, and without that involvement
the time bar is never activated.
Tulsa Profl Collection Services, Inc., 485 US at 485487 (citations

omitted). See 2.5-7.
The Supreme Court found the state court involvement so pervasive
and substantial that it had to be considered state action subject to the
restrictions of the Fourteenth Amendment. Tulsa Profl Collection
Services, Inc., 485 US at 487. All provisions of Oregons probate code
can be assumed to be subject to the same due process scrutiny.
2-5
2012 Revision
2.2
2.2-1
PROBATE JURISDICTION
Historically
The probate court has historically been one of limited jurisdiction.

In re Murrays Estate, 56 Or 132, 139, 107 P 19 (1910); In re Elders
Estate, 164 Or 347, 351352, 101 P2d 412 (1940). Property of a decedent
must be located in Oregon before an Oregon probate court will accept
jurisdiction, and [w]hether there is property in Oregon upon which
probate will operate depends on the situs of the property. W. v. White,
307 Or 296, 300, 766 P2d 383 (1988) (citation omitted). In West, a
decedent who had been domiciled in Massachusetts held a note secured
by a trust deed on Oregon real property. The court held that the note was
personal property, that its situs was in Massachusetts, and that the
security was merely incident to the debt. Accordingly, there was no
jurisdiction in Oregon.
Prior Oregon law made proper venue a jurisdictional matter. If
venue was in the wrong county, the courts of that county lacked authority
(jurisdiction) even to appoint an administrator. Now, proper venue is not
a jurisdictional matter. ORS 113.015(2).
2.2-2
Jurisdiction Under the Probate Code
2.2-2(a)
Subject-Matter Jurisdiction
Under ORS 111.085, the jurisdiction of the probate court includes,

but is not limited to:
(1)
Appointment and qualification of personal representatives;
(2)
Probate and contest of wills;
(3)
Determination of heirship;
(4) Determination of title to and rights in property claimed by

or against personal representatives, guardians and conservators;
(5) Administration, settlement and distribution of estates of
decedents;
(6) Construction of wills, whether incident to the administration or distribution of an estate or as a separate proceeding;
2-6
2012 Revision
(7) Guardianships and conservatorships, including the appointment and qualification of guardians and conservators and the administration, settlement and closing of guardianships and conservatorships;
(8) Supervision and disciplining of personal representatives,
guardians and conservators; and
(9) Appointment of a successor testamentary trustee where the
vacancy occurs prior to, or during the pendency of, the probate proceeding.
Subsection (3) of ORS 111.085 allows heirship determinations
even when no estate is being administered.
Subsection (6) of the statute permits the probate court to construe
wills, whether or not incident to the administration or distribution of an
estate. ORS 111.085(6). The probate court has jurisdiction, for instance,
to construe a will to determine whether the will exercised a power of
appointment given by a separate trust agreement to the testator, even in
the absence of assets to be administered.
If the probate court has jurisdiction over an estate, but an error is
committed in appointing the personal representative, the appointment is
voidable, not void. If, however, the court lacks jurisdiction over the
estate, the appointment is void and the acts of the personal representative
are generally without effect. Rennie v. Pozzi, 294 Or 334, 338 n 3, 656
P2d 934 (1982). In Rennie, 294 Or at 343, the court decided that the
provisions of ORS 114.255 supported (under certain conditions) the
relation back validity of a personal representatives reappointment. In
that case, the initial invalid appointment was not due to a jurisdictional
problem.
The probate court has authority to entertain an action for a
declaratory judgment. ORS 111.095; Buresh v. First Nat. Bank, 10 Or
App 463, 473, 500 P2d 1063, affd as modified, 262 Or 104 (1972).
Designating an action based on the purported invalidity of a will as a
declaratory judgment action does not, however, permit a plaintiff to avoid
the limitations period for bringing a will contest. Martin v. Kenworthy, 92
Or App 697, 698, 759 P2d 335 (1988).
2-7
2012 Revision
The jurisdiction of the probate court is not limited to the areas of

authority listed in ORS 111.085. See ORS 111.085 (the jurisdiction of
the probate court includes, but is not limited to . . .). For example, in
Matter of Plues Estate, 63 Or App 677, 682, 666 P2d 835 (1983), the
court ruled that although the Oregon Tax Court had exclusive jurisdiction
to determine the amount of inheritance tax, the probate court, under the
provisions of ORS 111.085(5)(6), had jurisdiction to decide whether the
tax liability would be apportioned among the persons interested in the
estate.
During the entire administration process, the probate court has
exclusive jurisdiction over the decedents property. See ORS 114.225. In
Matter of Phillips Estate, 23 Or App 363, 368, 542 P2d 928 (1975), the
court ruled that jurisdiction remained in the probate court until final
distribution was decreed. The court held that a separate partition suit
involving land that was the subject of the probate administration was
ineffective as to the property in administration. The court stated: The
issues on appeal are whether the probate court erred in distributing the
decedents farm to the heirs as tenants in common despite a decree of
partition by the circuit court entered by consent of the parties decreeing
otherwise while the estate was in administration. Matter of Phillips
Estate, 23 Or App at 364.
Similarly, federal courts have recognized that the administrative
collection procedures of the Internal Revenue Service are not available
while the assets of a deceased taxpayer are in the control and custody
of the probate court. See United States v. Silverman, 621 F2d 961, 965
966 (9th Cir 1980); see also United States v. McPherson, 631 F Supp 269
(MDNC 1986); United States v. Swink, 41 F Supp 98 (ED Va 1941).
2.2-2(b)
Venue
Although prior Oregon law made proper venue a jurisdictional

prerequisite, ORS 113.015(2) expressly provides to the contrary. Filing a
proceeding in an improper county is not a jurisdictional defect. See
2.3-1 to 2.3-4(d) for further discussion of venue.
2-8
2012 Revision
2.2-2(c)
Powers of Probate Court
A court having probate jurisdiction (i.e., having the authority to

consider the subject matter) has the powers enumerated in ORS
111.095(1). The general legal and equitable powers of a circuit court
apply to effectuate the jurisdiction of a probate court. The orders,
judgments, and determinations of a probate court are entitled to the same
finality and presumption of regularity as those of a court of record with
general jurisdiction.
The probate courts have specific authority to make determinations
regarding their own jurisdiction and are expressly given full power to
make declaratory judgments in all matters involved in the administration
of an estate. ORS 111.095(2).
All these powers apply with equal force to county courts when
sitting in probate, subject only to the appeal rights and procedures set
forth in ORS 111.105.
2.2-2(d)
Due Process and Jurisdiction
Jurisdiction has several forms, including the following:

(1) Authority of a particular forum to act. This type of jurisdiction is usually referred to as jurisdiction of the subject matter. See ORS
111.075111.085.
(2) Authority of any court in a particular state to act. This type
of jurisdiction, based on sufficient affiliation of the defendant with the
forum state, is exemplified in Hanson v. Denckla, 357 US 235, 250251,
78 S Ct 1228, 2 L Ed2d 1283 (1958). In the Hanson case, the majority of
the United States Supreme Court held that a nonresident trustee did not
have sufficient affiliation, or minimum contacts, with Florida to enable a
Florida court to force the trustee to appear before its courts. This type of
jurisdiction involves the authority of a court to reach beyond its borders
and bring persons or property before it.
(3) Authority of a court to affect the rights of persons who have
no actual notice of the proceedings. This issue is present in all
proceedings involving adjudication of rights between persons (in
personam) or between persons and property (in rem), and is one of
2-9
2012 Revision
fairness or due process. The basic test is whether the person has been
given adequate notice of the judicial proceeding so that he or she has had
an opportunity to come before the court and present his or her views. In
several instances, Oregon has dealt with the issues of due process and
notice, in state judicial decisions and in legislation enacted in response to
a United States Supreme Court ruling. For a review of those cases, see
2.5-7.
2.2-3
Forums for Probate
2.2-3(a)
Probate Jurisdiction
Jurisdiction of all probate matters, causes and proceedings is

vested in the county courts of Gilliam, Grant, Harney, Malheur, Sherman
and Wheeler counties and in the circuit court for each other county and as
provided in ORS 111.115. ORS 111.075.
The original proposal of the Advisory Committee on Probate Law
Revision (1968) was to give probate jurisdiction to the circuit courts
throughout the state. However, to meet certain Eastern Oregon objections, the legislature preserved probate jurisdiction in the county courts in
the six counties listed above. The county courts in these six counties have
all the broadened powers, discretion, and jurisdiction given to probate
courts by the probate code. The county courts are not limited to probate
jurisdiction in the former sense, but they have the general legal and
equitable powers and authority of a circuit court as given by ORS
111.085 and 111.095.
See 5.2-1(a).
2.2-3(b)
Transfer from County Court to Circuit Court
2.2-3(b)(1)
Discretionary Transfer
In its discretion, the county court may by order transfer an estate

proceeding from that court to the circuit court of that county. ORS
111.115(1). This discretionary transfer requires the transfer of the entire
estate proceeding. A transfer to the circuit court requires that the circuit
court continue its jurisdiction of the entire estate until it is closed.
2-10
2012 Revision
2.2-3(b)(2)
Mandatory Transfer
If a county judge is a party to, or is directly interested in, the estate

proceeding, the county court must transfer the proceeding to the circuit
court of that county. All matters, causes, and proceedings pertaining to
the estate in which the county judge has an interest must be transferred.
ORS 111.115(2).
2.2-3(b)(3)
Procedure for Transfer
The procedure for transferring an estate from the county court to

the circuit court is set forth in ORS 111.115(3). Once the transfer order
has been made by the county court, the county clerk must certify all
original papers and proceedings pertaining to the estate and cause them to
be filed in the circuit court. The circuit court thereafter has jurisdiction of
all matters pertaining to that estate, just as if jurisdiction had originally
been exclusively in that circuit court.
2.2-3(c)
The Probate Commissioner
2.2-3(c)(1)
Generally
The position of probate commissioner was created to speed up the

opening of estates and to relieve judges from duties that are essentially
clerical, instead of adjudicatory, in nature. The commissioner also has
authority to handle certain uncontested matters in connection with the
opening of guardianships, conservatorships, and decedents estates. See
2.2-3(c)(3). Another objective behind the establishment of this position
is to facilitate the opening of estates in the absence of the probate judge.
This is particularly significant in those counties having only one such
judge. See ORS 111.175111.185.
2.2-3(c)(2)
Identity and Appointment of Commissioner
The court may appoint the clerk of the probate court or some
other suitable person at the county seat to act as probate commissioner.
ORS 111.175. If the clerk of the probate court is appointed probate
commissioner, the deputy clerk has the power to perform any act as
probate commissioner that the clerk may perform. The court clerk is fully
responsible for the conduct of his or her deputy so acting. ORS 111.175.
2-11
2012 Revision
Although each county may have only one probate commissioner,

when the court clerk is appointed as the commissioner, the court clerks
deputy may act for him or her. As a result, appointment of the clerk,
rather than some other suitable person at the county seat, results in
making several persons available to exercise the powers of a probate
commissioner.
PRACTICE TIP: The lawyer should check with the court clerk
to determine whether a probate commissioner has been appointed
for the county and the extent of the power and duties that have
been delegated to that commissioner.
2.2-3(c)(3)
Powers of Probate Commissioner
To the extent authorized by rules of the court, a probate commissioner may act on uncontested petitions for the (1) appointment of
special administrators, (2) probate of wills, and (3) appointment of
personal representatives, guardians, and conservators. ORS 111.185.
Each probate court that takes advantage of the power to appoint a probate
commissioner must promulgate rules establishing, and perhaps limiting,
the commissioners authority.
Pursuant to the authority given to the probate commissioner, he or
she may make and enter orders on behalf of the court (1) admitting wills
to probate; (2) appointing personal representatives, special administrators, guardians, and conservators; and (3) setting the amount of the
fiduciaries bonds. ORS 111.185(1).
When entering orders, the probate commissioner is acting on
behalf of the court. ORS 111.185(1). Unless set aside or modified by the
judge, the commissioners orders have the same effect as if made by the
judge. ORS 111.185(3).
The probate commissioner may refer to the probate judge any
matter presented to the commissioner. ORS 111.185(2). Because the
probate commissioners authority is not exclusive, any matter that he or
she is authorized to handle may also be handled by the probate judge in
the first instance.
2-12
2012 Revision
2.2-3(c)(4)
Finality of Commissioners Orders
The orders of the probate commissioner may be set aside by the

probate court within 30 days after entry. ORS 111.185(1). See 2.9-2.
2.3
2.3-1
VENUE
Venue Choices for Probate
Any of the following counties have venue for a probate proceeding:

(1) The county where the decedent had a domicile at the time of
his or her death, ORS 113.015(1)(a);
NOTE: To constitute domicile, there must be both the fact
of a fixed habitation or abode in a particular place and an intention
to remain there permanently and indefinitely. In re Noyes Estate,
182 Or 1, 14, 185 P2d 555 (1947).
(2) The county where the decedent had a place of abode at the
time of death, ORS 113.015(1)(a);
NOTE: The two factors necessary to establish a domicile, that
is, a fixed abode and an intent to remain there, are absent from this
alternative. A temporary abode in a county will suffice for probate
venue in that county.
(3) Any county where the decedents property was located at the
time of the decedents death or is located at the time the probate
proceeding is commenced, ORS 113.015(1)(b); or
NOTE: Any property, real or personal, establishes venue. See
ORS 114.205 (the probate code applies without distinction
between real and personal property).
(4)
The county in which the decedent died, ORS 113.015(1)(c).
Although venue may be appropriate in any one of several counties,

an estate can be administered in only one county. See 2.3-4(a). See also
5.2-1(b).
2-13
2012 Revision
The filing of a proceeding in an improper county is not a

jurisdictional defect. ORS 113.015(2).
2.3-2
Petition for Appointment of Personal Representative
The facts relied on to establish venue must be alleged in the

petition for appointment of the personal representative. ORS 113.035(3).
See Forms 5-3, 5-4.
2.3-3
Venue as Jurisdictional Defect
By statute, improper venue (i.e., incorrect county) does not

constitute a jurisdictional defect. ORS 113.015(2). Before enactment of
the probate code in 1969, proper venue was a jurisdictional matter. In re
Armstrongs Estate, 159 Or 698, 705, 82 P2d 880 (1938); Wink v.
Marshall, 237 Or 589, 591592, 392 P2d 768 (1964).
2.3-4
Second Administration Started in Another County
2.3-4(a)
Generally
An estate can be administered in only one county. If proceedings

seeking the appointment of a personal representative of the same estate or
proceedings to probate a will of the same decedent are commenced in
more than one county, all proceedings are stayed except in the county
where first commenced until a final determination of venue. ORS
113.025(1).
PRACTICE TIP: A lawyer who foresees a battle over venue
should be the first to file the petition for appointment of the
personal representative. The court where the first filing is made
will be the one to resolve venue conflicts.
When probate proceedings have been filed in more than one
county, a petition for determination of venue should presumably be filed
in the county where the first proceeding was commenced. Notice should
be given in the manner provided by ORS 111.215 to:
(1)
The personal representative in the other estate proceeding;
(2)
The probate court of the other county; and
(3) Each person who petitioned for the appointment of a

personal representative (these persons are interested in the venue
2-14
2012 Revision
determination because they each selected a county where proceedings

were filed).
In resolving venue conflicts, the court of the county where the
proceeding was first begun may order that the proceeding be transferred
only to a county where another proceeding has also been commenced. A
venue transfer is strictly discretionary with the court and must be for the
best interest of the estate. ORS 113.025(1). The standard of appellate
review of venue decisions is, accordingly, abuse of discretion.
See Forms 2-1 and 2-2.
2.3-4(b)
Transfer to Another Court
Proceedings undertaken in the first county with jurisdiction are in

all respects valid and effective up to and including the entry of an order
changing venue to the second county. The court of the second county (in
which venue was ultimately determined to be for the best interest of the
estate, ORS 113.025(1)) also has jurisdiction for all proceedings
undertaken. ORS 113.025(2). Double jurisdiction therefore exists until an
order of transfer is entered. See Forms 2-1 and 2-2.
If a change of venue is ordered, the clerk of the court where the
proceeding was first commenced must send to the clerk of the court for
the other county a transcript of the proceedings, together with all the
original papers filed. ORS 113.025(2). Thereafter, the recipient court has
exclusive jurisdiction over the estate proceedings. Because all papers
filed in the first county are to be sent to the second county, apparently the
only record of the disposition of the estate in the first county is the
journal entry of the order transferring venue.
2.3-4(c)
Venue Determined to Be in Original County
As stated in 2.3-4(a), if venue is determined to be in the county

where proceedings were first commenced, proceedings later commenced
in another county shall be stayed. ORS 113.025(1). To the extent that
proceedings were actually conducted in that second county, they are
considered to have been undertaken with jurisdiction. ORS 113.025(2).
See Form 2-2.
2-15
2012 Revision
2.3-4(d)
Accounting by Displaced Personal Representative
The order determining proper venue in one county has the effect of
terminating the proceedings in the other county. See ORS 113.025(2).
The deposed personal representative must then turn over to the remaining
personal representative any assets in the possession of the former and,
within 30 days of the order terminating his or her authority, must also file
an accounting in the court retaining jurisdiction and venue. ORS
116.083(1)(b). In order for the outgoing personal representative to be
discharged and his or her bond (if any) exonerated, a judgment approving
the account and discharging the personal representative should be entered
in the surviving proceeding.
If the deposed personal representative had previously published a
notice to interested persons as required by ORS 113.155(1), the
remaining personal representative should republish a notice to interested
persons in that same county. Although the statute does not expressly
require a second publication, the situation is analogous to ORS 113.225,
which requires republication of the notice to interested persons by a
successor personal representative.
2.4
2.4-1
PETITIONS
Form
The probate code provides that [n]o particular pleadings or forms

thereof are required in the exercise of jurisdiction of probate courts.
ORS 111.205. However, ORS 111.205 requires that the proceedings
shall be in writing and that all petitions, reports, and accounts in
proceedings before the probate court must include a declaration under
penalty of perjury in the form required by ORCP 1 E made by at least
one of the persons making them. See 2.4-2.
UTCR 2.010 provides that all documents must be printed or typed.
Furthermore, UTCR 2.010 and UTCR chapter 9 set forth other rules
regarding the format of documents (e.g., size of paper, spacing, and
information about the attorney of record).
2-16
2012 Revision
2.4-2
Declaration Under Penalty of Perjury
The probate code requires that petitions, reports, and accounts in

probate proceedings include a declaration under penalty of perjury in the
form required by ORCP 1 E made by at least one of the persons making
the petitions, reports and accounts or by the attorney for the person, or in
case of a corporation by its agent. ORS 111.205.
A declaration under penalty of perjury must:
(1)
Be signed by the declarant; and
(2) Include the following sentence in prominent letters

immediately above the signature of the declarant: I hereby declare that
the above statement is true to the best of my knowledge and belief, and
that I understand it is made for use as evidence in court and is subject to
penalty for perjury. ORCP 1 E.
2.4-3
Who May Petition
Petitions in the probate court must be filed by a party in interest.

ORS 111.205. Pursuant to ORS 111.005(19), the term interested person
includes heirs, devisees, children, spouses, creditors and any others
having a property right or claim against the estate of a decedent that may
be affected by the proceeding. It also includes fiduciaries representing
interested persons.
In the Comments to the probate code concerning ORS 113.035
(relating to petitions for the appointment of a personal representative),
the Advisory Committee on Probate Law Revision said that it
considered that any person who paid the fees and filed a petition
complying with section 84 would of necessity be an interested
person. Proposed Oregon Probate Code (Preliminary Draft)
(Aug 1968), at 84. See <http://arcweb.sos.state.or.us/pages/records/
legislative/legislativeminutes/probate>.
COMMENT: Although it might be argued that interested
persons are limited to persons specifically named in ORS
111.005(19), the intent of the drafters of the probate code appears
to be that any person interested enough to file a petition is an
interested person qualified to do so. ORS 113.085 even names
2-17
2012 Revision
the Director of Human Services or the Director of the Oregon

Health Authority as having an interest if the decedent received
public assistance, or the Department of Veterans Affairs if the
decedent was a protected person under ORS 406.050(8).
However, the safest approach is to have the probate petition
signed by an interested person as defined by ORS 111.005(19).
2.4-4
When Petitions Required
Because of the increased authority given to the personal representative by the probate code, only two petitions may be necessary in the
ordinary simple estate:
(1) A petition to open the estate, ORS 113.035 (see 5.2-2(a)
to 5.2-2(b)); and
(2) A petition for a judgment of distribution, ORS 116.083(3)(b)
(see 11.8-2).
See Appendix 2A for a table of when petitions to the court are
required. In the probate court, motions and complaints are rarely used.
Instead, requests for the court to take action are filed as petitions. ORS
111.205.
2.5
2.5-1
NOTICE
Generally
Notice is critical to the estate-administration process. All known

persons who may possibly be interested in the estate, its opening, its
administration, and its closing must be given adequate notice so that they
have an opportunity to make any appropriate objections. Although
judicial scrutiny is substantially reduced by the current probate code, the
notice requirements are materially enhanced, giving fair opportunity for
those whose interests might be affected either to negotiate informally
with the personal representative or to bring the matter before the probate
court.
When notice is required of a hearing on a petition or other matter
on which an order is sought, the notice must include the date, time, and
place of the hearing. ORS 111.215(1). See Form 2-3.
2-18
2012 Revision
PRACTICE TIP: The description of the subject of the hearing

should be carefully identified in the notice, so that interested
persons who fail to appear at the hearing cannot later claim that
they were misled. (Attaching a copy of the petition avoids the
problem.)
In both intestate estates and testate estates, notice must be given to
heirs, devisees, and other interested persons (see ORS 113.035(5)(9))
upon the personal representatives appointment or upon admission of a
will to probate. ORS 113.145, 113.155. Notice of the personal
representatives appointment must be either delivered or mailed to the
heirs, devisees, and persons described in ORS 113.035(8)(9). ORS
113.145. Heirs and devisees will accordingly have actual notice when a
will has been admitted and will have adequate opportunity to file a timely
contest. Notice to interested persons must be published in a newspaper as
described in ORS 113.155. For further discussion of notice, see 5.2-8
and 7.3-1(a) to 7.3-3(b).
The notice to heirs and devisees required by ORS 113.145, as well
as a copy of the death certificate, must be mailed or delivered to the
Department of Human Services and the Oregon Health Authority within 30
days after the personal representative is appointed in all probates. ORS
113.145(6). Their mailing addresses and telephone numbers are as
follows:
Oregon Department of Human Services,
Estate Administration Unit
PO Box 14021
Salem, OR 97309-5024
phone: 800-826-5675
Oregon Health Authority
500 Summer St., NE, E-20
Salem, OR 97301-1097
phone: 503-947-2340
If, before the filing of the final account, the personal representative
has actual knowledge that the petition did not include the name and
2-19
2012 Revision
address of any person described in subsection (4), (5), (7), (8), or (9) of
ORS 113.035, the personal representative must:
(1) Make reasonable efforts under the circumstances to
ascertain each of those names and addresses, ORS 113.145(5)(a);
(2) Promptly deliver or mail information as described in [ORS
113.145(1)] to each of those persons located after the filing of the
petition and before the filing of the final account, ORS 113.145(5)(b);
and
(3) File in the estate proceeding, on or before filing the final
account under ORS 116.083, proof of compliance with [ORS 113.145(5)]
or a waiver of notice as provided under ORS 111.225, ORS
113.145(5)(c).
The personal representative must mail a copy of the notice of final
account to each heir, each devisee, each unpaid creditor whose claim has
not been barred, and any other person known by the personal
representative to have an interest in the estate being distributed, including
the Department of Human Services and the Oregon Health Authority.
ORS 116.093.
NOTE: One of the purposes of the probate code is to give
actual notice to all persons who might reasonably have an interest
in the action taken or to be taken. The idea of notice by publication
is preserved in only two situations, discussed in 2.5-3.
The personal representative may apply to the court for authority,
approval, or instructions on any estate matter, even for actions
specifically authorized under the broad powers of ORS 114.305. ORS
114.275. The court, on such notice and hearing as it may prescribe, must
then make an appropriate ruling. Although the notice requirements of this
statute are completely discretionary with the court, all persons who might
be directly interested in the matter must receive notice in order to be
bound by the order.
Any person who has knowledge that a decedent died wholly
intestate, without a known heir, and owning property subject to probate
in Oregon must give notice to an appointed estate administrator at the
2-20
2012 Revision
Department of State Lands within 48 hours of acquiring such knowledge.

If the department is appointed personal representative, the director of the
department will appoint an estate administrator to act for the department
in administering the estate. ORS 113.238. See ORS 113.235.
See Appendix 2B for a table of notice requirements.
2.5-2
Notice to Persons Under Disability
Minors and incompetents must be given notice just as persons not

under a disability are given notice. ORS 113.035(5)(8). If a guardian or
conservator has been appointed, service should also be made on that
guardian or conservator. See Appendix 2B.
PRACTICE TIP: The probate code does not require the
appointment of a guardian, conservator, or guardian ad litem to
receive notice on behalf of a minor or an incompetent. However,
given that the courts are emphasizing due process requirements in
connection with notice, prudence dictates that a guardian or
conservator be appointed when the rights of an interested person
are affected.
2.5-3
Manner of Giving Notice
Except when notice by publication is specifically required by

statute or court order (see, e.g., ORS 113.045), notice may be given in
one or more of the following ways:
(1)
By mail, ORS 111.215(1)(a);
(2)
By personal delivery, ORS 111.215(1)(b); or
(3)
By publication, ORS 111.215(1)(c).
PRACTICE TIP: Notice by publication is permitted only when

the address of any person is not known or cannot be ascertained
with reasonable diligence. ORS 111.215(1)(c). Presumably,
however, the court will not allow service by publication in probate
matters any more liberally than is allowed in actions under ORCP
7 D(6)(a). This rule permits service by publication only when an
affidavit has been filed showing that service cannot be made by
2-21
2012 Revision
any method otherwise specified in these rules or other rule or

statute.
Except as noted above, the only other instance in which notice by
publication is authorized or directed is the notice to interested persons
announcing the appointment of the personal representative. ORS
113.155. But see 2.5-7. See Appendix 2B.
Notice by mail or by personal service may be made either on the
person to be notified or on that persons lawyer if the person has
appeared by attorney or requested that notice be sent to the attorney of
the person. ORS 111.215(1). However, the personal representatives
notice of disallowance of a claim must be given to both the claimant and,
if any, the claimants lawyer. ORS 115.135(1).
2.5-4
Timing of Notice
Unless the court or the probate code specifies a different period for
giving notice, the method of giving notice affects the length of time
required before the hearing for which the notice must be given. See
Appendix 2B. Notices of hearings must be given as follows:
(1) If by mail, at least 14 days before the date set for the
hearing, ORS 111.215(1)(a);
(2) If by personal delivery, at least five days before the date set
for the hearing, ORS 111.215(1)(b); or
(3) If by publication, once in each of three consecutive weeks,
the last publication to be at least 10 days before the date set for the
hearing, ORS 111.215(1)(c).
Upon a showing of good cause, the court may change the
requirements regarding the method or time of giving notice for any
hearing. ORS 111.215(2). This provision relates to notices of hearings
only.
The time period within which to object to an accounting or fee
petition is 20 days. ORS 116.093; UTCR 9.060(4).
2-22
2012 Revision
2.5-5
Proof of Notice
When the probate code requires that notice be given of a probate

matter, proof that notice was given must be made at or before the
hearing and filed in the proceeding. ORS 111.215(3). Proof of giving
notice is made as follows:
(1) Proof of notice by mailing or personal delivery must be
made in the form required by ORCP 9 C. ORS 111.218(1). ORCP 9 C
provides that proof of such service may be made by a written
acknowledgment of service, by affidavit or declaration of the person
making service, or by certificate of an attorney. The proof of service
may be made upon the papers served or as a separate document attached
to the papers. ORCP 9 C. See Form 2-4.
(2) Proof of notice by publication must be made in the form
required by ORCP 7 F. ORS 111.218(2). ORCP 7 F(2)(b) provides that
proof of publication may be made by an affidavit or a declaration of an
employee of the newspaper publishing the notice.
See Forms 5-12, 5-13, and 5-16.
2.5-6
Waiver of Notice
A person who is neither incompetent nor a minor may waive

notice by filing a signed written waiver in the proceeding or by
appearance at the hearing. ORS 111.225. If a guardian, guardian ad litem,
or conservator has been appointed for the person, the fiduciary may
waive notice in the same manner. ORS 111.225. The written waiver may
be signed by the lawyer for the person or the fiduciary. ORS 111.225. See
Forms 2-5 and 2-6.
2.5-7
Effect of Failure to Give Notice
A series of decisions by the Oregon courts and one by the United

States Supreme Court demonstrate the consequences of insufficient
notice in the probate context.
Upon the filing of the final account and petition for distribution,
ORS 116.093(1) requires that the personal representative give notice to
each heir, each devisee, each creditor, and any other person known to
the personal representative to have or to claim an interest in the estate
2-23
2012 Revision
being distributed. Pursuant to the Oregon Supreme Courts decision in

Matter of DeMarys Estate, 294 Or 650, 658659, 661 P2d 931 (1983), if
the personal representative fails to give such notice to an interested
person, the judgment of final distribution may be rendered void as to that
person and may be set aside. The claimant in Matter of DeMarys Estate
had filed a wrongful death action against the decedents estate, which
action was dismissed without prejudice. On remand, the court of appeals
concluded that the personal representative knew that the claimant still
had a right against the estate to refile his action. Waybrant v. Bernstein,
75 Or App 550, 554, 706 P2d 1002 (1985). Because no notice had been
given to the claimant, the closure order was void as to him. The trial
court erred in denying the claimants equivalent of a petition to reopen
the estate under ORS 116.233.
ORS 113.145 requires that notice be given to interested persons
upon the appointment of the personal representative. In Lawver v.
Beesley, 86 Or App 711, 719720, 740 P2d 1215 (1987), certain heirs of
the decedent were not bound by the decree (now judgment) of final
distribution because the personal representative breached the statutory
duty to provide notice under ORS 113.145. Neither actual notice nor
published notice to interested persons cured the defect. The decree was
void as to the omitted heirs.
However, in First Interstate Bank of Oregon, N.A. v. Haynes, 87
Or App 700, 743 P2d 1139 (1987), a lower court denied a creditor-banks
attempt to reopen an estate. Although holding that the bank had a
colorable claim because the bank was not given notice required under
ORS 116.093(1)(c)(d), which made the lower courts denial appealable,
the court affirmed on a res judicata theory. In doing so, the court noted
that ORS 116.213 prohibits actions against the personal representative
more than one year after entry of the discharge order. First Interstate
Bank of Oregon, N.A., 87 Or App at 703704. The court acknowledged
the propriety of proceeding against the residuary legatees.
Next, the United States Supreme Court decided Tulsa Profl
Collection Services, Inc. v. Pope, 485 US 478, 487491, 108 S Ct 1340,
99 L Ed2d 565 (1988), in which a probate nonclaim statute was
declared unconstitutional. The Court held that a known creditor of the
2-24
2012 Revision
decedent was entitled to actual notice of the time limitation for filing a
claim, rather than the statutorily prescribed notice by publication.
In response to the decision in Tulsa Profl Collection Services,
Inc., the 1989 Oregon Legislature revised Oregons laws regarding
claims against estates. A personal representative now has a duty to take
reasonable actions to ascertain claims against an estate and to deliver
notice to known claimants in person or by mail. ORS 115.003. The
personal representative and the surety for the personal representative are
liable (as are interested persons, including creditors and distributees who
received assets) to any omitted creditor for the amount that the omitted
creditor would have recovered. ORS 115.004(1).
Service of a complaint on the lawyer for a closed small estate is
not sufficient notice under ORCP 23 C (relation back of amendments to
pleadings) when a personal representative was not appointed for a
deceased tortfeasor within the statutory period of limitations. In Wheeler
v. Williams, 136 Or App 1, 3, 900 P2d 1076 (1995), the original complaint named only Ira O. Williams, deceased, as the defendant. The
court ruled that an amended complaint based on the subsequent
appointment of a personal representative could not relate back. Under
that rule, the person who must have received notice of the action was the
personal representative of the estate. Wheeler, 136 Or App at 6.
COMMENT: It appears that any failure to give notice by mail
or such other means (in addition to what is statutorily required) to
ensure actual notice will result in an act being void as to the person
not notified. The limitation imposed by ORS 116.233 for
reopening an estate is now of questionable effect in matters beyond
the exception included for claims under ORS 115.004 (recovery
for failure to search for and give notice to claimants of the estate).
The failure to give notice of the appointment of a personal
representative to heirs and devisees under ORS 113.145(1) does not,
however, invalidate a courts decision in a will contest. The court is not
deprived of authority to rule on the validity of the will. In re Estate of
Eddy, 95 Or App 733, 737, 770 P2d 969 (1989). Will contests are
discussed in chapter 15.
2-25
2012 Revision
Although declining to address whether an affidavit for service by

publication was required to show due diligence under the general probate
notice statute (ORS 111.215(1)(c)), the Oregon Supreme Court made this
a requirement in a determination-of-heirship proceeding. In Matter of
Riddles Estate, 288 Or 687, 607 P2d 1370 (1980), a petitioner presented
no affidavit of due diligence, and neither the husband of the decedents
sister (who died after the decedent) nor the sister was ever notified of the
proceedings. Matter of Riddles Estate, 288 Or at 694695. The supreme
court reversed a court of appeals ruling in favor of the personal
representative based on ORS 111.215(1)(c), by holding that due diligence
was necessary under former ORS 15.170, which dealt with unknown
heirs. Jurisdiction was never obtained over the heirs without notice.
Matter of Riddles Estate, 288 Or at 694695. (ORS 15.170 was repealed
with the adoption of the Oregon Rules of Civil Procedure, but ORCP
7 D(6) imposes a similar obligation.)
2.6
2.6-1
HEARINGS
When a Hearing Is Required
Although most estates are administered with no hearings, hearings

are required in the following situations:
(1)
In any contested matter, see ORS 113.075;
(2) For authority of the personal representative to sell,

mortgage, lease, or otherwise dispose of property (real or personal) if
certain conditions exist, ORS 114.325(2) (see 10.8-1(a) to 10.8-1(b));
(3) For a petition for an order of support for the surviving
spouse or dependent children, ORS 114.015(4) (see 6.2-1 to 6.2-4);
(4) After a partial distribution, for an order directing distributees
to return property, ORS 116.043 (see 11.8-1(b)); and
(5) When objections have been filed to a judgment of final
distribution, ORS 116.103 (see 11.7-1 to 11.7-3).
PRACTICE TIP: Some counties may require an ex parte
appearance before the judge or probate commissioner to obtain an
order admitting the will to probate, appointing the personal
2-26
2012 Revision
representative, and fixing the amount of bond, if any. In

Multnomah County and most other counties, no hearing is needed
for these purposes. If a potential issue exists (e.g., regarding the
amount of bond), the matter should be discussed initially with the
court staff. Supplementary local rules are found at <www
.ojd.state.or.us/Web/OJDPublications.nsf/SLR?OpenView&count=
1000>.
2.6-2
Conduct of Hearings
2.6-2(a)
Generally
The mode of procedure in the probate court is in the nature of an

action not triable by right to a jury except as otherwise provided by
statute. ORS 111.205. The probate code has specific provisions relating
to proof of documents and certification (ORS 111.245), translation of
documents (ORS 111.255), and the establishment of wills (ORS 113.055,
113.065). Otherwise, the general rules of evidence apply.
In a will contest, neither party has a right to a trial by jury. Rantru
v. Unger, 73 Or App 680, 683, 700 P2d 272 (1985). See chapter 15.
2.6-2(b)
Subpoena Powers
The court has specific statutory authority to order any person to

appear and give testimony by deposition if it is probable that the person:
(1)
decedent;
Has concealed, secreted, or disposed of any property of the
(2) Has been entrusted with property of the decedents estate

and fails to account to the personal representative for the entrusted
property;
(3) Has concealed, secreted, or disposed of any writing or
document pertaining to the estate;
(4) Has knowledge or information that is necessary to the
administration of the estate; or
(5) As an officer or agent of a corporation, has refused to allow
examination of the corporations books and records that the decedent had
the right to examine.
2-27
2012 Revision
ORS 114.425(1).
If a person cited as provided above fails to appear or to answer
questions asked, the court may punish the person for contempt. ORS
114.425(2).
2.6-2(c)
Summary Determination of Claims
The procedure in a probate court proceeding for the summary

determination of a claim disallowed, in whole or in part, by the personal
representative is set forth in ORS 115.165:
(1) The personal representative must move or plead to the claim
as though the claim were a complaint filed in an action;
(2) The court hears the matter without a jury, after notice to the
claimant and the personal representative;
(3) On the hearing, the court determines the claim in a
summary manner and makes an order allowing or disallowing the
claim in whole or in part; and
(4) No appeal may be taken from the order of the court made on
the summary determination.
2.6-3
Stenographic Record
On the motion of a judge or on the request of an interested person,

the court may require a court reporter to attend any hearing and make a
stenographic record of the proceedings. ORS 111.265. No specific
provision is made for an electronic record.
2.7
2.7-1
ORDERS AND JUDGMENTS
Generally
A personal representative must proceed with the administration,

settlement, and distribution of the estate without adjudication, order,
judgment, or direction of the court, except as otherwise provided in the
will or the probate code. ORS 114.275.
A personal representative or any interested person, however, may
apply to the court at any time for authority, approval, or instructions on
2-28
2012 Revision
any matter concerning the administration, settlement, or distribution of

the estate. The court then must instruct the personal representative or rule
on the matter. ORS 114.275. Although an order or a judgment may not be
required, the personal representative may obtain a court order approving
the action. Because of the substantial authority given to the personal
representative by ORS 114.305, court orders for authorized transactions
are neither needed nor worthwhile, except in unusual situations or when
the probate code specifically requires them.
COMMENT: Optional orders may be made by the court with
or without a hearing as the court may prescribe. ORS 114.275. If
the court requires a hearing, ORS 111.215 applies. Notice of the
hearing must be mailed or personally delivered to all interested
persons within the timeframe set forth in ORS 111.215. See 2.5-4.
The broad powers granted to the personal representative by ORS
114.305 may be limited by the will or by court order. Those powers can
otherwise be executed by the personal representative as long as the
actions are reasonable and for the benefit of all interested persons. ORS
114.305; see ORS 111.005(19) (defining interested person).
A personal representative is subject to prudent investor rules (ORS
130.750130.775). ORS 114.305(6). The probate code expressly
authorizes the personal representative to sell, mortgage, or otherwise deal
with property without court order unless:
(1)
The sale is contrary to the wills provisions;
(2) The property is specifically devised and the will does not
authorize the sale; or
(3) The personal representative has been required to file a bond,
the sale price of the property to be sold exceeds $5,000, and the bond has
not been increased by an amount equal to the cash to be realized by the
sale.
ORS 114.325.
NOTE: The court may waive the requirement of a bond, but
only under certain circumstances. ORS 113.105(4). The lawyer
should not attempt to waive the bond under other circumstances,
2-29
2012 Revision
even if the court is willing to do so. Such an unauthorized waiver

might invalidate the appointment of the personal representative.
No order or confirmation is then required for the sale of real or
personal property. Even when a bond is required, orders of sale are
unnecessary as long as the bond already posted is sufficient, or the bond
is increased to cover the sale proceeds, or the court has previously made
other directions concerning the bond amount. ORS 113.105, 113.115.
2.7-2
Required and Permissible Orders or Judgments
In a probate proceeding, a court order or judgment is required or

may be appropriate in some situations. See Appendix 2C for circumstances in which court orders are necessary. See also Appendix 2D.
In the ordinary estate, only three orders or judgments are needed:
(1) A limited judgment admitting the will to probate and
appointing the personal representative and, unless waived by the will,
fixing the amount of the bond, ORS 111.185(1), 111.275(1);
(2) A general judgment, approving the final account and fixing
compensation of the personal representative, ORS 116.113, 18.005(7);
and
(3) A supplemental judgment discharging the personal representative, ORS 116.213; ORS 18.005(17).
In a probate proceeding, the court may enter a limited judgment
only for the following decisions of the court (ORS 111.275(1)), and then
only if the court determines that there is no just reason for delay (ORS
111.275(2)):
(1) A decision on a petition for appointment or removal of a
personal representative;
(2)
A decision in a will contest filed in the probate proceeding;
(3)
A decision on an objection to an accounting;
(4) A decision on a request made in the proceeding for a

declaratory judgment under ORS 111.095;
2-30
2012 Revision
(5) A decision on a request for an award of expenses under ORS

116.183; and
(6) Such decisions of the court as may be specified by rules or
orders of the Chief Justice of the Supreme Court under ORS 18.028,
ORS 111.275(1)(f).
The judgment document need not reflect the courts determination
that there is no just reason for delay. ORS 111.275(2); see Interstate
Roofing, Inc. v. Springville Corp., 347 Or 144, 148156, 218 P3d 113
(2009).
2.7-3
Orders of Probate Commissioner
The probate commissioner, rather than a judge, may enter orders

on uncontested petitions for:
(1)
Appointment of a special administrator;
(2)
Probate of a will;
(3)
Appointment of a personal representative; and
(4)
Setting the amount of the fiduciarys bond.
ORS 111.185(1).
Unless modified or set aside by a judge within 30 days after entry,
the order of a probate commissioner has the same effect as if made by the
judge. ORS 111.185(1), (3).
2.7-4
Effect of Violation of Orders
2.7-4(a)
Contempt of Court
Because the probate court has the general legal and equitable
powers of a circuit court (ORS 111.095), it has the power to punish
violations of its orders and judgments with contempt. The probate court
has the power to enforce its orders and judgments by an execution or
warrant. ORS 111.205(5).
2.7-4(b)
Breach of Fiduciary Duty
A personal representative who improperly exercises a power is

liable for breach of fiduciary duty to interested persons for resulting
damages or loss. The exercise of a power in violation of a court order is a
2-31
2012 Revision
breach of duty. The exercise of a power contrary to a provision in a will

may be a breach of duty. ORS 114.395. See chapter 7 for a discussion of
the liabilities of the personal representative.
2.8
2.8-1
PROBATE COSTS; EXPENSES
Publication Costs
The probate code requires that the following notices be published

once in each of three consecutive weeks:
(1) A notice to interested persons on the appointment of the
personal representative (ORS 113.155); and
(2) A notice of the time and place of a hearing when the person
to be notified cannot be ascertained with reasonable diligence (ORS
111.215(1)(c)).
The costs of publication are allowed to the personal representative
in the settlement of the final account. ORS 116.183(1). See 2.8-4(b).
2.8-2
Appraisers Fees
The personal representative must file an inventory of estate

property showing estimates of the true cash values of estate properties.
ORS 113.165.
The personal representative may employ an independent appraiser
to assist in appraising property the value of which may be subject to
reasonable doubt. ORS 113.185(1). The need for a professional
appraisal presumably will arise only when there are problems of valuation for estate tax purposes, for establishing the basis of the property, or
for distribution among the various heirs or devisees. Appraisers are
entitled to reasonable fees and expenses to be paid as an expense of
administration. ORS 113.185(4); see ORS 116.183. See 2.8-4(a)(1) to
2.8-4(b).
2.8-3
Bond Costs
The personal representative may be required to file a bond. ORS

113.105. See 5.2-6(a) to 5.2-6(d) for discussion of the necessity and
amount of the bond. The bond is for the security and benefit of all
2-32
2012 Revision
interested persons and shall be conditioned upon the personal representative faithfully performing the duties of the trust. ORS 113.105(1).
The costs of the bond are paid by the estate. See 11.4-3.
2.8-4
Personal Representatives Compensation and Expenses
2.8-4(a)
Personal Representatives Compensation
2.8-4(a)(1)
Amount of Compensation
The personal representative is entitled to receive compensation for

services as provided in ORS 116.173. The compensation is a commission
on the whole estate, as follows:
(1) On the property subject to the jurisdiction of the court,
including income and realized gains:
(a)
Seven percent of any sum not exceeding $1,000;
(b)
Four percent of all above $1,000 and not exceeding $10,000;
(c) Three percent of all above $10,000 and not exceeding

$50,000; and
(d)
Two percent of all above $50,000; plus
(2) One percent of nonprobate but taxable property, exclusive of

life insurance proceeds.
ORS 116.173(1). See 11.6-5(a) to 11.6-5(b).
In addition, the court may allow further compensation as is just
and reasonable for any extraordinary and unusual services not ordinarily
required of a personal representative in the discharge of duties. ORS
116.173(2). The probate code does not explain how to determine when
services are extraordinary or unusual. See In re Matter of Phillips Estate,
23 Or App 363, 370, 542 P2d 928 (1975) (the trial judge concluded that
the additional fee was justified by the length of the proceeding, by the
substantial savings effected for the heirs and by the preservation of the
estate due to the personal representatives necessary activities).
In Brown v. Hackney, 228 Or App 441, 447449, 208 P3d 988
(2009), the court included the proceeds of a wrongful death action
2-33
2012 Revision
brought by the personal representative in its calculation of the amount of

the personal representatives fees.
If the estate has more than one personal representative, the fee is
not increased, but must be divided between them as they may agree or as
the court may direct. ORS 116.173(1).
The appraised value of the estate, as shown in the inventory, is
only prima facie evidence of the value of the estate accounted for and is
not conclusive for the purpose of fixing the [personal representatives]
compensation. In re Feehelys Estate, 182 Or 246, 187 P2d 156 (1947);
Kidney Assn of Oregon, Inc. v. Ferguson, 97 Or App 120, 129, 775 P2d
1383 (1989), modified, 100 Or App 523 (1990), revd in part on other
grounds, 315 Or 135 (1992) (see 2.8-5).
When a testator makes special provision in his or her will for the
compensation of a personal representative, the personal representative is
not entitled to any other compensation for services unless, before
appointment, the personal representative signs and files with the clerk of
the court a written renunciation of the compensation provided by the will.
ORS 116.173(3).
PRACTICE TIP: If the will provides for compensation of the
personal representative and the compensation may be less than that
provided by statute, the personal representative may consider
signing a renunciation of the compensation in the will and filing it
with the clerk before his or her appointment. Then, when it is time
to determine compensation based on the work actually done, the
distributions, and the relative income and estate tax considerations,
the personal representative would have flexibility, subject to court
determination, to ask for (1) no fee, (2) the statutory fee, or (3) the
fee prescribed in the will.
Approval of extraordinary fees for the personal representative is
within the probate courts discretion and will be disturbed on appeal only
for abuse of that discretion. Matter of Phillips Estate, 23 Or App 363,
370, 542 P2d 928 (1975). Although recognizing that principle, the
Oregon Court of Appeals nevertheless reduced the personal representatives extraordinary fee by almost two-thirds in Matter of Plues
2-34
2012 Revision
Estate, 63 Or App 677, 684, 666 P2d 835 (1983). In Matter of Plues
Estate, the lawyer had charged less than the personal representative for
the same matter, and the court found nothing in the record to show that
the personal representatives services were more extraordinary or more
valuable than those rendered by the lawyer.
2.8-4(a)(2)
Court May Deny Compensation
The court has the power to deny in whole or in part the personal
representatives request for compensation. ORS 116.123. The court may
also surcharge the personal representative for any loss caused by any
breach of fiduciary duty. ORS 116.123.
In a case in which the personal representative converted certain
assets during administration, the trial court concluded that compensation
was properly allowed because the personal representatives actions were
based on a mistaken, if unwarranted belief and were not done in bad
faith. Matter of Steinbergs Estate, 34 Or App 293, 298, 578 P2d 487
(1978).
In Wall v. Malarkey, 252 Or 261, 262263, 449 P2d 424 (1969),
the court reversed a lower courts denial of compensation to an executor
who had impeded the orderly administration of the estate because of
her conviction that the will she was administering was invalid. The court
said that [b]efore compensation can properly be denied the executrixs
disloyalty must manifest itself in some form of conduct which is
detrimental to the administration of the estate in a material way. Wall,
252 Or at 263.
2.8-4(b)
Expenses
The personal representative is entitled to recover from the estate

all necessary expenses incurred in the care, management and settlement
of the estate, including reasonable fees of appraisers, lawyers, and other
qualified persons employed by the personal representative. ORS
116.183(1).
In addition, a personal representative who defends or prosecutes
any proceeding in good faith and with just cause is entitled to receive
from the estate necessary expenses and disbursements, including
2-35
2012 Revision
reasonable attorney fees, in the proceeding. ORS 116.183(2); In Matter

of Ungers Estate, 54 Or App 713, 716717, 636 P2d 436 (1981). See
2.8-5 regarding attorney fees.
In Matter of Ungers Estate, 54 Or App at 716717, the personal
representative, who was also the sole beneficiary of the will, defended
the will against a claim that the decedent lacked testamentary capacity.
Although the appellate court held that the will was invalid because of
lack of testamentary capacity, the court stated that a personal
representative, whether the sole beneficiary or not, who defends a will in
good faith is entitled to recover expenses and attorney fees from the
estate. Matter of Ungers Estate, 54 Or App at 716. The fact that the
decedent lacked testamentary capacity does not imply bad faith on the
part of the personal representative in defending the will. Matter of
Ungers Estate, 54 Or App at 716717. To deny the personal representative expenses and fees of a will contest, the trial court must make a
specific finding that the will was not defended in good faith. Matter of
Ungers Estate, 54 Or App at 716717.
Upon petition, the probate court may allow a partial award of the
personal representatives expenses before settlement of the final account,
including fees of appraisers, lawyers, and other qualified persons. ORS
116.183(1). See 11.6-5(c).
In an accounting, the fiduciary must disclose any financial
transactions, including reimbursement of expenses, between the fiduciary
and his or her family or friends. UTCR 9.170. UTCR 9.160 governs the
form of accountings. See chapter 11.
2.8-5
Attorney Fees
Authority for the compensation of the attorney for the personal

representative is found in ORS 116.183. The statute allows the court to
make a partial award of attorney fees before settlement of the final
account. ORS 116.183(1). See 11.6-6(a) to 11.6-6(b).
NOTE: The provision allowing the court to make a partial
award of fees is permissive only. Few courts will allow interim
payments of attorney fees, except perhaps in large, lengthy probates.
2-36
2012 Revision
Pursuant to ORS 116.183, the court may award reasonable attorney

fees after considering the following factors:
(1)
Customary fees in the community for similar services;
(2)
The time spent by the lawyer;
(3)
The lawyers experience in such matters;
(4)
The skill displayed by the lawyer;
(5)
The excellence of the result obtained;
(6) Any agreement regarding the fees that may exist between
the personal representative and the lawyer;
(7) The amount of responsibility assumed by the lawyer
considering the total value of the estate; and
(8)
Other factors that may be relevant.
PRACTICE TIP: Whether by detailed inclusion in an

accounting or by separate affidavit, the above information must be
presented to the court. Particular emphasis should be given to
itemizing the work performed and the time spent.
A personal representative may make a valid contract with an
attorney to represent the personal representative in the probate of an
estate, but the contract binds only the personal representative and the
attorney. The personal representative may look to the estate for
reimbursement only for the amount of reasonable fees. In re Conduct of
Coe, 302 Or 553, 562 n 6, 731 P2d 1028 (1987).
COMMENT: Although a lawyers contract with the personal
representative is listed as a factor, its weight (at least insofar as
justifying a higher fee than usual) is presumably minimal.
In addition to being charged with fees incurred by the lawyer for
the personal representative, the estate may also be charged with attorney
fees incurred by another party who, at the partys own expense and not
for the partys sole benefit, successfully brings an action resulting in an
increase in the assets of the estate. Schaad v. Lorenz, 69 Or App 16, 26,
688 P2d 1342 (1984) (citing Jones v. Kuhn, 59 Or App 135, 140, 650 P2d
999 (1982)).
2-37
2012 Revision
Any duty from the personal representative to the lawyer for the
estate is secondary to the personal representatives obligation to the
estate. In a case in which the personal representative refused to use estate
funds to appeal the probate courts reduction of requested attorney fees,
and no bad faith or fraud existed, the personal representative had no duty
to the lawyer in either contract or tort to pursue the appeal. Smith v. U.S.
Nat. Bank, 47 Or App 967, 976977, 615 P2d 1119 (1980).
In determining the amount of appropriate attorney fees, a probate
court may consider whether the lawyer for the personal representative
breached a fiduciary duty owed to the client. In Kidney Assn of Oregon,
Inc. v. Ferguson, 315 Or 135, 144, 843 P2d 442 (1992), the sole
beneficiary of an estate objected to the final accounting, contending that
the lawyer should receive no fees from the estate because the lawyer
committed an ethical violation by simultaneously representing the sole
beneficiary and the personal representative in settling a claim against the
estate. The supreme court said that
a breach of fiduciary duty may be the result of a lawyers
simultaneously representing two or more clients with a conflict of
interest, the consequence of which could be a reduction of a fee or
outright denial of a fee. . . .
. . . But, it is the breach of fiduciary duty owed to a client, rather than a
violation of a disciplinary rule, that may result in a reduction or loss of
a fee.
Kidney Assn of Oregon, Inc., 315 Or at 144. However, in determining

whether a lawyer breached a fiduciary duty to a client, the court may
consider the standard of conduct prescribed by the disciplinary rules.
Kidney Assn of Oregon, Inc., 315 Or at 144.
In McNeely v. Hiatt, 138 Or App 434, 443, 909 P2d 191, adhered
to on recons., 142 Or App 522 (1996), the plaintiffs, who successfully
contested a will, were not equitably entitled to recover attorney fees,
when no facts, statute, or rule was alleged as a basis for the award under
ORCP 68 C(2)(a). On reconsideration, the court adhered to the denial of
attorney fees, noting that courts may award attorney fees in the absence
of a statute or contract when a beneficiary successfully brings suit to
benefit an estate or a trust as a whole. In this case, only the plaintiffs
2-38
2012 Revision
benefited, and the court held that an award of fees would have been
inequitable.
When a lawyer continues to act for a former personal representative or trustee in a claim for attorney fees against the estate after
agreeing to represent the successor fiduciary, a current conflict of interest
exists. Conduct of Morris, 326 Or 493, 503504, 953 P2d 387 (1998).
See Roberts v. Fearey, 162 Or App 546, 555, 986 P2d 690 (1999).
PRACTICE TIP: An unreported case from Polk County (No.
92P4037) provides interesting and practical judicial commentary
on the reasonable exercise of professional judgment in connection
with probate fees. The personal representatives lawyers requested
fees of $165,427. The court determined that a fee of only $50,000
was appropriate, and found that the lawyers judgment concerning
the expenditure of resources was sorely lacking. See the
discussion in Steven W. Moulton, Collecting Fees in Probate
Matters: Remember to Be Reasonable, OSB EST PLAN & ADMIN
SEC NEWSLTR, Oct 1995, at 46.
UTCR 9.060(2) provides that attorney fees requested for a
decedents estate must be supported by affidavit in compliance with ORS
116.183. See 11.6-6(a). In addition, [a]ll . . . attorney fee applications
and accountings in decedents estates . . . must be served in the manner
and on the persons described in ORS 116.093. UTCR 9.060(4). See also
the supplementary local rules (SLRs) adopted by Oregon counties in
accordance with UTCR chapter 9, available at <www.ojd.state.or.us>.
CAVEAT: Lawyers must be aware of the rules and procedures
that the probate judges follow in reviewing and approving requests
for fees. For example, in Multnomah County, requests for attorney
fees must be accompanied by a statement for attorney fees, filed
in the form required by UTCR 5.080, showing the number of hours
expended, the hourly rate charged, and a designation of title for
each person performing work. SLR 9.095 (Multnomah). In Crook
and Jefferson counties, the lawyer for the personal representative
must maintain time records for twelve (12) months and, upon
request of the Court, shall furnish a copy of that record to the Court
2-39
2012 Revision
to assist the Court in fixing a reasonable attorneys fee as provided

by ORS 116.183. SLR 9.061 (Crook/Jefferson).
[E]state lawyers who take attorney fees from an estate without
obtaining prior court approval engage in unethical conduct. In re
Altstatt, 321 Or 324, 333, 897 P2d 1164 (1995). Any such attorney fee
that is collected without approval is unlawful and, hence, an illegal
fee, receipt of which is unethical conduct under Oregon RPC 1.5(a). In
re Altstatt, 321 Or at 333. In In re Conduct of Weidner, 320 Or 336, 340
341, 883 P2d 1293 (1994), the court also found that a lawyer, while
serving as personal representative, improperly took fees for predeath
services when no formal claim had been filed against the estate.
In affirming a probate courts decision in Estate of Grove v.
Selken, 109 Or App 668, 677, 820 P2d 895 (1991), the court disallowed
payment of legal fees to the estates lawyer for certain work more
properly classified as administrative work of the personal representative.
COMMENT: The lawyer in the Estate of Grove case also
served as the personal representative. In Kidney Assn of Oregon,
Inc. v. Ferguson, 97 Or App 120, 127128, 775 P2d 1383 (1989),
modified, 100 Or App 523 (1990), revd in part on other grounds,
315 Or App 135 (1992), the court denied compensation to a lawyer
who performed nonlegal work on behalf of the personal representative. The Oregon Supreme Court ultimately approved the
probate courts award of attorney fees in that case. Kidney Assn of
Oregon, Inc. v. Ferguson, 315 Or 135, 148, 843 P2d 442 (1992).
Thus, the two decisions seem to be inconsistent.
2.9
2.9-1
FINALITY OF ORDERS AND JUDGMENTS; APPEALS

Generally
Determinations, orders, and judgments of the probate court have

the same finality as those of a court of record with general jurisdiction.
ORS 111.095. No distinction in this regard is made for the eastern
Oregon counties of Gilliam, Grant, Harney, Malheur, Sherman, and
Wheeler, where the county court sits as the probate court (ORS 111.055),
except that appeals from county courts are treated differently.
2-40
2012 Revision
Appeals from a county court sitting in probate are to the circuit

court and then to the court of appeals; they are handled in the manner
provided by ORS 5.120 for appeals in judicial proceedings in county
courts generally. ORS 111.105(3). Appeals from a circuit court sitting in
probate are on the record made in the probate court and are to the court of
appeals. ORS 111.105(2).
Although the probate court can continue to administer an estate
while an appeal is pending, the actions it takes cannot substantively affect
the subject of the appeal. In Matter of Trust of Crockett, 145 Or App 151,
155156, 929 P2d 314 (1996), the trial court entered an order approving
the sale of estate real property. Because a prior offer to purchase the
property was the subject of an appeal, the trial court lacked jurisdiction to
enter the second order.
2.9-2
Finality of Orders of Probate Commissioner
A probate commissioner may make an order on certain

uncontested petitions as described in 2.2-3(c)(3). The order is subject to
being modified or set aside by the judge within 30 days after entry of the
order. ORS 111.185(1). If the probate commissioners order is not set
aside or modified by the judge, the order has the same effect as if made
by the judge. ORS 111.185(3).
PRACTICE TIP: Because ORS 111.185(1) allows a 30-day
period for the judge to modify or set aside a probate commissioners order, it seems that any interested person who is
aggrieved by the order should have the right during that 30-day
period to file written objections to the order, and to petition the
judge to modify it or to set it aside. See ORS 111.235.
Any matter presented to the probate commissioner may be
referred by the probate commissioner to the judge. ORS 111.185(2).
2.9-3
Finality of Order Admitting Will to Probate
A will is proved and admitted to probate in common form when

it is uncontested. See Matter of Ross Estate, 25 Or App 191, 196198,
548 P2d 1001 (1976). Normally, this is done ex parte (by submission or
2-41
2012 Revision
appearance) and by the use of an affidavit of the attesting witnesses. ORS

113.055(1).
Within the time set forth in ORS 113.075(3), any interested person
may contest the probate of the will or its validity. ORS 113.075(1). If a
contest is filed, the will must be proved in solemn form, which means
that the facts of the wills validity must be proved by testimony and,
generally, in the same manner as in an action tried without a jury. ORS
113.055(4); see Matter of Rosss Estate, 25 Or App at 196198. Will
contests are discussed in chapter 15.
Although the 1979 Oregon Legislature amended ORS 111.105 and
111.205 to eliminate procedural differences between legal and equitable
remedies, appellate review in will contests continues to be de novo.
Sanders v. U.S. Nat. Bank, 71 Or App 674, 681682, 694 P2d 548
(1985). Dictum to the contrary contained in a footnote in Matter of
Summers Estate, 49 Or App 5, 8 n 3, 618 P2d 1287 (1980), is incorrect.
Sanders, 71 Or App at 677782. See 15.2-1(f).
Although a separate contest proceeding normally follows an initial
ex parte common form hearing, a consolidation of all issues is
permissible when a party seeks to have a later will admitted after the
admission of an earlier will. The bifurcation of issues should be avoided
for purposes of judicial economy and convenience to the parties. Matter
of Rosss Estate, 25 Or App at 197198.
A personal representative may move for the original admission of a
will in solemn form after giving proper notice. If potential contestants
have notice and an opportunity to be heard, ORS 113.075 gives them no
right in a contest proceeding to litigate issues already determined in the
prior hearing. Matter of Summers Estate, 49 Or App at 89.
In Matter of Summers Estate, 49 Or App at 8, the court also noted
that ORS 113.055(4) was amended in 1979 to provide that [i]n the event
of contest of the will or of probate thereof in solemn form, proof of any
facts shall be made in the same manner as in an action tried without a
jury.
2-42
2012 Revision
2.9-4
Finality of Summary Determination of Claim
If a disallowed claim is heard by the probate court in a summarydetermination procedure under ORS 115.145115.175, the order of that
court is final and no appeal may be taken. ORS 115.165(2)(3). Except
for the rule that juries are not permitted when the summary-determination
alternative is used, the significant difference between a summary
determination and a separate action, under ORS 115.145(1)(b), is the
absence of the right to appeal from the summary determination. If either
party desires to retain appeal rights, the claimant must commence a
separate action against the personal representative, on the claimants own
initiative (ORS 115.145(1)(b)) or at the insistence of the personal
representative. ORS 115.155.
2.9-5
Finality of Judgment of Distribution
The judgment of final distribution is a conclusive determination

of the persons who are the successors in interest to the estate and of the
extent and character of their interest therein, subject only to the right of
appeal (see ORS 111.105) and the power of the court to vacate the
judgment. ORS 116.113(4). See Lothstein v. Fitzpatrick, 171 Or 648,
657658, 138 P2d 919 (1943). See also ORCP 71.
For a discussion of void judgments of distribution and cases on the
effect of failure to give proper notice, see 2.5-7.
To the extent that the final account is approved, the personal
representative and surety (if any), subject to the right of appeal and the
courts power to vacate, are relieved of liability for administration. ORS
116.123.
An appeal from a proceeding in the probate court is in the same
manner provided by law for an appeal from the circuit court. ORS
111.105(2). The absence of a judgment of final distribution (or other
judgment that is appealable under ORS 19.205) deprives the appellate
court of jurisdiction.
An order entered in a probate proceeding is not appealable if it
fails to settle the controversy completely and finally. Springer v.
Gollyhorn, 146 Or App 389, 393, 934 P2d 501 (1997). In the Springer
2-43
2012 Revision
case, the entry of a money judgment against a personal representative in

favor of an heir did not finally settle the rights and liabilities of parties
with an interest in the estate. The judgment had no more effect than an
interim order, and the court dismissed the personal representatives
appeal.
The 2003 Legislature amended ORS 116.113 to clarify that a
courts determination of the final distribution is a general judgment,
replacing older language labeling it as a decree. A general judgment can
be challenged on appeal. ORS 18.005(7), 19.205(1). The legislature did
not amend the language concerning the status of orders of partial
distribution under ORS 116.013. However, ORS 18.082(2) provides that
general judgments incorporate earlier written decisions of the court that
were not considered judgments.
2.9-6
Finality of Judgment Discharging Personal Representative
After the filing of receipts or other proof of distribution, the court

enters a supplemental judgment of discharge. ORS 116.213. Except as
provided in ORS 115.004 (see 2.5-7), the discharge releases the
personal representative from further duties and bars any action against
the personal representative and surety. However, within one year after
entry of the judgment of discharge, the court may in its discretion permit
an action to be brought if the order was taken through fraud or
misrepresentation by the personal representative or surety or through the
mistake, surprise, or excusable neglect of the claimant. ORS 116.213.
COMMENT: The lawyer should carefully examine the oneyear bar after considering the cases cited in 2.5-7.
Even after entry of the order of discharge, the court may order the
estate to be reopened if other property is discovered, if any necessary act
remains unperformed or for any other proper cause. ORS 116.233. The
court may order the reopening of an estate only after petition of an
interested person and with such notice as the court may prescribe. ORS
116.233.
The 2003 Legislature clarified that a courts decision discharging
the personal representative is a supplemental judgment to the general
judgment of the final distribution (see 2.9-5), rather than an order. ORS
2-44
2012 Revision
116.213. A supplemental judgment is a judgment that may be rendered

after a general judgment pursuant to a legal authority. ORS 18.005(17).
Supplemental judgments can also be challenged on appeal, as provided
by ORS 19.205(1).
2.9-7
Effect of Order Reopening Estate
If an estate is reopened, a claim already adjudicated or barred may

not be asserted in the reopened administration. ORS 116.233. See
11.10-1 to 11.10-4 regarding reopening an estate.
2.9-8
Recovery of Escheated Property
Within 10 years after the death of a decedent whose estate

escheated in whole or in part to the state, or within eight years after the
entry of a judgment or order escheating property of a decedent to the
state, a claim may be made for the property escheated, or for the proceeds
of it, by a person who at the time of the escheat had no actual knowledge
of the escheat or who at the time was unable to prove entitlement to the
escheated property. ORS 116.253(1).
The claim must be filed with the Director of the Department of
State Lands. The claim is considered a contested case as provided in ORS
183.310. ORS 116.253(2). The petition must include a declaration under
penalty of perjury in the form required by ORCP 1 E and must include
the information set forth in ORS 116.253(2).
In Hitcheva v. Div. of State Lands, 31 Or App 839, 844, 572 P2d
625 (1977), the decedents estate escheated to the state because of an
Oregon statute that prevented an alien heir from inheriting property in
Oregon. When the statute was subsequently ruled unconstitutional, the
court reopened the estate on the petition of the alien heir. However, the
court denied the heirs claim for recovery because she had participated in
the initial proceedings and had knowledge of the escheat. Hitcheva, 31
Or App at 844.
2.9-9
Judgments and Orders
Some confusion exists regarding ORS 111.275 and limited

judgments. ORS 111.275 provides that a probate court may enter a
2-45
2012 Revision
limited judgment only for the following decisions of the court and then
only if there is no just reason for delay:
(1) A decision on a petition for appointment or removal of a
personal representative;
(2)
A decision in a will contest;
(3)
A decision on an objection to an accounting;
(4)
A decision on a request made for a declaratory judgment;
(5)
A decision on a request for an award of expenses; and
(6) Such decision as may be specified by rules or orders of the

Chief Justice of the Oregon Supreme Court.
2-46
2012 Revision
Appendix 2A
Table of Situations Requiring Petitions
Situation
ORS Citation
Any contested question, request for judicial advice,

or application for court order authorizing doubtful
action
111.205,
114.275
Appointment of special administrator
113.005
Appointment of personal representative
113.035
Probate of will
113.035
Establishing foreign will
113.065
Increase or reduction of personal representatives

bond (other than on courts own motion)
113.115
Remove ineligible personal representative
113.195(4)
Support for surviving spouse or dependent children
114.015(1),
114.025(1),
114.035
Setting aside whole estate
114.085
Requiring testimony
114.425
Sale, mortgage, lease, or disposal of property when

(1) sale is in contravention of will, (2) property is
specifically devised and will does not authorize its
sale, or (3) bond has been required and is inadequate
114.325(2)
Personal representative fails or declines to sell,

mortgage, or lease property when cash needed
114.335
Discovery of concealed property,

information
114.425
2-47
2012 Revision
Situation
ORS Citation
Creditor petitions for order directing

personal representative to pay claim
allowed or established
115.185
Partial distribution
116.013
Return of property partially distributed
116.043
Final distribution
116.083(3)(b)
Dispensing with vouchers
116.083(2)(d)
Distribution to foreign personal

representative
116.163
Partial award of personal representatives expenses,

including fees
116.183(1)
Personal representative unable to

distribute property to distributees
116.203
Compensation of personal representative
116.173
Recovery of escheated property
116.253
Apportionment of estate and inheritance taxes
116.323
Reopening of estate
116.233
Administration of estate of absentee
117.005
COMMENT: See 2.4-4.

CAVEAT: This table is illustrative only. Each lawyer must depend
using or modifying this table.
2-48
2012 Revision
Appendix 2B
Table of Notice Requirements
By and to
Whom Given
How
Given
When
Given
ORS
Citation
Notices by Personal Representative

If all heirs and devisees
Delivery
cannot be identified or
or mail
found, notice to estate
administrator appointed by
Director of Department of
State Lands under ORS
113.235
On appoint113.045
ment of
personal
representative
or any time
after appointment if it
appears that
any heir or
devisee of
decedent
cannot be
identified or
found
Notice to court of felony

conviction of person
nominated as personal
representative
Delivery
or mail
On conviction 113.092
Notice to heirs and

devisees
Delivery
or mail
Within 30
days after
appointment
113.145
Notice to interested
persons
Publication On
appointment
113.155
2-49
2012 Revision
By and to
Whom Given
How
Given
When
Given
ORS
Citation
Notice of hearing on
Various
venue determination, to
methods
personal representative in
other proceedings, to
probate court of other
county, and to each person
who petitions for
appointment of the
personal representative
Before hearing 113.025,

111.215
Petition for authority to

sell, mortgage, lease, or
otherwise dispose of
property if (1) sale is
contrary to will, (2)
property is specifically
devised and will does not
authorize sale, or (3)
required bond of personal
representative is
inadequate
Various
methods
Before hearing 114.325(2),

111.215
Notice to known claimants Delivery

or mail
Within 30
115.003(2)
days after
expiration of
three-month or
extended
period after
appointment
Notice to claimant of
disallowance of claim
Within 60
days after
claim is
presented
2-50
2012 Revision
Delivery
or mail
115.135(1)
By and to
Whom Given
How
Given
When
Given
ORS
Citation
Notice to claimant
rejecting summary
determination of claim
Delivery
or mail
Within 30
days after
request for
summary
determination
115.155
Petition or other matter on Various

which court order or
methods
judgment is sought; notice
given to each person
interested
If by mail, at 111.215,
least 14 days 114.275
before
hearing; if by
delivery, at
least 5 days
before
hearing; or if
by publication
when address
is unknown,
publication
once each
week for 3
consecutive
weeks, with
last notice at
least 10 days
before hearing
Petition for judgment of

partial distribution; notice
given as court prescribes
As court
prescribes
As court
prescribes
Notice of hearing for

Delivery
return of property partially or mail
distributed; notice given to
all persons interested
116.013
Before hearing 116.043,

111.215
2-51
2012 Revision
By and to
Whom Given
How
Given
When
Given
ORS
Citation
Notice of time for

Delivery
objections to final account or mail
and petition for
distribution; notice given
to each heir, devisee,
unpaid creditor whose
claim is not barred, and
interested person
At least 20
days before
date fixed in
notice
116.093,
UTCR
9.060(4)
Petition for partial award Per court

of personal
order
representatives expenses,
including fees
Per court
order
116.183(1),
116.093,
UTCR
9.060(4)
Notices by Others
By successor personal
representative, notice to
interested persons
Publication On
appointment
113.225
By any interested person,

notice of any proceeding
instituted
Delivery
or mail
When
proceeding
instituted
113.087(2)
By surviving spouse,
claim for elective share;
manner of making election
and notice as described in
ORS 114.610
As
described
in ORS
114.610
Within 90
months after
decedents
death
114.600,
114.610
2-52
2012 Revision
By and to
Whom Given
How
Given
When
Given
ORS
Citation
By surviving spouse or
Delivery
dependent child, claim for or mail
support order; notice to
and to all persons whose
distributive shares would
be affected
14 days before 114.015,

hearing
111.215
By creditor, notice to
personal representative of
request for summary
determination of
disallowed claim
Delivery
or mail
Within 30
days after
notice of
disallowance
By court, notice to
claimant and personal
representative of hearing
for summary
determination of claim
Delivery
or mail
14 days before 115.165(2),

hearing
111.215

petition to reopen estate
As court
prescribes
As court
prescribes
116.233

petition on which court
order is sought; notice
given to each person
interested
Various
methods
Before
hearing,
various
timelines
depending on
method of
notice
111.215,
114.275
115.145(1)(a)
2-53
2012 Revision
By and to
Whom Given
How
Given
When
Given
ORS
Citation
By court clerk, notice of

hearing on petition for
administration of estate of
absentee; notice must be
given to absentee,
devisees, and heirs
Mail and
delivery;
publication
or other
means by
court order
Before hearing 117.015

date set by
clerk, not less
than 30 days
after filing of
petition
COMMENT: See 2.5-1 to 2.5-4.

2-54
2012 Revision
Appendix 2C
Table of Judgments and Orders in Probate Court
NOTE: This table was compiled by Philip N. Jones, Duffy

Kekel LLP.
Court Action
Probate Estates
Decision on a petition for appointment of

personal representative.
Limited judgment.
ORS 111.275(1)(a). See Comments (1)
(3). Usually also admits will to probate.
Admitting will to probate.
Limited judgment,
if it also appoints a personal
representative.
ORS 111.275(1). See Comments (1)
(3).
Decision on a petition for removal of

Limited judgment, whether granting or

denying removal. ORS 111.275(1)(a).
See Comments (1)(2).
Decision in a will contest.
Limited judgment. ORS 111.275(1)(b).

Declaratory-judgment decisions.
Limited judgment. ORS 111.275(1)(d).

Decisions awarding fees and/or expenses

(see below for final accountings).
Limited judgment. ORS 111.275(1). See

Comments (1)(2).
Decision approving an interim

accounting without objection and without
awarding fees or expenses.
Order.
Decision on interim accounting after

objection, or awarding fees or expenses.
Limited judgment. ORS 111.275(1)(c),

(e). See Comments (1)(2).
Decision on petition for final accounting,

approving distribution, and awarding fees
and expenses, or after an objection.
General judgment approving final

account and approving final
distribution.
ORS 111.275(1) (see Comments (1)
(2)), ORS 116.113, ORS 18.005(7).
2-55
2012 Revision

Court Action
Probate Estates
Decision on petition for final accounting

and approving distribution without
objection, but not awarding fees or
expenses.
Order approving final account and

general judgment of final distribution.
ORS 116.113, ORS 18.005(7).
Discharging fiduciary after general

judgment on final account.
Supplemental judgment.
ORS 116.213, ORS 18.005(17).
Additional decisions after entry of

general judgment.
Supplemental judgment.
ORS 18.005(17).
COMMENTS: See 2.7-2.

(1) ORS 111.275(2) requires the court to determine that there
is no just reason for delay before entering a limited judgment under
ORS 111.275(1). However, the limited-judgment document need not
reflect that determination. ORS 111.275(2); see Interstate Roofing, Inc. v.
Springville Corp., 347 Or 144, 148156, 218 P3d 113 (2009). The safest
practice would be to include that representation in the petition and then to
include that determination in the limited judgment. It is also not
necessary to use the word adjudged in a limited judgment. Interstate
Roofing, Inc., 347 Or at 156164.
(2) ORS 111.275(1) provides that the court may enter a
limited judgment in the specified situations. Most courts now require the
use of a limited judgment, even though the use of an order appears to be
permissive under the statute. An order would be appropriate in these
situations if there is a reason for delaying entry of an appealable judgment, such as when a proceeding is close to being terminated and a
general judgment can be used to combine all the rulings of the court.
(3) The use of the term limited judgment in ORS 111.275 may
be confusing to financial institutions and others dealing with a fiduciary
operating pursuant to an appointment under a limited judgment. To
clarify that the fiduciary has full powers to act as fiduciary, it is suggested that both the caption and the body of the limited judgment reflect
those full powers. For example, the document appointing a personal
2-56
2012 Revision
representative might be labeled as a limited judgment admitting will to

probate and appointing personal representative with full powers.
(4) The provisions summarized in Comments (1)(3) were
enacted by HB 2359 (2005 Or Laws ch 568) and codified as part of ORS
chapters 111 (general provisions), 116 (probate estates), and 125 (protective proceedings). Additional changes were made by the 2009
Legislature. See 2009 Or Laws ch 50.
(5) ORS 111.205(4) states that the probate court operates
through orders and judgments. ORS 111.275(1) provides that limited
judgments may be used only in certain enumerated situations. For estates,
ORS 116.113 states that a general judgment must be used to direct the
distribution of assets. Accordingly, the above table indicates that an order
should be used in all situations in which the statute is silent as to the type
of document to employ. For the same reason, court decisions should be in
the form of orders in situations not described in the above table.
(6) For the definitions of general judgment and limited
judgment, see ORS 18.005. A general judgment is a judgment that
disposes of all the remaining issues (requests for relief) that have not
previously been decided by a limited judgment. ORS 18.005(7). However, a proceeding might result in interim rulings on various issues, and
those interim rulings will be entered as limited judgments if they dispose
of one or more issues (one or more requests for relief), but less than all
the issues. ORS 18.005(13). They will be entered as orders if they do not
dispose of a request for relief. ORS 18.005(13). A limited judgment may
not be used to dispose of a portion of a claim . . . ; rather, a limited
judgment must dispose of a whole claim or of all claims against a party.
Steele v. Mayoral, 231 Or App 603, 611, 220 P3d 761 (2009).
A supplemental judgment may be entered after the entry of a
general judgment. ORS 18.005(17). A supplemental judgment usually
deals with the discharge of the fiduciary and other matters specifically
authorized by statute in probate, conservatorship, and guardianship proceedings. See ORS 116.213 (discharge of personal representative).
Limited judgments, general judgments, and supplemental judgments are appealable, assuming that the appealing party preserved the
2-57
2012 Revision
right to appeal by timely objecting to the entry of the judgment and by

filing a notice of appeal within the applicable time period. ORS 19.205.
The time period for appeal is generally 30 days from entry of the
judgment. ORS 19.255.
(7) In trust proceedings, a general judgment is usually entered at
the conclusion of the proceeding. However, a proceeding might result in
interim rulings on various issues, which are discussed above. In those
situations, ORS 111.275 (which governs probates) does not apply, and
ORS 18.005(7)(a) and ORS 18.005(13)(d) do apply. That latter statute
authorizes limited judgments only when a legal authority specifically
authorizes the use of a limited judgment. As a result, limited judgments
are available to a lesser degree in trust matters than in probates, and
orders should be used for most interim rulings in trust proceedings.
(8) In wrongful death probates, an order should be used to
approve a settlement and/or an apportionment of the proceeds of the
wrongful death action pursuant to ORS 30.040 and 30.050. After the
order is entered and the proceeds distributed, the lawyer must file receipts
with the court and request a general judgment incorporating the prior
order(s), discharging the personal representative, exonerating the bond (if
any), and closing the estate. See ORS 116.083116.133.
CAVEAT: The above comments only summarize the law. The
lawyer must review the text of the statutes regarding the application of
the law to particular situations. Statutes not cited here may also be
relevant.
2-58
2012 Revision
Appendix 2D
Table of Potential Probate Situations
ORS Citation
Situation
Opening Estate
Order appointing special administrator (if uncontested, 111.185(1),
may be made by probate commissioner)
113.005
Limited judgment admitting will to probate (may be
made by probate commissioner)
111.185(1),
111.225,
113.125(1)
Limited judgment appointing personal representative

and setting bond (may be made by probate
commissioner)
111.185(1),
111.275,
113.105,
113.085
Requiring personal administrator to give bond even

though waived by will
113.105(1)
Increasing or reducing amount of personal

representatives bond
113.115
Order establishing (or transferring) venue
113.025
Provisions for Spouse, Children

Order support of spouse, dependent children
114.015,
114.085
Order temporary support of spouse, dependent

children
114.035
Order modifying or terminating support order
114.045
2-59
2012 Revision
ORS Citation
Situation
Granting, reducing, or denying, spouses elective
share (if decedent and surviving spouse were living
apart)
114.725
Dealing with Property

Sale of property, when court order is required to do so
114.325(2)
Limiting powers of personal representative
114.305
Requiring personal representative to raise cash
114.335
Claims
Requiring payment of allowed claim to creditor
115.185
Inheritance Tax
Apportionment of estate and inheritance taxes
116.323
Compromise of inheritance tax claim
118.350
Accountings
Annual, extending time for
116.083(1)(a)
Requiring at other times
116.083(1)(d)
Waiver of vouchers accompanying account
116.083(2)(d)
Time for hearing objections filed to final account
116.103
General judgment approving final account
116.113,
111.275,
18.005
Setting apart whole estate for supportsummary

closing
114.085
2-60
2012 Revision
ORS Citation
Situation
Partial distribution
116.013
Return of property after partial distribution
116.043
Claim unliquidated at time of distribution
115.085(3)
General judgment of final distribution
116.113,
111.275,
18.005
Abatement of certain specifically devised property
116.133(5)
Denying payment of interest to general pecuniary

devisee in certain cases
116.143(2)
Distribution to foreign personal representative
116.163
Escheat
116.193
Disposition of unclaimed assets
116.203
Supplemental judgment of discharge of personal

representative
116.213
Reopening estate
116.233
Miscellaneous
Fix compensation of personal representative
116.173
Removal of personal representative
113.195
Limited judgment appointing successor personal

representative
113.215,
111.275
Surcharging or denying compensation to personal

representative
116.123
2-61
2012 Revision
ORS Citation
Situation
Appointing appraiser
113.185(2)
Changing method or time of notice of hearing
111.215(2)
Discovery of property, writings, or information
114.425
Transferring jurisdiction from county court to circuit

court
111.115
Death of absentee
117.035
COMMENT: See 2.7-2.

2-62
2012 Revision
Appendix 2E
Table of Time Limitations
Action Required
Time Limitation
ORS Citation
Present claims before

being barred
Within four months after

first publication of notice
to interested persons, or 30
days after mailing or
delivery of required notice
(whichever is later)
115.005(2)
(4)
Personal representative
gives notice of claim
disallowance
Within 60 days after claim

presented
115.135(1)
rescinds previous
allowance of claim
At least 30 days before

filing of final account
115.135(3)
Claimant files separate

action or files request for
summary determination
of disallowed claim
Within 30 days after date

of mailing or delivery of
notice of claims
disallowance
115.145(1)
rejects summary
determination of claim,
demands separate action
Within 30 days after

service of claimants
request for summary
determination
115.155
2-63
2012 Revision
Action Required
Time Limitation
ORS Citation
Claimant must file

separate action on claim

receipt of notice that
rejects request for
summary determination
115.155
Closing of estate
summarily when entire
net estate set aside for
support
After expiration of four

months after first
publication of notice to
interested persons
114.085
File appeal in tax court to

inheritance tax
determination
Within 90 days of service

by mail of order
118.171,
305.560,
305.280
Give notice of hearing
If by personal delivery, at
111.215(1),
least five days before
(2)
hearing; if by mail, at least
14 days before hearing; or
if by publication,
publication once each
week for three consecutive
weeks, with last notice at
least 10 days before
hearing (however, the
court may change any of
these time requirements)
2-64
2012 Revision
Action Required
Time Limitation
ORS Citation
File objections to a
petition already filed
On or before date set for

hearing
111.235
Modify or set aside order

of probate commissioner
Within 30 days after entry

of order
111.185(1)
Require testimony of
witness attesting to will,
file petition for
Within 30 days after order

admitting will is made
113.055(2)
files affidavit of giving
notice to heirs, devisees

appointment
113.145(4)
files inventory

appointment, unless court
grants longer time
113.165
Surviving spouse elects

to receive elective share
Within nine months after

death of spouse
114.610,
114.600
Contest will
Within four months after

date of delivery or mailing
of information to devisees
and heirs, or within four
months after date of first
publication of notice to
interested persons,
whichever is later
113.075(3)
2-65
2012 Revision
Action Required
Time Limitation
File accountings
116.083
anniversary date of
appointment, unless court
orders otherwise; within 30
days after removal or
resignation of personal
representative; when estate
is ready for distribution; at
such other times as ordered
by the court
Mail notice of time fixed

for filing objections to
final account and petition
for distribution
At least 20 days before

date fixed in notice
116.093(1)
File objections to final

account and petition for
distribution
Within the time fixed in

notice
116.103
Action against personal

representative who has
been discharged
Within one year after entry 116.213

of judgment of discharge
(by permission of probate
court, if judgment was
taken through either (1)
fraud or misrepresentation
of personal representative
or (2) mistake or neglect of
claimant)
2-66
2012 Revision
ORS Citation
Action Required
Time Limitation
ORS Citation
Claim for return of

escheated property
Within 10 years after the

death of a decedent whose
estate escheated to the
state, or within eight years
after entry of an order or
judgment of escheat
116.253(1)
Delivery of personalty of
nonresident decedent to
foreign personal
representative
No sooner than three

months after death of
nonresident decedent
116.263
Absentees right to
recover distributed
property or proceeds
from it
Within five years after

distribution
117.075(2)
COMMENT: This table lists various statutory time limitations and

deadlines that must be observed under the probate code, as discussed in
pertinent chapters of this publication. The code authorizes the court to
extend or vary the stated time period in only some cases.
2-67
2012 Revision
Form 2-1
Order Transferring Venue
IN THE __________ COURT OF THE STATE OF OREGON

FOR THE COUNTY OF __________
[Probate Department]
In the Matter of the
Estate of
)
)
)
)
)
)
____________________,
Deceased.
Case No. _____

ORDER TRANSFERRING
VENUE
On the petition of _______________ for determination of venue,

the Court finds:
1.
On _____________, 20___, ________________ filed a petition in
the probate court of _______________ County for the appointment of
_________________ as personal representative of the estate of
________________, deceased, and on _____________, 20___, the
probate court appointed ______________ as the personal representative.
2.
On _____________, 20___, ________________ filed a petition in
the probate court of _______________ County for the appointment of
_______________ as personal representative of the estate of the same
decedent and that court, on ____________, 20___, appointed
_______________ as the personal representative.
3.
After learning that proceedings for the appointment of a personal
representative for the estate of the same decedent had been commenced
in more than one county, _______________ petitioned this Court for a
determination of venue pursuant to ORS 113.025 and caused due notice
to be served on each person interested in the subject of the petition.
2-68
2012 Revision
4.
The transfer of administration of this estate to ______________
County is in the best interest of the above-entitled estate.
IT IS THEREFORE ORDERED that:
5.
All proceedings in _______________ County concerning the
administration of the estate of the above-named decedent are hereby
stayed and forever terminated.
6.
The clerk of this Court will transmit to the clerk of the probate
court of _______________ County a transcript of the proceedings herein,
together with all original papers filed in this proceeding, including this
order.
DATED: _______________, 20___.
/s/__________________________
[judges name]
Judge
PERSONAL
[name]
[address]
[telephone no.]
[fax no.]
REPRESENTATIVE:
2-69
2012 Revision
LAWYER FOR PERSONAL REPRESENTATIVE:

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 2.3-4(a) to 2.3-4(b). See UTCR 2.010 and

UTCR 9.030 for the form of documents, including requirements regarding document title, spacing, and format.
NOTE: The last page of every order in the probate court must
include the name, address, telephone number, fax number, e-mail
address, and bar number of the attorney of record. UTCR 9.030(1). The
last page of every order must also include the name, address, and
telephone number of the personal representative. UTCR 9.030(2). See
also UTCR 2.010(7), (12).
2-70
2012 Revision
Form 2-2
Order Establishing Venue Where First

Commenced
IN THE ____________ COURT OF THE STATE OF OREGON

Estate of
)
)
)
)
)
)
____________________,
Deceased.
Case No. _____

ORDER ESTABLISHING
VENUE WHERE FIRST
COMMENCED
On the petition of _______________ for determination of venue,

the Court finds:
1.
On ____________, 20___, _______________ filed a petition in
this court for the appointment of _________________ as personal
representative of the above-entitled estate, and on ____________, 20___,
this Court appointed _______________ as personal representative.
2.
On _____________, 20___, _____________ filed a petition in
probate court of _______________ County for the appointment of
_______________ as personal representative for the estate of the same
decedent and that court, on ____________, 20___, appointed
_______________ as the personal representative.
3.
After learning that proceedings for appointment of a personal
representative for the estate of the same decedent had been commenced
in more than one county, _______________ petitioned this Court for a
determination of venue pursuant to ORS 113.025 and caused due notice
to be served on each person interested in the subject of that petition.
2-71
2012 Revision
4.
The administration of the estate of the above-named decedent in
this county is for the best interest of the estate.
IT IS THEREFORE ORDERED that:

5.
(a) All proceedings in _______________ County concerning
administration of the estate of the above-named decedent are forever
stayed; and
(b) The clerk of this Court will transmit to the clerk of the
probate court of _______________ County a certified copy of this order.
DATED: _______________, 20___.
/s/__________________________
[judges name]
Judge
PERSONAL REPRESENTATIVE:
[name]
[address]
[telephone no.]
[fax no.]
2-72
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 2.3-4(a) to 2.3-4(c). See UTCR 2.010 and UTCR

9.030 for the form of documents, including requirements regarding
document title, spacing, and format.
NOTE: The last page of every order in the probate court must
also UTCR 2.010(7), (12).
2-73
2012 Revision
Form 2-3
Notice of Hearing
IN THE _____________ COURT OF THE STATE OF OREGON

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

NOTICE OF HEARING
NOTICE IS HEREBY GIVEN that _______________ has filed

herein a [nature of document filed], a copy of which is attached, and that
a hearing has been set thereon on _____________, 20___, at ___ [a.m. /
p.m.] in the _______________ courtroom of this Court, located at
_________________.
DATED: _______________, 20___.
/s/__________________________
[petitioners
name]
Petitioner
PETITIONER:
[name]
[address]
[telephone no.]
[fax no.]
2-74
2012 Revision
LAWYER FOR PETITIONER:

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 2.5-1. See UTCR 2.010 for the form of documents. See also UTCR 9.030(1).
NOTE: All documents must include the authors name, address,
telephone number, fax number, if any, and, if prepared by an attorney,
the name, e-mail address, and the Bar number of the author and the trial
attorney assigned to try the case. UTCR 2.010(7).
2-75
2012 Revision
Form 2-4
Admission of Personal Service
IN THE _____________ COURT OF THE STATE OF OREGON

Estate of
)
) Case No. _____
)
) ACCEPTANCE OF
) PERSONAL SERVICE
)
____________________,
Deceased.
STATE OF __________
)
) ss.
)
Service of notice of hearing on [describe petition, report, etc.] is

hereby accepted on _______________, 20___, by receiving a certified
copy.
/s/__________________________
SUBSCRIBED AND SWORN TO before me on _____________,

20___.
/s/__________________________
COMMENT: See 2.5.5.
2-76
2012 Revision
Form 2-5
Waiver of Notice

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

WAIVER OF NOTICE
The undersigned hereby waives notice of the time and place of

hearing on [describe petition, report, account, etc., as to which notice is
waived].
DATED: ________________, 20___.
/s/__________________________
[name of person entitled to notice]
PERSON ENTITLED TO NOTICE:
[name]
[address]
[telephone no.]
NOTE: Only persons entitled to notice can waive notice.

COMMENT: See 2.5-6.
2-77
2012 Revision
Form 2-6
Waiver of Notice and Consent to Entry of Order

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

WAIVER OF NOTICE AND
CONSENT TO ENTRY OF
ORDER
The undersigned hereby waives notice of the time and place of

hearing on [describe petition, report, account, etc., for which notice is
waived], acknowledges receipt of a copy of the [petition, report, account,
etc.], and consents to the immediate entry of the order requested therein.
DATED: _________________, 20___.
/s/__________________________
[name of person entitled to notice]
PERSON ENTITLED TO NOTICE:
[name]
[address]
[telephone no.]
COMMENT: See 2.5-6.

2-78
2012 Revision
Chapter 3
PREADMINISTRATION PROCEDURES
HOLLY N. MITCHELL, B.A., Lewis & Clark College (1975); J.D., Lewis & Clark
Law School (1984); member of the Oregon State Bar since 1984 and the
Washington State Bar Association since 2006; attorney, Duffy Kekel LLP,
Portland.
The author made extensive use of the previous chapter material prepared by Kornelia
A. Dornmire and acknowledges her contribution.
3.1
SCOPE OF CHAPTER ............................................................. 3-2
3.2
ROLE OF LAWYER AS COUNSELOR ................................. 3-3
3.3
DISPOSITION OF REMAINS ................................................. 3-4

3.3-1
3.4
3.5
Anatomical Gifts........................................................... 3-4
3.3-1(a)
Anatomical Gifts Before Death ........................ 3-4
3.3-1(b)
Gift at the Time of Donors Death .................... 3-6
3.3-2
Autopsy and Other Investigation

Regarding Cause of Death ............................................ 3-8
3.3-3
Funeral, Burial, and Cremation .................................... 3-9
3.3-3(a)
Right to Control ................................................ 3-9
3.3-3(b)
Special Administrator to Take

Charge of Remains .......................................... 3-11
3.3-3(c)
Arrangements by Deceased or Others,

Inter Vivos....................................................... 3-11
3.3-3(d)
Arrangements with Funeral Director .............. 3-12
3.3-3(e)
Cremation ........................................................ 3-13
COLLECTION OF DOCUMENTS AND

INFORMATION ..................................................................... 3-14
3.4-1
Wills, Codicils, and Trust Agreements....................... 3-14
3.4-2
Other Documents ........................................................ 3-18
3.4-3
Determining Interested Parties ................................... 3-19
PROTECTION OF PROPERTY............................................. 3-20

3-1
2012 Revision
Chapter 3 / Preadministration Procedures
3.6
3.5-1
Power of Personal Representative

Before Appointment .................................................... 3-20
3.5-2
Special Administrator.................................................. 3-20
3.5-3
Safekeeping and Special Arrangements...................... 3-20
3.5-4
Custody of Decedents Pet .......................................... 3-21
3.5-5
Delivery to Heirs or Devisees ..................................... 3-21
PREPARING FOR ADMINISTRATION ............................... 3-23

3.6-1
Alternatives to Probate ................................................ 3-23
3.6-2
Special Proceedings .................................................... 3-24
3.6-2(a)
Absentees and Missing Persons ...................... 3-24
3.6-2(b)
Small Estates.................................................... 3-24
3.6-2(c)
Wrongful Death ............................................... 3-25
3.6-3
Advice to Interested Parties of Analysis

and Recommendations ................................................ 3-25
3.6-4
Selection of Venue ...................................................... 3-25
3.6-5
Filing the Petition ........................................................ 3-26
3.6-6
Information Lists, Checklists, and Calendars ............. 3-27
3.6-6(a)
Master Information List and

Information Checklist ...................................... 3-27
3.6-6(b)
Probate Checklist ............................................. 3-27
Appendix 3A Master Information List .............................................. 3-28

Appendix 3B Initial Information Checklist ....................................... 3-36
Appendix 3C Probate Checklist ........................................................ 3-44
Form 3-1
Appointment of Person to Make Decisions

Concerning Disposition of Remains ................................ 3-53
3.1
SCOPE OF CHAPTER
This chapter covers matters that require attention after the death of
a person, but before administration. Topics included are counseling of the
3-2
2012 Revision
Preadministration Procedures / Chapter 3
family, disposition of remains, collection of documents and information,

protection of property, and preparation for administration.
3.2
ROLE OF LAWYER AS COUNSELOR
The role of a lawyer as family counselor has no greater significance than when assisting a decedents family and friends. The
bereaved are frequently in a state of confusion or emotional shock and
face unfamiliar problems, often aggravated by incorrect or conflicting
advice. Whether the lawyer has a close personal relationship and intimate
knowledge of the decedents financial affairs, or whether this is the initial
contact with the family, the lawyer can, by patient explanation, do much
to allay the familys fears and concerns and assist with matters that
require attention.
Counseling may also include determining whether sufficient cash
is available for immediate needs; suggesting the names of accountants,
investment counselors, and other advisers whose assistance may be
needed; and helping the family notify interested persons of the decedents
death.
Among those to be notified are (1) the next of kin, (2) the post
office, (3) institutions holding funds, (4) partners and associates,
(5) parties to contracts and pending transactions, (6) law enforcement
agencies, (7) the Social Security Administration or the Railroad
Retirement Board, (8) the United States Department of Veterans Affairs,
(9) the Public Welfare Division, (10) pension and profit-sharing trusts,
(11) trustees of trusts, and (12) insurance companies. It may be appropriate to delay notifying some or all of these persons until the personal
representative is appointed.
The lawyer should consider meeting with family members to
explain the general terms of the provisions of a will (if any), the process
of administration, and the wishes and directions of the decedent (if
known by the lawyer). Although the family members may have already
read and understood the will, a traditional reading of the will or review
of its provisions may be helpful. Being available on short notice to
accommodate the travel plans of the interested parties and for necessary
3-3
2012 Revision
funeral and burial arrangements is important and will be appreciated by

the family.
NOTE: In Oregon, a surviving registered domestic partner
has the same rights and benefits granted to a surviving spouse
under Oregon law. ORS 106.340. Therefore, references in this
chapter to surviving spouses also include registered domestic
partners.
3.3
3.3-1
DISPOSITION OF REMAINS
Anatomical Gifts
In 2007, the Revised Uniform Anatomical Gift Act, ORS 97.951

97.983, was enacted in Oregon. Section 3.3-1(a) discusses anatomical
gifts made before death, and 3.3-1(b) discusses anatomical gifts made
after the decedents death.
3.3-1(a)
Anatomical Gifts Before Death
During the donors lifetime, an anatomical gift to take effect on the

donors death may be made for the purpose of transplantation, therapy,
research, or education. ORS 97.955(1). A gift may include the donors
organs, eyes, and tissue. See ORS 97.969. An anatomical gift may be
made by (1) an adult donor; (2) an emancipated minor; (3) a minor who
is eligible to apply for a drivers permit; (4) an agent under a power of
attorney for health care or an advance directive (unless the power of
attorney or other record prohibits the agent from making the gift), or an
agent expressly authorized to make an anatomical gift by a signed
document; (5) a parent of the donor, if the donor is an unemancipated
minor; or (6) the donors guardian. ORS 97.955(2).
An adult donor may make an anatomical gift (1) by a designation
on the donors driver license or identification card; (2) in a will (see ORS
112.225 regarding who may make a will); (3) by an oral or written
designation made during a terminal illness or injury, witnessed by two
adults, one of whom is disinterested; (4) by a donor card or other record
signed by the donor; or (5) by authorizing that a statement, symbol or
designation indicating that the donor has made an anatomical gift is to be
3-4
2012 Revision
included on a donor registry. ORS 97.957(1). Method (5) can be

accomplished by registering online at <www.donatelifenw.org>.
A document creating an anatomical gift is valid if it was executed
in accordance with ORS 97.95197.982; the laws of the state or country
where it was executed; or [t]he laws of the state or country where the
person making the gift was domiciled, had a place of residence or was a
national at the time the document of gift was executed. ORS 97.976(1).
If an anatomical gift is valid under the statute, the laws of Oregon govern
the interpretation of the document creating the gift. ORS 97.976(2).
Except as provided in ORS 97.959(7)(8) (regarding gifts made by
an unemancipated minor or by an agent or guardian of a donor), an
anatomical gift made under ORS 97.957 may be amended or revoked
only by the donor in accordance with ORS 97.959. ORS 97.959(1). An
anatomical gift made by a designation on a driver license or identification
card is not revoked by the revocation, suspension, expiration, or
cancellation of the driver license or identification card on which the gift
was made. ORS 97.957(3).
An anatomical gift made by will may be revoked in the manner
generally provided for the amendment or revocation of wills. ORS
97.959(6); see also ORS 97.959(4). An anatomical gift by will remains
effective even though the will is not offered for probate or is subsequently declared invalid for testamentary purposes. ORS 97.957(4).
A donor or other authorized person may amend or revoke an
anatomical gift other than one made on a driver license or will as follows:
(1)
By a record signed by the donor or the authorized person;
(2) By a record signed by a person acting at the direction of the

donor or authorized person, if the donor or authorized person is
physically unable to sign and the record is witnessed by at least two
adults, at least one of whom is disinterested;
(3)
By a later-executed document that amends or revokes a
previous gift;
(4) By destruction or cancellation of the document evidencing
the gift with the intent to revoke the gift;
3-5
2012 Revision
(5) By any form of communication made by the donor during a

terminal illness or injury addressed to at least two adults, at least one of
whom is a disinterested witness; or
(6) By a parent of an unemancipated minor, if the minor dies
and the parent is reasonably available.
ORS 97.959.
An agent or guardian of a donor may amend or revoke an
anatomical gift only if (1) the agent or guardian made the gift under
subsection (2)(b) or (2)(d) of ORS 97.955 or (2) the power of attorney
for health care or other record appointing the agent expressly authorizes
the agent to amend or revoke anatomical gifts. ORS 97.959(8).
A donors revocation of an anatomical gift is not a refusal and
does not prohibit another authorized person from making an anatomical
gift of the donors body or body part. ORS 97.963(2). Similarly, a
revocation of an anatomical gift by an authorized person does not
prohibit another authorized person from making an anatomical gift. ORS
97.963(4).
3.3-1(b)
Gift at the Time of Donors Death
An anatomical gift of a decedents body may be made by any

member of the following classes of persons, in the following order of
priority, who is reasonably available at the time of the decedents death
and who has no knowledge of either a contrary direction given by the
decedent or an objection by a person in the same or a prior class:
(1) An agent of the decedent under a power of attorney for
health care or advance directive;
(2)
The spouse of the decedent;
(3)
An adult child of the decedent;
(4)
A parent of the decedent;
(5)
An adult sibling of the decedent;
(6)
An adult grandchild of the decedent;
(7)
A grandparent of the decedent;
3-6
2012 Revision
(8) An adult who exhibited special care and concern for the
decedent;
(9)
A guardian of the decedent at the time of death; or
(10) Any other person having the authority to dispose of the

decedents body.
ORS 97.965.
An anatomical gift by a person other than the decedent can be
made by a signed document, or by the persons oral communication that
is electronically recorded or is contemporaneously reduced to a record
and signed by the recipient of the communication. ORS 97.967(1).
If an authorized person makes an anatomical gift of the decedents
bodyremains, any member of the same or prior class may revoke or
amend the gift, if the procurement organization, transplant hospital,
physician, or technician removing the body part is notified before
removal procedures have begun. ORS 97.967(2)(3). However, if an
anatomical gift was made by the decedent or another person under ORS
97.957 and the gift was not revoked at the time of the decedents death,
the gift is irrevocable and is not subject to the consent, concurrence,
cancellation, or substantial revision of any person. ORS 97.963(1).
If a prospective donor has an advance directive and the terms of
the advance directive conflict with the express or implied terms of a
potential anatomical gift regarding administration of measures necessary
to ensure the medical suitability of a body part for transplantation,
therapy, research or education, the prospective donor and his or her
attending physician must confer to resolve the conflict. ORS 97.978(2). If
the prospective donor is incapable of resolving the conflict, the conflict
must be resolved by the prospective donors agent under the advance
directive or, if the agent is not reasonably available, by another person
authorized by law (other than in ORS 97.95197.982) to make health
care decisions for the prospective donor. ORS 97.978(3).
If an anatomical gift conflicts with any direction regarding the
disposition of the decedents remains pursuant to ORS 97.130 (see 3.33(a)), the donation of anatomical gift takes priority if the person making
3-7
2012 Revision
the anatomical gift is of a priority the same as, or higher than, the person
directing disposition of remains. ORS 97.130(5).
3.3-2
Autopsy and Other Investigation Regarding Cause of Death
An autopsy may be performed to obtain evidence of a criminal act,

malpractice, or other negligence (or the absence of these), or to establish
the time of death. The evidence provided by an autopsy may support an
insurance claim by establishing that the death was accidental, by
establishing that the death occurred within the policy period, or by
negating an excluded cause of death.
The medical examiner must investigate all deaths (1) [a]pparently
homicidal, suicidal or occurring under suspicious or unknown circumstances; (2) resulting from unlawful drug use; (3) occurring while in
police custody or incarceration; (4) [a]pparently accidental or following
an injury; (5) occurring during or arising from employment;
(6) occurring while not under the care of a physician during the period
immediately preceding death; (7) related to disease that might constitute
a threat to public health; or (8) involving the disposal of a human body in
an offensive manner. ORS 146.090.
A medical examiner or district attorney may order an autopsy in
any death requiring investigation. ORS 146.117. When no autopsy is
ordered by a medical examiner or district attorney pursuant to ORS
146.117, an autopsy may be conducted with the prior written consent of a
person within the first applicable class of the following listed classes:
(1)
(2)
older;
(3)
(4)
older;

A son or daughter of the decedent 18 years of age or
Either parent of the decedent;
A brother or sister of the decedent 18 years of age or
(5)
A guardian of the decedent at the time of death;
(6)
A person in the next degree of kindred to the decedent;
3-8
2012 Revision
(7)
The personal representative of the estate of the decedent;
or
(8) The person nominated as the personal representative of the
decedent in the decedents last will.
ORS 97.082(1).
3.3-3
Funeral, Burial, and Cremation
3.3-3(a)
Right to Control
Any person of sound mind who is age 18 or older may direct the
disposition of his or her own remains, either by completion of a signed
instrument or by prearrangement with any licensed funeral service
practitioner. ORS 97.130(1). If the decedents direction cannot be carried
out, either because the parties who are financially responsible for the
disposition lack sufficient funds or because the disposition would be
unlawful, then the direction is void. ORS 97.130(6).
In the absence of actual notice of a contrary direction by the
decedent, the disposition of the decedents remains may be determined
by a person within the first applicable listed class among the following
listed classes who is available at the time of death:
(1)
(2)
older;
(3)
(4)
older;

A son or daughter of the decedent 18 years of age or
Either parent of the decedent;
A brother or sister of the decedent 18 years of age or
(5)
A guardian of the decedent at the time of death;
(6)
A person in the next degree of kindred to the decedent;
(7)
The personal representative of the estate of the decedent;
(8) The person nominated as the personal representative of the

decedent in the decedents last will; or
3-9
2012 Revision
(9)
A public health officer.
ORS 97.130(2).
The decedent or any person authorized under ORS 97.130(2) may
delegate the authority to direct the manner of disposition of the
decedents remains to any person who is 18 years of age or older. ORS
97.130(3)(a). The delegation of authority may be made by completion of
either (1) a written instrument in the form set forth in ORS 97.130(7) or
in a form substantially similar to it, see Form 3-1; or (2) a written
instrument recognized by the Armed Forces of the United States, as that
term is defined in ORS 348.282, if the decedent died while serving in the
Armed Forces of the United States. ORS 97.130(3). The instrument
described in ORS 97.130(7) requires the signatures of the delegating
party and two witnesses. A duly appointed delegate has the same
authority to dispose of the decedents remains as the delegating party.
ORS 97.130(3). If a decedent or a decedents designee issues more than
one authorization or direction for disposal of the decedents remains,
only the most recent is binding. ORS 97.130(4). If the person who is
authorized to direct the manner of disposition of the decedents cremated
remains transfers any portion of the cremated remains to another person,
the recipient of the cremated remains has the authority to direct the
manner of disposition of the cremated remains in the recipients
possession. ORS 97.130(10).
If a donation of an anatomical gift conflicts with directions for the
disposition of the decedents remains under ORS 97.130, the donation of
the anatomical gift takes priority only if the person making it is of the
same or a higher priority than the person directing the disposition of the
remains. ORS 97.130(5). See 3.3-1(b).
A cemetery authority, crematory operator, or licensed funeral
service practitioner interring or cremating remains pursuant to a written
instrument signed by the decedent or a person described in ORS
97.130(2) has no liability for any failure to conform to the priority of
control of the remains, unless it received two or more conflicting written
instruments before interment or cremation. ORS 97.145.
3-10
2012 Revision
3.3-3(b)
Special Administrator to Take Charge of Remains
If the disposition of the decedents remains is required before the

appointment and qualification of a personal representative, the court may
appoint a special administrator to take charge of the remains. ORS
113.005(1). See 6.1-1 to 6.1-6.
3.3-3(c)
Arrangements by Deceased or Others, Inter Vivos
Testamentary or other written instructions by the deceased may

provide valuable guidance. These instructions may not be controlling,
however, because they may be unlawful, too expensive to comply with,
or simply impractical. Obviously, these directions must be discovered
promptly, or they are useless. If the lawyer is consulted about funeral
plans before the death of the decedent, the lawyer should advise against
including a dollar limit because of unpredictable factors, such as
inflation, changed customs, and prices varying with locality. For the
same reason, in most cases, a will should not provide too specifically for
the type of casket.
A search should be made for an existing contract with a funeral
director stating an agreed-on price. The price may have been paid in full
or in part. Extra services in addition to those specified are not included in
the agreed-on price.
A search should also be made for a deed to a grave lot or a
contract for a grave, crypt, or niche; charges for opening the grave, crypt,
or niche may already have been paid. Other items that may have been
similarly provided for are a marker; lettering on a marker, crypt, or niche;
an outer case for a grave; and an urn for a niche.
Funeral benefit insurance is fairly common and, although the
amount may be inadequate, it may help determine how much to spend.
Fraternal societies and unions frequently have funeral benefits that can
usually be readily discovered.
If the decedent or spouse was a veteran, inquiry should be made of
the U.S. Veterans Administration about possible funeral and burial
benefits, and whether there is a right to burial in a national cemetery.
3-11
2012 Revision
A trust in which the deceased was an actual or contingent

beneficiary may provide that the trustee will defray the cost of the funeral
and burial of the decedent. Occasionally, prior approval of arrangements
by the trustee is required.
Other options for inter vivos planning are prearranged funeral
plans and trusts, which are expressly regulated under Oregon law. ORS
97.92397.949. Under specific statutory authority, the Secretary of State
administers a separate trust fund, the Funeral and Cemetery Consumer
Protection Trust Fund, for the sole purpose of providing restitution to
purchasers who have suffered pecuniary loss arising out of prearrangement sales contracts or preconstruction sales contracts. ORS
97.945(2).
3.3-3(d)
Arrangements with Funeral Director
The funeral director will require written authority for funeral

arrangements, including the authorizing partys personal agreement to
pay for the arrangements. Upon authorization, the funeral director
customarily takes full charge and advises in all particulars relating to the
funeral and burial. The authorization specifies in detail the services to be
rendered or arranged, and the cost of each item, including removal and
preparation of the body; the apparel in which the body is to be dressed;
the casket; the outer case; burial, cremation, or entombment; music;
clergy; opening grave; hearse, limousine, and motorcycle escort;
memorial folders; publication of death and funeral notices; and copies of
the death certificate. Frequently, separate arrangements must be made for
burial, etc. The type of casket ordered usually determines the cost of the
funeral; the same services are generally rendered, and the same facilities
of the funeral director are available, regardless of the agreed-to cost. The
cost must, of course, be decided on in light of the resources of the estate
and the surviving relatives. It is possible, under some circumstances,
simply to have a body cremated or buried without embalming, a casket, a
funeral, or other religious or memorial service.
The regulations of Oregons Mortuary and Cemetery Board
provide that if a dead human body is to be held longer than 24 hours, it
must be either embalmed or refrigerated until final disposition. OAR
3-12
2012 Revision
830-030-0010(1). Some religious sects discourage embalming, but in an

area where refrigeration of the body is not available, embalming may be
difficult to avoid. All dead human bodies must be cremated, interred, or
entombed within 10 days after the funeral establishment takes possession
of the remains. OAR 830-030-0010(4). If the human remains will be held
longer than 10 days because of exigent circumstances, the licensee
responsible for those remains must notify the office of the Mortuary and
Cemetery Board. OAR 830-030-0010(4).
If the remains are to be shipped to another locality, the funeral
director can make arrangements and must ensure compliance with state
requirements. Most funeral directors are familiar with the requirements of
other states and foreign governments regarding the release of, and the
shipping of, bodies to or from Oregon.
Arrangements with funeral directors frequently provide for interest
after a specified date, and sometimes for a discount for early payments.
(The federal Truth in Lending Law governs these practices.) If such a
saving will be lost by waiting to pay until the personal representative is
appointed and has adequate funds, a relative may advance the funds and
obtain reimbursement later from the estate.
Occasionally, at the time for disposing of the remains, the family
might not know whether the estate will be probated or whether sufficient
funds will be available to pay the expenses. If the assets are insufficient
to pay all expenses and claims in full, the personal representative may
pay [e]xpenses of a plain and decent funeral and disposition of the
remains of the decedent, with priority over certain other expenses and
claims. ORS 115.125(1)(c).
3.3-3(e)
Cremation
In general, the State Mortuary and Cemetery Board regulates

cemetery authorities and licensed funeral service practitioners with
respect to cremation. See OAR 830-030-0040, 830-030-0050. A burial or
cremation permit seems to be required only in cases in which the death
must be investigated. ORS 146.121.
If a cemetery authority, crematory operator, or licensed funeral
service practitioner has been authorized to cremate the remains of a
3-13
2012 Revision
decedent pursuant to ORS 97.130, the authorization must also contain

further instructions regarding the final disposition of the cremated
remains. ORS 97.150(1)(a). If no instructions have been given, the
cemetery authority, crematory operator, or licensed funeral service
practitioner must, within 180 days after the cremation, attempt to notify
the person who has the right to direct disposition of the remains. ORS
97.150(1)(b)(c). The notice must state that the cemetery authority,
crematory operator, or licensed funeral service practitioner intends to
dispose of the cremated remains in the absence of instructions to the
contrary. If authorization is not forthcoming within 30 days after the date
of the notice, the cemetery authority, crematory operator, or licensed
funeral service practitioner may dispose of the cremated remains as is
legally practicable. ORS 97.150(1)(d).
Nothing in Oregon law gives a cemetery authority or a licensed
funeral service practitioner the exclusive right to carry out instructions
regarding the final disposition of the decedents remains. Thus, a person
may be authorized to scatter the remains at sea or in the air or to deposit
them at a particular location. A number of federal and state environmental and health laws may be broad enough to govern the scattering
of ashes, but the Coast Guard, Environmental Protection Agency, Federal
Aviation Administration, Mortuary and Cemetery Board, Department of
Environmental Quality, State Marine Board, and Mental Health Division
appear to have no current regulations dealing with the final disposition of
cremated remains. Generally, scattering at sea is done beyond the threemile limit, and scattering of ashes over a national or state park should be
avoided. See <www.cremation solutions.com/Scattering-Ashes-LawsRegulations-c108.html>.
3.4
3.4-1
COLLECTION OF DOCUMENTS AND INFORMATION

Wills, Codicils, and Trust Agreements
The original will is normally found in the decedents safe-deposit

box or home or in the office of the lawyer who drafted it. If the decedent
kept the will in his or her safe-deposit box, and no survivor is authorized
to open the box, the personal representative named in the will, if known,
3-14
2012 Revision
and the personal representatives lawyer should contact the institution to

arrange a will search. If a key cannot be located, the box will have to be
drilled. The procedures for opening the safe-deposit box of a decedent
who was the sole lessee or last surviving lessee of the box are found in
ORS 708A.655 and 723.844. Subject to ORS 114.537 (regarding small
estates), the institution leasing the box must cause or permit the box to be
opened upon being furnished with a certified copy of the death certificate
(or other satisfactory evidence of death) and an affidavit by the
requesting person stating that:
(1) The person believes that the box may contain the decedents
will, a trust instrument of which the decedent was a trustor or trustee at
the time of the decedents death, or documents pertaining to the
disposition of the decedents remains or property of the decedents estate;
(2) The individual is an interested person (as defined in ORS
708A.655(3) and 723.844(3), discussed below); and
(3) The person wishes to open the box to search for a will or
trust instrument, to obtain documents relating to the disposition of the
decedents remains, to inventory the contents of the box, or to remove
property of the estate of the decedent, pursuant to a small estate affidavit
filed under ORS 114.515.
ORS 708A.655(2), 723.844(2).
NOTE: The statutes define interested person to include a
broad range of individuals, such as the decedents spouse or heir; a
person named as personal representative in a purported will of the
decedent; a person who is authorized to file a small estate affidavit
under ORS 114.515; a trustee, purported trustee, or successor
trustee for the decedent; a court-appointed guardian or conservator
for the decedent; an agent with right of access under a durable
power of attorney; a person designated by the decedent in a writing
that is both acceptable to the institution and filed with the
institution before the decedents death; or an estate administrator
of the Department of State Lands (if there are no heirs). ORS
723.844(3), 708A.655(3).
3-15
2012 Revision
The search must be conducted in the presence of at least one

employee of the institution. ORS 708A.655(11), 723.844(11). The scope
of the institutions duties depends on the purposes of the search. ORS
708A.655(4)(8), 723.844(4)(8).
If the box is opened to search for a will or a trust instrument, the
institution must (1) remove any document that appears to be a will or
trust instrument, (2) make a true and correct copy of the document, and
(3) deliver the original instrument to the personal representative or the
successor trustee (as the case may be) or, if such a person is not named in
the instrument or cannot be located, retain the original instrument in the
box or deliver any original will to a court with jurisdiction over the
decedents estate. ORS 708A.655(4)(5), 723.844(4)(5). On request, the
institution may give a copy of the will, trust instrument, or other
document pertaining to the disposition of the remains of the decedent to
any interested person. ORS 708A.655(4)(5), 723.844(4)(5).
PRACTICE TIP: If a trustor is concerned about confidentiality,
a copy of the trust should generally not be placed in a safe-deposit
box, because the class of persons who may have access to the safedeposit box is quite large.
PRACTICE TIP: Notice in a state or county bar publication or
listserv requesting information about the existence of a will for a
named individual is now commonplace.
COMMENT: Retention of an original will by the drafting
lawyer is not as prevalent as in the past. This may be due in part to
a fear that in addition to the duties to maintain the will in
safekeeping and to deliver it on the testators death to the named
personal representative or to the court, a lawyer in possession of an
original will may have increased duties and responsibilities with
respect to advising a client about changes in the law and the need
to revise the will.
Safe-deposit boxes are no longer frozen by the Oregon Department
of Revenue. Although safe-deposit boxes are an appropriate place to keep
original wills, problems may arise by keeping them there. If a surviving
joint tenant or other person is authorized to enter the box, obtaining the
3-16
2012 Revision
will should not be a problem, as long as the key can be located. If not,
arrangements must be made with the institution to drill the box. If there is
no survivor authorized to open the box, the personal representative
named in the will, if known, and the personal representatives lawyer
should arrange with the institution to make a will search. Once again, if a
key cannot be located, the box will have to be drilled. A representative of
the institution must be present during a review of the boxs contents.
ORS 708A.655(11), 723.844(11). If a will is found, the institution will
deliver it to the named personal representative. If the safe-deposit box
contains valuable documents, but probate is not necessary and there is no
person authorized to enter the box, the institution will presumably deliver
the documents to a person named in the document, such as a surviving
joint tenant. But the institution could probably require appointment of a
personal representative before releasing the boxs contents. A small
estates affidavit or an indemnity agreement might be satisfactory.
If an affidavit of at least one of the witnesses made at the time of
executing the will or at any time thereafter is not attached to the original
will or codicil (ORS 113.055(1)), the witnesses to the will must be
located and their affidavits obtained. The affidavits may be used instead
of the personal presence of the witnesses in court. Under ORS
113.055(3), if no evidence of the attesting witnesses is available, the
court may allow proof of the will by testimony or other evidence that the
signature of either the testator or at least one of the witnesses is genuine.
If the original will cannot be located, the facts and circumstances
surrounding its execution and safekeeping should be investigated. Copies
of the will should be located in case there is a desire to offer a photocopy
for probate.
If the original will has been admitted to probate in another
jurisdiction, a certified copy of the will and a certified copy of the order
admitting it to probate in the domiciliary jurisdiction will be required in
order to probate the will in Oregon. ORS 113.065.
The will and all amendments to it should be examined to make
sure that they were properly executed and attested, to determine whether
the testator had testamentary capacity (see ORS 112.225, 112.232), and
3-17
2012 Revision
to determine whether the will has been revoked in whole or in part (see
ORS 112.285, 112.305, 112.315). See chapter 4 (discussing wills).
3.4-2
Other Documents
Review and analysis of many other documents are essential to

making informed decisions regarding the decedents affairs. Documents
to be located include:
(1) Cemetery deeds, burial instructions, and donor cards with
respect to anatomical gifts;
(2) Powers of attorney and any documents related to performance of duties by an attorney-in-fact (even though the authority of
the attorney-in-fact terminates at death, the documents may provide
information about the decedents assets);
(3) Deeds, leases, and agreements with respect to real property
(to ascertain how the property is owned, its approximate value, and the
interests that others may have in it);
(4) Stock and bond certificates, brokerage account statements,
and any other documents related to the ownership of securities;
(5) Bank registers, bank account statements, certificates of
deposit, letters of credit, and other banking documents;
(6) Insurance policies, including not only policies insuring the
decedents life, but also policies owned by the decedent or for which he
or she is the beneficiary;
(7)
Partnership agreements and corporate buy-sell agreements;
(8)
Annuity contracts or agreements;
(9) Retirement benefits, including correspondence

employers explaining options and benefits and company booklets;
from
(10) Appraisals;
(11) Prenuptial agreements;
(12) Divorce and separation agreements, including propertysettlement agreements;
(13) Income tax returns;
3-18
2012 Revision
(14) Gift tax returns;

(15) Estate tax returns for deceased family members;
(16) Notes, guaranties, and security agreements; and
(17) Copies of pleadings and other documents in cases in which
the decedent was a litigant.
It is important to review originals or copies of documents rather
than lists prepared by the family or others. Family members often believe
that assets are owned jointly, when they are actually owned by the
decedent. A mistake in relating a serial number or certificate number can
cause considerable confusion, delay, and expense.
Documents evidencing a decedents indebtedness are as important
as those representing his or her assets. Thus, copies of mortgages, deeds
of trust, leases, promissory notes, pledge agreements, guaranties,
installment sale contracts, and similar documents must also be reviewed.
3.4-3
Determining Interested Parties
The identity of heirs, devisees, creditors, trustees, personal representatives, and those who are or may be parties to litigation involving the
decedent must be ascertained. Current addresses and Social Security
numbers for the beneficiaries and those involved in administration should
be obtained. Care should be exercised in determining the heirs. Children
of a deceased child or other heir are easily overlooked, particularly if a
divorce is involved. Preparing an informal family tree can be very
beneficial in this regard. Whether pretermitted children exist (ORS
112.405), whether a devise lapses (ORS 112.395), and whether a survivorship requirement (ORS 112.570112.590) or a will provision is
applicable must be determined.
The urgency of promptly investigating and preserving evidence of
claims against or on behalf of the estate cannot be overemphasized.
Included are claims for wrongful death, claims for malpractice or bodily
injury, claims for damage to the decedents property, insurance claims,
potential claims against the estate for services rendered to the decedent,
and will contests. See chapters 9 and 15. Witnesses should be interviewed, signed statements obtained, and physical evidence preserved.
3-19
2012 Revision
3.5
3.5-1
PROTECTION OF PROPERTY
Power of Personal Representative Before Appointment
Pursuant to ORS 114.255, the acts of a personal representative

occurring before appointment have the same effect as those occurring
after appointment, and the personal representative may ratify and accept
acts on behalf of the estate done by others. In Rennie v. Pozzi, 294 Or
334, 343, 656 P2d 934 (1982), the court held that an action filed by the
named personal representative before his appointment was deemed commenced, even though the statute of limitations had run before the
appointment became valid.
The possibility exists, of course, that someone other than the
person expecting to be appointed will become the personal representative, or that a particular problem will justify the appointment of a
special administrator or some other form of court blessing.
3.5-2
Special Administrator
If, before the appointment and qualification of a personal representative, property of a decedent is in danger of loss, injury, or
deterioration, or disposition of the remains of the decedent is required,
the court may appoint a special administrator to take charge of the
property or the remains. ORS 113.005(1). See 6.1-1 to 6.1-6 for a
detailed discussion of special administration.
3.5-3
Safekeeping and Special Arrangements
Action may need to be taken to protect some of the decedents

property before a personal representative is appointed. Perishable
property may need to be refrigerated or otherwise protected. Antiques,
collectibles, and other valuable items may need to be stored or guarded to
protect them. Certain items, such as valuable paintings, may need to be
stored in a temperature-controlled vault. New door locks may be
appropriate.
Arrangements must be made for pets (provisions are occasionally
made in the will or a trust) and for farm animals. See 3.5-4 (custody of
the decedents pet).
3-20
2012 Revision
Rings, other jewelry, and all kinds of indicia of ownership of assets

need to be collected and kept in a safe place.
Newspapers and other deliveries should, in most cases, be stopped
and decisions made concerning utilities. Keeping the heat on may be
necessary to avoid frozen pipes.
Insurance coverage on any real property and on personal property
should be reviewed to make sure that coverage continues after death.
Special arrangements may be necessary if the residence is not occupied.
Car insurance can be troublesome. Assurances should be obtained that
either the decedents policy or the drivers policy, or both, covers anyone
operating the vehicle.
Precautions must be taken during the funeral to prevent theft at the
decedents home.
3.5-4
Custody of Decedents Pet
Immediately on the decedents death, a family member of the

decedent, a friend of the decedent, or an animal shelter may take custody
of any pet of the decedent that is worth less than $2,500. The person who
takes custody of the pet may be reimbursed from the estate for the cost of
caring for the animal. The person who takes care of the pet must, on
request, deliver the animal to the decedents personal representative or to
any heir or devisee entitled to receive possession of the animal. ORS
114.215(3).
3.5-5
Delivery to Heirs or Devisees
In many instances, the heirs or devisees may wish to divide and

take possession of personal property items before the appointment of the
personal representative. This is particularly true when relatives from out
of town have come for the funeral, but must return to their homes before
the opening of the estate. The statute giving a personal representative the
power to act before appointment is not a solution because, even if a
personal representative were appointed, a court order authorizing partial
distribution would be necessary before distribution could be made. When
the assets are clearly sufficient to pay taxes, claims, and administration
3-21
2012 Revision
expenses, and agreement can be reached among all the interested parties,
division and removal of the property will usually present no problems.
The person taking possession must understand, however, that he or
she is only holding the property in safekeeping pending a court order
authorizing distribution, and that it may be necessary to return the
property if creditors or other heirs or devisees establish a right to the
property. The person taking possession must also understand that it may
be necessary to make the property available for appraisal. In these
instances, the person taking possession of the property should execute a
receipt acknowledging custody and agreeing to return the property to the
personal representative if a demand for return is made. Even if it appears
unnecessary for the personal representative to take possession of certain
property (see ORS 114.225), a receipt or statement of custody should be
obtained from the person retaining control. See chapter 1.
In most cases, all the property should be retained until it can be
inventoried and valued. Disputes among interested parties about the
division of personal property can cause some of the most difficult
problems of administering an estate. Those having access to the property
must be particularly careful to avoid charges that they have removed
property without authorization.
In determining whether heirs or beneficiaries should take custody
of property, the estate tax regulations with respect to valuation of
household and personal effects should be kept in mind. Treasury Regulation 20.2031-6(a)(b) provides that all articles in the same room having
a value in excess of $100 should be itemized, and that articles having
marked artistic or intrinsic value in excess of $3,000 should be appraised.
Treasury Regulation 20.2031-6(c) covers disposition of household
effects before IRS investigation. It requires that notice be given to the
district director if distribution or sale of any portion of the household or
personal effects of the decedent will be made in advance of an
investigation by an IRS officer. This procedure is not generally followed,
but should be kept in mind when heirs or beneficiaries take valuable
articles into custody.
3-22
2012 Revision
PRACTICE TIP: If the person signing a custody receipt is not a

devisee of any other property, it may be appropriate for the receipt
to include a waiver of further notice of estate proceedings. This
waiver may eliminate the necessity of obtaining further consent or
giving notice to the devisee with respect to partial distributions and
requests for fees and compensation, and on filing the final account.
Nonetheless, before custody of any property changes hands, an
assessment of the advantages and disadvantages of disclaiming property
should be made and communicated to the potential distributees of the
estate. For example, the decedents surviving spouse may wish to
disclaim, in whole or part, certain interests in property so that those
interests pass in a way that would allow the decedents estate to take full
advantage of the available exemptions from federal estate and gift taxes
and Oregon estate tax. If this type of postmortem tax planning would be
advantageous, a potential disclaimant should ensure that his or her
acceptance of the property or any benefit from it will not inadvertently
jeopardize a future disclaimer of it. See Uniform Disclaimer of Property
Interests Act, ORS 105.623105.649, which is discussed in 8.3-2(a) to
8.3-2(f).
3.6
3.6-1
PREPARING FOR ADMINISTRATION
Alternatives to Probate
Affidavits of heirship, transfers pursuant to specific statutory

authority, and other methods of avoiding probate should be carefully
considered. These matters are fully discussed in chapter 1. Qualifying
estates may be administered under the small-estates procedures set forth
in ORS 114.505114.560. See chapter 5 for further discussion.
Although avoiding probate may be possible, it may not be desirable, given the facts and circumstances of a particular estate. The savings
of time and expense in avoiding probate may be more than offset by the
need to determine or cut off creditors claims or to take advantage of
income tax or other planning devices. Obtaining a bond and indemnity
agreement or paying a double title insurance policy premium may equal
the cost of probate.
3-23
2012 Revision
Conversely, if creditors claims exceed the value of the assets, the

named personal representative and the beneficiaries may consider
abandoning the estate, leaving the creditors to institute probate proceedings if they determine that it is advisable.
3.6-2
Special Proceedings
3.6-2(a)
Absentees and Missing Persons
Provisions for administering the estate of an absentee are set forth

in ORS 117.005117.095. The statutes eliminated the former requirement
that seven years of unexplained absence must elapse before a person is
presumed dead and his or her estate subject to administration. The law
now provides that a petition for the administration of the estate of an
absentee may be filed when (1) the whereabouts of the absentee is and
has been unknown for a period stated of not less than one year, and . . .
the petitioner has reason to believe and believes the absentee is dead;
(2) the death of the absentee at the time, location and in the
circumstances stated in the petition is probable and in doubt solely by
reason of the failure to find or identify the remains of the absentee; or
(3) the absentee is presumed dead under the provisions of ORS 176.740
(regarding a presumption of death for persons missing after a natural
disaster or an act of war, terrorism, or sabotage). ORS 117.005(3). See
chapter 6 for further discussion.
The management of the financial resources of a person who has
disappeared is governed by ORS chapter 125, which deals with
protective proceedings. See ORS 125.005(3) (financially incapable
means a condition in which a person is unable to manage financial
resources of the person effectively for reasons including . . . disappearance).
Before initiating a protective proceeding or filing a petition to
administer the estate of an absentee, the lawyer must determine which, if
either, of these two courses to pursue.
3.6-2(b)
Small Estates
If a decedents estate meets the requirements of ORS 114.515

(including that the fair-market value of the estate is $275,000 or less), the
3-24
2012 Revision
estate may be administered under the small-estates procedures set forth in

ORS 114.505114.560. The cases in which the small-estates procedure
can be used and the procedures to be followed are fully discussed in
5.3-1 to 5.3-8(d).
3.6-2(c)
Wrongful Death
When the death of a person is caused by the wrongful act or

omission of another, a duly appointed personal representative of the
decedent may maintain an action against the wrongdoer for the benefit of
the decedents survivors. ORS 30.020(1). Actions for wrongful death are
governed by ORS 30.01030.100. For discussion of wrongful death
claims and procedures, see 15.3-1 to 15.3-8. Damages recovered in an
action for wrongful death are not assets of the estate. See ORS 30.020.
3.6-3
Advice to Interested Parties of Analysis

and Recommendations
After collecting and analyzing all of the documents and information relevant to the decedents estate, the lawyer should arrange a
meeting with interested persons to advise them of the lawyers findings
and recommendations. In scheduling the meeting, the lawyer should allot
enough time to explain the procedures, problem areas, anticipated costs,
and time involved, and to answer any questions that arise. Meeting with
interested persons and giving them adequate information will go a long
way toward establishing a smooth working relationship with those
persons, and will help them understand the importance of the services
that the lawyer is performing.
This is also an appropriate time for the lawyer to determine whom
he or she represents and to give careful consideration to possible conflicts
of interest.
3.6-4
Selection of Venue
Administration of a decedents estate is proper in the county where

the decedent was domiciled or had a place of abode at the time of death,
where property of the decedent was located at the time of death or is
located at the time the proceeding is commenced, or where the decedent
died. ORS 113.015. Venue may be a particularly important consideration
3-25
2012 Revision
when a wrongful death action will be commenced. If proceedings are

commenced in more than one county, they are stayed except in the
county where first commenced until a final determination is made
regarding the proper venue. A court is authorized to transfer venue if it
determines that a transfer is in the best interest of the estate. ORS
113.025. For further discussion of venue, see 2.3-1 to 2.3-4(d).
3.6-5
Filing the Petition
The information that must be included in a petition for the

appointment of a personal representative and for the probate of a will is
set forth in ORS 113.035. See 5.2-2(a) to 5.2-2(b).
PRACTICE TIP: If the creditworthiness of the proposed
personal representative is in doubt, the lawyer should submit a
bond application before preparing the petition in order to determine whether the nominee is bondable.
Prompt action to file the petition requesting the appointment of a
personal representative in an intestate situation may be very important.
Although ORS 113.085 directs the court to give preference to certain
persons in appointing a personal representative, in some counties, a
petitioner is not required to allege that no other person has a preferential
right to be appointed. As a result, the first person to file will probably be
appointed. Once a personal representative is appointed, a formal hearing
may be necessary to have the appointed personal representative removed
and the person with priority appointed. It may take several months to
obtain a hearing date. In the meantime, the appointed personal representatives actions are valid. If all persons with a preferential right to
appointment are unable or unwilling to serve, the better practice would be
to allege this fact in the petition for appointment and, if practicable, to
obtain and file written declinations to serve. In Multnomah County and
many other counties, the court generally will not appoint a person with a
lower level of priority absent at least these allegations in the petition.
QUERY: Would an action for damages for the expense of
removing a personal representative be appropriate when the
appointment was obtained with the knowledge that another person
3-26
2012 Revision
was entitled to preference and planned to petition the court for

appointment?
3.6-6
Information Lists, Checklists, and Calendars
3.6-6(a)
Master Information List and Information Checklist
Retaining information that has been collected so that it can be

effectively used in the administration process is essential. A master
information list (MIL) and an information checklist can act as an interview guide, can prompt a list of questions to ask in obtaining required
information, and can provide an organized way to record that information
for future use. See Appendixes 3A and 3B for examples of such lists. The
MIL can be a source for preparing the petition for appointment of the
personal representative, the inventory, federal and Oregon estate tax
returns, and fiduciary income tax returns. The MIL in Appendix 3A
includes general information, asset information, and information regarding transactions occurring during administration of the estate.
3.6-6(b)
Probate Checklist
A probate checklist, such as that set forth in Appendix 3C, may be

used in conjunction with, or apart from, a master information list (see
3.6-6(a)). The sample probate checklist set forth in Appendix 3C
contains general information, suggestions for action to be taken, and a
manual system for keeping track of due dates and recording actions that
have been taken.
3-27
2012 Revision
Appendix 3A
Master Information List
Decedent
1.01
Name
1.02
Other names used by decedent
1.03
Date of birth
1.04
Date of death
1.05
Place of death: address, city, county, state, zip
1.06
Place of domicile at death: address, city, state, zip
1.07
Other counties where decedents assets are located
1.08
Social Security number
1.09
Taxpayer identification number
1.10
Date of will
1.11
Name of witness attesting will
1.12
Name of witness attesting will
1.13
Date will admitted to probate
1.14
Date inventory filed
Personal Representative
2.01
Name
2.02
Address
2.03
City, state, zip
3-28
2012 Revision
Testate Intestate
2.04
2.05
Phone number
2.06
Relationship to decedent
2.07
Surety
2.08
Date appointed
2.09
Date of first publication of notice
2.10
Date of filing of affidavit of mailing or filing information to

heirs and devisees
(w)
(h)
Surviving Spouse
3.01
Name
3.02
Address
3.03
City, state, zip
3.04
3.05
Phone number
3.06
Birth date
3.07
Citizenship
(w)
(h)
Child
3.08
Name
3.09
Address
3.10
City, state, zip
3-29
2012 Revision
3.11
3.12
Phone number
3.13
Birth date
(w)
(h)
Other children listed on attached sheet
Yes
No
Other Heirs
3.14
Name
3.15
Address
3.16
City, state, zip
3.17
3.18

Other heirs listed on attached sheet
Yes
No
Devisees
3.19
Name
3.20
Address
3.21
City, state, zip
3.22
3.23

Other devisees listed on attached sheet
3-30
2012 Revision
Yes
No
Claiming Successor in Small Estate

3.24
Name of claiming successor in decedents small estate
3.25
Address
3.26
City, state, zip
3.27
3.28
Phone number
(w)
(h)
Parents
3.29
Father
3.30
Address
3.31
City, state, zip
3.32
Mother
3.33
Address
3.34
City, state, zip
Creditors or Other Interested Persons

3.35
Name
3.36
Address
3.37
City, state, zip
3.38
3.39
Lawyer
3-31
2012 Revision
3.40
Others listed on attached sheet
Yes
No
Court Proceedings
4.01
Name
4.02
Address
4.03
Court docket number
4.04
Judge
Probate Lawyer
5.01
Name
5.02
OSB number
5.03
Address
5.04
City, state, zip
5.05
Phone number
5.06
Fax number
5.07
E-mail
(w)
Wrongful Death Action

6.01
Defendants name
6.02
Defendants insurer
6.03
Docket number for wrongful death suit
6.04
Court where filed
3-32
2012 Revision
(h)
6.05
Lawyers
Assets*
7.01
Cash on hand
7.02
Checking accounts
7.03
Savings accounts
7.04
Money market accounts
7.05
Common stocks
7.06
Preferred stocks
7.07
Closely held corporations
7.08
Federal notes and bonds
7.09
U.S. savings bonds
7.10
Municipal bonds
7.11
Corporate bonds
7.12
Certificates of deposit
7.13
Debit instruments
7.14
Residences
7.15
Other real property
7.16
Household goods and furnishings
7.17
Miscellaneous personal property
7.18
Refunds
3-33
2012 Revision
7.19
Accrued income
7.20
Miscellaneous property
*List additional items of a category as subnumbers of the category (e.g.,

additional savings accounts as 7.031, 7.032).
Liabilities
8.01
Mortgages payable
8.02
Notes payable
8.03
Income taxes payable
8.04
Accrued liabilities
8.05
Other liabilities
Accounting Information
9.01
Distributions of principal
9.02
Distributions of income
10.01
Gains allocable to principal
10.02
Losses allocable to principal
11.01
Administration expensesprincipal
11.02
Fees and commissionsprincipal
11.03
Funeral expensesprincipal
11.04
Other expensesprincipal
12.01
Dividends
3-34
2012 Revision
12.02
Interest
12.03
Tax-exempt interest
12.04
Rental income
12.05
Other income
12.06
Gains allocable to income
12.07
Losses allocable to income
13.01
Administrative expensesincome
13.02
Fees and commissionsincome
13.03
Interest expense
13.04
Insurance
13.05
Depreciation
13.06
Income tax
13.07
Other taxes
13.08
Other expenses
COMMENT: See 3.6-6(a).

CAVEAT: This list is illustrative only. Each lawyer must depend on
his or her own legal research, knowledge of the law, and expertise in
using or modifying this list.
3-35
2012 Revision
Appendix 3B
A.
Initial Information Checklist
Preliminary Information:
Clients name
Clients address
Clients telephone (home)
Clients telephone (office)
Clients cell phone
B.
Title, Court, and Numbers:
Estate of
Probate No.
Tax ID No.
SS No.
Court
Address of court
C.
Personal Representative:
Name
Address
Phone
SS No.
Date appointed
Bond required
3-36
2012 Revision
D.
Decedents Vital Statistics:
Name as it appears on will

Also known as
Residence at time of death
Domicile at death
Year established
Previous residence
Birth date
Date of death
Place of death (e.g., name and address of hospital)
Place of birth
Date
Decedents marital status (circle one):

single married legally separated divorced widowed
Date of decedents marriage
Place
Date of legal separation or divorce

If widowed, date of spouses death
Cause of decedents death
Length of decedents last illness
E.
Decedents Spouse:
Spouses name
SS No.
3-37
2012 Revision
Spouses residence
Place of spouses death
F.
Decedents Will:
Did decedent leave a will? (check one):
Yes
No
Yes
No
Date
Affidavit of attesting witness? (check one):
Witnesss name/address
Known beneficiaries named in will (state age if minors):
(Attach separate list if not sufficient space)
Name/Address
G.
SS No.
Heirs:
Heirs at law (state age if minors):

(Attach separate list if not sufficient space)
Name/Address
3-38
2012 Revision
SS No. (if intestate)
H.
Petitioner:
Petitioners name and address
I.
Decedents Professional Advisers:
Accountants name and address
Stockbrokers name and address
Trustees name and address (inter vivos trust)
Insurance agents name and address
J.
Safe-Deposit Box Inventory:
Did decedent have access to a safe-deposit box?
Yes
No
If so, contact bank and arrange inventory. (Taxing authorities are not
involved in this process in Oregon.)
K.
Property Outside Oregon:
Did decedent own any property in any state or county other than that of
last domicile?
Yes No
Is ancillary probate required/suggested?
Where?
3-39
2012 Revision
L.
Burial Instructions:
Are any writings of the decedent available, including wills and codicils,
containing burial or cremation instructions or other direction as to the
disposition of remains under Uniform Anatomical Gifts Act? Also check
organ donation box on Oregon driver license.
M.
Funeral and Burial Arrangements:
Does family need assistance in arranging for funeral, burial, and

services?
Where held?
N.
Burial Allowance and Other Death Benefits:
Has the mortuary undertaken to apply for Social Security or other burial
allowances? ________ If unknown, contact mortuary to coordinate this.
Determine responsibility among lawyers, surviving spouse, and
immediate family to make application for Social Security, veterans, or
employee death benefits.
Responsibility as follows:
O.
Perishable Property:
Does the estate consist of any perishable property, pets needing care,
etc.?
If arrangements have been made, what are they?
3-40
2012 Revision
P.
Emergencies or Immediate Problems:
Any payments due on installment obligations?

What?
Any other critical dates or action dates?

What?
Q.
Check E-mail Accounts:
Determine automatic payments.

Determine passwords.
Identify financial accounts with paperless statements.
R.
Need for Special Administrator:
Does an emergency exist with respect to any estate assets (such as

decedents business, pending closings, perishable assets, etc.)?
S.
Immediate Need for Funds:
Does the surviving spouse or other successor have immediate funds

from bank accounts in which the deceased has an interest?
Any need for spousal support?
Partial distribution?
Set aside the entire estate?
3-41
2012 Revision
T.
Status of Residence:
Are decedents residence and contents secure?

Consider arrangements for visiting the residence and arranging for:
______
Stopping or forwarding mail
______
Stopping newspapers
______
Changing locks
______
Safekeeping valuables
______
Lawn care
______
Lighting at night
______
Person to contact for security system
U.
Status of Casualty Insurance:
Are the house and all other real or personal property belonging to the
estate adequately insured in the event of fire, theft, loss, or natural
disaster?
Is it necessary to change the insureds name to the name of the person

occupying the house?
V.
Status of Automobile:
Is the decedents automobile jointly owned?

If no surviving joint tenant, secure automobile and see that keys are in
the hands of an insured person
Determine whether insurance is current and whether it terminated at
decedents death
3-42
2012 Revision
W.
Status of Investments:
Any land sale contract installments due?

Asset purchase payments due?
Any options in existence?
Due date or critical option dates:
X.
Status of Business:
Did decedent own a business? ______________ If yes, find out name,

address, and phone number of person to contact as to:
Adequacy of provisions to run the business:
Y.
Status of Income Tax Returns:
If before April 15, have all prior individual income tax returns
been filed? __________________ If not, consider requesting extension
of time to file.
Z.
Alteration of Testamentary Plan:
Consider disclaimer.
Has spouse been advised of elective share?

3-43
2012 Revision
Appendix 3C
Probate Checklist
Our File No. ____________

Estate of
Taxpayer I.D.
Court
County Probate No.
Soc. Sec. No.
Date of Death Birth Date
Decedents Last Address

Name of Spouse
Soc. Sec. No.
Title
Address
Tax-Exempt No.
Date of Appointment
Bond Required
PREAPPOINTMENT
Conflicts check
Obtain custody of will, all codicils, and existing trust
agreements
Review instructions re: funeral, burial, and anatomical gifts
Preliminary determination of value of assets and solvency
of estate
Obtain names, addresses, ages, and Social Security
numbers of heirs and devisees
Protect decedents property
3-44
2012 Revision
Determine whether probate is necessary. Consider small

estates affidavit, indemnity agreement, bond, title insurance
risk premium, and community character of assets (ORS
112.705 112.775)
Consider new will for surviving spouse
Engagement letter and fee arrangement
Due
Date
Date of
Filing of
Other
Action
APPOINTMENT
Consider disclaimer
Special administrator if needed
Venue (ORS 113.015)
Petition for probate or administration
Renunciation of compensation provided by will
If no known heirs, mail copy of petition to
Department of State Lands
Affidavits of subscribing witnesses
Limited judgment admitting will and appointing
Bond or order freezing assets
3-45
2012 Revision
Letters testamentary or administration issued

File designation of lawyer
NOTICE
Deliver or mail information to devisees, heirs, and
other interested persons
Affidavit of delivery of mailing
Publication of notice: First pub.
Affidavit of publication
Mail notice of fiduciary relationship
Four months after date of first pub.
Make diligent search for claimants
Notice to claimants
Make and file affidavit of compliance (ORS
115.003(4))
MISCELLANEOUS
Open estate bank accounts as appropriate
Obtain consents to collect insurance proceeds and
712 forms
Transfer securities to street name or name of
Explanatory letter to distributees with request for
Investigate V.A., Soc. Sec., and pension benefits
3-46
2012 Revision
Obtain certified copy of death certificate

Search letter to banks
Obtain date and place of decedents marriage and
divorce and date domicile established
Apply for taxpayer identification number
Apply for Social Security number for decedent (Rev
Rul 64-113, 1964-1 CB 483)
Widows property tax exemption (ORS 307.250)
Waiver of compensation (within 6 months from date
of appointment)
Insurance: First ______ Other ______
Estimate cash requirements
Select fiscal year
Is principal and income accounting required?
Consider IRC 303 redemption
Optional adjustment to basis of partnership property
(IRC 754)
INVENTORY
Discovery (ORS 114.425)
Employ appraisers if necessary
File inventory
Pay appraisers compensation
3-47
2012 Revision
SUPPORT OF SPOUSE AND CHILDREN

Petition for support or to set apart and close estate
Service on personal representative
Answer of personal representative
Notice to interested parties
Proof of notice
Order for temporary support
Order for support
General judgment setting apart whole estate and
closing estate
CLAIMS
Allowance of disallowance
Notice and filing of disallowed claims
Notify claimant to commence separate action
SALE OF PROPERTY
Petition for sale (if required)
Notice of interested parties
Proof of service
Order authorizing sale
Increase bond if necessary
3-48
2012 Revision
OREGON ESTATE TAX

Return due
Determine domicile
Check whether return is due in another state
Consider Oregon QTIP or OSMP Election
Consider disclaimer
Extension of time to pay (ORS 118.225)
Determine proper apportionment
Consider request for Oregon estate tax release
ESTATE AND GST TAX
Due date
Determine domicile
Consider disclaimer
IRC 2032A election
QTIP election
Election re: administration expenses
Extension of time to pay (IRC 6161, 6166)
Extension of time to file (IRC 6081)
Request prompt audit
Determine proper apportionment
3-49
2012 Revision
Closing letter
Apply for discharge of executor from personal
liability (IRC 2204)
INCOME TAX
Amend quarterly estimated tax payments by
surviving spouse
Consider E bond interest election (IRC 454)
Decedents final U.S. and Oregon returns
First fiduciary returns
Apply for and file certificate of release
Request prompt assessment of U.S. returns (IRC
6501(d))
File final returns
PARTIAL DISTRIBUTION
Petition for partial distribution and notice if required
Order authorizing
Petition for return of property
Notice to interested parties
Proof of notice
Order to return property
3-50
2012 Revision
ACCOUNTING AND DISTRIBUTION

First annual account
Verified statement in lieu of final account
Allocation of income
Final account and application for compensation
Consider distribution to conservator or custodian
(ORS 126.822)
Consider consent of distributees
Notice of time for filing objections to heirs or
devisees and to known unpaid creditors
Proof of mailing notice
Date set for hearing objections
Decree of final distribution
Check interest on pecuniary devises (ORS 116.143)
CLOSING
Pay expenses and distribute assets
Supplemental account if needed
Furnish basis of all property to recipients
Receipts
Supplemental judgment of discharge
Record copies of decree and discharge in other
counties
3-51
2012 Revision
Notice of termination of fiduciary relationship filed

Vouchers retrieved
COMMENT: See 3.6-6(b).

3-52
2012 Revision
Form 3-1
Appointment of Person to Make Decisions

Concerning Disposition of Remains
APPOINTMENT OF PERSON TO MAKE DECISIONS

CONCERNING DISPOSITION OF REMAINS
I, ________________, appoint ________________, whose address
is ________________ and whose telephone number is (___) _________,
as the person to make all decisions regarding the disposition of my
remains upon my death for my burial or cremation. If ______________ is
unable to act, I appoint ________________, whose address is
________________ and whose telephone number is (___) _________, as
my alternate person to make all decisions regarding the disposition of my
remains on my death for my burial or cremation.
It is my intent that this Appointment of Person to Make Decisions
Concerning Disposition of Remains act as, and be accepted as, the
written authorization currently required by ORS 97.130 (or its corresponding future provisions) or any other provision of Oregon law,
authorizing me to name a person to have authority to dispose of my
remains.
DATED: ________________, 20___.
/s/__________________________
[decedents name]
DECLARATION OF WITNESSES
We declare that [decedent] is personally known to us, that [he /
she] signed this Appointment of Person to Make Decisions Concerning
Disposition of Remains in our presence, that [he / she] appeared to be of
sound mind and not acting under duress, fraud, or undue influence, and
that neither of us is the person so appointed by this document.
3-53
2012 Revision
Witnessed By:
/s/__________________________
[witnesss name]
Date: _________, 20____
/s/__________________________
[witnesss name]
Date: _________, 20____

3-54
2012 Revision
Chapter 4
INTESTATE SUCCESSION, WILLS, AND
COMMUNITY PROPERTY
MELINDA LEAVER ROY, B.A., Wheaton College (1989); J.D., University of Florida
(1993); member of the Oregon State Bar since 1994; attorney, Churchill
Leonard Lawyers, Salem.
The author wishes to acknowledge and thank the many persons who assisted with the
preparation of this chapter, including the former author of this chapter, James T.
Kulla, and the authors law clerk, Emilee A. Provost.
4.1
INTESTATE SUCCESSION .................................................... 4-4

4.1-1
Property Passing by Intestate Succession ..................... 4-4
4.1-2
Rules of Intestate Succession ....................................... 4-5
4.1-2(a)
Surviving Spouse .............................................. 4-5
4.1-2(a)(1)
Surviving Spouse Defined .................. 4-5
4.1-2(a)(2)
Surviving Spouses Share, with

No Issue Surviving.............................. 4-7
4.1-2(a)(3)
Surviving Spouses Share, with

Issue Surviving ................................... 4-7
4.1-2(b)
Issues Share ..................................................... 4-7
4.1-2(b)(1)
Issues Share, with Spouse

Surviving ............................................. 4-7
4.1-2(b)(2)
Issues Share, with No Spouse

Surviving ............................................. 4-7
4.1-2(b)(3)
Distribution Method to Issue .............. 4-8
4.1-2(c)
Parents Share ................................................... 4-9
4.1-2(d)
Parents Issues Share ..................................... 4-10
4.1-2(e)
Grandparents and Their Issues Share ........... 4-11
4.1-2(f)
Persons Related Through Two Lines .............. 4-13
4.1-2(g)
Escheat Estates; Missing Persons ................... 4-15
4.1-3
Rules Governing Heirs ............................................... 4-17
4-1
2012 Revision
Chapter 4 / Intestate Succession, Wills, and Community Property
4.2
4.1-3(a)
Time of Determining Relationship;

After-Born Heirs .............................................. 4-17
4.1-3(b)
Uniform Simultaneous Death Act ................... 4-17
4.1-3(c)
Persons of the Half-Blood ............................... 4-20
4.1-3(d)
Adopted Persons .............................................. 4-20
4.1-3(e)
Succession When Parents Not Married ........... 4-22
4.1-3(f)
Advancements ................................................. 4-22
4.1-3(g)
Effect of Homicide or Abuse on

Inheritance ....................................................... 4-23
WILLS...................................................................................... 4-24
4.2-1
Who May Make a Will ................................................ 4-24
4.2-2
Effect of Testators Intent and Local Law .................. 4-26
4.2-2(a)
Intention of Testator Expressed in

Will as Controlling .......................................... 4-26
4.2-2(b)
Local Law of State Selected by Testator

Controlling Unless Against Public
Policy ............................................................... 4-26
4.2-2(c)
Uniform International Wills Act ..................... 4-26
4.2-3
Execution of a Will ..................................................... 4-27
4.2-3(a)
Formalities, Signing, and Attestation .............. 4-27
4.2-3(b)
Witness as a Beneficiary ................................. 4-28
4.2-3(c)
Validity of Execution of a Will ....................... 4-29
4.2-4
Testamentary Additions to Trusts ............................... 4-29
4.2-5
Contracts to Make a Will ............................................ 4-29
4.2-5(a)
Contract Law Governs ..................................... 4-31
4.2-5(b)
Statute of Limitations ...................................... 4-31
4.2-5(c)
Problems of Proof ............................................ 4-33
4.2-6
4-2
2012 Revision
Revoking or Altering a Will........................................ 4-35
4.2-6(a)
Governing Statutes Are Exclusive .................. 4-35
4.2-6(b)
Express Revocation or Alteration.................... 4-35
4.2-6(c)
Revival of Revoked or Invalid Will ................ 4-36
4.2-6(d)
Revocation by Marriage .................................. 4-36
Intestate Succession, Wills, and Community Property / Chapter 4
4.2-6(e)
Revocation by Dissolution or
Annulment of Marriage................................... 4-38
4.2-6(f)
Executory Contract of Sale of Devised

Property Not a Revocation ............................. 4-38
4.2-7
4.2-7(a)
Will Governs Disposition of Estate ................ 4-39
4.2-7(b)
Devise Passes All Interests of Testator ........... 4-40
4.2-7(c)
Encumbrance or Disposition of Devised

Property ........................................................... 4-40
4.2-7(d)
Devise of a Life Estate .................................... 4-41
4.2-7(e)
Property Acquired After Making Will ............ 4-41
4.2-7(f)
Direction to Pay Debts, Taxes, and

Other Charges ................................................. 4-42
4.2-7(g)
Nonademption of Specific Devises................. 4-43
4.2-7(h)
Devises to Testators Issue; Antilapse ............ 4-43
4.2-7(i)
Effect of Failure of Devise .............................. 4-45
4.2-7(j)
After-Born and After-Adopted Children:

Pretermitted Children ...................................... 4-45
4.2-7(k)
Effect of General Disposition or

Residuary Clause on Testators Power
of Appointment ............................................... 4-46
4.2-8
Disposition of Wills .................................................... 4-46
4.2-8(a)
Exclusive Manner of Disposing of Wills ........ 4-46
4.2-8(b)
Duties of Custodian of Will ............................ 4-46
4.2-8(c)
Procedure for Destruction of 40-YearOld Will........................................................... 4-47
4.2-8(d)
Liability for Destruction of Will ..................... 4-48
4.2-8(e)
Court May Order Delivery of Will ................. 4-49
4.2-9
4.3
Effect of Will Provisions ............................................ 4-39
Elective Share of Surviving Spouse ........................... 4-49
UNIFORM DISPOSITION OF COMMUNITY

PROPERTY RIGHTS AT DEATH ACT ............................... 4-49
4.3-1
Property Subject to Uniform Act ............................... 4-49
4.3-2
Effect of Uniform Act on Decedents Estate.............. 4-50

4-3
2012 Revision
4.3-2(a)
Distribution and Disposition of

Community Property ....................................... 4-50
4.3-2(b)
Perfection of Title to Community

Property ........................................................... 4-50
4.3-3
Rights of Third Parties to Community Property ......... 4-51
4.3-4
Right to Sever Interests in Community Property ........ 4-51
4.3-5
Effect of Uniform Act ................................................. 4-51
4.1
4.1-1
INTESTATE SUCCESSION
Property Passing by Intestate Succession
Any part of the net estate of a decedent not effectively disposed

of by will passes by intestate succession, as provided in ORS 112.025
112.055. ORS 112.015. The term net estate is defined in ORS
111.005(23) as the real and personal property of a decedent, except
property used for the support of the surviving spouse and children and
for the payment of expenses of administration, funeral expenses, claims
and taxes. The portion of a decedents net estate that is subject to intestate succession is referred to as the net intestate estate. ORS 112.015;
see ORS 111.005(24).
If a decedent dies intestate as to all or any of his or her property,
the inclusion of a disinheritance clause in the decedents will does not
operate to prevent the distribution of the decedents net intestate estate
to the decedents intestate heirs. In McClain v. Hardy, 184 Or App 448,
450, 56 P3d 501 (2002), the decedent specifically provided in her will
that, with the exception of a few items of personal property, nothing was
to be distributed to her daughter. Instead, the will provided that the
decedents net estate was to be distributed to the decedents husband,
who had predeceased the decedent. The Oregon Court of Appeals held
that the disinheritance clause in the decedents will did not operate to
prevent the decedents daughter from taking the decedents net estate
pursuant to the intestate succession rules of ORS 112.025112.055.
McClain, 184 Or App at 454.
4-4
2012 Revision
NOTE: The general rules of intestate succession do not apply

in the situations covered by the following statutes:
(1)
ORS 112.047 provides for the forfeiture of a parents
share of property passing by intestate succession if the parent
willfully deserted the decedent child or neglected the child
without just and sufficient cause to provide proper care and
maintenance, ORS 112.047(1)(2) (see 4.1-2(c)); and
(2) ORS 112.465 prohibits a slayer or an abuser of a
decedent from inheriting from the decedent (see 4.1-3(g)).
4.1-2
Rules of Intestate Succession
4.1-2(a)
Surviving Spouse
4.1-2(a)(1)
Surviving Spouse Defined
The 1993, 1995, and 1999 Legislatures all passed legislation concerning the definition of the term spouse for purposes of intestate succession.
The 1993 Legislature defined the term spouse as the person who
was legally married to the decedent at the time of the decedents death
or, if the decedent was not legally married at the time of his or her
death, any person with whom the decedent lived for at least 10 years, if
that person and the decedent represented themselves and conducted
their affairs as husband and wife. Former ORS 112.017(2).
The 1993 Legislatures definition of spouse applied only to decedents who died on or after September 15, 1992. Additionally, if a
decedent died before November 4, 1993, this definition of spouse did
not apply if estate proceedings were commenced and an order of final
distribution was entered pursuant to ORS 116.113 before November 4,
1993. 1993 Or Laws ch 598, 5.
The 1995 Legislature repealed subsection (2) of former ORS
112.017, which defined the term spouse to include any person with
whom the decedent lived for at least 10 years as husband and wife. In its
place, the legislature enacted a provision that defined the term spouse to
mean any person with whom the decedent cohabited for a period of at
least 10 years if:
4-5
2012 Revision
(1) The period of cohabitation ended not earlier than two years
before the decedents death;
(2) Both the decedent and the person were capable of entering
into a valid contract of marriage under ORS chapter 106;
(3) During the 10-year period of cohabitation, the decedent and
the person mutually assumed marital rights, duties, and obligations;
(4) During the 10-year period of cohabitation, the decedent and
the person held themselves out as husband and wife and acquired a
uniform and general reputation as husband and wife;
(5) During at least the last two years of the 10-year period of
cohabitation, the decedent and the person were domiciled in Oregon;
and
(6) Neither the decedent nor the person was legally married to
another person at the time of the decedents death. Former ORS
112.017(2).
The 1995 amendments to former ORS 112.017(2) applied to the
estates of all decedents who died on or after September 9, 1995.
Regarding the estates of decedents who died before September 9, 1995,
and on or after September 15, 1992, the 1993 Legislatures version of
ORS 112.017(2) was applied unless the decedent died before
November 4, 1993, and estate proceedings were commenced and an
order of final distribution was entered before November 4, 1993. 1995
Or Laws ch 235, 2.
The 1999 Legislature repealed ORS 112.017. The repeal of
former ORS 112.017 applies to the estates of all decedents who die on
or after January 1, 2000.
CAVEAT: Even though Oregon no longer recognizes the
rights of a so-called common-law spouse for purposes of intestate
succession, a person who is a common-law spouse under the laws
of another state may constitute a spouse for purposes of ORS
112.025112.045. In addition, pursuant to ORS 106.340(1), a
surviving domestic partner (as defined by ORS 106.310) will
have the same intestate inheritance rights as a surviving spouse.
4-6
2012 Revision
4.1-2(a)(2)
Surviving Spouses Share, with No Issue

Surviving
If there is no surviving issue, ORS 112.035 leaves all of the net

intestate estate of the decedent to the surviving spouse.
Surviving Spouse; No Surviving Issue
NOTE: This diagram and the diagrams in the following

sections indicate what part of the intestate estate each heir takes.
Heirs with an X through their name are deceased.
4.1-2(a)(3)
Surviving Spouses Share, with Issue Surviving
If the decedent leaves a surviving spouse and issue, and if all of

the decedents surviving issue are also issue of the surviving spouse, the
surviving spouse inherits the entire net intestate estate. ORS 112.025(1).
If the decedent leaves a surviving spouse and issue, and if one or
more of the surviving issue are not the issue of the surviving spouse, the
surviving spouse inherits one-half of the net intestate estate. ORS
112.025(2).
4.1-2(b)
Issues Share
4.1-2(b)(1)
Issues Share, with Spouse Surviving
If the decedents spouse survives and all of the decedents issue

are also issue of the surviving spouse, the issue take no part of the net
intestate estate. ORS 112.025(1).
If the decedents spouse survives, and if one or more of the
decedents surviving issue are not issue of the surviving spouse, then all
of the decedents issue take one-half of the net intestate estate. ORS
112.025(2).
4.1-2(b)(2)
Issues Share, with No Spouse Surviving
If a spouse does not survive the decedent, the decedents issue

take all of the net intestate estate. ORS 112.045(1).
4-7
2012 Revision
Surviving Issue; No Surviving Spouse
4.1-2(b)(3)
Distribution Method to Issue
If the decedents issue are all of the same degree of kinship to

the decedent, they take equally. But if the issue are of unequal degree,
the issue of more remote degree take by representation. ORS
112.045(1). See diagram in 4.1-2(b)(2).
Taking by representation is explained in ORS 112.065 as follows:
Representation means the method of determining the passing
of the net intestate estate when the distributees are of unequal degrees
of kinship to the decedent. It is accomplished as follows: The estate
shall be divided into as many shares as there are surviving heirs of the
nearest degree of kinship and deceased persons of the same degree
who left issue who survive the decedent, each surviving heir of the
nearest degree receiving one share and the share of each deceased
person of the same degree being divided among the issue of the
deceased person in the same manner.
This calculation is similar to, but slightly different than, per stirpes
distribution, which divides the estate at every degree of kinship, regardless of whether any persons survive at that level.
4-8
2012 Revision
4.1-2(c)
Parents Share
If there is no surviving spouse and no surviving issue, the

decedents surviving parent or parents take the net intestate estate. ORS
112.045(2).
No Spouse; No Issue; Two Parents Surviving
No Spouse; No Issue; One Parent Surviving
The 2005 Legislature enacted a statute that provides for the

forfeiture of a parents share of property passing by intestate succession,
if the parent willfully deserted the decedent child or neglected the
child without just and sufficient cause to provide proper care and
maintenance. ORS 112.047(1)(2).
If the decedent was an adult when he or she died, the statute
applies if the parent willfully deserted or neglected the decedent for the
10-year period immediately preceding the date on which the decedent
became an adult. ORS 112.047(1).
If the decedent was a minor when he or she died, the statute
applies if the parent willfully deserted or neglected the decedent child
for the life of the decedent or for the 10-year period immediately
preceding the date on which the decedent died. ORS 112.047(2).
4-9
2012 Revision
If the statute applies, property that would pass by intestate

succession under ORS 112.045 from the estate of a decedent to a parent
of the decedent shall pass and be vested as if the parent had
predeceased the decedent. ORS 112.047(1)(2).
For purposes of subsections (1) and (2) of ORS 112.047, the court
may disregard incidental visitations, communications and contributions
in determining whether a parent willfully deserted the decedent or
neglected without just and sufficient cause to provide proper care and
maintenance for the decedent. ORS 112.047(3). Furthermore, in
determining the requisite desertion or neglect, the court may consider
whether a custodial parent or other custodian attempted, without good
cause, to prevent or to impede contact between the decedent and the
parent whose intestate share would be forfeited under the statute. ORS
112.047(4).
The intestate share of a parent of a decedent may be forfeited
under the statute only pursuant to a court order entered after the filing of
a petition under ORS 112.049. A petition to commence probate filed
under ORS 113.035 may not request the forfeiture of the intestate share
of a parent of a decedent under the statute. ORS 112.047(5).
4.1-2(d)
Parents Issues Share
If there is no surviving issue, spouse, or parent, the decedents

estate passes to the decedents brothers and sisters and to the issue of
any deceased brother or sister by right of representation. ORS
112.045(3).
No Surviving Spouse, Issue, or Parent
4-10
2012 Revision
If there is no surviving brother or sister of the decedent, the issue

of deceased brothers and sisters take equally if all are of the same degree
of kinship to the decedent. But if they are of unequal degree, those of
more remote degree take by representation. ORS 112.045(3).
No Surviving Spouse, Issue, Parent, Brother, or Sister
4.1-2(e)
Grandparents and Their Issues Share
Grandparents and issue of deceased grandparents take only if

there is no surviving issue, spouse, parent, brother, sister, or issue of a
deceased brother or sister. It is clear, then, that all issue of the
decedents parents must be exhausted before grandparents or their issue
take. ORS 112.045(4).
If there is at least one surviving grandparent, the issue of any
deceased grandparent take by representation. ORS 112.045(4). Each
surviving paternal and maternal grandparent takes an undivided onequarter share of the net intestate estate. If any grandparent is deceased,
his or her issue take by representation the undivided one-quarter share
of the deceased grandparent. Thus, a surviving paternal grandfather
inherits a one-quarter share, and the issue of the paternal grandfathers
deceased wife inherit another one-quarter share. If both maternal
grandparents are deceased, their issue take by representation the other
undivided one-half share.
If no grandparents survive, the issue of the deceased grandparents, both maternal and paternal, take equally if they are of the same
degree of kinship to the decedent. If they are of unequal degree of
kinship, then the issue of more remote degree take by representation.
4-11
2012 Revision
ORS 112.045(4). Thus, if all four grandparents are deceased, leaving

two uncles on the paternal side and the children of a deceased aunt on
the maternal side, each surviving uncle inherits an undivided one-third
share of the net intestate estate, and the issue of the deceased aunt
inherit the other one-third share and take it by representation. See the
fourth diagram below.
There is no limitation on inheritance by lineal descendants of the
intestates grandparents. ORS 112.045 and 112.055 exclude more
remote relatives claiming through great-grandparents.
If, at the time of taking, surviving grandparents are married to
each other, they take real property as tenants by the entirety and
personal property as joint owners with the right of survivorship. ORS
112.045(5).
Grandparents Survive
Paternal Grandparents Do Not Survive;

Maternal Grandparents Survive
4-12
2012 Revision
One Grandparent Survives
All Grandparents Deceased
4.1-2(f)
Persons Related Through Two Lines
A person who is related to the decedent through two lines of

relationship is entitled to only a single share based on the relationship
which would entitle the person to the larger share. ORS 112.115.
The clear intent of the statute is that only one intestate share may
be inherited. For example, under the provision for inheritance by issue
of grandparents on both the maternal side and the paternal side, the
marriage of cousins might otherwise entitle their issue to inherit from
both sets of grandparents.
4-13
2012 Revision
Inheritance Through Two Lines of Relationship
NOTE: The fractions in parentheses indicate the share that

would have been received but for the intermarriage of Cousins B
and C. The fractions below each box indicate the share actually
received.
The three maternal cousins (Cousins C, D, and E) would have
each received a one-fifteenth share, until the two cousins (B and C)
marriage joined the lines and caused the issue of that marriage to share
the larger (one-tenth) portion coming through Cousin B.
Except for the rule stated, the children of the married cousins
would have inherited the one-tenth interest of one parent and the onefifteenth interest of the other parent, thus giving them a larger interest
than the children of the other cousins. To carry out the rule, the onefifteenth interests of Cousins D and E are increased to include the onefifteenth interest (originally to go to Cousin C) that would otherwise be
inherited by the children of the cousins marriage.
PRACTICE TIP: It is crucial for a person to make a will if he
or she wants to remember a living great-grandparent, a second
cousin (a descendant of the great-grandparents), or others who are
4-14
2012 Revision
not otherwise entitled to inherit under the laws of intestate

succession.
4.1-2(g)
Escheat Estates; Missing Persons
The circumstances under which all or any part of an estate will

escheat to the state of Oregon are set forth in ORS 112.055, which was
significantly amended in 2003.
If a devisee is not identified or cannot be found, the share of that
devisee escheats to the state of Oregon. ORS 112.055(2). See 5.2-3.
COMMENT: Presumably, the share of any such devisee will
escheat only if applicable antilapse rules fail to give the property to
someone else. See 4.2-7(h) for a discussion of the antilapse
statute.
The statute also provides that if a person entitled to take under
ORS 112.025112.045 (i.e., a person who is an intestate heir) cannot be
identified or found, the intestate heirs share will escheat to the state of
Oregon. Escheat of an intestate heirs share can thus occur even if other
intestate heirs can be found. ORS 112.055(2).
PRACTICE TIP: Because the results from the application of
this statute might not conform to the testators wishes, the drafter
should always specifically state those wishes in the testators will.
Resorting to the statutory presumptions is not a good practice.
The 2003 Legislature also created presumptions regarding missing persons. ORS 112.058. After diligent search and inquiry
appropriate to the circumstances (ORS 112.058(1)(b)), the following
presumptions apply in a proceeding to determine whether a missing
person has died:
(1) A missing person whose death cannot be proved by any
other means is presumed to live to 100 years of age, ORS
112.058(1)(b)(A);
(2) A missing person who was exposed to a specific peril when
he or she became missing is presumed deceased if it is reasonable to
expect from the nature of the peril that proof of death would be
impractical, ORS 112.058(1)(b)(B);
4-15
2012 Revision
(3) A missing person whose absence is unexplained is

presumed deceased if the character and habits of the person are
inconsistent with a voluntary absence for the time that the person has
been missing, ORS 112.058(1)(b)(C); and
(4) A missing person known to have been alive who has not
been seen or heard from for seven years is presumed deceased if (a) the
person has been absent from his or her usual residence, (b) the
absence is unexplained, (c) there are other persons who would have
been likely to have heard from the missing person during that period
were the missing person alive, and (d) those other persons have not
heard from the missing person, ORS 112.058(1)(b)(D).
A missing person who is presumed dead under any of the above
presumptions is also presumed to have had two children in addition to
any known issue, unless the presumption of death arises by reason of
the application of subsection (B) or (C) of ORS 112.058(1)(b) (see
presumptions (2) and (3) above). ORS 112.058(2). These two presumed
children have rights as intestate takers and, if they cannot be found,
their share of the estate is subject to escheat.
If a devisee or an intestate heir is not identified or found, the
estate administrator of the Department of State Lands may (1) take
custody of the estate property; (2) incur and recover certain specified
expenses on behalf of the estate; (3) have access to the records of the
decedent that are not confidential or privileged by statute; (4) have
access to the property of the decedent; and (5) sell perishable property
of the estate. ORS 113.242(1)(2). The Department of State Lands will
also have the same preference that the missing devisee or intestate heir
would have had for the purpose of appointment as a personal
representative, contesting a will of the decedent, and receiving information concerning the estate. ORS 112.055(3).
For further discussion of escheat, see 5.2-3.
4-16
2012 Revision
4.1-3
Rules Governing Heirs
4.1-3(a)
Time of Determining Relationship; After-Born Heirs
The relationships existing at the time of the decedents death

govern the passing of the net intestate estate. However, a posthumous
child (one conceived before the death of the decedent and born alive
thereafter) inherits as though he or she were alive at the time of the
decedents death. ORS 112.075. See LaDu v. Oregon Clinic, P.C., 165
Or App 687, 692, 998 P2d 733 (2000) (although the probate code is
silent as to the distribution of the estate of a stillborn fetus, it clearly
indicates that a stillborn fetus is incapable of inheriting by intestate
succession). A posthumous child might be a child of the decedent, or
might be the child of an intestate heir.
4.1-3(b)
Uniform Simultaneous Death Act
When the disposition of property depends on whether a specified

person survives the death of another person, Oregons Uniform Simultaneous Death Act (USDA), ORS 112.570112.590, creates a presumption that the specified person died before the other person. ORS 112.572.
This presumption may, however, be rebutted, and is subject to certain
exceptions. ORS 112.572, 112.586.
NOTE: The 1999 Legislature amended Oregons USDA by
repealing former ORS 112.575112.645 and replacing those
statutes with ORS 112.570112.590.
The presumption under the USDA may be rebutted if it is
established by clear and convincing evidence that the specified person
survived the other person by at least 120 hours. ORS 112.572. In the
absence of contradicting evidence, the time of death set forth in a
certified or authenticated death certificate or government agency report
constitutes conclusive proof of the time of death. ORS 112.582(2)(a),
(5).
A person whose death is not otherwise established under ORS
112.582, but who has been absent for a continuous period of five years,
is presumed to be deceased if the person made no contact with another
person during that five-year period, and the persons absence cannot be
4-17
2012 Revision
satisfactorily explained after diligent search or inquiry. ORS

112.582(4). A person presumed deceased under ORS 112.582(4) is
presumed to have died at the end of the five-year period unless it is
proved by a preponderance of the evidence that death occurred at a
different time. ORS 112.582(4).
Except as provided in ORS 112.586, ORS 112.580 describes the
devolution of property held by two or more co-owners:
(1) If two co-owners hold property with right of survivorship
(e.g., as joint tenants or tenants by the entirety, see ORS 112.570(1))
and both co-owners die, half of the property passes as if one co-owner
had survived the second co-owner by 120 hours or more, and half of the
property passes as if the second co-owner had survived the first coowner by 120 hours or more, unless it is established by clear and convincing evidence that one of two co-owners survived the other co-owner
by at least 120 hours (in which event the survivorship property passes
to the heirs or devisees of the co-owner who survived the other by at
least 120 hours), ORS 112.580(1); and
(2) If more than two co-owners hold the property and it is not
established by clear and convincing evidence that at least one of the coowners survived the others by at least 120 hours, the property passes in
the proportion that one bears to the whole number of co-owners, ORS
112.580(2).
However, the survivorship rules of ORS 112.570112.590 do not
apply if:
(1) A governing instrument contains a simultaneous-death
clause or expressly provides that a person is required or not required to
survive the death of another person, ORS 112.586(2)(4); or
(2) Application of the statute would result in (a) the escheat of
an intestate estate, (b) the possible invalidity of an interest under the rule
against perpetuities, or (c) there are multiple governing instruments and
the application of the survivorship rules would result in an unintended
failure or duplication of a disposition, ORS 112.586(1), (5)(6).
4-18
2012 Revision
NOTE: The term governing instrument means (1) a deed:

(2) a will; (3) a transfer on death deed under ORS 93.94893.979
(see 1.5-9); (4) a trust; (5) an insurance or annuity policy with a
payable-on-death designation; (6) a pension, profit-sharing, retirement, or similar benefit plan; (7) an instrument creating or exercising a power of appointment or a power of attorney; or (8) any other
similar instrument. ORS 112.570(2).
Unless a payor or other third party has received written notice of a
claim under ORS 112.588(2), the payor or other third party is not liable
for making a payment to, transferring property to, or conferring any other
benefit on a person who appears to be entitled to the payment, property or
benefit under a good faith reading of a governing instrument. ORS
112.588(1). However, the third party is liable for a payment, transfer, or
other benefit conveyed after receiving such a notice. ORS 112.588(1).
ORS 112.588(2) establishes procedures for providing a payor or
other third party with written notice of a claim that a person is not
entitled to receive payment, property, or other benefit by reason of the
survivorship rules set forth in ORS 112.570112.590. On receipt of
such notice, the payor or other third party may deposit the disputed
money or property with any court conducting probate proceedings for
one of the decedents estates or, if probate proceedings have not been
commenced, with the probate court in the county in which one of the
decedents resided. ORS 112.588(3).
If a person who has no notice of a claim under ORS 112.588
purchases property for value or receives payment, property, or other
benefit in full or partial satisfaction of a legally enforceable obligation,
the person is not liable to another person with a claim to the payment,
property, or benefit by reason of the operation of the survivorship rules
set forth in ORS 112.570112.590. ORS 112.590(1). Such a person need
not return the payment, property, or other benefit. ORS 112.590(1).
A person who receives payment, property, or other benefit to
which the person is not entitled by reason of the survivorship rules must
return the payment, property, or other benefit if:
4-19
2012 Revision
(1) The person was aware of a claim to the payment, property,

or other benefit under the survivorship rules at the time the purchase,
payment, or delivery was made; or
(2) The person received the payment, property, or other benefit
for no value.
ORS 112.590(2).
A person who receives any payment, property or other benefit
to which the person is not entitled because any part of ORS 112.570 to
112.590 is preempted by federal law must return the payment, property
or other benefit if the person received the payment, property or other
benefit for no value.
ORS 112.590(3).
Any person who is required to, but who fails to, return any
payment, property, or other benefit under ORS 112.590 is personally
liable to a person with a right to the property under the survivorship rules
established under ORS 112.570112.590, or with a right to the property
by reason of federal preemption of all or part of the survivorship rules.
ORS 112.590(4).
4.1-3(c)
Persons of the Half-Blood
Persons of the half blood inherit the same share that they would
inherit if they were of the whole blood. ORS 112.095.
4.1-3(d)
Adopted Persons
The law relating to the status of adopted persons provides that

inheritance rights are derived from the adoptive parents, rather than
from the natural parents. These inheritance rights are set forth explicitly
in ORS 112.175112.195.
NOTE: The statutes treat an adopted person as the natural
child of the adoptive parents and apply for all purposes of
intestate succession. ORS 112.175(1)(2). The phrase all purposes of intestate succession is statutorily defined as succession
by, through or from a person, both lineal and collateral. ORS
111.005(5). This wording gives the adopted person a status for
purposes of inheritance from adoptive relatives, and gives the
4-20
2012 Revision
adoptive relatives a status for purposes of inheritance from the

adopted person. It also gives any children of the adopted person the
right to inherit from the adoptive relatives.
The statute denies rights of intestate succession from and by the
natural relatives of an adopted child, except as follows:
(1) If a natural parent of a child marries or remarries and the
child is adopted by the stepparent, the child will continue also to be
treated, for all purposes of intestate succession, as the child of the
natural parent who is the spouse of the adoptive parent, ORS
112.175(2)(a); and
(2) If a natural parent of a child dies, the other natural parent
remarries, and the child is adopted by the stepparent, the child will
continue also to be treated, for all purposes of intestate succession by
any person through the deceased natural parent, as the child of the
deceased natural parent, ORS 112.175(2)(b).
The entire Oregon probate code applies to adopted persons who
are adopted in this state or elsewhere. ORS 112.175(3).
A child adopted more than once is treated as the child of the
parents who most recently adopted the child; the child ceases to be
treated as the child of his or her previous adoptive parents, except that
the adopted child continues to be treated as the child of his or her
natural parent or previous adoptive parent in the situations described in
ORS 112.175(2), discussed above. ORS 112.185.
Unless a contrary intent is expressed in the instrument, all
references in a will or other instrument to a person or member of a class
described generically in relation to a particular person as children, issue,
descendants, heirs, or other relatives include any person who would be
treated as so related for all purposes of intestate succession. ORS
112.195. However, an adopted person so included must have been
adopted as a minor or must have been adopted after having been a
member of the household of the adoptive parent while a minor. ORS
112.195.
4-21
2012 Revision
ORS 111.015(1) provides that a will is construed based on the law

in effect on the date of execution, unless the will expresses a contrary
intent. Before 1947, adopted persons did not inherit in Oregon. See 1947
Or Laws ch 562.
4.1-3(e)
Succession When Parents Not Married
Pursuant to ORS 112.105, the right of inheritance extends to and

from children born out of wedlock, as described in ORS 109.060, which
gives such children the same legal status as those born in wedlock.
For purposes of intestate succession, before the relationship of
father and child and other relationships dependent on the establishment
of paternity can be given effect under ORS 112.105(1):
(1) The paternity of the child must have been established under
ORS 109.070 during the lifetime of the child, ORS 112.105(2)(a); or
(2) The father must have acknowledged himself to be the
father, in writing, signed by him during the lifetime of the child, ORS
112.105(2)(b).
Thus, if paternity of the child is to be established under ORS
109.070, it must be established during the lifetime of the child and not
afterwards.
4.1-3(f)
Advancements
If a person dies intestate as to all of his or her estate, a lifetime

transfer by the decedent to an heir is treated as an advancement against
the heirs share of the estate, if (1) the decedent declared, in writing,
that the transfer was an advancement, or (2) the heir acknowledged, in
writing, that the transfer was an advancement. ORS 112.135. See 8.13.
The property advanced is to be valued as of (1) the time the heir
came into possession or enjoyment of the property, or (2) the date of
the decedents death, whichever occurs first. ORS 112.135.
If the value of the advancement exceeds the value of the heirs
share of the estate, the heir is not required to refund the difference to the
estate. ORS 112.145(1).
4-22
2012 Revision
If the value of the advancement is less than the value of the heirs
share of the estate, the heir is entitled to receive such additional amount
as will give the heir the heirs share of the estate. ORS 112.145(1).
If the recipient of the property advanced fails to survive the
decedent, the amount of the advancement is taken into account in
computing the share of the issue of the recipient, whether or not the
issue take by representation. ORS 112.155.
4.1-3(g)
Effect of Homicide or Abuse on Inheritance
ORS 112.465 prohibits a slayer or an abuser of a decedent

from inheriting from the decedent as follows:
(1)
Property that would have passed by reason of the death
of a decedent to a person who was a slayer or an abuser of the
decedent, whether by intestate succession, by will, by transfer on death
deed or by trust, passes and vests as if the slayer or abuser had
predeceased the decedent.
(2)
Property that would have passed by reason of the death
of an heir or devisee of a decedent to a person who was the slayer or
abuser of the decedent, whether by intestate succession, by will, by
transfer on death deed or by trust, passes and vests as if the slayer or
abuser had predeceased the decedent unless the heir or devisee
specifically provides otherwise in a will or other instrument executed
after the death of the decedent.
NOTE: The 2011 Legislature amended subsections (1) and

(2) of ORS 112.465 to prohibit slayers and abusers from inheriting
by a transfer on death deed. 2011 Or Laws ch 212, 26. For further
discussion of transfer on death deeds, see 1.5-9.
For purposes of ORS 112.455112.555, a slayer is a person
who, with felonious intent, takes or procures the taking of the life of a
decedent. ORS 112.455(3). A final judgment of conviction of felonious and intentional killing is conclusive for purposes of ORS 112.455 to
112.555. ORS 112.555. Without such a conviction, the probate court
may determine by a preponderance of the evidence whether a killing
was felonious and intentional for purposes of ORS 112.455112.555.
ORS 112.555. See 8.1-4(a) to 8.1-4(c).
4-23
2012 Revision
ORS 112.455112.555 apply to an abuser only if the decedent

dies within five years after the abuser is convicted of a felony by reason
of conduct that constitutes physical abuse of the decedent, as described
in ORS 124.105, or financial abuse of the decedent, as described in
ORS 124.110. ORS 112.457; see ORS 112.455(1), (2)(b).
Although neither a slayer nor an abuser may receive his or her
intestate share from the person who was slain or abused, the slayer or
abusers issue, or other persons taking through the slayer or abuser, take
that share as if the slayer or abuser had predeceased the decedent.
4.2
4.2-1
WILLS
Who May Make a Will
Any person who is 18 years of age or older or who has been

lawfully married, and who is of sound mind, may make a will. ORS
112.225.
Marriage is a civil contract entered into in person by males at
least 17 years of age and females at least 17 years of age, who are
otherwise capable, and solemnized in accordance with ORS 106.150.
ORS 106.010.
As required by ORS 112.225, a person must be of sound mind to
make a will. The requirements for testamentary capacity are well settled
and have been stated by the Oregon Court of Appeals in Golden v.
Stephan, 5 Or App 547, 550, 485 P2d 1108 (1971), as follows:
(1) The person must be able to understand the nature of the act
in which the person is engaged, that is, the execution of a will;
(2)
property;
The person must know the nature and extent of his or her
(3) The person must know, without prompting, the claims, if

any, of those who are, should be, or might be the natural objects of the
persons bounty; and
(4) The person must be cognizant of the scope and reach of the
provisions of the document.
4-24
2012 Revision
Whether a testator has testamentary capacity is determined at the

precise moment that he or she executes a will. See, e.g., Perry v. Adams,
112 Or App 77, 81, 827 P2d 930 (1992); Matter of Ungers Estate, 47
Or App 951, 955, 615 P2d 1115 (1980).
A will is not executed until all of the requirements of ORS
112.235, which are discussed in 4.2-3(a), have been satisfied. Perry,
112 Or App at 81. In other words, a will is not executed when the
testator signs the will unless that act is done in the presence of
witnesses, and the witnesses then sign the will before the testator loses
testamentary capacity. Perry, 112 Or App at 8182.
The testimony of subscribing witnesses, aided by the presumption of competency which accompanies a will that has been duly
executed, carries great weight in the determination of [a] decedents testamentary capacity. Matter of Ungers Estate, 47 Or App at 955; see
also Bigej v. Boyer, 108 Or App 663, 669, 817 P2d 760 (1991).
PRACTICE TIP: In light of the above rule, the lawyer should
take care in choosing subscribing witnesses when the capacity of
the testator might be questioned later. In Bigej, 108 Or App at 669,
the Oregon Court of Appeals discounted the testimony of the
subscribing witness (the lawyer who drafted the will), because he
had only minimal contact with the testator and was not familiar
with her mental or medical condition. Similarly, in Matter of
Ungers Estate, 47 Or App at 955958, the Oregon Court of
Appeals discounted the testimony of the subscribing witnesses (the
lawyer who drafted the will and his secretary), and relied on the
testimony of medical experts who had extended contact with the
testator before and after she signed the will.
PRACTICE TIP: When questions exist regarding a persons
testamentary capacity, the lawyer preparing the will should, before
the execution of the will, consult with any family members,
friends, and health care professionals who have had an opportunity
to interact with and to observe the person on a continuing basis
regarding the persons testamentary capacity. It may also be advisable to videotape the execution of the will or the testimony of the
4-25
2012 Revision
subscribing witnesses, but that technique could backfire. Another

way to prepare for a potential will contest is to obtain affidavits of
long-time friends of the decedent who have no stake in the inheritance, and who can attest to the testators mental acuity on or near
the day of signing.
4.2-2
Effect of Testators Intent and Local Law
4.2-2(a)
Intention of Testator Expressed in Will as Controlling
The intention of a testator as expressed in his or her will controls

the legal effect of the testators dispositions. ORS 112.227. The rules of
construction expressed in ORS 112.227, 112.230 (see 4.2-2(b)), and
112.410 (effect of general disposition or residuary clause on testators
power of appointment) apply unless a contrary intention is indicated by
the will. ORS 112.227. If a provision in a will disposing of property is
ambiguous, the courts may interpret the will so as to resolve the ambiguity. McClain v. Hardy, 184 Or App 448, 453, 56 P3d 501 (2002).
Conversely, if a provision in a will disposing of property is unambiguous,
the inclusion of a dispute-resolution provision in the will that gives the
personal representative the authority to resolve disputes arising out of the
distribution of the estate does not trump the courts authority to enforce
the unambiguous intent of the testator. Roley v. Sammons, 215 Or App
401, 408, 170 P3d 1067 (2007).
4.2-2(b)
Local Law of State Selected by Testator Controlling

Unless Against Public Policy
The meaning and legal effect of a disposition in a will are determined by the local law of the state selected by the testator unless the
application of that law is contrary to Oregons public policy. ORS
112.230. The construction of a will is governed by the law in effect on
the date of its execution, unless the will expresses a contrary intent. 4
PAGE ON WILLS 30.27, at 208209 (William J. Bowe & Douglas H.
Parker eds., 2004) (citation not verified by publisher).
4.2-2(c)
Uniform International Wills Act
The Uniform International Wills Act (UIWA), which appears in

ORS 112.232, prescribes the requirements that must be met in order for
4-26
2012 Revision
a will to qualify as an international will in terms of format and formalities of execution. The validity of an international will that complies with
the requirements of the UIWA is not affected by the location of assets,
or by the nationality, domicile, or residence of the testator. ORS
112.232(2)(a). However, a statutory certificate must be attached to the
will, and the certificate must be signed by an authorized person
(which includes certain members of the diplomatic and consular service
of the United States as well as Oregon lawyers). ORS 112.232(1)(b),
(5), (9).
A will executed in compliance with the UIWA is deemed to have
complied with the formalities of ORS 112.235. ORS 112.235(4). A will
is lawfully executed if it complies with the UIWA. ORS 112.255(2).
4.2-3
Execution of a Will
4.2-3(a)
Formalities, Signing, and Attestation
A will must be in writing, signed by the testator or by some other

person at the testators direction and in his or her presence, and attested
by two or more competent witnesses. ORS 112.235.
Any person who, at the testators direction, signs the name of the
testator on the will must also sign his or her own name on the will and
write on the will that he or she signed the name of the testator at the
testators direction. ORS 112.235(2). The person who signs the
testators name need not be a witness to the will. ORS 112.235(1)(b).
The statute also permits the testator to acknowledge, in the
presence of each of the witnesses, the signature previously made on the
will by the testator or at the testators direction. ORS 112.235(1)(c). In
Kirkeby v. Covenant House, 157 Or App 309, 313, 970 P2d 241 (1998),
the decedent acknowledged her previously made signature on her will to
a witness during a telephone conversation. After the telephone conversation, a representative of the decedent delivered the decedents will
to the witnesses to sign. The Oregon Court of Appeals held that the
decedents telephonic acknowledgment of her signature did not satisfy
the in the presence requirement of ORS 112.235(1)(c), because the
decedents will was not before the witnesses at the time of the acknowledgment. Kirkeby, 157 Or App at 319320. The court reasoned that
4-27
2012 Revision
without having the decedents will in front of them, the witnesses could
not have known whether the instrument that was later presented to them
was, in fact, the instrument that contained the signature that the
decedent had previously acknowledged, or whether the decedent had
actually signed the instrument at the time she stated in her acknowledgment. Kirkeby, 157 Or App at 320.
At least two witnesses must either see the testator sign the will or
hear the testator acknowledge the signature on the will. ORS
112.235(3)(a)(b); see Kirkeby, 157 Or App 319320 (to satisfy the in
the presence requirement of ORS 112.235(1)(c), the will, bearing the
signature that the testator acknowledges, must be before the witness at
the time of the acknowledgment). Publication by the testator is not
required. Each witness must attest the will by signing his or her name to
it. ORS 112.235(3)(c).
In Perry v. Adams, 112 Or App 77, 827 P2d 930 (1992), the
Oregon Court of Appeals held that the execution of a will is not
complete until all of the formalities of execution set forth in ORS
112.235 are satisfied. Thus, testamentary capacity may not be determined when a testator signs a will unless that act is done in the presence
of witnesses, and the witnesses then attest the will. Perry, 112 Or App
at 82. It therefore follows that, although ORS 112.235 does not require
witnesses to sign a will at the time and place it is signed by the testator,
witnesses must sign the will before the testator loses testamentary
capacity or dies. See Perry, 112 Or App at 82; Rogers v. Rogers, 71 Or
App 133, 136, 691 P2d 114 (1984) (the requirements of execution were
not satisfied when a witness attested the will 11 months after the testator
died).
4.2-3(b)
Witness as a Beneficiary
An interested person may serve as an attesting witness without

invalidating the will. An interested witness is one to whom a personal
and beneficial interest in the estate is devised. ORS 112.245.
4-28
2012 Revision
4.2-3(c)
Validity of Execution of a Will
A will is lawfully executed if it is:

(1)
In writing;
(2)
Signed by, or at the direction of, the testator; and
(3) Otherwise executed in accordance with the law of (a) this

state at the time of execution or at the time of the testators death,
(b) the domicile of the testator at the time of execution or at the time of
the testators death, or (c) the place of execution at the time of execution. ORS 112.255(1).
Furthermore, a will is lawfully executed if it complies with the
Uniform International Wills Act. ORS 112.255(2). See 4.2-2(c).
4.2-4
Testamentary Additions to Trusts
Under the Uniform Testamentary Additions to Trusts Act, ORS

112.265, a devise may be made by a will to a trustee of a trust if (1) the
trust is established or will be established by the testator, or by the
testator and some other person or persons, or by some other person or
persons; (2) the trust is identified in the testators will; and (3) the
terms of the trust are set forth in a written instrument, other than a will,
executed before, concurrently with, or after the execution of the
testators will, or in the valid last will of a person who has predeceased
the testator. ORS 112.265(1).
The trust may be funded during the testators lifetime or upon the
testators death by the testators devise to the trustee. ORS 112.265(2).
Thus, the trust need not be funded during the testators lifetime and may
acquire assets solely from a testamentary devise. All property devised to
such a trust will be administered and disposed of in accordance with the
provisions of the trust instrument, including any amendments made to it
before or after the death of the testator. ORS 112.265(4)(b).
4.2-5
Contracts to Make a Will
Pursuant to ORS 112.270(1), [a] contract to make a will or

devise, or not to revoke a will or devise, or to die intestate, executed
after January 1, 1974, may be established only by:
4-29
2012 Revision
(1)
contract;
Provisions of a will stating material provisions of the
(2) An express reference in a will to a contract and extrinsic

evidence proving the terms of the contract; or
(3)
A writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a

presumption of a contract not to revoke the will or wills. ORS
112.270(2).
ORS 112.270 applies only to wills executed after January 1, 1974.
ORS 112.270(1). For wills executed before 1974, no specific guidelines
establish what is required to show the existence of such a contract;
however, it has been held that when a person seeks specific performance
of a contract to make mutual wills, and the contract was entered into
before the effective date of ORS 112.270, the person seeking specific
performance must show that it is much more probable than not that the
parties to the alleged contract manifested the essential mutual assent.
See Willbanks v. Goodwin, 300 Or 181, 202, 709 P2d 213 (1985);
DeLaMater v. DeLaMater, 69 Or App 40, 44, 688 P2d 1350 (1984).
In Kruegers Estate v. Ropp, 282 Or 473, 478 & n 2, 579 P2d 847
(1978), the court noted ORS 112.270, but did not apply the statute in
determining whether an oral contract existed. The court stated that an
oral contract to devise or bequeath property must be proved by clear,
concise, and convincing evidence. Kruegers Estate, 282 Or at 478. In
Lawrence v. Ladd, 280 Or 181, 188 n 11, 570 P2d 638 (1977), the court
noted the applicability of ORS 112.270 but, because the statute was not
raised as a bar by the defendant, the court did not apply it. See
Richardson v. Richardson, 58 Or App 338, 648 P2d 377 (1982).
The procedures for contesting a will are set forth in ORS 113.075.
See 15.2-1(a) to 15.2-2(g). If the will contest involves a contract to
make a will, the action must be commenced by the filing of a separate
action, outside the probate court, to enable either party to demand a jury
trial. ORS 113.075(2).
4-30
2012 Revision
A petition for the probate of a will must name any person known
to the petitioner as having a potential interest in the estate that arises out
of a contract to make a will or devise. ORS 113.035(8)(c). Furthermore,
the personal representative must deliver to any such person a copy of
the information required to be given to the devisees and heirs of the
estate. ORS 113.145(1). If, during the administration of the estate, the
personal representative receives actual knowledge that a person has a
potential interest in that estate, based on a contract to make a will or
devise, the personal representative must make reasonable efforts to
ascertain the name and address of the person and notify that person of the
probate proceedings. ORS 113.145(5). See 2.5-1.
4.2-5(a)
Contract Law Governs
In general, contracts to make a will or not to revoke a will are

governed by the principles of contract law, and not by the principles of
probate law. Florey v. Meeker, 194 Or 257, 280, 240 P2d 1177 (1952);
see ORS 112.270. Therefore, once a contract has been established, the
law of contracts governs its interpretation and application. Florey, 194 Or
at 280281. See CONTRACT LAW IN OREGON (Oregon CLE 2003 & Supp
2008) (discussing principles of contract law). Thus, a contract to make a
will, or not to revoke a will, will be binding if the parties are competent
to contract with one another, and if there is no fraud, undue influence,
duress, or mistake. Matter of Marriage of Ellinwood, 59 Or App 536,
539, 651 P2d 190 (1982). In addition, the fairness of the contract will
usually be determined as of the date of the contract. Matter of Marriage
of Ellinwood, 59 Or App at 539.
An action for breach of a contract to make a will may be brought
during the life of the promisor. Dickie v. Dickie, 95 Or App 310, 314 & n
5, 769 P2d 225 (1989) (when the promisor in a contract to devise
specified real property sells it instead, the promisee may sue for breach of
contract).
4.2-5(b)
Statute of Limitations
As stated in 4.2-5(a), the principles of contract law govern the

interpretation and application of a contract to make a will or not to
revoke a will. See ORS 112.270. The statute of limitations for contracts
4-31
2012 Revision
is generally six years. See ORS 12.080. In the past, the statute of
limitations did not begin to run until the death of the promisor-testator.
Catching v. Lashway, 84 Or App 602, 606, 735 P2d 13 (1987); Schaad
v. Lorenz, 69 Or App 16, 26, 688 P2d 1342 (1984). The reasoning for
the rule was that the will is an ambulatory document, and therefore, the
promisor-testator is able to perform the contract until his or her death.
Schomp v. Brown, 215 Or 714, 723, 335 P2d 847, decision clarified on
denial of rehg, 215 Or 714 (1959). It could also be argued that the
promisee may or may not have known of the conveyance and, in the
case of a third-party beneficiary of a contract to make a will, may not
even have known of the existence of the contract, or of the will, until
after the death of the promisor-testator.
For estates of decedents dying after July 1, 1992, an action to
contest a will, including a will contest based on a contract to make a
will or not to revoke a will, must be commenced before the later of:
(1) Four months after the date of delivery or mailing of the
information described in ORS 113.145 [information to devisees, heirs,
and interested persons] if that information was required to be delivered
or mailed to the person on whose behalf the petition is filed, ORS
113.075(3)(a); or
(2) Four months after the first publication of notice to
interested persons if the person on whose behalf the petition is filed was
not required to be named in the petition as an interested person, ORS
113.075(3).
A will contest must be commenced by the filing of a petition in the
probate proceeding, except that [a will contest based on a contract to
make a will] may be commenced by the filing of a separate action in any
court of competent jurisdiction. ORS 113.075(2).
A cause of action based on a decedents promise that he or she
would make or revoke a will or devise, or not revoke a will or devise, or
die intestate may not be presented as a claim under ORS chapter 115
(claims against estates). ORS 113.075(4).
4-32
2012 Revision
4.2-5(c)
Problems of Proof
Contracts to make a will or not to revoke a will may take numerous forms, including the following:
(1) A contemporaneous written agreement embodying the
contract that may appear as part of a joint or mutual will or as a separate
written agreement, Ricks v. Brown, 15 Or App 160, 515 P2d 206 (1973);
(2) A separate agreement regarding wills in the form of a
reconciliation agreement or a divorce settlement, see Matter of Marriage of Ellinwood, 59 Or App 536, 651 P2d 190 (1982);
(3) An oral agreement asserted by a party to the agreement or a
third-party beneficiary to establish that mutual wills were executed
pursuant to a contract, Parker v. Richards, 43 Or App 455, 602 P2d
1154 (1979); Woelke v. Calfee, 45 Or App 459, 608 P2d 606 (1980);
(4) A claim to a will based on services performed for the
decedent, Musselman v. Mitchell, 46 Or App 299, 305306, 611 P2d
675 (1980); Kruegers Estate v. Ropp, 282 Or 473, 579 P2d 847 (1978);
and
(5) Actual contractual language contained within a joint or
mutual will that can support a binding and enforceable contract, Shea v.
Begley, 94 Or App 554, 766 P2d 418 (1988); Schaad v. Lorenz, 69 Or
App 16, 1920, 688 P2d 1342 (1984).
NOTE: Some of these methods of proof, such as those in
items (3) and (4) above, may be barred by the provisions of ORS
112.270(1) (procedures for establishing a contract to make a will
or devise, or not to revoke a will or devise).
In cases in which a contemporaneous written agreement embodying the contract appears as part of a joint or mutual will, or exists as a
separate written agreement, Oregon courts have enforced the will as if it
were a contract, although the courts have held that a subsequent will is
entitled to probate. In this latter situation, the promisees remedy lies in
a separate suit in equity to impose a constructive trust on the assets,
rather than a will contest. Catching v. Lashway, 84 Or App 602, 606,
4-33
2012 Revision
735 P2d 13 (1987); Ankeny v. Lieuallen, 169 Or 206, 218, 113 P2d
1113, 127 P2d 735 (1942).
When two parties enter into a joint and mutual will, and then one
of the parties dies, the surviving party is typically free to revoke that
joint and mutual will. However, if it can be established that the joint and
mutual will is contractual in nature, the surviving party is not free to
repudiate the underlying contract. Schaad, 69 Or App at 21.
In Catching, 84 Or App at 605 (citations omitted, emphasis
added), the Oregon Court of Appeals discussed problems of proof that
arise in many cases regarding contracts to make or not to revoke wills,
and stated:
Plaintiffs acknowledge that they must prove the existence of a
contract to make a will by clear and convincing evidence. . . . The
mere existence of a joint will or mutual reciprocal wills is not
sufficient to prove that there was a contract to make those wills. On the
other hand, the existence of mutual wills, coupled with extrinsic
evidence of an oral agreement between the testators, has led the
Supreme Court to decide that there was a contract to make the wills.
In the absence of either a separate written document or
contractual language in the will, the extrinsic evidence adduced to
support the claim of an existing contract to make a will must be strong.
Because a contract to make a will is generally covered by the same
principles of law that apply to other types of contracts, extrinsic
evidence is admissible to show that the will was only part of the
agreement between the testators. The question of whether a contract
exists depends on the particular facts of each case.
In DeLaMater v. DeLaMater, 69 Or App 40, 688 P2d 1350

(1984), a husband and wife had executed joint and mutual wills, and
both parties were aware of the mutual testamentary provisions at the
time of execution. The court held that those facts alone did not establish
the existence of a contract to make a will. DeLaMater, 69 Or App at 43
46. The court cited BERTEL M. SPARKS, CONTRACTS TO MAKE WILLS
2728 (1956), for the rule that a contract not to revoke a will is not
established by the fact that the parties had agreed to make mutual wills.
DeLaMater, 69 Or App at 46 n 3.
4-34
2012 Revision
The fact that such wills are usually executed as a result of a

common intention does not in any way mean that they were executed
pursuant to a contract between the parties regarding the making of such
wills. Their execution does not give rise to a presumption or inference
that they were made pursuant to a contract. Am. Nat. Red Cross v.
Wilson, 274 Or 237, 240, 545 P2d 883 (1976).
However, a joint and mutual will that contains specific contractual language within its four corners will generally be held to be an
enforceable and binding contract. Shea, 94 Or App at 557558; Schaad,
69 Or App at 1921.
In Baker v. Mohr By & Through Adams, 111 Or App 592, 596,
826 P2d 111 (1992), the Oregon Court of Appeals held that the requirement in ORS 112.270(1)(c) that a contract to make a will or devise be
both in writing and signed by the decedent did not bar a claim to enforce
a contract to make a will that was in writing and signed by the
decedent but was subsequently destroyed or concealed by the person
seeking to evade its provisions.
Thus, contracts to make or not to revoke wills may take numerous
forms, and the problems of proof that need to be addressed depend on
the form by which the contract has arisen.
4.2-6
Revoking or Altering a Will
4.2-6(a)
Governing Statutes Are Exclusive
Pursuant to ORS 112.275, a will may be altered or revoked only

as provided in ORS 112.285112.315, which are discussed in 4.26(b) to 4.2-6(f).
4.2-6(b)
Express Revocation or Alteration
A will may be revoked or altered by another will. ORS

112.285(1).
A will may be revoked by being burned, torn, canceled, obliterated or destroyed, with the intent and purpose of the testator of
revoking the will, by the testator, or by another person at the direction
of the testator and in the presence of the testator. ORS 112.285(2). The
injury or destruction by a person other than the testator at the direction
4-35
2012 Revision
and in the presence of the testator must be proved by at least two

witnesses. ORS 112.285(2).
The same degree of mental capacity is required to revoke a will as
is required to execute one. Wood v. Bettis, 130 Or App 140, 143, 880
P2d 961 (1994). See 4.2-1, for a discussion of testamentary capacity.
In Wood, 130 Or App at 143146, for example, the Oregon Court of
Appeals held that the testator lacked the testamentary capacity to revoke
his will when he tore it up because at that time the testator did not
understand the value and extent of his property, the natural objects of
his bounty, or the nature of the business in which he was engaged.
4.2-6(c)
Revival of Revoked or Invalid Will
If a will or a part of a will has been revoked or is invalid, it may

be revived by re-execution of the will or by the execution of another
will in which the revoked or invalid will or part thereof is incorporated
by reference. ORS 112.295.
Under the doctrine of dependent relevant revocation, a court
can probate a will that was revoked by a testator through the execution
of a subsequent will if the subsequent will is later declared to be invalid,
and if the court determines that the testator did not intend to die
intestate. Kirkeby v. Covenant House, 157 Or App 309, 314315, 970
P2d 241 (1998).
If a testator destroys a valid will, his or her prior will is not
revived. Instead, the person then has no valid will. ORS 112.295.
4.2-6(d)
Revocation by Marriage
The law regarding the revocation of a will by marriage has

changed over the years. Before 1965, a will was automatically revoked
on the subsequent marriage of the testator, regardless of the intent of the
testator. The law was amended in 1965 to provide that the subsequent
marriage of the testator revokes his or her will, unless the will expressly
declared the intention of the testator that it should not be revoked by a
subsequent marriage. ORS 112.305, enacted in 1969 and currently in
effect, goes further than the 1965 amendment in giving effect to the
actual intention of the testator.
4-36
2012 Revision
Under ORS 112.305, the subsequent marriage of the testator

revokes a will only if the spouse of that subsequent marriage survives
the testator. Thus, if after making a will, the testator marries and the
spouse of that marriage predeceases the testator, the will of the testator
will not be deemed to have been revoked by the subsequent marriage.
However, if the spouse of the subsequent marriage survives the testator,
the marriage is deemed to revoke the testators will, unless the will
expresses a contrary intent, the will was drafted under circumstances
indicating that it was in contemplation of the marriage, or an antenuptial
agreement between the testator and his or her spouse dealt with the
decedents estate.
Unless an exception to ORS 112.305 applies, a subsequent marriage of the testator will revoke the testators will and the surviving
spouse is entitled to an intestate share of the decedents estate, notwithstanding that the surviving spouse did not bring any property into
the marriage, or that the marriage lasted only for a short period of time,
or even that divorce proceedings are pending. In Stevenson v. U.S. Nat.
Bank of Oregon, 72 Or App 39, 41, 695 P2d 77 (1985), the testator and
his fiancee entered into a prenuptial agreement, which provided that the
parties could dispose of their respective properties as they wished, and
that, should the marriage be terminated by death or dissolution, each
party would retain the property owned by the party prior to the
marriage. They were married the next day. Ten months later, the wife
sued the testator for divorce. While the divorce was pending, the testator
executed a will leaving all his property to his children. The testator and
the spouse then entered into a property-settlement agreement that
specifically superseded the prenuptial agreement. Ten months after the
divorce, the parties remarried and a short time thereafter the testator filed
a petition for divorce. Shortly after the petition was filed, the testator was
killed and his will was entered into probate. The court ruled that neither
of the exceptions under ORS 112.305 applied because the will did not
evidence an intent that it was not to be revoked by the marriage, and the
prenuptial agreement of the testator and his spouse had been superseded
by the property-settlement agreement. Accordingly, the testator had no
4-37
2012 Revision
valid will at the time of his death, and the surviving spouse was entitled
to an intestate share of the decedents net estate.
4.2-6(e)
Revocation by Dissolution or Annulment of Marriage
Unless a will evidences a different intent of the testator, the

divorce or annulment of the testators marriage after the execution of
the will revokes all provisions in the will in favor of the former spouse
of the testator and any provision [in the will] naming the former spouse
as executor, and the effect of the will is the same as though the former
spouse did not survive the testator. ORS 112.315.
Before the effective date of ORS 112.315 (which was enacted in
1969), the dissolution or annulment of the testators marriage subsequent to the execution of a will resulted in the revocation of the entire
will in the absence of an expression in the will of the testators intention
that the will would not be deemed to have been so revoked.
4.2-6(f)
Executory Contract of Sale of Devised Property

Not a Revocation
An executory contract of sale made by a testator to convey

property devised in a previously made will does not revoke the previous
devise. Instead, the property passes by the devise, subject to the same
remedies on the agreement . . . against devisees as might be had against
the heirs of the testator if the property had descended to them. ORS
112.325.
In the absence of a statute like ORS 112.325, the proceeds of the
sale of devised real property sold on contract would go to those entitled
to the testators personal property and not to the testators devisee. See
In re Papes Estate, 135 Or 650, 652653, 297 P 845 (1931). The
statute protects the devisees interest in the proceeds of the contract
covering the devised real property.
ORS 112.325 is limited in its applicability to devised real property
that is sold under an executory contract of sale subsequent to the making
of the will. If the testator contracts to sell real property that has not been
devised by his or her will, the statute does not apply. Instead, under the
4-38
2012 Revision
doctrine of equitable conversion, the proceeds of sale will go to those

entitled to the testators personal property.
In like manner, if the sale of devised property is not by contract,
but is effected by a conveyance with a purchase money mortgage back to
the grantor, ORS 112.325 does not apply. Instead, ORS 112.385(4), as
modified by the testators will, would determine the devisees entitlement
to any of the payments on the mortgage.
A testator who, at the time of making a will, recognizes the
possibility that he or she may be entering into a contract to sell specifically devised property should be aware that unless the will provides
differently, the devisee will take the property subject to the contract, and
in effect the devise will be the equivalent of the vendors beneficial
interest in the contract.
Although ORS 112.325 refers generally to property and not
exclusively to real property, thereby being applicable under the definition
of property in ORS 111.005(27) to both real property and personal
property, the statute has no significant effect on the descent of the
vendors interest in devised personal property sold pursuant to a
contract, because the doctrine of equitable conversion applies exclusively to real property.
4.2-7
Effect of Will Provisions
4.2-7(a)
Will Governs Disposition of Estate
ORS 112.415 is designed to create certainty that, except as

otherwise expressly provided by law, no person is entitled to take any
portion of the estate of a testator disposed of by the will other than as
provided in the will. Statutes expressly providing otherwise include
the antilapse statute (ORS 112.395), the pretermitted child statute
(ORS 112.405), the statutes governing elective rights of a surviving
spouse (ORS 114.600114.725), and other comparable laws of a
specific nature.
NOTE: Effective January 1, 2011, the 2009 Legislature
substantially revised Oregons laws regarding a surviving spouses
elective share, repealing former ORS 114.105114.165 and enact4-39
2012 Revision
ing ORS 114.600114.725. The 2011 Legislature made technical

corrections to the statutes. See 2011 Or Laws ch 305. These
corrections apply to the surviving spouses of all decedents who die
on or after June 9, 2011. For further discussion of the elective
share of the surviving spouse, see 8.2-5(a) to 8.2-5(i)(2).
4.2-7(b)
Devise Passes All Interests of Testator
A devise of property passes the testators entire interest in the

property at the time of the testators death, unless the will evidences a
different intent. ORS 112.355. Consistent with ORS 114.205, this statute
applies without distinction between real property and personal property.
4.2-7(c)
Encumbrance or Disposition of Devised Property
Pursuant to ORS 112.335, [a]n encumbrance or disposition of

property by a testator after the testator makes a will does not affect the
operation of the will upon a remaining interest therein that is subject to
the disposal of the testator at the time of the death of the testator.
The primary purpose of ORS 112.335 is to eliminate any
inference that an alteration in the nature of the estate or interest held by
the testator constitutes a revocation of the devise. For a definition of the
rather limited extent to which the devisee of property encumbered by
the testator either before or after the testator makes a will is entitled to
exoneration out of other assets of the estate, see ORS 115.255.
The following testamentary provision tends to duplicate the
statute:
In the event that any property or interest in property passing under this
will is encumbered by a mortgage or a lien or is pledged to secure any
obligation, it is my intention that such indebtedness will not be
charged to or paid from my estate, but that the devisee will take such
property or interest in property subject to all encumbrances existing at
the time of my death.
To abrogate the effect of the statute, the following testamentary

direction might be used:
In the event that any property or interest in property passing under this
will is encumbered at the time of my death by a mortgage or a lien or
is pledged to secure any obligation, I direct my executor to pay and
4-40
2012 Revision

discharge as soon after my death as may be practicable such loan,
obligation, lien, or charge with interest and penalties, if any, out of the
general assets and at the expense of my estate, regardless of whether or
not I am or my estate is liable for the payment thereof.
The Oregon Supreme Court has held that, absent a clear

expression of intent to the contrary in a will or otherwise, the decedents
estate is not liable for contribution to a surviving joint tenant toward
debt secured by real property that passes to the surviving joint owner
and obligor by right of survivorship. Bonner v. Arnold, 296 Or 259, 265,
676 P2d 290 (1984).
PRACTICE TIP: If the testator has an interest in real property
securing a debt that is held as joint tenants with the right of
survivorship, and the testator wants the estate to be liable, in whole
or in part, for the debt, the will should specifically provide for
contribution by the estate.
4.2-7(d)
Devise of a Life Estate
A devise of property to any person for the term of the life of the
person, and after the death of the person to the children or heirs of the
person, vests an estate or interest for life only in the devisee and
remainder in the children or heirs. ORS 112.345.
The purpose of ORS 112.345 was to abolish, and to some extent
enlarge, the ancient Rule in Shelleys Case. See Wolfe v. Shelley, 1 Co
Rep 93b, 76 Eng Rep 206 (CP) (15791581), discussed at <http://legaldictionary.thefreedictionary.com/Rule+in+Shelleys+Case>. The statute
has the effect of abolishing the Rule in Shelleys Case as to wills, but
not as to deeds.
4.2-7(e)
Property Acquired After Making Will
Any property acquired by the testator after the making of a will

passes thereby, and in like manner as if title thereto were vested in the
testator at the time of making the will, unless the intent expressed in the
will is clear and explicit to the contrary. ORS 112.365.
4-41
2012 Revision
The statute is designed to make clear that after-acquired property

can pass by will. It applies with equal force to real property and
personal property.
The following testamentary provision is in keeping with the
statute:
I give and devise to my son, Jacob, all real property that I may own at
the time of my death.
4.2-7(f)
Direction to Pay Debts, Taxes, and Other Charges
Most wills contain general testamentary directions to pay debts,

charges, taxes, and administration expenses. Varying interpretations of
such directions have been arrived at by the authorities in response to
specific problems.
ORS 115.255115.275 set forth rules for paying encumbrances on
devised property, and ORS 116.303116.383 deal with the apportionment of estate taxes. All of these statutes are conditioned on the fact that
the will does not provide otherwise.
A common form of testamentary direction for payment of debts
and other charges follows:
I direct my personal representative to pay from my estate all my just
debts, the expenses of my last illness, funeral, and final interment, and
the expenses of administration of my estate.
This language would not be considered a direction of exoneration

from encumbrances or against apportionment of estate taxes. If exoneration from encumbrances is desired by the testator, the will should
specifically state so. The following is an example of a provision for
exoneration from encumbrances:
I give and devise to my son, Jacob, all real property that I may own at
the time of my death. If any of this real property is subject to
encumbrances of any kind, whether voluntary or involuntary, I direct
my personal representative to pay and fully satisfy such encumbrances
from my estate.
4-42
2012 Revision
If the testator also desires that death taxes be paid from the
residue of the estate without apportionment, the will should specifically
state so, for example:
I direct my personal representative to pay from my estate all
inheritance, estate, transfer, and succession taxes that become payable
by reason of my death, and I authorize my personal representative to
contest or compromise any claims for such taxes. I further direct that
all such taxes will be paid without apportionment thereof and without
withholding or collecting any part thereof from any beneficiary under
my will or under any life insurance of mine that may be subject to such
tax or from the surviving owner of any property owned jointly with
me, it being my intention that all such taxes will be paid from my
estate as an expense of administration.
4.2-7(g)
Nonademption of Specific Devises
Rules for nonademption of specific devises are set forth in ORS

112.385.
At common law, what was known as the doctrine of ademption by
extinction applied without regard to the testators intent. Under this
doctrine, if real or personal property was specifically given by will to a
named person, and the property was destroyed or sold between the time
of execution of the will and the testators death, the devise or bequest
failed. The reasoning behind the failure of the devise or bequest was
that there was no property in the estate to satisfy the specific gift.
ORS 112.385 changes the common law. It is specific in its
approach to the many situations covered under the statute. It avoids the
adoption of a broad approach that would abolish the doctrine of ademption by extinction entirely, and it is intended to carry out the normal
intent of the testator.
4.2-7(h)
Devises to Testators Issue; Antilapse
At common law, a devise or bequest to a person who predeceased

the testator would lapse in the absence of a special provision in the will
preventing it. ORS 112.395 changes the common law. Under the statute,
when property is devised to any person who is related to the testator by
blood or adoption, and that person dies before the testator and leaves
4-43
2012 Revision
lineal descendants, the descendants take by representation the property

that the devisee would have taken if the devisee had survived the testator, unless otherwise provided in the testators will. The statute covers
a devisee under a class gift if the devisees death occurred after the
execution of the will.
Although the language of the statute is of a mandatory nature, a
testator using appropriate words can prevent the statute from operating.
For example, the testator can provide for a substitute devise, such as the
one below, in the event that the devisee predeceases the testator, or the
testator can simply provide that in such event, the devise will lapse:
I devise to my brother, John Doe, the sum of $5,000. If my brother
does not survive me, the foregoing devise to him will lapse, and in lieu
thereof I devise the sum of $5,000 to Mary Doe, wife of my brother,
John Doe.
If the foregoing will provision had not specified otherwise, and if

the brother had predeceased the testator, and had been survived by
descendants, those descendants would take the $5,000 bequest by
representation under the antilapse statute. Because the brother is related
to the testator by blood or adoption, ORS 112.395 would apply. In this
example, mention of what would happen if the brothers wife failed to
survive the testator has been omitted intentionally, because she is not
related to the testator by blood or adoption, and if she failed to survive,
whether or not she was survived by descendants, the bequest to her
would lapse.
The following provision is another example that may slightly alter
the effect of the statute:
I devise to my brother, John Doe, the sum of $5,000. If my brother
does not survive me, the foregoing devise to him will lapse and in lieu
thereof I devise the sum of $5,000 in equal shares to the children of
my brother, John Doe, who are living at the time of my death.
The antilapse statute is an example of a statute intended to carry

out the assumed desire of the testator. As always, the drafter of the will
should use specific language that carries out the actual intent of the
testator, rather than relying on the statute.
4-44
2012 Revision
4.2-7(i)
Effect of Failure of Devise
Except as provided in the antilapse statute (ORS 112.395; see

4.2-7(h)), which is concerned exclusively with devises to persons who
are related by blood or adoption to the testator, ORS 112.400(1)
declares that [i]f a devise other than a residuary devise fails for any
reason, it becomes a part of the residue. Regarding the residue, if there
are two or more residuary devisees and the share of one of them fails,
that share passes to the other residuary devisee or to other residuary
devisees in proportion to their interests in the residue. ORS 112.400(2).
PRACTICE TIP: As always, the lawyer should determine the
wishes of the testator and, if the results flowing from application of
this statute do not conform with those wishes, the lawyer must take
care in expressing the testators wishes in the will.
4.2-7(j)
After-Born and After-Adopted Children:

Pretermitted Children
A pretermitted child is a child of a testator who (1) is born or

adopted after the execution of the testators will, (2) is neither provided
for in the will nor in any way mentioned in it, and (3) survives the
testator. ORS 112.405(1).
Under ORS 112.405, if the will makes no provision for a child
who is living at the time of the execution of the will, that child does not
qualify as a pretermitted child. The statute further specifies that if the
testator made no provision for children who were living when the
testator executed the will, it is reasonable to assume that the testator had
no desire to provide for after-born children. ORS 112.405(2).
Conversely, if the testator provided for children who were living
when the testator executed the will, it is assumed that the testator also
wanted to provide for after-born and after-adopted children. ORS
112.405(3). The share to which the pretermitted child is entitled in this
instance is computed in accordance with the formula set forth in ORS
112.405(3)(b).
If the testator had no children living when the testator made the
will, a pretermitted child would take a share of the estate as though the
4-45
2012 Revision
testator had died intestate. ORS 112.405(4). As always, the lawyer

should address such a possibility in the will, rather than allow the statute
to control.
4.2-7(k)
Effect of General Disposition or Residuary Clause on

Testators Power of Appointment
A general residuary clause in a will or a will making general

disposition of all of the testators property does not exercise a power of
appointment held by the testator, unless specific reference is made to
the power in the will or there is some other indication of intention in the
will to include the property subject to the power. ORS 112.410.
4.2-8
Disposition of Wills
4.2-8(a)
Exclusive Manner of Disposing of Wills
ORS 112.800112.830 set forth the exclusive manner for disposing of a will.
Any person having custody of a will has a duty to maintain
custody of the will and may not destroy or discard the will, disclose its
contents to any person[,] or deliver the will to any person except as
authorized by the testator or as permitted by ORS 112.800 to 112.830.
ORS 112.805(1). See 4.2-8(b) to 4.2-8(e).

4.2-8(b)
Duties of Custodian of Will
ORS 112.810 describes the duties of the custodian of a will. Any

person having custody of a will:
(1) Must deliver the will to the testator on the testators
demand, unless the person is a lawyer and is entitled to retain the will
pursuant to ORS 87.430 (possessory lien);
(2)
May at any time deliver the will to the testator;
(3) Must deliver the will to the testators conservator upon the
conservators demand;
(4) Upon demand from the attorney-in-fact, must deliver the
will to an attorney-in-fact acting under a durable power of attorney
signed by the testator expressly authorizing the attorney-in-fact to
demand custody of the will;
4-46
2012 Revision
(5) May deliver the will to any lawyer licensed to practice law
in Oregon willing to accept delivery of the will if the person does not
know or cannot ascertain, upon diligent inquiry, the address of the
testator; or
(6) Must, within 30 days after receiving information that the
testator is deceased, deliver the will to a court with jurisdiction over the
testators estate or to a personal representative named in the will.
ORS 112.810(1).
Oregon law sets forth a procedure for gaining access to the safedeposit box of a decedent for the purpose of obtaining the decedents
will. See ORS 112.810(2). After receiving a certified copy of the
decedents death certificate and a statutorily prescribed affidavit, a
financial institution, trust company, savings association, or credit union
must deliver the decedents original will to the decedents personal
representative. ORS 708A.655(2)(5), 723.844(2)(5).
NOTE: The 2011 Legislature amended ORS 708A.655 and
723.844 to set forth a procedure to authorize financial institutions
to release the contents of a safe-deposit box to the affiant of a
small-estate affidavit. See ORS 114.537.
For further discussion of the procedure to transfer the contents of a
safe deposit box, see 3.4-1.
If the decedents will fails to name a personal representative or if
the financial institution, despite reasonable efforts, cannot determine the
location of the personal representative, the institution may either retain
the will or deliver it to a court having jurisdiction of the decedents
estate. ORS 708A.655(4), 723.844(4).
4.2-8(c)
Procedure for Destruction of 40-Year-Old Will
A lawyer who has custody of a will may destroy the will in

accordance with ORS 112.820, if (1) the lawyer is licensed in Oregon,
(2) the will is at least 40 years old, (3) the testators address is unknown
and cannot be found after diligent inquiry, and (4) the will is not subject
to a contract to make a will or devise or not to revoke a will or devise.
ORS 112.815.
4-47
2012 Revision
A lawyer who is authorized to destroy a will under ORS 112.815

may proceed under ORS 112.820 as follows:
(1) The lawyer must first publish a notice in a newspaper in the
county of the testators last-known address, if anyotherwise in the
county of the lawyers principal place of business; the notice must state
the name of the testator, the date of the will, and the intent of the lawyer
to destroy the will if the testator does not contact the lawyer within 90
days after the date of the notice, ORS 112.820(1)(a);
(2) If the testator fails to contact the lawyer within 90 days
after the date of the notice, the lawyer may destroy the will, ORS
112.820(1)(b);
(3) Within 30 days after destruction of the will, the lawyer
must file with the probate court in the county where the notice was
published an affidavit that states the information required by the statute,
ORS 112.820(1)(c); and
(4) The lawyer must pay the required fee for filing the affidavit, ORS 112.820(1)(d); see ORS 21.145.
PRACTICE TIP: The 2011 Legislature amended ORS
112.820(1) to increase the court filing fee for the affidavit required
by the statute from $17 to $105. The lawyer should take into
account the amount of this fee before agreeing to store an original
will for a client or to accept original will files from a retiring
lawyer or the estate of a deceased lawyer, as authorized by ORS
112.810(1)(e).
A will may be destroyed by a lawyer, without notice to any
person or court, if the will has not been admitted to probate within 40
years after the death of the testator. ORS 112.820(2).
4.2-8(d)
Liability for Destruction of Will
A person who violates any provision of the statutes governing the

disposition of a will (ORS 112.800112.830; see 4.2-8(a) to 4.2-8(c))
is liable to any person injured by such violation for any damages
sustained thereby. ORS 112.825. A lawyer who destroys a will in
4-48
2012 Revision
accordance with ORS 112.800112.830 is not liable to the testator or

any other person for its destruction or disposal. ORS 112.825.
4.2-8(e)
Court May Order Delivery of Will
The court with jurisdiction over the decedents estate may order a
person to deliver the decedents will to the court. ORS 112.830.
4.2-9
Elective Share of Surviving Spouse
For estate planning purposes, a lawyer must be cognizant of the

fact that if a decedent is domiciled in this state at the time of death and
dies with a valid will, the surviving spouse has a right to an elective
share.
Effective January 1, 2011, the 2009 Legislature repealed Oregons former elective share laws (former ORS 114.105114.165), and
replaced them with ORS 114.600114.725. These statutes represent a
major revision to Oregons elective share law. The 2011 Legislature
made technical corrections to the 2009 law (see 2011 Or Laws ch 305),
which apply to the surviving spouses of all decedents who die on or
after June 9, 2011.
For further discussion of the elective share of the surviving
spouse, see 8.2-5(a) to 8.2-5(i)(2).
4.3
UNIFORM DISPOSITION OF COMMUNITY PROPERTY

RIGHTS AT DEATH ACT
In 1973, the legislature passed the Uniform Disposition of Community Property Rights at Death Act, ORS 112.705112.775. See
4.3-1 to 4.3-5.
4.3-1
Property Subject to Uniform Act
The Uniform Disposition of Community Property Rights at Death

Act (the Uniform Act) applies to the disposition at death of all
community property acquired by a married person, including (1) all
property that was acquired as or became community property under the
laws of another jurisdiction; (2) all property (including Oregon real
property), or the proportionate part of it, that was acquired with the
4-49
2012 Revision
income of or proceeds from community property; and (3) all property

that is otherwise traceable to community property. ORS 112.715.
The following rebuttable presumptions apply in determining
whether the Uniform Act applies to specific property:
(1) Property acquired during marriage by a spouse while domiciled in a community-property state is rebuttably presumed to be subject
to the Uniform Act, ORS 112.725(1); and
(2) Real property located in Oregon, and any personal property
acquired by a married person while domiciled in a noncommunityproperty state, are not subject to the Uniform Act, if title to the property
was taken in a form which created rights of survivorship. ORS
112.725(2).
4.3-2
Effect of Uniform Act on Decedents Estate
4.3-2(a)
Distribution and Disposition of Community Property
Upon the death of a married person, one-half of the community

property to which the Uniform Disposition of Community Property
Rights at Death Act applies is the property of the surviving spouse and
is not subject to testamentary disposition by the decedent or distribution
under Oregons laws of intestate succession. ORS 112.735.
The other half of the property is subject to testamentary
disposition (or intestate succession distribution), unless it is held under
a limitation imposed by law that would prevent such disposition. ORS
112.775(3).
The decedents half of the property is not subject to the surviving
spouses right to elect against the will. ORS 112.735.
4.3-2(b)
Perfection of Title to Community Property
If the title to any property to which the Uniform Disposition of

Community Property Rights at Death Act (the Uniform Act) applies
was held by the decedent at the time of death (see 4.3-1), title of the
surviving spouse may be perfected by an order of the probate court or
by execution of an instrument by the personal representative or the heirs
4-50
2012 Revision
or devisees of the decedent with the approval of the court. ORS

112.745.
Neither the court nor the personal representative has a duty to
discover whether any of the decedents property is subject to the
Uniform Act, unless a written demand is made by the spouse or a successor in interest. ORS 112.745. Similarly, the personal representative
has no duty to discover whether any of the survivors property is subject
to the Uniform Act, except on written demand by an heir, devisee, or
creditor of the decedent, but the personal representative may institute an
action to perfect title to the decedents half of such property. ORS
112.755.
4.3-3
Rights of Third Parties to Community Property

Act (the Uniform Act) protects third persons in their dealings with
community property on the basis of its apparent title. If a surviving
spouse has apparent title to property to which the Uniform Act applies,
a purchaser for value or a lender taking a security interest in the
property takes his or her interest in the property free of any rights of the
personal representative, an heir, or a devisee. ORS 112.765(1).
If the personal representative, an heir, or a devisee has apparent
title, a purchaser for value or a lender taking a security interest takes his
or her interest free of any rights of the surviving spouse. ORS
112.765(2).
The Uniform Act does not define rights of creditors with respect
to property to which the Uniform Act applies. ORS 112.775(1).
4.3-4
Right to Sever Interests in Community Property

Act does not affect the right of married persons to sever or alter their
community-property interests. ORS 112.775.
4.3-5
Effect of Uniform Act

Act (the Uniform Act) can have a major impact on the disposition of
property at death. Accordingly, a lawyer should review ORS 112.705
4-51
2012 Revision
112.775 whenever the decedent has lived at any time during marriage in
a community-property jurisdiction. That review is particularly important
because the person interested in a determination of community-property
status has the responsibility for asserting the claim by making a written
demand on the personal representative. See ORS 112.745, 112.755.
Absent such demand by the surviving spouse, the successor in interest
to the surviving spouse, or an heir, devisee, or creditor of the decedent,
neither the personal representative nor the court has any duty to
discover or to attempt to discover whether any of the decedents property qualifies under the Uniform Act. See 4.3-2(b).
As of August, 2012, no Oregon appellate cases have been found
found construing, applying, or explaining the Uniform Act.
PRACTICE TIP: Caution is the byword when working with
clients who own community-property assets, or who have moved
to Oregon from a community-property state. At last count, 10
states have a form of co-ownership of property known as community property. These states are Alaska, Arizona, California,
Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and
Wisconsin. Oregon is surrounded by four of these states.
Accordingly, a lawyer cannot rely entirely on the rebuttable
presumption in ORS 112.725(2), which provides that real property
located in Oregon acquired by a married person while domiciled in a
jurisdiction under whose laws property could not then be acquired as
community property, title to which was taken in a form which created
rights of survivorship, is presumed not to be property to which the
Uniform Act applies. First, the presumption is rebuttable, and second,
the authors of the Uniform Act, in their prefatory notes, state that
severance or alteration of community-property interests, which is
allowed by the Uniform Act (see ORS 112.775(2)), should follow the
procedures provided in the law of the community-property state. See
<http://uniformlaws.org>.
For instance, under Idaho law, neither the husband nor wife may
sell, convey or encumber the community real estate unless the other joins
in executing the sale agreement, deed or other instrument of conveyance
4-52
2012 Revision
by which the real estate is sold, conveyed or encumbered. IDAHO CODE

ANN 32-912; see Lowry v. Ireland Bank, 779 P2d 22, 27 (Idaho 1989)
(community real property can be validly encumbered only if both
spouses join in executing the instrument of encumbrance). In Texas,
community property is subject to the joint management, control, and
disposition of the spouses, unless the spouses provide otherwise by
power of attorney in writing or other agreement. TEX FAM CODE ANN
3.102 (Vernon 2011); see Muller v. Evans, 516 SW2d 923 (Tex 1974).
The Multnomah County probate court ruled several years ago that
the law of the community-property state controlled on this type of issue,
and that the property, even though converted to joint tenancy with right
of survivorship, remains community property until severed or altered as
required by the law of the state where the parties were domiciled when
they acquired their assets.
PRACTICE TIP: Estate planning lawyers with clients who
have moved to Oregon from community-property states must be
aware of all of the requirements for the alteration of communityproperty interests.
4-53
2012 Revision
Chapter 5
INITIATING PROBATE AND SMALL-ESTATE PROCEEDINGS
LISA N. BERTALAN, B.A., University of Colorado, (1987); J.D., University of Oregon
School of Law (1991); member of the Oregon State Bar since 1991; partner,
Hendrix Brinich & Bertalan LLP, Bend.
The author acknowledges the contribution of J. Anthony Giacomini for his work on
the prior edition of this chapter.
5.1
SCOPE OF CHAPTER ............................................................. 5-4
5.2
REGULAR PROBATE ............................................................. 5-5

5.2-1
Jurisdiction and Venue ................................................. 5-5
5.2-1(a)
Probate Jurisdiction ........................................... 5-5
5.2-1(b)
Venue ................................................................ 5-5
5.2-2
Petition .......................................................................... 5-6
5.2-2(a)
Generally ........................................................... 5-6
5.2-2(b)
Contents of Petition ........................................... 5-6
5.2-3
Escheat .......................................................................... 5-9
5.2-4
Proof of Will ............................................................... 5-10
5.2-4(a)
Affidavit of Attesting Witness ........................ 5-10
5.2-4(b)
Self-Proving Will ............................................ 5-11
5.2-4(c)
Testimony of Attesting Witness...................... 5-11
5.2-4(d)
Missing Witness .............................................. 5-11
5.2-4(e)
Foreign Will .................................................... 5-12
5.2-4(f)
International Will ............................................ 5-12
5.2-4(g)
Probate in Solemn Form ................................. 5-13
5.2-4(h)
Contested Will................................................. 5-13
5.2-5
Appointment of Personal Representative ................... 5-14
5.2-5(a)
Preference in Appointing Personal

Representative ................................................. 5-14
5-1
2012 Revision
Chapter 5 / Initiating Probate and Small-Estate Proceedings
5.2-5(b)
Disqualification of Personal
Representative ................................................. 5-15
5.2-5(c)
Nonresident Personal Representative .............. 5-16
5.2-5(d)
Limited Judgment ............................................ 5-16
5.2-6
Bond ............................................................................ 5-16
5.2-6(a)
Necessity of Bond; Court Discretion............... 5-16
5.2-6(b)
Amount of Bond .............................................. 5-17
5.2-6(c)
Increasing, Decreasing, or Requiring

New Bond ........................................................ 5-18
5.2-6(d)
Court Approval of Bond .................................. 5-19
5.2-7
Letters Testamentary or Letters of

Administration ............................................................ 5-19
5.2-8
Notices ......................................................................... 5-19
5.2-9
Removal of Personal Representative .......................... 5-21
5.2-9(a)
Grounds for Removal ...................................... 5-21
5.2-9(b)
Procedure for Removal .................................... 5-22
5.2-10
Successor Personal Representative ............................. 5-22
5.2-10(a) Appointment of Successor ............................... 5-22

5.2-10(b) Letters of Administration/Testamentary ......... 5-23
5.2-10(c) Powers of Successor ........................................ 5-23
5.2-10(d) Publication of Notice to Interested
Persons ............................................................. 5-23
5.3
PROBATE OF SMALL ESTATES......................................... 5-24

5.3-1
Generally ..................................................................... 5-24
5.3-2
Estates Qualifying for Small-Estates Procedure ......... 5-24
5.3-3
Small-Estate Affidavit ................................................. 5-25
5.3-3(a)
Contents of Affidavit ....................................... 5-25
5.3-3(b)
Who May File .................................................. 5-28
5.3-3(c)
When and Where the Affidavit May Be

Filed ................................................................. 5-29
5.3-4
Transfers of Property Pursuant to Affidavit................ 5-30
5.3-4(a)
5-2
2012 Revision
Transfers of Personal Property ........................ 5-31
Initiating Probate and Small-Estate Proceedings / Chapter 5
5.3-4(b)
Transfers of Real Property .............................. 5-32
5.3-5
Duties and Powers of Affiant ..................................... 5-33
5.3-6
Purchaser of Small-Estate Property ............................ 5-34
5.3-7
Creditors ..................................................................... 5-34
5.3-8
Liability of Heirs and Devisees Who Receive

Decedents Property ................................................... 5-36
5.3-8(a)
Liability to Creditors ....................................... 5-36
5.3-8(b)
Liability to Personal Representative ............... 5-36
5.3-8(c)
Liability to Omitted Heirs and Devisees ......... 5-37
5.3-8(d)
Bar of Claims Against the Property ................ 5-37
Form 5-1
Initiating Probate: Critical Dates Checklist ..................... 5-39
Form 5-2
Letter to Personal Representative .................................... 5-41
Form 5-3
Petition for Probate of Will and Appointment of

Personal Representative ................................................... 5-45
Form 5-4
Petition for Administration of Intestate Estate and

Appointment of Personal Representative ........................ 5-51
Form 5-5
Affidavit of Attesting Witness to Will ............................ 5-56
Form 5-6
Affidavit of Witness to Signature of Testator or

Witness ............................................................................. 5-58
Form 5-7
Limited Judgment Admitting Will to Probate and

Appointing Personal Representative................................ 5-60
Form 5-8
Limited Judgment for Administration of Intestate

Estate and Appointment of Personal
Representative .................................................................. 5-62
Form 5-9 Personal Surety Bond....................................................... 5-64

Form 5-10 Information to Heirs and Devisees (Testate Estate) ........ 5-66
Form 5-11 Information to Heirs (Intestate Estate) ............................ 5-69
Form 5-12 Affidavit of Proof of Mailing or Delivery of
Information to Heirs and Devisees .................................. 5-72
5-3
2012 Revision
Form 5-13 Affidavit of Mailing Information to Oregon

Department of Human Services ....................................... 5-74
Form 5-14 Waiver of Notice of Information...................................... 5-76
Form 5-15 Notice to Interested Persons ............................................. 5-78
Form 5-16 Affidavit of Publication .................................................... 5-80
Form 5-17 Affidavit of Claiming Successor of Small Estate
(Testate Estate) ................................................................. 5-81
Form 5-18 Affidavit of Claiming Successor of Small Estate
(Intestate Estate) ............................................................... 5-87
5.1
SCOPE OF CHAPTER
This chapter discusses (1) procedures for initiating Oregon probate, (2) the issues surrounding initial probate estate administration, and
(3) the probate of a decedents property by a small-estate affidavit,
including the transfer of property pursuant to the affidavit.
The probate portion of this chapter includes discussions on
petitions for the appointment of a personal representative and the probate
of a will; initial estate administration; escheat; proving wills in common
form (including a will with missing witnesses, a foreign will, and an
international will); probate in solemn form; the personal representatives
qualifications; limited judgment appointing the personal representative;
bond requirements; letters testamentary or letters of administration;
notices of the personal representatives appointment to heirs, devisees,
and other interested persons; grounds and procedure for removal of the
personal representative; and the appointment, letters, powers, and
publication of notice to interested persons by a successor personal representative.
Forms referred to in the text appear at the end of the chapter.
Because keeping track of the required filings is critical, this chapter also
includes a checklist as Form 5-1 (Initiating Probate: Critical Dates
Checklist) and a sample letter to the personal representative as Form 5-2.
5-4
2012 Revision
5.2 REGULAR PROBATE

5.2-1
Jurisdiction and Venue
5.2-1(a)
Probate Jurisdiction
Probate jurisdiction is vested in the circuit courts, except in the

following counties: Gilliam, Grant, Harney, Malheur, Sherman, and
Wheeler. In these counties, probate jurisdiction is vested in the county
courts. ORS 111.055, 111.075. See 2.2-1 to 2.2-3(c)(4) for further
discussion of probate jurisdiction.
PRACTICE TIP: If the estate will be probated in a county in
which the county court has probate jurisdiction, a lawyer who
anticipates questions of law involving the estate should consider
transferring the proceedings to a circuit court. The procedure is set
forth in ORS 111.115.
5.2-1(b)
Venue
Venue for a probate proceeding is appropriate in any county where

(1) the decedent was domiciled, (2) the decedent had a place of abode at
death, (3) the decedent had real or personal property in the county at the
time of death, (4) the decedent had real or personal property in the county
at the time of the initiation of probate, or (5) the decedent died. ORS
113.015(1). See 2.3-1 to 2.3-3 for further discussion of venue,
including filing in a county other than those counties specified in ORS
113.015(1).
PRACTICE TIP: The above options allow flexibility in
choosing the forum for probate. For instance, venue is proper in a
county where property existed at the time of initiating the probate.
Because personal property can be moved after the owners death,
probate may take place in a county most convenient and costeffective for the personal representative. Regardless of the forum
selected, the person initiating probate should consider publishing
notice to interested persons not only in the forum county, but also
in additional counties where the notice would most likely notify
potential creditors or other interested persons of the decedents
death. See Tulsa Profl Collection Services, Inc. v. Pope, 485 US
5-5
2012 Revision
478, 108 S Ct 1340, 99 L Ed2d 565 (1988). See also ORS 115.003
and chapter 9 for further discussion of the personal representatives
duty to search diligently for creditors, and when mailing of a direct
notice to a creditor is required.
5.2-2
Petition
5.2-2(a)
Generally
A petition commences probate proceedings. ORS 113.035.

Any interested person may file a petition in the court with
jurisdiction and venue for the appointment of a personal representative
for either an intestate estate (the decedent died without a will) or a testate
estate (the decedent died with a will). ORS 113.035. See Forms 5-3, 5-4.
The term interested person is statutorily defined, and the definition
must be carefully observed. It includes an heir, a devisee, a child, a
spouse, a creditor, or any other person having a property right or claim
against the decedents estate. The term also includes fiduciaries
representing the interested person. ORS 111.005(19). See 2.4-3. Other
persons should not file a petition; doing so may invalidate the appointment.
No notice of hearing on the petition is required unless the estate
will escheat or the probate is initiated in solemn form. See 5.2-3, regarding escheat, and 5.2-4(g), regarding probating a will in solemn form.
5.2-2(b)
Contents of Petition
The probate code does not set forth any particular form of petition
for the appointment of a personal representative and for the probate of a
will, but it does specify the information that a petition must include. ORS
113.035, 113.135; see also UTCR 2.010(7), UTCR 9.030; ORS 111.205;
ORCP 1 E. Also, ORS 111.205 requires that the proceedings shall be in
writing. See also UTCR 2.010(3) (all documents must be printed or
typed). Furthermore, UTCR 2.010 sets forth other rules regarding the
format of documents, and both UTCR 2.010(7) and UTCR 9.030 require
that certain information about the attorney be included in documents filed
in a proceeding.
5-6
2012 Revision
Pursuant to ORS 113.035, a petition must include the following

information:
(1) The decedents name, age, domicile, post office address,
date and place of death, and Social Security number or taxpayer
identification number;
NOTE: Although ORS 113.035(1) requires that a petition for
the appointment of a personal representative and for the probate of
a will include the decedents Social Security number, UTCR
2.100(1)(a) sets forth procedures to identify and segregate
protected personal information when submitting a document to a
court in a case and to request the information be kept from
inspection by the general public. The procedures to identify and
segregate protected personal information that already exists in a
case file are set forth in UTCR 2.110.
(2)
Whether the decedent died testate or intestate;
(3)
The facts relied on to establish venue;
(4) The name and post office address of the person nominated
as personal representative, and the facts showing that the person is
qualified to act;
(5) The names, relationship to the decedent, and post office
addresses of the decedents heirs, and the ages of any minor heirs;
(6) A statement that reasonable efforts have been made to
identify and locate all heirs of the decedent; also, if the petitioner
knows of any actual or possible omissions from the list of heirs, the
petition must include a statement indicating that there are omissions from
the information relating to heirs;
(7) If the decedent died testate, the names and post office
addresses of the decedents devisees, and the ages of any who are minors;
(8) The name and post office address of any person asserting an
interest in the estate, or on whose behalf an interest has been asserted,
based on a contention that (a) the will alleged in the petition is
ineffective in whole or part; (b) [t]here exists a will that has not been
alleged in the petition to be the will of the decedent; or (c) the decedent
5-7
2012 Revision
agreed, promised or represented that the decedent would make or revoke

a will or devise, or not revoke a will or devise, or die intestate;
(9) The name and post office address of any person asserting an
interest in the estate, or on whose behalf an interest has been asserted,
based on a contention that a parent of the decedent willfully deserted the
decedent or neglected without just and sufficient cause to provide proper
care and maintenance for the decedent, as provided by ORS 112.047
(see 8.4-1, 8.1-4(a) to 8.1-4(c));
(10) Whether the original will is in the courts possession or
accompanies the petition; otherwise, the petition must state the contents
of the will and indicate that it is lost, destroyed, or otherwise unavailable,
and that it was not revoked (unless the petition is for probate of a foreign
will and an authenticated copy of the foreign will accompanies the
petition); and
(11) A statement of the extent and nature of the estates assets, to
enable the court to set the amount of the personal representatives bond.
In addition, the petition must include a declaration under penalty of
perjury in the form required by ORCP 1 E, made by at least one of the
persons making the petition. ORS 111.205. The declaration must appear
in prominent letters immediately above the signature of the declarant.
ORCP 1 E.
Also, the last page of the petition must include the name, address,
telephone number, fax number, e-mail address, and Oregon State Bar
number of the lawyer of record. UTCR 9.030(1); see also UTCR
2.010(7).
PRACTICE TIP: A petition for the appointment of a personal
representative to administer an intestate estate is essentially the
same as a petition for the appointment of a personal representative
and probate of a testate estate. See ORS 113.035. However, the
two petitions are slightly different. Each petition must state
whether the decedent died testate or intestate. ORS 113.035(2). If
the decedent died testate, the petition must list the names and
addresses of the devisees named in the will. ORS 113.035(7). If the
decedent died intestate, the petition must request that the court
5-8
2012 Revision
appoint the appropriate personal representative under ORS

113.085(1). See 5.2-3, 5.2-5(a) to 5.2-5(b). Furthermore, in an
intestate estate, a bond is normally required and will not be waived
unless the exceptions listed in ORS 113.105 are met. See 5.2-6(a).
PRACTICE TIP: ORS 113.135 and UTCR 2.010 and UTCR
9.030 are interrelated, but the statute is not as broad as the UTCR
rules. To ensure compliance with the law, the petitioner should
check the current rules and statutes and avoid relying on preprinted
forms.
5.2-3
Escheat
If no known person takes by descent, the intestate estate escheats

to the state of Oregon. ORS 112.055(1).
If a devisee or a person entitled to a share of the estate under ORS
112.025112.035 (share of surviving spouse) or ORS 112.045 (share of a
person other than a surviving spouse) cannot be identified or found, then
that persons share of the estate escheats to the state of Oregon. ORS
112.055(2). Provisions for dealing with the persons share of the estate
are set forth in ORS 112.055(3).
If the estate is to escheat to the state, the personal representative
must deliver or mail to an estate administrator of the Department of State
Lands (DSL) a copy of the petition filed under ORS 113.235 and a copy
of any last will of the decedent. The personal representative must also file
proof of the delivery or mailing with the court. ORS 113.045(1). See
ORS 111.218 (proof of mailing or other delivery). After appointment, if
the personal representative cannot identify or find all heirs and devisees
of the decedent, the personal representative must so notify the DSL. ORS
113.045(2).
If it appears at the onset of probate administration that the decedent
died wholly intestate and without heirs, the court must appoint the DSL
as the personal representative of the estate. The attorney general
represents the DSL in the intestate proceedings. ORS 113.085(2). But see
ORS 113.085(3) (when the estate is insolvent, the court, with the DSLs
5-9
2012 Revision
written authorization, may appoint another person to administer the

estate). Otherwise, the court may enter an order of escheat at any time
after the expiration of four months after the date of first publication of
notice to interested persons, if it appears . . . that there is no known
person to take by descent. ORS 116.193. Thereafter, the net estate is
distributed to the DSL without further proceedings and the estate is
summarily closed. ORS 116.193.
NOTE: For a discussion of statutory presumptions that apply
in a proceeding to determine whether a missing person has died,
see 4.1-2(g).
See ORS 116.253 regarding the recovery of escheated property.
5.2-4
Proof of Will
5.2-4(a)
Affidavit of Attesting Witness
The probate code permits proof of a will ex parte by the affidavit

of an attesting witness made at any time. ORS 113.055(1). This
procedure is historically referred to as probate in common form, as distinguished from probate in solemn form. Interested persons are protected
under ORS 113.145 and 113.055(2), which require the giving of notice of
the probate and allow interested persons 30 days to seek the affiants
testimony or deposition. See 5.2-4(c), regarding the testimony of attesting witnesses, and 5.2-4(g), regarding probate in solemn form. If the
petition involves the assertion of an invalid will, another will, or the right
to receive pursuant to an agreement, notice of such allegations must be
given to the devisees and heirs. ORS 113.035(8).
PRACTICE TIP: In the usual case, the probate judge or probate
commissioner will receive only the petition for the probate of the
will, the affidavits of witnesses (which generally contain only
conclusions), the will, and the form of the limited judgment
admitting the will to probate. This procedure commences the
administration of the estate and, in almost every case, is adequate.
See Form 5-5; see also Forms 5-3, 5-4.
5-10
2012 Revision
5.2-4(b)
Self-Proving Will
The probate code provides that affidavits of attesting witnesses to a

will may be made at the time the will is executed or any time thereafter.
ORS 113.055. If the attesting witnesses affidavits were made at the time
of the wills execution, and if the affidavits are attached to the will as part
of the will, the will is self-proving in an ex parte proof-of-will hearing.
5.2-4(c)
Testimony of Attesting Witness
Within 30 days after a limited judgment admitting a will to probate

is made, an interested person may file a motion for the taking of a
subscribing witnesss testimony. The court may require that the witness
be brought before the court. If the witness is outside the reach of a
subpoena, the court may order that the witnesss deposition be taken.
ORS 113.055(2).
PRACTICE TIP: The extent of proof required is not specified
in ORS 113.055(2). The degree of proof in a contest of a will or
probate in solemn form is specified in ORS 113.055(4). Provisions
regarding contesting a will are set forth in ORS 113.075. Looking
at these probate code provisions together suggests that an
interested persons resort to ORS 113.055(2) is not a will contest
and requires only testimony establishing the facts set forth in the
witnesss affidavits, such as the witnesss qualification; that the
testator signed the will in the presence of each witness, or directed
some person to sign for him or her, or acknowledged a signature
previously made; and that the witnesses were requested to attest
the will by signing their names in the testators presence. See ORS
112.235. However, the cautious personal representative may want
to offer all evidence as specified in ORS 113.055(4) if ORS
113.055(2) is invoked within the time for a will contest set forth in
ORS 113.075(3).
5.2-4(d)
Missing Witness
The affidavit or testimony of only one of the attesting witnesses is

necessary to prove a will. ORS 113.055(1). If this evidence is unavailable, the court may allow proof of the will by testimony or other evidence
5-11
2012 Revision
that the signature of the testator, or at least one of the witnesses, is

genuine. ORS 113.055(3).
Under ORS 112.245, an interested person (one who is devised a
personal and beneficial interest in the estate) is permitted to be a witness
to a will. Presumably, the affidavit or testimony of an heir, devisee, or
other interested person may be used to attest to the genuineness of a
testators or witnesss signature.
COMMENT: A useful research tool to determine who can be a
witness to prove the execution of a will is the case In re Warrens
Estate, 138 Or 283, 4 P2d 635 (1931).
See Form 5-6.
PRACTICE TIP: Although ORS 112.245 allows an interested
person to be a witness to a will, caution dictates that witnesses to a
will be disinterested persons.
5.2-4(e)
Foreign Will
A foreign will that operates on property in Oregon may be

presented for probate in this state in a petition filed by an interested
person in the same manner as in the probate of a will of a domiciliary.
ORS 113.065. The petitioner must file a certified copy of both the will
and the order admitting the will to probate in the foreign jurisdiction. The
petition must contain the jurisdictional and other statutory facts required
by the probate code or the rules. ORS 113.065(1).
A foreign will may be contested for any cause that would be
grounds for rejection of a will of a testator who died domiciled in this
state. ORS 113.065(2).
See 6.6-1(a) to 6.6-6, regarding ancillary administration.
5.2-4(f)
International Will
An international will is valid as to form and formalities of

execution if it complies with the requirements of the Uniform International Wills Act, set forth in ORS 112.232. ORS 112.232(2). Among
other requirements, the will offered into probate must be accompanied by
a certificate in the form specified by ORS 112.232(5). See 4.2-2(c).
5-12
2012 Revision
5.2-4(g)
Probate in Solemn Form
Probate in solemn form, which is taken from the old English

practice, requires the same proof as in an action tried without a jury. ORS
113.055(4). See 2.9-3. Proceedings in solemn form . . . require that
all interested persons be notified and allowed to appear in order to
assert whatever position they may have with regard to the propounded
will. Matter of Ross Estate, 25 Or App 191, 196, 548 P2d 1001 (1976).
An important difference between probate in common form and probate in
solemn form is that the latter constitutes an adversary proceeding in
which parties in interest opposed to the will have an opportunity to
contest its validity, while in the former contestants are neither notified
nor permitted to appear. Matter of Ross Estate, 25 Or App at 196. Thus,
interested parties have the right to cross-examine the attesting witnesses
and to introduce evidence attacking the validity of the will before the will
is admitted to probate. All statements in the petition for probate must be
proved, including the testamentary capacity of the testator and the
execution and attestation of the will. See 1 NICHOLAS JAUREGUY &
WILLIAM E. LOVE, OREGON PROBATE LAW AND PRACTICE 462 (1958).
Probate in solemn form can be initiated by the petitioner or by an
interested person. If the petitioner initiates probate in solemn form, the
petitioner must obtain a hearing date for presenting the will, give the
decedents heirs and devisees notice of that hearing, and file an affidavit
of the giving of the notice. See JAUREGUY & LOVE, supra.
PRACTICE TIP: An interested person who desires to contest
the validity of a will that has not yet been presented for probate
may initiate the will contest by commencing a probate in solemn
form. This procedure sets the stage for evidence attacking the will
to be presented in the same manner as in an action tried without a
jury. See ORS 113.055(4).
5.2-4(h)
Contested Will
Any interested person may contest the probate of a will or the

validity of the will or assert an interest in the estate for the reasons and
within the time limits set forth in ORS 113.075, ORS 113.075(1), (3).
5-13
2012 Revision
If a will is contested, proof of any facts must be made in the same

manner as in an action tried without a jury. ORS 113.055(4). See 15.21(a) to 15.2-2(g), regarding will contests.
5.2-5
Appointment of Personal Representative
5.2-5(a)
Preference in Appointing Personal Representative
Upon the filing of a petition, the court must appoint a qualified

person it finds suitable as the personal representative of the estate,
giving preference to the persons listed in ORS 113.085(1), in the order
set forth in the statute. ORS 113.085(1). Thus, the court has some discretion in appointing a personal representative, except in an escheat estate.
See Wharff v. Rohrback, 152 Or App 68, 7374, 952 P2d 87 (1998). ORS
113.085(1) sets forth the following order of preference:
(1)
The executor named in the will;
(2) The decedents surviving spouse or the nominee of the

surviving spouse;
(3)
The decedents nearest of kin or that kins nominee;
(4) The Director of the Department of Human Services, the

Director of the Oregon Health Authority, or an attorney approved under
ORS 113.086, if the decedent received public assistance as defined in
ORS 411.010 or received care at an institution described in ORS
179.321(1) or (2) and it appears that the assistance or the cost of care
may be recovered from the estate of the decedent;
(5) The Department of Veterans Affairs, if the decedent was a
protected person, and the department joined in the petition for appointment; or
(6)
Any other person qualifying.
If the decedent died wholly intestate and without known heirs,

the Department of State Lands (DSL) must be appointed as personal
representative. ORS 113.085(2). But see ORS 113.085(3) (when the
estate is insolvent, the court, with the DSLs written authorization, may
appoint another person to administer the estate). See 5.2-3, regarding an
escheat estate.
5-14
2012 Revision
PRACTICE TIP: The lawyer should check the countys

supplemental local rules, which may require the petition to allege
that the proposed personal representative has ORS 113.085
preference to be appointed. See Forms 5-3, 5-4.
5.2-5(b)
Disqualification of Personal Representative
The grounds for which a person may be disqualified from serving

as personal representative are set forth in ORS 113.092 and 113.095.
A person nominated as personal representative who has been
convicted of a felony must inform the court of the conviction. ORS
113.092(1). The conviction will not disqualify the nominee unless (1) the
court finds that the facts underlying the conviction are substantially
similar to facts which would constitute grounds for removal of the person as personal representative under ORS 113.195(2); and (2) the court
has reasonable grounds to believe that such person will be unfaithful to
or neglectful of the trust. ORS 113.092(1). A persons failure to inform
the court of the felony conviction may disqualify him or her from serving
as personal representative, or may constitute grounds for removal as
personal representative. ORS 113.092(2).
Under ORS 113.095, the following persons are disqualified from
serving as personal representative:
(1)
An incompetent;
(2)
A minor;
(3) A person suspended for misconduct or disbarred from the

practice of law, during the period of suspension or disbarment;
(4) A person who has resigned from the Oregon State Bar when
charges of professional misconduct are pending, or when disciplinary
proceedings are pending against the person, until the person is reinstated;
and
(5) A licensed funeral service practitioner, unless the decedent
was a relative of such practitioner or was a partner, employee, or
employer of the practitioner petitioning for appointment as personal
representative.
5-15
2012 Revision
5.2-5(c)
Nonresident Personal Representative
Nonresidents of Oregon are not disqualified from acting as personal representatives. Anyone who accepts appointment as personal
representative submits to the personal jurisdiction of the court. ORS
113.087.
5.2-5(d)
Limited Judgment
If the court determines that there is no just reason for delay, the
court in a probate proceeding may enter a limited judgment for a
decision on a petition for appointment or removal of a personal representative. ORS 111.275(1)(a), (2). The judgment document need not
reflect the courts determination that there is no just reason for delay.
ORS 111.275(2).
See Form 5-7, which is used for a testate estate, and Form 5-8,
which is used for an intestate estate. Further, all such limited judgments
must comply with UTCR 2.010 and UTCR 9.030.
PRACTICE TIP: Petitions and limited judgments not requiring a court appearance may be mailed to the trial court
administrator, with self-addressed stamped envelopes or postcards
for responses. UTCR 9.010.
PRACTICE TIP: If the bond requirements are known before
the ex parte hearing, that amount can be filled in before presenting
the limited judgment to the court. Otherwise, the amount of bond
and the form of surety can be filled in after the courts ruling at the
hearing.
5.2-6
Bond
5.2-6(a)
Necessity of Bond; Court Discretion
The personal representative must file a bond unless (1) the will
waives the bond requirement; or (2) the personal representative is (a) the
sole heir or devisee, (b) the Department of State Lands, (c) the Department of Veterans Affairs, (d) the Director of Human Services, (e) the
Director of the Oregon Health Authority, (f) an attorney approved under
ORS 113.086, or (g) a trust company. ORS 113.105, 709.240. See Form
5-9.
5-16
2012 Revision
Note, however, that the court has discretionary authority with

respect to the bond. The probate court has discretion to require a bond,
even if the will provides that no bond is required. ORS 113.105(1).
The court also has discretion to waive the bond requirement if all
the devisees and heirs known to the court agree, in writing, that the
requirement be waived, and their signed agreement waiving bond is filed
with the court at the time the petition for appointment of the personal
representative is filed. ORS 113.105(4). See Forms 5-3, 5-4.
The court also has discretion to increase or reduce the amount of
the bond, or to require a new bond as the circumstances dictate. ORS
113.115. See 5.2-6(c).
CAVEAT: The lawyer should not seek a waiver of the bond
under other circumstances. To do so might invalidate the appointment of the personal representative.
PRACTICE TIP: The lawyer should check the countys
supplemental local rules regarding bond requirements. For
example, in Multnomah County, if the probate court is not satisfied
that the creditors will be paid, the court may require the personal
representative of an intestate estate to post a bondeven if the
personal representative is the sole heir or devisee of the estate.
SLR 9.065 (Multnomah County).
5.2-6(b)
Amount of Bond
The probate code offers no particular formula for determining the

amount of the personal representatives bond. The amount must be
adequate to protect interested persons, but, in any event, it may not be
less than $1,000. ORS 113.105(2). See Form 5-9.
In setting the amount of the bond, the court must consider (1) the
nature, liquidity, and value of the estates assets; (2) anticipated income
during administration; and (3) the probable indebtedness and taxes. ORS
113.105(2).
5-17
2012 Revision
5.2-6(c)
Increasing, Decreasing, or Requiring New Bond
The court, in its discretion, may increase or reduce the amount of

the bond, or require a new bond as the circumstances dictate. ORS
113.115.
If a request is made to approve a surety bond in an amount less
than the aggregate value of the property in the estate, as disclosed by the
petition for appointment, a supporting affidavit, signed by the personal
representative, guardian, conservator, or lawyer of record, must be filed.
This requirement may be satisfied by an appropriate statement in the
petition. UTCR 9.020.
The bond may need to be increased if the personal representative
intends to exercise the power to sell estate property under ORS 114.325,
the sale price of the property to be sold exceeds $5,000, and the amount
of the personal representatives bond has not been increased by the
amount of cash to be realized on the sale. ORS 114.325(2)(c).
PRACTICE TIP: If a major asset of the estate will not be sold
or exchanged immediately, the court may permit reduction of the
amount of the bond by issuing an order restricting the personal
representatives authority to deal with or alienate property until
such time as a need arises to transfer the asset. A request for such
an order should be included in the petition for probate if it is to be
truly cost-effective. An example of such language follows: No
real property may be sold, conveyed, hypothecated, or leased for a
term greater than five years without further order of the Court.
PRACTICE TIP: The lawyer should obtain a bond for the
amount needed and file it with the petition in order to expedite the
personal representatives appointment. Bonds in a form acceptable
for filing with the court are usually prepared by the selected
commercial surety company. However, commercial surety companies seem increasingly reluctant to issue bonds for personal
representatives because of poor credit history. Therefore, the
lawyer should make certain in advance that the personal
representative can qualify for a bond. If the personal representative
cannot obtain a bond, a personal surety bond may be necessary. A
5-18
2012 Revision
personal surety bond acceptable to the court must be by one or

more sufficient personal sureties approved by the court. A personal
surety must be a resident of this state. ORS 113.105. Most likely,
the personal representatives lawyer will then need to prepare the
bond. See Form 5-9.
5.2-6(d)
Court Approval of Bond
Court approval of the personal representatives bond is necessary.

ORS 113.105. Neither the probate code nor the Uniform Trial Court
Rules specify any particular form of the courts approval of the bond.
PRACTICE TIP: The bond should include language for court
approval. Form 5-9 contains a court-approval provision and a place
for the judges signature.
5.2-7
Letters Testamentary or Letters of Administration
After the personal representative is appointed and the required

bond (if any) is filed with the court, the court must issue letters
testamentary or letters of administration to the personal representative.
ORS 113.125.
Letters testamentary are issued when the decedent dies testate. See
the form in ORS 113.125(2). Letters of administration are issued when
the decedent dies intestate. See the form in ORS 113.125(3).
The duties and powers of a personal representative commence
upon the issuance of letters. ORS 114.255. See 10.2-2 to 10.2-3.
COMMENT: Letters are the personal representatives basis of
authority to execute the powers conferred by law. Their purpose is
to give to the personal representative authentic evidence of
authority. Some persons with whom the personal representative
may have occasion to deal may want to see the letters. 2 NICHOLAS
JAUREGUY & WILLIAM E. LOVE, OREGON PROBATE LAW AND
PRACTICE 588 (1958) (citation not verified by publisher).
5.2-8
Notices
Upon appointment, a personal representative must give notice of

the proceeding to the decedents heirs, the decedents devisees, and
5-19
2012 Revision
interested persons as specified by the probate code. See ORS 113.145,

113.155. In addition, the personal representative must give the Oregon
Department of Human Services and the Oregon Health Authority the
same notice, plus a copy of the decedents death certificate. ORS
113.145(6).
NOTE: Notice to the Oregon Department of Human Services
constitutes notice to the Oregon Health Authority. OAR 943-0010020(2)(e); see also OAR 407-043-0010(4)(h)(A).
If the personal representative has not identified and found all of the
decedents heirs and devisees, the personal representative must deliver or
mail a copy of the petition and a copy of the decedents will (if any) to an
estate administrator of the Department of State Lands. ORS 113.045(1).
This responsibility continues throughout the probate proceeding. ORS
113.045(2). Therefore, if at any time after appointment the personal
representative cannot identify and find an heir or devisee, the personal
representative must give notice of that fact to an estate administrator at
the Department of State Lands. In either instance, the personal representative must file proof of such delivery or mailing with the court. ORS
113.045(1)(2). See ORS 111.218(1); see also 2.5-5.
For further discussion of notice, including the manner of giving
notice, proof of notice, and waiver of notice, see 2.5-1 to 2.5-7 and
7.3-1(a) to 7.3-3(b). See also Forms 5-10 to 5-16.
NOTE: Before the court will approve the final account, the
personal representative must file proof that the heirs, devisees, and
interested persons received notice of the opportunity to file
objections to the account. ORS 116.093. See 2.5-5 (proof of
notice). When the probate code allows notice by publication (see
ORS 111.215(1)(c) and 113.155), proof of publication may be
made by an affidavit or a declaration of an employee of the newspaper publishing the notice. ORCP 7 F(2)(b); ORS 111.218(2). In
most instances, the newspaper automatically sends to counsel the
required affidavit. Local practice may require the personal
representatives lawyer to prepare the affidavit. See Form 5-16.
5-20
2012 Revision
PRACTICE TIP: Within 30 days after appointment, the personal representative must file proof of service by mail or delivery
of information to the persons described in ORS 113.035, the
Oregon Department of Human Services, and the Oregon Health
Authority. ORS 113.145(1), (4), (6). Such proof should be filed as
soon as the notice is given, rather than at the end of the 30-day
period, because under ORS 113.075(3) any interested person, a
term much broader than an heir or a devisee (see ORS
111.005(12), (18), (19)), can contest a will for up to four months
after the date of delivery or mailing of the information described in
ORS 113.145, or four months after the first publication of notice to
interested persons, whichever is later. The casual practice of filing
proof of mailing or delivering information to persons entitled to
notice and proof of publication at the time of filing the final
account and petition for a judgment of distribution is extremely illadvised. This practice could delay the final account an additional
four months in order to allow time for possible will contests under
ORS 113.075. For this reason, both Form 5-10 and Form 5-11
include wording from ORS 113.075.
5.2-9
Removal of Personal Representative
5.2-9(a)
Grounds for Removal
The probate code provides for both mandatory and discretionary

removal of the personal representative.
The court must remove the personal representative if the personal
representative ceases to be qualified or becomes incapable of discharging
his or her duties. ORS 113.195(1).
The court, in its discretion, may remove the personal representative
when he or she has been unfaithful to, or neglectful of, the trust, or has
failed to inform the court of a past felony conviction. ORS 113.195(2)
(3). See Roley v. Sammons, 215 Or App 401, 412, 170 P3d 1067 (2007)
(removal is justified . . . when past conduct of the personal
representative shows unfaithfulness or neglect of the trust or, under the
equitable authority of the court, when the personal interests of the
personal representative conflict with a substantial and legitimate interest
5-21
2012 Revision
of a beneficiary of the estate); Holst v. Purdy, 117 Or App 307, 844 P2d
229 (1992).
The following sources describe some of the grounds for removal:
Dave R. Bonelli, Annot, Delay of Executor or Administrator in Filing
Inventory, Account, or Other Report, or in Completing Administration
and Distribution of Estate, as Ground for Removal, 33 ALR4TH 708
(1984) (supplemented periodically); Wanda Ellen Wakefield, Annot,
Adverse Interest or Position as Disqualification for Appointment of
Administrator, Executor, or Other Personal Representative, 11 ALR4TH
638 (1982) (supplemented periodically). See also 5 WESTS OREGON
DIGEST, EXECUTORS AND ADMINISTRATORS key 35(1) (1956); 2
NICHOLAS JAUREGUY & WILLIAM E. LOVE, OREGON PROBATE LAW AND
PRACTICE 593 (1958) (citation not verified by publisher).
The procedure for removing a personal representative is discussed
in 5.2-9(b).
5.2-9(b)
Procedure for Removal
When grounds for removal of a personal representative appear to

exist [(see 5.2-9(a))], the court, on its own motion or on the petition of
any interested person, shall order the personal representative to appear
and show cause why the personal representative should not be removed.
ORS 113.195(4). A copy of the order to show cause and a copy of the
petition (if any) must be served upon both the personal representative and
the surety. ORS 113.195(4).
5.2-10 Successor Personal Representative
5.2-10(a) Appointment of Successor
When a personal representative dies, is removed by the court, or
resigns and the resignation is accepted by the court, the court must
appoint a successor personal representative only if the former personal
representative was the sole or last surviving personal representative, and
administration of the estate has not been completed. ORS 113.215(1).
Otherwise, the appointment of a successor personal representative is
discretionary with the court. ORS 113.215(1).
5-22
2012 Revision
5.2-10(b) Letters of Administration/Testamentary

If a proven will is later set aside, the letters testamentary or the
letters of administration must be revoked and new letters of administration issued to a successor personal representative. ORS 113.215(2). If a
will is proved after letters of administration have been issued, letters
testamentary are then issued to a successor personal representative. ORS
113.215(3).
5.2-10(c) Powers of Successor
The successor personal representative has all the rights and
powers of the predecessor, including the powers conferred by the will,
unless the powers conferred by the will were clearly personal to the
predecessor. ORS 113.215(4). See chapter 7.
5.2-10(d) Publication of Notice to Interested Persons
If the personal representative dies, is removed by the court or
resigns after the notice to interested persons required by ORS 113.155
has been published but before the expiration of four months from the date
of first publication, the successor personal representative must publish
notice to interested persons as if the successor were the original personal
representative. ORS 113.225. The new notice must contain all the
information required in the original notice and, in addition, must state
(1) that the original personal representative died, was removed by the
court, or resigned; (2) the date of death, removal, or resignation; and
(3) the date of appointment of the successor personal representative. The
republished notice must also state that claims against the estate must be
presented to the successor personal representative within four months
after the date of the first publication of the republished notice, or they
may be barred. ORS 113.225(1). See Form 5-15.
[I]f the original personal representative dies, is removed by the
court, or resigns after the expiration of four months from the date of the
first publication of the [original] notice, then the successor personal
representative need not publish a new notice. ORS 113.225(2).
5-23
2012 Revision
5.3
5.3-1
PROBATE OF SMALL ESTATES
Generally
The probate code provides a procedure for transferring personal

property and real property, within specified monetary limits, to those who
claim the right to succession to the property by means of an affidavit
filed with the probate clerk. ORS 114.505114.560. This procedure provides an economical and time-saving approach for settling estates with
minimum assets. If a decedents assets that would otherwise be subject to
a regular probate are within the monetary limits of the probate code (see
5.3-2), the affidavit procedure avoids the necessity of proceeding
through the full probate process to transfer the decedents assets to their
proper recipients. However, the code does not preclude appointing a
personal representative for property that meets the monetary limits of
property qualifying for the small-estate affidavit procedure, if the
personal representatives appointment is sought within four months after
the affidavit filing. See ORS 114.555.
PRACTICE TIP: The small-estate affidavit is often useful
when the decedent owned substantial nonprobate property and also
owned either a minimal amount of personal property or some real
property that was not owned in a nonprobate form. The purpose of
the small-estates procedure is to expedite transfers of the
decedents property to beneficiaries in lieu of formal probate
administration.
5.3-2
Estates Qualifying for Small-Estates Procedure
An estate qualifies for the small-estate procedure only if:

(1)
The fair-market value of the estate is $275,000 or less;
(2) Not more than $75,000 of that fair-market value is attributable to personal property; and
(3) Not more than $200,000 of that fair-market value is attributable to real property.
ORS 114.515(2).
5-24
2012 Revision
Estate means the decedents property that is subject to administration in Oregon. ORS 114.505(3).
CAVEAT: If a person who is eligible to file a small-estate
affidavit is aware that the decedent was the sole lessee or the last
surviving lessee of a safe deposit box at the time of the decedents
death, the person may not file a small-estate affidavit until after
an inventory of the box has been taken under ORS 708A.655. ORS
114.537(1). The person must consider the contents of the box in
determining whether the decedents estate is within the limits
prescribed by ORS 114.515(2). If the person then files a smallestate affidavit, the value of the contents of the box must be stated
in the affidavit.
If, after filing the affidavit, the person becomes aware that
the decedent was the sole lessee or the last surviving lessee of a
safe deposit box at the time of the decedents death, the person
must promptly request an inventory of the box under ORS
708A.655. ORS 114.537(2). After consideration of the value of the
contents of the box, the person must file an amended affidavit
under ORS 114.515 if the decedents estate remains within the
limits prescribed by ORS 114.515(2). However, if the decedents
estate then exceeds the limits prescribed by the statute, the person
must file notice with the court that the decedents estate is no
longer subject to the small-estates procedure. ORS 114.537(2).
5.3-3
Small-Estate Affidavit
5.3-3(a)
Contents of Affidavit
A small-estate affidavit filed under ORS 114.515 must:

(1) State the decedents name, age, domicile, post office
address, and Social Security number, ORS 114.525(1) (see UTCR 2.100
2.110 regarding segregating personal information from a document submitted to the court);
(2) State the date and place of the decedents death, ORS
114.525(2);
5-25
2012 Revision
NOTE: A certified copy of the death certificate must be

attached to the affidavit. ORS 114.525(2).
(3) Describe and state the fair-market value of all property to
which the affidavit is to apply, including a legal description of any real
property, ORS 114.525(3);
(4)
State the value of the contents of any safe-deposit box, if
the affiant is aware that the decedent was the sole lessee or the last
surviving lessee of a safe deposit box at the time of the decedents
death, ORS 114.537(1) (see the caveat in 5.3-2);
(5) State that no application or petition for the appointment of a
personal representative has been granted in Oregon, ORS 114.525(4);
(6) State whether the decedent died testate or intestate, ORS
114.525(5);
NOTE: If the decedent died testate, the original will must be
attached to the affidavit. ORS 114.525(5).
(7) List all the decedents heirs and the last address of each heir
known to the affiant, and state that a copy of the affidavit showing the
date of filing and a copy of the will, if any, will be delivered to each heir
or mailed to the heir at his or her last-known address, ORS 114.525(6);
(8) If the decedent died testate (a) list the devisees of the
decedent and each devisees last address known to the affiant, and
(b) state that a copy of the will and a copy of the affidavit showing the
date of filing will be delivered to each devisee or mailed to the devisee at
his or her last-known address, ORS 114.525(7);
(9) State the interest in the property described in the affidavit to
which each heir or devisee is entitled, and the interest, if any, that will
escheat, ORS 114.525(8);
(10) State that reasonable efforts have been made to ascertain
creditors of the estate, ORS 114.525(9);
(11) List any expenses of, and claims against, the estate that
remain unpaid or on account of which the affiant or any other person is
entitled to reimbursement from the estate, including the known or
5-26
2012 Revision
estimated amounts thereof and the creditors names and addresses as

known to the affiant, and state that a copy of the affidavit showing the
date of filing will be delivered to each creditor who has not been paid in
full, or mailed to the creditor at its last-known address, ORS 114.525(9);
(12) List separately the name and address of each person known
to the affiant to assert a claim against the estate that the affiant disputes,
and the known or estimated amount of the claim, and state that a copy of
the affidavit showing the filing date will be delivered to each such person
or mailed to the person at his or her last-known address, ORS
114.525(10);
(13) State that a copy of the affidavit showing the filing date will
be mailed or delivered to the Oregon Department of Human Services and
the Oregon Health Authority, ORS 114.525(11);
NOTE: By administrative rule, notice to the Oregon
Department of Human Services constitutes notice to the Oregon
Health Authority. OAR 943-001-0020(2)(e); see also OAR 407043-0010(4)(h)(A).
PRACTICE TIP: The address of the Department of Human
Services is: Oregon Department of Human Services, Estate
Administration Unit, PO Box 14021, Salem OR 97309-5024.
(14) State that claims against the estate that are not listed in the
affidavit, or that are in amounts larger than those listed in the affidavit,
may be barred unless (a) a claim is presented to the affiant, within four
months of the filing of the affidavit, at the address stated in the affidavit
for presentment of claims, or (b) a personal representative of the estate is
appointed within four months after the filing of the affidavit, ORS
114.525(12); and
(15) If the affidavit lists one or more claims that the affiant
disputes, state that any such claim may be barred unless (a) a petition for
summary determination is filed within four months of the filing of the
affidavit, or (b) a personal representative of the estate is appointed within
four months after the filing of the affidavit, ORS 114.525(13).
5-27
2012 Revision
NOTE: Any error or omission in an affidavit filed under ORS

114.515 may be corrected by filing an amended affidavit within
four months after the filing of the affidavit. ORS 114.515(7).
PRACTICE TIP: Although the statute is silent on this issue,
errors or omissions in an affidavit discovered after the four-month
period will require the filing of a petition to reopen the estate and
the appointment of a personal representative under ORS 116.233.
See 11.10-1 to 11.10-4.
NOTE: ORS 114.515 also allows the filing of a supplemental
affidavit to include property not described in the original affidavit.
ORS 114.515(8). However, a supplemental affidavit may not be
filed if inclusion of the additional property would disqualify the
estate from the small-estates procedure. ORS 114.515(8); see ORS
114.515(2) (discussed in 5.3-2). Furthermore, if the property is
discovered after the estate has been closed, the estate will need to
be reopened. See 11.10-1(a)(1) to 11.10-1(a)(3).
PRACTICE TIP: Because the names and addresses of agencies
tend to change, the lawyer should verify the agencys title and
address before preparing and filing a small-estate affidavit. The
telephone number for the Estate Administration Unit is 800-8265675 (toll-free in Oregon).
5.3-3(b)
Who May File
The probate code provides that any of the following persons may
file a small-estate affidavit (see Forms 5-17, 5-18):
(1) One or more of the claiming successors of the decedent,
ORS 114.515(1)(a);
NOTE: See ORS 114.505(2) for the definition of claiming
successors. A creditor may be a claiming successor. ORS
114.505(2)(c). See 5.3-7.
(2) If the decedent died testate, any person named as personal
representative in the decedents will, ORS 114.515(1)(b);
(3) If the decedent received certain public assistance or received
care at an institution described in ORS 179.010, and it appears that the
5-28
2012 Revision
assistance or the cost of the care may be recovered from the estate of the
decedent, the Director of Human Services, the Director of the Oregon
Health Authority, or a lawyer approved by either director under ORS
114.517 or 114.515(1)(c); or
(4) If the decedent died intestate and without heirs, and the
estate appears to be insolvent, a creditor of the estate who has requested
and received authorization to file a small-estate affidavit from an estate
administrator of the Department of State Lands, ORS 114.520(1).
NOTE: Both the creditors request and the estate administrators permission must be in writing. ORS 114.520(2).
Within 30 days after receiving the request, the estate
administrator must either authorize the creditor, in writing, to file
an affidavit, or inform the creditor that the Department of State
Lands will file an affidavit as claiming successor. ORS
114.520(2)(a)(b). However, before reaching its decision, the
estate administrator must investigate the estates assets and
liabilities and find that it appears . . . that the estate is insolvent.
ORS 114.520(1)(2).
A creditor who is authorized to file a small-estate affidavit
must note at the top of the affidavit that it is being filed by a
creditor of the estate and attach to it the estate administrators
written authorization to file the affidavit. ORS 114.520(3).
PRACTICE TIP: If the small estate involves title to real
property, getting all claiming successors to join in the affidavit
simplifies securing title insurance later on, because the record will
show that all of the claiming successors participated in the smallestate procedures. However, the probate code does not require that
all of the decedents claiming successors join in the affidavit.
5.3-3(c)
When and Where the Affidavit May Be Filed
The affidavit cannot be filed earlier than 30 days after the death of
the decedent. ORS 114.515(3).
CAVEAT: If the person filing the small-estate affidavit is
aware that the decedent was the sole lessee or the last surviving
5-29
2012 Revision
lessee of a safe deposit box at the time of the decedents death,

the person may not file the affidavit until after an inventory of the
box has been taken. ORS 114.537(1). See 5.3-2.
The affidavit may be filed with the clerk of the probate court of
any county where (1) the decedent had a domicile, (2) the decedent had
a place of abode at the time of death, (3) the decedent had real or
personal property at the time of death, (4) the decedent had real or
personal property at the time the proceeding is commenced, or (5) the
decedent died. ORS 114.515(1), 113.015. See Forms 5-17, 5-18.
5.3-4
Transfers of Property Pursuant to Affidavit
After filing a small-estate affidavit (see 5.3-3(a) to 5.3-3(c)), the

affiant is authorized to take control of the property of the estate coming
into the possession of the affiant. ORS 114.545(1)(a). See 5.3-4(a),
regarding personal property, and 5.3-4(b), regarding real property.
No sooner than 10 days after filing a small-estate affidavit (see
5.3-3(a)), the affiant may deliver a certified copy of the affidavit to any
person who was indebted to the decedent or who has possession of
personal property belonging to the estate. ORS 114.535(1). See 5.34(a), regarding the transfer of personal property.
The affiant may convey any of the estate property (real or
personal) before the expiration of the four-month period stated in ORS
114.555 (see 5.3-8(b)) if (1) each heir or devisee succeeding to the
interest conveyed joins in the conveyance, and (2) any net proceeds of
the sale will become a part of the estate. ORS 114.545(1)(f). See 5.3-5,
regarding the affiants duty to pay certain expenses and claims. See also
5.3-6, regarding a conveyance to a good-faith purchaser.
If no personal representative is appointed within four months after
the filing of a small-estate affidavit, ORS 114.555 provides that
the interest of the decedent in all of the property described in the
affidavit is transferred to the person or persons shown by the affidavit
to be entitled thereto, and any other claims against the property are
barred, except:
(1)
and
5-30
2012 Revision
As provided in ORS 114.540, 114.545 and 114.550;

(2)
For the purposes of a surviving spouses claim for an
elective share in the manner provided by ORS 114.600 to 114.725.
5.3-4(a)
Transfers of Personal Property
If a certified copy of the affidavit is delivered to a person indebted

to the decedent or in possession of the decedents personal property (see
5.3-3(a) to 5.3-4), that person must pay, transfer, deliver, provide
access to and allow possession of the personal property to the affiant, as
provided in ORS 114.535. ORS 114.535(1).
Subject to ORS 114.537 (regarding safe-deposit boxes; see 5.32), if a copy of the affidavit is delivered to a person who controls access
to personal property belonging to the decedents estate, including
personal property held in a safe deposit box for which the decedent was
the sole lessee or the last surviving lessee, the person must (1) give the
affiant access to the property, and (2) allow the affiant to take possession
of it. ORS 114.535(2).
Subject to ORS 114.537, if a copy of an affidavit is delivered to a
person who has received property of the decedent under ORS 446.616
(an interest in a manufactured structure), ORS 708A.430 or 723.466 (a
deposit in a financial institution or a credit union), ORS 803.094 (an
interest in a vehicle), or a similar statute providing for the transfer of
property of an estate that is not being probated, the person must pay,
transfer, deliver, provide access to or allow possession of the property to
the affiant if the person would be required to pay, transfer, deliver,
provide access to or allow possession of the property to a personal
representative of the estate. ORS 114.535(3).
A transfer agent of any corporate security registered in the decedents name must change the registered ownership on the corporations
books to the person entitled to the security on the presentation of a
certified copy of the affidavit. ORS 114.535(5).
Any person who
pays, transfers, delivers, provides access to or allows possession of
property of a decedent in the manner provided by [ORS 114.535] is
discharged and released from any liability or responsibility for the
property in the same manner and with the same effect as if the
5-31
2012 Revision

property had been transferred, delivered or paid to a personal
representative of the estate of the decedent.
ORS 114.535(4).
If a person to whom an affidavit is delivered refuses to relinquish
any personal property as required by the statute, the property may be
recovered or payment, delivery, transfer of or access to the property may
be compelled upon proof of the transferees entitlement in a proceeding
brought for the purpose by or on behalf of the transferee. ORS
114.535(6).
PRACTICE TIP: The small-estate affidavit may be unnecessary if the personal property to be transferred consists of a deposit
of $25,000 or less in a financial institution or credit union (ORS
708A.430, 723.466), title to a motor vehicle (ORS 803.094), or a
pet (ORS 114.215(3)). Transfers of these items may occur as
indicated by the above-mentioned sections.
5.3-4(b)
Transfers of Real Property
If real property is involved in a small-estate proceeding, the affiant

must cause to be recorded in the deed records of any county in which
real property belonging to the decedent is situated an affiant or claiming
successors deed executed in the manner required by ORS chapter 93.
ORS 114.545(3).
PRACTICE TIP: When dealing with real property, the lawyer
who considers the small-estate affidavit and procedure appropriate
should consult with a title company to learn the kind of proof or
documentation the title company requires to insure title and the
amount of any additional premium the title company may charge.
PRACTICE TIP: If there are several heirs or devisees of real
property, they should all join in the affidavit or the signing of the
deed. See ORS 114.545(1)(f).
PRACTICE TIP: If an heir or a devisee desires to sell an
interest in the real property to another heir or devisee, the lawyer
should obtain a quitclaim deed from the selling heir or devisee
contemporaneously with the signing of the affidavit.
5-32
2012 Revision
5.3-5
Duties and Powers of Affiant
The probate code specifies the duties of a person who files a smallestate affidavit. Pursuant to ORS 114.545, the affiant:
(1) Must take control of the property coming into the affiants
possession;
(2) Must, within 30 days after filing the affidavit, mail, deliver,
or record each instrument which the affidavit states will be mailed,
delivered or recorded;
(3) Must pay or reimburse any person who has paid certain
expenses and claims, including (a) expenses of administration listed in
the affidavit, (b) expenses of a funeral and disposition of the decedents
remains as listed in the affidavit, (c) claims listed in the affidavit as
undisputed, (d) allowed claims presented to the affiant within four
months after the affidavit was filed (see ORS 114.540), and (e) claims
that the probate court has directed the affiant to pay;
NOTE: The expenses and claims must be paid from and to
the extent of the property of the estate, and must be paid in the
order of priority set forth in ORS 115.125. ORS 114.545(1)(c)(d).
See 5.3-7, regarding claims of creditors.
(4) May (as allowed by the statute) transfer or sell any vehicle
that is part of the estate; and
(5) May (as allowed by the statute) convey any real or personal
property that is part of the estate if each heir or devisee succeeding to
the interest conveyed joins in the conveyance and any proceeds become
part of the assets subject to the small-estate affidavit.
PRACTICE TIP: The affiants duties and powers parallel, in
abbreviated form, those of a personal representative. Therefore, if
the heirs or devisees are different from the affiant, that is, if not all
of the heirs or devisees join in the affidavit, the affiant must take
care to deal with the decedents property in a fiduciary manner. In
such a situation, the lawyer should caution the affiant to keep
records and provide reports, similar to those in a regular probate,
5-33
2012 Revision
directly to at least those heirs or devisees who do not join in the

affidavit.
5.3-6
Purchaser of Small-Estate Property
The affiant may sell the decedents interest in real property or

personal property before the expiration of the four-month period
following the filing of the small-estate affidavit, if each heir or devisee
joins in the conveyance, the grantee of the conveyance is a purchaser in
good faith and for a valuable consideration, and the proceeds of the sale
(net of the reasonable expenses of sale and any debt secured as of the
date of the decedents death by a duly perfected lien on the property)
become a part of the estate subject to ORS 114.505114.560. ORS
114.545(1)(f). If these conditions are met, the purchaser has no duty
with respect to application of the consideration paid for the conveyance.
ORS 114.545(1)(f). If no personal representative is appointed within four
months after the filing of the affidavit, the heir or devisee succeeding to
the decedents interest in the property can convey that interest free of any
interest of any claiming successor. ORS 114.545(1)(f).
NOTE: If the property is a manufactured structure as defined
in ORS 446.561, the affiant must assign interest in the structure as
provided in ORS 446.616. ORS 114.545(1)(f).
5.3-7
Creditors
The statutes governing the small-estates procedure protect creditors by, among other things, allowing them to (1) file a small-estate
affidavit (see 5.3-3(b)), (2) present claims against the estate, and (3) file
a petition for summary review of administration of an estate. ORS
114.505(2)(c), 114.515(1)(a), 114.540(3), 114.545(1)(c)(d), 114.550.
Any creditor of the estate entitled to payment or reimbursement
from the estate under ORS 114.545(1)(c) who has not been paid or
reimbursed the full amount owed such creditor within 60 days after the
date of the decedents death may file a small-estate affidavit. ORS
114.505(1)(c), 114.515.
A creditor may present a claim to the affiant within four months
after the affidavit (or an amended or supplemental affidavit) was filed.
5-34
2012 Revision
Each claim presented must (1) be in writing; (2) describe the nature and
amount of the claim, if ascertainable; and (3) state the names and
addresses of the claimant and the claimants lawyer, if any. ORS
114.540(1), 115.005.
A claim presented to the affiant is considered allowed as presented
unless, within 60 days after the presentment date, the affiant mails or
delivers a notice of disallowance of the claim, in whole or in part, to the
claimant and any lawyer for the claimant. A notice of disallowance of a
claim must inform the claimant that the claim has been disallowed, in
whole or in part, and that, to the extent disallowed, the claim will be
barred unless the claimant proceeds as specified in the code or a personal
representative is appointed within four months after the filing of the
affidavit. ORS 114.540(2).
If the affiant disallows a timely claim presented by a creditor of the
estate, the creditor may within 30 days after the date of mailing or
delivery of the notice of disallowance file with the probate court a
petition for summary determination of the claim by the court. ORS
114.540(3).
An unpaid creditor whose claim is listed in the affidavit as
disputed may within four months after the filing of the affidavit file with
the probate court a petition for summary determination of the creditors
claim by the court. ORS 114.540(3).
Once the creditor petitions for a summary determination, the court
will hear the matter without a jury, after notice to the creditor and the
affiant. Any interested person may be heard in the proceeding. The claim
may be proved as provided in ORS 115.195(2). ORS 114.540(3). Upon
the hearing, the court will determine the claim in a summary manner, and
must order that the claim be allowed or disallowed in whole or in part. If
the court allows the claim in whole or in part, the order must
direct the affiant, to the extent of property of the estate allocable to the
payment of the claim pursuant to ORS 115.125, or any claiming
successor to whom payment, delivery or transfer has been made under
ORS 114.505 to 114.560 as a person entitled thereto as disclosed in the
affidavit, to the extent of the value of the property received, to pay to
the creditor the amount so allowed.
5-35
2012 Revision
ORS 114.540(3).
No appeal may be taken from the court order made on a summary
determination. ORS 114.540(3).
If the person who filed the small-estate affidavit fails to pay the
expenses and claims of the estate as described in 5.3-5, then any person
who received property pursuant to the affidavit procedure is personally
answerable and accountable to (1) creditors of the estate to the extent of
the value of the property received (to the extent that the creditors are
entitled to payment pursuant to the code), and (2) any later-appointed
personal representative of the decedents estate. ORS 114.545(2).
If an amended or supplemental affidavit is filed, a claim against the
estate must be filed within four months after the filing of the amended or
supplemental affidavit. ORS 114.515(7)(8). Each claim presented to the
affiant must include the information required by ORS 115.025. ORS
114.540(1).
5.3-8
Liability of Heirs and Devisees Who Receive Decedents

Property
5.3-8(a)
Liability to Creditors
Any heir or devisee who received payment, delivery, or transfer of

the decedents property pursuant to a small-estate affidavit is personally
answerable and accountable to the decedents creditors who present
their claims to the affiant within four months after the filing of the
affidavit. ORS 114.545(2)(a). The liability of such a person is limited to
the value of the property received. ORS 114.545(2)(a).
5.3-8(b)
Liability to Personal Representative
If a personal representative of the decedents estate is appointed

within four months after the filing of a small-estate affidavit, then the
personal representative is entitled to take control of the decedents
property and proceed with probating the estate. See ORS 114.545(2)(b),
114.555. The administration of the estate through the probate court then
takes precedence over the previous affidavit filing.
The appointment of a personal representative makes the heirs and
devisees participating in the small-estate affidavit proceeding personally
5-36
2012 Revision
answerable and accountable to the personal representative. ORS

114.545(2)(b).
COMMENT: If a personal representative is appointed later
than four months after the filing of the affidavit, it is unclear
whether that personal representative would have an enforceable
right to take control of the decedents property transferred to the
heirs or devisees, or whether the personal representative could only
administer the unpaid claims against the recipient or recipients of
the decedents property.
5.3-8(c)
Liability to Omitted Heirs and Devisees
The probate code does not specifically address the consequences of

omitting an heir or a devisee in a small-estate affidavit.
COMMENT: The code does not change the law of intestate
succession nor testate distribution. Instead, by reference to heirs
and devisees in ORS 114.505(2), the code preserves the law. It
would seem that an omitted heir or devisee would be entitled to
whatever relief is available to an heir or a devisee who is the
victim of estate chicanery. Although ORS 114.555 states that any
other claims against the property are barred, this would not seem
to apply to an omitted heir or devisee, because the statute does not
expressly state an intent to bar an heir or a devisee. ORS 114.555
seems to be directed more to creditors than to heirs or devisees.
5.3-8(d)
Bar of Claims Against the Property
If a personal representative is not appointed within four months

after the filing of a small-estate affidavit, the decedents interest in all of
the property described in the affidavit is transferred to the person shown
in the affidavit to be entitled to it, and all other claims against the
property are barred, except as provided in ORS 114.540 (procedure for
claims and summary determination), ORS 114.545 (liability of a person
who receives estate property), ORS 114.550 (summary review of
administration of the estate), and ORS 114.600114.725 (surviving
spouses claim for an elective share). ORS 114.555.
5-37
2012 Revision
An affiant or any claiming successor of the estate who has not

been paid the full amount owed such claiming successor may, within two
years after the filing of an affidavit under ORS 114.515, file with the
probate court a petition for summary review of administration of the
estate. ORS 114.550. A creditor cannot file this petition if the creditor
received a copy of the small-estate affidavit within 30 days after the
affidavit was filed, the creditor was shown as a disputed creditor in the
affidavit, and the creditor had not filed a petition for summary
determination under ORS 114.540. ORS 114.550.
A person who files a petition for summary determination under
ORS 114.540 or a petition for summary review of administration of an
estate under ORS 114.550 must pay the filing fee established under ORS
21.135. ORS 114.552(1).
5-38
2012 Revision
Form 5-1
Initiating Probate: Critical Dates Checklist
Estate of
Court Case No.
Date of Death
Tax ID #
Due Date
Item
Date Filed
REGULAR PROBATE
PROCEEDINGS
Petition for appointment of personal
representative
Bond (if required)
Order appointing personal
representative
After appointment (or Letters issued
if bond required, after
bond approved); see
ORS 113.125, 113.105
Within 30 days of
appointment; see ORS
113.145(4)
Notice to heirs/devisees
Affidavit of mailing
Within 30 days of
Mailing notice and death certificate to
appointment; see ORS Department of Human Services
113.145(6)
Upon appointment
(after letters issued by
court); see ORS
113.155
Send notice to interested persons to

newspaper for publication
5-39
2012 Revision

Due Date
Item
On receipt; see ORS

113.155(4)
File proof of publication of notice to

interested persons
Within nine months

after decedents death
(ORS 114.610(1)(c))
Any petition for spouses elective

share must be filed
State law (see ORS

105.623105.649);
federal law, nine
months (see IRC
2518)
Disclaimer
Date Filed
File five months after Proof of compliance with ORS

appointment; see ORS 115.003(1)(2) with checklist of
115.003(4)
actions taken and copies of any notice
delivered or mailed
SMALL-ESTATE PROCEEDING
No earlier than 30 days Small-estate affidavit
after decedents death
(ORS 114.515)
Four months after
Transfer property to claiming
filing of affidavit; ORS successors
114.555; see ORS
114.545(1)(e)(f)
COMMENT: See 5.1.

CAVEAT: This checklist is illustrative only. Each lawyer must
depend on his or her own legal research, knowledge of the law, and
expertise in using or modifying this checklist.
5-40
2012 Revision
Form 5-2
Letter to Personal Representative
_______________, 20____
[personal representatives name]
[address]
Dear _________:
Again, please let me express my sympathy to you on the death of
______________. I hope the service we provide will make the estateadministration process as easy as possible for you.
Before we can begin assisting you in the administration of
[decedents name]s estate, we need the following: the original will (if
any); a certified copy of the death certificate; and the names, addresses,
ages, and Social Security numbers of all heirs and devisees, if any
(beneficiaries). We can begin preparing the petition as soon as we receive
this information.
So that you will have an idea of what probating [decedents
name]s estate involves, this letter outlines the steps required by the court
and the taxing authorities concerning administering the estate, and your
responsibilities as personal representative.
Probate begins with filing a petition with the probate court. We
will prepare the petition for your signature. The petition requests [both]
your appointment as personal representative [and admission of the will to
probate]. Within a day or two after the petition is filed, the judge will
sign an order approving the petition [and bond]. Then the court clerk will
issue letters [testamentary / of administration] (Letters) certifying your
appointment as personal representative.
The Letters show you are authorized to deal with all facets of the
estate, such as collecting insurance proceeds, collecting debts owed the
estate, establishing an estate bank account, paying creditors claims,
signing releases, listing real property for sale, transferring bank accounts,
5-41
2012 Revision
and any other duties that become necessary as a result of your appointment as personal representative.
Immediately after Letters are issued to you, you must publish a
notice to interested persons in [name of newspaper] stating your
appointment as personal representative and requiring all persons having
claims against the estate to present them to you. This puts creditors on
notice that they have four months within which to file claims against the
estate for payment of their accounts.
The publishing of notice to interested persons does not cut off
claims of known creditors. To accomplish that, you must completely
review the financial records and affairs of [decedents name] and
ascertain the identity and address of each person either having or
potentially asserting a claim against the estate. Enclosed is a Creditor
Search Checklist as a guide in performing this duty. If you know of a
creditor and the creditor does not file a claim in response to the published
notice to interested persons, you must take the initiative to see that the
creditor is satisfied either by payment or settlement. In short, you cannot
wait out the time and then try to assert a defense of nonclaim.
Next, we will prepare notices for all heirs and beneficiaries
advising them that you have been appointed personal representative and
informing them how to obtain information about the estate. Both this
notice to heirs and the published notice for creditors are required by law.
An inventory of the estate assets must be filed within 60 days after
your appointment as personal representative. The estate assets will
consist of all property owned individually by [decedents name].
You, as personal representative, must arrange for preparation of
various income, fiduciary, and estate tax returns, both federal and state.
To assist you in meeting this responsibility, we suggest you use the
services of [decedents name]s certified public accountant, public
accountant, or tax preparer, if any. Otherwise, we recommend you retain
those services and follow the timelines given by the professional you
hire. Bear in mind that regardless of other tax due dates, estate tax returns
are due nine months after death.
5-42
2012 Revision
If the probate proceeding is not completed within a year, you must

file annual accountings for each year. Each annual accounting must
report all receipts and disbursements and the disposition of estate
property during the period covered by the annual accounting. This
accounting must also describe estate assets remaining under your control
as personal representative. It may also seek partial payment of your
personal representatives fees and expenses, as well as partial payment of
our attorney fees and related expenses. Although the annual accounting
does not require court approval at that time, any request for personal
representative fees or attorney fees requires court approval before
payment.
Once the creditors and all taxes have been paid, the estate will be
ready for distribution.
Before distribution can be made, however, you must file a final
accounting with the court reporting all receipts and disbursements and the
disposition of estate property during the probate (including those reported
in the annual accountings, if any), and a description of estate assets
available for distribution. This accounting must also detail your personal
representatives fees and our attorney fees, which must be approved by
the court.
The final accounting includes a petition for a judgment of
distribution of the estate assets to the beneficiaries, and a request that you
be authorized to pay attorney fees and costs, accountant fees, if any, and
your personal representative fee and costs. After the judge approves the
accounting, authorizing payment of fees and costs, and directing
distribution, distributions will be made. We will assist you in making
distribution to the beneficiaries and securing receipts from each
distributee for filing with the court.
Once all receipts are filed, we usually prepare a petition to the
court for an order discharging you as personal representative and closing
the estate.
5-43
2012 Revision
If you have any questions at any time during the administration of

this probate, please do not hesitate to call me.
Very truly yours,
/s/__________________________
[lawyers name]
COMMENT: See 5.1.

CAVEAT: This sample letter is illustrative only. Each lawyer must
expertise in using or modifying this letter.
5-44
2012 Revision
Form 5-3
Petition for Probate of Will and Appointment of


Estate of
____________________,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

ORS 21.170
PETITION FOR PROBATE
OF WILL AND
APPOINTMENT OF
PERSONAL
REPRESENTATIVE
VALUE OF ESTATE IS
NOT MORE THAN
$_________
____________________, petitioner, alleges:

1.
The following information is given with regard to the decedent:
(a)
Name:
(b)
Birth Date:
(c)
Domicile:
(d)
Post Office Address:
(e)
Date of Death:
5-45
2012 Revision
(f)
Place of Death:
(g)
Social Security No.:

2.
The decedent died testate. The will [as ratified and modified by the
(number) codicil] of the decedent and the proof of [its / their] due
execution are presented to the Court herewith. [See the second note
below.] There is no just reason for delay in entering a limited judgment
for appointment of a personal representative. [See ORS 113.035(10)
regarding submission of a copy of the decedents will if the original will
is lost or destroyed, but not revoked.]
3.
Venue is established in _______________ County, Oregon, in that,
at the time of the decedents death, [set forth one or more of grounds
specified in ORS 113.015].
4.
______________, whose post office address is _______________
and whose telephone number is _______________, is nominated as
personal representative [set forth one or more of grounds specified in
ORS 113.085, e.g., under the will of the decedent]. _________ is
qualified to act as personal representative and is not disqualified to serve
as personal representative under the provisions of ORS 113.095. The
decedents will waives any bond requirement and specifies that no bond
will be required of any personal representative of the decedents will.
[See the first Note below.]
5.
Petitioner has made reasonable efforts to identify and locate all the
decedents heirs; their names, relationship to the decedent, and post
office addresses are as follows:
NAME
5-46
2012 Revision
RELATIONSHIP
ADDRESS
6.
The names and post office addresses of the devisees of the
decedent are as follows:
NAME
ADDRESS
[See the second Note below.]

7.
As far as is known to petitioner, the nature, extent, liquidity, and
apparent value of assets of this estate subject to probate are [real /
personal] property with an aggregate value of not less than $__________
[nor more than $________].
8.
The personal representative has employed __________________,
whose post office address is ____________________, and whose
telephone number is __________, as lawyer(s) to represent the personal
representative in the administration of this estate.
9.
Petitioner does not know of any person who asserts an interest in
the estate under subsection (8) or (9) of ORS 113.035, nor does petitioner
know of any person on whose behalf such an interest has been asserted.
[See the second Note below.]
WHEREFORE,
10.
Petitioner prays for a limited judgment:
(a) Declaring this will to be the last will and testament of the
decedent and admitting the same to probate [see the second Note below];
and
(b) Appointing__________________ as personal representative
to serve without bond.
5-47
2012 Revision
DATED: _______________, 20___.

I HEREBY DECLARE THAT THE ABOVE STATEMENT IS
TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF, AND
THAT I UNDERSTAND IT IS MADE FOR USE AS EVIDENCE IN
COURT AND IS SUBJECT TO PENALTY FOR PERJURY.
/s/__________________________
[petitioners name]
Petitioner
PETITIONER:
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 5.2-2(a) to 5.2-2(b). See also, e.g., 5.2-4(a),
5.2-5(a), 5.2-6(a).
NOTE: If a bond is not waived by the will, but waiver or reduction
is appropriate, paragraphs 4 and 9 can be revised to fit these facts as
suggested below:
Waiver: Delete the last sentence of paragraph 4 and
substitute the following language: The decedents will does not
waive bond. No bond is necessary because the personal
representative is the sole beneficiary of the estate and there are no
5-48
2012 Revision
known creditors. It is in the best interests of those interested in this

estate that the personal representatives bond be waived by order of
this court to minimize administration costs. No changes are
needed in paragraph 9.
Reduction, if the bond amount is set but it is less than the
aggregate value of the assets set forth in the petition: Delete the
last sentence of paragraph 4 and substitute the following language:
The decedents will does not waive bond. The personal
representatives bond should be set at $________ by order of this
court to reduce administration costs. The bond amount is less than
the aggregate value contained in this petition. The lesser amount is
requested because there are no known creditors having claims
exceeding $_______ in the aggregate and the estate is liquid.
Paragraph 10(b) should also be revised by deleting . . . to serve
without bond and substituting . . . and fixing the amount of bond
at $_______ issued by a surety company authorized to transact
surety business in the state of Oregon.
NOTE: If any person is asserting an interest in the estate based on a
contention described in subsection (8) or (9) or ORS 113.035 (e.g., the
will is ineffective, see 5.2-2(b)), the petition must be revised accordingly. ORS 113.035(8)(9) requires the petition to include the name and
post office address of any person asserting such an interest.
NOTE: If a devisee is not entitled to receive the devise, paragraph 6
should explain why the devise failed (e.g., [devisees name] predeceased
the decedent on [date of death] and that devisees devise failed or that
devisee wrongfully killed the decedent on [date]).
NOTE: See 5.2-2(b) regarding segregating protected personal
information, such as a Social Security number, from a document
submitted to a court.
COMMENT: See UTCR 2.010 and UTCR 9.030 for the form of
documents, including requirements regarding document title, spacing,
and format. See also ORS 111.205. Also, check for any relevant
supplementary local rules.
5-49
2012 Revision
NOTE: The last page of every petition in the probate court must
address, and bar number of the attorney of record. UTCR 9.030(1). See
also UTCR 2.010(7), which requires that all documents include the
authors name, address, telephone number, and fax number (if any).
5-50
2012 Revision
Form 5-4


Estate of
____________________,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

ORS 21.170
PETITION FOR
ADMINISTRATION OF
INTESTATE ESTATE
AND APPOINTMENT OF
PERSONAL
REPRESENTATIVE
VALUE OF ESTATE IS
NOT MORE THAN
$________
____________________, petitioner, alleges:

1.
(a)
Name:
(b)
Birth Date:
(c)
Domicile:
(d)
(e)
Date of Death:
5-51
2012 Revision
(f)
Place of Death:
(g)

2.
The decedent died intestate. There is no just reason for delay in

entering a limited judgment for appointment of a personal representative.
3.
Venue is established in _______________ County, Oregon, in that,
at the time of the decedents death, [set forth one or more of grounds
specified in ORS 113.015].
4.
Petitioner nominates _______________, whose post office address
is ________________, and whose telephone number is ____________,
as personal representative. _________is qualified to act as personal
representative and is not disqualified to serve as personal representative
under the provisions of ORS 113.095. Petitioner has preference to serve
pursuant to ORS 113.085 because ______________________.
Petitioner requests that the bond of the personal representative be
set at $_________by a surety company authorized to transact surety
business in the state of Oregon to minimize costs of administration. [See
the Note below.]
5.
Petitioner has made reasonable efforts to identify and locate all
the decedents heirs; each heirs name, relationship to the decedent, and
post office address are as follows:
NAME
5-52
2012 Revision
RELATIONSHIP
ADDRESS
6.
As far as is known to petitioner, the nature, extent, liquidity, and
apparent value of assets of this estate subject to probate are [real /
personal] property with an aggregate value of not less than $__________.
7.
The personal representative has employed __________________,
whose address is ___________________, and whose telephone number
is _______________, as lawyer to represent the personal representative
in the administration of this estate.
8.
Petitioner does not know of any person who asserts an interest in
the estate under subsection (8) or (9) of ORS 113.035, nor does petitioner
know of any person on whose behalf such an interest has been asserted.
WHEREFORE,
9.
Petitioner prays for a limited judgment:
(a)
Admitting this estate to administration; and
(b) Appointing _______________ as personal representative

and fixing the amount of bond at $_______ issued by a surety company
authorized to transact surety business in the state of Oregon [see the Note
below].
DATED: _______________, 20___.
5-53
2012 Revision
I HEREBY DECLARE THAT THE ABOVE STATEMENT IS

TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF, AND
THAT I UNDERSTAND IT IS MADE FOR USE AS EVIDENCE IN
COURT AND IS SUBJECT TO PENALTY FOR PERJURY.
/s/__________________________
[petitioners name]
[address]
[telephone no.]
[fax no.]
Petitioner
/s/__________________________
[lawyers name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
Of Attorneys for Petitioner

COMMENT: See 5.2-2(a) to 5.2-2(b). See also, e.g., 5.2-4(a),
5.2-5(a), 5.2-6(a). See UTCR 2.010 and UTCR 9.030 for the form of
documents, including requirements regarding document title, spacing,
and format. See also ORS 111.205.
NOTE: The facts may support either bond waiver or bond reduction.
Paragraphs 4 and 9 can be revised to fit these facts. The following are
suggested revisions of these paragraphs:
Waiver: Delete the last sentence in paragraph 4 and
substitute the following sentence: No bond is necessary because
the personal representative is the sole beneficiary of the estate and
there are no known creditors. Delete from paragraph 9 . . . fixing
the amount of bond at $________ issued by a surety company
5-54
2012 Revision
authorized to transact business in the State of Oregon and

substitute . . . bond to be waived.
Reduction: Add to paragraph 4: The bond amount is less
than the aggregate value contained in this petition. The lesser bond
amount is just and in the best interests of those interested in the
estate because there are no known creditors having claims
exceeding $______ in the aggregate and the estate is liquid.
Paragraph 9 remains unchanged.
NOTE: See 5.2-2(b) regarding segregating protected personal
information, such as a Social Security number, from a document
authors name, address, telephone number, and fax number (if any). Also,
check for any relevant supplementary local rules.
5-55
2012 Revision
Form 5-5
Affidavit of Attesting Witness to Will
AFFIDAVIT OF ATTESTING WITNESS TO WILL
STATE OF __________
)
) ss.
)
I, ____________________, make the following statements:

On the date of the will of ____________________, of which a
photocopy is attached hereto, ____________________ signed the will in
my presence and declared it to be [his / her] will, whereupon, at
[his / her] request and in [his / her] presence I attested the will by signing
my name thereto.
To the best of my knowledge and belief, the testator was at that
time over the age of 18 years and of sound mind.
/s/__________________________
[affiants name]
[address]
[telephone no.]
[fax no.]
5-56
2012 Revision
SUBSCRIBED AND SWORN TO before me on __________,

20___.
/s/__________________________

NOTE: See UTCR 2.010 and UTCR 9.030 and check for any
relevant supplementary local rules.
5-57
2012 Revision
Form 5-6
Affidavit of Witness to Signature of Testator or

Witness
AFFIDAVIT OF WITNESS TO SIGNATURE OF

TESTATOR OR WITNESS
STATE OF __________
)
) ss.
)
I, ____________________, make the following statements:

[Here set forth in some detail your acquaintance with the person
whose signature you undertake to prove.]
I have examined the will of ____________________, to which this
affidavit is attached [or, the will of ____________________, of which a
photocopy is attached hereto], dated ____________________.
I am well acquainted with the signature of ________________.
The signature on the will is genuine.
/s/__________________________
[affiants name]
[address]
[telephone no.]
[fax no.]
5-58
2012 Revision
SUBSCRIBED AND SWORN TO before me on ___________,

20___.
/s/__________________________
COMMENT: See 5.2-4(d).

5-59
2012 Revision
Form 5-7

Appointing Personal Representative

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
)
Case No. _____

LIMITED JUDGMENT
ADMITTING WILL
TO PROBATE AND
APPOINTING PERSONAL
REPRESENTATIVE WITH
FULL POWERS
The Court accepts the petition of __________ for the probate of

the will [, as modified by codicil(s),] of the above-named decedent. There
is no just reason for delay in entering judgment.
IT IS THEREFORE ORDERED AND ADJUDGED that:
(a) The will dated _______________, 20___ [, as modified by
codicil(s),] is hereby admitted to probate;
(b) __________ is appointed as personal representative of the
estate with full powers; and
(c) The personal representative is not required to file a bond,
and letters testamentary will be issued forthwith to the personal
representative in the manner provided by law.
5-60
2012 Revision
DATED: _______________, 20___.
/s/__________________________
[judges name]
Judge
PERSONAL
REPRESENTATIVE:
[name]
[address]
[telephone no.]
[fax no.]
LAWYER FOR PERSONAL
REPRESENTATIVE:
[lawyers name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 5.2-5(d). See UTCR 2.010 and UTCR 9.030 for
the form of documents.
attorney assigned to try the case. UTCR 2.010(7). See also UTCR
2.010(12).
5-61
2012 Revision
Form 5-8
Limited Judgment for Administration of Intestate

Estate and Appointment of Personal
Representative

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
)
)
Case No. _____

LIMITED JUDGMENT
FOR ADMINISTRATION
OF INTESTATE ESTATE
AND APPOINTMENT OF
PERSONAL
REPRESENTATIVE WITH
FULL POWERS
On petition of __________ for administration of the above-named

decedent, the Court finds the allegations of the petition to be true. There
is no just reason for delay in entering judgment.
IT IS THEREFORE ORDERED AND ADJUDGED that:
(a)
The estate is admitted to administration.
(b) ____________________ is appointed

representative of the estate with full powers; and
as
personal
(c) The bond of the personal representative is fixed in the

amount of $__________ to be issued by a surety company authorized to
transact surety business in the state of Oregon, and letters of
administration will be issued forthwith to the personal representative in
the manner provided by law.
5-62
2012 Revision
DATED: _______________, 20___.
/s/__________________________
[judges name]
Judge
PERSONAL
REPRESENTATIVE:
[name]
[address]
[telephone no.]
[fax no.]
LAWYER FOR PERSONAL
REPRESENTATIVE:
[lawyers name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 5.2-5(d). See UTCR 2.010 for the form of
documents. See also UTCR 9.030 and check for any relevant
supplementary local rules.
2.010(12).
5-63
2012 Revision
Form 5-9
Personal Surety Bond

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

PERSONAL SURETY
BOND
We, ____________________, as personal representative and

principal, and ____________________, as surety, do hereby undertake,
jointly and severally, that we will pay to all interested persons in the
above estate a sum not exceeding $_________.
If the personal representative faithfully performs all duties as
personal representative, this bond will be void; otherwise, it will remain
in full force and effect.
DATED: _______________, 20___.
/s/__________________________
[name of personal representative
and principal]
[address ]
[telephone no.]
[fax no.]
/s/__________________________
[suretys name]
[address ]
[telephone no.]
[fax no.]
5-64
2012 Revision
STATE OF __________
)
) ss.
)
I, ____________________, being first duly sworn on oath say: I

am a resident of the state of Oregon; I am worth the sum of not less than
$1,000 over and above all my debts and liabilities, and exclusive of
property exempt from execution.
/s/__________________________
[surety]
20___.
/s/__________________________
APPROVED: _______________, 20___.
/s/__________________________
[judges name]
Judge
COMMENT: See 5.2-6(a) to 5.2-6(d).

5-65
2012 Revision
Form 5-10
Information to Heirs and Devisees (Testate Estate)

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

INFORMATION TO
HEIRS AND DEVISEES
TO: HEIRS AND DEVISEES of the above-named decedent:

[names and addresses of heirs and/or devisees]
The following information is given to you as an heir or devisee of

the above-named decedent, who died on __________, 20___, in
_________ County, Oregon.
Estate proceedings in the decedents estate, bearing the clerks file
number __________, have been commenced and are now pending in the
above-entitled Court wherein the decedents will has been admitted to
probate. On __________, 20___, __________ was duly appointed and is
now serving as personal representative of the estate.
Your rights may be affected by this proceeding; additional
information may be obtained from the records of the Court, the personal
representative, or the lawyer for the personal representative. The names,
addresses, and contact information of the personal representative and the
lawyer for the personal representative are as follows:
5-66
2012 Revision
[name]
[address]
[telephone no.]
Lawyer for the Personal Representative:
[lawyers name]
[address]
[telephone no.]
Under Oregon law, when a will has been admitted to probate, any
interested person may contest the probate of the will or the validity of the
will or assert an interest in the will for any reason specified in ORS
113.075(1), but such an action must be commenced within four months
after the date of delivery or mailing of the information described in ORS
113.145, or four months after the first publication of notice to interested
persons, whichever is later. If you contemplate asserting any of the rights
described in this paragraph, those rights may be barred unless you
proceed as provided in ORS 113.075 within the specified time period.
Respectfully,
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
5-67
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See ORS 113.145. See also 5.2-8.

NOTE: If any person is likely to assert an interest in the estate for
any of the reasons described in subsection (8) or (9) of ORS 113.035, this
notice should include the statement about that claimant required by ORS
113.145(1)(g)(h).
NOTE: The personal representative must also send a copy of this
notice to the Oregon Department of Human Services and the Oregon
Health Authority, plus a copy of the decedents death certificate. See
Form 5-13.
5-68
2012 Revision
Form 5-11
Information to Heirs (Intestate Estate)

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

INFORMATION TO
HEIRS
TO: THE HEIRS of the above-named decedent:

[names and addresses of heirs]
The following information is given to you as an heir of the abovenamed decedent, who died at _______ on __________, 20___, in [place
of death].
Estate proceedings in the decedents estate, bearing the clerks file
number __________, have been commenced and are now pending in the
above-entitled Court. On __________, 20___, the undersigned was duly
appointed and is now serving as personal representative of the estate. So
far as known, the decedent left no will and none has been proved in the
proceedings. Your rights may be affected by this proceeding; additional
information may be obtained from the records of the Court, the
undersigned personal representative, or the lawyer for the personal
representative. The names, addresses, and contact information of the
personal representative and the lawyer for the personal representative are
as follows:
5-69
2012 Revision
[name]
[address]
[telephone no.]
Lawyer for the Personal Representative:
[lawyers name]
[address]
[telephone no.]
ORS 113.075 provides that any person may assert an interest in the
estate for the reason that there exists a will that has not been alleged in
the petition or that the decedent agreed, promised, or represented that the
decedent would make a will or devise. Such an action must be
commenced before the later of four months after the date of delivery or
mailing of the information described in ORS 113.145, or four months
after the first publication of notice to interested persons. If you
contemplate asserting any of the rights described in this paragraph, those
rights may be barred unless you proceed as provided in ORS 113.075
within the specified time period.
Respectfully,
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
5-70
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: If there is any person likely to assert an interest in the estate

for any of the reasons described in subsection (8) or (9) of ORS 113.035,
be sure to include the statement about that claimant required by ORS
113.145(1)(g).
COMMENT: See 5.2-8.
NOTE: The personal representative must also send a copy of this
notice to the Oregon Department of Human Services, plus a copy of the
decedents death certificate. See Form 5-13.
5-71
2012 Revision
Form 5-12
Affidavit of Proof of Mailing or Delivery of

Information to Heirs and Devisees

Estate of
____________________,
)
)
)
)
)
)
)
)
Deceased.
STATE OF __________
Case No. _____

AFFIDAVIT OF PROOF
OF MAILING OR
DELIVERY OF
INFORMATION TO
HEIRS AND DEVISEES
)
) ss.
)
I, ____________________, depose and say that:

I am the personal representative of the estate of the above-named
decedent; on the appointment of the personal representative, I delivered
or mailed to each of the following named persons the information
required by ORS 113.145 in the above-entitled estate; a true copy of the
information so delivered or mailed is attached hereto and made a part
hereof.
The information was delivered by me as set forth below, to each of
the following named persons, personally and in person:
NAME
5-72
2012 Revision
DATE OF DELIVERY
[The information was mailed on _______________, 20___, to each

of the following named persons:
NAME
DATE OF DELIVERY]
Each such information was contained in a separate sealed envelope

with postage thereon fully prepaid, one addressed to each of the persons
at the address as it appears in the petition filed herein for the appointment
of a personal representative.
/s/__________________________
[address]
[telephone no.]
[fax no.]
20___.
/s/__________________________
COMMENT: See 5.2-8. See also ORS 111.218 and ORCP 9 C

(proof of mailing or other delivery).
5-73
2012 Revision
Form 5-13
Affidavit of Mailing Information to Oregon

Department of Human Services

Estate of
____________________,
)
)
)
)
)
)
)
Deceased.
STATE OF __________
Case No. _____

AFFIDAVIT OF MAILING
INFORMATION TO
OREGON DEPARTMENT
OF HUMAN SERVICES
)
) ss.
)
I, ___________, being duly sworn, depose and say that:

I am the lawyer for the personal representative of the above estate;
on the appointment of the personal representative, I mailed a true copy of
Information to Heirs and Devisees (Testate Estate / Intestate Estate) and
the decedents death certificate, as required by ORS 113.145, to the
Department of Human Services and the Oregon Health Authority to the
following addresses:
Oregon Department of Human Services
PO Box 14021
Salem, OR 97309-5024
Salem, OR 97301-1097
5-74
2012 Revision
The Information was mailed on __________, 20___.
/s/__________________________
[affiants name]
[address]
[telephone no.]
[fax no.]
SUBSCRIBED AND SWORN TO before me on ____________,
20___.
/s/__________________________
NOTE: Adapt the form for testate or intestate estate.

COMMENT: See 5.2-8; see also 2.5-5. See ORS 111.218 and
ORCP 9 C (proof of mailing or other delivery).
5-75
2012 Revision
Form 5-14
Waiver of Notice of Information

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

WAIVER OF NOTICE OF
INFORMATION
The undersigned hereby waives notice of the information required

by ORS 113.145(1) to be given by the personal representative to the
undersigned.
DATED: _______________, 20___.
/s/________________________
STATE OF __________
)
) ss.
)
____________________, being duly sworn, depose and say: I am
the undersigned in the above-entitled waiver of notice of information and
the foregoing waiver of notice of information is true as I verily believe.
/s/__________________________
[name]
[address]
[telephone no.]
[fax no.]
5-76
2012 Revision

20___.
/s/__________________________
COMMENT: See 5.2-8; see also 2.5-5. See ORS 111.218 and
ORCP 9 C (proof of mailing or other delivery).
5-77
2012 Revision
Form 5-15
Notice to Interested Persons

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

NOTICE TO INTERESTED
PERSONS
NOTICE IS HEREBY GIVEN that the undersigned has been

appointed personal representative. All persons having claims against the
estate are required to present them, with vouchers attached, to the
undersigned personal representative at [address], within four months
after the date of first publication of this notice, or the claims may be
barred.
All persons whose rights may be affected by the proceedings
may obtain additional information from the records of the Court, the
personal representative, or the lawyers for the personal representative,
_________________________.
Dated and first published on ______________, 20___.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
5-78
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
Attention: Legal Advertising
Please publish the above notice once each week for three
successive weeks and insert the date of first publication in the notice
where required.
Please call and confirm dates of publication.
Very truly yours,

/s/__________________________
[name]
COMMENT: See 5.2-8, 5.2-10(d).

5-79
2012 Revision
Form 5-16
Affidavit of Publication
AFFIDAVIT OF PUBLICATION
STATE OF __________
)
) ss.
)
I, ________________, being first duly sworn, depose and say that

I am the principal clerk of the publisher of the ________________, a
newspaper of general circulation, as defined by ORS chapter 193, printed
and published at ___________________ in the aforesaid county and
state; that the ___________________, a printed copy of which is hereto
annexed, was published in the entire issue of said newspaper for three
insertions in the following issues: ________________________.
/s/__________________________
[clerks name]
20___.
/s/__________________________
COMMENT: See 5.2-8. Proof of notice by publication must be
made in the form required by ORCP 7 F. ORS 111.218(2). ORCP 7
F(2)(b) provides that proof of publication may be made by an affidavit or
a declaration of an employee of the newspaper publishing the notice.
5-80
2012 Revision
Form 5-17
Affidavit of Claiming Successor of Small Estate

(Testate Estate)

)
)
)
)
)
)
)

Estate of
____________________,
Deceased.
STATE OF __________
Case No. _____

AFFIDAVIT OF
CLAIMING SUCCESSOR
OF SMALL ESTATE
(TESTATE ESTATE)
)
) ss.
)
____________________, being first duly sworn, say:

I am a claiming successor, as defined in ORS 114.505(2), to a
portion of the decedents estate. I am hereinafter referred to as affiant.
This affidavit is hereinafter referred to as affidavit. This affidavit is
made pursuant to ORS 114.505114.560.
1.
(a)
Name:
(b)
Age:
(c)
Domicile:
(d)
(e)
5-81
2012 Revision
2.
The decedent died on __________, 20___, at ______; a certified
copy of the decedents death certificate is attached as Exhibit 1.
3.
The decedents property subject to administration in Oregon
consists of the following:
(a) Real property and value thereof: [describe in full as shown
on last deed in mesne chain of title and set value opposite]; and
(b) Personal property and fair-market value thereof: [describe
each item and set value opposite]. [See the caveat in 5.3-2 regarding the
contents of a safe-deposit box.]
4.
No application or petition for the appointment of a personal
representative has been granted in Oregon.
5.
The decedent died testate; the decedents will is attached as Exhibit
2. [See ORS 113.035(10) regarding submission of a copy of the
decedents will if the original will is lost or destroyed, but not revoked.]
6.
The decedents heirs, each heirs relationship to the decedent, and
each heirs last address known to the affiant are as follows:
NAME
RELATIONSHIP
ADDRESS
A copy of the will, and this affidavit showing the date of filing,
will be delivered or mailed to each heir at the heirs last-known address.
7.
The decedents devisees and each devisees last address known to
the affiant are as follows:
5-82
2012 Revision
ADDRESS
NAME
A copy of the will, and a copy of this affidavit showing the date of
filing, will be delivered or mailed to each devisee at the devisees lastknown address.
8.
The interest in the decedents property described in this affidavit to
which each devisee is entitled is:
NAME
INTEREST
9.
Reasonable efforts have been made to ascertain each creditor of the
estate. The expenses of and claims against the estate remaining unpaid or
on account of which the affiant or any other person is entitled to
reimbursement from the estate, including any known or estimated amount
thereof, and the name and address of each creditor, as known to the
affiant, are:
[Name, address, description of expense or claim, and known or
estimated amount of it]
A copy of the affidavit showing the date of filing will be delivered
to each creditor who has not been paid in full or mailed to the creditor at
its last-known address.
10.
The name and address of each person known to the affiant to assert
a claim against the estate that the affiant disputes and the last-known or
estimated amount thereof are as follows:
[Name, address, and known or estimated amount]
5-83
2012 Revision

to each of the above, or mailed to each person at his or her last-known
address.
11.
A copy of this affidavit showing the date of filing will be mailed or
delivered to the Oregon Department of Human Services and the Oregon
Health Authority by depositing the copy of the affidavit in the United
States Postal Service in a sealed envelope, with postage prepaid, to the
PO Box 14021
Salem, OR 97309-5024
Salem, OR 97301-1097
12.
Claims against the estate not listed in this affidavit, or in amounts
larger than those listed in this affidavit, may be barred unless (a) a claim
is presented to the affiant within four months of the filing of this affidavit
at the address set forth in this affidavit, or (b) a personal representative of
the estate is appointed within the time allowed under ORS 114.555.
13.
Any listed claim that the affiant disputes may be barred unless (a) a
petition for summary determination is filed within four months of the
filing of this affidavit, or (b) a personal representative of the estate is
appointed within the time allowed under ORS 114.555.
14.
The address for the purposes of presenting a claim to the affiant is:
______________________________________________________
_____________________________________________________.
5-84
2012 Revision
15.
Any noun or verb used in this affidavit is to be construed as either
singular or plural as the context requires.
16.
Exhibits 1 and 2 attached to this affidavit are each hereby made a
part of this affidavit as though fully set forth at the place where reference
to the exhibit is made.
/s/__________________________
[affiants name]
[address]
[telephone no.]
[fax no.]
20___.
/s/__________________________
[Repeat for each additional claiming successor]
5-85
2012 Revision
STATE OF __________
)
) ss.
)
I, ____________________, join in this affidavit.
/s/__________________________
[affiants name]
[address]
[telephone no.]
[fax no.]

20___.
/s/__________________________
COMMENT: See 5.3-3(a) to 5.3-3(c).

NOTE: See UTCR 2.1002.110 regarding segregating protected
personal information, such as a Social Security number, from a document
5-86
2012 Revision
Form 5-18

(Intestate Estate)

Estate of
____________________,
)
)
)
)
)
)
)
Deceased.
STATE OF __________
Case No. _____

AFFIDAVIT OF
CLAIMING SUCCESSOR
OF SMALL ESTATE
(INTESTATE ESTATE)
)
) ss.
)
____________, being first duly sworn, say:

I am a claiming successor, as defined in ORS 114.505(2), to a
portion of the decedents estate. I am hereinafter referred to as affiant.
This affidavit is hereinafter referred to as affidavit. This affidavit is
made pursuant to ORS 114.505114.560.
1.
(a)
Name:
(b)
Age:
(c)
Domicile:
(d)
(e)

5-87
2012 Revision
2.
The decedent died on ___________, 20___, at [place]; a certified
copy of the decedents death certificate is attached as Exhibit 1.
3.
The decedents property subject to administration in Oregon
consists of the following:
(a) Real property and value thereof: [describe in full as shown
on last deed in mesne chain of title and set value opposite]; and
(b) Personal property and fair-market value thereof: [describe
each item and set value opposite]. [See the caveat in 5.3-2 regarding the
contents of a safe-deposit box.]
4.
No application or petition for the appointment of a personal
representative has been granted in Oregon.
5.
The decedent died intestate.
6.
The decedents heirs, each heirs relationship to the decedent, and
each heirs last address known to the affiant are as follows:
NAME
RELATIONSHIP
ADDRESS
A copy of this affidavit showing the date of filing will be delivered

or mailed to each heir at the heirs last-known address.
5-88
2012 Revision
7.
The interest in the decedents property described in this affidavit to
which each heir is entitled is:
NAME
INTEREST
8.
Reasonable efforts have been made to ascertain each creditor of the
estate. The expense of and claim against the estate remaining unpaid or
on account of which the affiant or any other person is entitled to
reimbursement from the estate, including any known or estimated amount
thereof, and the name and address of each creditor, as known to the
affiant, are:
[Name, address, description of expense or claim, and known or
estimated amount of it]
to each creditor who has not been paid in full or mailed to the creditor at
its last-known address.
9.
The name and address of each person known to the affiant to assert
a claim against the estate that the affiant disputes and the last-known or
estimated amount thereof are as follows:
[Name, address, and known or estimated amount]
to each of the above or mailed to each person at his or her last-known
address.
10.
A copy of this affidavit showing the date of filing will be mailed or
delivered to the Oregon Department of Human Services and the Oregon
Health Authority by depositing the copy of the affidavit in the United
5-89
2012 Revision
States Postal Service in a sealed envelope, with postage prepaid, to the

PO Box 14021
Salem, OR 97309-5024
Salem, OR 97301-1097
11.
Claims against the estate not listed in this affidavit, or in amounts
larger than those listed in this affidavit, may be barred unless (a) a claim
is presented to the affiant within four months of the filing of this affidavit
at the address set forth in this affidavit, or (b) a personal representative of
the estate is appointed within the time allowed under ORS 114.555.
12.
Any listed claim that the affiant disputes may be barred unless (a) a
petition for summary determination is filed within four months of the
filing of this affidavit, or (b) a personal representative of the estate is
appointed within the time allowed under ORS 114.555.
13.
The address for the purposes of presenting a claim to the affiant is:
______________.
14.
Any noun or verb used in this affidavit shall be construed as either
singular or plural as the context requires.
15.
Exhibit 1 attached to this affidavit is hereby made a part of this
affidavit as though fully set forth at the place where reference to the
exhibit is made.
5-90
2012 Revision
/s/__________________________
[affiants name]
[address]
[telephone no.]
[fax no.]
20____.
/s/__________________________
[Repeat for each additional claiming successor]
STATE OF __________
)
) ss.
)
I, _________________, join in this affidavit.
/s/__________________________
[affiants name]
[address]
[telephone no.]
[fax no.]
5-91
2012 Revision

20____.
/s/__________________________
COMMENT: See 5.3-3(a) to 5.3-3(c).

NOTE: See UTCR 2.1002.110 regarding segregating protected
personal information, such as a Social Security number, from a document
5-92
2012 Revision
Chapter 6
SPECIAL CONSIDERATIONS
LESLIE SUTTON, B.S., University of Washington (1998); J.D., Lewis & Clark Law
School (2004); member of the Oregon State Bar since 2010 and the
Washington State Bar Association since 2005; policy analyst, Oregon Council
on Development Disabilities, Salem.
JANICE HATTON, B.A., The College of Idaho (1987); J.D., University of Oregon
School of Law (1990); member of the Oregon State Bar since 1991;
shareholder, Thorp, Purdy, Jewett, Urness & Wilkinson, P.C., Springfield.
The authors acknowledge the contributions of Stuart B. Allen, Tara Hendison, C.
Craig Heath, and Scott McGraw for their work on the prior versions of this chapter.
6.1
6.2
6.3
SPECIAL ADMINISTRATION ............................................... 6-3

6.1-1
General Purpose ............................................................ 6-3
6.1-2
Jurisdiction .................................................................... 6-3
6.1-3
Grounds for Appointment ............................................. 6-4
6.1-4
Qualifications for Appointment .................................... 6-5
6.1-5
Powers and Limitations of Special

Administrator ................................................................ 6-5
6.1-6
Accounting and Compensation..................................... 6-6
SUPPORT OF SURVIVING SPOUSE AND

DEPENDENT CHILDREN DURING
ADMINISTRATION ................................................................ 6-7
6.2-1
Generally....................................................................... 6-7
6.2-2
Procedure for Obtaining Support.................................. 6-7
6.2-3
Nature and Extent of Support ....................................... 6-8
6.2-4
Limitations on Support ................................................. 6-9
SETTING ASIDE THE WHOLE ESTATE ............................. 6-9

6.3-1
General Purpose ............................................................ 6-9
6.3-2
Statutory Provisions for Setting Aside the

Whole Estate ............................................................... 6-10
6-1
2012 Revision
Chapter 6 / Special Considerations
6.3-3
6.4
6.5
6.6
INSOLVENT ESTATES ......................................................... 6-11

6.4-1
Insolvent Estate Defined ............................................. 6-11
6.4-2
Limitations .................................................................. 6-11
ESTATES OF ABSENTEES ................................................... 6-11

6.5-1
Generally ..................................................................... 6-11
6.5-2
Statutory Procedure ..................................................... 6-12
ANCILLARY ADMINISTRATION ....................................... 6-14

6.6-1
6.7
Procedure for Summary Closure ................................. 6-10
Preliminary Considerations ......................................... 6-14
6.6-1(a)
Purpose ............................................................ 6-14
6.6-1(b)
Necessity for Ancillary Administration .......... 6-14
6.6-1(c)
Nonprobate Administration of Real

Property of Nonresident Decedent .................. 6-14
6.6-1(d)
Nonprobate Administration of Personal

Property of Nonresident Decedent .................. 6-15
6.6-1(d)(1)
Release to Foreign Personal

Representative ................................... 6-15
6.6-1(d)(2)
Release of Bank Accounts................. 6-16
6.6-2
Procedure ..................................................................... 6-16
6.6-3
Establishing a Foreign Will......................................... 6-17
6.6-4
Title to and Possession of Property ............................. 6-17
6.6-5
Claims Against the Estate ........................................... 6-17
6.6-6
Distribution.................................................................. 6-17
TAXES REGARDING NONRESIDENT

DECEDENTS .......................................................................... 6-19
6.7-1
Settlement of Disputes Regarding Domicile............... 6-19
6.7-2
Payment of Inheritance Tax by Foreign

Personal Representative .............................................. 6-19
6.7-3
Recovery of Foreign Death Taxes .............................. 6-19
Form 6-1
Petition for Appointment of Special Administrator ......... 6-20
Form 6-2
Order Appointing Special Administrator ......................... 6-22
Form 6-3
Petition for Order Awarding Support ............................... 6-24
6-2
2012 Revision
Special Considerations / Chapter 6
Form 6-4
Answer of Personal Representative to

Petition for Support .......................................................... 6-29
Form 6-5
Order Awarding Temporary Support and

Setting Time for Hearing ................................................. 6-31
Form 6-6
Order Awarding Support to Spouse and

Dependent Children of Decedent..................................... 6-34
Form 6-7
Petition for Order Setting Aside Whole Estate for

Support and Terminating Administration ........................ 6-37
Form 6-8
General Judgment Setting Aside Whole Estate ............... 6-42
6.1
6.1-1
SPECIAL ADMINISTRATION
General Purpose
The purpose of the appointment of a special administrator is to preserve the assets of a decedents estate until the assets can be delivered to
the person fully authorized to handle their administration. 31 AM JUR2D
Executors and Administrators 1051 (2011). See ORS 113.005(1). The
appointment of a special administrator is limited to situations in which
the appointment of a personal representative has been impossible or
untimely, and an emergency exists regarding the preservation of estate
assets. By its very nature, such an appointment is limited in scope to
assets of the estate that are in danger, and only pending the appointment
of a personal representative. 31 AM JUR2D Executors and Administrators
1054 (2011). See Forms 6-1, 6-2.
Probate is significantly an ex parte practice. The lawyer should
review UTCR 5.060 (stipulated and ex parte matters). A motion for an
ex parte order must contain the term ex parte in the caption and must be
accompanied by the proposed order. UTCR 5.060(2).
6.1-2
Jurisdiction
The court with probate jurisdiction may appoint a special

administrator to preserve estate assets. ORS 113.005(1). See Forms 6-1,
6-2.
6-3
2012 Revision
6.1-3
Grounds for Appointment
The statute governing the appointment of special administrators is

ORS 113.005. Under the statute, the court may appoint a special administrator only if, before the appointment of a personal representative:
(1) The decedents property is in danger of loss, injury, or deterioration; or
(2)
Disposition of the decedents remains is required.
ORS 113.005(1).
The statute contemplates an emergency requiring the immediate
attention of a person authorized to act, and a reason why a personal
representative cannot be appointed in time to act. A special administrator
may be appointed only for the emergency situations contemplated by the
statute. Dibble v. Meyer, 203 Or 541, 544545, 278 P2d 901 (1955) (a
special administrator could not be appointed to continue an annulment
suit).
Situations appropriate for the appointment of a special administrator include the following:
(1) Perishable goods need to be sold or protected, and the
personal representative is not immediately available; or
(2) The decedents remains require disposition and no one
authorized by ORS 97.130(2) is able and willing to take the necessary
action.
NOTE: Although ORS 113.005(1) authorizes the appointment of a special administrator for the purpose of disposing of the
decedents remains, the 1997 Legislature amended ORS 97.130 to
remove the special administrator from the list of persons who may
direct disposition of the decedents remains. See 3.3-3(a). The
personal representative is now on the list. ORS 97.130(2)(g).
However, it seems apparent that if no one authorized in ORS
97.130 is available, a special administrator may be appointed.
6-4
2012 Revision
6.1-4
Qualifications for Appointment
ORS 113.005 does not specify any qualifications for a special

administrator. The statute requires only that the special administrator file
a bond in an amount set by the court and conditioned on the special
administrators faithful performance of the duties of the trust. ORS
113.005(2).
Because the appointment of a special administrator is an
emergency proceeding, the statutory preferences in ORS 113.085 for
appointing a personal representative need not be considered. Likewise,
ORS 113.095, listing persons who are not qualified to act as personal
representatives, does not apply to the appointment of a special administrator. See ORS 111.005(26).
PRACTICE TIP: It would be imprudent to propose as special
administrator someone who is not qualified to act as a personal
representative under the provisions of ORS 113.095, even though
the restrictions of this statute do not apply to the appointment of a
special administrator.
6.1-5
Powers and Limitations of Special Administrator
The powers of the special administrator are enumerated in ORS

113.005(3). The special administrator may:
(1) Incur expenses for the funeral, burial, or other disposition of
the decedents remains in a manner suitable to the decedents condition
in life;
(2) Incur expenses for the protection of the property of the
estate; and
(3) Sell perishable property of the estate, whether or not listed in
the petition, if necessary to prevent loss to the estate.
ORS 113.005(4) prohibits the special administrator from:
(1)
Approving or rejecting claims of creditors;
(2)
Paying claims or expenses of administration; or
(3) Taking possession of estate assets other than those in danger

of loss, injury, or deterioration.
6-5
2012 Revision
Historically, special administrators have not been given authority

over real property because it is not likely to dissipate. 31 AM JUR2D
Executors and Administrators 1054 (2011).
The special administrators powers end when the personal
representative is appointed and qualified. ORS 113.005(5). See 31 AM
JUR2D, supra, 1056.
6.1-6
Accounting and Compensation
Within 30 days of the issuance of letters testamentary to a personal

representative, a special administrator must file an account with the court
and deliver to the personal representative the assets of the estate that are
in the possession of the special administrator. ORS 113.005(5). The
accounting should be filed with the court and service made on the personal representative with a time set for filing objections. If the personal
representative objects to the accounting, the court hears the objections.
The court examines the accounting whether or not objections are made.
ORS 113.005(5).
Because the special administrator does not have the power to pay
claims or expenses of the estate, he or she should request approval for the
payment of the fees and expenses as part of the accounting. If approved
by the court, the compensation of the special administrator and the
expenses properly incurred, including attorney fees, are paid as expenses
of administration. ORS 113.005(6).
PRACTICE TIP: In the initial petition, the lawyer may wish to
request that the special administrators fees and costs be paid, upon
court approval, from assets of the estate. This practice should avoid
any argument over compensation once the personal representative
is named and the special administrator is removed. In addition, in
the initial petition, the lawyer may wish to ask the court to authorize a particular form of accounting of the special administrator.
Confirming the form of accounting ahead of time may prevent
unnecessarily lengthy accountings, costs, and fees.
When accounting, the lawyer should be sure to comply with UTCR
9.0509.060, UTCR 9.160, UTCR 9.1809.190, unless the court directs
otherwise. See chapter 11.
6-6
2012 Revision
6.2
SUPPORT OF SURVIVING SPOUSE AND DEPENDENT

CHILDREN DURING ADMINISTRATION
6.2-1
Generally
The probate court has broad discretion in ordering support from a

decedents estate for the decedents surviving spouse and dependent children. Generally, support has priority over inheritances, devises, claims,
and expenses of administration, and support is not charged against the
distributive share of the person receiving it. ORS 114.075. See 7.5-1(a)
to 7.5-3. This priority is limited in the case of an insolvent estate. ORS
114.065. See 6.2-4, 6.4-1 to 6.4-2.
A related benefit available to the surviving spouse and dependent
children is the right to occupy the decedents principal place of abode for
one year after the decedents death. ORS 114.005. For further discussion,
see 7.5-1(a) to 7.5-3.
See 6.3-1 to 6.3-3 regarding setting aside the whole estate for
support of the spouse and dependent children.
6.2-2
Procedure for Obtaining Support
The procedure for obtaining support is outlined in ORS 114.015

114.035. The petition for support may be filed by or on behalf of the
surviving spouse or any dependent child. ORS 114.015(1). The personal
representative may submit the petition. ORS 114.015(2).
The petition should include, at least, the following:
(1) A description of property, other than property of the estate,
available for the support of the surviving spouse and dependent children;
(2)
An estimate of the expenses anticipated for their support;
and
(3) If the petitioner is the personal representative, statements of
the nature and estimated value of the property of the estate and of the
nature and estimated amount of claims, taxes, and expenses of administration. ORS 114.025.
The petition must be served on the personal representative unless
he or she is the petitioner. ORS 114.015(2). Unless the court orders
6-7
2012 Revision
otherwise, notice must be given to all of the persons whose distributive

shares may be diminished if the petition is granted. ORS 114.015(3).
NOTE: Creditors are not entitled to notice of the hearing and
are taken into consideration only if solvency of the estate becomes
an issue. See ORS 114.015(3), 114.065.
If the personal representative is not the petitioner, the personal
representative must file an answer. The answer must include the
statements described in item (3) above. ORS 114.025(2).
A hearing may be held no sooner than five days after notice is
personally served, or 14 days after notice is mailed. ORS 111.215(1)(a)
(b).
See Forms 6-3 to 6-6. See also Forms 6-7 to 6-8 regarding setting
aside the whole estate for support of the spouse and dependent children.
6.2-3
Nature and Extent of Support
The court shall make necessary and reasonable provision from the
estate of a decedent for the support of the spouse and dependent children
of the decedent. ORS 114.015. See ORS 114.025. In a case predating
the current probate code, the court held that support is not limited to mere
subsistence and does not require the recipients to liquidate their assets
before requesting and receiving support. In re Booths Estate, 220 Or
534, 550551, 349 P2d 840 (1960).
NOTE: A list of considerations for the court in support
determinations can be found in J. C. Vance, Annot, Amount of
Allowance from Decedents Estate for Widow & Family Where Not
Fixed by Statute, 1963 WL 13600 (1963) (originally published in
1963 in 90 ALR2d 687, but frequently updated with new cases).
These considerations include the value, size, condition, and
solvency of the estate, as well as the social position and manner of
living of the surviving spouse. See 7.5-2(b).
The form of support ordered by the court may consist of any one or
more of the following: (1) transfer of title to personal property,
(2) transfer of title to real property, or (3) periodic payments of money
during administration of the estate for up to two years after the dece6-8
2012 Revision
dents death. ORS 114.055(1). See 6.2-4 regarding limitations on

insolvent estates.
See Form 6-6.
6.2-4
Limitations on Support
If the court determines that the estate will be insolvent after

provision is made for the support of the surviving spouse and dependent
children, the order of support may not exceed one-half of the estimated
value of the property of the estate. Any periodic payments ordered as
support may not continue for more than one year after the date of the
decedents death. ORS 114.065. See 6.3-1 to 6.3-3.
6.3
6.3-1
SETTING ASIDE THE WHOLE ESTATE
General Purpose
The purpose of summary closure is to speed up the closure of an

estate when the entire net estate is necessary for the support of the
decedents spouse and dependent children. ORS 114.085. The procedure
recognizes the burden placed on persons who were fully dependent on
the decedent before the decedents death.
The procedure applies in favor of the surviving spouse and
dependent children of the deceased, not merely minor children, and
permits the whole net estate to be set aside, if needed, for their reasonable
support. ORS 114.085. The support amount is not limited by the statute,
except by what the court deems reasonable and necessary.
Support in a summary closure differs from support allowed during
administration. In particular, support for purposes of summary closure is
secondary to claims of creditors and expenses of administration. However, because summary closure is a determination of support, the
procedural guidelines of ORS 114.015 must be followed. See Forms 6-7
and 6-8. A complete discussion of these requirements can be found in
6.2-2.
6-9
2012 Revision
6.3-2
Statutory Provisions for Setting Aside the Whole Estate
The basis for terminating administration and setting aside the

whole estate for the surviving spouse and dependent children is set forth
in ORS 114.085. After the expiration of four months following the date
of the first publication of notice to interested persons, the surviving
spouse may file a petition requesting summary closure. See ORS
114.015114.025. The only issue appears to be whether, after payment of
the claims, taxes, and expenses of the estate, the balance of the estate
should be set aside for support of the surviving spouse and dependent
children. If the court finds that the set-aside is necessary, the estate can
be summarily closed and no further proceeding is needed. ORS 114.085.
COMMENT: The court should not allow the summary-closure
statute to be used to defeat the decedents testamentary plan unless
compelling reasons are evident. The potential for inequities exists,
especially in a subsequent-marriage situation.
6.3-3
Procedure for Summary Closure
ORS 114.085 is devoid of any procedural language regarding

setting aside the whole estate for support of the spouse and dependent
children. However, because the issue is one of support for the surviving
spouse and dependent children, it is reasonable to look to ORS 114.015
114.025 for the requirements of the petition for setting aside the entire
estate. The petition should include the following:
(1) A listing of the claims, taxes, and expenses of the estate and
a statement that they have been, or can be, paid;
(2) Facts showing the need to set aside the entire net estate for
the support of the spouse or dependent children;
(3) A list of the property available from the estate to provide for
the support requested and authorizing delivery;
(4)
children;
Other property available to the spouse and dependent
(5) Authorization for payment of the personal representative and

attorney fees; and
6-10
2012 Revision
(6)
A time for hearing objections to the set-aside.
NOTE: Because creditors of the estate have priority in this

case, it appears that the issue of notice to unknown creditors is
relevant. The petitioner should be advised to file an affidavit
outlining the steps taken to discover the decedents creditors. See
ORS 115.003.
6.4
6.4-1
INSOLVENT ESTATES
Insolvent Estate Defined
An estate is insolvent when claims, taxes, and expenses of

administration exceed the value of the estate assets.
6.4-2
Limitations
If the court determines that the estate will be insolvent after

provision is made for the support of the spouse and children, support is
limited to one-half of the estimated value of the estate, and payments of
support may not continue for more than one year after the decedents
death. ORS 114.065. This period is in contrast to a solvent estate, in
which support may be ordered for up to two years. ORS 114.055(1)(c).
NOTE: ORS 115.125(1)(a) and 114.025(1) refer to spouse
and children, while ORS 114.005, 114.015, 114.035, and
114.085 refer to spouse and dependent children. There appears
to be no reason for this inconsistency, and the above statutes
should probably be read as if they referred only to dependent
children. However, the term dependent children is not limited to
minor children of the decedent, but likely includes children who
are poor and unable to maintain themselves. See ORS 109.010.
6.5
6.5-1
ESTATES OF ABSENTEES
Generally
Absentees should be distinguished from incapacitated persons,

whose estates are covered by ORS chapter 125. The procedure to be
6-11
2012 Revision
followed for administration of estates of absentees is found in ORS

chapter 117. The term absentee is not defined by the probate code.
However, ORS 117.005 requires the petitioner to allege certain information in addition to what is required under ORS 113.035 (see 5.2-2(b)).
The petitioner must state:
(1) Whether or not the absentee was an Oregon resident when
last heard from;
(2)
The absentees address at his or her last-known domicile;
and
(3)(a) That, to the petitioners best knowledge and after diligent
search, the absentees whereabouts is and has been unknown for a
period stated of not less than one year, and that the petitioner has reason
to believe and believes the absentee is dead; or (b) that the absentees
death at the time, location and in the circumstances stated in the petition
is probable, and that the fact of death is in doubt solely because of the
failure to find or identify the remains of the absentee; or (c) that the
absentees death is presumed as the result of a particular disaster, natural
or otherwise (see ORS 176.740).
ORS 117.005.
NOTE: ORS 117.005117.095, relating to the administration
of estates of absentees, also apply to nonresident absentees owning
property within Oregon.
6.5-2
Statutory Procedure
A date for hearing a petition filed under ORS 117.005 must be set
not fewer than 30 days after the petition is filed, unless the court sets an
earlier date. ORS 117.015(1). A copy of the notice of the hearing must be
sent to (1) the absentee at his or her last-known address by registered
mail or by certified mail with return receipt and (2) the heirs and devisees
by ordinary mail. ORS 117.015(1). The court may order that additional
notice of the hearing be given by publication or other means. ORS
117.015(2).
The court may appoint a guardian ad litem to appear for the
absentee. The court may direct either the petitioner or the guardian ad
6-12
2012 Revision
litem to use additional methods in searching for the absentee. ORS

117.025.
Once the court has determined that the absentee has died, the court
enters an order and grants letters testamentary or letters of administration,
depending on the courts determination of whether the absentee died
testate or intestate. ORS 117.035. The estate then proceeds as provided
for the estates of other decedents. ORS 117.055. See chapter 5.
If it is later proved that the absentee is alive, letters previously
granted by the court are revoked. Acts of the personal representative
before revocation of letters are valid, but after revocation the personal
representative has no power to act further, except to pay claims allowed
and proved. The personal representative has 30 days after letters testamentary are revoked to file an account, and to turn over the estate assets
to the absentee or to the absentees designated agent. ORS 117.065.
If the personal representative already sold or distributed property
of an absentee, the absentees rights are limited. The absentee has no
rights in the property sold, but only to the proceeds realized from the
sale, or as much of the proceeds as remain in the personal representatives possession when the estate is closed. ORS 117.075(1).
Additionally, for a period of five years after distribution of the estate, the
absentee has the right to recover from the distributees any of the estate or
proceeds of the estate that remain in their possession. The absentee has
no right of recovery, however, from purchasers of property sold by the
distributees. ORS 117.075(2).
NOTE: ORS 117.095 provides that the costs and expenses of
granting letters and their revocation will be borne by the estate.
However, if the petition is rejected, the petitioner is liable for the
costs, expenses, and charges.
6-13
2012 Revision
6.6
6.6-1
ANCILLARY ADMINISTRATION
Preliminary Considerations
6.6-1(a)
Purpose
The purpose of an ancillary administration is to administer

property located in Oregon when the principal administration is in a foreign jurisdiction. The proceeding in Oregon may be necessary to enable
heirs, devisees, or creditors to realize on estate assets or to clear title to
real property located in Oregon.
6.6-1(b)
Necessity for Ancillary Administration
Ancillary administration is generally required when the nonresident decedent owned real property in Oregon. It may also be
necessary for items of personal property when the items have not been
turned over to a foreign personal representative under ORS 116.263.
Ancillary administration is not appropriate for intangible personal
property having no fixed situs in the state. In the case of such intangible
assets, the situs of the property is the decedents domicile. See W. v.
White, 307 Or 296, 300, 766 P2d 383 (1988) (a promissory note
evidencing a debt owing to a nondomiciliary testator had its situs in the
testators domicile, even though the note was secured by a trust deed on
real property in Oregon; thus, the note did not constitute property in
Oregon on which jurisdiction to probate the nondomiciliarys will could
be founded).
6.6-1(c)
Nonprobate Administration of Real Property of

Nonresident Decedent
Title to real property held by a nonresident decedent, as a tenant by

the entirety or jointly with the right of survivorship, does not require
ancillary administration. Title may be cleared by recording a death
certificate in the county where the property is located.
6-14
2012 Revision
Nonsurvivorship real property interests of the nonresident decedent

will generally require ancillary administration to determine heirship and
to cut off claims of creditors.
It may be possible to negotiate with title companies to insure title
to real property without probate. Title insurance can usually be acquired
through the use of an affidavit of heirship, including a statement that the
decedents debts, taxes, and expenses have been paid in full. Title companies traditionally charge an additional fee for insuring titles transferred
through affidavits, rather than through the probate process.
6.6-1(d)
Nonprobate Administration of Personal Property

of Nonresident Decedent
6.6-1(d)(1)
Release to Foreign Personal Representative
Any person who is indebted to the nonresident decedents estate or

who holds personal property belonging to the estate may pay the debt or
deliver the property to the foreign personal representative. ORS 116.263.
The payment or delivery can be made three months or more after the
death of the nonresident decedent, on an affidavit of the foreign personal
representative stating:
(1)
The date of the death of the nonresident decedent;
(2) That no local administration or application therefor is

pending in Oregon; and
(3) That the foreign personal representative is entitled to payment or delivery.
ORS 116.263(1).
Payment or delivery made in good faith on the basis of the
affidavit discharges the debtor or person in possession of the property.
ORS 116.263(2). Payment or delivery may not be made if the debtor or
the person in possession of the nonresident decedents property has been
notified by a resident creditor that the payment or delivery should not be
made. ORS 116.263(3).
6-15
2012 Revision
6.6-1(d)(2)
Release of Bank Accounts
Bank accounts of a nonresident decedent held in a survivorship

account may be withdrawn by the surviving depositor at any time.
Financial institutions will most likely require the beneficiary to provide a
death certificate and to prove identity before the bank releases accounts
in which the decedent held title as trustee or accounts with a payable-ondeath designation.
If the deposit is $25,000 or less and the decedents total deposits in
Oregon do not exceed that sum, a bank account in the name of the
nonresident decedent alone may be (but is not required to be) released:
(1)
To the surviving spouse;
(2) If there is no surviving spouse, to the Oregon Health Authority (OHA) or the Department of Human Services (DHS) on demand of
the OHA or the DHS no fewer than 46 days and no more than 75 days
from the date of the depositors death when there is a preferred claim
under ORS 411.708, 411.795, 416.350;
(3) If there is no surviving spouse and no claim by the OHA or
the DHS, to the depositors surviving children who are 18 years of age or
older;
(4) If there is no surviving spouse, no OHA or DHS claim, and
no surviving children, to the depositors surviving parents; or
(5) If there are none of the above, to the depositors surviving
siblings who are 18 years of age or older.
ORS 708A.430(1).
Provisions similar to those in ORS 708A.430 also apply to a
decedents deposits held by mutual savings banks and credit unions. See
ORS 716.024, 723.466. See also 1.6-1(e).
6.6-2
Procedure
As in most states, Oregon has no statutory provisions specifically

outlining a procedure for estates needing ancillary administration. The
procedures continue to be governed by the statutes pertaining to
domiciliary estates.
6-16
2012 Revision
6.6-3
Establishing a Foreign Will
A foreign will that may operate on property in Oregon may be

admitted to probate in Oregon on petition, by filing a certified copy of
the will and a certified copy of the order admitting the will to probate or
evidencing its establishment in the jurisdiction where the testator died
domiciled. ORS 113.065(1).
If a nonresident decedents will was not probated in the jurisdiction
where the testator died domiciled, the original will can be offered for
probate in Oregon in the same manner as a residents will. If the original
will has been filed in a foreign jurisdiction, a copy of the nonresident
decedents will is acceptable when certified by the clerk of the court
where the will was filed. ORS 111.245.
6.6-4
Title to and Possession of Property
As is the case with respect to a resident decedent, the title to the

decedents property vests in the heirs or devisees, subject to the support
of the surviving spouse and children, the rights of creditors, the right of
the surviving spouse to elect against the will, administration, and sale by
the personal representative. ORS 114.215(1). Once appointed, the
ancillary personal representative becomes entitled to possession of all of
the decedents estate. ORS 114.225. The ancillary personal representative
of a deceased contract vendor has the right to convey title to real property
in Oregon to a contract vendee. ORS 114.333.
6.6-5
Claims Against the Estate
All creditors of the estate may file claims regardless of their

domicile. All of the claims filed in the ancillary estate proceeding are
subject to the same priority for payment as claims in a resident
proceeding. See ORS 115.125. The ancillary personal representative
should see that all of the claims are paid before distributing the estate.
6.6-6
Distribution
When the administration of an estate in Oregon has been

completed and the estate is ready for distribution,
6-17
2012 Revision

the court, upon application by the personal representative, may
authorize the delivery to the personal representative of an estate of a
decedent pending in a foreign jurisdiction of such property as the court
finds appropriate for the payment of debts, taxes or other charges or
for distribution to the distributees of the estate in the foreign
jurisdiction.
ORS 116.163.
Alternatively, the court can adjudge distribution directly to the
heirs or devisees of the estate as determined under Oregon statutes. ORS
116.113. See chapter 11.
In determining whether to petition for distribution of the assets to
the personal representative of the domiciliary jurisdiction or to petition
for distribution to the heirs and devisees in accordance with Oregon
statutes, the following considerations are relevant:
(1) Whether the law covering the distributees share is the same
in both jurisdictions;
(2) The need to construe the will or to determine the amount due
to a distributee;
(3)
The testators intent;
(4) The likelihood of avoiding delay or circuitousness of

procedure;
(5) Whether all of the interested persons appear in the ancillary
administration;
(6) Whether the interested parties have consented to distribution
in the ancillary jurisdiction;
(7)
The location of the asset; and
(8)
The competency of the domiciliary representative.
See Thomas Kay Woolen Mill Co. v. Sprague, 259 F 338 (D Or 1919);
see also 31 Am Jur2d Executors and Administrators 1092 (2011).
6-18
2012 Revision
6.7
TAXES REGARDING NONRESIDENT DECEDENTS
An out-of-state fiduciary should be aware of the possibility of an

Oregon estate tax owed by the estate under ORS chapter 118. The tax is
based on worldwide assets, not just Oregon assets. See chapter 14.
6.7-1
Settlement of Disputes Regarding Domicile
When the Oregon Department of Revenue (DOR) and a taxing

official of another state disagree over a decedents domicile for the
purpose of estate taxes or each claims taxing authority over the same
property, the DOR may negotiate and enter into an agreement with the
other states official and the executor regarding the payment of estate
taxes, interest, and penalties. ORS 118.540. The DOR may also enter into
binding arbitration or into a compromise agreement with the other states
official and the executor addressing the disputed liability for estate taxes.
ORS 118.540.
6.7-2
Payment of Inheritance Tax by Foreign Personal

Representative
A foreign personal representative must pay any estate tax due to

the state of Oregon. Any assignment or transfer of stock or obligations by
the foreign personal representative is invalid unless the Oregon tax is
paid before the transfer. ORS 118.310.
6.7-3
Recovery of Foreign Death Taxes
A foreign personal representative or other person required to pay a

death tax due to the United States or any other state may institute an
action in an Oregon court to recover the proportionate amount of the
tax due from any beneficiary domiciled in Oregon or who owns property
in Oregon subject to attachment. ORS 116.373.
6-19
2012 Revision
Form 6-1
Petition for Appointment of Special Administrator

Estate of
____________________,
)
)
)
)
)
)
)
Deceased.
Case No. _____

PETITION FOR
APPOINTMENT OF
SPECIAL
ADMINISTRATOR
_______________, petitioner, alleges:

1.
The decedent died on or about _______________, 20___.
2.
The decedent, at the time of death, was a resident of Oregon and
left an estate in Oregon requiring administration.
3.
To the knowledge of the petitioner, no personal representative has
been appointed and qualified. The reason for special administration is as
follows:
4.
Property of the decedent is in danger of loss, injury, or
deterioration as follows: [specify the property requiring administration,
as far as known, and the danger of loss, injury, or deterioration to which
it is subject].
Petitioner, pursuant to ORS 113.005, requests the appointment of
_______________ as special administrator of the above estate.
6-20
2012 Revision
DATED: _______________, 20____.

I hereby declare that the above statement is true to the best of
my knowledge and belief, and that I understand it is made for use as
evidence in court and is subject to penalty for perjury.
/s/__________________________
[petitioners name]
[address]
[telephone no.]
[fax no.]
Submitted by:
[lawyers name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 6.1-1 to 6.1-3. It appears that this petition can be
filed and the order entered without notice to interested parties. See ORS
113.005. See UTCR 2.010 for the form of documents, including
requirements regarding document title, spacing, and format. See also
ORS 111.205.
COMMENT: Although UTCR 9.030 does not expressly apply to a
petition for the appointment of a special administrator, the lawyer should
consider it as applicable by implication.
6-21
2012 Revision
Form 6-2
Order Appointing Special Administrator

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

ORDER APPOINTING
SPECIAL
ADMINISTRATOR
Upon the petition of __________ for appointment of a special

administrator, the Court finds that special administration is required
[to preserve the property of the decedent from loss, injury, or
deterioration / to dispose of the remains of the decedent].
IT IS ORDERED that __________ is appointed special
administrator upon filing a bond in the amount of $________.
6-22
2012 Revision
DATED: _______________, 20____.
/s/__________________________
[judges
name]
Judge
COMMENT: See 6.1-1 to 6.1-3. See also ORS 113.005. See

UTCR 2.010 for the form of documents, including requirements
regarding document title, spacing, and format. See also UTCR 9.030.
2.010(12), UTCR 9.030(1)(2).
6-23
2012 Revision
Form 6-3
Petition for Order Awarding Support

Estate of
____________________,
)
)
)
)
)
Deceased.
Case No. _____

PETITION FOR ORDER
AWARDING SUPPORT
____________________, petitioner, alleges [see note below]:

1.
Petitioner is the surviving spouse of the decedent. The dependent
children of petitioner and decedent, who are now in the care and custody
of the petitioner, are:
AGE
NAME
2.
[Under the provisions of the decedents will,] [Property / property]
of the estate is [inherited by / devised to] petitioner and petitioners children as follows:
3.
Property other than property of this estate is available for the
support of the petitioner and the decedents children as follows:
6-24
2012 Revision
[For example:
(a) A Social Security annuity payable to petitioner at the present
rate of $__________ per month;
(b) A checking account formerly in the joint names of petitioner
and the decedent as joint tenants with right of survivorship in the sum of
$__________;
(c) Earnings of petitioner at the present rate of $__________ per
month; and
(d) Residence real property formerly owned by the decedent and
petitioner as tenants by the entirety, described as: _______________ of
the reasonable net value of $__________.]
4.
Petitioner anticipates that payment of the following estimated
expenses will be required for the support of the petitioner and the
decedents dependent children:
[For example:
(a)
$__________ per month for food;
(b) $__________ per month for housing, including mortgage

payments of $__________ per month, including taxes and insurance, on
the residence formerly owned by petitioner as tenant by the entirety with
the decedent; and
(c) The sum of $__________ to cover the expenses of
petitioners son during the 20122013 academic year while enrolled as a
student at ____________________ University.]
5.
It is necessary and reasonable that the following provisions for the
support of the petitioner and the petitioners dependent children be made
from this estate:
6-25
2012 Revision
[For example:
(a) Title to decedents 2000 Ford 4-door automobile be transferred to the petitioner;
(b) The sum of $________ per month, commencing _________,
20___, be paid to the petitioner during the administration of the estate
until the distribution of the estate, but for not more than two years after
the date of the decedents death; and
(c) The sum of $__________ be paid to the petitioner to cover
the expenses of the petitioners son during the 20122013 academic year
at _____________ University.]
6.
Pending the hearing on this petition, it is reasonably necessary for
the welfare of the petitioner and the dependent children of the decedent
that the sum of $__________ be paid to petitioner. [See ORS 114.035.]
7.
The persons whose distributive shares of the estate may be
diminished by granting this petition are:
ADDRESS
NAME
WHEREFORE,
8.
Petitioner prays for an order:
(a) Awarding the petitioner the sum of $__________ as
temporary support pending hearing on this petition and authorizing and
directing the personal representative to pay such sum to petitioner forthwith;
6-26
2012 Revision
(b) Directing service of this petition on the personal representative and that notice of hearing be given to the personal representative and
to the persons named in paragraph 7 above; and
(c) After hearing, awarding to the petitioner and the dependent
children of the decedent necessary and reasonable support from this
estate, as set forth above, plus such additional amounts as to the court
may deem just and reasonable.
DATED: _______________, 20____.
/s/__________________________
[petitioners name]
[address]
[telephone no.]
[fax no.]
[name]
[address]
[telephone no.]
[fax no.]
6-27
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 6.2-2. See also ORS 114.015, 114.025. See UTCR
2.010 and UTCR 9.030 for the form of documents, including
ORS 111.205.
NOTE: The petition may be made by or on behalf of the spouse or
any dependent child. If the petitioner is the personal representative, the
petition must also include, as far as is known, a statement of the nature
and estimated amount of the claims, taxes, and expenses of administration. If the petitioner is the personal representative, the petitioner need
not serve the petition and notice of hearing on him- or herself and need
not file an answer to the petition.
6-28
2012 Revision
Form 6-4

Petition for Support

Estate of
____________________,
)
)
)
)
)
)
Deceased.
Case No. _____

ANSWER OF PERSONAL
REPRESENTATIVE TO
PETITION FOR SUPPORT
The personal representative answers as follows to the petition filed

herein for an order awarding support to the surviving spouse and the
dependent children of the decedent as follows:
1.
As far as known, the nature and estimated value of the property of
the estate are as follows:
REAL PROPERTY
PERSONAL PROPERTY
2.
As far as is known, the estimated amount of the claims, taxes, and
expenses of administration is as follows:
_____________________________________________________.
6-29
2012 Revision
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
[Verification]
COMMENT: See 6.2-2. See also ORS 114.025(2). See UTCR 2.010
for the form of documents, including requirements regarding document
title, spacing, and format. See also UTCR 9.030.
6-30
2012 Revision
Form 6-5

Setting Time for Hearing

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
Case No. _____

ORDER AWARDING
TEMPORARY SUPPORT
AND SETTING TIME FOR
HEARING
A petition has been filed for an order awarding support to the

surviving spouse and dependent children of the decedent. Based on the
petition, the Court finds that the sum of $__________ is reasonably
necessary for the welfare of the decedents surviving spouse and the
dependent children pending hearing on the petition.
Accordingly, IT IS ORDERED that:
(a) The personal representative pay forthwith to ____________,
the decedents surviving spouse, the sum of $__________;
(b) The hearing on the petition be held on _______________,
20___, at __________ ___.m. in the courtroom of this Court at the
____________ County Courthouse in ____________________, Oregon.
(c) A copy of the petition and notice of hearing thereon be
served on the personal representative and that notice of the hearing also
shall be given to the following persons whose distributive shares of the
estate may be diminished by granting the petition:
6-31
2012 Revision
NAME
ADDRESS
DATED:____________________, 20___.
/s/__________________________
[judges name]
Judge
[name]
[address]
[telephone no.]
[fax no.]
6-32
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 6.2-2. See also ORS 114.035. See UTCR 2.010
and UTCR 9.030 for the form of documents.
NOTE: The name, address, telephone number, fax number, e-mail
address, and bar number of the attorney of record must be typed or
printed on the last page of every . . . order. UTCR 9.030(1). The last
page of every order must also include the name, address, and telephone
number of the personal representative. UTCR 9.030(2). See also UTCR
2.010(7), (12).
6-33
2012 Revision
Form 6-6

Dependent Children of Decedent

Estate of
____________________,
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

ORDER AWARDING
SUPPORT TO SPOUSE
AND DEPENDENT
CHILDREN OF
DECEDENT
On petition of ____________________, the decedents surviving

spouse, and after hearing thereon, the Court finds:
1.
Proof has been filed of giving notice of the hearing on the petition
to the personal representative and to all persons whose distributive shares
of the estate may be diminished by granting the petition.
2.
The personal representative has filed an answer to the petition,
setting forth, as far as known, a statement of the nature and estimated
value of the property of the estate, and the nature and estimated amount
of the claims, taxes, and expenses of administration.
3.
The estate is solvent.
4.
The Court having considered the property available for the support
of the decedents surviving spouse and the dependent children other than
6-34
2012 Revision
property of the estate, and property of the estate [inherited by / devised

to] the spouse and children, it is
ORDERED:
5.
[All prior provision for temporary support is terminated.]
6.
The personal representative is authorized and directed to make the
following provision for support of the spouse and the dependent children
of the decedent:
[For example:
(a) Transfer title to the decedents 2000 Ford 4-door automobile
to petitioner;
(b) Pay to the petitioner the sum of $__________ per month,
commencing at the decedents date of death during the administration of
the estate until the distribution of the estate but not more than two years
after the decedents date of death; and
(c) Title to the following real property is vested in
__________________, surviving spouse of the decedent:
ADDRESS
NAME
DATED:____________________, 20___.
/s/__________________________
[judges name]
Judge
6-35
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 6.2-2 to 6.2-3. See also ORS 114.055. See

UTCR 2.010 and UTCR 9.030 for the form of documents.
NOTE: In the probate court, the last page of every petition, motion,
and order must include the name, address, telephone number, fax
number, e-mail address, and bar number of the attorney of record.
UTCR 9.030(1). The last page of every order must also include the name,
address, and telephone number of the personal representative. UTCR
9.030(2). See also UTCR 2.010(7), (12).
6-36
2012 Revision
Form 6-7

Support and Terminating Administration

Estate of
____________________,
)
)
)
)
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

PETITION FOR ORDER
SETTING ASIDE WHOLE
ESTATE FOR SUPPORT
AND PETITION FOR
GENERAL JUDGMENT
OF FINAL
DISTRIBUTION AND
SUMMARILY CLOSING
ESTATE
____________________, personal representative, alleges:

1.
____________________ is the surviving spouse of the decedent.
The dependent children of the decedent who are now in the care and
custody of petitioner are:
NAME
AGE
6-37
2012 Revision
2.
[Under the provisions of the decedents will,] [The / the] [entire]
estate is [inherited by / devised to] ___________________ and [his / her]
children. [See note below.]
3.
More than four months have expired since the date of the first
publication of notice to interested persons.
4.
The personal representative has been informed by the surviving
spouse that property other than property of this estate is available for
[his / her] support of the decedents children as follows:
[For example:
(a) A Social Security annuity payable to __________________
at the present rate of $__________ per month;
(b) A checking account formerly in the joint names of
______________ and decedent as joint tenants with right of survivorship
with a current balance of $__________; and
(c) Residence real property formerly owned by the decedent and
_____________________________ as tenants by the entirety, described
as: __________________ of the reasonable net value of $__________.]
5.
Petitioner has been informed by _________________ that [he /
she] anticipates that payment of the following estimated expenses will be
required for [his / her] support and the support of the decedents children:
[For example:
(a) $__________ per month for housing, including mortgage
payments; and
6-38
2012 Revision
(b) $__________ per month (including taxes and insurance) on

residence formerly owned as tenant by the entirety with the decedent.]
6.
On _______________, 20___, an order was entered awarding
support for the decedents surviving spouse and children as follows:
__________________________________________________________.
7.
As far as is known, the nature and estimated value of the property
of the estate now on hand are: __________________________________.
8.
The nature and estimated amount of the claims, taxes, and
expenses of administration still unsatisfied are: _____________________
__________________________________________________________.
9.
All Oregon income, estate, and personal property taxes, if any, due
from this estate or on account of this decedent have been paid and
appropriate releases are filed herewith.
10.
The personal representative has waived any fee for [his / her]
services. A reasonable fee for the services of the personal representatives
attorney is the sum of $__________.
11.
Support of the decedents spouse and the dependent children
requires that the whole remaining estate, after payment of claims, taxes,
and administration expenses, be set aside for such support.
6-39
2012 Revision
WHEREFORE,
12.
Petitioner prays for an order and general judgment as follows:
(a) Directing the payment of all of the remaining claims, taxes,
and expenses of administration as set forth above;
(b) Directing the personal representative to set aside to
_____________ for [his / her] support and the dependent children all of
the remaining assets of the estate and directing the personal representative to distribute the remaining assets of the estate to ___________;
and
(c) Upon filing receipts therefor, closing the estate and
discharging the personal representative.
DATED:____________________, 20___.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
6-40
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: In paragraph 2, insert appropriate language to indicate

devolution of property if a testate estate.
COMMENT: See 6.3-1 to 6.3-3, 6.2-2. See also ORS 114.085. See
UTCR 2.010 and UTCR 9.030 for the form of documents, including
UTCR 5.080 (statement for attorney fees, costs, and disbursements),
UTCR 9.060 (fees in estates).
UTCR 9.030(1). See also UTCR 2.010(7), which requires that all documents include the authors name, address, telephone number, and fax
number (if any).
6-41
2012 Revision
Form 6-8
General Judgment Setting Aside Whole Estate

Estate of
____________________,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

ORDER SETTING
ASIDE WHOLE ESTATE
FOR SUPPORT OF
SPOUSE AND
DEPENDENT CHILDREN
OF DECEDENT;
GENERAL JUDGMENT
OF FINAL
DISTRIBUTION AND
SUMMARILY CLOSING
ESTATE
The personal representative having filed a petition setting aside the

whole estate for support of the spouse and the dependent children of the
decedent pursuant to ORS 114.085, and it appearing that notice has been
provided to the persons entitled thereto, and the time for filing objections
has expired and no objections have been filed herein, the Court finds:
1.
__________ is the surviving spouse of the above decedent. The
dependent children of __________ and the decedent who are now in the
care and custody of __________ are:
6-42
2012 Revision
NAME
AGE
2.
[Under the provisions of the decedents will,] [The / the] [entire]
estate is [inherited by / devised to] __________ and the children. [See
note below.]
3.
More than four months have expired since the date of the first
publication of notice to interested persons.
4.
All Oregon income, estate, and personal property taxes, if any, due
from this estate or on account of this decedent have been paid, and
appropriate releases have been filed herein.
5.
The personal representative has waived any fee for services. A
reasonable fee for the services of the personal representatives attorney is
the sum of $__________.
6.
The estate is solvent.
7.
Reasonable provision for support of the decedents surviving
spouse and dependent children warrants that the whole estate remaining
after payment of the claims, taxes, and expenses of administration be set
aside for such support.
THEREFORE,
6-43
2012 Revision
8.
IT IS ORDERED AND ADJUDGED as follows:
(a) Attorneys fees for the personal representative are approved
in the amount of $_______, and the personal representative is directed to
pay the fee and all of the other claims, taxes, and expenses of
administration still unsatisfied;
(b) The remaining assets of the estate after such payment are set
aside and vested in __________ for [his / her] support and the dependent
children; the personal representative is directed to distribute such assets
to __________; and
(c) Upon filing receipts therefor or other evidence satisfactory
to the Court that distribution has been made, this estate shall be closed
and the personal representative shall be discharged.
DATED: _______________, 20____.
/s/__________________________
[judges name]
Judge
NOTE: In paragraph 2, insert appropriate language to indicate

devolution of property if a testate estate.
COMMENT: See 6.3-1 to 6.3-3, 6.2-2. See also ORS 114.085. See
UTCR 5.080 (statement for attorney fees, costs, and disbursements),
UTCR 9.060 (fees in estates).
6-44
2012 Revision
Chapter 7
INITIAL RESPONSIBILITIES AND LIABILITIES OF
PERSONAL REPRESENTATIVE
WILLIAM D. BREWER, B.S., Willamette University (1971); J.D. (magna cum laude),
Lewis & Clark Law School (1985); member of the Oregon State Bar since
1985; partner, Hershner Hunter, LLP, Eugene.
NICHOLAS M. FROST, B.A., J.D., University of Michigan (2003, 2006); member of
the Illinois State Bar Association since 2006 and the Oregon State Bar since
2010; associate, Hershner Hunter, LLP, Eugene.
The authors gratefully recognize the work of David N. Andrews, who collaborated on
the previous edition of this chapter.
7.1
7.2
LAWYERS INSTRUCTIONS TO PERSONAL

REPRESENTATIVE................................................................. 7-5
7.1-1
Personal Representative Is the Client ........................... 7-5
7.1-2
Clear Division of Responsibilities ................................ 7-6
7.1-3
Lawyers Instructions for Personal

Representative............................................................... 7-6
LIABILITIES OF PERSONAL REPRESENTATIVE ........... 7-14

7.2-1
Fiduciary Duties.......................................................... 7-14
7.2-2
Removal of Personal Representative .......................... 7-16
7.2-3
Personal Liability to Persons Interested in the

Estate........................................................................... 7-17
7.2-4
General Principles of Liability ................................... 7-17
7.2-4(a)
Specific Situations........................................... 7-18
7.2-4(a)(1)
Basis for Liability ............................. 7-18
7.2-4(a)(2)
Continuation of Decedents
Business ............................................ 7-19
7.2-4(a)(3)
Environmental Concerns .................. 7-19
7.2-4(a)(4)
Search for Claimants ......................... 7-20
7.2-4(a)(5)
Copersonal Representatives .............. 7-21

7-1
2012 Revision
Chapter 7 / Initial Responsibilities, Liabilities of Personal Representative
7.2-4(b)
7.2-4(b)(1)
Discharge After Partial

Distribution ........................................ 7-21
7.2-4(b)(2)
Approval of Final Account and

Discharge ........................................... 7-21
7.2-4(b)(3)
Laches ................................................ 7-22
7.2-4(b)(4)
Consent, Waiver, and Estoppel ......... 7-23
7.2-4(c)
Liability in Contract .......................... 7-23
7.2-4(c)(2)
Liability in Tort ................................. 7-24
Self-Dealing ..................................................... 7-24
7.2-4(d)(1)
Purchase of Estate Property............... 7-24
7.2-4(d)(2)
Transactions with Beneficiaries ........ 7-25
NOTICES ................................................................................. 7-25

7.3-1
To Heirs, Devisees, and Interested Persons ................ 7-25
7.3-1(a)
Generally ......................................................... 7-25
7.3-1(b)
Effect of Failure to Notify ............................... 7-26
7.3-2
Publication of Notice to Interested Persons ................ 7-26
7.3-2(a)
Generally ......................................................... 7-26
7.3-2(b)
Effect of Failure to Publish.............................. 7-27
7.3-2(c)
Successor Personal Representative ................. 7-28
7.3-3
7.4
Liability to Third Persons ................................ 7-23
7.2-4(c)(1)
7.2-4(d)
7.3
Defenses to Liability........................................ 7-21
Diligent Search for and Notice to Claimants .............. 7-28
7.3-3(a)
Generally ......................................................... 7-28
7.3-3(b)
Failure to Make Search or Give Notice ........... 7-29
REPORTING ASSETS ............................................................ 7-31

7.4-1
Identifying Assets........................................................ 7-31
7.4-2
The Inventory .............................................................. 7-31
7-2
2012 Revision
7.4-2(a)
Filing the Inventory ......................................... 7-31
7.4-2(b)
Supplemental Inventory................................... 7-33
7.4-2(c)
Appraisal of Property ...................................... 7-33
7.4-2(d)
Requirements for Tax Purposes ...................... 7-34
Initial Responsibilities, Liabilities of Personal Representative / Chapter 7
7.4-3
7.5
7.4-3(a)
Generally ......................................................... 7-35
7.4-3(b)
Real Property................................................... 7-35
7.4-3(c)
Stocks and Bonds ............................................ 7-36
7.4-3(d)
Mutual Funds .................................................. 7-36
7.4-3(e)
Mortgages, Notes, and Contracts .................... 7-36
7.4-3(f)
Cash and Bank Accounts ................................ 7-37
7.4-3(g)
Household Goods and Personal Effects .......... 7-37
7.4-3(h)
Antiques, Art Work, Coins, Jewelry, etc. ....... 7-37
7.4-3(i)
Community Property in Name of

Decedent .......................................................... 7-37
7.4-3(j)
Cemetery Lots ................................................. 7-38
7.4-3(k)
Annuities, Life Estates, and Remainders ........ 7-38
7.4-4
Assets Outside Oregon ............................................... 7-38
7.4-5
Incomplete Inventory .................................................. 7-38
7.4-6
Ancillary Probate ........................................................ 7-39
PROVIDING FOR SPOUSE AND CHILDREN ................... 7-39

7.5-1
Occupancy of Family Home ....................................... 7-39
7.5-1(a)
Generally ......................................................... 7-39
7.5-1(b)
Duties of Occupants ........................................ 7-40
7.5-2
Support of Spouse and Children ................................. 7-40
7.5-2(a)
Generally ......................................................... 7-40
7.5-2(b)
Considerations in Determining Support ......... 7-41
7.5-2(c)
Priority............................................................. 7-41
7.5-2(d)
Modification and Termination of

Support ............................................................ 7-42
7.5-3
7.6
Form of the Inventory ................................................. 7-35
Setting Apart the Entire Estate ................................... 7-42
INITIAL TAX MATTERS...................................................... 7-42

7.6-1
Introduction................................................................. 7-42
7.6-2
Gathering Information ................................................ 7-42
7.6-3
Notices and Applications ............................................ 7-43

7-3
2012 Revision
7.6-3(a)
Income Taxes ................................................... 7-43
7.6-3(b)
Property Tax Exemption for Veterans............. 7-44
7.6-4
Due Dates and Filing Requirements ........................... 7-44
7.6-4(a)
Due Dates ........................................................ 7-44
7.6-4(b)
Filing Requirements ........................................ 7-45
7.6-5
Availability of Deductions and Special

Provisions .................................................................... 7-47
7.6-6
Elections ...................................................................... 7-48
7.6-6(a)
Income Tax Returns ........................................ 7-48
7.6-6(b)
Disclaimers ...................................................... 7-50
7.6-6(c)
Personal Representatives Compensation ....... 7-51
7.6-6(d)
Accounting Method, Fiscal Year..................... 7-51
7.6-6(e)
Trust Election to Be Taxed as Estate;

65-Day Rule ..................................................... 7-51
7.6-6(f)
Medical Expenses ............................................ 7-52
7.6-6(g)
Interest on Savings Bonds ............................... 7-52
7.6-6(h)
Valuation Elections ......................................... 7-52
7.6-6(i)
Administration Expenses ................................. 7-53
7.6-6(j)
Extension of Time to Pay ................................ 7-53
7.6-6(k)
Qualified Terminable Interest Property ........... 7-54
7.6-6(l)
Oregon Special Marital Property ..................... 7-54
7.6-6(m) Gain or Loss Recognition ................................ 7-55

7.6-6(n)
Partnership Elections ....................................... 7-56
7.6-6(o)
Review Payout Options ................................... 7-56
7.6-6(p)
Generation-Skipping Transfers ....................... 7-56
Form 7-1
Inventory of Property of Decedents Estate ..................... 7-57
Form 7-2
Supplemental Inventory ................................................... 7-61
Form 7-3
Amended Inventory .......................................................... 7-63
7-4
2012 Revision
7.1 LAWYERS INSTRUCTIONS TO PERSONAL

REPRESENTATIVE
7.1-1
Personal Representative Is the Client
Under Oregon law, a lawyer for a personal representative represents the personal representative and not the estate or the beneficiaries
as such. OSB Legal Ethics Op No 2005-62. See also OSB Legal Ethics
Op No 2005-119. The lawyer is employed to assist the personal
representative in the administration of the estate, and to perform acts of
administration . . . on behalf of the personal representative. ORS
114.305(18). See also ORS 113.135.
The same rule applies to lawyers representing trustees. [W]hen
an attorney undertakes to represent a fiduciary, he or she represents only
the fiduciary and does not, at the same time, maintain an attorney-client
relationship with those to whom the fiduciary-client owes a duty.
Roberts v. Fearey, 162 Or App 546, 553, 986 P2d 690 (1999). The
lawyer may represent the personal representative in his or her fiduciary
capacity and in his or her individual capacity as a beneficiary, even if
the personal representatives interest as a beneficiary is in conflict with
the interests of other beneficiaries. OSB Legal Ethics Op No 2005-119.
Idaho and Washington have reached similar conclusions. See THE
ETHICAL OREGON LAWYER 5.6 (Oregon CLE 2006).
A lawyer representing the personal representative may also
represent one or more beneficiaries, if doing so does not create a current
client conflict under Oregon RPC 1.7. See OSB Legal Ethics Op No
2005-119, n 2.
PRACTICE TIP: A lawyer should be careful not to blur the
lines of representation by accidentally appearing to represent estate
or trust beneficiaries other than the fiduciary. See Roberts, 162 Or
App at 553. Blurring the lines of representation can be a problem if
beneficiaries call the personal representatives lawyer with
questions about the estate. The lawyer should advise the beneficiaries in the first written communication about the estate that the
lawyer represents the personal representative, and not the bene-
7-5
2012 Revision
ficiaries or the estate itself. Reminders may be necessary if

beneficiaries appear not to understand.
PRACTICE TIP: The Oregon State Bar Professional Liability
Fund has dealt with claims arising from lawyers who work with
personal representatives who allowed their personal goals as beneficiaries to interfere with their duty to the estate. Lawyers should
remind the personal representative of his or her fiduciary duties in
that situation.
In Reynolds v. Schrock, 341 Or 338, 340, 142 P3d 1062 (2006),
the Oregon Supreme Court held that a lawyer may not be held jointly
liable with a client for the clients breach of a fiduciary duty unless the
third party shows that the lawyer was acting outside the scope of the
lawyer-client relationship.
See 7.1-2 to 7.1-3.
7.1-2
Clear Division of Responsibilities
Early in the process of the administration of an estate, the lawyer

should discuss with the personal representative the division of responsibilities, including the role of other professionals, such as accountants
and investment advisors. The summary of duties mailed by the probate
court to each individual fiduciary may provide a useful framework for
discussing the personal representatives duties and the hidden pitfalls.
Personal representatives who fail to follow basic fiduciary principles are
a frequent cause of conflict in probate administration. See 7.1-3.
7.1-3
Lawyers Instructions for Personal Representative
Generally, the lawyer should discuss the following matters with

the personal representative:
(1) Outline Obligations. The lawyer should explain the major
obligations of a personal representative: (a) to discover, preserve, and
collect income from all assets; (b) to notify all interested persons; (c) to
pay appropriate obligations and taxes; (d) to distribute the assets in
accordance with the decedents will, or the laws of intestate succession;
and (e) to close the estate.
7-6
2012 Revision
(2) Division of Responsibilities Regarding Assets. The lawyer

should discuss with the personal representative the division of responsibilities between the lawyer and the client, and with other professionals,
with respect to locating assets, preparing the inventory, determining
values, and deciding whether or not appraisers are to be employed.
(3) Commingling of Assets. Many personal representatives,
particularly a personal representative who is the major beneficiary, will
not understand the need to strictly segregate the estates funds from the
personal representatives own funds. The lawyer should stress that
courts look harshly on commingling assets and emphasize the need to
keep funds separate.
(4) Bank Accounts. The estate will need a separate bank
account or accounts, and all of the decedents bank accounts should be
transferred to the estate account. The bank will require certified copies
of the letters testamentary and a taxpayer identification number to open
the new account(s). Banks and savings institutions will usually permit
withdrawal of savings certificates and certificates of deposit without
penalty following the death of the depositor. However, the personal
representative should be certain of the institutions policy before withdrawing time deposits.
PRACTICE TIP: Asking the accountant who will be filing the
estates fiduciary income tax return to obtain the taxpayer identification number for the estate should be done early in the process.
Doing so will get the accountant involved early in the process,
allowing him or her to make tax planning suggestions that the
personal representative can use to the estates advantage when
planning the administration of the estate.
PRACTICE TIP: Because of the importance of maintaining
accurate records for preparing the final account, it is good practice
for the lawyer to keep the check register for the personal representative, to handle all deposits, to write checks for the personal
representatives signature, and to set up the account to prohibit use
of counter checks or ATM access by the personal representative.
Setting up the accounts in this way will discourage the personal
7-7
2012 Revision
representative from commingling funds and will simplify the

preparation of any required accountings.
(5) Income Tax Returns. The personal representative should
locate and review at least the last three years of the decedents income
tax returns for future use. See 7.6-2 to 7.7.6-3(a).
The lawyer should also remind the personal representative of the
tax accounting responsibilities during the probate period and discuss the
estate with the accountant to address any tax problems that can
reasonably be anticipated.
PRACTICE TIP: The lawyer should advise the personal
representative to consider hiring the decedents accountant to prepare the decedents final income tax return. The Oregon State Bar
Professional Liability Fund has dealt with claims in which it is
alleged that the accountant did not have clear instructions to file
the decedents final return.
(6) Life Insurance Claims. The personal representative has no
direct responsibility for collecting life insurance proceeds payable to
named beneficiaries, because life insurance policies are not assets of the
estate. However, the personal representative is often the person best
positioned to know what policies exist, to find records of the contracts,
and to render assistance in collecting any insurance proceeds. Insurance
payable to the estate (either because there is no beneficiary or because
the estate is named) will, of course, be treated as any other probate
asset.
Because IRS Form 712 (Life Insurance Statement), issued by the
insurance company, must be filed if a federal or Oregon estate tax return
is required, the personal representative or lawyer should request Form
712 from the life insurance company, in writing, to assure receipt in a
timely manner. Most insurance companies will not issue Form 712
unless requested to do so.
PRACTICE TIP: Life insurance policies may be associated
with the decedents health or with dental insurance policies, bank
7-8
2012 Revision
accounts, credit union accounts, credit cards, employee benefit

plans, home mortgage, or other accounts or assets.
PRACTICE TIP: If the estate or personal representative is not a
beneficiary of a policy, the insurance company likely will not
discuss the policy with the personal representative. If this is the
case, the personal representative should send the company a death
certificate and contact information for the named beneficiaries.
(7) Other Insurance. The personal representative should
examine the decedents other insurance policies, such as fire, theft,
casualty, liability, health, and accident policies. When appropriate, he or
she should make insurance claims. In general, coverage of assets passing into the hands of the personal representative must be maintained,
and increased when inadequate. Among the matters to be determined
are:
(a) Whether the insurance is for replacement cost and, if not,
whether the coverage should be changed to replacement cost;
(b) If the policy is for replacement cost, whether the amount of
insurance is sufficient for the replacement cost provision and, if the
amount is insufficient, whether it should be increased;
(c) Whether the home insurance policy will be continued if the
home is vacant (the decedents policy will address coverage after
vacancy; some policies will cancel the insurance after the property has
been vacant for a specified period of time);
PRACTICE TIP: Many policies covering vacant property
exclude coverage for damage from vandalism, malicious mischief,
or broken glass. Most policies also exclude coverage for damage to
or resulting from any plumbing, heating, air-conditioning, or
sprinkler system while the dwelling is vacant or unoccupied, unless
reasonable care has been used to maintain the heating system or to
shut off the water supply and drain the system and appliances of
water. The personal representative should discuss the policy terms
with the insurance agent, including the policys definition of
vacant and, if necessary, change policies or add a rider providing
better coverage;
7-9
2012 Revision
(d)
Whether earthquake and flood insurance should be obtained;
(e) What the policy limits are for property such as silver,
jewelry, furs, guns, etc. (if coverage is inadequate, the personal representative should determine whether such items should be specially insured or
moved to safer storage);
(f)
Whether liability policies, such as the automobile policy,
should be continued;
(g) Whether any umbrella policy should be continued or, if none
exists, whether one should be obtained; and
(h) Whether business interests, commercial properties, or other
special interests require consultation with the insurance adviser.
PRACTICE TIP: The inventory (see 7.4-1 to 7.4-5) should
be assembled quickly, even if values are not yet finally established,
so that the insurance coverage can be reviewed again in light of the
property discovered. The personal representative should keep in
mind that fair-market value and replacement cost are not the same.
Some insurers automatically extend coverage under the homeowners policy to the legal representative of the deceased, but only with
respect to the premises and property of the deceased covered under the
policy at the time of death. Some policies define insured to include the
person with proper temporary custody of the property until appointment
and qualification of a legal representative.
The personal representative should immediately notify the
insurance carriers of the decedents death, and have them substitute him
or her as the insured. The personal representative should also consider
whether the provisions of ORS 114.215 (regarding the immediate vesting of title in the heirs or devisees) suggest that the heirs or devisees
should also be named as insureds.
PRACTICE TIP: The personal representative should cancel
policies of insurance that cover risks that ended with the death of
the decedent, such as health and accident, medical and dental, and
errors and omissions policies. The personal representative should
7-10
2012 Revision
also stop any automatic withdrawals of premiums from the

decedents bank account, and apply for the refund of any unearned
premiums.
(8) Social Security. In addition to the Social Security benefits
that may be payable to survivors, medical, hospital, and funeral benefits
for the decedent may be payable to the personal representative or the
surviving spouse.
(9) Mail. Arrangements should be made for forwarding the
decedents mail to the personal representative or, even better, to the
lawyer. The post office provides cards for giving notice of forwarding
mail. Important information concerning assets and liabilities may be lost
if the mail is not forwarded. If a surviving spouse is not the personal
representative, forwarding the mail may not be practical. For decedents
who transacted business on the Internet, the personal representative may
need to access the decedents e-mail and Internet banking and other
accounts.
(10) Outline of Estate Plan. It is useful for the attorney to
prepare an outline of the dispositive terms of the will early in the
process, especially if there are specific or general devises, tax-planning
trusts, or other complicating factors. Preparing the outline may uncover
issues that would otherwise be missed. The outline becomes a useful
guide during administration, as well as for explaining the will to the
personal representative and devisees. The earlier an outline is prepared,
the more useful it will be. Understanding and planning the administration of the estate at a very early date improves efficiency and avoids
mistakes.
(11) Cash Flow. Many estates experience cash flow problems. It
is helpful to determine as early as possible the cash needs of the estate,
and to develop a strategy to generate that cash. The personal representative should consider bills, court fees, support needs, income and estate
taxes, and any other cash needs that may arise.
(12) Asset Sales. Specifically devised property cannot be sold
without authorization in the will or a court order. ORS 114.325(2)(b).
Family sentiment may dictate against sales if other property is available.
7-11
2012 Revision
The Oregon State Bar Professional Liability Fund has received claims
because the personal representative sold property that family members
wanted, or conducted a sale without giving the beneficiaries a chance to
bid on the property.
(13) Disclaimers. Disclaimers are powerful postmortem planning tools if used properly. To be effective for gift tax purposes, most
disclaimers must be made within nine months after the decedents
death. See IRC 2518(b)(2). Note that for decedents dying in 2010, the
time for making a disclaimer was extended by 301(d)(1)(c) of the 2010
Tax Act, Pub L No 111-312, 111th Cong., 2nd Sess (2010). See also the
Oregon Uniform Disclaimer of Property Interests Act, ORS 105.623
105.649, which does not impose a time limit on disclaimers. See also
ORS 105.645, as amended by 2011 Or Laws ch 526, 16. For a more
complete discussion of disclaimers, see 8.3-2(a) to 8.3-2(f). The
Oregon State Bar Professional Liability Fund has dealt with claims
concerning disclaimers that were not filed within the time limits
imposed by IRC 2518(b)(2).
(14) Environmental Hazards. As early as possible, the lawyer
should try to determine whether any property belonging to the decedent
has been environmentally contaminated. See 7.2-4(a)(3), 10.8-4 to
10.8-4(d).
PRACTICE TIP: Under OAR 340-122-0140, only financial
institutions serving in a fiduciary capacity, but not individuals
serving as personal representatives, are protected from potential
personal liability if the estate includes contaminated property.
Therefore, the nominated individual personal representative should
consider declining the appointment if the estate might contain
contaminated property. In light of the favorable treatment given to
banks and trust companies by the rule, it may be wise to nominate
a bank or a trust company as the personal representative.
(15) S Corporation Stock. If the decedent owned stock in an S
corporation, the lawyer should immediately consider the effect of the
decedents will on the S election. The transfer of shares to an ineligible
shareholder, such as a corporation, partnership, nonresident alien, and
7-12
2012 Revision
certain trusts, can cost the corporation its S election. See IRC
1361(b)(1). See also 1 ADVISING OREGON BUSINESSES 13.713.13
(Oregon CLE 2001 & Supp 2007). In addition, care must be taken to
avoid having more than 100 shareholders. IRC 1361(b)(1)(A).
(16) Bond Requirements. If the will does not provide for waiver
of the bond required by ORS 113.105, or if the personal representative
is not the sole heir and devisee, the individual personal representative
will need to obtain a bond. Corporate personal representatives are
exempt from the bond requirement by ORS 113.105(3), as are certain
other persons described in ORS 113.105(1). Under ORS 113.105, the
court has the authority to require a bond, notwithstanding a provision in
the will that no bond is required. Local practice in some counties
requires a bond of out-of-state personal representatives. ORS
113.105(4) allows the court to waive the bond only if all of the heirs and
devisees consent in writing and the agreement is filed with the petition
for the appointment of the personal representative.
COMMENT: It may be possible to persuade a court to agree to
waive bond without complying with the requirement that all of the
heirs and devisees consent, but this could invalidate the appointment of the personal representative if a dispute arises. However, in
Smith v. Wells, 128 Or App 492, 500, 876 P2d 850 (1994), the
Oregon Court of Appeals approved the waiver of bond without the
consent of the heirs and devisees, because the personal representative, a stranger to the decedent, did not know the identity of
the heirs and devisees. Note that in the Smith case, the probate was
opened under ORS 30.090 at the request of a tort claimant. Smith,
128 Or App at 500.
The personal representatives own liability insurer may be a
source for the bond. The personal representative must ensure that the
bond is large enough to cover all of the estates assets and any increase
from income. ORS 113.105(2).
PRACTICE TIP: Some bonding companies will attempt to
make the lawyer jointly liable by asking the lawyer to cosign the
7-13
2012 Revision
bond or verify the personal representatives financial status.

Lawyers should refuse to do so.
(17) Investment Options. The lawyer should alert the personal
representative to the investment obligations under the Oregon Uniform
Prudent Investor Act, ORS 130.750130.775. See 10.4-1(b)(1). See
also ADMINISTERING TRUSTS IN OREGON ch 9 (Oregon CLE 2007).
Hiring an appropriate investment adviser to assist the personal representative with investment decisions, in compliance with ORS 130.680(1),
will help protect the personal representative from liability. See ORS
130.680(3).
(18) Elective-Share Claims. If the decedent left a surviving
spouse, the personal representative should consider whether an electiveshare claim by the spouse under ORS 114.600114.725 is possible. If it
is, the personal representative should try to calculate the value of the
augmented estate (see ORS 114.630) and the value of assets passing to
the surviving spouse to determine, as early as possible, whether an
elective-share claim can succeed. If a claim appears to be possible, the
personal representative should look for any evidence of a waiver of the
elective-share right by the spouse. See ORS 114.620.
(19) Parental Neglect. If a parent is an intestate heir of the
deceased, the personal representative should consider whether the
parent may be deemed to have predeceased the decedent under the
parental-neglect statute. ORS 112.047.
PRACTICE TIP: It is advisable for the lawyer to send a letter
to the personal representative summarizing the basic items of
instruction outlined above, as well as summarizing the basic provisions of the will.
7.2
7.2-1
LIABILITIES OF PERSONAL REPRESENTATIVE

Fiduciary Duties
The personal representative should understand that he or she is a

fiduciary. See ORS 114.395. Among other things, the personal representative is under a duty to follow the testators intent as expressed in
7-14
2012 Revision
the will (see ORS 112.227, 114.265); to collect income from property of
the estate; and to preserve, settle, and distribute the estate with as little
sacrifice of value as is reasonable under the circumstances. ORS
114.265.
Although the Oregon Uniform Trust Code is not directly applicable to personal representatives, the rules applicable to trustees under
the Uniform Trust Code should be followed by the personal representative. See ORS 114.395. The Uniform Trust Code provides that a
fiduciary has the following duties: (1) a duty of good faith, ORS
130.650; (2) a duty of loyalty, ORS 130.655; (3) a duty of impartiality,
ORS 130.660; (4) a duty of care, ORS 130.665; (5) a duty to administer
the trust at reasonable cost, ORS 130.670; (6) a duty to use any special
skills or expertise that the fiduciary has or represents that he or she has,
ORS 130.675; (7) a duty to keep accurate records, ORS 130.695; (8) a
duty to enforce and defend claims, ORS 130.700; and (9) a duty to
inform and report to beneficiaries, ORS 130.710.
A fiduciary is not required to be an expert in every aspect of
estate administration and, therefore, is able to delegate certain duties,
notably for investment decisions, as long as he or she exercises due care
in the selection of the delagatee. ORS 130.680.
If the personal representative breaches a fiduciary duty, the
personal representative is liable for resulting damage or loss to the
same extent as a trustee of an express trust. ORS 114.395; see Moser v.
Van Winkle, 103 Or App 398, 402403, 797 P2d 1063 (1990); see also
ORS 130.800, 130.805. The court may surcharge the personal representative for any loss caused by any breach of duty and deny in whole
or in part the right of the personal representative to receive
compensation. ORS 116.123. Several specific instances in which a personal representative might be personally liable are listed in ORS
116.063. See 10.4-1(c)(1) to 10.4-1(c)(3).
In Estate of Grove v. Selken, 109 Or App 668, 676677, 820 P2d
895 (1991), the probate court imposed a surcharge on the personal
representative for loss caused by his breach of a fiduciary duty. The
lawyer who drafted the decedents will became the personal repre7-15
2012 Revision
sentative. In his capacity as personal representative, the lawyer found a

document purporting to create a joint tenancy between the decedent and
the lawyers wife as to part of the decedents extensive book collection.
Estate of Grove, 109 Or App at 671. The lawyer assumed that the books
passed to his wife by operation of law, but did not disclose the existence
of the document or of his assumption about its impact until the final
accounting. A devisee objected to the final accounting. The probate
judge surcharged the lawyer as personal representative for the value his
wife had received from the sale of the books, and for excessive
payments that he made to his relatives and to himself as lawyer for the
estate. Estate of Grove, 109 Or App at 672673.
The Oregon Court of Appeals affirmed, agreeing that, as personal
representative, the lawyer had breached his fiduciary duty when he
(1) failed to notify the devisees about the document regarding the books
within a reasonable time; (2) decided to accept the document at face
value, despite the conflict of interest; (3) acted as his wifes agent in the
book sale; and (4) commingled estate property with property that he
thought belonged to his wife. Estate of Grove, 109 Or App at 675676.
The court of appeals also affirmed that ORS 116.123 gives the probate
court authority to enter a personal judgment against a personal
representative for breach of a fiduciary duty. Estate of Grove, 109 Or
App at 676.
7.2-2
Removal of Personal Representative
A personal representative who has been unfaithful to or

neglectful of the trust may be removed. ORS 113.195(2). See 5.29(a) to 5.2-9(b). Removal can be a difficult goal to achieve. In Roley v.
Sammons, 215 Or App 401, 412, 170 P3d 1067 (2007), the court agreed
that removal is justified when the personal interests of the personal
representative conflict with a substantial and legitimate interest of a
beneficiary of the estate. However, on the facts, the court of appeals
found that the personal representatives self-serving (and incorrect)
conclusion that he was the sole devisee of the residue of the estate was
merely a difference of opinion [between him and the other devisee]
about the meaning of the will. Therefore, the court of appeals reversed
7-16
2012 Revision
the probate courts removal of the personal representative. Roley, 215

Or App at 412.
7.2-3
Personal Liability to Persons Interested in the Estate
Under ORS 114.395, 116.063(3), and 116.123, the personal

representative is liable for the breach of a fiduciary duty to the extent of
the loss or damage caused. Any person who seeks to impose personal
liability on the personal representative must prove some loss or damage.
The personal representative will be liable for the breach of a fiduciary
duty to the same extent as the trustee of an express trust in similar
circumstances would be liable. ORS 114.395; see Moser v. Van Winkle,
103 Or App 398, 403, 797 P2d 1063 (1990) (the personal representative
was liable for the costs and attorney fees incurred in investigating a
breach-of-duty claim).
7.2-4
General Principles of Liability
The principles regarding a trustees liability do not apply directly

to personal representatives, but personal representatives, like trustees,
are fiduciaries, so the principles applicable to trustees are analogous and
provide guidance for personal representatives. See ORS 114.395; see
also ORS 130.650130.910. The general principles of trustee liability
are spelled out in the RESTATEMENT (SECOND) OF TRUSTS 201226
(1959), as supplemented by the RESTATEMENT (THIRD) OF TRUSTS
9092 (Prudent Investor Rule) (1992). See also 3 AUSTIN WAKEMAN
SCOTT & WILLIAM F. FRATCHER, SCOTT AND ASCHER ON TRUSTS 24
(5th ed 2007) (supplemented periodically) (citation not verified by
publisher), for an in-depth commentary on the Restatement.
In general, a trustee is in breach of the trust if the trustee intentionally or negligently violates a duty owed to a beneficiary. In some
situations, however, a trustee can be liable even though not personally at
fault, because of a mistake of law regarding the extent of the duties and
powers, or a mistake of fact or law in the exercise of powers or the
performance of duties. See SCOTT AND ASCHER ON TRUSTS, supra, 201.
When it does not result from a breach of trust, the mere failure to
make a profit, or a loss or depreciation in value of trust property, is not
7-17
2012 Revision
sufficient to impose personal liability on the trustee. RESTATEMENT

(SECOND) OF TRUSTS 204 (1959).
7.2-4(a)
Specific Situations
7.2-4(a)(1)
Basis for Liability
Under ORS 116.063(1), a personal representative is responsible

for, and is chargeable in his or her accounts for, the entire estate of the
decedent that comes into his or her possession at any time, including
income. The personal representative may also be responsible for any
property that is not part of the estate, if he or she commingles it with the
assets of the estate, and for any property received in his or her
representative capacity under a duty imposed by law. ORS 116.063(2).
The personal representative may be liable for any loss to the estate
arising from neglect or unreasonable delay in collecting assets, neglect in
paying over money or delivering property of the estate, failure to pay
taxes as required by law, or failure to close the estate within a reasonable
time. ORS 116.063(3). In a case that preceded the probate code, Fitchard
v. Hirschbergs Estate, 128 Or 317, 330, 272 P 906, 274 P 505 (1929),
the court stated that, under some circumstances, delay in closing an
estate may make a personal representative liable to the beneficiaries for
interest on funds denied to the beneficiaries.
The personal representative may also be liable for (1) embezzlement, (2) commingling estate assets with other property, (3) unauthorized self-dealing, (4) wrongful acts or omissions of a copersonal
representative that the personal representative could have prevented by
exercising ordinary care, and (5) [a]ny other negligent or willful act or
nonfeasance in the administration of the estate by which loss to the
estate arises. ORS 116.063(3)(d)(f).
See Matter of Whites Estate, 289 Or 13, 18, 609 P2d 365 (1980),
in which the court included, under ORS 116.063(2)(b), the personal
representatives obligation to properly manage a claim for wrongful
death.
See also RESTATEMENT (SECOND) OF TRUSTS 205206 (1959),
under which a trustee may be surcharged for any loss or depreciation in
7-18
2012 Revision
value of trust property, when he or she violates the duty of loyalty or is

otherwise in breach of trust.
Under ORS 116.073, the personal representative is not personally
liable for (1) [d]ebts due the decedent or other assets of the estate that
remain uncollected without the fault of the personal representative, or
for (2) [l]oss by the decrease in value or destruction of property of the
estate if the loss is caused without the fault of the personal
representative.
7.2-4(a)(2)
Continuation of Decedents Business
If the decedent was engaged in any business or venture at the time

of death, the probate code authorizes the personal representative to (1)
continue the business or venture to preserve its value, (2) incorporate or
otherwise change the business form of the business or venture, or (3)
discontinue and wind up the business or venture. ORS 114.305(21)
(23).
If the personal representative chooses to operate the business, he
or she must comply with payroll tax laws and other statutory
requirements of the business. The failure to do this could result in
personal liability.
For a more detailed discussion of issues with continuing the
decedents business, see 10.10-1 to 10.10-4(d)(2).
7.2-4(a)(3)
Environmental Concerns
Under both federal law and state law, an owner or operator of

contaminated property may be personally liable for the costs of cleaning
up the contamination. 42 USC 96019675; ORS ch 465. Both federal
law and Oregon law make exceptions for owners who acquire the
property by inheritance or bequest. 42 USC 9601(35)(A)(iii); ORS
465.255(3)(b). These exceptions would not apply if the person is also an
operator of the property as defined in the statutes.
Congress has limited the personal liability of fiduciaries for environmental contamination, as long as negligence by the fiduciary does
not cause or contribute to the contamination. 42 USC 9607(n)(3). See
ORS 465.440 for the Oregon Environmental Quality Commissions
7-19
2012 Revision
authority to specify when property held by a fiduciary is exempt from

environmental liability. Similar protection is provided with respect to
underground storage tanks under 42 USC 6991b(h)(9)(B).
In Oregon, under rules established in accordance with ORS
465.440, no such protection is available for individuals serving as
fiduciaries. The Department of Environmental Quality defined by rule
(OAR 340-122-0140) instances in which a bank or trust company
holding property in a fiduciary capacity can be exempt from personal
liability for environmental contamination, but the rule does not include
individuals.
PRACTICE TIP: Given that ORS 465.440 protects only
corporate fiduciaries, and not individuals who act as fiduciaries,
and that a claim of environmental contamination may arise long
after the estate assets have been distributed, lawyers should warn
personal representatives about the risks associated with environmentally contaminated property.
For a discussion of a trustees potential liability as the owner of
real property with environmental contamination, see ADMINISTERING
TRUSTS IN OREGON 19.7, 19.919.14 (Oregon CLE 2007). For an
overview of the major issues raised in real estate transactions as a result
of the statutes that impose strict liability on property owners for the
cleanup of hazardous substances, see FUNDAMENTALS OF REAL ESTATE
TRANSACTIONS ch 10 (Oregon CLE 1992 & Supp 2001). See also 2
TORTS ch 23 (OSB Legal Pubs 2012) (toxic torts); 1 DAMAGES ch 21
(Oregon CLE 1998 & Supp 2007) (invasions of real property, including
environmental damage). These issues are discussed further in 10.8-4
to 10.8-4(d).
7.2-4(a)(4)
Search for Claimants
The personal representatives obligation to search for, and

provide notice to, persons who may have a claim against the estate is
detailed in ORS 115.003115.004. See 7.3-3(a). The search for claimants is necessary due process to allow the bar on claims not asserted
within the short time periods provided in the probate code. See Tulsa
7-20
2012 Revision
Profl Collection Services, Inc. v. Pope, 485 US 478, 487488, 108 S Ct

1340, 99 L Ed2d 565 (1988). The failure to diligently follow these
procedures may result in personal liability for the personal representative. ORS 115.004(1). However, persons who receive distributions or
other payment from the estate must indemnify the personal representative and the surety to the extent that the distribution or payment would
have been reduced if the personal representative had properly handled
the claims procedure and, in some circumstances, for the attorney fees
in defending against allegations that the personal representative handled
the claims improperly. ORS 115.004(3)(4).
Claims against the estate are discussed more fully in chapter 9.
7.2-4(a)(5)
Copersonal Representatives
The relationship between copersonal representatives and the

rights of third parties dealing with one personal representative is
described in ORS 114.415. A personal representative may be liable for
the [w]rongful acts or omissions of copersonal representatives that the
personal representative could have prevented by the exercise of ordinary
care. ORS 116.063(3)(f).
7.2-4(b)
Defenses to Liability
7.2-4(b)(1)
Discharge After Partial Distribution
The distribution of estate assets pursuant to an order of partial

distribution is a full discharge of liability of the personal representative
for all property properly covered in the order, except as otherwise
provided in the probate code. ORS 116.033.
7.2-4(b)(2)
Approval of Final Account and Discharge
The courts approval of the personal representatives final

account relieves the personal representative from liability for the administration of the estate. ORS 116.123. See ORS 116.213. The courts
approval is conclusive as to persons interested in the estate.
When the personal representative files receipts for the distribution
of assets as ordered in the general judgment, the court will enter a
supplemental judgment discharging the personal representative. The dis7-21
2012 Revision
charge bars most actions against the personal representative. ORS

116.213.
However, a release and discharge of the personal representative
are subject to the right of appeal; the right of certain claimants to bring
an action against the personal representative within two years of the
decedents death (ORS 115.004(5)); the power of the court to vacate its
final orders (ORS 116.123); and the power of the court to allow an
action against the personal representative within one year after discharge, if the supplemental judgment of discharge was obtained through
fraud or misrepresentation by the personal representative, or if the claim
was based on mistake, inadvertence, surprise, or excusable neglect of
the claimant (ORS 116.213).
7.2-4(b)(3)
Laches
Because a probate proceeding is equitable in nature, the equitable

defense of ignoring a stale claim may be available. See In re Websters
Estate, 74 Or 489, 494, 145 P 1063 (1915). Long delay by a claimant in
raising objections against a personal representative can render the claim
invalid, even when there is evidence of questionable actions on the part
of the personal representative. Taylor v. Rubey, 2 Or App 277, 287, 467
P2d 132 (1970).
However, in Dahlhammer v. Schneider, 197 Or 478, 497, 252 P2d
807 (1953), the Oregon Supreme Court refused to allow a laches
defense when the plaintiffs delay did not result in any disadvantage to
adverse parties. The plaintiff in the Dahlhammer case brought an action
to cancel conveyances by the administrator to herself six years after the
administrators death and 10 years after the plaintiff became of age. The
court found that the plaintiff was entirely ignorant as to the proceedings in the estate of her deceased father and as to [her] guardianship
proceedings until after she had conferred with her attorney years later.
Dahlhammer, 197 Or at 497. By the promises of the administrator (who
was the plaintiffs mother) and by assurances given to her by her
stepfather that she would in the future receive her full interest in her
deceased fathers estate, [the plaintiff] was in a way lulled into a false
sense of security. Dahlhammer, 197 Or at 497. Considering all the facts
7-22
2012 Revision
and circumstances, the court declined to say that the plaintiffs claim was
barred by laches. Dahlhammer, 197 Or at 497498.
7.2-4(b)(4)
Consent, Waiver, and Estoppel
A beneficiary may waive his or her rights to bring an action

against a personal representative by acquiescing in, or having actual
knowledge of, acts constituting a breach, and thus will be estopped from
asserting his or her rights. In re Hemshorns Estate, 184 Or 364, 376
377, 198 P2d 597 (1948). In In re Hemshorns Estate, 184 Or at 376, a
beneficiary was barred from objecting to the manner in which the
decedents business continued to be operated, because she was fully
aware of the businesss operation for years without raising any objection.
7.2-4(c)
Liability to Third Persons
7.2-4(c)(1)
Liability in Contract
In dealing with third parties, the relationship between the personal

representative and the estate is that of an agent for a disclosed
principal. ORS 114.405(1). The personal representative is not personally liable on contracts properly entered into in the fiduciary capacity in
the course of administration of the estate. ORS 114.405(2). However,
the personal representative may, by agreement, become liable on such
contracts. ORS 114.405(2).
A person who deals with the personal representative without
having actual knowledge that the personal representative is exceeding
his or her authority is protected under ORS 114.385. The protection
afforded third parties by this statute is very broad. The third party is not
required to determine whether the personal representative has the power
to act. A third person is not protected under the statute if he or she had
actual knowledge of (1) a limitation on the personal representatives
authority, (2) an improper exercise of the personal representatives
power, (3) a term of the will limiting authority, or (4) a defect in the
qualification of the personal representative. ORS 114.385. The broad
protection provided by the statute is needed to implement one of the
basic goals of the probate code: to permit the personal representative to
administer the estate without constantly seeking court approval.
7-23
2012 Revision
A personal representatives contractual relationship with the

attorney for the estate does not require the personal representative to
appeal if the court disallows some of the attorneys requested fees. [I]n
the absence of bad faith or fraud to deprive the attorney of reasonable
attorney fees, the personal representative is not liable for refusing to
appeal an award of attorney fees deemed inadequate by the lawyer for
the estate. Smith v. U.S. Nat. Bank of Oregon, 47 Or App 967, 976, 615
P2d 1119 (1980).
7.2-4(c)(2)
Liability in Tort
The personal representative is not personally liable for torts

committed during the course of administering the estate unless the personal representative is personally at fault. ORS 114.405(3).
If an injury is caused by the negligence of an employee hired by
the personal representative, the personal representative is not personally
liable unless he or she failed to exercise due prudence in hiring the
employee or negligently performed some other duty. In re Chandlers
Estate, 136 Or 128, 135, 297 P 841 (1931).
Tort actions may be allowed against the estate whether or not the
personal representative is personally liable. ORS 114.405(4).
7.2-4(d)
Self-Dealing
7.2-4(d)(1)
Purchase of Estate Property
The personal representative may purchase or encumber estate

property if all of the interested persons consent, the will expressly
authorizes the transaction, or the transaction complies with a statute or a
contract executed by the decedent. ORS 114.355. In the absence of one
of these factors, the purchase or encumbrance is voidable, not void. The
same rule applies to transactions between the estate and the spouse,
agent, or lawyer for the personal representative. ORS 114.355(1).
Any title received by a bona fide purchaser for value is protected,
unless the purchaser should have known of the circumstances that
would make the sale by the personal representative voidable. ORS
114.355(2).
7-24
2012 Revision
7.2-4(d)(2)
Transactions with Beneficiaries
No rule voids transactions between the personal representative

and the beneficiaries of the estate. Given the permissive nature of ORS
114.355, such transactions should be allowed if the personal representative has fully disclosed to the beneficiary all of the relevant facts
regarding the transactions and the transactions are objectively fair.
7.3
7.3-1
NOTICES
To Heirs, Devisees, and Interested Persons
7.3-1(a)
Generally
Upon appointment, the personal representative must deliver or

mail information to the devisees, heirs, and other interested persons.
The contents and required recipients of the notice are detailed in ORS
113.145(1). Additional language must be provided to any person who
challenges the will, or who has been identified in the petition for
appointment as contending that a parent of the decedent willfully
deserted the decedent or failed to provide proper care. See ORS
113.145(1)(g)(h). The notice to such persons must contain a statement
that the persons rights may be barred unless he or she proceeds as
provided in ORS 113.075 (for persons challenging the will) or ORS
112.049 (for persons alleging forfeiture of a parents share). See 2.5-1
to 2.5-4, 5.2-2(b). See Forms 5-10 and 5-11.
PRACTICE TIP: Although not expressly required by statute, it
is good practice to voluntarily supply copies of the will to persons
who are substantially interested in its contents. In any event, copies
can be obtained from the court by those sufficiently interested to
procure them.
Within 30 days after appointment, the personal representative
must file proof of delivery or mailing of the notice required by ORS
113.145. A copy of the notice and the names (but not the addresses) of
the persons to whom the notice was delivered or mailed must be
included in the affidavit. ORS 113.145(4). See Form 5-12.
7-25
2012 Revision
If at any time before the filing of the final account the personal
representative has actual knowledge that the petition for appointment
failed to name any person nominated as personal representative, or any
heir, devisee, or person required to be named as challenging the will
(see ORS 113.035(8)), or a parent who deserted the decedent (see ORS
113.035(9)), the personal representative must promptly deliver or mail
the notice described in ORS 113.145(1) to that person, and file with the
court proof of compliance with this requirement. ORS 113.145(5). See
ORS 111.215 (proof of notice). See also 2.5-1, 2.5-5, 5.2-8.
Notice must also be mailed or delivered to the Department of
Human Services (DHS) and the Oregon Health Authority within 30
days after the personal representatives appointment. ORS 113.145(6).
Although many experienced attorneys recommend sending notice to
both agencies as required by the statute, notice to the DHS is sufficient
to provide notice to the Oregon Health Authority. OAR 943-0010020(2)(e). The address for DHS is: Oregon Department of Human
Services, Estate Administration Unit, PO Box 14021, Salem, OR 973095024.
7.3-1(b)
Effect of Failure to Notify
The personal representatives failure to provide notice constitutes

a breach of fiduciary duty to the persons concerned, but does not affect
the validity of appointment, duties or powers or the exercise of duties or
powers. ORS 113.145(3).
7.3-2
Publication of Notice to Interested Persons
7.3-2(a)
Generally
Upon appointment, the personal representative must notify all of

the interested persons of the estate proceeding by publishing a specific
notice in a newspaper published in the county where the proceeding is
pending. ORS 113.155(1). The term interested person includes heirs,
devisees, children, spouses, creditors and any others having a property
right or claim against the estate of a decedent. ORS 111.005(19). The
required contents of the notice are detailed in ORS 113.155(2). The
notice must be published once in each of three consecutive weeks. ORS
7-26
2012 Revision
113.155(1). See Form 5-15. The personal representative must file proof
of publication, including a copy of the notice. ORS 113.155(4); see
ORS 111.218. See 2.5-5; Form 5-16. The publishing newspaper will
usually provide the affidavit if asked to do so at the time that the
advertising copy is submitted.
If an heir or a devisee cannot be identified or found, that persons
share escheats to the state of Oregon. ORS 112.055(2). See 4.1-2(g).
The Department of State Lands is entitled to the same notice as would
have been given to the missing heir or devisee. ORS 112.055(3)(c)(B).
Under ORS 112.058(1), a missing person whose death cannot be
proved, or who cannot be presumed dead under the rules of that statute,
is presumed to have lived to age 100. An heir whose death is presumed
is also presumed to have two children, in addition to any known
children, unless the presumption of death arises under certain specific
circumstances. ORS 112.058(2). The share of the missing person and
the share of his or her presumed children escheat to the state of Oregon.
ORS 112.055(2).
PRACTICE TIP: Estate planners may wish to include language
in their wills to avoid an unintended escheat that will occur if an
heir or devisee cannot be identified or found. For instance, a will
could provide that any devisee or heir who cannot be identified or
found, as that phrase is used in ORS 112.055, will be deemed to
have predeceased me without issue.
7.3-2(b)
Effect of Failure to Publish
The personal representatives failure to publish the required

notice is a breach of duty to the persons concerned, but does not affect
the validity of the representatives appointment or the exercise of his or
her duties or powers. ORS 113.155(3). The failure to publish the
required notice under ORS 113.155(1) was one of several examples of
lawyer misconduct cited in In re Conduct of Gresham, 318 Or 162, 166,
864 P2d 360 (1993), leading to the suspension of the lawyer in the case.
7-27
2012 Revision
7.3-2(c)
Successor Personal Representative
When a successor personal representative is appointed within four

months after publication of the notice required in ORS 113.155, the
successor must publish a new notice to interested persons in slightly
different form, as set forth in ORS 113.225.
7.3-3
Diligent Search for and Notice to Claimants
7.3-3(a)
Generally
Because the probate code allows the claims of creditors to be cut

off if not asserted within a short period of time (30 days after direct
notice or four months after published notice, ORS 115.005(2)), the
personal representative must search for claimants entitled to notice.
ORS 115.003.
During the three months after appointment, unless the court
allows a longer time period, the personal representative must (1) make
reasonably diligent efforts to investigate the financial records and affairs
of the decedent, and (2) take such further actions as may be reasonably necessary to ascertain the identity and address of each person who
has or asserts a claim against the estate. ORS 115.003(1). See 9.3-3.
The personal representative may request, and the court must
allow, a longer time if the personal representative cannot complete
reasonably diligent efforts to identify persons with claims during the
three-month period. ORS 115.003(1). The court may allow another
extension if the search cannot be completed within the first extension.
ORS 115.003(1).
Not later than 30 days after expiration of the time to search for
claimants, including any extensions, the personal representative must
give notice to each person known by the personal representative during
such period to have or assert a claim against the estate. ORS
115.003(2). The contents of the notice are described in detail in ORS
115.003(3). The notice has the effect of cutting off creditors claims if
not asserted within 30 days. ORS 115.005(2)(b).
7-28
2012 Revision
It is not necessary to give notice on account of a claim that has

already been presented, accepted or paid in full or on account of a claim
that is merely conjectural. ORS 115.003(2).
If a claimant is discovered after the expiration of the period
allowed to search for claimants, including any extensions, the personal
representative may cause the notice to be given to the discovered
claimant. ORS 115.003(2).
Within 60 days after the expiration of the period allowed to
search for claimants, including any extensions, the personal representative must file proof of compliance with the statute. ORS 115.003(4).
The proof must include a copy of the form of the notice, the date of
delivery or mailing of the notice, and the name and address of each
person given notice. ORS 115.003(4). See ORS 111.218 (proof of
notice).
PRACTICE TIP: In Lane County, the local practice is to
require that the affidavit of compliance include a list of the steps
taken to comply with the requirements of ORS 115.003. See Form
9-4.
7.3-3(b)
Failure to Make Search or Give Notice
The personal representatives failure to make reasonably diligent

efforts to ascertain claims or to cause notice to be delivered or mailed is
a breach of duty to the persons concerned, but does not affect the
validity of appointment, duties or powers or the exercise of duties or
powers. ORS 115.003(5). See 9.3-3 (the failure to give actual notice to
known creditors violates the due process clause).
A claimant who was not given the required notice has a cause of
action against the personal representative and the surety for the amount
that the claimant would have been paid from the estate if all of the claims
not barred from payment had been timely presented and had been
allowed by the personal representative. Any payment by others reduces
the claim against the personal representative by a like amount. ORS
115.004(1).
7-29
2012 Revision
The claimant also has a cause of action against each interested

person who received a distribution or other payment from the estate, to
the extent that payment of the claim would have reduced payment to that
person. ORS 115.004(2).
The personal representative and surety are indemnified against
liability on such a claim, to the extent that the payment received by the
interested persons would have been reduced by the payment of the claim.
ORS 115.004(3).
To the extent that the interested persons must indemnify the
personal representative, they must also indemnify for costs, including
attorney fees, if the personal representative prevails against the claimant.
If the claimant prevails, the indemnity is for costs that could have
reasonably been incurred by the estate on disallowance of the claim if it
had been timely presented. ORS 115.004(4).
Except as provided in ORS 115.004(6), an action against the
personal representative, the surety, or an interested person must be
commenced within two years after the death of the decedent or within the
statute of limitations applicable to the claim, whichever is earlier. ORS
115.004(5).
Under ORS 115.004(6), an action for indemnity must be brought
within the time period for an action against the personal representative
described above, except that the time for such an action is extended
during the pendency of an underlying action, if:
(1) The person seeking indemnity gives notice to each party
from whom indemnity is sought within 180 days after being served with
the complaint in the underlying action; and
(2) The action for indemnity is commenced within one year
after the judgment in the underlying action becomes final and not subject
to further appeal.
7-30
2012 Revision
7.4
7.4-1
REPORTING ASSETS
Identifying Assets
Generally, the personal representative is responsible for identifying

and locating the decedents assets. The personal representative should
review the decedents mail, tax returns, filing system, computer records,
and other sources of information to identify and locate assets. As
financial institutions move toward paperless records, access to the
decedents computer, and computer passwords, will be of increasing
importance. The personal representative can also search for the decedents unclaimed property by going to the national Web site at
<www.unclaimed.org>.
For a discussion of managing estate assets, see chapter 10.
7.4-2
The Inventory
7.4-2(a)
Filing the Inventory
Within 60 days after appointment, unless the court extends the

time, the personal representative must file an inventory listing all of the
property of the estate that has come into the possession or knowledge
of the personal representative. ORS 113.165. The inventory must show
estimates of the true cash values of the assets as of the date of the
decedents death. True cash value means the gross value of the assets,
not net equity. Any debt against assets is not deducted in arriving at true
cash value. See Form 7-1.
PRACTICE TIP: The duty to file an inventory within 60 days
runs from the date of the appointment of the personal representative, not from the date that letters testamentary or letters of
administration are issued. ORS 113.165. If a personal representative has been appointed, but a bond is required, letters
testamentary or letters of administration will not be issued until the
bond is filed. ORS 113.125(1). Gathering needed information to
complete the inventory may be difficult before the letters are
issued. To avoid problems completing the inventory within the
statutory time period, it is helpful to discuss the availability of a
bond with the bonding company before petitioning for appoint7-31
2012 Revision
ment. That way, the bonding company will be ready to issue the
bond as soon as it receives a copy of the order appointing the
personal representative. It will also be known early in the process
whether or not the proposed personal representative is bondable.
PRACTICE TIP: The following property is not part of the
probate estate and should not be listed in the inventory: property
held with right of survivorship or in a tenancy by the entirety,
passing to the surviving joint tenant; life insurance and other
property passing outside the estate; and property subject to
ancillary probate in another state. Listing such property is required
on estate tax returns, but the propertys existence and value need
not be placed in the public record.
PRACTICE TIP: When personal property either has significant
economic value or is specifically devised, it should be itemized
separately in the inventory. Otherwise, it is common practice to
lump together similar kinds of items.
PRACTICE TIP: The personal representative need not include
in the inventory any of the decedents pets valued at less than
$2,500. ORS 114.215(3).
Aside from meeting the statutory requirements for an inventory
described in ORS 113.165, the personal representative should consider
the following when preparing the inventory:
(1) The inventory identifies the decedents assets. The function
of the probate estate is to transfer title from the decedent to the heirs and
devisees; that transfer cannot be accomplished without identifying the
decedents assets in the court proceedings.
(2) The inventory is a guide in managing and administering the
estate. The fair-market values determined for inventory purposes are
relevant in determining the amount of insurance coverage needed, as
well as asking prices for the property to be sold. The inventory, therefore, is helpful for planning the cash flow of the estate and determining
what insurance protection is appropriate.
7-32
2012 Revision
(3) The inventory helps establish the tax basis of the

decedents assets for income tax purposes. IRC 1014. A detailed
itemization of the decedents assets with the fair-market value of those
assets helps with income tax returns.
(4) The inventory gives an early indication of whether federal
or Oregon estate tax returns must be filed. For a discussion of when
estate tax returns must be filed, see 7.6-4(b). See also chapters 12, 14.
7.4-2(b)
Supplemental Inventory
The personal representative must file a supplemental inventory

within 30 days after receiving possession or knowledge of property
belonging to the estate that was not included in the inventory, or include
the property in the next accounting. ORS 113.175. See Form 7-2.
PRACTICE TIP: If the time for the annual or final accounting
is closed, the personal representative can include later-discovered
property in an amended inventory filed with the accounting.
PRACTICE TIP: A careful lawyer will distinguish between an
amended inventory (see Form 7-3), which corrects the information in the inventory filed, and a supplemental inventory, which
adds omitted property to the inventory.
PRACTICE TIP: If joint property (for example, a joint bank
account) is disclaimed by the surviving joint owner, the disclaimed
interest in the property becomes part of the probate estate. The
personal representative should file a supplemental inventory listing
the disclaimed property. See 8.3-2(a) to 8.3-2(f) for discussions
of disclaiming property.
7.4-2(c)
Appraisal of Property
The personal representative may employ an appraiser to assist in

the appraisal of any property of the estate the value of which may be
subject to reasonable doubt. ORS 113.185(1). In lieu of an appraisal,
the personal representative is obliged to show in the inventory
estimates of the respective true cash values of all of the property as
of the date of the decedents death. ORS 113.165. Note that ORS
118.100(6), enacted in 2011, requires that an executor filing an Oregon
7-33
2012 Revision
estate tax return explain how the reported values were determined and
attach copies of any appraisals.
The court has discretion to direct that all or any part of the estate
property be appraised by one or more court-appointed appraisers. ORS
113.185(2). The appraisal must reflect the true cash value as of the date
of the decedents death, must be in writing, and must be signed by the
appraiser(s). ORS 113.185(3). The appointed appraisers are entitled to
be paid a fee from the estate for their services and to be reimbursed
from the estate for expenses they have incurred. ORS 113.185(4).
PRACTICE TIP: Appraisal fees should be agreed on in
advance of the appraisal. The fees should be based on the
complexity of the appraisal, rather than on the value of the
property appraised.
7.4-2(d)
Requirements for Tax Purposes
Because the decedents property is given a new income tax basis

at death equal to its fair-market value under IRC 1014, the personal
representative should establish the fair-market value as of the date of the
decedents death. In some estates involving decedents dying in 2010,
the personal representative was allowed to allocate only a limited basis
increase to the estates assets. Former IRC 1022. See chapter 12.
For taxable estates, IRC 2031 and Treas Reg 20.2031-1(b)
require that the value of every item of property be included at its fairmarket value as of the date of the decedents death, unless the alternative valuation date is selected under IRC 2032, or unless the special
valuation provisions of IRC 2032A are used.
The alternate valuation date and the special-use valuation
provisions are discussed in 12.1-2 to 12.1-2(b) and 12.2-5(e). If the
alternate valuation date under IRC 2032 or the special valuation
provisions under IRC 2032A are used, the devisees tax basis in the
property is determined by those values. IRC 1014. An estate that is not
required to file a federal estate tax return, but that is subject to the
Oregon estate or inheritance tax, may use the alternate valuation date.
ORS 118.010(8).
7-34
2012 Revision
Real property that is subject to a conservation easement may have

some of its value excluded under IRC 2031(c).
Penalties are provided under IRC 6662(g) for valuation
understatements for the purposes of estate and gift taxes. Also,
overstatements of value may give rise to income tax penalties. IRC
6662(e)(1)(A).
See chapter 12 for a more complete discussion of estate taxation.
7.4-3
Form of the Inventory
7.4-3(a)
Generally
The inventory should be in a form that sufficiently describes the

decedents assets, so that a stock transfer agent or title officer can
quickly and accurately identify the property to be transferred. Items
listed on the inventory may be in a format that is easily tied to items
appearing on the federal or Oregon estate or inheritance tax return, if
required. See 7.6-4(b). See also chapters 12, 14. The inventory should
set forth sufficient information so that a tax auditor can verify the
information submitted without having to ask additional questions. For
example, the account number and tax lot information from the property
tax statement should be included, because it is common practice for
auditors to verify the assessed values. For general guidelines, see Treas
Reg 20.2031-1 to 20.2031-8. A sample inventory is included in Form
7-1.
PRACTICE TIP: If each inventory item is listed by number,
later reports to the court, such as the annual or final accounts, can
refer to the item by number, and thus be easier to follow.
7.4-3(b)
Real Property
The inventory should list real property with a correct legal

description, as well as the countys tax account number and tax lot
number. The inventory should report the full value of the property, not
merely the decedents equity in the property.
PRACTICE TIP: A subnote should show any encumbrances on
the property so that heirs and devisees are not misled about the
estates net value. See Form 7-1.
7-35
2012 Revision
7.4-3(c)
Stocks and Bonds
The inventory should give a precise description of the stocks and

bonds and show the number of shares or bonds. See Form 7-1. The
inventory should list the value of publicly traded stocks and bonds by
using the mean between the highest and the lowest quoted selling prices
on the valuation date. See Treas Reg 20.2031-2(b)(1). If the valuation
date is on a weekend or holiday, or if no sales took place on the
valuation date but sales occurred within a reasonable time before and
after that date, a weighted average is used to determine value. See Treas
Reg 20.2031-2(b)(1). If a stock is trading ex-dividend, and the date of
record for payment is after the valuation date, the amount of the
declared dividend is added to the ex-dividend quotation. See Treas Reg
20.2031-2(i). If the valuation date is after the record date, but prior to
payment, the dividend is listed as a separate item. See Treas Reg
20.2033-1(b).
The valuation of shares of stock in a closely held corporation or
other business entity is a complex matter that is beyond the scope of this
chapter.
7.4-3(d)
Mutual Funds
Mutual funds are generally valued at the last public redemption

price of the shares on the date of the decedents death. Treas Reg
20.2031-8(b). See Form 7-1.
7.4-3(e)
Mortgages, Notes, and Contracts
Notes and contracts receivable are normally valued at their unpaid

principal balance, plus accrued interest to the date of the decedents
death. Under some circumstances, however, the value might be lower.
See Treas Reg 20.2031-4; Rev Rul 67-276, 1967-2 CB 321 (1967).
If a note for money loaned is reported at less than face value,
ordinary income may be recognizable each time a principal payment is
received. See Form 7-1.
If the note or contract is for assets sold, a discounted value should
not create ordinary income tax when principal payments are received.
7-36
2012 Revision
This is because payments on notes or contracts for the sale of property,

in which the gain is recognized on an installment basis, constitute
income in respect of a decedent. Such notes and contracts do not receive
a new basis as of the date of the decedents death. IRC 691(a)(4).
7.4-3(f)
Cash and Bank Accounts
Bank accounts reported in the inventory should be listed and

itemized separately, with the name of the bank, the branch, and the
account number. A joint or beneficiary account should not be listed in
the inventory unless it is turned back to the estate, or the decedents
interest is disclaimed by the joint owner or beneficiary. See Form 7-1.
7.4-3(g)
Household Goods and Personal Effects
In general, household goods and personal effects can be lumped

together in the inventory without a detailed itemization of each and
every piece. See Form 7-1. But see Treas Reg 20.2031-6(a) (if the
estate is taxable, the IRS considers it desirable to list items room by
room on the estate tax return).
7.4-3(h)
Antiques, Art Work, Coins, Jewelry, etc.
An appraisal is necessary to assess items with significant artistic

or intrinsic value if the value is in excess of $3,000. See Treas Reg
20.2031-6(b). After appraisal, the personal representative should
ensure that insurance coverage is adequate. See 7.1-3 (item (7)). See
Form 7-1.
7.4-3(i)
Community Property in Name of Decedent
Property of the decedent located in Oregon may be treated as

community property if the property was acquired in a communityproperty state, or is traceable to such property. ORS 112.715. If titled in
the decedents name, community property should be shown on the
inventory at its full value. If the surviving spouse believes that the
property is community property, then the spouse must make a written
demand for a set-aside of the survivors share of the community
property. ORS 112.745. Otherwise, all of the decedents property is
subject to testamentary or intestate succession distribution. The court
7-37
2012 Revision
cannot set aside the survivors share of the community property unless
all of the property is shown on the inventory. See Form 7-1.
If the surviving spouse holds title to community property, neither
the court nor the personal representative is required to determine
whether part of that property should pass with the decedents estate,
unless written demand is made by an heir, devisee, or creditor. ORS
112.755. For discussion of community property, see 4.3 to 4.3-5.
7.4-3(j)
Cemetery Lots
The cemetery lot in which the decedent is buried need not be

shown on the inventory. A vacant cemetery lot owned by the decedent,
however, should be listed. See Treas Reg 20.2033-1(b). See Form 7-1.
7.4-3(k)
Annuities, Life Estates, and Remainders
Annuities, life estates, and remainders should be valued using the

tables provided by the IRS. See Treas Reg 20.2031-7. See Form 7-1.
7.4-4
Assets Outside Oregon
Oregon courts have jurisdiction over a resident decedents

personal property wherever it is located. ORS 14.030. If the decedent
was an Oregon resident, the only asset that could be outside of Oregon,
for probate purposes, would be real estate. Real estate outside of Oregon
is not part of an Oregon probate, and should not be listed in the
inventory.
California financial institutions may refuse to deliver personal
property to an Oregon personal representative, if that property exceeds
$150,000 in value. See CAL PROB CODE 12570, and 13100; Robertson
v. U. S. Nat. Bank, 44 Cal Rptr 871 (Cal Ct App 1965). See 6.6-1(a)
to 6.6-6 for a discussion of estates of nonresident decedents.
If the decedent was not an Oregon resident, the only property to
be listed in the inventory would be Oregon real estate.
7.4-5
Incomplete Inventory
If all of the information required cannot be compiled by the

deadline for filing an inventory, an incomplete inventory may be filed
7-38
2012 Revision
listing what is known. In this situation, the personal representative

should list the property in the inventory and indicate that the value has
not yet been established. Difficulties can be created on audit if one
value has been reported on the inventory and a different value is
reported on the estate tax return. The inventory should be amended
when the value is finally determined. See Form 7-3.
PRACTICE TIP: The court may grant an extension of the time
for filing an inventory if the personal representative files a petition
within 60 days after his or her appointment, stating specific
reasons why the inventory cannot be completed within the 60-day
period required by the statute. See ORS 113.165.
7.4-6
Ancillary Probate
Oregon does not have an ancillary probate statute as such. The

probate of Oregon assets of a decedent who resided in another jurisdiction is handled in the same way that a probate of an Oregon resident is
handled, but only the Oregon real property should be listed on the
inventory. Any debt against the Oregon real property should be listed in
a subnote on the inventory. See 6.6-1(a) to 6.6-6, for further discussion of ancillary administration.
7.5
7.5-1
PROVIDING FOR SPOUSE AND CHILDREN
Occupancy of Family Home
7.5-1(a)
Generally
A surviving spouse or the decedents dependent children, or both,

may occupy the decedents principal place of abode for one year after
the decedents death, or until the earlier termination of a lease or life
estate. ORS 114.005. This right is superior to the personal representatives duty under ORS 114.225 to take possession of the estate.
The right of occupancy requires no action by the family or the court to
make it effective.
The home is exempt from execution to the extent that it was
exempt during the decedents lifetime. ORS 114.005(4).
7-39
2012 Revision
7.5-1(b)
Duties of Occupants
The duties of the spouse or children remaining in possession of

the family home are described in ORS 114.005 as follows:
(1) They may not commit or permit waste to the home, or permit liens to attach to it;
(2) They must keep the home insured to the extent of its fairmarket value, with protection against the hazards encompassed by
extended-coverage fire insurance; in the event of any loss or damage
from hazards covered by the policy, the occupants must restore the
premises to the extent of the insurance; and
(3)
7.5-2
They must pay taxes and improvement liens.

Support of Spouse and Children
7.5-2(a)
Generally
The surviving spouse or any dependent child may petition the

court for support, or the personal representative may submit the petition
on their behalf. ORS 114.015. Temporary support may be allowed by ex
parte order of the court pending the hearing on the petition. ORS
114.035. The petition for support need not await the filing of an
inventory. The procedure for obtaining support and the contents of the
petition are discussed in 6.2-1 to 6.2-4.
PRACTICE TIP: If temporary support has been requested
pending the hearing, the lawyer should advise the court of this fact
and submit appropriate orders.
PRACTICE TIP: The petition should also describe the nature
of the support desired and the suggested means of financing the
support.
PRACTICE TIP: Amounts paid for the support of the surviving
spouse and children under ORS 114.015 are in addition to the
elective-share rights of the surviving spouse. ORS 114.600(2).
7-40
2012 Revision
7.5-2(b)
Considerations in Determining Support
In determining necessary and reasonable provision from the

estate (ORS 114.015) for support of the surviving spouse and children,
the court takes into account the following considerations:
(1) The assets of the estate and the assets of the spouse and
dependent children, taking into account the solvency of the estate,
property available for support other than estate property, and property
inherited by or devised to the spouse and children, see ORS 114.055(2);
(2) Whether the estate would be rendered insolvent after
provision for support, ORS 114.065; see 6.2-4, 6.4-1 to 6.4-2; and
(3) Whether the spouse has waived rights to support, ORS
114.620; see also Simmons v. Simmons, 82 Or App 540, 544545, 728
P2d 921 (1986) (a valid marital agreement may have the effect of
waiving rights to support).
Although ORS 114.015(3) requires that notice must be given to
persons whose distributive shares may be diminished by the granting of
a petition for support, no statute directs the court to refuse or to limit
support if the distributive shares would be diminished. Creditors are not
entitled to notice, but their rights are taken into consideration by reason
of the need for judicial attention to the solvency of the estate. ORS
114.055(2).
7.5-2(c)
Priority
Support of the decedents surviving spouse and dependent

children has priority over administration expenses and over legacies and
devises. ORS 114.075. Support is deducted along with administration
expenses to determine the net estate under ORS 111.005(23), but
temporary support may not be deductible for estate tax purposes. See
Treas Reg 20.2056(b)-1, example (8). Support payments ordered by
the court pursuant to ORS 114.015 are not charged against the
distributive share of the person receiving support. ORS 114.075. See
6.2-4, 6.4-1 to 6.4-2, regarding insolvent estates. Support is in addition to the surviving spouses elective-share rights. ORS 114.600(2).
7-41
2012 Revision
7.5-2(d)
Modification and Termination of Support
The court has authority to modify or terminate an order for the

support of the decedents surviving spouse and dependent children.
ORS 114.045. The statute does not specify the procedure for securing a
modification or termination. It would be based presumably on the
petition of an interested party and a further hearing and notice, if the
court so required.
7.5-3
Setting Apart the Entire Estate
After the time for filing claims against the estate has expired (four
months after publication of the first notice), the entire net estate may be
set apart for the spouse or dependent children or both, when necessary
for the reasonable support of the spouse and dependent children, and the
estate is thereafter closed. ORS 114.085. See 6.3-1 to 6.3-3, for further discussion.
7.6
7.6-1
INITIAL TAX MATTERS
Introduction
Sections 7.6-2 to 7.6-6(p) below are not intended to be a complete

discussion of federal and Oregon estate and inheritance tax issues, but
are intended to guide lawyers in the early stages of dealing with tax
issues. Discussion of estate and inheritance taxation can be found in
chapters 1214.
7.6-2
Gathering Information
The tax preparer should review copies of the decedents federal

and Oregon income tax returns for at least the last three years. The
returns provide information about the decedents assets, as well as the
status of tax matters. If the returns cannot be located among the
decedents papers or obtained from the decedents accountant, the
lawyer can request copies from the Internal Revenue Service, starting
with a request for a transcript on IRS Form 4506-T. See <www.irs.gov/
pub/irs-pdf/f4506t.pdf>.
7-42
2012 Revision
In addition to obtaining prior income tax returns, the probate

lawyer should:
(1) Contact the decedents tax adviser and review the status of
estimated income tax payments of the decedent;
(2)
Obtain copies of any gift tax returns; and
(3)
Gather information about property taxes.
PRACTICE TIP: Title companies or the assessors office can

provide printouts indicating the true cash and assessed values of
real property, a legal description or a reference to a deed, and the
status of the taxes.
7.6-3
Notices and Applications
7.6-3(a)
Income Taxes
The personal representative should apply for a taxpayer

identification number for the estate, using IRS Form SS-4. (The number
is not needed if the estate holds no liquid assets and does not expect to
file an income tax return.) Form SS-4 is available as an electronic fill-in
form at the IRS Web site, <www.irs.gov>. Getting the accountant to
obtain the taxpayer identification number will assist in involving the
accountant early in the process of tax planning. The taxpayer identification number is used on the fiduciary income tax returns, but not on the
estate tax return. It should be furnished to anyone who is holding estate
funds and who is required to advise the IRS of payments made to the
estate.
The personal representative should also file IRS Form 56 to
notify the IRS of the personal representatives fiduciary relationship. No
penalties apply to a failure to file this form. If the form is not filed,
however, the IRS can send deficiency notices and other communications
to the decedents former address, and need not advise the personal
representative of its actions. The IRS also may fail to act on requests for
prompt assessment of taxes if the notice of fiduciary relationship is not
filed.
7-43
2012 Revision
7.6-3(b)
Property Tax Exemption for Veterans
The surviving spouse of a veteran who qualified for the property

tax exemption described in ORS 307.250 may be entitled to the same
exemption. The application for exemption is made each year on or
before April 1. ORS 307.260. See also 7.6-4(a), item (4).
7.6-4
Due Dates and Filing Requirements
7.6-4(a)
Due Dates
The lawyer for the personal representative should enter the

following dates in a tickler system:
(1) Estate Tax Returns. Returns must be filed within nine
months after the decedents date of death. See IRC 6075; ORS
118.100(1). The filing thresholds are discussed in 7.6-4(b).
(2) Estate Tax Alternate Valuation Date. Property remaining in
the estate six months after the date of the decedents death must be
valued as of the date six months after the date of the decedents death.
See IRC 2032. See also 7.6-6(h), 12.1-2(a), 12.2-5(e).
(3) Property Taxes: Property taxes are due on November 15.
See ORS 311.250.
(4) Property Tax Exemption for Veterans. The surviving
spouse of a veteran qualifying for the exemption under ORS 307.250
must file a claim for the exemption on or before April 1 of the
assessment year for which the exemption is claimed, except that when the
property designated is acquired after March 1 but prior to July 1 the
claim shall be filed within 30 days after the date of acquisition. ORS
307.260.
(5) Decedents Final Income Tax Returns: The decedents final
income tax returns are normally due on or before April 15. See Treas
Reg 1.6072-1(b); IRC 443(a)(2); ORS 316.382. No return needs to be
filed if the decedent had not earned sufficient income for the year by the
date of death to require one. The personal representative should keep
records documenting the lack of a need to file.
7-44
2012 Revision
(6) First Fiduciary Income Tax Returns: Fiduciary income tax

returns must be filed by April 15 if the estate uses a calendar year, or
within three months and 15 days following the close of the fiscal year if
the estate elects a fiscal year. See IRC 6072(a). The estate may elect to
have a fiscal year other than the calendar year. See 7.6-6(d). It is
helpful to log the latest possible date for filing, which would be 15
months and 15 days after the end of the month immediately preceding
the decedents death. An estate that has less than $600 gross income
need not file an income tax return. IRC 6012(a)(3).
(7) Estimated Tax Payments: Quarterly payments are due for
any tax year ending two or more years after the decedents death,
depending on the amount of taxable income. This could apply to a tax
year beginning as early as one year after the decedents death, if a short
first fiscal year is elected. See IRC 6654(l)(2).
7.6-4(b)
Filing Requirements
The lawyer for the personal representative should prepare a rough

estimate of assets, liabilities, and income to review in view of the
following filing requirements:
(1) Federal Estate Tax: A federal estate tax return must be
filed if the gross estate exceeds the applicable exclusion amount. IRC
6018(a). The applicable exclusion amount is defined in IRC 2010(c).
The applicable exclusion amounts under IRC 2010(c) as
amended by the 2010 Tax Act (Pub L No 111-312, 302(a)(l), 303(a)
and 304) for years 1997 or later are:
YEAR OF DEATH
APPLICABLE EXCLUSION AMOUNT
1997
$600,000
1998
$625,000
1999
$650,000
20002001
$675,000
20022003
$1,000,000
20042005
$1,500,000
7-45
2012 Revision
YEAR OF DEATH
APPLICABLE EXCLUSION AMOUNT
20062008
$2,000,000
2009
$3,500,000
2010
Unlimited/$5,000,000
2011
$5,000,000
2012
$5,120,000 (after inflation adjustment)
2013
$1,000,000 (unless Congress acts)
For purposes of the filing requirements, the gross estate means

the gross value, at the time of death, of all of the decedents assets,
wherever they are located (see IRC 2031(a)), plus the amount of the
adjusted taxable gifts (as defined in IRC 2001(b)) since 1976, plus the
aggregate amounts of the pre-1977 specific gift tax exemption (under
former IRC 2521 as it existed before 1977) used between September 8,
1976, through December 31, 1976. IRC 6018(a)(3).
For estates of decedents dying in 2010, the executor could elect
out of the federal estate tax. See 301(c) of the 2010 Tax Act (Pub L No
111-312, 301(c), 124 Stat 3300). A discussion of the rules for electing
out of the federal estate tax is beyond the scope of this chapter.
(2) Oregon Estate or Inheritance Tax: The 2003 Oregon
Legislature reacted to the increases in the federal applicable exclusion
amount by decoupling the Oregon inheritance tax from the federal
estate tax. ORS 118.007. As a result, since 2006, if an Oregon
decedents taxable estate exceeds $1,000,000, an Oregon inheritance tax
is payable. ORS 118.010(4).
The Oregon inheritance tax return requires the personal representative to fill out the schedules associated with a federal estate tax
return, even if no federal estate tax return is required. For deaths
occurring before January 1, 2012, the Oregon Inheritance Tax Return,
Form IT-1, is available on the Oregon Department of Revenues Web
site, at <www.oregon.gov/dor>. The 2011 Legislature rewrote Oregons
inheritance tax and, among other things, renamed it the estate tax and
imposed new rates of tax. See 2011 Or Laws ch 526. For deaths occur7-46
2012 Revision
ring on or after January 1, 2012, Oregons inheritance tax form (Form IT1) has been replaced by a new estate tax form, Form OR706, Oregon
Estate Transfer Tax Return. See <http://cms.oregon.gov/dor/BUS/Pages/
forms-fiduciary.aspx>.
PRACTICE TIP: Because the Oregon estate tax is based on
filling out federal estate tax return schedules, it is relatively easy,
in the case of the first spouse to die, to file the federal estate tax
return needed to claim the deceased spousal unused exclusion
amount under IRC 2010(c)(4)(5). See 12.1-1, 12.1-6(b).
(3) Decedents Final Income Tax Return: The filing
requirements vary, depending on the status of the decedent. See
instructions to IRS Form 1040, available at <www.irs.gov/formspubs/
index.html>.
(4) Fiduciary Income Tax Returns: Form 1041 (available at
<www.irs.gov/formspubs/index.html>) is used to file a return if the
estate has a gross income of $600 or more, or if there is a beneficiary
who is a nonresident alien. See instructions for IRS Form 1041
(available at <www.irs.gov/formspubs/index.html>; see also IRC
6012(a)(3), (5).
7.6-5
Availability of Deductions and Special Provisions
The probate lawyer should review the will and any trust agreement regarding the following:
(1) Qualification for the marital deduction generally, see IRC
2056; see also 12.1-5(a) to 12.1-5(d);
(2) In a will written before September 12, 1981, if a formula
marital bequest is involved, whether the transition rule of 403(e)(3) of
the 1981 Economic Recovery Tax Act (Pub L No 97-34) prohibits use
of the unlimited marital deduction;
(3) Whether to make a qualified terminable interest property
(QTIP) election under IRC 2056(b)(7);
COMMENT: Many bypass trusts, even though not drafted for
the purpose, qualify for the QTIP election. See IRC 2056(b)(7)
for the required terms. Making an Oregon QTIP election, as
7-47
2012 Revision
permitted by ORS 118.010(8), with respect to a bypass trust may

be useful to avoid Oregon inheritance tax on the death of the first
spouse. See OAR 150-118.010(7), example 2. See also 7.6-6(k),
12.1-5(c)(3). If a QTIP election is not available, the personal
representative should determine whether the trust can qualify for
the Oregon Special Marital Property election under ORS 118.013.
See 14.4-10. Such an election, if available, will allow the trust to
qualify for the marital deduction from the Oregon estate tax. See
7.6-6(l).
(4) Whether a charitable bequest or split-interest gift qualifies
for the charitable deduction, see IRC 2055; see also 12.1-4(i);
(5) Whether a special-use value under IRC 2032A should be
considered, see 7.6-6(h), 12.2-12(b) to 12.2-12(b)(4);
(6) Whether the estate qualifies for installment payment of
taxes under IRC 6166; see 12.2-7(b)(3);
(7) Whether a corporation may redeem stock from the estate
without dividend treatment under IRC 303;
(8) Whether there will be any generation-skipping transfers
(GST) (a GST tax applies to taxable distributions, taxable terminations,
or direct skips that exceed the applicable exclusion amount), see IRC
26112663, see also chapter 13; and
(9) Whether the will overrides the statutory apportionment of
estate taxes described in ORS 116.313 (note that the statute does not
permit a trust provision to override the statutory apportionment).
7.6-6
Elections
7.6-6(a)
Income Tax Returns
(1) The Year of Death. The surviving spouse and the personal
representative may elect to file separate income tax returns with respect
to the decedent and the decedents surviving spouse for the year of the
decedents death. The surviving spouse and the personal representative
may elect to file a joint return with respect to the decedent and the
decedents surviving spouse for the year of death, reporting the dece7-48
2012 Revision
dents income to the date of death and the surviving spouses income for
the full tax year. IRC 6013(a)(3). If a joint return is filed, the preparer
may need to allocate the items of income, deductions, and tax between
the husband and the wife, so that the deceased spouses portion of the
tax liability will be known, and a deduction for this tax can be claimed
for estate and inheritance tax purposes.
The personal representative should file the final federal income
tax return on IRS Form 1040, 1040A, or 1040EZ, as appropriate. See
<www.irs.gov/formspubs>. The Oregon return is Oregon Form 40. The
preparer should mark the returns Final Return at the top of page 1 and
indicate that the taxpayer is deceased and show the date of death. The
personal representative should sign the return on behalf of the decedent,
irrespective of whether the filing status is joint or individual. A copy of
the letters testamentary should be attached to the return. If a refund is
due the estate, IRS Form 1310, Statement of Person Claiming Refund
Due a Deceased Taxpayer, also should be completed and submitted
with the federal return, and the similar Oregon Form 243 also should be
filed.
(2) The Following Two Years. If the surviving spouses home
is the principal residence of a dependent child or stepchild, the
surviving spouse may qualify to elect to use joint return rates for two
years after the decedents death. See IRC 1(a), IRC 2(a). The right
terminates if the surviving spouse remarries. IRC 2(a)(2)(A). After the
two-year period, the surviving spouse is entitled to file as a head of
household if he or she meets the requirements.
(3) Payments of Quarterly Estimates. Estimated taxes for the
decedent are not required after the date of the decedents death. See IRC
6654(l)(2). However, if the decedent and the surviving spouse filed
jointly, the surviving spouse is still liable for making estimated payments
for the tax year. See Treas Reg 1.6654-2(e)(7)(ii). For a general
discussion of estimated taxes, see Estimated Tax, 581-2nd Tax Mgmt
(BNA) (2008) (citation not verified by publisher).
NOTE: Congress repealed former IRC 6015 and 6153, the
statutes that exempted the decedent from estimated tax filings
7-49
2012 Revision
(although 6015 has since been replaced). The regulations written

for repealed IRC 6015 and 6153, Treas Reg 1.6015 and
1.6153-1(a)(4), still provide support for the conclusion that
estimated taxes need not be paid. Until new regulations under IRC
6654 are released covering estimated tax payments for a single
decedent, most commentators suggest following the regulations
under the repealed sections.
For instance, despite the repeal of IRC 6153 by the Deficit
Reduction Act of 1984, Pub L No 98-369, 412(a)(3), 98 Stat 792,
the IRS subsequently applied Treas Reg 1.6153-1(a)(4) to determine that no estimated income tax had to be paid after the death of
an individual. Priv Ltr Rul 91-02-010 (Oct 10, 1990). The IRS
further noted that there was no indication of a legislative purpose
in enacting section 6654 to change the position set forth in section
1.6153-1(a)(4) of the regulations. Priv Ltr Rul 91-02-010, supra.
PRACTICE TIP: The lawyer should consider filing IRS Form
5495 to allow the personal representative to request discharge from
personal liability for the decedents income taxes. See IRC 6905.
The corresponding Oregon form is entitled Election for Final Tax
Determination for Income Taxes and Application for Discharge
from Personal Liability for Tax of a Decedents Estate. Oregon
Form 150-101-151.
7.6-6(b)
Disclaimers
The surviving spouse and other beneficiaries may elect to

disclaim benefits received by reason of the decedents death. See IRC
2518 and ORS 105.623105.649. See also 7.1-3 (item (13)), 8.32(a) to 8.3-2(f). The use of disclaimers as a postmortem planning tool
can ameliorate mistakes in a decedents estate plan, such as to allow a
trust to qualify for the marital deduction, or to allow beneficiaries to
redirect assets to those with a greater need. Care is needed to ensure that
the disclaimer will have the desired effect. Fleenor v. Williamson, 171
Or App 599, 17 P3d 520 (2000) (an heir who had executed a complete
and unconditional disclaimer of an interest in an estate could not later
revoke or revise that disclaimer based on a unilateral mistake of law).
7-50
2012 Revision
7.6-6(c)
Personal Representatives Compensation
A personal representative who is also a residuary beneficiary may

wish to elect to waive compensation. Compensation is taxable income
to the personal representative, but is not subject to self-employment
taxes as long as the personal representative is not a professional
fiduciary. Rev Rul 58-5, 1958-1 CB 322 (1958). If the personal representative is the sole residuary beneficiary of a taxable estate, the
decision depends on a comparison of the estate tax and the personal
representatives income tax. When appropriate, the personal representative should promptly waive compensation to avoid being considered, for
tax purposes, in constructive receipt of the income. See Rev Rul 66-167,
1966-1 CB 20 (1966), providing a safe harbor if the personal representative who wishes to waive compensation does so within six months
after appointment.
7.6-6(d)
Accounting Method, Fiscal Year
The personal representative may elect either the cash method or

the accrual method of accounting for the estate, and may select the
fiscal year for the estate. See IRC 441, IRC 443(a)(2), IRC 446. The
election must be made by the time the first estate income tax return is
due (not including extensions). Treas Reg 1.441-1(c)(1). By choosing a
fiscal year other than a calendar year, the personal representative can
defer the time when estate income is taxed to the beneficiaries, or divide
into two tax years income that would otherwise be bunched into one
calendar year. If the trustee elects under IRC 645 to have the
decedents revocable trust taxed as part of the decedents estate, the
trustee may also elect to use a fiscal year for the trust.
PRACTICE TIP: The personal representative and the accountant who will prepare the fiduciary income tax return should
attempt to identify opportunities to save or defer taxes by selecting
a fiscal year end that may be more advantageous than a calendar
year.
7.6-6(e)
Trust Election to Be Taxed as Estate; 65-Day Rule
Under IRC 645, the decedents revocable trust can be treated as

part of the decedents estate for tax purposes (even if there is no probate
7-51
2012 Revision
estate) if the trustee files an irrevocable election as described in IRC

645(c).
A personal representative may elect, under IRC 663(b), to treat
distributions made within 65 days after the end of the estates tax year
as made on the last day of that tax year for income tax purposes.
7.6-6(f)
Medical Expenses
The personal representative may elect to claim a deduction for the

decedents medical expenses paid within one year after death on the
decedents final income tax return if a separate return is filed, or on a
joint return if the surviving spouse consents and a joint return is filed.
IRC 213(c). Alternatively, medical expenses that are unpaid at the
decedents death can be claimed as debts for estate tax purposes. See
IRC 2053.
7.6-6(g)
Interest on Savings Bonds
The personal representative may elect to accrue interest to the

date of death on U.S. Series E and EE bonds on the decedents final
income tax return. See IRC 454(a); Rev Rul 68-145, 1968-1 CB 203
(1968). If that election is not made, the interest will, to the extent it
relates to the period before the decedents death, be taxable to the
subsequent owner as income in respect of a decedent. Rev Rul 64-104,
1964-1 CB 223 (1964). See IRC 454(a), IRC 691(a).
7.6-6(h)
Valuation Elections
For federal estate tax purposes, the personal representative may

elect to value the assets of the estate six months after the decedents
death rather than on the date of death. IRC 2032. The election may be
made, however, only if both the gross estate and the estate tax are
decreased by reason of the election. See IRC 2032(c). The personal
representative may make the election for Oregon purposes whether or
not a federal estate tax return is filed. ORS 118.010(8).
The personal representative should also consider electing specialuse valuation under IRC 2032A, if the estate consists largely of farm,
ranch, or timber property. See 12.2-12(b) to 12.2-12(b)(4). Such
7-52
2012 Revision
property, and commercial fishing businesses, may also be eligible for

the Oregon natural resources credit under ORS 118.140. See 14.26(a) to 14.2-6(d)(3).
7.6-6(i)
Administration Expenses
The personal representative may elect to deduct administration

expenses and losses during administration on either the fiduciary
income tax returns or on the estate tax return. A comparison of the
effective rates and the time of payment is necessary. For income tax
purposes, the deduction can be taken only for the year in which payment
is made. Any such expenses that constitute miscellaneous itemized
deductions are deductible only to the extent that they are in excess of
2% of adjusted gross income. See IRC 67(a); see also 12.1-4(e)(3).
The IRS has extended its suspension of rules that would force
corporate trustees to segregate their administrative fees from investment
advisory fees for purposes of identifying fees that are subject to the 2%
floor. Notice 2011-37, 2011-20 IRB 785 (2011).
Some expenses of administration (management) may be deducted
from estate income, rather than principal, under the so-called Hubert
regulations (Treas Reg 20.2055-3(b)), arising from the United States
Supreme Courts decision in Commr v. Estate of Hubert, 520 US 93,
117 S Ct 1124, 137 L Ed2d 235 (1997).
7.6-6(j)
Extension of Time to Pay
The personal representative may elect to extend the time for

payment of the federal estate tax under IRC 6161 or, if the estate
consists largely of a closely held business, under IRC 6166, or under
both sections, and to extend the time for payment of the Oregon estate
tax under ORS 118.225. An extension of time to file may be filed (on
IRS Form 4768) as late as the due date of the estate tax return. The
estate will automatically receive a six-month extension of time to file.
However, the tax payment date is not extended unless the estate makes
an election under either IRC 6161 or IRC 6166.
See the instructions for Form 4768, available at <www.irs.gov/
formspubs/index.html>.
7-53
2012 Revision
According to advice from the Oregon Department of Revenue, if

an estate is exempt from federal estate tax but is subject to the Oregon
tax, the personal representative may file for an extension using IRS
Form 4768 marked For Oregon Only at the top of the form.
7.6-6(k)
Qualified Terminable Interest Property
The personal representative may elect to treat certain property as

qualified terminable interest property (QTIP) to obtain a marital
deduction for federal estate tax purposes. Many bypass trusts qualify for
the QTIP election, even though not originally intended to be QTIP
trusts. See IRC 2056(b)(7). Making a partial election with respect to a
qualifying bypass trust may allow the estate of a married decedent to
escape Oregon estate tax. See 7.6-5, 12.1-5(c)(3). The Oregon
Department of Revenue has adopted rules allowing an Oregon QTIP
election that is separate from any election on the federal estate tax
return. See OAR 150-118.010(7).
PRACTICE TIP: Careful use of disclaimers may allow
beneficiaries to modify a credit shelter trust that does not qualify
for the QTIP election into a trust that does qualify. See Treas Reg
20.2056(b)-7(h), example (4).
7.6-6(l)
Oregon Special Marital Property
Oregon allows bypass trusts that fail to qualify for the qualified
terminable interest property (QTIP) election to qualify for the marital
deduction, even if the trust allows the accumulation of income, provided
that any permissible beneficiaries who are not the surviving spouse make
an election described in ORS 118.016(2), releasing all rights to
distributions from the property or trust during the lifetime of the
surviving spouse.
PRACTICE TIP: The release described in ORS 118.016(2)
should be treated as a disclaimer and made only in a manner that
will qualify as a disclaimer under IRC 2518. Otherwise, the
consenting beneficiaries may be considered to have made a taxable
gift of the released interest. See 7.1-3 (item (13)); see also 8.32(c).
7-54
2012 Revision
Under ORS 118.013(2), Oregon special marital property consists

of any portion of a trust or other property interest:
(1) In which principal or income may be accumulated or
distributed to or for the benefit of only the surviving spouse of the
decedent during the lifetime of the surviving spouse;
(2) In which a person may not transfer or exercise a power to
appoint any part of the trust or other property interest to a person other
than the surviving spouse during the lifetime of the surviving spouse;
and
(3) For which the executor of the estate of the decedent has
made the election described in ORS 118.016(1).
If a trust or other property interest would qualify as Oregon
special marital property under ORS 118.013(2) except that the trust or
other property interest allows principal or income to be distributed to
other persons in addition to the surviving spouse, ORS 118.013(3)
allows the executor to elect to set aside a share of the trust or other
property interest as a separate share of the trust or property interest or as
a separate trust, which shall qualify as Oregon special marital property,
if:
(1) The executor makes the election described in ORS
118.016(1);
(2) Each permissible distributee (as defined in ORS 130.010)
makes the election described in ORS 118.016(2);
(3) The surviving spouse makes the election described in ORS
118.016(2); and
(4) All statements of elections are attached to the estate tax
return filed with respect to the estate of the decedent, or are filed or
maintained as records as otherwise prescribed by the Department of
Revenue by rule.
7.6-6(m)
Gain or Loss Recognition
In general, estates are not required to recognize gain or loss on

distribution of property to residuary beneficiaries. As a result of IRC
7-55
2012 Revision
643(e)(3), passed in the Deficit Reduction Act of 1984, however, a

personal representative may elect to recognize gain or loss on
distribution of assets in kind in the same manner as if the property had
been sold to the beneficiary at its fair-market value. IRC 643(e)(3).
Otherwise, the property distributed in kind will have built-in appreciation or depreciation based on the change in value subsequent to the date
of death or alternate valuation date, as applicable.
In deciding whether to make the election, the personal representative should compare the effective income tax rates imposed on the estate
and on the beneficiary.
7.6-6(n)
Partnership Elections
A partnership may elect to adjust the basis of partnership property

to reflect the deceased partners higher individual basis in his or her
partnership interest. See IRC 753754.
7.6-6(o)
Review Payout Options
The lawyer should review various payout options from IRAs,

profit-sharing plans, 401(k) plans, and other deferred compensation
plans. The Professional Liability Fund notes that claims about distributions from IRAs are becoming more common. Lawyers should consider
the complicated tax rules governing IRAs before advising a beneficiary
how to handle an IRA.
7.6-6(p)
Generation-Skipping Transfers
In estates in which it is possible to use the generation-skipping

exemption described in IRC 2631(a), care must be taken to avoid
paying unnecessary tax. See 13.5 to 13.5-3(b).
7-56
2012 Revision
Form 7-1
Inventory of Property of Decedents Estate

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

INVENTORY OF
PROPERTY OF
DECEDENTS ESTATE
The personal representative sets forth an inventory of all of the

property of the estate that has come into the personal representatives
possession or knowledge, with the personal representatives estimate of
the true cash value of the property as of the date of death of the decedent,
as follows:
Estimated Value on
Date of Death
I.
REAL PROPERTY:
Real property and improvements
located at 687 Oak Hill Drive,
Eugene, Lane County, Oregon, and
further described as Lot 13, Block 4,
First Addition to Willamette Heights
as platted and recorded in Book 12,
page 13, Lane County Oregon Plat
Records in Lane County, Oregon.
County tax account no: ______
Tax lot number: ________________
2010-2011 Assessors RMV
Land:
Improvements:
(Encumbered by a mortgage to ABC
Bank with an unpaid balance at date
of death of $25,351.90)
$115,000
80,000
$195,000.00
7-57
2012 Revision

II.
STOCKS AND BONDS:

150 shares American Telephone &
Telegraph Co., common selling exdividend at $50.25 per share.
7,537.50
American Telephone & Telegraph

Co. Declared but unpaid dividend.
[note: to be used when decedent dies
after ex-dividend but before
payment]
III.
IV.
V.
VI.
VII.
75.00
100 shares American Telephone &

Telegraph Co., preferred at $40.00
per share.
4,000.00
$10,000 Portland General Electric

7.8% bond, Series VII, maturing
12/1/2015.
9,300.00
100 shares ABC 2.81% preferred,

maturity 6/30/2017.
3,500.00
599.813 shares Founders Mutual

Depositor Co., at $25.25 per share.
15,145.27
$50 Series E Bond

dated May, 1980.
223.50
VIII. Dividend Reinvestment Account No.

1234 at Chase Bank for AT&T
dividends, 12.456 shares at $50.25
per share.
IX.
7-58
2012 Revision
MORTGAGES, NOTES AND

CONTRACTS:
Vendors interest in a land sale
contract between decedent as seller,
and Mary Doe as purchaser, held in
escrow at XYZ Escrow as its number
1234, in original amount of
$100,000 bearing interest at 7%
covering Lot 12, Block 2, Third
Addition to Oak Heights, in Eugene,
Lane County, Oregon
Unpaid balance at date of death:
Interest accrued to date of death:
625.91
55,653.85
32.98
55,686.83

X.
XI.
XII.
Promissory note in original amount

of $100,000 dated 6/25/2002 bearing
10% per annum interest, given by
John C. Jones, secured by a trust
deed dated 6/25/2002, recorded at
Reel 1234R as instrument number
2002-16543, Lane County Official
Records covering: Lot 11, Block 2,
Third Addition to Solar Acres, in
Eugene, Lane County, Oregon.
Unpaid balance at date of death:
CASH:
Cash found on person
105.36
Uncashed checks:
ABC Company, dividend:
Medicare:
Car Insurance Co.:
75.00
103.10
25.00
XIII. ABC National Bank of Oregon

Eugene Main Branch,
Account No. 012 345 678
XIV. Time certificate No. 456 issued by
XYZ Bank of Oregon, N.A.:
XV.
18,757.83
72.98
MISCELLANEOUS:
Miscellaneous household goods,
furnishings, equipment, and all
personal jewelry, clothing, and
other articles of personal and
domestic use or ornament located in
decedents residence at 687 Oak Hill
Drive, Eugene, Oregon
XVI. 1 cherry dresser that belonged to

decedents grandmother
XVII. Family Bible
TOTAL INVENTORY VALUE
18,830.81
203.10
1,010.56
10,000.00
45.00
10,045.00
2,000.00
750.00
Nominal
$322,922.92
7-59
2012 Revision

DATED: _______________, 20___.

/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 7.4-2(a), 7.4-3(a) to 7.4-3(k). See UTCR 2.010
and UTCR 9.030 for the form of documents. See also ORS 111.205.
7-60
2012 Revision
Form 7-2

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

SUPPLEMENTAL
INVENTORY
The personal representative sets forth this supplemental inventory

of all the property of the estate omitted from the inventory previously
filed that has now come into the personal representatives possession or
knowledge, with an estimate of the respective true cash values of the
property as of the date of death of the decedent as follows:
Estimated
Value on
Date of
Death
Total estimated true cash value of estate per
inventory filed __________________, 20___
$322,922.92
CASH:
XVIII. Currency found in envelope in file drawer.
Total supplemental inventory value
$ 1,050.00
$323,972.92
DATED: _______________, 20___.

/s/__________________________
[name]
7-61
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 7.4-2(b). See UTCR 2.010 and UTCR 9.030 for
the form of documents. See also ORS 111.205.
7-62
2012 Revision
Form 7-3
Amended Inventory

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

AMENDED INVENTORY
The personal representative sets forth this amended inventory of

the personal representatives revised estimate of the respective true cash
values of the following listed property as of the date of death of decedent:
Estimated Value
on Date of Death
Total estimated true cash value
of estate per inventory filed
___________________, 20___
$650,510.00
XIX. 11,469.513 shares Franklin

Custodian Fund, Inc. a/c
90100030332
Originally reported
Adjusted to
XX.
$21,233.30
21,792.07
558.77
34,718.52
31,204.90
(3,513.62)
2,798.646 shares Fund of

America, Inc., a/c 555-0014456-6
Originally reported
Adjusted to
Total amended inventory
estimated true cash value
$647,555.15
7-63
2012 Revision

DATED: _______________, 20___.

/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 7.4-2(b), 7.4-5. See UTCR 2.010 and UTCR

9.030 for the form of documents. See also ORS 111.205.
attorney assigned to try the case. UTCR 2.010(7)
7-64
2012 Revision
Chapter 8
RIGHTS OF INTERESTED PERSONS
TIMOTHY J. WACHTER, B.A., Washington State University (1984); J.D., Willamette
University College of Law (1987); member of the Oregon State Bar since
1987; partner, Duffy Kekel, LLP, Portland.
8.1
RIGHTS OF HEIRS AND DEVISEES .................................... 8-4

8.1-1
When Title Vests .......................................................... 8-4
8.1-2
Survivorship .................................................................. 8-4
8.1-3
Advancements............................................................... 8-5
8.1-4
Effect of Homicide or Abuse ........................................ 8-5
8.1-4(a)
In General .......................................................... 8-5
8.1-4(b)
Property Interests Covered ................................ 8-6
8.1-4(c)
Prior Law........................................................... 8-7
8.1-5
8.2
Factors Affecting Testamentary Distribution ............... 8-8
8.1-5(a)
Antilapse Statute ............................................... 8-8
8.1-5(b)
Lapse of Devise to Trust ................................... 8-8
8.1-5(c)
Abatement of Devises ....................................... 8-8
8.1-6
Inheritance by Nonresident Alien ................................. 8-9
8.1-7
Determination of Heirship ............................................ 8-9
CLAIMING AN INTEREST IN A DISTRIBUTION ............ 8-10

8.2-1
When Issue May Be Raised ........................................ 8-10
8.2-2
Petition for Instructions .............................................. 8-11
8.2-3
Declaratory Judgment Proceeding .............................. 8-12
8.2-3(a)
Jurisdiction ...................................................... 8-12
8.2-3(b)
Declaratory Judgment Procedure .................... 8-13
8.2-3(b)(1)
The Complaint .................................. 8-13
8.2-3(b)(2)
Parties Defendant .............................. 8-15
8.2-3(b)(3)
Parties................................................ 8-15
8.2-3(b)(4)
Answer .............................................. 8-15

8-1
2012 Revision
Chapter 8 / Rights of Interested Persons
8.2-4
8.2-3(b)(5)
Trial of Issues of Fact ........................ 8-15
8.2-3(b)(6)
Judgment and Appeal ........................ 8-15
8.2-3(b)(7)
Costs .................................................. 8-16
Property Subject to the Uniform Disposition of

Community Property Rights at Death Act .................. 8-16
8.2-4(a)
In General ........................................................ 8-16
8.2-4(b)
Proceedings to Perfect Title............................. 8-16
8.2-5
8.2-4(b)(1)
Property Held by Decedent ............... 8-16
8.2-4(b)(2)
Property Held by Surviving

Spouse ............................................... 8-17
8.2-4(b)(3)
One-Half of Property Is Not

Subject to Right to Elective
Share .................................................. 8-17
Surviving Spouses Elective Share ............................. 8-17
8.2-5(a)
In General ........................................................ 8-17
8.2-5(b)
Availability of Election ................................... 8-19
8.2-5(c)
Mechanics of Election ..................................... 8-19
8.2-5(d)
Determining the Augmented Estate ................ 8-20
8.2-5(d)(1)
Decedents Probate Estate ................. 8-21
8.2-5(d)(2)
Decedents Nonprobate
Property ............................................. 8-21
8.2-5(d)(3)
Surviving Spouses Estate ................. 8-22
8.2-5(d)(4)
Valuation ........................................... 8-23
8.2-5(d)(5)
Exclusions from Augmented

Estate ................................................. 8-25
8.2-5(e)
Payment of Elective Share............................... 8-26
8.2-5(f)
Protective Orders ............................................. 8-27
8.2-5(g)
Waiver of Elective Share ................................. 8-28
8.2-5(h)
Separation ........................................................ 8-28
8.2-5(i)
Spouses Elective Share Under Prior

Law .................................................................. 8-29
8.2-5(i)(1)
8-2
2012 Revision
Law Before January 2011 ................. 8-29
Rights of Interested Persons / Chapter 8
8.2-5(i)(2)
8.3
8.4
Law from January 1, 2011 to

June 8, 2011 ...................................... 8-29
ALTERING INTESTATE SUCCESSION AND

TESTAMENTARY DISPOSITION ....................................... 8-29
8.3-1
Distribution by Agreement ......................................... 8-29
8.3-2
Disclaiming an Interest ............................................... 8-30
8.3-2(a)
In General ........................................................ 8-30
8.3-2(b)
Requirements of a DisclaimerOregon
Law .................................................................. 8-32
8.3-2(c)
Tax-Qualified DisclaimerFederal Law ......... 8-34
8.3-2(d)
Right to Disclaim May Be Barred .................. 8-36
8.3-2(e)
Effect on Other Rights .................................... 8-37
8.3-2(f)
Prior Law......................................................... 8-37
WILL CONTESTS; BREACH OF CONTRACT

TO MAKE A WILL ................................................................ 8-38
8.4-1
Notice and Filing Period ............................................. 8-38
8.4-2
Contesting a Foreign Will........................................... 8-39
8.4-3
No Statutory Grounds for Contest .............................. 8-39
8.4-4
Filing Fee .................................................................... 8-40
8.4-5
Appeal ......................................................................... 8-40
8.4-6
Effects of Successful Will Contest ............................. 8-40
Form 8-1
Election to Receive Elective Share of Estate Under

ORS 114.610 .................................................................... 8-42
Form 8-2
Disclaimer by Heir ........................................................... 8-45
Form 8-3
Disclaimer by Surviving Spouse ..................................... 8-48
Form 8-4
Written Partial Disclaimer of Bequest of

Partnership Interest .......................................................... 8-51
Form 8-5
Disclaimer to Cover Residuary Interest........................... 8-54
Form 8-6
Disclaimer of Intestate Succession or Devise.................. 8-56
Form 8-7
Nontestamentary Disclaimer ........................................... 8-58
8-3
2012 Revision
8.1
8.1-1
RIGHTS OF HEIRS AND DEVISEES
When Title Vests
Upon the death of a decedent, title to both real property and personal property vests immediately in the decedents heirs and devisees.
ORS 114.205, 114.215. However, the vesting of title is subject to several
limitations: (1) the support of the decedents spouse and children (see
ORS 114.015); (2) the rights of creditors (see ORS 115.001115.215);
(3) the administration and sale of property by the personal representative
(see ORS 114.325); and (4) for property devised in a will, the electiveshare rights of a surviving spouse (see ORS 114.600114.725). ORS
114.215.
Because title vests in heirs or devisees upon a decedents death, the
personal representative lacks the power to set aside an allegedly void
deed given by the decedent, unless the action is necessary to protect
creditors or other interested persons. Hendricksons Estate v. Warburton,
276 Or 989, 997998, 557 P2d 224 (1976).
Also, even though title vests in the heirs and devisees immediately,
as a practical matter, these persons do not receive marketable title until
probate is completed.
8.1-2
Survivorship
For deaths occurring on or after October 23, 1999, subject to the

provisions of the decedents will and certain other statutory exceptions, if
the title to or the devolution of property depends on whether a specified
person survives the death of another person, the specified person shall
be deemed to have died before the other person unless it is established by
clear and convincing evidence that the specified person survived the
other person by at least 120 hours. ORS 112.572.
For purposes of establishing death under the survivorship statutes,
death occurs when a person has sustained irreversible cessation of
circulatory and respiratory functions or when a person has sustained
irreversible cessation of all functions of the entire brain, including the
brain stem. ORS 112.582(1). A determination of death must be made in
8-4
2012 Revision
accordance with accepted medical standards. ORS 112.582(1). See

chapter 4, for further discussion of the survivorship statutes.
NOTE: For deaths occurring before October 23, 1999, the
determination of the right to property continues to be governed by
former ORS 112.085 and former ORS 112.575112.645. See 1999
Or Laws ch 131, 9.
8.1-3
Advancements
If a decedent died intestate as to all of his or her estate, property

that the decedent gave during his or her lifetime to an heir is treated as
an advancement against the heirs share of the estate if declared in
writing by the decedent or acknowledged in writing by the heir to be an
advancement. ORS 112.135. The property is valued as of the time that
the heir came into possession or enjoyment of the property, or as of the
time of the decedents death, whichever occurs first. ORS 112.135. See
ORS 112.145112.155.
ORS 112.135 overrules Seed v. Jennings, 47 Or 464, 467, 83 P 872
(1905), which presumed that an advancement was intended when a
lifetime gift of property was made to a child. ORS 112.135 does not
affect the result in Clark v. Clark, 125 Or 333, 342, 267 P 534 (1928),
which held that a will might direct that a previous gift be treated as an
advancement in determining the shares into which an estate will be
divided.
See 4.1-3(f) for the effect of advancements on distributions.
8.1-4
Effect of Homicide or Abuse
8.1-4(a)
In General
A slayer is prevented from receiving property that would have

passed to the slayer by reason of the death of the person whose life is
taken by the slayer. ORS 112.465(1).
Similarly, an abuser is prevented from receiving property that
would have passed to the abuser by reason of the death of a decedent who
died not later than five years after the abuser has been convicted of a
felony by reason of conduct against the decedent under ORS 124.105
8-5
2012 Revision
(physical abuse) or ORS 124.110 (financial abuse). ORS 112.465(1),

112.455(2)(b).
In addition, limitations apply to a slayers or an abusers rights to
receive property indirectly through an heir or devisee of the decedent.
ORS 112.465(2). Specifically, if property would have passed to the
slayer or abuser by reason of the death of an heir or devisee of the
decedent, the abuser or slayer is prevented from receiving the property,
unless the heir or devisee specifically provided for the slayer or abuser in
a will (or other instrument) after the death of the decedent. Under these
provisions, the slayer or abuser will be treated as predeceasing the
decedent. ORS 112.465(2).
The term slayer is defined as a person who, with felonious intent,
takes or procures the taking of the life of a decedent. ORS 112.455(3).
A final judgment of conviction of felonious and intentional killing is
conclusive for purposes of ORS 112.455 to 112.555. ORS 112.555. If
the slayer has not been convicted of felonious and intentional killing, the
court may determine the issue for purposes of ORS 112.455112.555
based on a preponderance of the evidence. ORS 112.555. Pursuant to the
definition of slayer, the statutes on homicidal death do not apply if the
decedents death was caused without felonious intent, such as death
caused by recklessness or negligence, which may be prosecuted as
manslaughter in the first degree (ORS 163.118), manslaughter in the
second degree (ORS 163.125), or criminally negligent homicide (ORS
163.145).
8.1-4(b)
Property Interests Covered
In addition to property that would have passed by intestate

succession, a will, a trust, or a transfer-on-death deed to the slayer or
abuser (see 8.1-4(a)), the following property vests as if the slayer or
abuser had predeceased the decedent (ORS 112.465):
(1) Property owned by the decedent and the slayer or abuser, as
tenants by the entirety or with a right of survivorship (ORS 112.475);
(2) Property owned by the decedent, the slayer or abuser, and
others with a right of survivorship (ORS 112.485);
8-6
2012 Revision
(3) Property in which the slayer or abuser owns a reversion or

vested remainder subject to an estate for the lifetime of the decedent
(ORS 112.495);
(4) Property appointed by the decedents will for the benefit of
the slayer or abuser (ORS 112.505(1));
(5) Property owned either presently or in remainder by the
slayer or abuser, subject to divestment by the decedents exercise of a
power of revocation or a general power of appointment (ORS
112.505(2));
(6) Proceeds of life insurance and other benefit plans of the
decedent payable to, or for the benefit of, the slayer or abuser as the
beneficiary or assignee of the decedent (ORS 112.515(1)); and
NOTE: If proceeds are payable from an heir or devisee of the
decedent to a slayer or abuser, the slayer or abuser will be entitled
to receive proceeds only if the heir or devisee has specifically
provided for the payment by written instrument executed after the
death of the decedent. ORS 112.515(2).
(7) Proceeds of insurance on the life of the slayer or abuser
when the decedent is the beneficiary or assignee of the policy (ORS
112.525).
Insurance companies, banks, trustees, and other obligors who make
payment or perform an obligation to the slayer or abuser without written
notice by a person claiming under ORS 112.455112.555 are protected
by ORS 112.535. Similarly, purchasers for value who deal with the slayer
without notice are protected by ORS 112.545.
PRACTICE TIP: In a homicide case in which the victim and
the slayer are husband and wife, or are otherwise in a position to
inherit from each other, and large estates are involved, the use of a
wrongful death action against the slayer or the slayers estate can
be an effective estate-planning technique.
8.1-4(c)
Prior Law
ORS 112.455112.555 replace former law, which had been

construed as inapplicable when a cotenant of a tenancy by the entirety
8-7
2012 Revision
property murders the other cotenant. Wenker v. Landon, 161 Or 265,

273274, 88 P2d 971 (1939). The Wenker case was overruled by use of a
constructive trust theory in Hargrove v. Taylor, 236 Or 451, 453454,
389 P2d 36 (1964). By adopting ORS 112.475, the legislature confirmed
the theory implicit in Hargrove and in this part of the probate codethe
murderer should not profit by the decedents death. In 2005, the probate
code was amended to prevent abusers, as well as slayers, of the decedent
from profiting upon the decedents death. ORS 112.475.
8.1-5
Factors Affecting Testamentary Distribution
8.1-5(a)
Antilapse Statute
Under the antilapse statute (ORS 112.395), unless the decedents

will provides otherwise, when property is devised to a person who is
related to the decedent by blood or adoption, and who predeceases the
decedent leaving lineal descendants surviving, the property passes to
those lineal descendants by representation. Unless the will provides
otherwise, a devisee under a class gift is included with those devisees
whose descendants are protected by the antilapse statute, if the death
occurred after execution of the will. ORS 112.395. See 4.2-7(h) to 4.27(i).
8.1-5(b)
Lapse of Devise to Trust
Unless the testators will provides otherwise, a devise to the trustee

or trustees of a trust will lapse if the testator revokes or terminates the
trust before the testators death. ORS 112.265(5).
8.1-5(c)
Abatement of Devises
If the assets of an estate are insufficient to satisfy the devises

described in the will, the shares of the distributees will abate as described
in ORS 116.133. The order for abatement contained in ORS 116.133(2)
applies only if (1) the will does not express an order of abatement, and
(2) the statutory scheme would not defeat the express or implied purpose
of the devise or the testamentary plan. ORS 116.133(1). Except as
provided in ORS 112.405 (relating to pretermitted children), and ORS
114.600114.725 (relating to the elective share of the surviving spouse),
8-8
2012 Revision
shares of distributees abate in the following order, with no preference or

priority between real property and personal property:
(1)
Property not disposed of by the will;
(2)
Residuary devises;
(3)
General devises; and
(4)
Specific devises.
ORS 116.133(2).
COMMENT: The provisions for payment of an elective share
of a surviving spouse under ORS 114.615 are discussed in 8.25(e).
For purposes of abatement, a general devise charged on any
specific property or fund is considered to be a specific devise to the
extent of the value of the specific property or fund on which it is charged.
ORS 116.133(3).
Devisees of tangible personal property not used in trade,
agriculture or other business are not required to contribute from that
property unless the particular devise forms a substantial amount of the
total estate and the court specifically orders contribution because of the
devise. ORS 116.133(5).
8.1-6
Inheritance by Nonresident Alien
Former ORS 111.070 limited the right of a nonresident alien to

receive property by inheritance or devise from a decedents estate. See
2.1. The repeal of the statute was precipitated by a ruling of the United
States Supreme Court holding that the statute was unconstitutional as
applied, as an interference in foreign affairs. Zschernig v. Miller, 389 US
429, 432, 88 S Ct 664, 19 L Ed2d 683 (1968), revg 243 Or 567 (1966).
The current probate code includes no other provision limiting the rights
of a nonresident alien to receive property by inheritance or devise from
the estate of an Oregon decedent.
8.1-7
Determination of Heirship
The probate code has no detailed statutory procedure for

determining the heirs of an estate. However, ORS 111.095(2) provides
8-9
2012 Revision
that [a] probate court has full, legal and equitable powers to make
declaratory judgments, as provided in ORS 28.010 to 28.160, in all
matters involved in the administration of an estate, including . . . the
determination of heirship. Thus, pursuant to ORS 111.095(2) and
ORS 28.040, any interested person may bring a declaratory judgment
proceeding in probate court to determine the heirs or devisees of an
estate. The procedure is described in 8.2-3(a) to 8.2-3(b)(7).
8.2
8.2-1
CLAIMING AN INTEREST IN A DISTRIBUTION
When Issue May Be Raised
NOTE: In this section, the word claim is used in its generic

sense, and not as a claim against the estate, which is governed by
ORS chapter 115 (see 9.2).
An heir or a devisee may claim an interest in the distribution of an
estate at several different stages in the probate proceedings. The heir or
devisee may:
(1)
File a petition for instructions under ORS 114.275 (see 8.2-
2);
(2) Commence a declaratory judgment proceeding as authorized
by ORS 111.095(2) (see 8.2-3(a) to 8.2-3(b)(7));
(3) For property subject to the Uniform Disposition of
Community Property Rights at Death Act, institute an action to perfect
title, as provided in ORS 112.755 (see 8.2-4(a) to 8.2-4(b)(3));
(4) File a petition for a partial distribution of estate property by
complying with the requirements of ORS 116.013 (see 11.8-1 to 11.81(b));
(5) Object to the final account and petition for distribution, as
provided in ORS 116.103 (see 11.7-1 to 11.7-3);
(6) For escheated property, if the heir or devisee did not have
actual knowledge of the order of escheat to the state of Oregon (ORS
116.193), make a claim for the return of escheated property or its
proceeds as provided in ORS 116.253; and
8-10
2012 Revision
(7) To exercise a spouses elective-share rights, file a motion as

provided in ORS 114.610 (see 8.2-5(a) to 8.2-5(c)).
COMMENT: Prior statutes (now repealed) that dealt with
determination-of-heirship proceedings created a problem regarding
a probate courts jurisdiction, or lack of it, to determine heirship.
At common law, real property vested at death in the heirs or
devisees, and the probate court had no jurisdiction to determine
who was entitled to the decedents real property. The problem has
largely been resolved by ORS 111.095(2), which gives the probate
court the power to decide heirship by declaratory judgment, and
ORS 114.275, which gives the probate court the power to issue
instructions on any matter concerning the administration, settlement or distribution of the estate. The solution may also be found
in ORS 116.093, which requires actual notice of the filing of the
final account and petition for a judgment of distribution, and in
ORS 116.113(4), which gives conclusive effect to the judgment of
final distribution. ORS 116.113(1) requires that the judgment
designate the persons in whom title to the estate available for
distribution is vested and the portion of the estate or property to
which each is entitled.
8.2-2
Petition for Instructions
As an interested person in the estate, an heir or devisee may apply

to the probate court for instructions on any matter concerning the
administration, settlement or distribution of the estate. ORS 114.275;
see ORS 111.005(19) (defining interested person). Upon the filing of a
petition for instructions, the probate court must instruct the personal
representative of the estate or rule on the matter as may be appropriate.
ORS 114.275. The probate procedures set forth in ORS 111.205111.275
govern a proceeding brought under ORS 114.275.
CAVEAT: Although a petition for instructions results in an
intermediate determination, the determination is not final until a
judgment of final distribution is made. ORS 116.113(4); see In the
Matter of Estate of Roley, 01C-19332, A124116 (Or Feb 2, 2005);
Roley v. Sammons, 197 Or App 349, 105 P3d 879 (2005). If an heir
8-11
2012 Revision
or devisee needs the issue to be determined with the finality of a

judgment before the completion of the probate proceeding, a
declaratory judgment is required. See 8.2-3(a) to 8.2-3(b)(7); see
also ORS 111.275 (regarding the courts authority to enter a
limited judgment).
8.2-3
Declaratory Judgment Proceeding
8.2-3(a)
Jurisdiction
A probate court has full, legal and equitable powers to make

declaratory judgments, as provided in ORS 28.010 to 28.160, in all
matters involved in the administration of an estate, including those
pertaining to the title of real property, the determination of heirship and
the distribution of the estate. ORS 111.095(2); see also ORS 114.275.
Any person interested in the administration of a trust, or of the
estate of a decedent, may have a declaration of rights or legal relations
in respect thereto to:
(1) [A]scertain any class of creditors, devisees, legatees, heirs,
next of kin or other; or
(2) Direct the administrators or trustees to do or abstain from
doing any particular act in their fiduciary capacity; or
(3) Determine any question arising in the administration of the
estate or trust, including questions of construction of wills and other
writings.
ORS 28.040.
PRACTICE TIP: ORS 111.095(2) was drafted on the assumption that probate jurisdiction would be in the circuit court in every
county. But the probate code leaves probate jurisdiction in the
county courts of six counties: Gilliam, Grant, Harney, Malheur,
Sherman, and Wheeler. ORS 111.075. See 2.2-1 to 2.2-3(c)(4),
5.2-1(a). It is doubtful that the drafters of the code intended that
probate declaratory judgment proceedings be conducted in the
county court. Although county courts are courts of record (OR
CONST art VII, 1 (original)), ORS 28.010 is not clear that county
courts are included in the grant of power therein. In those six
8-12
2012 Revision
counties, the better procedure would be to apply for a transfer of

the estate proceeding to the circuit court under ORS 111.115(1)
before, or concurrently with, filing a complaint for declaratory
relief. See 2.2-3(b)(1) to 2.2-3(b)(3).
See 2 OREGON CIVIL PLEADING AND PRACTICE ch 37 (OSB Legal
Pubs 2012), for a discussion of declaratory judgments.
8.2-3(b)
Declaratory Judgment Procedure
8.2-3(b)(1)
The Complaint
An heir or a devisee, or a person claiming to be such, may file a

complaint for a declaratory judgment regarding his or her claim to an
interest in the distribution of a decedents estate. ORS 111.095(2),
28.040.
CAVEAT: Asking the probate court for a declaratory judgment, or referring to ORS chapter 28 in a petition for instructions,
invokes a variety of procedural requirements not normally present
in a petition for instructions. For example, the initiation of a
petition for instructions under ORS 114.275 only requires a petition and notice to interested persons. ORS 111.205. In contrast, a
declaratory judgment proceeding requires the filing of a complaint
and personal service of process. Matter of Riddles Estate, 288 Or
687, 694695, 607 P2d 1370 (1980). Moreover a declaratory
judgment action requires that all affected persons be named as
parties. ORS 28.110; State ex rel. Dewberry v. Kulongoski, 220 Or
345, 358, 187 P3d 220 (2008), affd, 346 Or 260 (2009). If the
same result can be obtained by a petition for instructions, without
mentioning a declaratory judgment as among the relief being
requested, then the procedure will be simpler, but the ruling will
not have the force and effect of a final judgment.
A declaratory judgment proceeding to determine an issue of fact
may be tried and determined in the same manner as issues of fact are
tried and determined in other actions at law or suits in equity in the court
in which the proceeding is pending. ORS 28.090. The complaint in a
declaratory judgment proceeding should bear the same title of the court
and the same filing number as the probate proceeding, and should be
8-13
2012 Revision
filed in the probate court. See ORS 111.095(2); ORCP 16 A; UTCR

2.010(11); see also ORCP 13 B.
CAVEAT: As mentioned in 8.2-3(a), if the probate
proceeding is in a county court, the heir or devisee should first
petition the county judge for an order transferring the entire proceeding to the circuit court for the county; then the circuit court
sitting in probate will try the proceeding.
The parties should be listed as plaintiff and defendant. The
first pleading may be entitled Complaint for Declaratory Judgment. See
UTCR 2.010(11).
The complaint should show:
(1) That the plaintiff is an interested party entitled to maintain
the proceeding (see ORS 28.040);
(2) That all necessary parties have been joined as plaintiffs or
defendants (see ORS 28.110);
(3) The present existence of a justiciable controversy (see
Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982));
(4) The facts from which the plaintiff claims to be entitled to an
interest in the distribution; and
(5)
The contentions of each party on the questions in dispute.
The prayer of the complaint should ask for:

(1) A determination of the controversy described in the
complaint;
(2)
versy; and
A decision in favor of the plaintiff on the points in contro-
(3)
stances.
Other relief that may be just and proper in the circum-
A complaint may be filed at any time after the administration of

the estate is commenced, and before the entry of the judgment of final
distribution.
8-14
2012 Revision
After the entry of the judgment of final distribution, to claim an

interest in the distribution, the heir or devisee must either move for the
court to vacate the judgment or appeal from the judgment, if the issues
have been preserved. ORS 116.113(4).
8.2-3(b)(2)
Parties Defendant
All persons who have or claim any interest that would be affected
by the declaration must be made parties to the declaratory judgment
proceeding. ORS 28.110. The personal representative and all other
known heirs or devisees (or persons claiming to be such) must be made
parties defendant.
8.2-3(b)(3)
Parties
When declaratory relief is sought, all persons who have or claim

any interest that would be affected by the declaration must be made
parties to the proceeding. ORS 28.110.
PRACTICE TIP: Oregon Rules of Civil Procedure govern the
proceeding. For example, service of summons on unknown heirs
or persons under the Declaratory Judgments Act is controlled by
ORCP 7 D(6)(e), rather than the general probate procedural rules
found in ORS 111.215.
8.2-3(b)(4)
Answer
The form and contents of the answer in a declaratory judgment

proceeding are governed by the rules applicable to other suits. See ORS
28.090.
8.2-3(b)(5)
Trial of Issues of Fact
The mode of procedure in the exercise of jurisdiction in the

probate court is in the nature of an action not triable by right to a jury,
except as otherwise provided by statute. ORS 111.205; see ORS 28.090.
8.2-3(b)(6)
Judgment and Appeal
The declaration has the force and effect of a final judgment. ORS
28.010.
On a determination that there is no just reason for delay, the
court in a probate proceeding may enter a limited judgment for a decision
8-15
2012 Revision
on a request made in a proceeding for a declaratory judgment under ORS

111.095(2). ORS 111.275(1)(d), (2). The judgment document need not
reflect the courts determination that there is no just reason for delay.
ORS 111.275(2).
The judgment is appealable. ORS 28.070, 19.205; In re Estate of
Toles, 188 Or App 456, 71 P3d 584 (2003). Assuming that the
proceeding is in the circuit court, the appeal would be to the court of
appeals. ORS 111.105(2).
8.2-3(b)(7)
Costs
The court may award costs in a declaratory judgment proceeding

as may seem equitable and just. ORS 28.100.
8.2-4
Property Subject to the Uniform Disposition of

Community Property Rights at Death Act
8.2-4(a)
In General
All community property and all property acquired with the rents,
issues, income, or sale proceeds from community property, or property
traceable to community property, is property subject to the Uniform
Disposition of Community Property Rights at Death Act, ORS 112.705
112.775. ORS 112.715.
Upon the death of a married person, one-half of the property to
which ORS 112.705 to 112.775 apply is the property of the surviving
spouse and is not subject to testamentary disposition by the decedent or
distribution under the laws of succession of Oregon. ORS 112.735.
Thus, if property is subject to this uniform act, each spouse is entitled to
testamentary-disposition rights over one-half of the property.
For further discussion of the Uniform Disposition of Community
Property Rights at Death Act, see 4.3 to 4.3-5.
8.2-4(b)
Proceedings to Perfect Title
8.2-4(b)(1)
Property Held by Decedent
If a decedents estate includes property that is subject to the

Uniform Disposition of Community Property Rights at Death Act (ORS
8-16
2012 Revision
112.705112.775), a surviving spouse may perfect title in one-half of the

property that is subject to the act.
The title of the surviving spouse may be perfected by an order of
the probate court or by execution of an instrument by the personal
representative or the heirs or devisees of the decedent with the approval
of the court. ORS 112.745. Neither the personal representative nor the
court in which the decedents estate is being administered has a duty to
discover or to attempt to discover whether property is subject to the
uniform act, unless a written demand is made by the surviving spouse or
the spouses successor in interest. ORS 112.745.
8.2-4(b)(2)
Property Held by Surviving Spouse
If, at the time of the decedents death, a surviving spouse holds the
title to property that is subject to the Uniform Disposition of Community
Property Rights at Death Act (ORS 112.705112.775), the decedents
personal representative or an heir or a devisee of the decedent may
institute an action to perfect the title to the property. The personal
representative has no fiduciary duty to discover or to attempt to discover
whether any property held by the surviving spouse is subject to the
uniform act, unless a written demand is made by an heir, a devisee, or a
creditor of the decedent. ORS 112.755.
8.2-4(b)(3)
One-Half of Property Is Not Subject to Right to

Elective Share
Regarding property that is subject to the Uniform Disposition of

Community Property Rights at Death Act (ORS 112.705112.775), the
one-half of the property that is the property of the decedent is not subject
to the surviving spouses right to elect against the will. ORS 112.735.
8.2-5
Surviving Spouses Elective Share
8.2-5(a)
In General
For deaths occurring on or after January 1, 2011, a surviving

spouse may elect to receive the elective share provided under ORS
114.600114.725. Under the prior law (see former ORS 114.105
114.165), because the elective share was limited to 25% of the decedents
net probate estate, a spouses elective-share rights could be defeated
8-17
2012 Revision
through the use of nonprobate transfers. Under the current law, the
elective share applies to the augmented estate, which generally includes
all probate and nonprobate assets of both the deceased spouse and the
surviving spouse. ORS 114.605, 114.630114.635. See 8.2-5(i)(1) to
8.2-5(i)(2) for discussions on a spouses elective share under the prior
law.
Once the augmented estate is determined as provided in ORS
114.600114.725, the elective share is a dollar amount calculated as a
percentage of the augmented estate. ORS 114.605. The percentage varies,
depending on the length of the marriage, in accordance with the
following schedule, which is set forth in ORS 114.605(2):
If the decedent and the spouse
were married to each other:
The elective-share percentage is:
Less than 2 years
5% of the augmented estate
2 years but less than 3 years
10 years but less than 11 years 23% of the augmented estate

15 years or more
8-18
2012 Revision
If the aggregate value of the surviving spouses estate, including

probate and nonprobate property received from the decedent, is less than
the elective-share amount, any additional amount required to satisfy the
elective-share amount is paid out of the decedents probate and nonprobate estate. ORS 114.615.
8.2-5(b)
Availability of Election
An election to receive an elective share of the estate is available to

a surviving spouse only if the decedent is domiciled in Oregon on the
date of the decedents death. ORS 114.600(1). If a decedent dies while
domiciled outside of Oregon, the surviving spouses rights in the
decedents property are governed by the law of the decedents domicile.
ORS 114.600(3).
The surviving spouse may elect to claim the elective share
personally, or a conservator, guardian, or agent under the authority of a
power of attorney may claim the elective share on the surviving spouses
behalf. ORS 114.625. The election, however, must be made before the
death of the surviving spouse. ORS 114.600(1). If the election is timely
made before the death of the surviving spouse, the personal representative for the estate of the surviving spouse may take steps to secure
payment of the elective share. ORS 114.600(1). See Form 8-1.
Although not expressly provided for in ORS 114.600114.725, the
election to receive an elective share of the estate is also available to a
partner in a domestic partnership. See ORS 106.340.
8.2-5(c)
Mechanics of Election
The surviving spouse may claim the elective share only as

described in ORS 114.610, but the election must be made within nine
months after the death of the decedent as follows:
(1) If a probate proceeding has been commenced for the
decedents estate, the surviving spouse may file a motion in the probate
proceeding to exercise the elective share within nine months after the
death of the decedent. A copy of the motion must be served on the personal representative, as well as on all persons entitled to receive
information under ORS 113.145, and on all distributees and recipients of
8-19
2012 Revision
portions of the augmented estate known to the surviving spouse who can
be located with reasonable efforts. ORS 114.610(1)(b). See Form 8-1.
(2) If no probate proceeding has been commenced, the surviving
spouse may file a petition for the appointment of a personal representative for the estate of the deceased spouse, and then file a motion for
the exercise of election, within nine months after the decedents death.
ORS 114.610(1)(a)).
(3) The surviving spouse may claim the elective share by filing
a petition for the exercise of the election in circuit court within nine
months after the death of the decedent. ORS 114.610(1)(c), 114.720(1).
The venue for the proceeding is the same as the venue for a probate proceeding. ORS 114.720, 113.015. A copy of the petition must be served
on all persons who would be entitled to notice under ORS 113.145, as
well as on all of the distributees and recipients of portions of the
augmented estate known to the spouse who can be located with
reasonable efforts. ORS 114.720(1). The proceeding is governed by the
Oregon Rules of Civil Procedure, and any party may request that the
pleadings and records in the proceedings be sealed. ORS 114.720(1). If a
probate proceeding is commenced for the estate of the deceased spouse,
whether before or after a petition under ORS 114.720 has been filed, the
court is required to consolidate the circuit court proceeding with the
probate proceeding. ORS 114.720(3).
8.2-5(d)
Determining the Augmented Estate
ORS 114.630 provides that the augmented estate consists of three

separately described components: (1) the decedents probate estate (see
8.2-5(d)(1)), (2) the decedents nonprobate estate (see 8.2-5(d)(2)), and
(3) the surviving spouses estate (see 8.2-5(d)(3)).
NOTE: Before an amendment that became effective on June
9, 2011, ORS 114.630 provided that the augmented estate
consisted of the three components described above, as well as two
additional components: (1) the decedents probate transfers to the
surviving spouse, and (2) the decedents nonprobate transfers to
the surviving spouse. See former ORS 114.630(1). This prior law
applies to the surviving spouse of a decedent who died between
8-20
2012 Revision
January 1, 2011 and June 8, 2011. See 2011 Or Laws ch 305, 4,

7.
8.2-5(d)(1)
Decedents Probate Estate
The decedents probate estate includes the value of all of the estate
property that is subject to probate and that is available after payment of
claims and administrative expenses, or the value of all of the property
that could be administered pursuant to a small-estate affidavit (see 5.31 to 5.3-2). ORS 114.650. The probate estate does not include any probate property that constitutes a probate transfer to a surviving spouse.
ORS 114.650.
8.2-5(d)(2)
Decedents Nonprobate Property
The decedents nonprobate property consists of the decedents

interest in property, described in ORS 114.665, that is not included in the
decedents probate estate and that does not constitute a transfer to the
decedents surviving spouse. ORS 114.660. Effective June 9, 2011, the
value of the decedents nonprobate estate is reduced by all of the debts
and liabilities of the decedent that are not paid in probate, all of the costs
incurred in settling claims against the nonprobate estate, and administrative expenses. ORS 114.660; see 2011 Or Laws ch 305, 2, 7. The
list of nonprobate property included in the augmented estate is broad, and
includes the following:
(1) Property held in a form of survivorship tenancy immediately
before the death of the decedent, in an amount equal to the value of the
decedents fractional interest that passes by right of survivorship at the
decedents death to a surviving tenant other than the decedents surviving
spouse, ORS 114.665(1);
(2) Property held immediately before death under a payable-ondeath designation or deed, under a transfer-on-death registration or in a
co-ownership registration with right of survivorship, in an amount equal
to the value of the decedents interest that passes on the decedents death
to any person other than the decedents estate or surviving spouse, ORS
114.665(2);
8-21
2012 Revision
(3) Property owned immediately before death for which the

decedent had the power to designate a beneficiary, but only to the extent
that the decedent could have designated the decedent, or the spouse of the
decedent, as the beneficiary, ORS 114.665(3); and
NOTE: The but only to the extent clause quoted above
applies only to decedents dying on or after June 9, 2011. See 2011
Or Laws ch 305, 3, 7.
COMMENT: Examples of property covered by the statute
include life insurance, annuities, and retirement plans, including
public and private pensions, disability compensation, and similar
arrangements.
(4) [P]roperty that immediately before death the decedent
could have acquired by the exercise of a revocation, without regard to
whether the revocation was required to be made by the decedent alone or
in conjunction with other persons, ORS 114.665(4).
In recognition that life insurance is commonly used for shareholder
agreements, satisfaction of support obligations, and other funding
purposes, the present value of life insurance proceeds payable to a
beneficiary other than a spouse is not included as a nonprobate asset of
the decedent. ORS 114.665(5), 114.660; see also ORS 114.690(1)(c). In
contrast, if the insurance is payable to the surviving spouse, the entire
amount of life insurance proceeds is includible in the decedents
nonprobate transfers to the surviving spouse. ORS 114.690(1)(c); see
8.2-5(d)(3).
8.2-5(d)(3)
Surviving Spouses Estate
Effective June 9, 2011, the surviving spouses estate includes:

(1) The decedents probate transfers to the spouse (as described
in ORS 114.685), ORS 114.675(1)(a);
COMMENT: Pursuant to ORS 114.685, a decedents probate
transfers to a surviving spouse include all probate property that
passes to the surviving spouse after payment of claims and
expenses of administration.
8-22
2012 Revision
(2) The decedents nonprobate transfers to the spouse (as

described in ORS 114.690), ORS 114.675(1)(b);
COMMENT: For this purpose, a decedents nonprobate transfers include all property that passes outside probate to the surviving spouse upon the decedents death, including any survivorship
interest, insurance proceeds payable to the surviving spouse by
reason of the decedents death, and all other property that would
have been included in the decedents nonprobate estate had it
passed to a person other than the decedents spouse. ORS 114.690.
Social Security benefits are not included as part of the surviving
spouses estate. ORS 114.690(2).
(3) All other property of the spouse, as determined on the date
of the decedents death, ORS 114.675(1)(c); and
(4) Any property that would have been included in the surviving
spouses estate except for the exercise of a disclaimer by the spouse
after the death of the decedent, ORS 114.675(1)(d) (see 8.3-2(a) to
8.3-2(f) regarding disclaimers).
CAVEAT: For purposes of determining a decedents nonprobate and probate transfers to a surviving spouse, any property
that has been disclaimed by the surviving spouse will continue to
be included as part of the surviving spouses estate for purposes of
the elective share. ORS 114.675(1)(d).
NOTE: ORS 114.675 was amended effective June 9, 2011.
For decedents who died between January 1, 2011 and June 8, 2011,
see 2011 Or Laws ch 305, 5, 7.
8.2-5(d)(4)
Valuation
Generally, the value of an asset is the value used for purposes of

federal and gift tax laws. In determining the value of probate and nonprobate property, the value is reduced by the amount of any enforceable
claims and encumbrances on the property. ORS 114.650, 114.660.
In determining the value of the surviving spouses estate, however,
specific trust-valuation rules apply to an interest in a trust that is provided
for the benefit of the spouse by the decedent.
8-23
2012 Revision
For a trust that provides for the distribution of income and principal to a surviving spouse, the entire value of the trust corpus will be
considered as part of the surviving spouses estate, if all of the trust
income must be distributed to the surviving spouse during the spouses
lifetime, and either (1) the spouse has a general power of appointment
that the spouse may exercise, acting alone, to or for the benefit of the
surviving spouse or the surviving spouses estate, ORS 114.675(2)(a), or
(2) the trust principal may be accessed only by the trustee or the spouse
and only for the purpose of providing for the health, education, support or
maintenance of the spouse, ORS 114.675(2)(b).
For an income-only trust, one-half of the value of the trust corpus
will be considered as part of the surviving spouses estate, if (1) all trust
income must be distributed to or for the benefit of the surviving spouse
during the spouses lifetime, and (2) neither the trustee nor the spouse
has the power to distribute trust principal to or for the benefit of the
surviving spouse or any other person during the spouses lifetime. ORS
114.675(2)(c). Amounts distributed to a surviving spouse from a unitrust
under ORS 129.225 are also considered income. ORS 114.675(2)(d).
For any other beneficial interest in a trust established for the
benefit of the surviving spouse, the surviving spouses estate includes the
present value of amounts payable under the trust to the surviving spouse.
ORS 114.630(3). The value of the interest is determined under federal
estate and gift tax laws. ORS 114.630(4).
NOTE: ORS 114.630, 114.660, and 114.675 were amended
effective June 9, 2011. For decedents who died between January 1,
2011 and June 8, 2011, see 2011 Or Laws ch 305, 2, 4, 5, 7.
COMMENT: As with other new laws, provisions in the
elective-share laws will require further legislative refinement or
court interpretation. One of these provisions is found in ORS
114.675(2)(b), which includes 100% of the trust corpus in the
surviving spouses estate if access to the trust principal is allowed
only for the purpose of providing for the health, education,
support, or maintenance of a spouse. A marital trust for the benefit
of a spouse may contain broader access powers than those pro8-24
2012 Revision
vided in ORS 114.675(2)(b). For example, a trust may provide for

the distribution of principal for the comfort and happiness of a
surviving spouse. Presumably, a trust that provides greater access
to principal than provided for by this statute would also be 100%
includible, but based on the statutory provisions for valuing a trust
for the benefit of a spouse, it is not clear whether a trust that
provides broader access powers than those limited to health,
education, support or maintenance would be 100% includible,
50% includible as an income-only trust, or valued under subsection
(3) or (4) of ORS 114.630.
Similarly, there is limited guidance regarding the valuation
of a spouses beneficial interest in a sprinkling trust that allows for
discretionary distribution of income or principal to a spouse and
the spouses children. Although the valuation of a spouses
beneficial interest in a sprinkling trust is determined under federal
and gift tax law pursuant to ORS 114.630(4), the value may not be
readily ascertainable under current tax laws. If a spouses beneficial enjoyment in the trust is restricted, the fair-market value of
the interest may need to be determined based on all of the facts
and circumstances relating to the interest. Treas Reg 1.75203(b)(1)(ii)(iii). These facts and circumstances may include the life
expectancy of the spouse, the trust distribution standard, the needs
of the spouse, the spouses available resources, and other factors.
See Treas Reg 1.7520-3(b)(2)(ii)(A).
8.2-5(d)(5)
Exclusions from Augmented Estate
The augmented estate does not include the following interests:

(1) Any value attributable to future enhanced earning capacity
of either spouse, ORS 114.635(1);
(2) Any property that is irrevocably transferred before the
death of the decedent spouse, ORS 114.635(2);
(3) Any property that is transferred on or after the death of the
decedent spouse with the written joinder or written consent of the
surviving spouse, ORS 114.635(3);
8-25
2012 Revision
(4) Any community property, whether under ORS 112.705

112.775 (see 8.2-4(a)) or under the laws of the jurisdiction where the
community property is located, ORS 114.665(4); or
(5) Any property that is held by either spouse in a fiduciary
capacity, ORS 114.635(5).
NOTE: The discussion above reflects the 2011 amendments
to ORS 114.635. The amendments apply only to decedents dying
on or after June 9, 2011. See 2011 Or Laws ch 305, 1, 7.
8.2-5(e)
Payment of Elective Share
Under ORS 114.615, once the elective share amount is calculated,

the court considers the values of (1) the decedents probate estate, (2) the
decedents nonprobate estate, (3) the surviving spouses estate, (4) the
decedents probate transfers to the surviving spouse, and (5) the decedents nonprobate transfers to the surviving spouse.
If the aggregate values of the surviving spouses estate and the
decedents probate and nonprobate transfers to the surviving spouse do
not satisfy the amount of the elective share, any additional amount
required to satisfy the elective share is to be paid out of the decedents
probate and nonprobate estate. ORS 114.615. The priority for the
payment of this amount is set forth in ORS 114.700.
Pursuant to ORS 114.700, the surviving spouses estate (as
described in ORS 114.675) is applied first to satisfy the dollar amount
of the elective share. ORS 114.700(1). If, after this application of the
surviving spouses estate, the amount of the elective share is not fully
satisfied, the amounts included in the decedents estate and nonprobate
estate are applied as necessary. ORS 114.700(2).
Unless otherwise provided by the decedent in a will, trust, or other
instrument, the amounts needed to satisfy the elective share will be
collected from the probate and nonprobate estates in a manner that
ensures that the probate and nonprobate estates bear proportionate liability for the amounts necessary to pay the elective share amount. ORS
114.700(3)(a).
8-26
2012 Revision
Unless the decedent provides otherwise, the amounts applied

against the unsatisfied elective-share amount must be apportioned among
all recipients of the decedents estate in a manner that ensures that each
recipient bears liability for a portion of the payment that is proportionate
to the recipients interest in the estate. ORS 114.700(3)(b)(c).
For nonprobate property, only the original recipients of estate
property, or those persons who receive estate property for less than fair
consideration from an original recipient, may be required to make a proportional contribution to the spouses elective share. ORS 114.705(1). A
recipient who is required to make a contribution toward the satisfaction
of the elective-share amount may return the property to satisfy the
recipients obligation, or pay money equal to the value of the property.
ORS 114.705(2).
COMMENT: If the decedents nonprobate estate includes an
IRA that does not name the spouse as a designated beneficiary,
careful consideration must be given to the income tax
consequences relating to a return of a portion of the IRA to satisfy
the recipients contribution obligation. Among other considerations, if a spouse does not qualify as a designated beneficiary for
the returned portion of the IRA, this may result in a loss of any tax
deferral by the surviving spouse and taxable income to either the
estate or to the recipient returning the IRA. See generally IRC
401(a)(9) and regulations issued thereunder.
NOTE: ORS 114.700 was amended effective June 9, 2011.
For decedents who died between January 1, 2011 and June 8, 2011,
see 2011 Or Laws ch 305, 67.
8.2-5(f)
Protective Orders
If a surviving spouse files a motion or petition to claim the elective

share (see 8.2-5(c)), any person who received any part of the decedents
probate or nonprobate estate may request that the court issue a protective
order to prohibit or impose conditions on the transfer of property
included in the augmented estate. ORS 114.710(1).
In addition, any recipient of any part of the probate or nonprobate
estate who is required to make a contribution toward satisfaction of the
8-27
2012 Revision
elective share may file a motion or petition requesting a determination of

his or her proportionate contribution toward the elective-share amount.
Once the court makes that determination, the person may be discharged
from all further contribution claims if the amount or security for the
amount determined is deposited with the court. ORS 114.710(2).
8.2-5(g)
Waiver of Elective Share
The right of election under the elective-share statutes may be

waived before or after marriage by a written contract, agreement, or
waiver signed by the surviving spouse. ORS 114.620(1). For this purpose, a written agreement that waives all rights in the property of the
estate of a present or prospective spouse is a waiver of all rights to an
elective share. ORS 114.620(2).
CAVEAT: If a decedent owned a qualified plan subject to the
Employee Retirement Income Security Act (ERISA), the waiver
may also need to meet the applicable ERISA requirements for the
waiver of the spouses interest in the qualified plan to be effective.
See ERISA 205, IRC 417(a)(2).
COMMENT: ORS 114.620 waivers are enforceable under a
different standard than the standard that governs the execution of a
premarital agreement under ORS 108.700108.740, but conflict
rules regarding the representation of multiple parties continue to be
present.
NOTE: A written agreement or waiver entered into before
January 1, 2011, whether prenuptial or postnuptial, that waives the
elective share is effective as a waiver, unless a court determines
that the agreement or waiver is not enforceable under the standards
of ORS 114.620. 2009 Or Laws ch 574, 24.
8.2-5(h)
Separation
If the decedent and the surviving spouse were living apart at the
time of the decedents death, the court may deny the surviving spouse the
right to the elective share or reduce the amount of the elective share to
such amount as the court determines reasonable and proper. ORS
114.725. In making this determination, the court considers various
8-28
2012 Revision
factors, including whether the marriage was a first or subsequent marriage, the contribution of the surviving spouse to the property of the
decedent in the form of services or transfers of property, the length and
cause of the separation, and any other relevant circumstances. ORS
114.725.
8.2-5(i)
Spouses Elective Share Under Prior Law
8.2-5(i)(1)
Law Before January 2011
For deaths occurring before January 1, 2011, a surviving spouses

elective share is one-fourth of the net probate estate of the deceased
spouse, reduced by the value of certain property given to the surviving
spouse under the deceased spouses will. Former ORS 114.105114.165.
The elective share is limited to not more than one-half of the sum of
(1) the probate estate, (2) most of the nonprobate estate, and (3) certain
gifts made by the decedent. Former ORS 114.125; see 2009 Or Laws ch
574, 23. This prior law applies to the surviving spouse of a decedent
who died between January 1, 2011 and June 8, 2011. See 2011 Or Laws
ch 305, 7.
8.2-5(i)(2)
Law from January 1, 2011 to June 8, 2011
Oregons elective-share statutes enacted effective January 1, 2011,

were subsequently amended in 2011, with the changes becoming effective June 9, 2011. 2011 Or Laws ch 305. For deaths occurring between
January 1, 2011 and June 8, 2011, the prior versions of ORS 114.630,
114.635, 114.660, 114.665, 114.675, and 114.700 apply. See 2011 Or
Laws ch 305.
8.3
8.3-1
ALTERING INTESTATE SUCCESSION AND

TESTAMENTARY DISPOSITION
Distribution by Agreement
By agreement, a decedents devisees or heirs may effect a change

in the distribution of the estate property that each would otherwise be
entitled to under a will or by intestate succession. The agreement must be
approved by the court. ORS 116.113(1), (3). The agreement is usually
described in the final accounting and approved by the court in the general
8-29
2012 Revision
judgment of final distribution. In many cases, this agreement eliminates

the necessity for executing a partition deed between the heirs or the
devisees.
PRACTICE TIP: The judgment of final distribution must
incorporate the terms of the agreement, and operates as a transfer
of the property described in the judgment between the parties to
the agreement. Thus, if real property is the subject of the agreement, the property description in the final judgment should be of
the same formality and accuracy as would be required if the
property were transferred by deed (although a deed should usually
be recorded after the judgment is entered). The judgment of
distribution should incorporate the terms of the agreement, rather
than incorporating the agreement by reference. Incorporation by
reference should be used only if the agreement is lengthy and
complex.
CAVEAT: The lawyer should carefully examine any agreement between devisees or heirs that alters distribution under the
will or by intestate succession to ensure that no unforeseen estate
tax, gift tax, or generation-skipping-transfer tax consequences
result. In addition, the lawyer should carefully examine any
agreement that alters distributions to a charity or a surviving
spouse to ensure that there are no unintended estate tax consequences relating to qualification for the federal estate tax marital
or charitable deductions. Income tax consequences may also be
present.
8.3-2
Disclaiming an Interest
8.3-2(a)
In General
Pursuant to the Uniform Disclaimer of Property Interests Act (the

UDPI Act), ORS 105.623105.649, a person may disclaim, in whole or
in part, any interest in property or any power over property. If the
requirements of the UDPI Act are met, the disclaimed interest passes as if
the disclaimant never had an interest in the disclaimed property. See In re
Nistler, 259 BR 723, 727 (Bankr D Or 2001); see also ORS 105.633.
8-30
2012 Revision
In addition to the requirements of the UDPI Act, if a disclaimer

also meets the requirements of a qualified disclaimer under IRC 2518,
the disclaimer will not result in a taxable gift being made by the
disclaimant.
Disclaimers can be used in many ways to alter the distribution of
an estate, to cure defects in an estate plan, to avoid ownership of property
(such as contaminated real estate), and to engage in other postmortem
planning. The many uses of a disclaimer are not covered in this chapter,
which is limited to a review of the procedural rules for disclaimers.
ORS 105.633 describes specific rules that apply to the disposition
of an interest in property that has been disclaimed.
If the will creating the property interest provides for the disposition
of the interest in the event that the interest is disclaimed, the disclaimed
interest passes in accordance with the will. ORS 105.633(2)(b).
If the will does not provide for the disposition of a disclaimed
interest, or if the interest arises under the laws of intestate succession, the
following rules apply:
(1) If the disclaimant is an individual, except as provided in
ORS 105.633(3)(a)(B)(C), the disclaimed interest passes as if the
disclaimant had died immediately before the time of distribution. ORS
105.633(3)(a)(A).
(2) If the disclaimants descendants would have shared in the
disclaimed interest by any method of representation had the disclaimant
died before the time of distribution, the disclaimed interest passes only to
the disclaimants descendants who survive the time of distribution. ORS
105.633(3)(a)(B).
(3) If the disclaimed interest would pass to the disclaimants
estate had the disclaimant died before the time of distribution, the disclaimed interest passes by representation to the descendants of the
disclaimant who survive the time of distribution. If no descendant survives the time of distribution, the disclaimed interest passes to those
persons who would receive the transferors estate under the intestate
succession laws of the transferors domicile had the transferor died at the
8-31
2012 Revision
time of distribution. However, if the transferors surviving spouse is

living, but is remarried at the time of distribution, the transferor
is deemed to have died unmarried at the time of distribution. ORS
105.633(3)(a)(C).
(4) If the disclaimant is not an individual, the disclaimed
interest passes as if the disclaimant did not exist. ORS 105.633(3)(b).
A disclaimer is irrevocable when the disclaimer is delivered or
filed pursuant to ORS 105.642 or when the disclaimer becomes effective
as provided in ORS 105.633 to 105.641, whichever occurs later. ORS
105.629(5); see Fleenor v. Williamson, 171 Or App 599, 606607, 17
P3d 520 (2000) (once a disclaimer is made, it cannot be revoked or
revised). See Form 8-2.
8.3-2(b)
Requirements of a DisclaimerOregon Law
For purposes of Oregon law, to be effective a disclaimer must:

(1) 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,
ORS 105.629(3)(a);
(2) Declare that the person disclaims the interest in the
property or in the power, ORS 105.629(3)(b);
(3) Describe the interest in property or power over property
that is disclaimed, ORS 105.629(3)(c);
(4)
Be signed by the disclaimant, ORS 105.629(3)(d); and
(5) Be delivered or filed in the manner provided in ORS

105.642, ORS 105.629(3)(e).
The delivery of the disclaimer may be made by personal delivery,
first class mail, or another method likely to result in receipt of the
disclaimer. ORS 105.642(2).
If the interest being disclaimed is created under the laws of
intestate succession or by a will, other than an interest in a testamentary
trust, the disclaimer must be delivered to the personal representative of
the decedents estate. ORS 105.642(3)(a). But if no personal repre8-32
2012 Revision
sentative is serving at the time the disclaimer is made, the disclaimer

must be filed with a court having authority to appoint the personal
representative. ORS 105.642(3)(b).
If the interest being disclaimed is an interest in a testamentary trust
created by a will, the disclaimer must be delivered to the trustee. ORS
105.642(4)(a). If a trustee is not serving at the time the disclaimer is
made, but a personal representative for the decedents estate is serving,
the disclaimer must be delivered to the personal representative. ORS
105.642(4)(b). If neither a trustee nor a personal representative is serving
at the time the disclaimer is made, the disclaimer must be filed with the
court having authority to enforce the trust. ORS 105.642(4)(c).
PRACTICE TIP: Although not required by statute, to document
the timely delivery or filing of the disclaimer, the disclaimant
should request the personal representative to acknowledge receipt
of the disclaimer and request filing of the disclaimer in the probate
proceeding.
A person may disclaim any interest in property, or any power over
property. The Uniform Disclaimer of Property Interests Act (the UDPI
Act) provides detailed rules regarding the disclaimer of different types
of property interests, including the effect of the disclaimer and the
delivery and filing requirements. To execute a disclaimer, the lawyer
must properly identify the property interest being disclaimed and follow
the proper procedural requirements set forth in the UDPI Act. In this
regard, specific provisions govern the disclaimer of survivorship rights in
jointly held property (ORS 105.634), the disclaimer of a power of
appointment or other powers not held in a fiduciary capacity (ORS
105.638), and the disclaimer of an interest by an appointee of a power of
appointment (ORS 105.639).
In addition, with regard to a trust, a trustee may disclaim assets that
would otherwise become trust property (ORS 105.636), or a fiduciary
may disclaim powers held in a fiduciary capacity (ORS 105.641). These
disclaimers must be consistent with the trustees fiduciary duties.
See Forms 8-2 to 8-7.
8-33
2012 Revision
8.3-2(c)
Tax-Qualified DisclaimerFederal Law
The tax consequences of a disclaimer are determined pursuant to

IRC 2518 and the regulations promulgated under it. If the disclaimer
does not meet the requirements of IRC 2518, the disclaimer is not
qualified and may result in a taxable gift from the disclaimant to the
recipient of the disclaimed property. For a disclaimer to be deemed a
qualified disclaimer for federal tax purposes, it must meet all of the
following requirements:
(1) The disclaimer must be an irrevocable and unqualified
refusal to accept an interest in property. IRC 2518(b).
(2) The refusal must be in writing. IRC 2518(b)(1). The writing must be delivered in person or by registered or certified mail within
the time limits specified in IRC 2518(b)(2). The writing may be, but is
not required to be, filed in the court exercising probate jurisdiction. If the
disclaimer relates to real property, it may be recorded. See Form 8-2.
(3) The written disclaimer must be delivered to the transferor
of the interest, the transferors legal representative, the holder of the legal
title to the property to which the interest relates, or the person in possession of such property. Treas Reg 25.2518-2(b)(2); IRC 2518(b)(2).
(4) The disclaimer must be made, delivered, and received not
more than nine months after the later of (a) the day the transfer creating
the interest in the disclaimant is made, or (b) the disclaimants 21st
birthday. IRC 2518(b)(2)(A)(B); Treas Reg 25.2518-2(d)(3).
(5) The disclaimant must not have accepted the interest, or any
of its benefits, before the disclaimer. Acceptance of any consideration in
return for making the disclaimer is treated as an acceptance of
the benefits of the interest disclaimed. IRC 2518(b)(3); Treas Reg
25.2518-2(d)(1).
(6) The interest must pass to either the decedents spouse or a
person other than the disclaimant as a direct result of the disclaimants
refusal to accept the property, without any direction by the disclaimant.
IRC 2518(b)(4)(A)(B); Treas Reg 25.2518-2(e).
8-34
2012 Revision
CAVEAT: Under the Internal Revenue Code, with certain

exceptions, a disclaimer must be filed within nine months after the
date of the transfer creating the interest in the disclaimant. IRC
2518(b)(2). Under Oregon law, no nine-month requirement
applies to the disclaimer of property. Therefore, if a disclaimer is
made after the nine-month period, it may be a valid disclaimer for
state purposes, but it would not be a qualified disclaimer under
IRC 2518. If so, the disclaimer would transfer a property right,
but a gift tax might be triggered.
COMMENT: Oregon law places no restrictions on whole or
partial disclaimers. See ORS 105.629(1). In contrast, under federal
law, a disclaimant can only disclaim a partial interest if it is an
undivided portion of each interest or right owned by the disclaimant in the separate interest that is disclaimed. Treas Reg
25.2518-3(b). Consequently, a partial disclaimer that might not
meet federal tax standards is valid for nontax purposes.
The federal regulations governing valid partial disclaimers
involve a narrow and steep path. Consequently, before using a
partial disclaimer for federal tax purposes, the lawyer must
carefully examine the Internal Revenue Code, Treasury Regulations, Tax Court cases, and federal cases to avoid what might be
considered a valid partial disclaimer which, in reality, is not.
Because of the many factors involved in a partial disclaimer, this
section does not provide exhaustive examples of partial disclaimers
for federal tax purposes.
COMMENT: One example of a partial disclaimer that can
create problems is a disclaimer of an undivided portion of a
separate interest in property when the disclaimant also has another
separate interest in the same property, if the disclaimed separate
interest was created by the transferor and can be separated from the
other interest.
EXAMPLE: Consider the following facts: A gives B an
undivided one-fourth interest in As cattle ranch. Later on, As will
devises B another undivided one-fourth interest in the same cattle
8-35
2012 Revision
ranch with a remainder over to C if the devise fails. B decides to

disclaim the devise so that C can receive it. Bs disclaimer does not
clearly describe the devise and the description could include the
earlier gift.
COMMENT: Tax-qualified disclaimers of certain survivorship
interests in property are possible. A surviving owner of a joint
bank, brokerage, or other investment account may disclaim (within
nine months of that owners death) the portion of the account contributed by the deceased owner, as long as the owner could have
unilaterally retrieved his or her contribution without the consent of
the others. Treas Reg 25.2518-2(c)(4)(iii). Also, if a survivorship
asset is established, such as a tenancy by the entirety in real estate,
the disclaimant may disclaim the interest that he or she acquired at
the creation of the tenancy within nine months of the creation; in
contrast, the disclaimant has until nine months after the owners
death to disclaim the interest that the disclaimant later acquires by
survivorship. See Treas Reg 25.2518-2(c)(4)(i), Treas Reg
25.2518-2(c)(5), examples (7)(8), (10).
COMMENT: As the foregoing discussion demonstrates, disclaimer planning requires a yeomans working knowledge of
Oregon law, tax law, and the facts. The lawyer should not delegate
disclaimer planning to a legal assistant or another nonlawyer staff
member, unless that person has the prerequisite knowledge to
make an informed and correct decision. Likewise, disclaimer
planning should not be undertaken by a lawyer who does not have
adequate knowledge of the subject area. Consequently, this discussion is an introductory guide only, and a thorough analysis of
Oregon and federal tax law that takes into consideration the facts
and circumstances surrounding the interest to be disclaimed must
be undertaken before an interest in property is disclaimed.
8.3-2(d)
Right to Disclaim May Be Barred
A disclaimer may be barred or limited as described in ORS

105.643105.649. A disclaimer is barred by a written waiver of the right
to disclaim. ORS 105.643(1).
8-36
2012 Revision
Also, a disclaimer of an interest in property is barred if any of the

following events occur before the disclaimer is effective:
(1) The disclaimant accepts the interest sought to be
disclaimed, ORS 105.643(2)(a);
(2) The disclaimant voluntarily assigns, conveys, encumbers,
pledges or transfers the interest sought to be disclaimed or contracts to do
so, ORS 105.643(2)(b); or
(3) The interest sought to be disclaimed is sold pursuant to a
judicial sale, ORS 105.643(2)(c).
A disclaimer is also barred if the purpose or effect of the
disclaimer is to prevent a victim of a crime from recovering money or
property to be applied against a judgment for restitution under ORS
137.101137.109. ORS 105.643(6).
8.3-2(e)
Effect on Other Rights
The Uniform Disclaimer of Property Interests Act does not limit

any right of a person to waive, release, disclaim, or renounce an interest
in property, or power over property, under any other law. ORS
105.628(2).
8.3-2(f)
Prior Law
In enacting the Uniform Disclaimer of Property Interests Act, the

2001 Legislature repealed the Uniform Disclaimer of Transfers by Will,
Intestacy or Appointment Act, former ORS 112.650112.667. The
Uniform Disclaimer of Transfers Under Nontestamentary Instruments
Act, former ORS 105.625105.640, was also repealed.
Except as otherwise provided in ORS 105.643, an interest in
property or power over property existing on January 1, 2002, may be
disclaimed in the manner provided by ORS 105.623105.649 after
January 1, 2002, unless the time for delivering or filing a disclaimer had
expired under the law in effect immediately before January 1, 2002. See
2001 Or Laws ch 245, 20.
8-37
2012 Revision
8.4
8.4-1
WILL CONTESTS; BREACH OF CONTRACT

TO MAKE A WILL
Notice and Filing Period
The petition for the appointment of a personal representative and

for the probate of a will must include the names and addresses of the
decedents heirs and devisees. ORS 113.035(5), (7). The petition must
also include the name and address of any person asserting an interest in
the estate based on the contention that:
(1) The will alleged in the petition is ineffective in whole or in
part, ORS 113.035(8)(a);
(2)
Another will of the decedent exists, ORS 113.035(8)(b));
(3) The decedent agreed, promised or represented that the

decedent would make or revoke a will or devise, or not revoke a will or
devise, or die intestate, ORS 113.035(8)(c); or
(4) A parent of the decedent willfully deserted the decedent or
neglected without just and sufficient cause to provide proper care and
maintenance for the decedent, as provided by ORS 112.047, ORS
113.035(9).
The personal representative must mail or deliver the information
required by ORS 113.145 to those heirs, devisees, and other persons
asserting an interest in the estate. ORS 113.145(1). See 2.5-1 to 2.5-7.
An action to contest a will based on any of the above reasons must
be commenced before the later of (1) four months after the date of
mailing or delivery of the information described in ORS 113.145, if that
information was required to be mailed or delivered to the person on
whose behalf the petition is filed, or (2) four months after the first
publication of notice to interested persons, if the person contesting the
will was not required to be named in the petition as an interested person.
ORS 113.075(1), (3).
NOTE: A contention that the decedent breached a contract to
make or revoke a will or devise, or not revoke a will or devise, or
died intestate, may not be presented as a claim under ORS chapter
115. ORS 113.075(4). Such an action may be commenced by the
8-38
2012 Revision
filing of a separate action in any court of competent jurisdiction.

ORS 113.075(2).
For a thorough discussion of will contests, see 15.2-1(a) to 15.22(g).
8.4-2
Contesting a Foreign Will
Foreign wills may be contested on the same grounds as domestic

wills. ORS 113.065(2). A foreign will is the written will of a testator who
died domiciled outside Oregon which, upon probate, may operate on
property in Oregon. ORS 113.065(1).
PRACTICE TIP: Based on the proximity of ORS 113.065 to
ORS 113.075, the same time limit for contests of domestic wills
should apply to contests of foreign wills. See 8.4-1.
8.4-3
No Statutory Grounds for Contest
The most common grounds for contesting the probate of a will are
improper execution of the will, the mental incapacity of the testator, and
undue influence exercised on the testator by a devisee. See 15.2-2 to
15.2-2(g).
Oregon does not recognize the separate and distinct tort of
intentional interference with prospective inheritance. However, the
Oregon Supreme Court has held that intentional interference with prospective inheritance is actionable under the tort of intentional interference
with prospective economic advantage. Allen v. Hall, 328 Or 276, 281
282, 974 P2d 199 (1999).
For a case involving the improper execution of a will, see Kirkeby
v. Covenant House, 157 Or App 309, 319320, 970 P2d 241 (1998) (the
testators acknowledgment of her signature on her will to witnesses
during telephone conversations did not satisfy the statutory requirement
of acknowledgment in the presence of witnesses under ORS 112.235(1)).
See also Walker v. Walker, 145 Or App 144, 147149, 929 P2d 316
(1996) (proper signing of the testators name at the direction of the
testator).
For a will contest based on undue influence, see Sangster v.
Dillard, 144 Or App 210, 925 P2d 929 (1996), opinion modified on
8-39
2012 Revision
recons. sub nom. Matter of Estate of Cochrane, 146 Or App 105 (1997);
and McNeely v. Hiatt, 138 Or App 434, 909 P2d 191, adhered to on
recons., 142 Or App 522 (1996).
For a will contest based on the defective exercise of a power of
appointment, see Smith v. Brannan, 152 Or App 505, 954 P2d 1259
(1998).
8.4-4
Filing Fee
Any person filing an appearance in a probate proceeding must pay

the fees established under ORS 21.135(2)(h).
8.4-5
Appeal
Any party to a will contest may appeal from an adverse judgment

of the court. Because most wills are probated in the circuit court, appeals
will be to the court of appeals. ORS 111.105(2). If a will contest is not
transferred to a circuit court under ORS 111.115(1) and is tried in the
county court, the appeal will be to the circuit court. ORS 111.105(3).
PRACTICE TIP: The contestant or the proponent of the will, or
both, should try to avoid this situation because it could involve two
or possibly three appeals (to the circuit court, then to the court of
appeals, then to the supreme court).
8.4-6
Effects of Successful Will Contest
The effects of a successful will contest depend on whether the

testator executed one or more other wills. If no other will exists, the
testator is deemed to have died intestate. If the testator executed a will or
wills in addition to the successfully contested one, the judgment would
probably not be held to be res judicata, preventing the probate of one of
these wills. See E. H. Schopler, Annot, Judgment Denying Validity of
Will Because of Undue Influence, Lack of Mental Capacity, or the Like,
as Res Judicata as to Validity of Another Will, Deed, or Other
Instrument, 1952 WL 7842 (1952).
Assuming that the contested will contained a provision revoking a
previous will, the revocation would be a nullity and the previous will
could be offered for probate. However, if the testator had physically
8-40
2012 Revision
destroyed the previous will, the destruction would be a revocation and the
will contest would not affect it. ORS 112.285, 112.295.
8-41
2012 Revision
Form 8-1

ORS 114.610

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
Case No. _____

MOTION TO EXERCISE
ELECTIVE SHARE OF
ESTATE UNDER ORS
114.610
1.
I, ____________________, am the surviving spouse of the abovenamed decedent, who died testate and was domiciled in Oregon at the
time of death.
2.
The date of the decedents death was ______________, 20__.
3.
I hereby elect to receive the elective share provided by
ORS 114.600114.725.
4.
As of the date of the decedents death, my property, other than any
probate or nonprobate transfers from the decedent, is as follows:
[Describe]
5.
I have, or am entitled to receive, the following nonprobate property
from the decedent listed under ORS 114.690:
8-42
2012 Revision
[Describe]
DATED:____________________, 20___.
/s/__________________________
[surviving spouses name]
SURVIVING SPOUSE
[name]
[address]
[telephone no.]
[fax no.]
LAWYER FOR SURVIVING SPOUSE:
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: The election must be made within nine months after the date
of the decedents death as described in 8.2-5(c). ORS 114.610. A copy
of the motion must be served on the personal representative or the
personal representatives lawyer, all persons who would be entitled to
receive information under ORS 113.145, and all distributees and recipients of portions of the augmented estate known to the surviving spouse
who can be located with reasonable efforts. ORS 114.160(1)(b).
If no probate proceeding has been commenced, the surviving
spouse may file a petition for the appointment of a personal representative for the estate of the deceased spouse, and then file a motion for
8-43
2012 Revision
the exercise of election, within nine months after the decedents death.
ORS 114.610(1)(a). See 8.2-5(c).
9.030 for the form of documents, including requirements regarding
document title, spacing, and format.
UTCR 9.030(1). See also UTCR 2.010(7), which requires that all documents include the authors name, address, telephone number, and fax
number (if any).
8-44
2012 Revision
Form 8-2
Disclaimer by Heir

Estate of
____________________,
)
)
)
)
)
Deceased.
Case No. _____

DISCLAIMER BY HEIR
1.
I, ____________________, the [e.g., son or daughter] of the
above-named decedent, hereby disclaim my entire interest in the estate of
the above-named decedent pursuant to ORS 105.623105.649, the
Uniform Disclaimer of Property Interests Act.
2.
This disclaimer is delivered to ____________________, personal
representative of the decedents estate, either in person or by registered or
certified mail.
3.
I have not accepted any of the property or interest or benefit under
the decedents estate, and my right to disclaim is not barred by any of the
other events described in ORS 105.643.
4.
This disclaimer is irrevocable.
8-45
2012 Revision
DATED: _______________, 20____.
/s/__________________________
[disclaimants name]
Disclaimant
[address]
[telephone no.]
[fax no.]
STATE OF __________
)
) ss.
)
I, ____________________, being duly sworn, depose and say: I

am the disclaimant named in the above disclaimer by heir and the
foregoing disclaimer by heir is true as I verily believe.
/s/__________________________
[disclaimants name]
20__.
/s/__________________________
8-46
2012 Revision
Received this ____ day of _______________, 20__.
/s/__________________________
[address]
[telephone no.]
[fax no.]

9.030 for the form of documents.
8-47
2012 Revision
Form 8-3
Disclaimer by Surviving Spouse

Estate of
____________________,
)
)
)
)
)
Deceased.
Case No. _____

DISCLAIMER BY
SURVIVING SPOUSE
1.
I, ____________________, the surviving spouse of the abovenamed decedent, pursuant to ORS 105.623105.649, hereby disclaim my
interest in the following estate property:
[For example:
Bearer Bonds described in attached Schedule A
$161,146.20
AAA Life Insurance, Account #18261
$12,000.00
Boat Sale Proceeds, Oregon Title #123456
$1,000.00
1995 Pickup, Oregon license #ABC 123
$2,000.00
Contents of Residence described in Probate

Appraisal of Household Items made by AAA
Appraisers dated 1/1/03
$7,930.00
TOTAL
$184,076.20]
2.
In order to effectuate this disclaimer, I also disclaim the interest in
my deceased spouses estate, which is established by article IV and
article VI of my deceased spouses last will and testament (the will).
8-48
2012 Revision
3.
This disclaimer is precautionary. It is intended to be effective only
to the extent that I otherwise have an interest in the disclaimed property
pursuant to the documents establishing title to the property or the
provisions of articles IV and VI of my deceased spouses will.
4.
To the extent that property passes by reason of this disclaimer to
the residue of my deceased spouses estate, which is governed by the
provisions of article VII of my deceased spouses will, I hereby make the
following further disclaimer with respect to the residuary trust established by article VII: I disclaim the right as cotrustee of that residuary
trust to direct the beneficial enjoyment of the disclaimed property with
respect to any of my children and the issue of any deceased child of
mine.
5.
Except as specified above in paragraph 4, I do not disclaim my
interest in the residuary trust established by article VII of my deceased
spouses will.
6.
DATED: _______________, 20____.

/s/__________________________
[surviving spouses name]
[address]
[telephone no.]
[fax no.]
8-49
2012 Revision
STATE OF __________
)
) ss.
)
I, __________________, being duly sworn, depose and say: I am

the disclaimant in the above-entitled disclaimer by surviving spouse and
the foregoing disclaimer by surviving spouse is true as I verily believe.
/s/__________________________
[disclaimants name]
20___.
/s/__________________________
COMMENT: See 8.2-5(a) to 8.2-5(c), 8.3-2(b). See UTCR 2.010

8-50
2012 Revision
Form 8-4
Written Partial Disclaimer of Bequest of

Partnership Interest

Estate of
____________________,
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

WRITTEN PARTIAL
DISCLAIMER OF
BEQUEST OF
PARTNERSHIP
INTEREST
1.
I, ____________________, declare that I am the _____________
of the decedent, who died on ____________, 20___, and who was
domiciled in ______________ County, Oregon, leaving a will that was
duly admitted to probate in the above-captioned Court on ___________,
20___, and under the terms of which I am the sole beneficiary.
2.
I hereby disclaim, renounce, and refuse to accept ____% of the
decedents _____% interest in ______________________, a [general /
limited] partnership.
3.
I affirm I have not accepted any interest in or benefit from the
property interests hereby disclaimed, and I have not received and I will
not receive any consideration in money or moneys worth for making this
disclaimer.
8-51
2012 Revision
4.
I intend that this disclaimer constitutes a disclaimer under
ORS 105.623105.649, the Uniform Disclaimer of Property Interests
Act, and a qualified disclaimer as defined in IRC 2518(b) or the
corresponding provisions of any subsequent federal tax law.
5.
DATED: ________________, 20____.
/s/__________________________
[disclaimants name]
Disclaimant
[address]
[telephone no.]
[fax no.]
STATE OF __________
)
) ss.
)
I, ____________________, being duly sworn, depose and say: I

am the disclaimant in the above-entitled disclaimer and the foregoing
written partial disclaimer of bequest of partnership interest is true as I
verily believe.
/s/__________________________
[disclaimants name]
8-52
2012 Revision

20___.
/s/__________________________
Received this ____ day of ________________, 20__.
/s/__________________________
[address]
[telephone no.]
[fax no.]

8-53
2012 Revision
Form 8-5
Disclaimer to Cover Residuary Interest

Estate of
____________________,
)
)
)
)
)
Deceased.
Case No. _____

DISCLAIMER OF
RESIDUARY INTEREST
The undersigned, pursuant to ORS 105.623105.649, the Uniform

Disclaimer of Property Interests Act, hereby disclaims any and all
interest to the real property described that is included in the remainder
and residue of the estate or trust created by Article __ of the will of the
above-named decedent. [Describe the interest and the real property the
same as required for a deed.]
DATED: ________________, 20____.
/s/__________________________
[disclaimants name]
Disclaimant
[address]
[telephone no.]
[fax no.]
STATE OF __________
8-54
2012 Revision
)
) ss.
)
I, ___________________, being duly sworn, depose and say: I am

the disclaimant in the above-entitled disclaimer and the foregoing
disclaimer of residuary interest is true as I verily believe.
/s/__________________________
[disclaimants name]
20___.
/s/__________________________
/s/__________________________
[address]
[telephone no.]
[fax no.]

8-55
2012 Revision
Form 8-6
Disclaimer of Intestate Succession or Devise

Estate of
____________________,
)
)
)
)
)
)
Deceased.
Case No. _____

DISCLAIMER OF
INTESTATE
SUCCESSION OR DEVISE
The undersigned, pursuant to ORS 105.623105.649, the Uniform

Disclaimer of Property Interests Act, hereby disclaims [specify whether
the disclaimer is the whole or only a part of the property and describe
with particularity the property being disclaimed].
DATED: ________________, 20____.
/s/__________________________
[disclaimants name]
Disclaimant
[address]
[telephone no.]
[fax no.]
STATE OF __________
8-56
2012 Revision
)
) ss.
)
I, ___________________, being duly sworn, depose and say: I am

the disclaimant in the above-entitled disclaimer and the foregoing
disclaimer of intestate succession or devise is true as I verily believe.
/s/__________________________
[disclaimants name]
20___.
/s/__________________________
/s/__________________________
[address]
[telephone no.]
[fax no.]
8-57
2012 Revision
Form 8-7
Nontestamentary Disclaimer
[Name and address of Keogh trustee]

Re: Account No. ____________________
Keogh Account of ___________________
Ladies or Gentlemen:
The undersigned is the adult child of [name of vested owner], and a
beneficiary of [name of vested owners] Keogh account with your
institution.
Pursuant to ORS 105.623105.649, the Uniform Disclaimer of
Property Interests Act, the undersigned hereby disclaims the entire
interest in the above-entitled account.
The event determining that the undersigned has an interest in the
account is the date of death of [name of vested owner], which is [date of
death]. For your information, a copy of [name of vested owner]s
certificate of death is attached.
This disclaimer is mailed by certified mail on a date that is less
than nine months after [operative disclaimer date].
This disclaimer is delivered to [deliveree] as the person having
possession of the disclaimed account. This disclaimer relates back for all
purposes to [operative date], and the account herein disclaimed shall
devolve as if the undersigned disclaimant had died before [date].
The undersigned has not accepted the above-described account or
any interest or benefit thereunder.
8-58
2012 Revision
The undersigned hereby authorizes [lawyer name and address],

attorney at law, to represent the undersigned regarding effecting this
disclaimer.
/s/__________________________
[disclaimants name]
Disclaimant
[address]
[telephone no.]
[fax no.]
STATE OF __________
)
) ss.
)
The above instrument was acknowledged by the above-named

_______________ to be [his / her] voluntary act.

20___.
/s/__________________________
COMMENT: See 8.2-5(a) to 8.2-5(c), 8.3-2(b).

8-59
2012 Revision
Chapter 9
CLAIMS AGAINST THE ESTATE
HELEN RIVES PRUITT, A.B., Wellesley College (1976); J.D., University of Oregon
School of Law (1980); member of the Oregon State Bar since 1980 and the
Washington State Bar Association since 1984; partner, Wyse Kadish, LLP,
Portland.
The author acknowledges the research contributed by Nancy L. Mensch in updating
this chapter.
9.1
OVERVIEW .............................................................................. 9-3
9.2
CLAIM DEFINED .................................................................... 9-4
9.3
PROCEDURE FOR MAKING A CLAIM ............................... 9-5
9.4
9.3-1
Formalities of a Claim .................................................. 9-5
9.3-2
Manner of Presenting Claims ....................................... 9-7
9.3-3
Personal Representatives Notice Requirements .......... 9-7
9.3-4
Time for Presenting Claims .......................................... 9-8
TYPES OF CLAIMS ............................................................... 9-11

9.4-1
Who May Make a Claim ............................................ 9-11
9.4-2
Claims That Must Be Presented ................................. 9-11
9.4-2(a)
Generally ......................................................... 9-11
9.4-2(b)
Contingent and Unliquidated Debts ................ 9-11
9.4-2(c)
Personal Representatives Claims ................... 9-12
9.4-2(d)
Secured Claims ............................................... 9-13
9.4-3
Judgment Debts .......................................................... 9-13
9.4-4
Debts Not Due ............................................................ 9-14
9.4-4(a)
Presenting Claims on Debts Not Due ............. 9-14
9.4-4(b)
Secured Debts Not Currently Due .................. 9-15
9.4-4(c)
Allowance of Claim for Debt Not Yet

Due .................................................................. 9-15
9.4-5
Waiver of Defect......................................................... 9-15

9-1
2012 Revision
Chapter 9 / Claims Against the Estate
9.4-6
9.5
Rights Not Requiring Regular Presentment ................ 9-15
9.4-6(a)
Generally ......................................................... 9-15
9.4-6(b)
Expenses of Administration ............................ 9-15
9.4-6(c)
Tax Claims ....................................................... 9-17
9.4-6(d)
Actions Pending Against Decedent ................. 9-17
9.4-6(d)(1)
Substitution for a Decedent in

Trial Court ......................................... 9-17
9.4-6(d)(2)
Substitution for a Decedent in

Appellate Court ................................. 9-17
9.4-6(e)
Certain Equitable Claims Need Not Be

Presented .......................................................... 9-18
9.4-6(f)
Liability Claims Covered by Decedents

Insurance .......................................................... 9-19
DISPOSITION OF CLAIMS ................................................... 9-19

9.5-1
Allowance and Disallowance of a Claim .................... 9-19
9.5-2
Error in Allowance of Claim ....................................... 9-20
9.5-3
Procedure After Disallowance of Claim ..................... 9-20
9.5-4
Compromise of Claims ............................................... 9-22
9.5-5
Applying for Court Instructions .................................. 9-23
9.5-6
Summary Determination of a Claim ........................... 9-23
9.5-7
Claims for Services ..................................................... 9-24
9.5-8
Priority of Claims ........................................................ 9-26
9.5-9
Payment of Claims ...................................................... 9-26
9.5-10
Interest on Claims ....................................................... 9-27
Form 9-1
Form of Claim Against Decedents Estate ....................... 9-29
Form 9-2
Personal Representatives Creditor Search

Checklist ........................................................................... 9-31
Form 9-3
Notice of Right to Assert Claims Against the

Estate ................................................................................ 9-34
Form 9-4
Proof of Personal Representatives Compliance .............. 9-36
Form 9-5
Notice of Disallowance of Claim ..................................... 9-38
Form 9-6
Request for Summary Determination of Claim ............... 9-40
9-2
2012 Revision
Claims Against the Estate / Chapter 9
Form 9-7
Notice by Personal Representative of

Separate Action on Claim Required ................................ 9-42
Form 9-8
Checklist for Priority of Payment of Expenses and

Claims .............................................................................. 9-44
9.1
OVERVIEW
The presentation and collection of claims, as defined in the probate

code, are resolved in probate proceedings governed by ORS 115.001
115.335. The probate claims process is designed to determine and resolve
outstanding claims against a decedent, so that the personal representative
may promptly distribute the decedents estate to the beneficiaries, free of
claims. The personal representative has a duty to notify potential claimants by publishing a notice of the probate proceeding in a local
newspaper to invite claims, to search for potential claimants, to file proof
of the search effort with the court, and to give individual notice to any
claimants discovered during the search process. ORS 115.003(2)(4). See
2.5-1 to 2.5-5; see also 5.2-8.
Some claims need not be presented, such as secured claims, claims
covered by liability insurance, actions pending against the decedent on
the decedents date of death, and certain equitable claims. See 9.4-2(d),
9.4-6(a) to 9.4-6(f). Whether and in what order claims will be paid is
based on the availability of funds and the statutory scheme of priorities.
See 9.5-8 to 9.5-9; Form 9-8.
The 1997 Legislative Assembly enacted ORS 112.272 to validate
in terrorem clauses. The statute defines the term in terrorem clause as a
provision in a will that reduces or eliminates a devise to a devisee if the
devisee contests the will. ORS 112.272(4). See 15.2-1(e). The statute
also sets forth exceptions to the general validation of in terrorem clauses.
ORS 112.272(2)(3). Lawyers should review this statute and its exceptions, because beneficiaries occasionally use the claim procedure to try to
enhance their inheritances and avoid in terrorem clauses. A personal
representatives failure to object to this stratagem may lead to a waiver of
the right to enforce the in terrorem clause.
9-3
2012 Revision
9.2
CLAIM DEFINED
The Oregon probate code defines claim as follows: Claim

includes liabilities of a decedent, whether arising in contract, in tort or
otherwise. ORS 111.005(7). The definition is further modified by the
language of ORS 115.005(1), which provides: Claims against the estate
of a decedent . . . shall be presented to the personal representative. In
other words, a claim is the assertion by a creditor who seeks to be paid a
dollar amount from the general funds of the estate, for some debt or
obligation incurred during the decedents lifetime.
The creation of an obligation during the decedents lifetime is an
essential element of a claim. An obligation created during the administration of the estate is not a claim, should not be presented as a claim, and
may not be resolved using the claims resolution procedure. An obligation
that is not a claim should be resolved through other means, such as a
petition for instructions (see 9.5-5) or an objection to an accounting (see
11.7-1 to 11.7-3).
Cases decided before the enactment of the probate code in 1969
add to the definition of claim, and are still valid. In Weill v. Clarks
Estate, 9 Or 387 (1881), the decedent advanced purchase money to
acquire business assets, which were placed in a trust. The decedent
assigned to one party the right to receive $4,500 from the trust as the
trustee made distributions from the operation of the business. In the event
that the parties who had advanced the money had not been repaid by a
certain date, the trustee was to sell assets to repay the parties. After the
decedents death, the lenders assignee filed a written claim to be repaid.
The court held that the obligation to pay the assignee arose from the
agreement creating the trust. Therefore, the decedent was not personally
liable on the obligation. The assignees cause of action, if any, was
against the trust, and not against the decedents estate.
An action to enforce a contract to make a will is not a claim within
the meaning of ORS 115.005. Willbanks v. Goodwin, 70 Or App 425,
430431, 689 P2d 1004 (1984), revd on other grounds, 300 Or 181
(1985). In the Willbanks case, the Oregon Supreme Court allowed
review, but did not reach this issue. The appeal was resolved on the basis
9-4
2012 Revision
that the evidence of the alleged contract was not clear and convincing,
and no decision was reached on the claim issue. Willbanks v. Goodwin,
300 Or 181, 183, 709 P2d 213 (1985). See 9.4-6(e). (For background
reading, see Dickie v. Dickie, 95 Or App 310, 769 P2d 225 (1989), in
which the plaintiff sought to enforce a contract to make a will while the
decedent was still alive.)
When the decedent is jointly liable on an obligation, the holder of
the joint obligation has a claim against the decedents estate. Nadstanek
v. Trask, 130 Or 669, 685686, 281 P 840 (1929).
Libel contained in a decedents will does not give rise to a claim
for a tort because it is absolutely privileged. Binder v. Oregon Bank, 284
Or 89, 9192, 585 P2d 655 (1978), overruling Kleinschmidt v. Matthieu,
201 Or 406 (1954).
In a proper case, claims for personal services rendered to a
decedent may be allowed, although such claims are based on an implied
promise by the decedent to pay for those services. See 9.5-7.
If the lawyer for the personal representative represented the
decedent before death, the lawyer should file a claim for his or her fees in
the same manner as other claims are filed, because claims for attorney
fees incurred during the decedents lifetime must be filed as claims
against the estate. Baumann v. Wright, 249 Or 212, 437 P2d 488 (1968).
See In re Conduct of Weidner, 320 Or 336, 338 n 2, 883 P2d 1293
(1994). Attorney fees earned while representing the personal representative during estate administration are not claims as defined in the
probate code, because they are not incurred by the decedent during his or
her life. See 9.4-6(b).
9.3
9.3-1
PROCEDURE FOR MAKING A CLAIM
Formalities of a Claim
The probate code provides relatively few formal requirements for

making a claim. The form of a claim is not critical; a letter is sufficient,
although the best practice is for the claimant to prepare a pleading that is
clearly captioned as a claim. The only requirements are that the claim:
9-5
2012 Revision
(1)
Be in writing (typing is not required);
(2) Describe the nature of the claim and the amount alleged to
be due, if ascertainable;
(3)
State the claimants name and address; and
(4) State the name and address of the claimants lawyer, if any.
ORS 115.025.
PRACTICE TIP: A claim should be presented in pleading form
with the probate heading and labeled as a claim in the caption. The
claimant should sign the claim. See Form 9-1.
A simple handwritten note or letter may be a claim. If the writing
presented to the personal representative meets the requirements for a
claim, as described in ORS 115.025, the personal representative must
disallow it or it is deemed allowed. ORS 115.135; Wilson v. Culbertson,
41 Or App 475, 477478, 599 P2d 1163 (1979) (the delivery of a letter to
the decedents business rather than to the personal representative
constituted presentment within the meaning of the probate code; the personal representatives denial of the claim on its merits waived any
objections to the formalities of the claim).
Any agreement, contract, note, or other writing that the claimant
relies on may, but need not, be presented with the claim. However, the
claimant must produce written evidence of the claim or account for its
nonproduction, if the personal representative demands it. ORS 115.045.
PRACTICE TIP: The personal representative should demand
copies of all documentation from the claimant immediately upon
receiving a claim.
The personal representative or the court may waive any defect in
the form of a claim that is timely presented. ORS 115.035. However, the
personal representative may not waive a late filing. See ORS 115.005;
9.4-5.
If a claim is an account for which interest accrues, the claim should
include a claim for the interest. A claim in which interest does not accrue
under its terms, but that is not timely paid under the probate proceeding,
9-6
2012 Revision
may subsequently give rise to a claim for statutory interest for the
delayed payment period. See 9.5-10.
9.3-2
Manner of Presenting Claims
All claims, except those of the personal representative as a creditor

of the decedent, must be presented to the personal representative at the
address published in the notice to interested persons. ORS 115.005(1).
But see Wilson v. Culbertson, 41 Or App 475, 599 P2d 1163 (1979) (discussed in 9.3-1).
9.3-3
Personal Representatives Notice Requirements
A personal representative has an affirmative duty to give known or

reasonably discoverable creditors of a decedent actual notice of the
probate proceeding. The failure to give actual notice to known creditors
violates the due process clause of the United States Constitution. See
Tulsa Profl Collection Services, Inc. v. Pope, 485 US 478, 485, 108 S Ct
1340, 99 L Ed2d 565 (1988). Due process standards require that if a
personal representative knows of, or can reasonably ascertain, the
identity of creditors with claims against the decedent, the personal
representative must give those creditors actual notice. Published notice
will bar only the claims of persons with conjectural claims or the claims
of creditors who were genuinely unknown and not reasonably ascertainable by the personal representative or the estates lawyer. Tulsa Profl
Collection Services, Inc., 485 US at 489490.
A due diligence search means that the personal representative,
during the three months after his or her appointment (unless the court
allows a longer time period), must make reasonably diligent efforts to
investigate the financial records and affairs of the decedent and must
take such further actions as may be reasonably necessary to ascertain the
identity and address of each person who has or asserts a claim against the
estate. ORS 115.003(1). See Form 9-2.
Within 30 days after the expiration of the three-month period
specified for the personal representatives due-diligence search, the
personal representative must deliver or mail to each known potential
claimant a notice of the claimants right to assert a claim against the
estate. In other words, a claimant who is known or could reasonably be
9-7
2012 Revision
ascertained by the personal representative is entitled to personal delivery

or mail delivery of the notice required by ORS 115.003(3). ORS
115.003(2). (However, the personal representative does not need to give
notice on account of a claim that has already been presented, accepted, or
paid in full, or on account of a claim that is merely conjectural.) The
information that must be included in the personal representatives notice
to creditors is specified in ORS 115.003(3). See Form 9-3.
Within 60 days after the expiration of the period described for the
due-diligence search, the personal representative must file in the estate
proceeding proof of compliance with ORS 115.003(1)(2). The proof
must include a copy of the form of any notice delivered or mailed, the
date on which each notice was delivered or mailed, and the name and
address of the person to whom each notice was delivered or mailed. ORS
115.003(4). See 2.5-5. See also Forms 9-4, 2-4.
PRACTICE TIP: At the beginning of probate, the lawyer
should give the personal representative the Creditor Search
Checklist (see Form 9-2). The lawyer should ask the personal
representative to complete all of the recommended searches within
the first three months of commencing probate and to compile a list
of the names and addresses of all potential claimants. At the end of
the three-month period, the lawyer for the estate should send out
the 30-day notice letters to all of the potential creditors who have
not already filed claims in the estate. It is helpful to keep a chart
showing all of the potential creditors, the dates on which the notice
letters were sent, and the dates on which claims were received, so
that a list of timely claims can be maintained.
9.3-4
Time for Presenting Claims
All claims against the estate of a decedent (other than claims of the
personal representative as a creditor of the decedent, see 9.4-2(c)) must
be presented to the personal representative within the statute of
limitations applicable to the claim, and before the later of (1) four months
after the date of first publication of the notice to interested persons
pursuant to ORS 113.155, or (2) 30 days after the personal representative
9-8
2012 Revision
was required to mail or deliver a personalized notice to creditors who are

entitled to such notice pursuant to ORS 115.003. ORS 115.005(2).
ORS 115.005(3) provides that a claim presented after claims are
barred under ORS 115.005(2) may be paid from the estate only if:
(1) The claim is presented both before the expiration of the
statute of limitations applicable to the claim, and before the personal
representative files the final account, ORS 115.005(3)(a);
(2) It is presented by a person who did not receive the 30-day
notice letter and who is not an assignee of a person who received such
notice, ORS 115.005(3)(b);
(3) The claim would be allowable but for the time that it was
presented, ORS 115.005(3)(c); and
(4) The estate has sufficient assets to pay the claim after
payment of all expenses that have priority over the claim under ORS
115.125, and after payment of all previously presented claims, ORS
115.005(4) (see 9.5-8 to 9.5-9; see also Form 9-8).
NOTE: Before amendment in 2003, former ORS 115.005(4)
barred claims that were not presented within two years after the
decedents death or within the applicable limitations period,
whichever was earlier. Currently, the only time limitation applicable when the notice procedure has not been followed is the
applicable statute of limitations.
In Jones v. Hunt, 228 Or App 11, 206 P3d 1202 (2009), the court
permitted a creditor who had not received notice to reopen a probate two
years after it had been closed. The creditor had obtained a judgment
against the decedent during the decedents lifetime, and ultimately
prevailed in collecting his claim against the estate.
NOTE: For estates administered under the small-estate
procedure set forth in ORS 114.505114.560, if a creditor did not
receive a copy of the small-estate affidavit in which the creditor
was listed as a disputed creditor, and the creditor has not been paid
the full amount owed, the creditor may file a petition for summary
review of the administration of the estate within two years after the
9-9
2012 Revision
filing of the affidavit under ORS 114.515. ORS 114.550. Before

being amended in 2003, the statute required that the petition had to
be filed within two years after the decedents death. For further
discussion of small-estate procedures, see 5.3-1 to 5.3-8(d).
ORS 115.005 specifies two exceptions to the time limitations in
the statute. First, ORS 115.005(5)(a) provides that the time limitations do
not affect or prevent [a]ny proceeding to enforce a mortgage, pledge or
other lien upon property of the estate, or to quiet title or reform any
instrument with respect to title to property. This provision is consistent
with ORS 115.065, which allows a secured creditor to file a claim as an
unsecured debt, or to rely entirely on the security without presentation of
a claim (see 9.4-2(d)).
Second, ORS 115.005(5)(b) provides that the time limitations do
not affect or prevent, [t]o the limits of the insurance protection only, any
proceeding to establish liability of the decedent or the personal representative for which the decedent or personal representative is protected
by liability insurance at the time the proceeding is commenced. See
9.4-6(f).
Note the two conditions within the insurance exception:
(1) The exception applies only to the limits of insurance
protection (and, therefore, not to any uninsured portion of the claim); and
(2) The decedent or the personal representative must be protected by liability insurance at the time the proceeding is commenced;
[i]f claims made insurance coverage lapses before the time the
proceeding is commenced, a timely claim must be filed. 1993 OREGON
LEGISLATION 11-3 (Oregon CLE 1993).
ORS 115.325 cross-references ORS 115.005(5), making clear that
a secured claim or an insured claim need not be presented to the personal
representative before an action on the claim may be commenced.
A claim that is barred by the statute of limitations may not be
allowed, except on the written consent of all persons who would be
adversely affected by allowing it. ORS 115.205. A claim that is not
barred by the statute of limitations on the date of the decedents death is
9-10
2012 Revision
not barred by the statute of limitations thereafter, until at least one year
after the date of the decedents death. ORS 115.215.
In evaluating the timeliness of a claim, the personal representative
must consider both the procedural statute of limitations in the probate
code, and the statute of limitations applicable to the particular type of
claim. See State ex rel Dept. of H.S. v. Broyles, 228 Or App 264, 208 P3d
519 (2009), for a discussion of the interplay of the two.
9.4
9.4-1
TYPES OF CLAIMS
Who May Make a Claim
The probate code does not define the word claimant. Any person
or entity that has a claim (as defined in ORS 111.005(7)) may file a claim
against the estate. The creation of an obligation during the decedents
lifetime is an essential element of a claim. See 9.2.
9.4-2
Claims That Must Be Presented
9.4-2(a)
Generally
All claims must be presented, except certain causes of action that

might be thought of as claims, but are nevertheless exceptions to the rule.
See 9.4-6(a) to 9.4-6(f).
A secured creditor that intends to rely solely on the security need
not present a claim. ORS 115.065(1). See 9.4-2(d).
9.4-2(b)
Contingent and Unliquidated Debts
Contingent and unliquidated debts must be presented in the same

manner as any other claim. ORS 115.085.
If the contingent or unliquidated debt becomes absolute or liquidated before the distribution of the estate, the debt must be paid in the
same manner as any other claim on an absolute or liquidated debt. ORS
115.085(2).
If the debt does not become absolute or liquidated before the distribution of the estate, the court has broad discretion to provide for
payment of the claim:
9-11
2012 Revision
(1) The creditor and the personal representative may determine

the value of the debt by agreement, arbitration, or compromise, and, if the
court approves, the personal representative may pay the claim in the same
manner as a claim on an absolute or liquidated debt. ORS 115.085(3)(a).
(2) The court may order the personal representative to distribute
the estate, but to retain sufficient estate funds to pay the debt if and when
it becomes absolute or liquidated. If a debt does not become liquidated or
absolute within two years after distribution of the remainder of the estate,
the estate must be closed and the retained assets must be distributed. ORS
115.085(3)(b). If, after distribution, the debt becomes absolute or
liquidated, the distributees remain liable for the claim to the extent of the
assets they received from the estate. ORS 115.085(3)(d).
(3) The court may order the personal representative to distribute
the entire estate as though the claim did not exist, but the distributees
remain liable to the extent that they received assets. ORS 115.085(3)(c)
(d).
The distributees may arrange for payment of the claim by the
methods described in ORS 115.085(3)(d).
9.4-2(c)
Personal Representatives Claims
A claim of the personal representative, as a creditor, is not

presented in the same manner as other claims. The personal representatives claim must be filed with the court and must be approved by
the court before payment. ORS 115.105. This approval is usually sought
at the next accounting.
Upon the application of the personal representative or of any
interested person, the court may hear the claim either at the time of the
hearing on the final account, or before that time on notice to interested
persons. ORS 115.105.
No provision is made for a separate action or an appeal by the
personal representative from an adverse determination of his or her claim
by the court. The courts determination is apparently final. See ORS
115.105, 115.145.
9-12
2012 Revision
9.4-2(d)
Secured Claims
A secured creditor may either (1) rely entirely on the security

without presenting his or her claim, or (2) surrender the security and
present a claim for the unsecured debt. ORS 115.065(1).
PRACTICE TIP: When the debt exceeds the value of the
security, the secured creditor should present the claim if the
objective is to recover more than the value of the security. ORS
115.065; see Meissner v. Murphy, 58 Or App 174, 179, 647 P2d
972 (1982) (by exercising the remedies reserved under her
security before filing a claim [against the decedents estate],
plaintiff elected to rely solely on her security and, therefore, she is
not entitled to recover a deficiency judgment).
If a secured claim is presented, the security must be described. If
the security is an encumbrance that is recorded, it is sufficient to describe
the encumbrance by reference to the book, page, date, and place of its
recording. ORS 115.065(2).
If the secured creditor does not surrender the security, payment to
the creditor is based on (1) the amount of the claim allowed minus the
amount realized on the security (if the creditor exhausts the security), or
(2) the amount of the claim allowed minus the agreed value of the
security (if the creditor does not exhaust the security). ORS 115.065(5).
Because ORS 115.145 gives all creditors the right to either request
a summary determination of the claim by the probate court or to file a
separate action in a court of competent jurisdiction, a secured creditor has
the same rights of review as other creditors whose claims are disallowed.
See UTCR 9.070.
The personal representative may convey the security to the secured
creditor in full or partial satisfaction of the claim. ORS 115.065(6).
9.4-3
Judgment Debts
A creditor may collect on a judgment debt obtained before the

decedents death only by making a claim against the estate under the
procedures described in ORS chapter 115 or under the small-estate procedures prescribed by ORS 114.505114.560 (see 5.3-7). ORS 18.312.
9-13
2012 Revision
The creditor must attach a copy of the judgment to its claim. ORS
115.070; see ORS 115.005.
The personal representative may disallow such a claim only if
(1) the judgment was void or voidable, (2) the judgment could have been
set aside on the date of the decedents death, or (3) the claim was not
presented within the time required by ORS 115.005. ORS 115.070. If the
judgment was a lien against the decedents property, the personal
representative should treat it as a secured debt. In all other cases,
however, a judgment debt has the same priority under ORS 115.125 as it
would have had were the debt not reduced to judgment. ORS 115.070.
In 2007, the Oregon Legislature amended ORS 18.312 to allow
secured creditors that obtain judgments of foreclosure to foreclose on the
property even after the decedents death. If the proceeds from the sale of
the property are not sufficient to satisfy the debt, the creditor may make a
claim against the estate to recover the deficiency. ORS 18.312(2).
9.4-4
Debts Not Due
9.4-4(a)
Presenting Claims on Debts Not Due
A decedents obligations may not be due as of the date of the

decedents death, and may not be due until long after the time anticipated
to complete the administration of the estate. The presentation of claims
on obligations not yet due is governed by ORS 115.075 as follows:
(1) Claims, whether or not secured, may be presented as claims
on debts due;
(2) If the claim is allowed, allowance must be in an amount
equal to the value of the debt on the date of allowance;
(3) The creditor may withdraw the claim without prejudice to
other remedies; and
(4) Payment of the amount allowed discharges the debt and the
security, if any.
The probate code contemplates a quick and final settlement of
estates, with claimants being paid off immediately. See ORS 115.075
(claims for debts not yet due may be presented and allowed at their
9-14
2012 Revision
present value, facilitating settling the estate before future debts become
due). Thomas By & Through Petersen v. State By & Through Senior &
Disabled Services Div., 319 Or 520, 527, 878 P2d 1081 (1994).
9.4-4(b)
Secured Debts Not Currently Due
A creditor with a secured claim against an estate for a debt not yet
due must decide whether to present a claim against the estate or to rely on
the security. See ORS 115.065. See also 9.4-4(a). The creditors decision will be based generally on what the creditor perceives as the
prospects for recovering the entire debt if the security is exhausted. See
9.4-2(d). Other factors that may influence the creditors decision include
the value of the decedents estate, the existence of co-obligors, and the
feasibility of accepting less than the face value of the debt.
9.4-4(c)
Allowance of Claim for Debt Not Yet Due
If allowed, a creditors claim against an estate for a debt not due

entitles the claimant to an amount equal to the value of the debt on the
date of allowance. ORS 115.075. Presumably, this means a discount to
the present value of the debt.
9.4-5
Waiver of Defect
Under ORS 115.035, the personal representative or the court may

waive a defect in the form of a claim timely presented, but may not waive
the presentment of a claim or the late presentment of a claim. Claims not
presented as required by statute are barred from payment. ORS
115.005(2)(4). See 9.3-4.
9.4-6
Rights Not Requiring Regular Presentment
9.4-6(a)
Generally
There are exceptions to the procedure for presenting claims against

the estate of a decedent. Certain obligations incurred by the decedent
before death (such as income taxes and insured liability claims) and other
rights do not require presenting a claim. See 9.4-6(b) to 9.4-6(f).
9.4-6(b)
Expenses of Administration
Expenses or liabilities that the personal representative incurs

during the administration of the decedents estate are not claims against
9-15
2012 Revision
the estate, and should not be presented as claims or processed under the
claim resolution procedure; they are instead obligations of the personal
representative. Expenses that are properly incurred for the benefit of the
estate may be reimbursed to the personal representative out of the estate
assets. The order of payment of expenses and claims is set forth in ORS
115.125(1). See 9.5-8 to 9.5-9; Form 9-8.
A personal representative may be reimbursed for expenditures in
connection with the administration of the estate and is entitled to a
preference, even though allowing such expenses might not leave sufficient funds to pay the decedents creditors. Expenses of estate
administration are the second level of priority after support for the
decedents spouse and children. ORS 115.125(1).
Similarly, compensation for the personal representatives services
and fees for his or her lawyer are not claims against the estate that must
be presented, although these fees must be court-approved before
payment. See ORS 116.173 (personal representatives fees) and ORS
116.183 (attorney fees). Claims for attorney fees incurred before the
decedents death may be barred if not timely presented under the claims
procedures. See 9.3-4.
A personal representative is not personally liable on contracts that
he or she properly enters into in his or her fiduciary capacity unless the
personal representative expressly agrees to be personally liable. ORS
114.405(2). Nor is the personal representative personally liable for torts
committed in the course of administration unless the personal
representative is personally at fault. ORS 114.405(3). Tort and contract
obligations arising during the administration of the estate may be
allowed against the estate whether or not the personal representative is
personally liable therefor. ORS 114.405(4).
In Widing, Matter of Estate of, 149 Or App 451, 453, 944 P2d 969
(1997), two estate beneficiaries lent money to the personal representatives of the estate to pay estate taxes and to take care of other
administrative expenses. The trial court held that the loans were
obligations of the estate, but that they did not have the priority of
administrative expenses, leaving the beneficiaries in the same status as
9-16
2012 Revision
general creditors of the estate, although the debt was created after the
decedents death and thus did not constitute a claim.
9.4-6(c)
Tax Claims
In general, because of lien statutes, neither the United States nor

the state of Oregon needs to file claims for taxes that are due. See
26 USC 6324; ORS 118.210 et seq. If the personal representative fails
to pay taxes, he or she remains personally liable in most instances, and
the distributee remains liable to the extent of the value of the property
transferred.
The procedures for discharging the personal representative from
personal liability for taxes are found in 26 USC 2204 and ORS 316.387.
See IRS Form 5495 (Request for Discharge from Personal Liability
Under IRC Section 6905), available at <www.irs.gov/pub/irs-pdf/
f5495.pdf>, and Oregon Department of Revenue Form 150-101-151,
available at <www.oregon.gov/DOR/BUS/forms-fiduciary.shtml>.
9.4-6(d)
Actions Pending Against Decedent
9.4-6(d)(1)
Substitution for a Decedent in Trial Court
If an action against the decedent was commenced before or pending on the date of the decedents death, the plaintiff in that action may
move the court to substitute the personal representative for the deceased
party at any time within one year after the defendants death, unless
(1) the personal representative mails or delivers notice, including the
information required by ORS 115.003(3), to the claimant or the
claimants lawyer; and (2) the claimant or his or her lawyer fails to move
the court to substitute the personal representative within 30 days of
mailing or delivery of the notice. ORCP 34 B(2). No claim need be
presented for a case already in litigation. ORS 115.315. See Hitchman v.
Burkey, 95 Or App 508, 512, 769 P2d 799 (1989) (the plaintiffs did not
present their claim against the estate when they brought suit against the
defendant during the defendants lifetime).
9.4-6(d)(2)
Substitution for a Decedent in Appellate Court
Substitution for a deceased party in an appeal is governed by

ORAP 8.05(1), which adopts ORCP 34 by reference. In addition, ORAP
9-17
2012 Revision
8.05(2) provides specifically for the dismissal of an appellate proceeding

when a criminal defendant dies before the appeal process is completed.
9.4-6(e)
Certain Equitable Claims Need Not Be Presented
In general, early Oregon cases held that all equitable claims against
a decedent, like all legal claims, must be presented to the decedents
personal representative, except that no claim need be filed (1) by a
beneficiary seeking to impose a trust on the deceaseds assets, (2) by a
party demanding a conveyance under a land sale contract or the return of
specific property under claim of ownership, or (3) to protect a security
interest that is validly filed. Harris v. Craven, 162 Or 1, 18, 91 P2d 302
(1939); Dunham v. Siglin, 39 Or 291, 64 P 661 (1901).
In ORS 115.325, the probate code clearly directs that no action
may be commenced against the personal representative unless the claim
has been presented to and disallowed by the personal representative
(except as provided in ORS 115.004, 115.005(5), and 115.065). Notwithstanding this statute, however, a body of case law decided after the
enactment of the probate code holds that certain equitable claims need
not be the subject of the claim-and-disallowance procedures before the
commencement of equitable procedures.
In Willbanks v. Goodwin, 70 Or App 425, 689 P2d 1004 (1984),
revd on other grounds, 300 Or 181 (1985), the plaintiff brought an
action for the specific performance of an oral contract to make a will. The
trial court granted specific performance and imposed a constructive trust
on the assets that the plaintiff claimed were his by reason of a breach of
the contract to make a will. The court of appeals held that the
presentation of a claim against the estate was not required. Willbanks, 70
Or App at 431. The Oregon Supreme Court reversed, but declined to rule
on whether the plaintiff had to make a claim against the estate before
bringing the equitable action. Willbanks v. Goodwin, 300 Or 181, 183,
709 P2d 213 (1985).
COMMENT: The supreme courts analysis is troublesome.
Whether the plaintiff had to file a claim with the personal
representative in compliance with ORS 115.325 appears to be a
threshold question. The supreme court should have ruled on that
9-18
2012 Revision
issue before analyzing the quantum of proof, much less the

sufficiency of proof on the specific facts of this case.
In Wilkinson v. Higgins, 117 Or App 436, 844 P2d 266 (1992),
(opinion amended and reinstated 1993), the plaintiff (the decedents
girlfriend) sued the defendant (the decedents wife) for her partnership
interest in a horse farm. The court of appeals held:
Plaintiffs claim to an interest in the land, to the extent that it is based
on her partnership in the business, is not a claim against [the
decedents] estate, because her rights in specific partnership property
depend on her status as a partner, not on [the decedents] being
deceased. ORS 68.420. Declaring a partners rights in partnership
property is not within the scope of a personal representatives official
duties.
Wilkinson, 117 Or App at 440.

9.4-6(f)
Liability Claims Covered by Decedents Insurance
To the limits of insurance protection only, the time limitations in

ORS 115.005 regarding the presentation of claims against the estate of a
decedent do not affect any proceeding to establish liability of the
decedent or the personal representative for which the decedent or
personal representative is protected by liability insurance at the time the
proceeding is commenced. ORS 115.005(5)(b). The general statutes of
limitations still run. Some tolling takes place under ORS 115.215, which
extends the statute of limitations until at least one year after the date of
death, if the claim is not barred by the statute at the time of the
decedents death. See 9.3-4.
9.5
9.5-1
DISPOSITION OF CLAIMS
Allowance and Disallowance of a Claim
After presenting a claim, the claimant need do nothing unless the

personal representative disallows the claim (in whole or in part). A claim
is deemed allowed unless it is disallowed within 60 days of its presentment. ORS 115.135(1).
9-19
2012 Revision
The personal representative disallows a claim by mailing or

delivering a notice of disallowance to the claimant and the claimants
lawyer (if any) within 60 days after presentment of the claim. ORS
115.135(1). The claim and a copy of the notice of disallowance must be
filed in the estate proceedings. ORS 115.135(1). A notice of disallowance
must inform the claimant that the claim has been disallowed in whole or
in part and, to the extent disallowed, will be barred unless the claimant
proceeds as provided in ORS 115.145. ORS 115.135(2). See Form 9-5.
Before filing the final account, the personal representative may
rescind the allowance of an unpaid claim because of error, misinformation, or excusable neglect. ORS 115.135(3). See 9.5-2.
9.5-2
Error in Allowance of Claim
Unpaid claims against an estate allowed by the personal representative because of error, misinformation, or excusable neglect may be
rescinded, if the personal representative mails or delivers notice of
rescission to the claimant and the claimants lawyer, if any, not less than
30 days before filing the final account. ORS 115.135(3). The form of
rescission must contain the same information as a notice of disallowance. ORS 115.135(3); see 9.5-1.
PRACTICE TIP: Although the statute does not require the
personal representative to state the facts that justify entitlement to
the rescission, the personal representatives petition should recite
these facts in the body of the petition or in supporting affidavits.
9.5-3
Procedure After Disallowance of Claim
A claimant must act within 30 days after the personal representative has mailed or delivered the notice of disallowance, or the claim
is barred. ORS 115.145(2). Within the 30-day period, the claimant must
either:
(1) File a request for a summary determination of the claim in
the probate court, with proof of service of a copy of the request on the
personal representative or the personal representatives lawyer, ORS
115.145(1)(a) (see Form 9-6; 9.5-6; UTCR 9.070); or
9-20
2012 Revision
(2) Commence a separate action in a court of appropriate

jurisdiction, which will be tried as any other action, ORS 115.145(1)(b).
See 9.5-6, regarding the summary determination of a claim.
If the claimant requests a summary determination, the personal
representative may require the claimant to prove the claim in a separate
action. ORS 115.155. Within 30 days after being served with a copy of
the request for a summary determination, the personal representative
may notify the claimant in writing that if the claimant desires to prove
the claim the claimant must commence a separate action against the
personal representative on the claim within 60 days after the date of
receipt of such notice. ORS 115.155. See Form 9-7. If the claimant fails
to commence a separate action within the 60-day period, the claim, to
the extent disallowed by the personal representative, is barred. ORS
115.155.
Any interested person may be heard in a proceeding for the
summary determination of a claim and may intervene in a separate action
against the personal representative on the claim. ORS 115.175.
The claimant may testify in the summary-determination proceeding or the separate action, but the claimant must offer competent
evidence, other than the claimants own testimony, to prove the claim.
ORS 115.195(1). See 9.5-6 and 9.5-7, regarding the evidence
necessary for the claimant to meet the burden of proof. However, claims
for the recovery of public assistance, as defined by ORS 411.010, may be
allowed based on evidence in the form of documents from the
Department of Human Services or the Oregon Health Authority. ORS
115.195(2).
In State ex rel. Dept. of Human Res. v. Payne, 157 Or App 612,
617618, 970 P2d 266 (1998), superseded by statute as stated in State ex
rel. Dept. of Human Resources v. Payne, 157 Or App 612 (1998), the
court of appeals expressly held that the state was not subject to the 30day time limitation for filing after the disallowance of a claim. In direct
response to this decision, the legislature enacted ORS 115.008, which
provides as follows:
9-21
2012 Revision

Notwithstanding ORS 12.250, and except as otherwise
specifically provided in this chapter, all statutes of limitation and other
time limitations imposed under this chapter apply to actions brought in
the name of the state, or brought in the name of any county or public
corporation, and to actions brought for the benefit of the state or for
the benefit of any county or public corporation.
See State ex rel Dept. of H.S., 228 Or App 264, 208 P3d 519
(2009) (holding that ORS 115.008 caused the four-month limitations
period under ORS 115.005, and all other time limitations within the probate code, to apply to the states recovery for medical expenses paid for
the benefit of the decedent, but did not incorporate any other statutory
limitations that would bar state claims).
9.5-4
Compromise of Claims
The personal representative has the power to compromise, settle,

and satisfy claims against the estate. ORS 114.305(4), (25), 115.095. The
personal representative may do so without prior court approval. ORS
114.275.
PRACTICE TIP: The personal representative should not pay or
finally settle a compromised claim without considering whether the
settlement should have court approval. The personal representative
should consider giving notice of the proposed settlement to persons
who would be affected by it.
A personal representative may allow a claim that is insufficient in
form as long as it is timely presented. ORS 115.035. However, a personal
representative may not allow a claim that is not timely filed or that is
barred by the statute of limitations, without the consent of all of the
persons who would be adversely affected by allowance of the claim. ORS
115.205. See 9.3-4.
PRACTICE TIP: When the estate property may be insufficient
to pay all claimants in full, or when opposition to payment is
anticipated, the personal representative should neither pay nor
finally settle compromised claims until (1) the final account reporting the settlement proposal is approved by the court, or (2) the
notice to interested persons is given and court approval is obtained.
9-22
2012 Revision
9.5-5
Applying for Court Instructions
The personal representative or any interested person may petition

the probate court to approve a settlement, interpret the language of the
will that may be the basis for a dispute, or give him or her instructions on
how to proceed. ORS 114.275. See Barker v. Barker, 65 Or App 635, 672
P2d 370 (1983).
PRACTICE TIP: A court order under ORS 114.275 can create
a safe harbor by giving instructions concerning competing positions or interpretations. If the personal representatives good-faith
resolution of a dispute is questioned by an heir, a devisee, or a
creditor, and problems are anticipated, or if the issue is novel, the
personal representative should petition the court for instructions.
CAVEAT: ORS 114.275 seems to allow some discretion
regarding the notice required to be given to those affected by the
proposed action, but if the proposed action would have an impact
on the property rights of a party, the personal representative must
give notice to the persons affected. The same due-process
requirements that led the 1989 Legislature to change the statute
regarding notice to claimants are applicable here. See 9.3-4. There
probably never can be too much notice. The failure to give notice
of a proposed action can easily be the basis for review and reversal. See 9.3-3.
As an alternative to a petition for instructions, the probate courts
jurisdiction includes the full, legal and equitable powers to make
declaratory judgments, as provided in ORS 28.010 to 28.160. ORS
111.095(2). See ORS 28.040 (declaratory judgments in trusts and
estates).
9.5-6
Summary Determination of a Claim
In a proceeding for a summary determination of a claim disallowed, in whole or in part, by the personal representative, the personal
representative must move or plead to the claim as though the claim were
a complaint filed in an action. ORS 115.165(1). Although the pleadings
are the same as in a separate action against the personal representative on
the claim, the probate court hears the matter without a jury and deter9-23
2012 Revision
mines the claim in a summary manner. ORS 115.165(1)(2). The court

makes an order allowing or disallowing the claim, in whole or in part. No
appeal may be taken from such an order. ORS 115.165(3).
Any interested person may be heard in a proceeding for the summary determination of a claim. ORS 115.175.
ORS 115.195(1) provides that [a] claim that has been disallowed
by the personal representative may not be allowed by any court except
upon some competent, satisfactory evidence other than the testimony of
the claimant. This means that a claimant must prove a prima facie case
with evidence other than the claimants own testimony; only then does
the case go to the factfinder. See Johnson v. Ranes, 67 Or App 667, 680
P2d 688 (1984) (discussed in 9.5-7), for an analysis of the quality of
evidence necessary for the claimant to meet the burden of proof.
The claimant is a competent witness to testify on his or her behalf,
but the claimants testimony alone is not sufficient to establish a claim.
Goltra v. Penland, 45 Or 254, 262265, 77 P 129 (1904); Uhler v.
Harbaugh, 110 Or 609, 614617, 224 P 89 (1924); see In re Johnsons
Estate, 178 Or 214, 220221, 164 P2d 886 (1945). Competent evidence
refers to admissible evidence and not to the weight of the evidence.
Bonnett v. Keiffer, 115 Or 244, 249, 237 P 1 (1925). See In re Kries
Estate, 182 Or 311, 318321, 187 P2d 670 (1947). The claimants
testimony alone, however, may establish presentment and disallowance,
nonpayment, and the reasonable value of a claim. Goltra, 45 Or at 262
265; Littlepage v. Sec. Sav. & Trust Co., 137 Or 559, 560, 3 P2d 752
(1931).
The testimony of an employee of a corporate claimant is treated as
other testimony, not as the testimony of the corporation. Mason, Ehrman
& Co. v. Lewis, 131 Or 242, 260, 282 P 772 (1929). A bookkeeping entry
made in the regular course of business during the decedents lifetime is
also treated as other testimony. In re Hattrems Estate, 170 Or 613, 633,
135 P2d 777 (1943).
9.5-7
Claims for Services
Litigation in probate proceedings often involves a claim for the

value of personal services rendered to the decedent before his or her
9-24
2012 Revision
death. In many cases, no evidence is in writing, and most of the proof of

the entitlement consists of the claimants testimony. See generally
chapter 15.
PRACTICE TIP: These claims are troublesome and difficult to
evaluate, and predicting the outcome is problematic. Invariably,
most of the evidence comes from the claimant and the claimants
family, and the court and counsel must struggle with whether
services were provided gratuitously, and whether only after the
decedents death was the opportunity for money seized upon.
As discussed in 9.5-6, ORS 115.195(1) is controlling and
provides that [a] claim that has been disallowed by the personal representative may not be allowed by any court except upon some competent,
satisfactory evidence other than the testimony of the claimant.
Three cases are instructive on this recurring situation. In Johnson
v. Ranes, 67 Or App 667, 680 P2d 688 (1984), the plaintiff brought a
claim against the decedents personal representative for services provided
to the decedent before the decedents death. The court of appeals stated
that the statute requires a claimant to establish a prima facie case with
evidence other than [the claimants] own testimony before the case can
be submitted to the jury. Johnson, 67 Or App at 672. A prima facie case
for services to a decedent requires (1) that the claimant provided valuable
services to the decedent; (2) that the decedent either requested the services or acquiesced in their receipt, knowing that they were not provided
gratuitously; (3) that there was no express contract regarding payment for
the services; and (4) that proof be presented as to the reasonable value of
the services provided to the decedent. Johnson, 67 Or App at 672.
In Kohler v. Armstrong, 92 Or App 326, 328330, 758 P2d 407
(1988), the plaintiff was awarded the reasonable value of her services for
assisting the decedent during the final year of the decedents life. The
proof in Kohler was weaker than in the Johnson case. The plaintiff in the
Kohler case was a niece of the decedent. Although the defendant pointed
out that services rendered to a close relative are presumed to be gratuitous, the court stated that every case depends on its own facts. Kohler, 92
Or App at 329. The court of appeals found that the plaintiff overcame
9-25
2012 Revision
that presumption by the plaintiffs own testimony and the testimony of

her daughters. The court also noted that the plaintiffs usual occupation
was in-home care for the elderly, for which she was usually paid.
In Jones v. Hunt, 228 Or App 11, 206 P3d 1202 (2009), the father
of the decedent claimed that he agreed to provide room, board, transportation, and medical care to the decedent in exchange for the payment
of money by the decedent sometime in the future. The agreement was not
in writing, and the court found no adequate testimony to support an oral
understanding. Furthermore, the father could not produce written
documentation of the amount of his actual expenses incurred under the
agreement, or the value of the services that he provided under it. The
court of appeals held that the father failed to provide sufficient evidence
to support his claim.
9.5-8
Priority of Claims
When the estate assets are not sufficient to pay all of the claims
and expenses in full, the personal representative must pay them in
accordance with statutory priorities. ORS 115.125. See Form 9-8. Claims
of any class are prorated if funds are insufficient to pay all of the claims
of that class. ORS 115.125(2).
A secured creditor whose lien attaches before the death of the
decedent can claim the secured property on a first in time, first in right
basis, rather than by accepting a pro rata distribution under ORS
115.125(2) to the extent of the value of secured property. Heiller v.
Nelson, 127 Or App 189, 192, 872 P2d 26 (1994); see ORS 115.070 (if a
judgment was a lien against the property of the estate on the date of the
decedents death it shall be treated as a claim on a debt due for which the
creditor holds security). If the claim exceeds the value of the secured
property, the balance of the claim will be prorated by class in accordance
with ORS 115.125.
9.5-9
Payment of Claims
The payment of claims is governed by ORS 115.115. See Form 9-8

for a checklist on priority for payment of claims and expenses.
9-26
2012 Revision
Claims are paid only after all known claims are barred under ORS
115.005(2) (i.e., on the expiration of four months from the date of the
publication of notices to interested persons under ORS 115.005(2)(a), or
30 days after the notice required under ORS 115.003(2)). ORS 115.115.
See 9.3-4 (time for presenting claims). If a claim is allowed but not paid
within six months, the creditor may apply to the court for an order
compelling payment of the claim to the extent that funds of the estate are
available. ORS 115.185.
The personal representative may not allow and pay a claim that is
barred by the statute of limitations, without the written consent of all of
the persons who would be adversely affected by allowance of the claim.
ORS 115.205.
The priority order for the payment of claims is found in ORS
115.125. See 9.5-8; Form 9-8. Under ORS 115.125(1), child-support
arrearages have priority over general creditors and certain statereimbursement claims in a probate case in which assets are insufficient to
pay all of the claims. See ORS 114.085 (setting apart the entire estate for
the support of the surviving spouse and dependent children); ORS
114.065 (priorities of payment for an insolvent or partially insolvent
estate). See also 6.2-1 to 6.2-4 (support of a surviving spouse and
children); 9.3-4 (claims filed after four-month period).
9.5-10 Interest on Claims
In Thomas By & Through Petersen v. State By and Through Senior
and Disabled Services Div., 319 Or 520, 878 P2d 1081 (1994), the state
made a claim against the decedents estate for medical assistance
provided to the decedent. The estates primary asset was a land sale
contract, and the estate paid the claim over a nine-year period as the
payments under the land sale contract were collected. The state asserted a
right to interest on the claim pursuant to ORS 82.010(1). The supreme
court held that the state was entitled to statutory interest from the date
that was six months after the date of the first publication of notice to
interested persons, because the personal representative had a duty to
pay the states claim as of that date. Thomas By & Through Petersen, 319
Or at 529 (quoting ORS 115.185). The court ruled that the claim became
9-27
2012 Revision
due as defined under ORS 82.010(1), as of six months after the first
publication. The court further ruled that the state did not have to assert a
claim for interest in its claim, because the interest did not accrue until the
estate did not pay the claim six months after the publication date. The
court held that the state had adequately asserted its claim for interest in
its objection to the final account. Thomas By & Through Petersen, 319
Or at 529532.
PRACTICE TIP: When responding to any claim, the lawyer
should keep the Thomas By & Through Petersen case in mind. To
avoid a later demand for interest under the authority of this case,
the lawyer should deal with the interest issue at the outset. For
example, in responding to any claim, the lawyer could allow the
claim in part (allowing only the principal), and disallow the claim
in part (specifically disallowing any current or future demand for
interest on the claim). The point is to avoid potential problems
regarding the content of the claim. If the claimant presses the
interest issue, the lawyer could settle the matter by negotiation.
(Settlement options include reducing the interest accrued to the
date of the claim, lowering the interest rate, and selling the estates
contract receivables.) If settlement negotiations fail, the matter
may be resolved by summary determination, litigation, or arbitration. The lawyer should use all of his or her dispute-resolution
tools. In short, the decision in the Thomas By & Through Petersen
case is a practice tip in itself. The lawyer should review the rules
set forth in the opinion and consider how the result might have
been avoided.
Interest on an unpaid claim is payable at the rate of 9% per annum
from the time that payment of the claim was due. ORS 82.010(1). See
Thomas By & Through Petersen, 319 Or at 529530. For unliquidated
claims, interest accrues from the date that the claim is established by
judgment. ORS 82.010(2); In re McKinneys Estate, 175 Or 28, 40, 149
P2d 980 (1944).
9-28
2012 Revision
Form 9-1
Form of Claim Against Decedents Estate

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

CLAIM AGAINST
DECEDENTS ESTATE
I, [interested person or creditors name], claim:

The above-entitled estate is indebted to [creditors name and
address] in the amount of $__________ for [describe the nature of the
claim].
[For example: Balance owing on installment contract for purchase
of a Model X hearing aid. Original contract dated March 17, 2011, in
amount of $675; payments received and credited to date $350; remaining
unpaid balance $325, payable $50 per month.]
I [am the claimant / am presenting this claim on behalf of the
claimant and have personal knowledge of the facts stated above]. The
amount of $__________ [is justly due the claimant / is justly owing to
the claimant and will become due on _______________, 20___]. No
payments have been made that are not credited, and there is, to my
knowledge, no offset or counterclaim except as stated above.
OptionalAttached is a copy of [document evidencing claim].
Claimants lawyer is [name and address of claimants lawyer].
9-29
2012 Revision
DATED: _______________, 20____.
/s/__________________________
[claimants name]
CLAIMANT:
[name]
[address]
[telephone no.]
[fax no.]
LAWYER FOR CLAIMANT:

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 9.3-1. See UTCR 2.010 and UTCR 9.030 for the
form of documents, including requirements regarding document title,
spacing, and format.
9-30
2012 Revision
Form 9-2
Personal Representatives Creditor Search

Checklist
As personal representative, you have a legal obligation to take

reasonable actions during the first three months of administering this
estate to identify every person to whom the decedent owes a debt or other
obligation, and every person who claims to be owed such a debt, even if
the claim is not valid. This checklist is intended to assure that you satisfy
your legal obligation to identify claimants. Mark each item X if
completed or N/A if inapplicable. You should return this completed
checklist to the lawyer for the estate three months after the initiation of
the estate proceeding. Within that time period, you should discuss with
your lawyer the requirements for giving notice to claimants.
_____
Notify the Postal Service (by change of address notice) to

forward to you all of the decedents mail, including mail to
the decedents residence and any business address of the
decedent.
_____
Continually review all mail for bills or other indication of

debt for three months after the date of your appointment.
_____
Review all available bank account records of the decedent for

the last year to identify regular installment payments and
partial payments on indebtedness. Follow up with inquiries
regarding all payments that suggest a continuing obligation.
_____
Review all available records in the possession of the decedent.

Follow up with inquiries as appropriate.
_____
Ask each lawyer, accountant, or other financial consultant of

the decedent known to you to have provided services to the
decedent to provide you with information on any creditors of
the decedent known to them.
_____
Review income tax returns for the last three years with an
accountant or the estate lawyer, who may obtain appropriate
tax releases.
9-31
2012 Revision
_____
If the decedent was ever divorced, review divorce records to

identify any unpaid obligations for property division, debts,
spousal or child support, or attorney fees.
_____
If any records or information shows that the decedent was

involved in any litigation during the last 20 years, the estate
lawyer should review the court judgment docket to verify
whether judgments are outstanding.
_____
Check with hospitals, ambulance companies, and physicians

known to have provided recent care to the decedent to determine whether any balances are owed that have not been paid
by Medicare or medical insurance.
_____
If the decedent has received any form of public assistance,

including Medicaid payment of nursing home expenses, determine whether any reimbursement is owed to the public
welfare agency providing the assistance.
_____
If the decedent was involved in an accident during the two

years ending on the date of death, review the circumstances to
identify any outstanding claims for personal injury or property
damage allegedly caused by the decedent.
_____
If the decedent operated a business, review business records

and discuss potential claims with all business partners and
associates. If the business was incorporated, check the corporate minute book, and check for guarantees of corporate debts.
Consider purchasing tail coverage on existing liability
policies.
_____
If the decedent owned real property, including a home, check

with the tax assessor to determine whether property taxes
have been paid. If the decedent rented an apartment or home
or business property, verify that no further rent is owed.
_____
If you have any claim against the estate on account of a debt,

notify the estate lawyer to file a personal representatives
claim with the court.
9-32
2012 Revision
_____
Consider whether any other obligations of the decedent exist,

but are not covered by this checklist.
COMMENT: See 9.3-3.

9-33
2012 Revision
Form 9-3
Notice of Right to Assert Claims Against the Estate

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

NOTICE OF RIGHT TO
ASSERT CLAIMS
AGAINST THE ESTATE
I am the personal representative for the estate of the above-named

decedent.
It appears that you may have or assert a claim against the estate of
the decedent. In order to assert a claim, you must present that claim in
writing to the personal representative.
The name of the personal representative and the address at which
claims are to be presented are: ______________________________.
The date of this notice and the date that this notice is delivered or
mailed is: ___________, 20___. Any claims against the estate not
presented within 30 days of the date of this notice may be barred.
DATED: _______________, 20____.
/s/__________________________
[name]
9-34
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 9.3-3; ORS 115.003(3). See UTCR 2.010 and

UTCR 9.030 for the form of documents.
9-35
2012 Revision
Form 9-4
Proof of Personal Representatives Compliance

Estate of
____________________,
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

DECLARATION OF
COMPLIANCE
REGARDING SEARCH
FOR CLAIMS AND
NOTICE TO CLAIMANTS
I, [personal representative], say that:

1.
I have completed a review of the financial records and affairs of
the decedent and taken such further actions as appear to me reasonably
necessary to ascertain the identity and address of each person who has or
asserts a claim against the estate. Attached as part of this affidavit is a
completed checklist of actions I have taken to identify persons with
claims.
2.
To the best of my knowledge and belief, no person has or asserts a
claim against the estate, other than persons whose claims have been
presented, accepted, or paid in full.
9-36
2012 Revision
DATED: _______________, 20____.

I
HEREBY DECLARE THAT THE ABOVE STATEMENT IS TRUE TO THE
BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND IT IS MADE

FOR USE AS EVIDENCE IN COURT AND IS SUBJECT TO PENALTY FOR PERJURY.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 9.3-3; ORS 115.003.

NOTE: See UTCR 2.010 and UTCR 9.030 for the form of documents.
9-37
2012 Revision
Form 9-5
Notice of Disallowance of Claim

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

NOTICE OF
DISALLOWANCE OF
CLAIM
To: [creditors name]

Your claim against the above estate has been [disallowed / allowed
in the amount of $__________ and disallowed in the remaining amount].
Your claim and a copy of this notice, with proof of service by mail,
will be filed in the above-entitled proceeding. Your claim[, to the extent
that it is disallowed,] will be barred unless within 30 days after the date
of mailing or delivery of this notice you file in this proceeding a request
for summary determination of your claim, with proof of service as
provided by ORS 115.145, or commence an action against the personal
representative on the claim in a court of competent jurisdiction.
DATED: _______________, 20____.
/s/__________________________
[name]
9-38
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]

9-39
2012 Revision
Form 9-6
Request for Summary Determination of Claim

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

REQUEST FOR
SUMMARY
DETERMINATION
[Creditors name], pursuant to ORS 115.145(1)(a), hereby

requests a hearing by this Court for summary determination of [her / his]
claim, which was presented to the personal representative on ________,
20___, and [partially] disallowed by notice of the personal representative
dated _____________, 20___.
Proof of service of this request on the [personal representative /
lawyer for the personal representative] is attached.
[Creditors name] is tendering the fee of $____ with this request.
DATED: _______________, 20___.
/s/__________________________
[name]
Claimant
CLAIMANT:
[name]
[address]
[telephone no.]
[fax no.]
9-40
2012 Revision
LAWYER FOR CLAIMANT:

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]

NOTE: See UTCR 2.010 and UTCR 9.030 for the form of
documents. See also UTCR 9.070.
9-41
2012 Revision
Form 9-7
Notice by Personal Representative of

Separate Action on Claim Required

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

NOTICE OF SEPARATE
ACTION ON CLAIM
REQUIRED
To: [creditors name]

NOTICE IS HEREBY GIVEN pursuant to ORS 115.155 that if
you desire to prove the claim presented to the undersigned on or about
_______________, 20___, and disallowed by the undersigned on or
about _______________, 20___, you must commence a separate court
action against the personal representative within 60 days after the date
you receive this notice.
DATED: _______________, 20____.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
9-42
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: The personal representative should send a copy of this

notice by certified mail, return receipt requested, to ascertain the date of
delivery. The original of this notice (with proof of service) should be
filed with the court.
9-43
2012 Revision
Form 9-8

Claims
If the assets of the estate are not sufficient to pay all claims and
expenses in full, the personal representative must make payment in the
following order:
_____
(1)
Support of the decedents spouse and children, ORS

115.125(1)(a);
_____
(2)
Expenses of administration, ORS 115.125(1)(b);
_____
(3)
Expenses of a plain and decent funeral and disposition

of remains of the decedent, ORS 115.125(1)(c);
CAVEAT: The personal representative of an estate
having insufficient assets to pay all claims should
closely review the propriety of the claim submitted for
funeral expenses. The personal representative may be
required to disallow payment to the extent the amount
claimed exceeds the plain and decent standard.
_____
(4)
Debts and taxes with preference under federal law, ORS

115.125(1)(d);
_____
(5)
Reasonable and necessary medical expenses and

hospital expenses of the decedents final illness, including compensation of persons attending the decedent,
ORS 115.125(1)(e);
_____
(6)
Taxes with preference under state law that are due and
payable while the personal representative has possession
of the estate, ORS 115.125(1)(f);
_____
(7)
Debts owed to the decedents employees for labor

performed within 90 days preceding the decedents
death, ORS 115.125(1)(g);
_____
(8)
Child support arrearages, ORS 115.125(1)(h);
9-44
2012 Revision
_____
(9)
A claim of the Department of Human Services or the

Oregon Health Authority for the amount of the states
monthly contribution to the federal government to
defray the costs of outpatient prescription drug coverage
provided to a person who is eligible for Medicare Part D
prescription drug coverage and who receives benefits
under the state medical assistance program or Title XIX
of the Social Security Act, ORS 115.125(1)(i);
_____
(10)

Oregon Health Authority for the net amount of assistance paid to or for the decedent, in the following order:
(a)
Public assistance, as defined in ORS 411.010, funded

entirely by moneys from the General Fund, ORS
115.125(1)(j)(A); and
(b)
Public assistance, as defined in ORS 411.010, funded by

a combination of state and federal funds, ORS
115.125(1)(j)(B);
_____
(11)

Oregon Health Authority for the care and maintenance
of the decedent at a state institution, as provided in ORS
179.610179.770, ORS 115.125(1)(k);
_____
(12)
A claim of the Department of Corrections for care and

maintenance of any decedent who was at a state
institution to the extent provided in ORS 179.610
179.770, ORS 115.125(1)(l);
_____
(13)
Any other claim presented both (a) within the statute of

limitations applicable to the claim and (b) within the
time for presenting claims against the estate (i.e., claims
presented within four months of the first publication of
notice to interested persons and claims presented within
30 days after notice is delivered or mailed to the lastknown address of a person who was entitled to notice,
see ORS 115.003(2)), ORS 115.125(1)(m); and
9-45
2012 Revision
_____
(14)
Any other claim presented after the time for presenting

claims against the estate, but presented both (a) before
the expiration of the statute of limitations applicable to
the claim, and (b) before the personal representative
files the final account, ORS 115.005(2)(3),
115.125(1)(m); however, such a claim may be paid only
after payment of all expenses having priority over
claims under ORS 115.125 and payment of all previously presented claims, ORS 115.005(4).
COMMENT: See 9.5-8 to 9.5-9; ORS 115.125. See also 9.5-3

(time for presenting claims), 9.1, 9.3-4, 9.4-6(b).
NOTE: If the assets of the estate are insufficient to pay in full all
expenses or claims of any one class specified in [ORS 115.125(1)], each
expense or claim of that class shall be paid only in proportion to the
amount thereof. ORS 115.125(2).
CAVEAT: This form reflects the 2012 edition of the probate code.
Before using this checklist, the personal representative (or the personal
representatives lawyer) must check for any statutory amendments.
9-46
2012 Revision
Chapter 10
MANAGING ESTATE ASSETS
JONATHAN S. LEVY, A.B., Harvard College (1977); J.D., University of Michigan
Law School (1982); member of the Oregon State Bar since 1988; partner,
Cavanaugh Levy Bilyeu LLP, Portland.
KATIE S. GROBLEWSKI, B.A., University of Washington (2000); J.D., Seattle
University Law School (2003); LL.M., Taxation, University of Washington
(2004); member of the Washington State Bar Association since 2003 and the
Oregon State Bar since 2006; associate, Stokes Lawrence, P.S., Seattle,
Washington.
The authors wish to acknowledge the contributions of Sally C. Landauer and D. Ed
Fletcher to the prior versions of this chapter, much of which has been retained in this
revision.
10.1 NATURE OF PERSONAL REPRESENTATIVES

POSITION ............................................................................... 10-5
10.2 PERSONAL REPRESENTATIVES POWERS AND
DUTIES GENERALLY .......................................................... 10-6
10.2-1
Introduction................................................................. 10-6
10.2-2
When Powers Commence ........................................... 10-6
10.2-3
General Duties ............................................................ 10-6
10.2-4
General Powers ........................................................... 10-7
10.2-5
The Personal Representatives Authority ................... 10-8
10.2-5(a) Under the Probate Code .................................. 10-8

10.2-5(b) Under the Will ................................................. 10-8
10.2-5(c) Acts with Copersonal Representatives ........... 10-8
10.3 POSSESSION AND CONTROL OF PROPERTY OF
THE ESTATE ......................................................................... 10-9
10.3-1
Introduction................................................................. 10-9
10.3-2
Gathering Information ................................................ 10-9
10.3-3
Should Possession Be Taken? .................................. 10-11
10.3-4
Insuring Estate Assets ............................................... 10-13

10-1
2012 Revision
Chapter 10 / Managing Estate Assets
10.3-5
Repair of Estate Assets.............................................. 10-13
10.3-6
Funds to Be Used for Expenses ................................ 10-14
10.3-7
Payment of Taxes ...................................................... 10-15
10.4 INVESTING ESTATE FUNDS ............................................ 10-16

10.4-1
Preliminary Considerations ....................................... 10-16
10.4-1(a) Scope of Authority to Invest.......................... 10-16

10.4-1(b) Sources of Authority to Invest....................... 10-17
10.4-1(b)(1) Statutory Authority to Invest ........... 10-17
10.4-1(b)(2) Court Authorization to Invest.......... 10-18
10.4-1(b)(3) Testamentary Authority to
Invest ............................................... 10-18
10.4-1(c) Personal Representatives Liability ............... 10-18
10.4-1(c)(1) Failure to Invest ............................... 10-18
10.4-1(c)(2) Investing Without a Court
Order ................................................ 10-19
10.4-1(c)(3) Standard of Care in
Investments ...................................... 10-20
10.4-2
Practical Considerations in Investing........................ 10-20
10.4-2(a) Liquidity Problems ........................................ 10-20

10.4-2(a)(1) Necessity for Liquidation ................ 10-20
10.4-2(a)(2) Time of Liquidation ........................ 10-20
10.4-2(a)(3) Consent of Interested Parties ........... 10-22
10.4-2(b) Common Investment Problems ..................... 10-22
10.4-2(b)(1) Stock Rights .................................... 10-22
10.4-2(b)(2) Fractional Shares ............................. 10-23
10.4-2(b)(3) Shares in Mutual Funds ................... 10-23
10.4-2(c) Deposit Insurance .......................................... 10-23
10.5 BORROWING MONEY ....................................................... 10-24
10.5-1
Preliminary Considerations ....................................... 10-24
10.5-1(a) Scope ............................................................. 10-24

10.5-1(b) Statutory Power ............................................. 10-24
10-2
2012 Revision
Managing Estate Assets / Chapter 10
10.5-2
Fundamental Considerations .................................... 10-24
10.5-2(a) The Decision to Borrow ................................ 10-24

10.5-2(a)(1) Risk of Devaluation ........................ 10-24
10.5-2(a)(2) Business Judgment Necessary ........ 10-25
10.5-2(b) Basic Problems in Borrowing ....................... 10-25
10.5-2(c) Special Problems in Borrowing .................... 10-25
10.5-3
Loan Purposes and Procedure................................... 10-26
10.6 TRANSFER OF SECURITIES ............................................. 10-27

10.6-1
Introduction............................................................... 10-27
10.6-2
Laws Affecting Transfers ......................................... 10-27
10.6-3
Mechanics of Transfer .............................................. 10-30
10.6-3(a) Transfer to the Personal Representative ....... 10-30

10.6-3(b) Transfer to a Buyer ....................................... 10-31
10.6-3(c) Transfer to a Co-Owner ................................ 10-31
10.6-3(d) Transfer to a Distributee ............................... 10-32
10.7 TRANSFERS OF PROPERTY TO COMPLETE
CONTRACTS ....................................................................... 10-33
10.7-1
Definitions ................................................................ 10-33
10.7-2
General Principles..................................................... 10-34
10.7-3
Limitations ................................................................ 10-34
10.7-4
Method of Transferring Property.............................. 10-34
10.8 SALES, LEASES, AND MANAGEMENT OF REAL

PROPERTY ........................................................................... 10-36
10.8-1
Sale of Property ........................................................ 10-36
10.8-1(a) Notice, Hearing, and Court Order ................. 10-36

10.8-1(b) Serving Notice of Hearing ............................ 10-37
10.8-1(c) Personal Representative Fails or
Declines to Sell Property .............................. 10-37
10.8-1(d) Sale Subject to Liens ..................................... 10-37
10.8-1(e) Voidable Sales............................................... 10-38
10.8-2
Leases of Property .................................................... 10-38

10-3
2012 Revision
10.8-3
Undeveloped Real Property ...................................... 10-39
10.8-4
Environmental Contamination .................................. 10-40
10.8-4(a) Federal Superfund Statute (CERCLA) .......... 10-40

10.8-4(b) Federal Claims Priority Statute ..................... 10-41
10.8-4(c) Oregon Cleanup Statute ................................. 10-42
10.8-4(d) How to Protect the Personal
Representative ............................................... 10-42
10.9 COLLECTING ESTATE ASSETS ....................................... 10-43
10.9-1
Introduction ............................................................... 10-43
10.9-2
Compromise or Adjustment of
Indebtedness to Estate ............................................... 10-44
10.9-3
Litigation ................................................................... 10-45
10.10 CONTINUANCE OR LIQUIDATION OF

DECEDENTS BUSINESS OR VENTURE......................... 10-48
10.10-1 Scope of Authority and Limitations in Handling
Decedents Business.................................................. 10-48
10.10-2 Ongoing Management of a Business ........................ 10-49
10.10-3 Management or Transfer Issues ................................ 10-50
10.10-3(a) Entity Agreements ......................................... 10-50
10.10-3(b) Minority, Noncontrolling Interests ................ 10-50
10.10-3(c) Buy-Sell Agreements..................................... 10-51
10.10-4 Specific Business Interests ........................................ 10-51
10.10-4(a) Private Corporations ...................................... 10-51
10.10-4(b) Partnerships ................................................... 10-52
10.10-4(c) Limited Liability Companies ......................... 10-53
10.10-4(d) Sole Proprietorships....................................... 10-53
10.10-4(d)(1)Nonprofessional Sole
Proprietorships................................. 10-53
10.10-4(d)(2)Professional Sole
Proprietorships................................. 10-54
10.11 ENCUMBERED ASSETS ..................................................... 10-54
10.11-1 Introduction ............................................................... 10-54
10-4
2012 Revision
10.11-2 Voluntary and Involuntary Encumbrances ............... 10-55

10.11-3 Responsibilities of Personal Representative ............. 10-55
10.11-4 Will Provisions ......................................................... 10-57
10.11-5 Heirs and Encumbrances .......................................... 10-57
10.12 UNUSUAL ASSETS............................................................. 10-57
10.12-1 Natural Resources ..................................................... 10-57
10.12-2 Contraband and Firearms.......................................... 10-58
10.12-3 United States Savings Bonds .................................... 10-59
10.12-4 Personal Property ...................................................... 10-59
10.12-5 Appraisal of Unusual Assets..................................... 10-60
10.12-6 Cooperative Apartments or Condominiums ............. 10-60
Form 10-1 Relinquishment of Possession and Control of
Decedents Property ....................................................... 10-62
Form 10-2 Application of Personal Representative for
Authority, Approval, or Instructions ............................. 10-64
Form 10-3 Petition of Personal Representative for
Authority to Sell Property ............................................. 10-66
Form 10-4 Order Authorizing Sale of Property ............................... 10-69
Form 10-5 Petition for Order Requiring Testimony ........................ 10-71
Form 10-6 Order Requiring Testimony ........................................... 10-74
10.1 NATURE OF PERSONAL REPRESENTATIVES

POSITION
A personal representative is a fiduciary to both the estate and the
interested persons of the estate. ORS 114.265, 114.395. Although a personal representative is not a trustee in the strict sense, his or her liability
to interested persons for damage or loss resulting from a breach of duty
is the same as that of a trustee of an express trust. ORS 114.395,
130.800130.810. Personal liability to third parties is that of an agent
for a disclosed principal. ORS 114.405(1). A personal representative is
not an agent of the decedent. In re Gorday Garment Co., 2 F Supp 162,
10-5
2012 Revision
164 (D Or 1932), affd sub nom. Crocker v. Kay, 62 F2d 391 (9th Cir
1932). See chapter 7, which discusses in greater detail the liability of a
10.2 PERSONAL REPRESENTATIVES POWERS AND
DUTIES GENERALLY
10.2-1 Introduction
The powers, authority, and duties of the personal representative
emanate from the Oregon probate code, the will, and orders of the court.
The will and orders of the court may restrict or expand the personal
representatives authority and powers vested by the code.
10.2-2 When Powers Commence
The powers, authority, and duties of the personal representative
commence on the issuance of letters. See 5.2-7. All relate back in time,
however, to the moment of death, to give prior acts of the personal
representative the same effect as if they occurred after the issuance of
the letters. ORS 114.255.
A person designated in a will as a
monly participates in the opening of the
arranges for the decedents burial, and
benefit of the decedent or the decedents
the letters. See chapter 3.
personal representative comdecedents safe-deposit box,

performs other acts for the
estate before the issuance of
If the transaction undertaken is one that is an authorized transaction after the issuance of the letters, any third party involved will be
protected by the subsequent issuance of the letters. Similarly, a personal
representative may ratify and accept acts performed on behalf of the
estate by others, if those acts would have been proper for the personal
representative to perform. ORS 114.255.
10.2-3 General Duties
The general duties of the personal representative are to preserve,
settle and distribute the estate in accordance with the will (if any) and
the probate code, as expeditiously and with as little sacrifice of value as
is reasonable under the circumstances. ORS 114.265. The personal
10-6
2012 Revision
representative must act reasonably for the benefit of interested persons.

ORS 114.305.
Upon the issuance of the letters, the personal representative is
obligated to embark on the duties without adjudication or order of the
court, unless he or she chooses to apply to the court for authority,
approval, or instructions, or unless he or she is precluded by the terms of
the will or by a court order obtained by the intervention of an interested
person. If requested by the personal representative, the court will authorize, approve, or instruct with or without a hearing as the court decides.
ORS 114.275.
10.2-4 General Powers
In general, the personal representative has the power to sell,
mortgage, lease or otherwise deal with property of the estate without
notice, hearing or court order. ORS 114.325(1). However, the personal
representative may not sell property, except after notice, hearing, and
order of the court if: (1) the sale contravenes the will, (2) the property is
specifically devised and the will does not permit its sale, or (3) a bond
increase is needed as provided in ORS 114.325(2)(c). ORS 114.325(2).
A person who deals with or assists a personal representative
without actual knowledge that the personal representative is improperly
exercising his or her power is protected under the probate code as if the
personal representative properly exercised the power. ORS 114.385.
Such a person has no duty (1) to inquire whether the personal representative is properly exercising his or her power, or (2) to inquire about
the provisions of any will or court order that may affect the propriety of
the acts of the personal representative. This protection extends to
persons dealing with or assisting a personal representative appointed
under ORS 113.085 without actual knowledge that the personal representative was not qualified as provided in ORS 113.095, or that the
appointment of the personal representative involved procedural irregularity.
EXAMPLE: Although the personal representative is generally
empowered to sell property of the estate, if the personal representative does so in violation of a prohibition in the will or an
10-7
2012 Revision
order of the court, ORS 114.385 protects the person who

innocently deals with the personal representative.
10.2-5 The Personal Representatives Authority
10.2-5(a) Under the Probate Code
Unless restricted by the will or a court order, a personal
representative acting reasonably for the benefit of interested persons is
authorized by the probate code to do all things required for the prudent
collection, management, and distribution of the assets of the estate. ORS
114.305. Authorized transactions are enumerated in ORS 114.305; they
are similar in many respects to the powers of a trustee found in the
Uniform Trust Code, ORS 130.650130.725.
10.2-5(b)
Under the Will
The testator is, of course, free to enlarge, limit, or restrict the

authority of the personal representative. See ORS 114.305.
PRACTICE TIP: In view of the broad powers and authority
that the probate code grants to a personal representative, a lawyer
should explain carefully to a client who is about to make or alter a
will the position, powers, and authority of the personal representative, unless provision is made otherwise in the will. This explanation could be accomplished by reviewing with the client certain
provisions of the code, particularly ORS 114.225, 114.265,
114.275, 114.305, 114.325, 114.385, 114.395, and 114.405.
10.2-5(c) Acts with Copersonal Representatives
When two or more persons are appointed copersonal representatives, the concurrence of all the representatives is required for all of the
acts pertaining to the administration and distribution of the estate,
except:
(1) Any one of them may receive and receipt for property due
the estate;
(2) When the concurrence of all cannot readily be obtained in
the time reasonably available for emergency action;
(3)
10-8
2012 Revision
When any others have delegated their power to act;
(4)
When the will provides otherwise; or
(5)
When the court otherwise directs.
ORS 114.415(1).
A person who deals with a copersonal representative, unaware
that another copersonal representative has been appointed, is fully protected under the probate code. ORS 114.415(2).
10.3
POSSESSION AND CONTROL OF PROPERTY OF THE

ESTATE
10.3-1 Introduction
On the decedents death, the title to the decedents property vests
in the decedents devisees or, in the absence of a will, in the decedents
heirs, subject to certain rights and interests. ORS 114.215(1). The
personal representative, however, has both the right and the obligation
to take possession and control of all property in the decedents estate.
See, e.g., ORS 114.225, 114.265.
Early in the process, the lawyer should determine how closely he
or she needs to work with the personal representative to gather, value,
and manage estate assets. Many persons named as personal representatives have never been involved in a probate, and most are mourning
the loss of a loved one. While significant lawyer involvement may
become expensive, some personal representatives are simply inattentive
to detail, lack practical sense, or have not handled significant financial
matters before. It is therefore imperative that the lawyer assist the
personal representative so that he or she does not become his or her own
worst enemy. The lawyer should ensure that the personal representative
understands the fiduciary duties that he or she is assuming on behalf of
heirs, devisees, and creditors. See, e.g., 7.1-3.
10.3-2 Gathering Information
The first step that the personal representative should take to
determine the scope and breadth of the decedents assets is to locate the
available agents, advisors, and involved family members (including,
obviously, a surviving spouse) to discuss the decedents affairs. The
10-9
2012 Revision
personal representative should also go through the decedents papers

and residence, and should review the decedents mail for important
clues about the decedents income, assets, and debts. If the estate will
need to file an estate tax return, the personal representative will need
detailed information about nonprobate assets payable to named beneficiaries, as well as probate assets. See 3.4-1 to 3.4-2. The decedents
records may be incomplete, but income tax returns, bank statements,
dividend statements, and custodial receipts often reveal bank accounts,
investments, and the location of a safe-deposit box. Warehouse receipts
are signs that the decedent owned furs, jewelry, or paintings stored
elsewhere.
Once an initial snapshot of the decedents assets has been taken,
the personal representative should monitor all correspondence relating to
the decedents assets. This would include arranging for the decedents
mail to be forwarded to the personal representative and canceling all
subscriptions, unless a surviving spouse or other relative remains in the
house who can be trusted to forward relevant mail to the personal
representative and to collect newspapers and magazines. If the decedent
owned a business, the personal representative should gather relevant
documents from the place of business and from the secretary of state of
the businesss state of formation (if any). A prudent personal representative should determine the designated registered agent of the business, and
either change it to the personal representative (if the decedent had been
the prior agent), or contact the current agent to notify the agent of the
decedents death. Handling business assets is covered in more detail in
10.10-1 to 10.10-4(d)(2).
Finally, early in the process, the personal representative or the
lawyer should also inform family members of what the probate process
will entail and the length of time it will likely take to complete. The
personal representative or the personal representatives lawyer should
also inquire about any special concerns about the estate and desires of the
family members to receive particular assets. The more the personal
representative knows more about the familys desires regarding estate
assets, the better he or she will be able to judge how and whether to take
possession of the assets and then manage them as part of the estate.
10-10
2012 Revision
If the decedents family and advisors are not forthcoming or are

of little assistance, the probate code sets forth discovery procedures to
enable the personal representative to learn of the existence and location
of estate assets. ORS 114.425. Pursuant to ORS 114.425, the court may
order any person to appear and give testimony by deposition, if it
appears probable that the person:
(1) Has concealed, secreted, or disposed of (a) any property of
the decedents estate, or (b) any writing, instrument, or document pertaining to the estate;
(2) Has been entrusted with property of the decedents estate
and fails to account for it to the personal representative;
(3) Has knowledge or information that is necessary to the
administration of the estate; or
(4) As an officer or agent of a corporation, has refused to allow
examination of the books and records of the corporation that the decedent had the right to examine.
A person who fails to appear or to answer questions asked as
authorized by court order is subject to contempt proceedings. ORS
114.425(2). See Forms 10-5 to 10-6. See also chapter 15.
10.3-3 Should Possession Be Taken?
The less hazardous course for the personal representative may be
to refrain from taking possession of an asset whenever possible, because
he or she becomes accountable for the estate assets in his or her
possession. ORS 114.225, 116.063. See chapters 7, 11. Presumably, the
personal representative is not accountable for assets left in the possession of an heir or a devisee. See ORS 116.063(1); but see ORS
116.063(3)(a), regarding negligent failure to collect assets. Nonetheless,
the fiduciarys responsibility to the estate and to the beneficiaries
dictates that when any question exists regarding the safety of the
property or the need for the assets to settle the claims of creditors and to
administer the estate, the personal representative should ordinarily
assume possession of and control over the property.
10-11
2012 Revision
In contrast, a personal representative may wish to permit an heir

or devisee to retain or take possession of a motor vehicle, motor boat, or
similar item, when (1) it appears that the estate will not need to sell the
vehicle or boat to satisfy claims or expenses; (2) the heir or devisee will
be eligible to receive the vehicle or boat at the close of the estate;
(3) the personal representative transfers title to the vehicle or boat to the
heir or devisee; and (4) the heir or devisee agrees, in writing, to insure
the vehicle or boat and to return it to the estate if the personal representative later informs the heir or devisee that it is needed to pay claims
or expenses. Form 10-1 is an example of a custody receipt.
Alternatives to delivery by custody receipt are (1) selling the
property to the heir or devisee, in exchange for a note for the value (that
can later be distributed to the heir or devisee after an order for distribution is taken); or (2) keeping possession during probate, but disabling
the vehicle or other property.
COMMENT: The personal representative should be wary of
distributing a vehicle or similar item to an heir or devisee by
custody receipt, if the personal representative knows, or should
know, that the heir or devisee has a bad driving record. Distribution to such a person could arguably give rise to a claim for
negligent entrustment. Instead, if the heir or devisee will ultimately
end up with the vehicle, the personal representative should wait
until distribution is protected by a court judgment of distribution.
Even if the heir or devisee has a good driving record, the personal
representative may have some potential liability if the heir or
devisee is involved in a collision. Before distributing the vehicle or
a similar item, the personal representative should update the
insurance as described in 10.3-4.
Any pet of a decedent with a value of less than $2,500 need not
be listed on the inventory of the estate and, therefore, taking possession
of any such pet is unnecessary. ORS 114.215(3). A relative or friend of
the decedent or an animal shelter may take custody of the pet immediately on the decedents death. The person who takes custody of the pet
is entitled to payment from the estate for the cost of caring for the pet.
On request, the person must deliver the pet to the personal representa10-12
2012 Revision
tive or to any heir or devisee entitled to its possession. ORS 114.215(3).

10.3-4 Insuring Estate Assets
The personal representative is authorized to insure assets of the
estate against damage or loss, ORS 114.305(13), and his or her failure
to obtain such insurance may constitute negligence, ORS 114.405(3),
116.063(3)(g). Until distribution of an asset is made with court
approval, the personal representative should insure all estate property,
whether or not in the possession of the personal representative. The
personal representative should ensure that the estate is named as an
additional insured, even if an asset is held in a revocable trust created by
the decedent.
When personal property of the estate is a motor vehicle, the
personal representative should review the vehicle insurance coverage
and keep it in force, or the title should be transferred to the beneficiary
of the vehicle by custody receipt, as described in 10.3-3. A motor
vehicle is potentially a large liability risk for the estate. Under most
vehicle insurance policies, the personal representative becomes the
named insured until the next renewal date. At the renewal date (if title
has not been transferred to the devisee or heir), the personal representative and any person driving the car should be designated as the named
insured and additional driver, respectively.
Most estates will also have real property that should be insured,
and the personal representative should be aware of the difficulty and
additional expense of insuring a decedents unoccupied residence. Many
homeowners insurance policies do not cover an unoccupied dwelling.
The personal representative should check with the decedents insurance
agent promptly if the house is to be left vacant. The personal representative may also consider allowing a family member to remain in the house
as a caretaker, to preserve both the assets in the dwelling and the
insurance on the house and its contents.
10.3-5 Repair of Estate Assets
The personal representative is charged with the duty to preserve
the estate. ORS 114.265. This charge probably imposes a duty to make
10-13
2012 Revision
such repairs as are required to preserve the estate assets. Conceivably,

preservation of estate assets could involve repairs or improvements
greater than the ordinary. However, the probate code provides for the
allocation of income to make ordinary repairs. ORS 116.007(2)(a). The
implication is that only ordinary repairs, not improvements, are permitted. See In re Stouts Estate, 151 Or 411, 423, 50 P2d 768 (1935).
PRACTICE TIP: When it is unclear whether the personal
representative should invest estate money for substantial repairs or
improvements, the personal representative should seek court
instructions or the informed consent of all of the interested parties.
10.3-6 Funds to Be Used for Expenses
The decedents will may provide direction to the personal
representative about what assets of the estate bear the estates expenses
(e.g., the residue). However, if the will is silent on this issue, then the
statutes direct the personal representative to pay all expenses of
administration from the principal of the estate. ORS 116.007. Without
direction from the will, the personal representative must determine how
each estate asset that is included in the definition of principal of the
estate should bear expenses, because different classes of gifts are treated
differently. ORS 116.007(2)(a) specifically provides that expenses
related to the operation of specifically devised property should be
deducted from the income received from such property. ORS
116.007(2)(b) provides that all other devises (except nonmarital, outright pecuniary devises, such as a credit shelter bequest) should
proportionately bear all of the other expenses of the estate management.
This default statutory allocation is buttressed by the Uniform Principal
and Income Act, ORS chapter 129. Some administration expenses that
are related to specifically bequeathed property may reasonably be a
general administration expense, instead of an operational expense
allocated to such propertys income (e.g., boundary-line issues related
to real property). The personal representative should review the will and
the default statutes, as well as the type of expense, to understand how
best to keep track of expenses.
10-14
2012 Revision
PRACTICE TIP: The personal representative must separately

keep track of all of the income and expenses of separately
bequeathed property. For rental property, the personal representative should consider maintaining a separate bank account for the
property, or creating a separate single-member LLC (owned by the
estate) to hold the rental property during the period of administration. The personal representative should also consider distributing
specifically devised property to the devisees by means of a petition
for partial distribution to eliminate the problem of property that
cannot carry its own expenses. See ORS 116.013.
10.3-7 Payment of Taxes
The personal representative is chargeable in the accounts of the
personal representative and may be liable for all of the property
coming into his or her possession. ORS 116.063(1). The personal representative has a duty to pay taxes that accrue on the property and its
income for the period that the property is in the representatives
possession. In re Banfields Estate, 137 Or 256, 281, 3 P2d 116 (1931).
In addition, the personal representative may be liable for any loss to the
estate arising from failure to pay taxes as required by law. ORS
116.063(3)(c).
ORS 115.125, which sets forth the order of payment of expenses
and claims, places in fourth priority taxes with preference under federal
law, and places in sixth priority those taxes with preference under
Oregon law that are due and payable while possession of the decedents
estate is retained by the personal representative. The personal representative should begin preparing to raise cash to pay all of the necessary
taxes as soon as possible during the administration of the estate. If
necessary, the personal representative may need to sell assets, borrow
funds, or request an extension of time to pay certain taxes (if available).
ORS 116.113(2) provides that the personal representative is not
entitled to approval of the final account until all Oregon income and
personal property taxes have been paid and appropriate receipts and
clearances therefor have been filed, or until payment of those taxes has
been secured by bond, deposit, or otherwise. See chapter 11. However,
10-15
2012 Revision
the courts do not actually require the filing of receipts and clearances
for the taxes. See ORS 116.083(3)(a), which requires only that the final
account include a statement that the taxes have been paid, or if not so
paid, that payment of those taxes has been secured by bond, deposit or
otherwise, and that all required tax returns have been filed.
A personal representative should not distribute all of the property
of the estate without evaluating whether all of the decedents taxes have
been paid, including taxes related to real property and business interests.
If the estate is taxable for Oregon inheritance tax purposes, the personal
representative should complete a Request for Discharge from Personal
Liability for Oregon Inheritance Tax. See <www.oregon.gov/dor/BUS/
docs/103-005.pdf?ga=t>. In most cases, the personal representative
should wait to completely distribute the estate until after receiving a
federal estate tax closing letter (for a federally taxable estate) or a
Certificate of Discharge from the Oregon Department of Revenue,
although partial distributions may be made of all of the assets except
those needed to secure potential tax liabilities. It may also be necessary
to evaluate the decedents prior years income tax returns or whether
proper state income taxes were filed based on residency. In such cases,
the personal representative should consider filing forms with the IRS and
the Oregon Department of Revenue requesting prompt assessment and
discharge from personal liability from income taxes, and holding back
estate assets for distribution until the discharge has been given.
10.4
INVESTING ESTATE FUNDS
10.4-1 Preliminary Considerations

10.4-1(a) Scope of Authority to Invest
The personal representatives authority to invest estate funds and,
equally important, the limitations on that authority, are set forth in ORS
114.305(6). Estate funds cannot be managed appropriately, however,
without an understanding of the cash needs of the estate. See 10.42(a)(1).
10-16
2012 Revision
10.4-1(b) Sources of Authority to Invest

A personal representative has the duties of a trustee in managing
the estates investment securities, but with a short-term focus. The
sources of a personal representatives investment authority are Oregon
law, particular authorizations from a court, and the language in the will.
See 10.4-1(b)(1) to 10.4-1(b)(3).
10.4-1(b)(1)
Statutory Authority to Invest
In Oregon, two basic sources of law pertain to estate investing:

ORS 114.305(6) and the Uniform Prudent Investor Act, ORS 130.750
130.775.
ORS 114.305(6) authorizes a personal representative to:
Deposit funds not needed to meet currently payable debts and
expenses, and not immediately distributable, in bank or savings and
loan association accounts, or invest the funds in bank or savings and
loan association certificates of deposit, or federally regulated moneymarket funds and short-term investment funds suitable for investment
by trustees under ORS 130.750 to 130.775, or short-term United States
Government obligations.
ORS 130.750130.775 is Oregons version of the Uniform Prudent

Investor Act. See generally Jonathan Levy, Uniform Prudent Investor Act
in Oregon, OSB EST PLAN & ADMIN SEC NEWSLTR, Jan 1999, at 1;
ADMINISTERING TRUSTS IN OREGON ch 9 (Oregon CLE 2007).
In addition, a personal representative may (1) vote stocks or other
securities; (2) pay calls, assessments, and other sums chargeable or
accruing from securities; (3) sell or exercise stock subscription or conversion rights; and (4) hold securities in the name of a nomineeall
without specific court order. ORS 114.305(8)(10), (12). However, the
personal representative has no authority to buy securities or similar
obligations unless a will or court order so authorizes.
Other statutes outside the probate code permit executors or
administrators to invest in certain specified investments. These include
investments in real property mortgages insured by the Federal Housing
Administration (ORS 86.620).
10-17
2012 Revision
COMMENT: Although the considerations set forth in ORS

130.775 appear to broaden the scope of a personal representatives
investment powers, as opposed to the words of limitation in ORS
114.305(6), a personal representative should avoid investments
that tend to fluctuate in value rapidly or widely.
10.4-1(b)(2) Court Authorization to Invest
A personal representative may apply to the court for authority,
approval, or instructions on any matter concerning the administration of
the estate. The court may instruct or rule, with or without a hearing, as
may be appropriate. ORS 114.275.
PRACTICE TIP: The prudent personal representative will
obtain court authorization for investing estate funds in any form of
investment other than one specifically authorized by ORS
114.305(6). A request for investment authority should not ask the
court what to invest in, because the court has neither the time nor
the special qualifications necessary to pass on the wisdom of
specific investments. Likewise, a request for an order directing
investment is inappropriate; the petition should merely ask the
court to authorize such an investment.
10.4-1(b)(3)
Testamentary Authority to Invest
The personal representative may perform all lawful acts required

or permitted by the decedents will. ORS 114.305(26). Thus, the will
may grant to the personal representative investment authority that is
broader than that authorized by statute.
10.4-1(c)
Personal Representatives Liability
10.4-1(c)(1)
Failure to Invest
When possible, a personal representative should invest surplus

estate funds to earn interest, both as a general rule and, in particular,
when the will includes general pecuniary devises.
When a power or a duty to invest exists, but the personal representative fails to invest surplus funds, the personal representative may
be surcharged with the interest that he or she might have obtained on
those funds. 34 CJS Executors and Administrators 229 (1998); see
10-18
2012 Revision
Fitchard v. Hirschbergs Estate, 128 Or 317, 329, 274 P 505 (1929);

Estate of Bruner, 691 A2d 530 (Pa Super Ct 1997); In re Estate of
Perry, 597 A2d 796 (Vt 1991). But see Matter of Steinbergs Estate, 34
Or App 293, 578 P2d 487 (1978) (a personal representative who kept
more funds than ultimately were needed in noninterest-bearing account,
but with most of the liquid assets in a savings account, was not
surcharged for loss of interest).
Under ORS 116.143, general pecuniary devises, which are not
entitled to a share of income, bear interest at a discount rate based on
the 91-day U.S. Treasury bill auction, beginning one year after appointment of the personal representative until payment, unless a contrary
intent is evidenced in the will or unless otherwise ordered by the court.
Discount rate means the auction average rate on 91-day United States
Treasury bills, as established by the most recent auction of these
Treasury bills and as reported by the United States Department of the
Treasury, Bureau of the Public Debt. ORS 116.143(1). The discount
rate is to be determined, with reference to the most recent auction date,
before May 15 and before November 15 of each year. ORS 116.143(1).
If payment of general pecuniary devises will be delayed, the personal
representative should appropriately invest idle funds to meet the
payment of such interest.
10.4-1(c)(2)
Investing Without a Court Order
If a personal representative makes an investment that is

complained about later, the fact that he or she did not obtain a court
order authorizing the investment is immaterial, if the investment is in
accordance with the law. 31 AM JUR2D Executors and Administrators
369 (2002). See M.L.C. Annot, Liability of Trustee, Guardian,
Executor, or Administrator for Loss of Funds as Affected by Failure to
Obtain Order of Court Authorizing Investment, in Absence of
Mandatory Statute, 116 ALR 437 (1938). This result should follow
from the Oregon probate code, which authorizes personal
representatives to act, subject to listed exceptions, without prior court
authorization. See ORS 114.275, 114.305(6).
10-19
2012 Revision
10.4-1(c)(3)
Standard of Care in Investments
In making investments, a personal representative acts as a trustee.

31 AM JUR2D Executors and Administrators 497 (2002); 34 CJS
Executors and Administrators 224 (1998); see ORS 114.395. As such,
a personal representative does not act at his or her peril in making
investments, but must act only as a prudent investor. Compliance with
the prudent investor rule is not determined by hindsight. Rather, it is
determined in light of the facts and circumstances existing at the time of
the trustees decision or action. ORS 130.770. In other words, trustees are
not insurers. Uniform Prudent Investor Act 8 comment (available online
at <www.uniformlaws.org/shared/docs/prudent%20investor/upia_final_
94.pdf>).
10.4-2 Practical Considerations in Investing
10.4-2(a) Liquidity Problems
10.4-2(a)(1)
Necessity for Liquidation
The personal representative faces problems of paying timely and

continued tax payments, family-support allowances, creditors claims,
funeral expenses, administration expenses, and cash legacies. See
chapter 7. In many cases, the personal representative is also faced with
the problem of making interim investments of excess funds, such as
when liquidation takes place before the funds are needed. A cash-flow
analysis that forecasts on a monthly basis the timing of available cash
income and receipts and of estate expenses is essential to allow the
personal representative to determine, well in advance of need, what
action is necessary to create the cash needed.
10.4-2(a)(2)
Time of Liquidation
Once sufficient cash is on hand, the question becomes whether the

personal representative should liquidate the estates remaining stock
portfolio. One view is that failing to liquidate stocks amounts to
speculation by the personal representative; the other view is that the
personal representative is merely retaining assets approved by the
decedent. See ABA Committee on Investments by Fiduciaries, Invest-
10-20
2012 Revision
ments by Personal Representatives, 8 REAL PROP, PROB & TRUST J 465

(1973).
ORS 114.305 authorizes, by implication, retention of securities as
assets that family members, for sentimental reasons, may urge the
personal representative not to sell. However, if the holdings decline in
value, other relatives, with the wisdom of hindsight, may seek to hold the
personal representative liable for not selling sooner. If a family business
is involved in the estate administration, the personal representative
should work with the family, to the extent reasonable, to understand
continued investment in, or maintaining status-quo holdings in, the
business.
Clearly, when the estate portfolio is not diversified, the personal
representative should move quickly to sell concentrated holdings. See
ORS 130.760, 130.765. Even with a diversified portfolio, the personal
representative should strongly consider liquidating stocks, unless all of
the heirs and devisees have given informed consent, or special language
in the will authorizes retention. This cautious approach is based on the
short-term focus of estate investing, the volatility of the stock market,
and the stepped up basis for appreciated stock that should eliminate
substantial capital-gain taxes on the sale.
Statistics from three market downturns illustrate the stock markets
short-term volatility. The Dow Jones Industrial average dropped 89%
from September 1929 through July 1932. JEREMY SIEGEL, STOCKS FOR
THE LONG RUN 28 (1994). During the bear market of 1973 to 1974, the
Nifty Fifty, a group of growth stocks favored by institutional investors,
lost 80% in value from their peak. BRUCE TEMKIN, THE TERRIBLE TRUTH
ABOUT INVESTING 115 (1999). The S&P 500 index fell 56.78% between
October 9, 2007 and March 9, 2009. 2010 IBBOTSON SBBI CLASSIC
YEARBOOK, at 13.
Similarly, the personal representative should consider selling
intermediate and long-term bonds, which may lose substantial value if
interest rates rise. See Frank Fabozzi, Mark Pitts & Ravi Dattatreya,
Price Volatility Characteristics of Fixed Income Securities, in THE
HANDBOOK OF FIXED INCOME SECURITIES ch 5 (5th ed 1997). Other risks
10-21
2012 Revision
of bonds include the risk of default or downgrade of their ratings. See

Ravi Dattatreya & Frank Fabozzi, Risks Associated with Investing in
Fixed Income Securities, in THE HANDBOOK OF FIXED INCOME SECURITIES
ch 3 (5th ed 1997).
When the cash needs are known, the question of the timing for
liquidation must also take into consideration the effect of liquidation on
the use of the alternate valuation date for estate tax purposes. An asset
sold during the six-month period after the date of death must be valued
at its sale price if alternate valuation is selected; declines in value,
although saving estate tax, also reduce the total value of the estate.
Treas Reg 20.2032-1(a)(1). See 12.1-2(a), 12.2-5(e).
The lawyer for the personal representative should avoid giving
investment advice, which is not covered by the Oregon State Bars
Professional Liability Fund. See OSB Professional Liability Fund 2012
Claims Made Plan V, 9. The lawyer should encourage a personal representative who lacks investment expertise to hire an outside investment
manager. See RESTATEMENT (THIRD) OF TRUSTS 80 comment a & 90
comment j (2007) (a trustee who lacks necessary investment expertise
may be liable for his or her failure to delegate).
10.4-2(a)(3)
Consent of Interested Parties
Either theory described in 10.4-2(a)(2) is open to criticism by

estate beneficiaries when using hindsight. Therefore, if practicable, the
personal representative should consult with, and obtain the consent of,
beneficiaries regarding any major plan of liquidation and temporary
investment. Creditors may also have a definite interest in the liquidation
of estate assets, particularly when solvency of the estate may be an
issue.
10.4-2(b) Common Investment Problems
10.4-2(b)(1) Stock Rights
Stock rights represent the privilege of acquiring, at an advantageous price, additional shares of corporate stock, usually requiring the
payment of a stipulated sum in cash. Stock rights are often issued on
securities held by an estate. These rights have a market value. The time
10-22
2012 Revision
within which they can be exercised or sold is usually limited to a few

days or weeks. Under ORS 114.305(10), the personal representative
may sell or exercise stock subscription or conversion rights without
court approval.
10.4-2(b)(2)
Fractional Shares
Akin to the problems connected with exercising stock rights are

those involved in rounding out into full shares fractional shares of
stock held by or issued to the estate. If the fractional shares result from
the exercise of stock rights, the acquisition of additional shares would be
permissible under ORS 114.305(10). In this respect, the estate is retaining its interest in the issuing company.
10.4-2(b)(3)
Shares in Mutual Funds
Administrators of mutual investment funds must distribute substantially all of the capital gains to their shareholders, to avoid having
income taxes levied against them. Shareholders usually have the option
to receive either cash or additional shares of stock. Frequently,
additional shares of stock are automatically received unless the holder
makes a specific request for payment in cash. ORS 114.305(10) appears
broad enough to cover this situation.
Corporate fiduciaries ordinarily elect to receive the cash, on the
theory that to receive the shares is tantamount to an unauthorized investment of the estate funds, which may give rise to personal liability unless
court approval is obtained. The usual procedure is to notify the company
on the form provided for that purpose of the election to receive cash.
Receipt of the cash is detailed in the next estate accounting to the court.
10.4-2(c) Deposit Insurance
The personal representative should also keep in mind that deposit
insurance coverage of an estates deposits in any single bank, savings and
loan association, or credit union is limited. The recent mortgage crisis has
led to an increase in bank failures, demonstrating the need for insurance
of deposits from the Federal Deposit Insurance Corporation (FDIC) or
the National Credit Union Insurance Fund. The insurance limit is now
$250,000 for most bank and credit union accounts. See <www.fdic.gov/
10-23
2012 Revision
help/faq.html> (FDIC insurance limits); <www.ncua.gov/DataApps/

Pages/SI-NCUA.aspx> (insurance of credit union shares). Many banks,
however, are members of a network called CDARS where funds in
excess of $250,000 may be deposited in one account, but the account is
actually split (behind the scenes) between as many banks as necessary to
make sure that the entire amount is insured by the FDIC. See
<www.cdars.com/?gclid=CKrIu8Wo6rACFcUZQgodiGdGvw>.
10.5
BORROWING MONEY
10.5-1 Preliminary Considerations

10.5-1(a) Scope
Sections 10.5-1(a) to 10.5-3 summarize some of the matters that a
fiduciary should consider before borrowing money.
10.5-1(b) Statutory Power
ORS 114.305(14) authorizes personal representatives to advance
or borrow money, with or without security, when acting reasonably and
for the benefit of interested persons. The right to borrow is subject to
the basic test of whether borrowing money appears to be to the
advantage of the estate and the beneficiaries. See ORS 114.265.
10.5-2 Fundamental Considerations
10.5-2(a) The Decision to Borrow
10.5-2(a)(1)
Risk of Devaluation
Within the first few months of estate administration, after determining the cash needs of the estate, the personal representative should
generally reduce sufficient assets of the estate to cash or cash equivalents, to provide for the payment of debts, taxes, pecuniary bequests,
and expenses of administration. This practice minimizes the risks of
devaluation of the estate assets, and avoids speculation with estate
assets. If the estate contains sufficient liquidity, borrowing will not be
necessary.
10-24
2012 Revision
10.5-2(a)(2)
Business Judgment Necessary
A personal representatives decision to borrow money may be

based on a business-judgment test; that is, whether an estate asset might
best be preserved by borrowing against the asset instead of selling it,
keeping in mind the best interests of the beneficiaries of the estate. If
the decision to borrow is supported and ratified by court approval, the
personal representative will be more comfortable in electing to borrow.
Even when court approval is available, the personal representative
should present the borrowing versus sale choice to beneficiaries, and
secure their written consent, approval, or instruction.
PRACTICE TIP: When an existing loan is overdue, or should
be extended or renewed, or when collateral for a secured loan
should be substituted, the personal representative should secure an
appropriate court order authorizing or approving the action.
10.5-2(b)
Basic Problems in Borrowing
Personal representatives must be cognizant of the risks involved

in repaying a loan, particularly the risk of a drop in the market value of
an asset to be used for repayment. The marketability of estate assets,
such as real property or crops, may also be problematic.
Fiduciaries should ordinarily avoid speculating with estate assets.
Speculation can be implicit both in holding assets that are likely to
fluctuate widely in value, and in creating, increasing, extending, or
continuing loans made on the pledge of such assets. Sharp declines in
the value of securities and property can occur quickly.
10.5-2(c)
Special Problems in Borrowing
Problems beyond the scope of this chapter arise when an estate

includes assets such as (1) securities in a closely held corporation, or
(2) a going business that needs substantial loan capital. In both situations, an appraisal of the value of the business is probably required to
determine the wisdom of increasing, extending, or continuing loans.
A fiduciary is often required to consider the effect of a loan on
the often-conflicting interests of remainder and income beneficiaries.
The personal representative must recognize the effect on an estate of the
10-25
2012 Revision
sale of an asset, which may give rise to taxable gains or losses. On the
other hand, although borrowing against an estate asset is not a taxable
event, a loan gives rise to problems associated with making loan and
interest payments out of current income. When the estate is to pass to a
sole heir or devisee, a prudent personal representative will consider that
persons wishes.
In any loan, secured or unsecured, the fiduciary must limit liability for repayment to the estate only and, preferably, to the estate asset
given as security for the loan.
PRACTICE TIP: Certain sources of cash are frequently available for estate borrowing. Irrevocable life insurance trusts and life
insurance proceeds payable to beneficiaries of the decedent are
often intended to provide liquidity outside of probate. However, if
no liquidity is available to the estate, the personal representative
may apply for a hardship deferral of federal estate taxes. IRC
6161. The hardship deferral must be applied for and granted one
year at a time, for up to 10 years. IRC 6161(a)(2).
In addition, if qualified, the personal representative may
elect to defer the payment of a closely held business-related
portion of federal estate tax for up to 14 years. IRC 6166. The
estate may pay interest at a rate of 2% on certain portions of the
business-related estate tax extended under IRC 6166, and the
hardship deferral interest rates are often higher. IRC 6601(j).
Estates that must defer the payment of federal tax may also qualify
for an Oregon inheritance tax deferral for the same period as the
federal deferral, but the interest rates on the Oregon tax deferral are
not special rates and are often much higher than the federal rates.
10.5-3 Loan Purposes and Procedure
Although a personal representative has limited investment powers
(see 10.4-1(a) to 10.4-2(b)(3)), most of the objectives of a decedents
estate can be realized by the personal representatives borrowing of
money under ORS 114.305(14), or through loans made in the continued
operation of a business under ORS 114.305(21), if a sale of assets is not
indicated.
10-26
2012 Revision
10.6
TRANSFER OF SECURITIES
10.6-1 Introduction
Today, marketable securities held by estates are typically held in
book-entry form by brokerages and other custodians. To manage the
estates securities, the personal representative must obtain an estate EIN
(employer identification number), open a new estate brokerage account,
and transfer the securities to the new estate account. Thereafter, the
personal representative may sell the estate securities or hold them for
distribution of cash to the beneficiaries, or, if distribution of the securities will occur in-kind, the personal representative may direct the broker
to transfer the securities from the estate brokerage account to each
beneficiarys own brokerage account. However, in some cases, the
decedent might own securities in certificate form, which may require
additional steps to transfer the securities into the name of the personal
representative or the beneficiaries. In these situations, the lawyer should
understand the problems involved in transferring certificated shares to
heirs and devisees.
Sections 10.6-2 to 10.6-3(c) discuss the problems and mechanics
of transferring and reissuing certificated securities. Section 10.6-3(d)
discusses general issues related to the transfer of certificated or bookentry securities.
10.6-2
Laws Affecting Transfers
The transfer of certificated securities is an internal matter of the

issuing corporation, governed by the laws of the state in which the
company is incorporated. The issuing corporation (the issuer),
however, must also take into account the laws of the state in which the
estate is administered. The laws of the state of administration determine
the rights, powers, and authority of the estate representative and they
further determine the requirements and procedures to be followed to
transfer the securities from the estate to the beneficiaries. Therefore, for
Oregon purposes, the Oregon probate code and the Oregon Uniform
Commercial Code (UCC) govern the transfer of securities of an Oregon
corporation from an Oregon estate. Assuming that the personal representative has been appointed and is transferring the securities in
10-27
2012 Revision
accordance with his or her duties, ORS chapter 78 determines what documents a transfer agent or issuer may require.
The issuer will register the transfer of a security as requested, if the
requirements set forth in ORS 78.4010 are met.
An indorsement or instruction must be made by the appropriate
person, or by an agent who has actual authority to act on behalf of the
appropriate person. ORS 78.4010(1)(b). In the case of a transfer from an
estate, the indorsement or instruction is done by the personal representative on behalf of the estate. See ORS 78.3040, regarding indorsements.
Reasonable assurance, as described in ORS 78.4020, must be given
that the indorsement or instruction is genuine and authorized. ORS
78.4010(1)(c).
A person who guarantees the signature of an indorser of a security
certificate warrants that the signature is genuine, that the signer is an
appropriate person to indorse, and that the signer has the legal capacity to
sign. ORS 78.3060.
A guarantee may be made by an officer of a bank or by a broker
who is a member of a recognized national stock exchange. The guarantee
is usually stamped on the instrument of assignment, below or near the
indorsement.
CAVEAT: The personal representative should not confuse a
notary public with a guarantor of a signature. The indorsement of a
notary is not the same as a signature guarantee, and is not
sufficient.
When the indorsement is made by a fiduciary, he or she must
furnish appropriate evidence of appointment or incumbency. ORS
78.4020(1)(c). For a personal representative, appropriate evidence of
appointment would be certified copies of letters testamentary or letters
of administration (or other certificate) bearing a date of issuance within
60 days before the request for transfer. ORS 78.4020(3)(b). The letters
are obtained from the clerk of the probate court. If the estate includes a
number of certificated shares, the cost of those letters may be substantial. The cost may be reduced by requesting the return of the
10-28
2012 Revision
certified copy of letters, although the 60-day requirement usually limits

their use for further transfers. Photocopies are usually not acceptable.
PRACTICE TIP: In view of the 60-day requirement, the
number of certified copies of letters requested at the inception of
administration of the estate should be limited to those immediately
required.
PRACTICE TIP: Former ORS 118.320 required the Department of Revenue to consent prior to a transfer. Although the statute
was repealed in 1987, some transfer agents may still request such a
consent. The 2003 Legislature reinstated an inheritance tax in
Oregon (see 2003 Or Laws ch 806), but did not reinstate ORS
118.320.
Although the probate code contains a provision intended to deal
with the problem of excessive documentation (see ORS 114.375), few
transfer agents will alter their requirements for documentation, which
are controlled by the UCC.
If the issuer is an Oregon corporation, the requirements of
transfer will undoubtedly be based on the laws discussed above. If,
however, the issuer is located in another jurisdiction, that jurisdictions
requirements for transfer may be different. If the UCC or the Uniform
Act for Simplification of Fiduciary Security Transfers is in effect in that
jurisdiction, the requirements of transfer should include those already
discussed. But if neither of those acts has been adopted, some variations
of those requirements may exist.
The direct transfer of securities is effected through the secretary
of the issuing corporation or its transfer agent, either of whom can
advise the personal representative on the required documentation. Many
transfer agents use printed lists of requirements covering all types of
transfer.
Additional requirements may include one or more of the following:
(1) Some states impose a tax on the transfer of securities by a
resident. Accordingly, an affidavit of residency, also known as an
10-29
2012 Revision
affidavit of domicile, is also required. Such an affidavit is furnished in

lieu of an inheritance tax release or waiver when the decedent is a
nonresident of that state.
(2) Some transfer agents take the position that they must be
satisfied that the security has been listed in the inventory of the estate.
Therefore, they require certified copies of the inventory.
(3)
A certified order of the court may be required.
(4) If the personal representative of the estate is a corporation,

a certified copy of the resolution designating and authorizing the officer
of that corporation to effect the assignment may be requested.
(5) Rarely, a certified copy of the will of a decedent who died
testate may be required.
(6) If the transfer agent has knowledge of an impropriety in the
transfer, or if an adverse claim has been lodged with the transfer agent
or the issuer, additional requirements may be imposed.
(7)
required.
A certified copy of the death certificate is sometimes
10.6-3 Mechanics of Transfer

The steps and documents required to effect the transfer of a
certificated security vary somewhat with the circumstances attending
the transaction involved. A corporate fiduciary might be able to enter
into an indemnification agreement with a transfer agent to reduce or
eliminate the use of supporting documents. Unless that is done, the
documents required in the more common situations would be as set
forth in 10.6-3(a) to 10.6-3(d).
10.6-3(a)
Transfer to the Personal Representative
Securities in the name of the decedent should not be retained in

the decedents name if they have any significant income attributes,
because the allocations between the fiduciary income tax return and the
decedents final return will be more complicated and subject to error.
The most efficient way to avoid the problem of interest and dividends
being reported on the Social Security number of a decedent, instead of
10-30
2012 Revision
on the employer identification number (EIN) of the estate, is to move all

of the certificated securities in the decedents name into a brokerage
account in the name of the estate, where they can be held in street name
(or book-entry) form. The transfer costs will be reduced or eliminated
entirely by doing so; the proper EIN will be attached to all dividends,
interest, and capital gains or losses; and the securities will be simple to
transfer to the ultimate distributees.
10.6-3(b) Transfer to a Buyer
If the personal representative sells certificated securities and if no
court order authorizing the sale exists, the delivery of the following
documents to the transfer agent should be sufficient to effect the transfer
in the usual situation:
(1)
The security;
(2) The assignment and power properly signed with the

signature guaranteed;
(3)
A certified copy of letters; and
(4)
If appropriate, an affidavit of domicile of the decedent.
If a court order authorizing or ordering the sale exists, the following documents, in addition to those listed above, should be furnished:
(1)
A certified copy of the court order; and
(2) A certified copy of the bill of sale showing compliance

with the court order by sale in the manner, for the price, and on the
terms and conditions set forth therein.
10.6-3(c)
Transfer to a Co-Owner
The certificated security may be registered in the name of the

decedent and one or more persons in the following situations:
(1) If the security is registered in the name of the decedent and
another person as joint tenants or with right of survivorship, the only
step required is to effect the relinquishment of the decedents interest.
The following documents should be submitted to the transfer agent:
(a) a certified copy of the death certificate, (b) the security certificate,
(c) the assignment and power signed by the survivor with the signature
10-31
2012 Revision
guaranteed, and (d) an affidavit of domicile of the decedent, if

appropriate.
(2) If the security is registered in the name of the decedent and
one or more other persons as tenants in common, the only variations
from the requirements applicable to joint tenants, discussed above, are
that (a) the assignment and power must be signed by the decedents
personal representative and each of the surviving co-owners, with all of
the signatures guaranteed, and (b) the security must be accounted for in
the probate proceeding.
(3) If the decedent was a life tenant, registration in the name of
the remainderholder is accomplished by furnishing the transfer agent
with a certified copy of the death certificate and a certified copy of the
instrument creating the life estate and showing the name of the
remainderholder.
10.6-3(d)
Transfer to a Distributee
If securities are to be transferred pursuant to an order for partial

distribution or a judgment of final distribution, specific information
should be included in the order or judgment to allow for the easy
transfer of such securities. In some cases, ownership of the securities
will need to be transferred to persons other than named devisees or
intestate heirs, for example, when (1) a devisee or an heir has died and a
new person has succeeded to the estate interest, (2) a devisee or heir has
changed his or her name due to marriage or divorce, (3) the persons
entitled to the estate have entered into an agreement about estate
distribution pursuant to ORS 116.113(3), or (4) the devisees or heirs
have agreed to a non-pro rata distribution of the estate. The order or the
judgment should explain how and why the actual distribution varies
from the will or the intestate shares, and the explanation should be
sufficient to justify the actions of the transfer agent or broker relying on
the judgment or order. Even then, additional documents may be
required.
In a normal distribution of certificated securities, the following
documents should be forwarded to the transfer agent: (1) a certified
copy of the order or judgment in which the distribution is described,
10-32
2012 Revision
(2) the security certificates, (3) the assignment and power signed by the
personal representative with the signature guaranteed, (4) a certified
copy of letters, and (5) an affidavit of domicile, if appropriate.
For securities that are held in street name, a letter of instructions
from the personal representative to the brokerage detailing how to
distribute the securities in the estate account, together with current
(within 60 days) letters testamentary or letters of administration, is
normally all that the broker requires. The broker should also require a
copy of the court order or judgment. If a brokerage account is frozen (to
reduce the amount of the bond or in the case of an estate dispute), a
certified copy of the order unfreezing the account must also accompany
the letter of instructions.
PRACTICE TIP: Many brokers charge a set fee to transfer
certificated securities. The personal representative or lawyer
should ask several reputable brokers or corporate fiduciaries what
they would charge. Generally, the personal representative or
lawyer can find a broker who will effect these security transfers for
substantially less cost and less effort than a lawyer or legal assistant. On the other hand, the transfer of securities in-kind from the
estate account to an account or accounts in the names of the
distributees is usually cost-free, if done in street names.
10.7
TRANSFERS OF PROPERTY TO COMPLETE

CONTRACTS
10.7-1 Definitions
For purposes of the discussion in 10.7-2 to 10.7-4, the following definitions apply:
(1) A transfer is an act of the personal representative by which
the title to the decedents property is conveyed;
(2)
Property includes both real property and personal property;
(3)
A contract is an agreement of the decedent.
and
10-33
2012 Revision
10.7-2 General Principles

Except as restricted or otherwise provided in the will or by court
order, a personal representative, acting reasonably for the benefit of
interested persons, is authorized to complete, compromise, or refuse
performance of the decedents contracts that continue as obligations of
the estate. ORS 114.305(4).
10.7-3 Limitations
Only enforceable contracts of the decedent are to be performed by
the personal representative. If the contract was not enforceable against
the decedent during his or her lifetime, the personal representative has
the right and duty to refuse performance. See ORS 114.305(4).
PRACTICE TIP: In deciding whether a contract is enforceable,
the personal representative should determine the existence of any
bar, including the decedents discharge in bankruptcy, a statute of
limitations, the lack or failure of consideration, incompetency,
laches, prior performance, accord and satisfaction, the existence of
other security, or any other matter that would abrogate the decedents or the estates liability under the contract.
If the estate has exposure to litigation and possible liability, the
personal representative may compromise the matter. ORS 114.305(4).
The personal representative who is uncertain in any case about whether
to complete or to refuse to complete a contract, or to negotiate a
compromise, should petition the court for instructions on the matter and
authority to act. ORS 114.275. See Form 10-2.
10.7-4 Method of Transferring Property
Except when a personal representative elects to seek court
instructions and authority to complete a decedents contract, the personal representative makes a transfer by executing and delivering a
deed, bill of sale, assignment, note, mortgage, or other appropriate
instrument of conveyance. For a proper designation of the personal
representative as a grantor, mortgagor, etc., see PRINCIPLES OF OREGON
REAL ESTATE LAW 6.26 (Oregon CLE 1995 & Supp 2003).
10-34
2012 Revision
If the decedents contract calls for part payment and a mortgage,

trust deed, or security agreement for the balance, the personal representative has the authority to execute such instruments on behalf of the
estate. ORS 114.325(1). See Form 11-6.
The personal representative may deliver a deed in escrow with
directions that the proceeds, when paid in accordance with the escrow
agreement, be paid to the successors of the decedent as designated in the
escrow agreement. ORS 114.305(4)(b).
If a contract of the decedent to be completed by the personal
representative is for a sale of real property, and a fulfillment deed is
required, a warranty deed may be required. If the contract calls for a
good and sufficient deed, a special warranty deed may be required. A
personal representatives deed, however, may be acceptable to the buyer
in such cases, and such a deed should always be used for sales of real
property initiated by the personal representative. See DOCUMENTATION
OF REAL ESTATE TRANSACTIONS Form 5, 12 (OSB Legal Pubs 2008);
PRINCIPLES OF OREGON REAL ESTATE LAW ch 6 (Oregon CLE 1995 &
Supp 2003).
PRACTICE TIP: If the decedents contract calls for a warranty
deed (or a special warranty deed), the personal representative
should consider obtaining a preliminary title report and furnishing
an owners title insurance policy.
CAVEAT: Unless the completion of the contract is being
closed in escrow, the personal representative should be certain that
any personal checks to the personal representative or the estate
have been certified by the drawee bank before instruments of
conveyance are delivered.
10-35
2012 Revision
10.8
SALES, LEASES, AND MANAGEMENT OF REAL

PROPERTY
10.8-1 Sale of Property

10.8-1(a) Notice, Hearing, and Court Order
In general, a personal representative may sell property of the
estate without notice, hearing, or court order. ORS 114.325(1). However, notice, a hearing, and a court order are required if:
(1)
The sale is in contravention of the provisions of the will;
(2) The property is specifically devised and the will does not
authorize its sale; or
(3) A required bond has not been increased to cover the
amount of cash realized on a sale when the sale price exceeds $5,000.
ORS 114.325(2).
PRACTICE TIP: If the amount of the bond must be increased
for a sale, the personal representative is required to obtain the
increase-rider for the existing bond, and an application to the court
for an order for that purpose is not necessary. The bond or
increase-rider, when filed, should be approved by the court. The
word Approved, with a line for the signature of the judge and date,
can be written on the bond or rider, and is sufficient. See Forms
10-3 and 10-4. Supplementary local rules (SLRs), such as SLR
9.021 (Douglas County), may require corporate surety bonds
when the personal representative exercises his or her power of
sale. The SLRs are available online at <www.ojd.state.or.us/Web/
OJDPublications.nsf/SLR?OpenView&count=1000>.
As with leasing, the personal representative must act prudently to
obtain full market value on the sale of estate property. See Hatcher v.
U. S. Nat. Bank of Oregon, 56 Or App 643, 643 P2d 359 (1982). In
addition, the personal representative may have a duty to consult with
beneficiaries and give them the opportunity to buy real estatebefore
selling real property that is the major estate asset. See Allard v. Pacific
Nat. Bank, 663 P2d 104, 110 (Wash 1983).
10-36
2012 Revision
10.8-1(b) Serving Notice of Hearing

When a personal representatives sale of property must be
preceded by notice, a hearing, and a court order, as required by ORS
114.325(2) (see 10.8-1(a), Forms 10-3, 10-4), the method and time of
giving notice are controlled by the general provisions of ORS 111.215,
111.218, 111.225, and 111.245. ORS 111.215(1) requires that notice be
given to each person interested in the subject of the hearing.
In intestate situations when the amount of the bond is not
increased by the amount of the sale proceeds exceeding $5,000 (see
ORS 114.325(2)(c)), the heirs should be served with the notice.
In testate situations when the sale is contrary to directions in the
will, or the sale is of property specifically devised, or the bond, if any, is
not increased by the amount of the sale (see ORS 114.325(2)), the
notice should be given to both the heirs and devisees until the period for
contesting the will has expired (see ORS 113.075), and thereafter to the
devisees.
CAVEAT: These requirements apply to sales of both real
property and personal property, and the word devisees includes
legatees. ORS 111.005(12), (27).
10.8-1(c) Personal Representative Fails or
Declines to Sell Property
If the sale of property of the estate is required for payment of
spousal or child support, the elective share of the surviving spouse,
claims, or expenses of administration, or for distribution, and the personal representative fails or declines to sell the property, the court, on
satisfactory proof by an interested person, may order the personal
representative to make the sale. ORS 114.335. See Forms 10-3, 10-4.
10.8-1(d)
Sale Subject to Liens
Property sold by a personal representative is subject to liens and

encumbrances against the decedent or the decedents estate, but it is not
subject to the rights of creditors of the decedent or liens or encumbrances against the decedents heirs or devisees. ORS 114.345. See
Forms 10-3, 10-4.
10-37
2012 Revision
10.8-1(e)
Voidable Sales
A sale to the personal representative or to the personal

representatives spouse, agent, or lawyer, or to any corporation or trust
in which the personal representative has more than a one-third
beneficial interest, is voidable unless:
(1)
All interested persons affected by the transaction consent to
it;
(2) The will expressly authorizes the transaction by the personal representative; or
(3) The transaction was made in compliance with another
statute or with a contract or other instrument executed by the decedent.
ORS 114.355(1).
However, the title of a purchaser for value without notice of the
circumstances of the transaction with the personal representative is not
affected unless the purchaser should have known of the defect in the
sellers title. ORS 114.355(2). See Advisory Committee comment on
ORS 114.355, online at <http://oregonestateplanning.homestead.com/
files/CLEpubs_1969ProbateCode.pdf>.
For a case upholding a personal representatives self-dealing in
exercising a purchase option from the estate, see McPherson v.
Dauenhauer, 187 Or App 551, 69 P3d 733 (2003).
10.8-2 Leases of Property
A personal representative has the same power to lease real or
personal property of the estate without notice, hearing, or court order as
he or she has to sell it. ORS 114.325. See 10.8-1(a) to 10.8-1(b).
Note, however, that the restrictions in ORS 114.325(2) (see 10.8-1(a))
apply only to sales of property, not to leases of property.
A lease by the personal representative may well be in the best
interests of the estate and of interested persons, in order to produce rents
and profits, to protect against vandalism and excessive depreciation, and
to maintain insurance coverage. See ORS 114.305(4).
10-38
2012 Revision
Although not specifically stated in the statute, it is a fair assumption, in view of the broad power granted to the personal representative
to lease or sell property, that the personal representative has the power
to lease the property for a term extending beyond the duration of
probate. Seeking the approval of the heirs or devisees for the longer
term would be advisable, however. It may also be appropriate to place
the real property to be leased into a single-member limited liability
company owned by the estate for the duration of the probate, to further
protect the assets of the estate from potential liability. The personal
representative may want to consult with the eventual beneficiaries of the
particular asset when forming an estate entity.
In leasing real estate of the estate, the personal representative
should seek to minimize vacancies. If the property is vacant, the personal
representative should consider renting it to reduce the risk of vandalism
and to avoid the difficulties of insuring vacant buildings. The personal
representative should also obtain background checks on tenants, to avoid
tenants with a record of skipping rent or damaging property. The personal
representative may be liable to the estate if he or she fails to demand and
collect market rent. See Jarrett v. U.S. Nat. Bank of Oregon, 81 Or App
242, 725 P2d 384 (1986); Kinney v. Uglow, 163 Or 539, 98 P2d 1006
(1940).
10.8-3 Undeveloped Real Property
Personal representatives often encounter problems when undeveloped property is an asset of the estate. There may be no market for
undeveloped property, and the expense of retaining it in the estate may
be burdensome. The property may be subject to sewer liens, liens of
local improvement districts, and tax liens.
The personal representative may be asked to develop the property
to make it saleable, but a prudent fiduciary should avoid doing so. If the
beneficiaries want the property to be developed, a petition for partial
distribution of the property to them may be appropriate so that they can
do so. Title in the beneficiaries will aid their ability to obtain financing
and will relieve the personal representative of liability for an unwise
10-39
2012 Revision
investment. A sale at a discount, after obtaining the devisees consent, is

also occasionally possible.
Oregon Measures 37 and 49 have altered the development rights
related to undeveloped property in Oregon. See 2005 Or Laws ch 1;
2007 Or Laws ch 424. The personal representative should investigate
carefully before developing or distributing an estates undeveloped
property. See 2 LAND USE ch 5 (OSB Legal Pubs 2010).
10.8-4 Environmental Contamination
Dealing with potential environmental contamination of real
property is a serious matter. See 7.2-4(a)(3). The law, in general,
imposes strict liability. The cleanup costs can be ruinous. Liability may
be present for pollution that occurred long ago under actions that were
considered acceptable at the time. For example, in Newell v. Weston, 150
Or App 562, 946 P2d 691 (1997), the appeals court ruled that an Oregon
statute requiring cleanup of discharges from underground storage tanks
applied retroactively to a gasoline tank installed before the statute was
enacted.
The estates lawyer should consider associating with a specialist in
environmental law. For an additional discussion of this general topic, see
ADMINISTERING TRUSTS IN OREGON ch 19 (OSB CLE 2007). See also
ENVIRONMENTAL AND NATURAL RESOURCES LAW (Oregon CLE 2002 &
Supp 2006); 1 DAMAGES ch 21 (Oregon CLE 1998 & Supp 2007).
See 10.8-4(a) to 10.8-4(d).
10.8-4(a) Federal Superfund Statute (CERCLA)
In general, the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 USC 96019675,
makes the owner and operator of . . . a facility strictly liable for
environmental cleanup costs incurred by the government. 42 USC
9607(a)(1), (4); see ORS 465.200(20). A facility includes any place
where hazardous substances have come to be located. 42 USC
9601(9); see ORS 465.200(13).
In Oregon, the personal representative is not considered to be the
owner of estate property. See ORS 114.215(1). However, the personal
10-40
2012 Revision
representative may still be liable as an operator. See ORS 465.200(20).

See also 7.2-4(a)(3), 10.8-4(c).
In response to concerns of lenders and fiduciaries, Congress
amended CERCLA in 1997 to limit personal liability. The amendment
also limited liability for underground storage tanks under the Resource
Conservation and Recovery Act, 42 USC 69016992k. The amendment provides, in part, that a fiduciarys liability may not exceed the
assets held in a fiduciary capacity, and that the fiduciary is not liable for
administering a facility that was contaminated before the fiduciary
relationship began. 42 USC 9607(n)(1), (4)(H). However, the exception
does not protect the fiduciary if the contamination was due to the
fiduciarys own negligence. 42 USC 9607(n)(3).
The 1997 amendment also establishes a safe harbor for activities of
a fiduciary that do not cause it to be deemed to be an operator of a
facility. These include cleaning up contamination at the instruction of an
environmental agency, resigning as fiduciary, and monitoring the facility.
42 USC 9607(n)(4).
10.8-4(b) Federal Claims Priority Statute
The Federal Claims Priority statute, 31 USC 3713, makes the
personal representative indirectly liable for a decedents past violations
of environmental laws. In relevant part, the statute provides that [a]
representative . . . of an estate . . . paying any part of a debt of the . . .
estate before paying a claim of the Government is liable to the extent of
the payment for unpaid claims of the Government. 31 USC 3713(b).
Distributing assets to heirs is considered paying a debt of the estate.
Thus, to the extent that a personal representative disburses and depletes
an estate, he or she may be liable for the federal governments existing
claims against the deceased person. This liability is limited to the value
of the assets in the estate (plus interest) and does not apply to state
claims.
Claims under the priority statute usually involve unpaid taxes.
However, other federal obligations, including environmental liability,
may qualify, particularly when the cleanup work has begun, or the decedent or a relative was notified by the Environmental Protection Agency
10-41
2012 Revision
of potential liability for the cleanup costs. See U.S. v. Moore, 423 US 77,
8385, 96 S Ct 310, 46 L Ed2d 219 (1975); In re Jensen, 995 F2d 925
(9th Cir 1993).
10.8-4(c) Oregon Cleanup Statute
Oregons environmental cleanup statute is similar to the
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 USC 96019675 (see 10.8-4(a)). See ORS
465.200465.455, 465.900. Owners and operators are strictly liable for
remedial costs due to the release of a hazardous substance, but limited
defenses exist for persons who (1) did not know of the contamination
when they first became owner or operator, (2) acquired the facility by
inheritance or bequest, or (3) are otherwise exempted from liability by
rules adopted by the Oregon Department of Environmental Quality
(DEQ). ORS 465.255, 465.440.
The Oregon DEQ has adopted a rule limiting liability for
fiduciaries similar to the 1997 federal amendment of CERCLA. OAR
340-122-0140. However, the DEQ rule protects only bank trust departments and trust companies. The state of Oregon was concerned that a
blanket rule for all fiduciaries would lead to abuse by individuals who
would place their polluted properties into family trusts. Whether or not
this concern was valid, it is the law in Oregon. Therefore, a personal
representative can be held liable for cleanup costs under Oregon law even
if the personal representative is protected under CERCLA. See 7.24(a)(3).
10.8-4(d) How to Protect the Personal Representative
A personal representative can take measures to minimize his or her
exposure to environmental liability. First, the personal representative
should investigate possible contamination before agreeing to serve as
Second, the personal representative should consider asking the
court for instructions (see ORS 114.275), with notice to interested parties. This protects the personal representative from second-guessing by
heirs and devisees, who might later complain that the personal
representative either wasted their inheritance returning dirt to its pristine
10-42
2012 Revision
state, or failed to do a thorough cleanup. At the same time, seeking court

instructions gives heirs and devisees a chance to be heard ahead of time.
Third, the personal representative should consider hiring a property
manager, environmental consultant, or both, with special expertise.
Fourth, the personal representative should not lose hope of
obtaining liability insurance coverage. See generally ENVIRONMENTAL
LAW AND NATURAL RESOURCES LAW ch 22 (OSB CLE 2002 & Supp
2006). Although most comprehensive general liability policies sold since
1985 have pollution clauses that exclude coverage for environmental
cleanup costs, older policies were not so tightly drafted. A personal
representative may be able to obtain coverage under the pre-1985 policies
owned by the former business whose activities caused the pollution. For
example, in St. Paul Fire & Marine Ins. Co., Inc. v. McCormick & Baxter
Creosoting Co., 324 Or 184, 923 P2d 1200 (1996), the Oregon Supreme
Court ruled that a wood-treating company was entitled to insurance
coverage for environmental cleanup costs under insurance policies issued
dating back to 1949. The court rejected arguments that coverage had
expired and that the policies were limited to injuries caused by accidents.
In addition, in 2003, the Oregon Legislature made it easier for
policyholders to establish the terms of lost policies of general liability
insurance and to settle claims with insurers for environmental coverage
under such policies. See ORS 465.475465.482 (as amended by 2003 Or
Laws ch 799).
10.9
COLLECTING ESTATE ASSETS
10.9-1 Introduction
Persons holding assets belonging to the decedents estate will
usually deliver them to the personal representative without any problems or objections. However, disputes concerning collection of assets
may arise. The personal representative is authorized to deal with those
disputes in a number of ways. See 10.9-2 to 10.9-3.
10-43
2012 Revision
10.9-2 Compromise or Adjustment of Indebtedness to Estate

If advantageous to both the estate and interested persons, the
personal representative is authorized to [c]ompromise, extend, renew
or otherwise modify an obligation owing to the estate. ORS
114.305(15). Also, [a] personal representative who holds a mortgage,
pledge, lien or other security interest may accept a conveyance or
transfer of the encumbered asset in lieu of foreclosure in full or partial
satisfaction of the indebtedness. ORS 114.305(15).
The personal representative may accept other real property in part
payment of the purchase price of real property sold. ORS 114.305(16).
The personal representatives authority to so act is not without
limitations or problems, including the following:
(1) The will or a court order may restrict the personal representatives authority. The court may issue restrictive orders on
application of an interested person or the personal representative. ORS
114.275, 114.305.
(2) The personal representative must act reasonably for the
benefit of interested persons. ORS 114.305. However, what appears to
be reasonable to one person may be deemed unreasonable by another
person. When reasonableness may be an issue, the safer practice is for
the personal representative to apply to the court for authority, approval,
or instructions. See ORS 114.275. The court may act on the application
with or without a hearing. The application and order should be prepared
with care after consideration of the possible consequences. For example,
the order should authorize rather than direct, because it may not be
possible to effect the compromise. Changes in the proposed action may
be needed. If the application and order cannot be complied with, a new
application and order should be sought vacating the outstanding order
and obtaining a new one.
(3) Not all of the disputes that arise in the course of administration may be resolved by compromise or other modification. The probate
code authorizes compromise or other modification only with respect to
obligations owing to the estate, and obligations of the estate resulting
from the decedents contracts. ORS 114.305(4). Matters such as
10-44
2012 Revision
determining heirship and the claims of heirs or beneficiaries are not

included in the authority of the personal representative. Compromises or
modification in those matters may be effected only by the persons or
heirs involved, or by the probate court. See ORS 111.095(2).
10.9-3 Litigation
The personal representative may find that collecting the assets of
the estate is undesirable or impossible without resorting to litigation or
other formal proceedings. Several provisions in the probate code grant
authority to discharge the personal representatives duties in this
respect. Those provisions, however, are not without limitations or
restrictions. Limitations or restrictions such as the following may be
found in the language of the provision or in other statutes or rules of
law:
(1) The discovery procedures available to the personal representative are found in ORS 114.425, and may be used in connection
with litigation or other proceedings. See Forms 10-5 and 10-6.
(2) The personal representative has the same right to perfect a
lien or a security interest as the decedent would have if living. ORS
114.315.
(3) The personal representative may prosecute actions, claims
or proceedings in any jurisdiction for the protection of the estate and of
the personal representative in the performance of fiduciary duties. ORS
114.305(19).
COMMENT: The phrase for the protection of the estate is
broad enough to include the collection of the estate assets. ORS
114.225 gives the personal representative the right and the duty to
collect the estate assets, although the personal representative is not
required to collect and control an asset in the possession of the
assets specific heir or devisee, unless the asset is necessary for
purposes of administration.
The phrase in any jurisdiction (ORS 114.305(19)) is to be
construed in relation to the authority granted to the personal
representative. Whether a court in another jurisdiction would
10-45
2012 Revision
recognize such authority depends, of course, on the laws of that

jurisdiction. If the cause of action is assignable, the personal representative may wish to assign the cause of action to himself or
herself in his or her individual capacity, and perhaps thus avoid
technical problems that would exist if the proceedings were
brought in the representative capacity.
NOTE: ORCP 26 A provides that [e]very action shall be
prosecuted in the name of the real party in interest. An executor
[or] administrator . . . may sue in that partys own name without
joining the party for whose benefit the action is brought.
However, ORCP 26 A does not govern all proceedings; the
requirement for parties is different in a number of situations. Under
ORS 105.005, a person must have a legal estate in, and a present
right to, the possession of the subject real property to bring an
action of ejectment. ORS 105.605 contains a similar requirement
regarding suits to quiet title. The Declaratory Judgments Act (ORS
chapter 28) requires the personal representative to include heirs
and legatees as parties to any such proceeding. ORS 28.110. Under
the probate code, title to personal property, as well as real property,
vests in the heirs at law or devisees on the decedents death. ORS
114.215. For competing views on whether claims belong to the
estate or the heirs or devisees, see Stephen L. Griffith, Hendricksons Estate v. Warburton is Not the Only Law That Governs
Representative Actions and Its Holding is Qualified, OSB EST
PLAN & ADMIN SEC NEWSLTR, July 2005, at 2; James R.
Cartwright, Hendricksons Estate v. Warburton continues to be
Good Law, OSB EST PLAN & ADMIN SEC NEWSLTR, July 2005,
at 4.
(4) The personal representative may prosecute claims of the
decedent, including claims for personal injury or wrongful death. ORS
114.305(20); ORS 30.010 et seq.
NOTE: The personal representatives petition for approval of
a settlement of a personal injury claim must be accompanied by an
affidavit setting forth all of the relevant information concerning the
10-46
2012 Revision
settlement, including medical reports on the nature and extent of

the injury and the prognosis. UTCR 9.040.
In addition to the affidavit, in some counties, Supplementary
Local Rules require that the affidavit describe the incident, the
injuries, the amount of the prayer and settlement, attorney fees and
costs, disposition of the proceeds, the present value of any future
payments in a structured settlement, and a brief statement
explaining the reasons for the settlement. See SLR 9.051 (Lane)
and SLR 9.055 (Multnomah), available online at <www.ojd.state
.or.us/Web/OJDPublications.nsf/SLR?OpenView&count=1000>.
(5) All causes of action or suit by one person against another,
survive to the personal representative of the former and against the
personal representative of the latter. ORS 115.305.
(6) The personal representative has a limited right to recover
property transferred by the decedent with the intent to defraud his or her
creditors, or property transferred by any means that in law is void or
voidable as against the decedents creditors. ORS 114.435. See Matter
of Hills Estate, 27 Or App 893, 906, 557 P2d 1367 (1976). However,
this right may be exercised by the personal representative only to the
extent that such property is necessary for the payment of expenses of
administration, funeral expenses, claims, and taxes. See Hendricksons
Estate v. Warburton, 276 Or 989, 996, 557 P2d 224 (1976); Ledford v.
Yonkers, 278 Or 37, 40, 562 P2d 970 (1977).
(7) A personal representative who prosecutes any proceeding
in good faith and with just cause, whether successful or not, is entitled
to receive from the estate necessary expenses and disbursements
incurred in the proceeding, including reasonable attorney fees. ORS
116.183(2).
(8) The personal representative for the estate of a vulnerable
person may bring a civil action against any person who physically or
financially abused the decedent. ORS 124.100(2), (3)(c). The decedent
must have been a vulnerable person when the cause of action arose. ORS
124.100(3)(c). The statute defines vulnerable person as (a) an elderly
person who is 65 years of age or older (see ORS 124.100(1)(a)); (b) a
10-47
2012 Revision
financially incapable person (see ORS 124.100(1)(b), 125.005); (c) an

incapacitated person (see ORS 124.100(1)(c), 125.005); or (d) a
person with a disability who is susceptible to force, threat, duress,
coercion, persuasion or physical or emotional injury because of the
persons physical or mental impairment. ORS 124.100(1)(e).
10.10
CONTINUANCE OR LIQUIDATION OF DECEDENTS

BUSINESS OR VENTURE
10.10-1 Scope of Authority and Limitations in Handling

Decedents Business
The probate code grants the personal representative much latitude
in handling a decedents business affairs. The personal representative
has authority to [c]ontinue any business or venture in which the
decedent was engaged at the time of death to preserve the value of the
business or venture. ORS 114.305(21).
CAVEAT: The personal representatives authority under ORS
114.305(21) to continue a business or venture is qualified by the
words to preserve the value of the business or venture. These
words could be construed as limiting the authority of the personal
representative. It could be argued that liquidation would be
required if it could be accomplished without loss of value to the
estate, even though it might be extremely profitable to continue the
business or venture. Perhaps a more reasonable interpretation
would be that the words are not words of limitation when they
allow the personal representative to continue a business or venture,
as long as the personal representative acts reasonably for the
benefit of interested persons. The meaning, however, requires
judicial or legislative clarification.
The term venture also requires interpretation. Most authorities define venture as a specific enterprise involving risk.
Undoubtedly, the term includes joint ventures. The absence of the
word joint indicates that a broader meaning should be ascribed to
the word. Participation in a partnership surely falls within its
meaning.
10-48
2012 Revision
The personal representative may incorporate or otherwise change

the business form of, or discontinue or wind up, any business or venture
in which the decedent was engaged at the time of death. ORS
114.305(22)(23). The personal representatives discretion in these
respects is limited by the requirement of acting reasonably for the
benefit of interested persons. Other limitations, intended or not,
probably exist.
QUERY: The authority of the personal representative to
incorporate or otherwise change the business form of any such
business or venture is not followed by any words of limitation.
ORS 114.305(22). Does this mean that the business or venture is to
be continued only to preserve its value? Remembering that the
principal function of the personal representative is to preserve,
settle and distribute the estate . . . as expeditiously and with as little
sacrifice of value as is reasonable under the circumstances (ORS
114.265), all of the powers listed in ORS 114.305 should be
regarded as granting to the personal representative the needed
authority to carry out those functions.
10.10-2 Ongoing Management of a Business
Special problems arise when the decedent was a key person in a
closely held business, whether the business is a corporation, a
partnership, or a limited liability company. The personal representative
must determine whether or not the business has adequate management
and supervision, at least through a transition period. The personal representative must then consider whether it is in the best interests of the
beneficiaries to continue the business, to sell the business or the estates
business interest, or to liquidate the business. The personal representative must evaluate this decision in view of the following considerations:
(1)
Was the decedent a key person in the business?
(2) Is another person qualified and willing to manage a continuing business?

(3)
Would adequate financing be available?
10-49
2012 Revision
(4) Is the profitability and stability of the business sufficient to

justify leaving beneficiaries dependent on it?
(5)
Can the business or the estates interest be sold for a fair
price?
(6) Should the business be liquidated so that the risks of an
ongoing business are avoided and its value as represented by the
proceeds can be put into safer investments?
Frequently, decedents fail to provide for business succession in
their will, and the fiduciary has difficulty evaluating the qualifications
of possible successors. These are also time-sensitive questions. If the
decedent was a key person of the business, the value of the corporation
may diminish rapidly on the owners death. Another item that should be
considered in evaluating the estates continued ownership of a closely
held business is whether or not the decedent has signed personal
guarantees.
10.10-3 Management or Transfer Issues
10.10-3(a) Entity Agreements
The business entity may have a series of entity management
agreements. For corporations, the company documents may include
articles of incorporation, bylaws, stock-restriction agreements, or buysell agreements. For partnerships and limited liability companies, those
company documents may include a certificate of formation, articles of
organization, an operating agreement, and a partnership agreement. The
personal representative must review and understand the entity agreements before proceeding with any management or transfer of the
estates interest in a business.
10.10-3(b) Minority, Noncontrolling Interests
If the decedent held a minority interest in a closely held
corporation, partnership, or limited liability company, or was a limited
partner in a limited partnership, the fiduciarys management and transfer
choices will be tied to some extent by the size of the interest and the
management scheme of the entity. Many investments (i.e., not operating
businesses) are held as entities that are governed by strict notice periods
10-50
2012 Revision
to redeem the decedents interest. The personal representative must

understand how to protect the value of a minority interest for the benefit
of the beneficiaries. When someone other than the personal representative is in control of the entity, it may be prudent to quickly
determine an exit strategy.
10.10-3(c) Buy-Sell Agreements
The personal representative will be forced to carry out a buy-sell
agreement, if such an agreement is mandatory. However, if the sale is
optional under the agreement, the personal representative will need to
decide whether disposing of the business interest pursuant to the terms
of the agreement is in the best interests of the estate. Valuation is often
the most important issue, particularly when the value described in the
buy-sell agreement might not be the same value that must be used for
estate-tax valuation. In such a case, it is often best for all of the parties
to use the estate-tax valuation, which may require some kind of
modification, waiver, or ratification of the entity agreements.
When a personal representative has an option either to sell the
interest or to require other contracting parties to purchase it on the
specified notice or demand, any personal representative who fails to
give notice or to make demand when the sale is in the best interests of
the estate is liable to beneficiaries for whatever loss results.
For more on buy-sell agreements, see 3 ADVISING OREGON
BUSINESSES ch 47 (Oregon CLE 2003 & Supp 2009) (estate planning
for owners of closely held businesses; 2 ADVISING OREGON BUSINESSES
ch 23 (Oregon CLE 2001 & Supp 2007) (corporate buy-sell agreements).
10.10-4 Specific Business Interests
10.10-4(a) Private Corporations
A corporation is owned by its shareholders and is managed by its
officers and its board of directors. ORS ch 60. The personal representative should review the articles of incorporation, bylaws, and any
other corporate documents to determine how the corporation must be
managed throughout the probate proceeding.
10-51
2012 Revision
A corporation must have at least one director, and the estate of a

deceased individual may not be a director. ORS 60.307(1). If the
decedent was the sole shareholder and director of the corporation, and no
succession plan for the management of the company exists, the estate, as
the sole shareholder, may appoint a director. See ORS 60.331. The
personal representative may also create a new structure or otherwise
change the governing structure for the corporation under the emergency
powers described in ORS 60.064 and 60.081, if permitted by the articles
of incorporation. If the decedent was the sole or key person for the
corporation, new directors and/or officers must be elected to maintain
loans or ongoing corporate business. The death of a shareholder does not
otherwise change the rights of the estate associated with the shares.
10.10-4(b) Partnerships
The estate of a deceased partner succeeds to the decedents
partnership interest, but not to partnership assets. See ORS 67.060.
Therefore, the personal representative must review the partnership
agreement, if any, to determine the rights of the estate in the partnership. ORS chapter 67 controls in the absence of a partnership agreement, or if a partnership agreement is silent on a particular issue. See
ORS 67.015.
Unless the partnership agreement provides otherwise, the death
of a partner is not a cause of dissolution of the partnership, although it is
a cause of dissociation of the deceased partner. See ORS 67.220(7)(a),
67.230, and 67.250 for the effect of dissociation in general. Dissociation
itself might not be an event causing termination of the partnership (by
statutory default or by the partnership agreement).
If no partnership agreement exists, and if dissociation is not an
event that causes the partnership to terminate under ORS 67.290, then
the partners have an obligation to buy out the interest of the partnership.
ORS 67.250. In addition, while the partnership is operating, the estate of
a deceased partner is liable to that partners obligation to contribute to a
partnership. ORS 67.255. Also, when distributions are made from a partnership, distributions of cash and hard assets become part of the deceased
partners estate.
10-52
2012 Revision
If there is no partnership agreement, and the dissociation of the

deceased partner causes the termination of the partnership under ORS
67.290, the surviving partners have the right and obligation to wind up
the partnership, and the estate is usually a passive recipient of whatever
comes. Nonetheless, the personal representative cannot avoid oversight
involvement in the winding up, because the estate is jointly and severally
liable for fraud, waste, conversion, and other misdeeds of partners. See
ORS 67.100, 67.105.
10.10-4(c) Limited Liability Companies
Except as otherwise provided in the articles of organization or
any operating agreement, a members interest in a limited liability
company (LLC) ceases on the members death. ORS 63.265(1).
Except as otherwise provided in ORS 63.265(2)(b), following the
cessation of the members interest, the holder of the former members
interest is considered to be an assignee of that interest and has all of the
rights, duties, and obligations of an assignee under ORS chapter 63.
ORS 63.265(2)(a). For the purposes of ongoing management, an
assignee has no continuing management rights, and is entitled only to
the economic benefit of the LLC. ORS 63.249.
If the member who ceases to be a member is the only member of
the LLC, the holder of the former members interest becomes a member
simultaneously with, and on the cessation of, the former members
interest. ORS 63.265(2)(b). Thus, the decedents estate may function as
an assignee of a decedents membership interest in an LLC with two or
more members, but the estate becomes the member when it is a singlemember LLC.
10.10-4(d) Sole Proprietorships
10.10-4(d)(1) Nonprofessional Sole Proprietorships
Unless family members are active and competent in the business,
a personal representative should attempt to dispose of a sole
proprietorship as soon as possible. Sole proprietorships are usually
businesses in which the decedent was a key person, and the value of that
business will diminish quickly unless it already has employees who can
10-53
2012 Revision
function as key persons, which is not unusual for old, established

businesses with long-time employees.
10.10-4(d)(2) Professional Sole Proprietorships
A personal representative must segregate and protect all of the
files and records belonging to clients or patients of a deceased professional, and must take steps to ascertain ownership and to prevent
improper disclosure of information. The sale of a professionals practice
is very difficult, because so often it is a personally linked type of
activity. Frequently, only the hard assets are saleable.
If the deceased professional was a partner with other professionals, a partnership agreement may permit the decedents firm to take
over the business. However, in a sole proprietorship, records and files
belong to the decedent, not a firm, and the personal representative has
the problem of disposing of those records and files. A personal
representative should, at the request of clients or patients, turn over
pertinent records and files to the successors chosen by the clients or
patients. Files and records remaining after a suitable length of time may
need to be stored for many years. Strenuous efforts should be made to
contact all of the patients and clients to enable them to determine the
disposition of such records and files.
In addition, the personal representative should promptly seek to
collect fees for services performed by the decedent before his or her
death. A decedents accounts receivable age rapidly, and the personal
representative should arrange for billing and collections early in the
administration to preserve their value.
10.11
ENCUMBERED ASSETS
10.11-1 Introduction
Some or all of the assets in the decedents estate may be
encumbered. What authority and what responsibilities does the personal
representative have with respect to any such encumbrances? Does it
make any difference whether the encumbrance was created or arose
before or after the will was made? Did the testator attempt to deal with
10-54
2012 Revision
and control the problem? Does a provision in the will directing payment
of debts impose an obligation on the personal representative with respect
to encumbrances? If property is specifically devised by will, the rights of
a devisee of property that is subject to an encumbrance are to be
determined in accordance with the law in effect on the date that the will
was executed. ORS 115.255(5); see ORS 111.015(1). Sections 10.11-2 to
10.11-5 discuss these issues.
10.11-2 Voluntary and Involuntary Encumbrances
The probate code classifies encumbrances as voluntary or
involuntary. ORS 115.255(1). A voluntary encumbrance means any
mortgage, trust deed, security agreement, pledge or public improvement
assessment lien, or any lien arising from labor or services performed or
materials supplied or furnished, or any combination thereof, upon or in
respect of property. ORS 115.255(1)(a). An involuntary encumbrance
is defined as any encumbrance other than a voluntary one. ORS
115.255(1)(b).
The word encumbrance is not defined in the probate code. The
context of the statute, however, indicates that it is a form of security
given or that exists to secure an obligation. As a result, taxes and
judgments are involuntary encumbrances. Furthermore, although leases,
easements, and the like are encumbrances within the meaning of other
legislation, they are not deemed encumbrances for purposes of ORS
115.255115.275.
10.11-3 Responsibilities of Personal Representative
A specific devisee takes the devised property subject to a
voluntary encumbrance that exists on the date of the testators death,
regardless of when the encumbrance came into being, that is, whether it
was before or after the making of the will. ORS 115.255(2), (3)(b).
The personal representative is not required to discharge a
voluntary encumbrance (fully or partially) out of other assets not
specifically devised, unless:
(1) The will specifically directs full or partial discharge of the
encumbrance out of other assets;
10-55
2012 Revision
(2) The personal representative receives rents or profits from

the property, and the devisee requests (orally or in writing) that all or
part of such rents or profits, or both, be applied in full or partial
discharge of the obligation secured by the encumbrance; or
(3) The devisee is to receive other property of the estate and
the devisee requests, in writing, that the obligation secured by the
encumbrance be fully or partially discharged out of such other property,
or the proceeds of the sale of it.
ORS 115.255(3)(b).
If a claim based on an obligation secured by a voluntary
encumbrance on specifically devised property is presented and paid, or
if specifically devised real property subject to a voluntary encumbrance
is redeemed, and the devisee is not entitled to exoneration under ORS
115.255(3), the personal representative acquires a lien on the property
in the amount paid. ORS 115.255(4).
If the encumbrance is an involuntary encumbrance, unless the
will provides otherwise, the devisee of specifically devised property
may require that the encumbrance be fully or partially discharged out of
other assets not specifically devised. ORS 115.255(3)(a). Presumably, if
need be, the personal representative would be obligated to sell assets not
specifically devised to make any payment required to comply with the
request.
When any assets of the estate are encumbered by an encumbrance
(involuntary or voluntary), the personal representative may
discharge the encumbrance or any part of it, renew or extend any
obligation secured by the encumbrance, or convey or transfer the
assets to the creditor in satisfaction of the lien, in whole or in part,
whether or not the holder of the encumbrance has filed a claim, if it
appears to be for the best interest of the estate.
ORS 115.275.
The discharge of an encumbrance does not increase the share of
the distributee entitled to the encumbered assets, unless the distributee is
entitled to exoneration under ORS 115.255(3). ORS 115.275.
10-56
2012 Revision
Also, unless otherwise provided by the will, the personal

representative may redeem property of the estate sold on foreclosure of
mortgage or upon execution if it appears that the redemption would be
for the benefit of the estate and would not be prejudicial to creditors.
ORS 115.265.
10.11-4 Will Provisions
The testator, of course, has the power to provide for the
disposition of encumbrances. A mere direction in a will to pay debts is
not to be considered a direction for exoneration from encumbrances.
ORS 115.001. Something more is required if the testator desires to
avoid the consequences that would otherwise result under the probate
code.
PRACTICE TIP: A lawyer preparing a will for a client should
always ask how the client would like the personal representative of
the estate to deal with any encumbrances that may exist or that
may arise after the making of the will.
10.11-5 Heirs and Encumbrances
Under the probate code, the net intestate estate of the decedent
descends to the decedents heirs. ORS 112.015; see also ORS 112.025
112.055. The net estate is the property remaining after payment of
claims and other obligations of the estate. ORS 111.005(23). The
existence of an encumbrance against an asset of the estate will not alter
the rights of one heir as against those of any other heir. If the obligation
secured by the encumbrance is paid by the personal representative, the
shares of all of the heirs in the net estate will be proportionately
reduced. If the obligation is not so paid, the heirs will receive the asset
subject to the encumbrance, and their proportionate interests will remain
unaffected.
10.12
UNUSUAL ASSETS
10.12-1 Natural Resources

Special problems may arise when mineral rights or other natural
resources are assets of the decedents estate. Specialized expertise may
10-57
2012 Revision
be required to safeguard the asset, to determine its appropriate market

value, or to sell the asset. The personal representative may wish to work
with a corporate fiduciary located in the geographic region dominated
by such assets.
EXAMPLE: A number of banks based in Texas may provide
or assist in obtaining the necessary expertise and advice on mineral
rights.
10.12-2 Contraband and Firearms
The decedent may have owned property, such as a firearm, that
requires a special license or permit. Or the decedent may have had
illegal narcotics in his or her possession. A personal representative who
finds such items among the decedents effects must act promptly to
protect both the personal representative and the estate against applicable
penalties. Often, this means surrendering the article or item to the
proper authority. In the case of illegal narcotic drugs, for example, a
federal regulation may prescribe the procedure to be followed.
Special licensing and registration rules apply to transfers of
firearms. If the estate holds an automatic weapon, sawed-off rifle or
shotgun, silencer, or other firearm regulated by the National Firearms
Act, the personal representative must notify the compliance office of the
Bureau of Alcohol, Tobacco, Firearms and Explosives. See 18 USC
922(k); Bureau of Alcohol, Tobacco, Firearms and Explosives, National
Firearms Act (reprinted at <www.atf.gov/firearms/nfa>); Transfers of
National Firearms Act Firearms in Decedents Estates, revised Feb.
23, 2006 (reprinted at <www.atf.gov/press/releases/1999/09/090599openletter-nfa-estate-transfers.html>). Transfers of firearms are also
subject to state law. See ORS chapter 166.
PRACTICE TIP: The personal representative should conduct
all sales of firearms through a licensed gun dealer or licensed sales
agent.
PRACTICE TIP: If the personal representative delivers contraband to the proper authorities, he or she should request a receipt
pending proper disposition of the contraband.
10-58
2012 Revision
10.12-3 United States Savings Bonds

When a decedents estate includes United States savings bonds,
the personal representative should coordinate asset management and
estate income tax planning. See 1.6-2, 7.4-3(c). On some bonds, interest does not continue to accrue; on others, interest income is triggered
when the bonds are redeemed.
PRACTICE TIP: The personal representative should analyze
the tax consequences of establishing a short first year for tax
purposes and redeem the savings bonds in order to capture the
interest income in the estate and reduce the overall income tax
burden, while at the same time providing cash for ultimate distribution. In addition, the personal representative may elect to
report all of the accrued interest up to the date of death for Series
E, EE, or I bonds on the decedents final income tax return. When
the heir later redeems the bonds, the only interest to report will be
the interest that has accrued from the date of the decedents death.
Rev Rul 68-145, 1968-1 CB 203 (1968).
10.12-4 Personal Property
Personal property is frequently specifically devised to family
members or other devisees. Distribution of specifically devised personal
property does not carry out the income of the estate in an unanticipated
manner. Fiduciary income tax returns that have distributable net income
report any distribution from an estate to a beneficiary as taxable income,
even if the distribution is not in cash; however, specifically devised
property does not carry out taxable income to an heir or devisee unless
the property earns income itself. IRC 663(a)(1). Therefore, unless the
personal property is specifically devised, the personal representative
should distribute personal property under a custody receipt, rather than
an order for partial distribution, if the estate will be open past the end of
the first fiscal year, in order to avoid an income distribution.
Personal property not specifically devised and not wanted by the
beneficiaries of the estate should be sold or donated to avoid incurring
storage and insurance costs.
10-59
2012 Revision
10.12-5 Appraisal of Unusual Assets

Ample authority exists under Oregon law for a personal representative to engage experts to provide an estimate of the market value of
the estate assets as of the decedents death. ORS 113.185. See 7.4-2(c).
An appraisal is necessary to assess items with significant artistic or
intrinsic value if the value is in excess of $3,000. See Treas Reg
20.2031-6(b).
The expertise and counsel of an expert should be obtained when
the personal representative might be dealing with a decedents closely
held business.
If the decedent owned a boat, ship, yacht, or other vessel, an
expert may be necessary to properly value the asset. Obviously, an
expert would not be required to value the decedents 12-foot runabout,
but certainly would be required to value any vessel of significant worth.
For an aircraft, the avionics contained in that aircraft are the most
important feature in determining market value. An expert appraisal is
important. Proper safeguarding and insurance are extremely critical,
considering the significant value of the equipment.
Competent appraisal, proper safekeeping, and insurance are also
important if the estate contains jewelry, gold bullion, silver bullion, or
other highly valuable items.
PRACTICE TIP: Appraisers often advertise their services and
areas of expertise in the Oregon State Bar Bulletin, the ABA
Journal, and other legal periodicals. The personal representative
may also want to contact corporate fiduciaries or other law firms
that have had the opportunity to deal previously with a particular
asset.
10.12-6 Cooperative Apartments or Condominiums
If the decedent was a resident of a condominium or retirement
home facility for which a purchase price was paid, the personal representative should obtain copies of all of the documents pertaining to its
ownership. There is no consistency from one organizational structure to
another regarding the disposition of the condominium. The personal
10-60
2012 Revision
representative may be surprised to find that the decedents interest

terminates without compensation on death.
10-61
2012 Revision
Form 10-1
Relinquishment of Possession and Control of

Decedents Property

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
Case No. _____

RELINQUISHMENT OF
POSSESSION AND
CONTROL OF
DECEDENTS
PROPERTY
The property described below is in, or is about to be delivered to,

the possession of ____________, [an heir / a devisee] of the abovenamed decedent. The personal representative of the estate now believes
that possession of the property is not reasonably required for the
administration of this estate. Accordingly, the personal representative
hereby relinquishes the right to possession and control of the following
property and will not be accountable therefor: ___________________
[Describe property.]
If the ownership of the property is recorded with the Department
of Motor Vehicles or a similar agency, the personal representative will
re-register the title to the above-named [heir / devisee]. By accepting
possession of this property, the undersigned [heir / devisee] agrees
(1) to keep it adequately insured (including coverage for liability to
third parties) and (2) to return title and possession of the property to the
personal representative if the personal representative informs the [heir /
devisee] that possession of the property is in fact required to administer
the estate.
10-62
2012 Revision
DATED: _______________, 20___.
/s/__________________________
[name]
/s/__________________________
[name]
[Heir / Devisee]
[name]
[address]
[telephone no.]
[fax no.]
LAWYER FOR PERSONAL REPRESENTATIVE
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
and UTCR 9.030 for the form of documents, including requirements
regarding document title, spacing, and format.
10-63
2012 Revision
Form 10-2
Application of Personal Representative for

Authority, Approval, or Instructions

Estate of
____________________,
)
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

APPLICATION OF
PERSONAL
REPRESENTATIVE FOR
[AUTHORITY /
APPROVAL /
INSTRUCTIONS]
____________________, the personal representative of the estate

of the above-named decedent, alleges:
1.
The personal representative desires [authority / approval /
instructions] on the matter set forth in this petition, which concerns the
[administration / settlement / distribution] of the estate.
2.
[Set forth the matter.]
WHEREFORE,
3.
The personal representative prays for an order:
(a)
10-64
2012 Revision
[Setting a time for hearing on this matter.]
(b) [Authorizing the personal representative to / Approving the

action of the personal representative in / Instructing the personal
representative concerning] _______________________.
DATED: _______________, 20___.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
and UTCR 9.030 for the form of documents, including requirements
regarding document title, spacing, and format.
10-65
2012 Revision
Form 10-3
Petition of Personal Representative for

Authority to Sell Property

Estate of
____________________,
)
)
)
)
)
)
)
)
Deceased.
Case No. _____

PETITION OF
PERSONAL
REPRESENTATIVE FOR
AUTHORITY TO SELL
PROPERTY
____________________, the personal representative of the estate

of the above-named decedent, alleges:
1.
The personal representative desires authority to sell certain
property [contrary to the provisions of the decedents will / which is
specifically devised and the will does not authorize its sale]. [The bond
of the personal representative has not been increased by the amount of
cash to be realized on the sale.]
2.
A bond in the amount of $________ has been required and filed.
3.
The inventory shows that this estate consists of personal property
valued at $________ and real property valued at $___________. [The
following-described (real / personal) property is specifically devised to
__________________________ and the decedents will does not
authorize its sale.] [The decedents will specifically provides that the
10-66
2012 Revision
(real / personal) property shall not be sold.] [The sale price of the
property to be sold exceeds $5,000, and the bond of the personal
representative has not been increased by the amount of cash to be
realized on the sale.]
4.
[Set forth the reasons for application, for example:]
The previously authorized support of the decedents spouse and
the still unsatisfied expenses of administration, funeral expenses,
claims, and taxes of the estate are estimated to exceed $_______. To
pay the support, expenses, claims, and taxes, and for purposes of
distribution, it is necessary for the personal representative to sell the
following-described property of the estate:
[Describe property.]
WHEREFORE,
5.
Petitioner prays for an order:
(a) Setting a date for hearing on this petition and directing that
notice of the hearing be given to the [heirs and] devisees of the estate;
(b) Appointing a guardian ad litem for ___________________,
the decedents minor child; and
(c) After the hearing, authorizing the personal representative to
sell the property.
DATED: _______________, 20___.
/s/__________________________
[name]
10-67
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: After expiration of the limitations period for filing a will

contest (see ORS 113.075(3)), it should not be necessary to give notice
other than to specific devisees.
COMMENT: See 10.8-1(a) to 10.8-1(d). See also ORS 114.325.
See UTCR 2.010 and UTCR 9.030 for the form of documents, including
ORS 111.205.
also UTCR 2.010(7).
10-68
2012 Revision
Form 10-4
Order Authorizing Sale of Property

Estate of
____________________,
)
)
)
)
)
Deceased.
Case No. _____

ORDER AUTHORIZING
SALE OF PROPERTY
On petition of the personal representative and after hearing

thereon, the Court finds:
1.
Proof of giving notice on the petition to the [heirs and] devisees
of the estate has been filed.
2.
[The property described below is specifically devised and the
decedents will does not authorize its sale. / The decedents will
specifically provides that the property described below may not be
sold.] [The sale price of the property to be sold exceeds $5,000, and the
bond of the personal representative has not been increased from
$_______ to the amount of cash to be realized on the sale.]
3.
The personal representative desires to sell the property because
____________________________________________________.
It is therefore
ORDERED that the personal representative is authorized to sell
the following property: _____________________________________
10-69
2012 Revision
[The personal representative is required to file an additional bond

in the amount of $__________.]
DATED: _______________, 20____.
/s/__________________________
[judges name]
Judge
[fax number]
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 10.8-1(a) to 10.8-1(d). See also ORS 114.325.
See UTCR 2.010 and UTCR 9.030 for the form of documents, including
requirements regarding document title, spacing, and format.
printed on the last page of every petition, motion and order. UTCR
9.030(1). The last page of every order must also include the name,
address, and telephone number of the personal representative. UTCR
9.030(2). See also UTCR 2.010(7), (12).
10-70
2012 Revision
Form 10-5
Petition for Order Requiring Testimony

Estate of
____________________,
)
)
)
)
)
)
Deceased.
Case No. _____

PETITION FOR ORDER
REQUIRING
TESTIMONY
____________________, the personal representative of the

above-named decedent, alleges:
1.
____________________, daughter of the decedent, has informed
the personal representative that the decedent owned shares in ABC
Company, which were in the possession of John Doe, president of that
company, at the time of the decedents death.
2.
The personal representative has requested John Doe to inform
[him / her] concerning the number of shares of stock in ABC Company
owned by the decedent and to deliver the certificates representing the
shares. John Doe has denied that the decedent was a shareholder in ABC
Company, has refused to deliver any stock certificates to the petitioner,
and has refused to allow the petitioner to examine the books and records
of ABC Company.
10-71
2012 Revision
3.
The personal records of the decedent, including an asset ledger
and income tax returns, indicate that the decedent owned shares of ABC
Company and that the shares were not disposed of before the decedents
death.
WHEREFORE,
4.
Petitioner prays for an order requiring John Doe to appear and
give testimony by deposition concerning the foregoing.
DATED: _______________, 20___.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
10-72
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 10.9-3, 10.3-2. See also ORS 114.425. See

ORS 111.205.
10-73
2012 Revision
Form 10-6
Order Requiring Testimony

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

ORDER REQUIRING
TESTIMONY
From the petition of the personal representative, the Court finds

that it appears probable that John Doe, president of ABC Company:
(a) Has concealed, secreted, or disposed of stock of ABC
Company belonging to this estate;
(b) Has been entrusted with the stock and has failed to account
for it to the personal representative;
(c) Has concealed, secreted, or disposed of a document
pertaining to the estate;
(d) Has knowledge or information that is necessary to the
administration of the estate;
(e) As an officer or agent of ABC Company, has refused to
allow examination of the books and records of the corporation that the
decedent had the right to examine.
Accordingly, it is ORDERED that a subpoena issue from this
court requiring John Doe to appear and answer questions in connection
with the foregoing by deposition at ___________, Oregon, at ______
[a.m. / p.m.] on _______________, 20___, before an authorized court
reporter.
10-74
2012 Revision
DATED: _______________, 20___.
/s/__________________________
[judges name]
Judge
[fax number]
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 10.3-2, 10.9-3. See also ORS 114.425. See
requirements regarding document title, spacing, and format.
printed on the last page of every order. UTCR 9.030(1). The last page of
every order must also include the name, address, and telephone number
of the personal representative. UTCR 9.030(2). See also UTCR 2.010(7),
(12).
10-75
2012 Revision
Chapter 11
ACCOUNTING, DISTRIBUTION, AND CLOSING
SAM FRIEDENBERG, B.A., Tufts University (1980); J.D., Lewis & Clark Law School
(1985); member of the Oregon State Bar since 1985; partner, Nay &
Friedenberg, Portland.
AMY E. BILYEU, B.A., J.D., University of Oregon (1995, 2000); LLM (Taxation),
University of Washington School of Law (2001); member of the Oregon State
Bar since 2001 and the Washington State Bar Association since 2007; partner,
Cavanaugh Levy Bilyeu LLP, Portland.
We acknowledge the contribution of David R. Allen for his work on the prior edition
of this chapter.
11.1 INTRODUCTION ................................................................... 11-5

11.2 WHEN AN ACCOUNTING IS REQUIRED ......................... 11-6
11.3 FINAL ACCOUNTING .......................................................... 11-7
11.3-1
Introduction................................................................. 11-7
11.3-2
Summary of Tasks ...................................................... 11-7
11.3-3
Unresolved Issues ....................................................... 11-9
11.3-4
Accounting Options .................................................. 11-10
11.3-4(a) Ordinary Accounting ................................. 11-10

11.3-4(b) Consent Accounting .................................. 11-10
11.4 NARRATIVE OF THE FINAL ACCOUNTING ................. 11-11
11.4-1
Introduction............................................................... 11-11
11.4-2
Term of Accounting.................................................. 11-12
11.4-3
Requirement of a Bond ............................................. 11-12
11.4-3(a) If No Bond Is Required ................................. 11-13

11.4-3(b) If Bond Is Required ....................................... 11-13
11.4-3(c) Restriction of Assets in Lieu of Bond ........... 11-13
11.4-4
Changes in Assets or Finances ................................. 11-14
11.4-5
Fiduciary Disclosure ................................................. 11-14
11.4-6
Information Required in Judgment ........................... 11-15

11-1
2012 Revision
Chapter 11 / Accounting, Distribution, and Closing
11.5 FINANCIAL INFORMATION OF THE

ACCOUNTING ..................................................................... 11-16
11.5-1
Background and Authority ........................................ 11-16
11.5-2
Rules Are Flexible..................................................... 11-16
11.5-3
Asset Schedule .......................................................... 11-17
11.5-3(a) Five-Column Requirement ............................ 11-18

11.5-3(a)(1) First Column: All Assets ................. 11-18
11.5-3(a)(2) Second Column: Value at the
Beginning of Accounting ................ 11-18
11.5-3(a)(3) Third Column: Value of LaterAcquired Asset ................................ 11-19
11.5-3(a)(4) Fourth Column: Value at
Disposition....................................... 11-20
11.5-3(a)(5) Fifth Column: Current Value .......... 11-21
11.5-3(b) Sum of Each Column..................................... 11-21
11.5-3(c) Additional Information .................................. 11-21
11.5-3(d) Household Goods .......................................... 11-21
11.5-4
Receipts and Disbursements for Depository

Accounts .................................................................... 11-22
11.5-4(a) Accounting for Receipts and

Disbursements ............................................... 11-22
11.5-4(b) Reconciliation of Account Balances ............. 11-23
11.5-4(c) Vouchers ........................................................ 11-25
11.5-4(d) Depository Statements ................................... 11-25
11.5-4(e) Sale of Real Property ..................................... 11-26
11.5-5
Paragraph or Exhibit ................................................. 11-26
11.5-6
Trust Companies as Personal Representatives .......... 11-26
11.6 OTHER ACCOUNTING ISSUES ........................................ 11-27

11.6-1
Formalities................................................................. 11-27
11.6-1(a) Declaration Under Penalty of Perjury ........... 11-27

11.6-1(b) InformationLawyer and
Personal Representative................................. 11-27
11-2
2012 Revision
Accounting, Distribution, and Closing / Chapter 11
11.6-2
Notice of Accountings .............................................. 11-27
11.6-2(a) Annual or Interim Accounting ...................... 11-27

11.6-2(b) Final Accounting ........................................... 11-28
11.6-3
Allocation of Income ................................................ 11-28
11.6-4
Reserves to Pay Expenses of the Estate ................... 11-28
11.6-5
Personal Representatives Fees ................................ 11-29
11.6-5(a) Statutory Fee ................................................. 11-29

11.6-5(b) Additional Compensation ............................. 11-30
11.6-5(c) Interim Personal Representatives Fees ........ 11-30
11.6-6
Attorney Fees ............................................................ 11-30
11.6-6(a) Request for Attorney Fees ............................ 11-30

11.6-6(b) Interim Legal Fees ........................................ 11-31
11.6-7
Costs ......................................................................... 11-32
11.7 OBJECTIONS TO THE FINAL ACCOUNTING................ 11-32

11.7-1
Who May Object....................................................... 11-32
11.7-2
Form of Objection .................................................... 11-32
11.7-3
Hearing on Objection................................................ 11-32
11.8 DISTRIBUTION OF ESTATE ASSETS.............................. 11-33

11.8-1
Partial Distribution ................................................... 11-33
11.8-1(a) Procedure for Partial Distributions ............... 11-34

11.8-1(b) Return of Distributed Property...................... 11-35
11.8-2
Final Distribution ...................................................... 11-36
11.8-2(a) General Judgment of Final Distribution ....... 11-37

11.8-2(b) Procedure for Distributions ........................... 11-38
11.8-2(c) Effect of Judgment ........................................ 11-40
11.8-2(d) Settlement Agreements ................................. 11-40
11.8-3
Offset and Retainer ................................................... 11-41
11.8-3(a) Defined .......................................................... 11-41

11.8-3(b) Procedure for Offset and Retainer ................ 11-41
11.8-3(c) Priority of Right ............................................ 11-42
11-3
2012 Revision
11.8-3(d) Defenses......................................................... 11-42

11.8-4
Disposition of Unclaimed Assets .............................. 11-42
11.8-4(a) Unclaimed Asset Defined .......................... 11-42

11.8-4(b) Procedure for Unclaimed Assets ................... 11-42
11.8-4(c) Receipt After Delivery of Unclaimed
Asset .............................................................. 11-43
11.8-4(d) Recovery of Unclaimed Asset ....................... 11-43
11.8-5
Distribution to Foreign Personal Representative ...... 11-44
11.8-6
Distribution to Persons Under Legal Disability ........ 11-44
11.8-6(a) Distribution to Minors ................................... 11-44

11.8-6(b) Distribution to Other Protected Persons ........ 11-45
11.9 DISCHARGE OF PERSONAL REPRESENTATIVE ......... 11-45
11.9-1
Procedure for Discharge of Personal

Representative ........................................................... 11-45
11.9-2
Exceptions to Release of Personal

Representative and Surety ......................................... 11-46
11.10 REOPENING THE ESTATE ................................................ 11-47

11.10-1 Grounds for Reopening an Estate ............................. 11-47
11.10-1(a) Subsequently Discovered Assets ................... 11-47
11.10-1(a)(1) In General ........................................ 11-47
11.10-1(a)(2) Small Estates ................................... 11-48
11.10-1(a)(3) Amending Tax Returns ................... 11-48
11.10-1(b) Intestate EstateWill Later Discovered ....... 11-49
11.10-1(b)(1)In General ........................................ 11-49
11.10-1(b)(2)Recovering Assets Already
Distributed ....................................... 11-49
11.10-2 Personal Representative for Reopened Estate........... 11-50
11.10-3 Procedure for Reopening an Estate ........................... 11-50
11.10-4 Prior Claims............................................................... 11-51
Appendix 11A Asset Schedule ........................................................ 11-52
Appendix 11B
11-4
2012 Revision
Receipts and Disbursements ................................... 11-53
Form 11-1
Annual or Other Accounting .................................. 11-55
Form 11-2
Final Accounting and Petition for General

Judgment of Final Distribution .............................. 11-63
Form 11-3
Notice for Filing Objections to Final

Accounting and Petition for General
Judgment of Final Distribution .............................. 11-72
Form 11-4
Verified Statement in Lieu of Final

Accounting and Petition for Judgment of
Final Distribution ................................................... 11-74
Form 11-5
Receipt for Partial Distribution .............................. 11-79
Form 11-6
Deed of Personal Representative ........................... 11-81
Form 11-7
Final Distribution Receipt ...................................... 11-84
Form 11-8
Report of Unclaimed Assets .................................. 11-86
Form 11-9
Order of Escheat (of Unclaimed Assets) ............... 11-88
Form 11-10
Receipt for Unclaimed Assets ................................ 11-90
Form 11-11
Supplemental Judgment Discharging Personal

Representative and Closing Estate ......................... 11-92
Form 11-12
Order Directing Notice of Petition to Reopen

Estate ...................................................................... 11-94
Form 11-13
Notice of Petition to Reopen Estate ....................... 11-96
Form 11-14
Order Reopening Estate ......................................... 11-98
Form 11-15
General Judgment Approving Final Account

and Authorizing Final Distribution ...................... 11-101
Form 11-16
Statement for Attorney Fees and Costs................ 11-105
Form 11-17
Petition to Reopen Estate ..................................... 11-110
11.1
INTRODUCTION
The accounting to the court and beneficiaries and the petition for a
judgment of final distribution are the culmination of estate administration. See ORS 116.093. The beneficiaries and the court will closely
review the documents to be sure that the estate was properly administered.
11-5
2012 Revision
The probate code describes the personal representatives legal

obligations, and the personal representative may be liable for failing to
carry them out properly. See ORS 116.063; see also chapter 7. Moreover,
if any issue or expense is not addressed in the accounting or by distribution, the personal representative will find, at best, a delay and, at
worst, additional expenses and insufficient estate funds with which to pay
them. Subject to some exceptions, the approval of the accounting will
absolve the personal representative (and the surety) of liability for
administering the estate. ORS 116.213. The lawyer for the personal
representative will show his or her skill and professionalism in carrying
out these tasks.
11.2
WHEN AN ACCOUNTING IS REQUIRED
An accounting is required under the following circumstances:

(1) Annual accountingUnless the court orders otherwise, the
personal representative must file an account annually within 60 days
after the anniversary date of the personal representatives appointment,
ORS 116.083(1)(a);
(2) Final accountingA final accounting is required when the
estate is ready for final settlement and distribution, ORS 116.083(1)(c);
(3) Interim accountingAn interim accounting is required 30
days after the removal or resignation of the personal representative, ORS
116.083(1)(b); and
(4) Court orderA court may also require an accounting at
other times, ORS 116.083(1)(a), (d).
There is no statutory requirement for an accounting on a petition
for partial distribution. ORS 116.013.
NOTE: Each accounting must include a declaration under
penalty of perjury in the form required by ORCP 1 E. ORS
111.205.
The text of this chapter is followed by forms, including the following accounting forms:
11-6
2012 Revision
(1)
Annual or Other Accounting, Form 11-1;
(2) Final Accounting and Petition for General Judgment of Final

Distribution, Form 11-2;
(3) Notice for Filing Objections to Final Accounting and
Petition for General Judgment of Final Distribution, Form 11-3; and
(4) Verified Statement in Lieu of Final Accounting and Petition
for Judgment of Final Distribution, Form 11-4.
11.3
FINAL ACCOUNTING
11.3-1 Introduction
A final accounting of the estate can occur when all estate business
has been completed and the personal representative is prepared to report
his or her actions to the court and request a final distribution. ORS
116.083(1)(c).
As a practical matter, most estates are open less than one year, and
the final accounting, with a petition for fees and for a judgment of
distribution, occurs within that year and without any need for an interim
or annual accounting.
See Form 11-2 (Final Accounting and Petition for General
Judgment of Final Distribution).
11.3-2 Summary of Tasks
When the estate is ready for final settlement and distribution, the
personal representative must be sure to have completed all necessary
tasks of the estate administration. These tasks include those discussed
below:
(1) Payment or settlement of claims. The personal representative
must have paid or settled claims against the estate. ORS 116.083(4)(b);
see ORS 115.003.
(2) Payment of taxes. The personal representative must have
paid all Oregon income taxes, estate taxes, and personal property taxes.
ORS 116.083(3)(a), 116.113(2); see ORS 118.010.
11-7
2012 Revision
(a) Individual income taxes. The personal representative should

file the decedents personal income or other tax returns for the year in
which the decedent died. Moreover, the personal representative should
review past yearscertainly the past three yearsto determine unpaid
liability and should consider requesting a determination from the taxing
authorities that no liability is pending.
(b) Estate taxes. If a federal estate tax or Oregon estate tax
return is due (before January 1, 2012, the Oregon estate tax was known
as the Oregon inheritance tax), whether or not a tax is payable, the
personal representative must file the return and pay the tax, if any, before
filing a final accounting. See 7.6-4 to 7.6-4(b).
(c) Estate fiduciary income taxes. The personal representative
must file the income tax returns for the estate for income earned from the
decedents date of death until distribution of the decedents assets. If a
fiduciary return is due before the final accounting, it must be filed before
the accounting. But if income continues to accrue to the date of distribution, an income tax return will be due after the estate has been
distributed, because the estate must report all income through the distribution date. This postdistribution filing tends to be the exception to the
general proposition that all estate business must be completed before the
distribution. It also may require the personal representative to retain a
reserve of funds, usually in the estates name, to pay for the costs of
preparing a tax return, or to pay those costs in advance.
COMMENT: The tax obligations of an estate are beyond the
scope of this chapter, and the lawyer should look at separate
material for that information. See chapters 1214. The lawyer
should consider filing IRS Form 4810, Request for Prompt Assessment Under Internal Revenue Code Section 6501(d); IRS Form
5495, Request for Discharge from Personal Liability Under
Internal Revenue Code Section 2204 or 6905; and ODR Form 150101-151, Election for Final Tax Determination for Income Taxes
and Application for Discharge from Personal Liability for Tax of a
Decedents Estate.
11-8
2012 Revision
(3) Control of assets and filing of inventory. The personal

representative must have filed timely inventories listing all property of
the estate that came into the possession or knowledge of the personal
representative. ORS 113.165, 113.175. See chapter 7.
(4) Identification of beneficiaries. The personal representative
must have identified all heirs, devisees, and interested persons. ORS
116.083(3)(b); see also ORS 113.035, 113.145, 113.155. See 2.5-1 to
2.5-6, chapter 7.
(5) Notices. The personal representative must comply with the
notice requirements set forth in the probate code. For example, the
personal representative must give certain information to heirs, devisees,
interested persons, the Department of Human Services, and the Oregon
Health Authority. ORS 113.145, 113.155. See 7.3-1(a) to 7.3-3(b); see
also 2.5-1 to 2.5-6.
(6) Other necessary tasks. The personal representative must
complete anything else that is necessary to properly distribute the estate.
This responsibility may include selling estate assets to meet the costs of
administration of the estate or to be able to distribute estate assets without
difficulty. See ORS 116.083(2)(f).
11.3-3 Unresolved Issues
If any issue or dispute is unresolved, the personal representative
should disclose it to the beneficiaries and the court early on, and not wait
until the final account to do so. To wait until the end is to risk missing tax
deadlines, incurring additional fees that have to be petitioned for, and
running past court deadlines. Instead, the personal representative should
consider petitioning for instructions in advance of the final account
pursuant to ORS 114.275. This broad statute allows the personal representative to set the issue for notice and a court determination in the
absence of an agreement. Examples of issues that can arise for resolution
are the interpretation of a clause in a will, the inclusion of an asset in the
probate estate, and the sale of a difficult asset.
11-9
2012 Revision
11.3-4 Accounting Options

Pursuant to ORS 116.083, the personal representative may choose
between two types of final accountingsordinary accounting or
consent accounting. See 11.3-4(a) to 11.3-4(b).
11.3-4(a)
Ordinary Accounting
The first type of accounting is what the lawyer would refer to as

the ordinary accounting. This accounting must meet the detailed
requirements of the statute, the Uniform Trial Court Rules, and any
relevant supplementary local rule. See ORS 116.083(2); UTCR 9.010
et seq. In summary, an ordinary accounting consists of a narrative (see
11.4-1 to 11.4-6), an asset schedule (see 11.5-3 to 11.5-3(d)), and
lists of receipts and disbursements (see 11.5-4(a) to 11.5-4(e)).
Notice of the final account and the right to file objections to it must
be given to heirs (if the estate is intestate), devisees (if testate), unpaid
creditors, and persons asserting claims against the estate. ORS 116.093.
See Form 11-3.
This type of accounting is discussed in 11.4-1 to 11.4-6.
COMMENT: Although not addressed in the statute, it is
accepted practice that no notice needs to be given to beneficiaries
who have already received their distributive share (e.g., in a partial
distribution).
11.3-4(b)
Consent Accounting
The second type of accounting (see 11.3-4) is referred to as a

consent accounting, a short form accounting, or a verified statement accounting. ORS 116.083(4). See Form 11-4. It is not an accounting at all; rather, it is a statement prepared by the personal representative
and filed with written consents signed by all of the distributees. No notice
is required.
This type of accounting must comply with relatively limited
statutory requirements. ORS 116.083(4) provides that the statement must
include the following:
(1)
11-10
2012 Revision
The period of time covered by the statement;
(2) A statement that all creditors have been paid in full other
than creditors owed administrative expenses that require court approval;
(3) A statement that all Oregon income taxes, estate taxes, and
personal property taxes have been paid or that other provisions have been
made, and that all required tax returns have been filed; and
(4) A petition for a general judgment authorizing distribution to
the proper persons and in the proper proportions.
Obviously, the accounting must also address the other issues relevant to closing an estate, the personal representatives fee, and attorney
fees.
PRACTICE TIP: The consent accounting is cheaper and faster
than an ordinary accounting (see 11.3-4(a)). Therefore, the lawyer
should discuss this option with the personal representative.
PRACTICE TIP: Beneficiaries will most expeditiously sign a
consent accounting if the accounting or cover letter contains more
information than the minimum required by statute. Consequently,
the lawyer should consider adding more information to the
statement, including a list of current assets and values, a summary
of important transactions, an explanation of the calculation of the
personal representatives fee, etc. Although adding this information adds time to the preparation of the accounting, it may still be
cost effective to do so.
11.4
NARRATIVE OF THE FINAL ACCOUNTING
11.4-1 Introduction
The ordinary accounting has a number of technical requirements
set forth in ORS 116.083(2) and UTCR 9.160 et seq. See also Form
9.160, UTCR Appendix of Forms. What binds the accounting together,
however, is the personal representatives narrative. The court regularly
says that it wants to read a story of what occurred in the estate.
Beneficiaries say that they want to understand what they are reading. The
narrative is the place to relate that story in an understandable manner, and
to justify the professional fees. It is also the place where the rules require
11-11
2012 Revision
the personal representative to address certain issues relevant to estate

administration. See 11.4-2 to 11.4-6.
11.4-2 Term of Accounting
The accounting narrative must include the first and last day of the
accounting period. For annual accountings, the last day of the accounting
period must be within 30 days of the anniversary of the personal representatives appointment, unless the court grants permission otherwise.
UTCR 9.160(1)(a); ORS 116.083(2)(a).
COMMENT: This 30-day window allows the personal
representative flexibility in picking the accounting date for the
sake of expediency. For example, the last day of the month may be
used, or the date on which the day-to-day bank account statement
summarizes account activity.
For annual accountings, the accounting is due within 60 days of
the anniversary of the personal representatives appointment. ORS
116.083(1)(a).
11.4-3 Requirement of a Bond
The narrative of the final account must address the issue of the
bond. UTCR 9.160(1)(b). See 5.2-6(a) to 5.2-6(d). A bond is a contract
with a surety for a stated sum to warrant the personal representatives
faithful performance of his or her duties. See ORS 113.105(1).
The lawyer ordinarily arranges for the bond. The estate pays the
bond premiums, and the size of the bond premium is directly related to
the value of assets and income that need to be bonded. ORS 113.105(2).
Most wills waive the bond requirement. Intestate estates generally
require a bond. Some institutional personal representatives are exempted
from a bond. ORS 113.105(1). A court may also waive the bond
requirement, but only under certain narrow circumstances. ORS
113.105(4). (The lawyer should not attempt to have the bond waived
under circumstances other than those described in the statute.) Also, a
personal representative who is a sole heir or devisee of the estate need
not be bonded. ORS 113.105(1).
See 11.4-3(a) to 11.4-3(b).
11-12
2012 Revision
11.4-3(a) If No Bond Is Required

If no bond has been required, a statement must be included at the
beginning of the accounting that the fiduciary was not required to file a
bond and the reason therefor (e.g., the bond requirement was waived in
the will or by a statute), or that the bond requirement was waived by
order of the court and the date of that order. UTCR 9.160(1)(b).
11.4-3(b) If Bond Is Required
If a bond has been required, the narrative of the accounting must state
the current amount of the total bond. UTCR 9.160(1)(b). The narrative
must also provide additional information to assist the court and interested
persons in determining whether the bond amount is sufficient. UTCR
9.160(1)(b)(i)(vii).
COMMENT: In effect, the additional information required by
UTCR 9.160(1)(b)(i)(vii) amounts to a formula. This formula is
supposed to force lawyers into calculating the statutory bond
amount in conservatorships, but it is also relevant to estates of
decedents.
PRACTICE TIP: The formula can be adjusted to reflect other
items relevant to the setting of the bond, such as partial distributions and legal and fiduciary fees about to be approved and
paid. The critical issue is to explain a bond amount that reasonably
protects interested persons.
11.4-3(c) Restriction of Assets in Lieu of Bond
Assets are often restricted in lieu of posting a bond. See ORS
113.115. Any asset restricted by court order must be identified in the
accounting (or inventory) as restricted with reference to the date and title
of the order imposing the restriction. UTCR 9.050. A notation of the
restriction must be included in the asset schedule. UTCR 9.160(2)(a)(i).
PRACTICE TIP: A final accounting of an estate that includes
restricted assets may run into a distribution difficulty if the judgment of distribution does not explicitly remove the restriction
before distribution.
11-13
2012 Revision
11.4-4 Changes in Assets or Finances

The narrative must include a description of any changes in the
assets of the estate if not clearly shown in the asset schedule. UTCR
9.160(4). This is a codification of the desire of the court and the beneficiaries for a story of what occurred in the estate.
EXAMPLE: The sale of the decedents rental property at 999
Going St., Wagontire, Oregon, was closed on August 15, 2012. A
copy of the Sellers Statement provided by ABC Title Company is
provided as Exhibit __. The net sale proceeds in the sum of $9,999
were deposited on August 23, 2012, in the Bank of Sublimity,
account number 789.
EXAMPLE: The checking account balance noted in the
Inventory for Murchins Bank, account number 890, for October
12, 2012, was erroneously listed as $14.99. The correct balance
was $1,499,000.
EXAMPLE: The decedents 1967 Renault 10 was placed on
consignment at Classic Cars, LLC, in Gresham, Oregon. On
approximately September 1, 2011, while being test driven by a
potential buyer on Scenic Vista Highway, the car was destroyed in
a collision with a horse. Insurance proceeds were received for the
full value of the car in the sum of $3,990 and deposited in the
estate checking account at Homebody Bank on June 3, 2012. The
owner of the horse threatened to bring a lawsuit against the estate,
but legal counsel ascertained that the liability of the estate was
nonexistent because the horse and the driver shared fault. The
estate has secured a release from the potential plaintiff.
The narrative should also include information that may not be asset
specific, such as the existence of a parallel trust, nonprobate issues, or an
ancillary probate estate.
11.4-5 Fiduciary Disclosure
The narrative of the accounting must specifically disclose and
explain (1) gifts, (2) transactions with a person or entity with whom the
fiduciary has a relationship which could compromise or otherwise affect
11-14
2012 Revision
decisions made by the fiduciary (conflict-of-interest situations), and (3)

payments for goods or services provided either by a person who is not
ordinarily in business or at a higher amount than that ordinarily charged
to the public. UTCR 9.170.
COMMENT: This rule was created to apply
conservatorships but also applies to decedents estates.
to
EXAMPLE: Two common situations are (1) the sale of an

estate asset to a beneficiary or the personal representative, and
(2) the personal representatives reimbursement of his or her own
expenses. A less common situation occurs when the personal
representative may have breached his or her fiduciary duty. These
situations should be explained in detail.
11.4-6 Information Required in Judgment
The narrative of the accounting should address the statutory
requirements for a final judgment of distribution set forth in ORS
116.113.
The judgment must designate the recipients of estate assets
whether by intestate succession, by the will, or by a court-approved
agreementand the portion of the estate or property to which each
distributee is entitled. ORS 116.113(1). If distribution nuances are
present, especially a distribution that diverts from the will or intestate
succession (whichever is relevant), they also need to be addressed. ORS
116.113(3).
PRACTICE TIP: It is helpful for the personal representative to
follow the wording of any will when listing beneficiaries and their
interests or property.
A judgment, and therefore an accounting, should also contain
findings regarding advancements, a surviving spouses election against
the will, renunciation, lapse, and other issues listed in the statute. ORS
116.113(1).
11-15
2012 Revision
11.5
FINANCIAL INFORMATION OF THE ACCOUNTING
11.5-1 Background and Authority

The statutory requirements for financial accounting in estates are
found in ORS 116.083(2). Under prior law, the lack of specifics in the
statutes led to a great variety of accounting formats, unscrupulous
fiduciaries blurring or hiding their actions, and difficulty for the court and
beneficiaries when reviewing or auditing the accountings. Because of
these problems, the legislature gave the Chief Justice of the Oregon
Supreme Court authority to specify the form and content of probate
accountings. ORS 116.083(6). The Estate Planning Section and the Elder
Law Section joined the Uniform Trial Court Rules Committee to pass
new accounting requirements that became effective on August 1, 2000.
Amendments improving the rules and a new sample form were approved
by the chief justice and became effective August 1, 2001. These rules
flesh out the statute addressing accountings and should be carefully
studied.
The new accounting rules are found in UTCR chapter 9, and the
sample form is in the UTCR Appendix of Forms. They can be found at
the Oregon Judicial Departments Web site, <http://courts.oregon.gov/
OJD/reference/index.page?> (click on Court Rules and then click on
Current UTCR Rules).
COMMENT: Form 9.160 in the UTCR Appendix of Forms is
a compromise, in that it addresses both probate estates and conservatorships. The lawyer must expand on the form to meet all the
necessities of an estates final account.
11.5-2 Rules Are Flexible
Because of the variety of individual and court practices around the
state, the Uniform Trial Court Rules Committee (see 11.5-1) had several
concerns about imposing a standardized format. One concern was
whether counties with smaller populations and a high percentage of
general lawyers should be forced into standardized accounting requirements. Another concern was that lawyers in any county should be able to
satisfy the rules of another county. Another concern was that a clear,
concise, and easily audited accounting should not be rejected merely
11-16
2012 Revision
because it failed to meet the form requirement. The solution to these

issues was to allow flexibility in the use of the Uniform Trial Court Rules
(UTCRs). Thus, the UTCRs provide as follows:
(1) Accountings prepared in substantial compliance with the
UTCRs must be accepted in all judicial districts, UTCR 9.160;
(2) A supplementary local rule (SLR) may make the format of
the UTCRs mandatory, and SLR 9.161 is reserved for this purpose,
UTCR 9.160; and
COMMENT: Multnomah, Lane, Marion, and Clackamas
Counties have made the format of UTCR 9.160 mandatory. SLR
9.161 (Multnomah, Lane, and Marion); SLR 9.165 (Clackamas).
Washington County has not adopted SLRs on point, but seems to
enforce the requirements of UTCR 9.160.
(3) A court in its discretion may allow other forms of
accountings, UTCR 9.160(5).
PRACTICE TIP: Although the court may accept other forms of
accountings, court staff in the tri-county area of Portland have
emphasized that an accounting in accordance with the rules will be
easier to audit and will expedite the processing of judgments.
11.5-3 Asset Schedule
The essence of the financial accounting is a separate asset schedule
that shows all property of the estate owned at any time during the term of
the accounting period. UTCR 9.160(2). The asset schedule may be
included in either the accounting narrative or an exhibit to the
accounting. See Form 9.160, UTCR Appendix of Forms. See also
Appendix 11A. For purposes of the schedule, UTCR 9.160(2)(e) provides
that the side margins may be one-half inch and font size may be no
smaller than 10 point type.
COMMENT: The asset schedule should be a summary of
estate assets and not an accounting with receipts and disbursements, contrary to the way some lawyers read the rule.
11-17
2012 Revision
11.5-3(a) Five-Column Requirement

The asset schedule in an accounting must have at least five
columns. UTCR 9.160(2)(a). These columns are described in 11.53(a)(1) to 11.5-3(a)(5). See Appendix 11A.
11.5-3(a)(1)
First Column: All Assets
The first column must describe all assets in existence at any point
during the accounting period. See Appendix 11A.
The description of several types of assets must include additional
information:
(1) The description of any asset that has been restricted by court
order must be identified as restricted and must include the date and title
of the order imposing the restriction (see UTCR 9.050; 11.4-3(c));
(2) The description of any asset acquired or disposed of during
the accounting period must include the date of acquisition or disposal;
and
(3) The description of any depository account must include a
reference to the exhibit or paragraph containing the statement of receipts
and disbursements for the account (if relevant).
UTCR 9.160(2)(a)(i).
COMMENT: These additional requirements to the asset
schedule were placed in the first column because they might
sabotage some accounting computer software if placed in another
(perhaps more relevant) column.
11.5-3(a)(2)
Second Column: Value at the Beginning

of Accounting
If the asset was in the estate at the beginning of the accounting

period, and presumably listed in the inventory or in the previous
accounting, that assets initial value should appear in the second column.
UTCR 9.160(2)(a)(ii). See Appendix 11A.
PRACTICE TIP: Often, in an accounting, it is discovered that
the inventory value is incorrect. This error can be corrected in this
11-18
2012 Revision
column with an explanation. If the error is significant, perhaps it

should also be explained in the narrative of the accounting.
11.5-3(a)(3)
Third Column: Value of Later-Acquired Asset
If the asset was discovered, found, purchased, or otherwise

acquired after the beginning of the accounting period, the third column
must state the value at, and the date of, acquisition. UTCR 9.160(2)(a)(i),
(iii). See Appendix 11A.
COMMENT: The distinction between a second-column
beginning asset (see 11.5-3(a)(2)) and a third-column lateracquired asset has been a source of confusion. The drafters of the
Uniform Trial Court Rules intended that the later-acquired (thirdcolumn) asset would be one with a new label and not the increase
in value or addition to an existing asset. The critical issue,
however, is that all assets appear in the asset schedule, and not
necessarily in the most appropriate column for a particular asset.
EXAMPLES: Examples that show differences between
second-column beginning assets and third-column later-acquired
assets are as follows:
(1) A land sale contract is sold or pays out, and the proceeds are invested in a new bank or brokerage account. This new
account is a later-acquired asset. (If the proceeds were deposited in
an existing bank or brokerage account, the account would not be a
later-acquired asset. Instead, an initial asset would be shown as
having grown in value.)
(2) Proceeds from the sale of a house that are invested in
a new bank or brokerage account are a later-acquired asset.
(3) If a bond matures and the funds are used to purchase a
new Treasury direct account, that account is a later-acquired asset.
(4) If a bond had been held in an existing brokerage
account, and the proceeds are kept in the same brokerage account,
albeit in another form, such as by the purchase of a new bond, then
it is unclear whether the new bond is a later-acquired asset. One
answer is that the brokerage account is the asset, and no asset is
11-19
2012 Revision
later-acquired. Another answer is that the new bond is a lateracquired asset. The latter answer would apply if the accounting
specifically detailed the contents of the brokerage account.
(5) If the bond had been held in certificate form rather
than in a brokerage account, and the proceeds were deposited in an
existing bank account, no asset would be later acquired.
(6) Further confusion exists with the discovery of an asset
already in existence, but left off the inventory. An example is a
savings bond in the decedents name. Because it was in existence
at the start of the estate, it might be listed as a second-column
asset. However, because it was found (acquired) by the personal
representative later, it should be a third-column asset.
(7) Another gray area involves the establishment of estate
accounts from existing accounts of the decedent. Perhaps the best
approach is to show the decedents account in existence at the time
of the appointment of the fiduciary as a second-column asset; but
the transfer of the asset to a new account after appointment of the
personal representative makes the new account a third-column
asset.
11.5-3(a)(4)
Fourth Column: Value at Disposition
If the asset was sold, redeemed, gifted, lost, abandoned, or otherwise disposed of before the end of the accounting period, the fourth
column must state the value at, and date of, disposition. UTCR
9.160(2)(a)(iv). See Appendix 11A.
EXAMPLE: A $100 car transferred to a nephew (presumably
by unanimous agreement and not to circumvent creditors) is a
fourth-column asset. The value shown in the fourth column would
be $100 because that was the value at disposition.
EXAMPLE: Household furniture sold at an estate sale is a
fourth-column asset, with the sale proceeds appearing in the fourth
column. The sale proceeds, if deposited in an existing account,
would appear as a receipt in the list of receipts and disbursements,
11-20
2012 Revision
rather than in this schedule. If the sale proceeds were used to open
a new account, the new account would appear in the third column.
11.5-3(a)(5)
Fifth Column: Current Value
If the asset is in existence on the last day of the accounting period,

the fifth column must state the current value. This column, in turn, will
become the second column for the next accounting or the statement of
current assets to be distributed. UTCR 9.160(2)(a)(v). See Appendix
11A.
11.5-3(b) Sum of Each Column
The sum of the second through fifth columns (see 11.5-3(a)(1)
to 11.5-3(a)(5)) must be totaled at the bottom of each of those columns.
UTCR 9.160(2)(b). See Appendix 11A.
COMMENT: The sum of the second column will be the sum
shown in the inventory or last accounting (unless adjusted by some
reporting error). The sum of the fifth column will be the current
value. These two figures should be helpful in preparing and
auditing the account. The sums of the third and fourth columns will
not correlate mathematically to the second or fifth column, but
may be helpful to reviewers of the accounting.
11.5-3(c) Additional Information
The schedule may include additional information that would aid in
accounting for assets. UTCR 9.160(2)(c). The rule gives the following
examples of such additional information: original cost, increase or
decrease in value, the source of an acquisition or the reason for
disposition of assets. UTCR 9.160(2)(c).
COMMENT: Only a small amount of information is needed
because this schedule is a summary. See Appendix 11A.
11.5-3(d) Household Goods
The value of household goods and personal belongings may be
totaled on one line in the asset schedule. UTCR 9.160(2)(d).
11-21
2012 Revision
11.5-4 Receipts and Disbursements for Depository Accounts

11.5-4(a) Accounting for Receipts and Disbursements
The personal representative must account for receipts and
disbursements to and from estate depository accounts. UTCR 9.160(3).
See Appendix 11B. UTCR 9.180(3) defines the term depository as an
entity holding assets of the estate . . . , including a bank, stock and bond
broker, mutual fund, or similar entity.
The following rules apply to accounting of receipts and
disbursements for each depository account:
(1) Each depository account must be accounted for separately.
For each depository account, the receipts and disbursements must be
separately listed in chronological order, with the date and value of each
transaction. UTCR 9.160(3)(a). The total of each list of receipts or
disbursements must be provided at the end of each list. UTCR
9.160(3)(a).
COMMENT: The preparation and auditing of an accounting
are simplest when each account is handled separately. The national
trend, and the practice of a small number of Oregon lawyers, has
been to combine receipts and disbursements of all accounts in the
estate into one list. The Uniform Trial Court Rules Committee
specifically rejected this approach.
(2) Each receipt in the account must show the source and briefly
explain the source or purpose of the entry. The first entry in the list of
receipts must be the beginning balance of the account. UTCR
9.160(3)(b).
(3) Each disbursement must show the payee or recipient and
briefly explain its purpose. If the disbursement is by check, the name on
the check must match the name on the disbursement. UTCR 9.160(3)(c).
(4) A sale of real property must be evidenced by a copy of the
sellers closing statement from escrow or, if none is available, third-party
documentation of the details of the transaction. UTCR 9.160(3)(d).
11-22
2012 Revision
(5) Any transfers between depository accounts must be so

labeled with reference to the source or destination of the deposit or
withdrawal. UTCR 9.160(3)(e).
COMMENT: Transfers within accounts or to other accounts
have been a primary confusion in the preparation and auditing of
accountings. They have also been used to hide misappropriation.
PRACTICE TIP: The statutory requirement for receipts and
disbursements has always created a lot of difficult work in the
accounting of complicated brokerage and mutual fund accounts.
These accounts can be indecipherable even to the most experienced lawyers. Regularly, lawyers ignore the requirement and just
provide beginning and final values. This rule for transfers suggests
even more work. The authors, after consultation with court staff,
believe that the lawyer should take a practical approach to these
strict requirements. In a number of situations, the court may
require only the accounting of funds entering or leaving the brokerage or mutual fund account, rather than an accounting of all the
internal activity within the account.
(6) The side margins of this schedule may be one-half inch and
font size may be no smaller than 10 point type. UTCR 9.160(3)(g).
(7) Any difference between the closing balance shown for the
account in the accounting and the closing balance shown for the account
in a depository statement must be reconciled. UTCR 9.160(3)(f). See
11.5-4(b).
11.5-4(b) Reconciliation of Account Balances
As mentioned in 11.5-4(a), the accounting of receipts and
disbursements must reconcile any difference between (1) the account balance shown on the list of receipts and disbursements, and (2) the account
balance shown on the depository statement filed with the accounting.
UTCR 9.160(3)(f). See Appendix 11B. Typically, the difference reflects
checks written but not yet negotiated.
The form in the UTCR Appendix of Forms, although not the rules,
calls for an internal reconciliation of the receipts and disbursements. This
11-23
2012 Revision
reconciliation is highly technical and is difficult to describe in text. In

summary, the list of receipts must include (1) a total of the receipts plus
the opening balance, (2) an ending balance, which is the total of the
receipts and the opening balance minus disbursements, and (3) a total of
the disbursements plus the ending balance. See the example below and in
the forms in this chapter. If the mathematics is correct, then (1) and (3)
will be the same number.
Example:
Receipts:
Beginning Balance of Account:
$7
Receipt A
$3
Receipt B
$5
Receipt C
$9
Total Receipts
$17
Total Receipts Plus Beginning Balance

of Account
$24
Disbursements:
Disbursement D
$6
Disbursement E
$8
Disbursement F
$2
Total Disbursements
Ending Balance of Account
Total Receipts$17,
Plus Beginning Balance$7,
Minus Total Disbursements$16
Total Disbursements Plus Ending Balance
$16
$8
$24
This final figure should equal Total Receipts Plus Beginning

Balance (above). If it does not, the account is not reconciled.
11-24
2012 Revision
COMMENT: Not surprisingly, conversations with court staff

confirm that lawyers often ignore the above reconciliation.
11.5-4(c) Vouchers
With certain exceptions, an account of the personal representative
must include vouchers for disbursements made during the period covered
by the account. ORS 116.083(2)(d); UTCR 9.180. See Appendix 11B.
Vouchers are documents evidencing each disbursement and
showing the name of the payee, date, and amount. UTCR 9.180(1).
The most common voucher is a canceled check. Vouchers required
by the court or a statute must either accompany the accounting as a
separate exhibit or be attached to a cover page showing the case caption.
UTCR 9.180(1).
COMMENT: The statutory requirement for filing vouchers is
in contrast with the banking trend away from vouchers and toward
copies of checks, on-line banking, electronic transfers, and payments and debit card transactions. Unfortunately, the statute offers
little flexibility. Each case has to find its own compromise. One
option for firms that control the estate checkbook is on-line banking, where copies of negotiated checks can be printed by a
computer. Another option is to request a waiver of the voucher
requirement. In all events, the lawyer should determine what is
allowed by the local court.
COMMENT: Courts do not want vouchers attached directly to
the accounting narrative. Attachment makes the pleading difficult
to audit and store, and complicates the return of the vouchers (see
UTCR 9.190).
NOTE: If the personal representative is a bank or trust
company, the rules regarding the filing of vouchers are different.
See ORS 116.083(2)(d), 709.030.
11.5-4(d) Depository Statements
A depository statement is a statement from a bank, brokerage firm,
mutual fund, insurance company, or similar entity in which estate assets
are deposited, evidencing the balance in the account during a given
11-25
2012 Revision
period of time. See UTCR 9.180(3). The most common depository statement is a monthly bank statement. Unless the fiduciary is excused from
the requirement of filing vouchers (see 11.5-6), opening and closing
depository statements for the accounting period must be filed with the
accounting. UTCR 9.180(2). See Appendix 11B.
COMMENT: The rule specifically states that copies of
vouchers and depository statements do not need to be served on
persons who are entitled to notice. UTCR 9.180(4).
11.5-4(e) Sale of Real Property
A sale of real property must be evidenced by a copy of the sellers
closing statement from escrow or, if none is available, third-party
documentation of the details of the transaction. UTCR 9.160(3)(d). See
Appendix 11B.
11.5-5 Paragraph or Exhibit
The rules allow both the asset schedule and the list of receipts and
disbursements to be included either as separate paragraphs in the narrative or as exhibits to the accounting. UTCR 9.160.
11.5-6 Trust Companies as Personal Representatives
A trust company acting as a personal representative is exempt from
some of the accounting requirements. For example, a trust company is
exempt from filing the chronological list of receipts and disbursements,
from providing a five-column asset schedule (trust companies only need
to provide a two-column schedule), and from filing vouchers. UTCR
9.160(3)(h), (2)(f); ORS 116.083(2)(d). Instead, a trust company acting
as a personal representative may provide a chronological list of receipts
and disbursements, with a total for the amount of receipts and a total for
the amount of disbursements. UTCR 9.160(3)(h).
PRACTICE TIP: The lawyer should remind the court of these
exemptions in the narrative.
11-26
2012 Revision
11.6
OTHER ACCOUNTING ISSUES
11.6-1 Formalities
11.6-1(a) Declaration Under Penalty of Perjury
An accounting filed in an estate proceeding must include a
declaration under penalty of perjury, in the form required by ORCP 1 E,
made by the personal representative or the personal representatives
lawyer. ORS 116.083(2)(g), 111.205.
A declaration under penalty of perjury must:
(1)
Be signed by the declarant; and
(2) Include the following sentence in prominent letters

immediately above the declarants signature: I hereby declare that the
above statement is true to the best of my knowledge and belief, and that I
understand it is made for use as evidence in court and is subject to
penalty for perjury. ORCP 1 E.
11.6-1(b) InformationLawyer and Personal Representative
An accounting filed in an estate proceeding must include the
authors name, address, telephone number, fax number, if any, and, if
prepared by an attorney, the name, email address, and the Bar number of
the lawyer of record. UTCR 2.010(7). This information (typed or printed)
should appear on the last page of every accounting. See UTCR 2.010(6),
(7); see also UTCR 9.030 (regarding information required for petitions,
motions, and orders).
11.6-2 Notice of Accountings
11.6-2(a) Annual or Interim Accounting
Although annual and interim accountings are required as described
in 11.2, no notice to interested parties is required for these accountings
(unless the interim accounting is a final accounting for a personal
representative). ORS 116.083. The statutes do not require an order
approving the accounting. If such an order is sought, however, then
notice must be provided. ORS 111.215.
Many attorneys provide notice of the annual accounting in order to
air any disputed issues and to provide an order approving the accounting
11-27
2012 Revision
subject to the approval of the final accounting. Such an interim order

would not discharge the personal representative from liability for the
administration of the estate. See ORS 116.123.
11.6-2(b) Final Accounting
Upon filing the final account and petition for a judgment of
distribution, the personal representative shall fix a time for filing
objections thereto in a notice thereof. ORS 116.093(1). See Form 11-3.
This notice must be mailed to the persons described in ORS 116.093(1)
not less than 20 days before the time fixed for filing objections to the
final account. ORS 116.093(1). Proof of mailing the notice must be filed
in the estate proceeding. ORS 116.093(3). See 2.5-5 regarding proof of
notice. See Form 11-2.
COMMENT: The notice period for other petitions and orders
is 14 days. ORS 111.215.
11.6-3 Allocation of Income
When income-producing property is specifically devised or distributed unevenly among residuary beneficiaries, the accounting should
address the allocation of that income and the related expenses. ORS
116.007, 116.143. This explanation will prevent surprises at distribution.
11.6-4 Reserves to Pay Expenses of the Estate
The personal representative will request a distribution in a final
account and will subsequently need to prepare the fiduciary income tax
forms for the estate. See ORS 116.083(3). The distribution of estate
assets, if timely, will distribute income or loss to the beneficiaries, and
the estate will not pay a tax. However, the cost of preparing tax returns
will be paid from the estate, and the personal representative should retain
a reserve to pay the expenses. The purpose and the amount of the reserve
should be noted in the accounting, as well as that any remaining reserve
will be distributed to the remainder beneficiaries. In the alternative, some
attorneys will determine the exact cost of postdistribution tax preparation
and prepay it without the need for a reserve.
In addition to expenses for preparing tax returns, other expenses
may arise after a distribution. The attorney should consider retaining a
11-28
2012 Revision
reserve for these unknowns. These may include additional legal fees due
to unknown complications and delays. It is not unusual for a beneficiary
to be recalcitrant or for a new modest asset to be found.
11.6-5 Personal Representatives Fees
11.6-5(a) Statutory Fee
Unlike attorney fees, the personal representatives compensation is
set by statute based on a formula. ORS 116.173(1). For estates exceeding
$50,000, the fee is $1,630 for the first $50,000 of estate value, plus 2% of
the value of probate assets exceeding $50,000, plus 1% of the value of
nonprobate property, excluding life insurance. The formula set forth in
ORS 116.173(1) to arrive at the $1,630 figure is as follows:
($1,000 7%) + ($8,999 4%) + ($39,999 3%) = $1,630
The probate assets may include income and realized gains.
Multiple personal representatives must split the fee. ORS 116.173(1).
PRACTICE TIP: No pleading of the personal representative is
required.
NOTE: A personal representative may elect to waive the fee
in whole or in part. Because the fee is taxable income, this is
particularly true in a nontaxable estate in which the personal
representative is the sole beneficiary. But it is also a matter of
choice among some personal representatives who are family
members of the decedent.
COMMENT: The authors believe that the fees statutory
nature precludes objections from disgruntled beneficiaries on the
basis that the personal representative spent, in their estimation, too
little time administering the estate.
COMMENT: A beneficiary might have a valid objection to an
attorneys fee if the attorney performed tasks that are the personal
representatives duty.
The court also has discretion to allow additional compensation for
extraordinary services. ORS 116.173(2). See 11.6-5(b).
11-29
2012 Revision
11.6-5(b) Additional Compensation

In addition to the statutory fee (see 11.6-5(a)), the personal
representative may request further compensation for any extraordinary
and unusual services not ordinarily required of a personal representative.
ORS 116.173(2). See 2.8-4(a)(1). A supporting affidavit is required.
UTCR 9.060(3).
PRACTICE TIP: At least in the tricounty area, preparing and
selling a house is not considered extraordinary.
11.6-5(c) Interim Personal Representatives Fees
A personal representative may request an interim payment of
personal representatives fees. ORS 116.183. Typically, such a request is
made as part of a petition for partial distribution or an annual or interim
accounting.
PRACTICE TIP: As a matter of custom, a court will not allow
full payment of fees in advance, based on the premise that the
personal representative will have lost the financial incentive to
close the estate in a timely manner. Each county addresses this
limit differently. For example, some counties will allow the
payment of only 80% of fees earned to date. Other counties will
allow only 50%.
11.6-6 Attorney Fees
11.6-6(a) Request for Attorney Fees
The personal representatives accounting will also request attorney
fees, unless the fees are paid with nonprobate assets. The fees must be
reasonable in consideration of the factors set forth in ORS 116.183(1).
See 2.8-5. An affidavit must be filed in support of the fee request.
UTCR 9.060(2). The affidavit must comport with the form set forth in
Form 5.080 in the UTCR Appendix of Forms (Statement for Attorney
Fees, Costs, and Disbursements). UTCR 5.080. See Form 11-16.
COMMENT: On the issue of reasonableness, consider Judge
Charles E. Luukinens statement about a firm that diligently
poured itself into a probate case: I simply note that the evidence
on expenditure of time is voluminous and convincing. The evi11-30
2012 Revision
dence on the reasonable exercise of professional attorney judgment

on the expenditure of attorney resources is sorely lacking. The
Estate of N. R. Palanuk, Polk County Case No 92P4037 (citation
and quotation not verified by publisher).
PRACTICE TIP: An attorney who is serving in the dual
capacity of attorney and personal representative should inquire
about the custom in the county. In some counties, courts are
reluctant to grant both fees.
PRACTICE TIP: Like the accounting, the affidavit in support
of fees should tell a story and contain the necessary level of detail.
However, the attorney should balance detail with the fact that the
document will be a public filing. Additionally, in some counties,
billing statements are requested by the court, and in other counties,
they are not requested. Again, the lawyer must check local practice.
PRACTICE TIP: A common problem is how to handle the time
that the lawyer will spend between the completion of the final
account and the end of all estate tasks. Many lawyers estimate
future time in the final accounting and request authority for
payment in the judgment. The payment for the time actually
worked is a receivable, but the payment for future work is placed
in the lawyers trust account. Withdrawals are made as the work is
completed. If a balance of funds remains in the lawyers client trust
account at the completion of work, the estate is refunded the
difference. If the lawyer has performed work in excess of the
amount held in the client trust account, he or she may either write
off the fee or petition for additional fees. The lawyer may not pay
himself or herself the amount determined for future services in
advance of those services. OSB Formal Ethics Op No 2005-151.
See also Oregon RPC 1.15-1. See 11.6-4 regarding reserves to
pay expenses after distribution.
11.6-6(b) Interim Legal Fees
Lawyers commonly request attorney fees as part of an annual or
interim accounting. See ORS 116.013, 116.183(1). As with the interim
11-31
2012 Revision
payment of personal representative fees, local court custom should be

investigated.
11.6-7 Costs
Lawyers and personal representatives costs may be paid without
petition and order. See, e.g., ORS 114.265, 114.275, 114.305. Examples
of such costs are the court filing fee, the cost of a bond, letters
testamentary, publications, etc. The list of disbursements should note
these items. ORS 116.083(2). See 11.5-4(a) (disbursements).
11.7
OBJECTIONS TO THE FINAL ACCOUNTING
11.7-1 Who May Object

Persons entitled to notice under ORS 116.093 may file objections
to the personal representatives final accounting within the 20-day period
specified in the notice. ORS 116.103, 116.093. See 11.6-2(b).
Persons entitled to the notice under ORS 116.093 are (1) heirs,
(2) devisees, (3) creditors who have not been paid in full and whose
claims are not barred, and (4) [a]ny other person known to the personal
representative to have or to claim an interest in the estate being
distributed. ORS 116.093(1). See Waybrant v. Bernstein, 75 Or App
550, 706 P2d 1002 (1985).
11.7-2 Form of Objection
No particular form of pleading is required for an objection.
However, the statute requires that the objector specify the particulars of
the objection. ORS 116.103.
Supplemental objections may be filed, at least while the matter is
still in dispute. In re Roachs Estate, 50 Or 179, 200, 92 P 118 (1907).
11.7-3 Hearing on Objection
The court must set a hearing on objections to a final accounting.
ORS 116.103. See ORS 111.215.
On a determination that there is no just reason for delay, the court
in a probate hearing may enter a limited judgment for a decision on an
objection to an accounting. ORS 111.275(1)(c), (2). The judgment
11-32
2012 Revision
document need not reflect the courts determination that there is no just
reason for delay. ORS 111.275(2).
PRACTICE TIP: A clear trend exists toward alternative dispute
resolution in probate disputes. See SLR 9.016, 12.045 (Multnomah
County). If an objection to a final accounting is filed, the lawyer
should review pertinent supplementary local rules for the
mediation procedure, the various alternative dispute resolution
options, or for reasons to seek a waiver of mediation.
Supplementary local rules are online at <www.ojd.state.or.us/Web/
OJDPublications.nsf/SLR?OpenView&count=1000>.
PRACTICE TIP: Each county has its own procedure to set
hearings. The objector will need to pay a first-appearance fee, if
one has not been paid previously.
11.8
DISTRIBUTION OF ESTATE ASSETS
11.8-1 Partial Distribution

A partial distribution of estate assets will be allowed as long as
sufficient assets will remain in the estate to pay support for the spouse
and children, administration expenses, and all known unpaid creditors,
and as long as there will be no loss to creditors, the estate, or the
interested parties. ORS 116.013. If necessary to protect creditors, the
court may require that the personal representative post a bond to protect
creditors and other interested parties. ORS 116.023.
PRACTICE TIP: The personal representative should consider
making partial distributions in the following circumstances:
(1) To dispose of assets that are difficult and timeconsuming to manage, such as ongoing businesses, extensive rental
properties, or motor vehicles;
(2) To dispose of substantial cash not needed for administration purposes;
(3) To dispose of other income-producing assets, including stocks, bonds, and other securities;
11-33
2012 Revision
(4)
To dispose of other properties specifically devised;
(5)
To distribute income for income tax purposes.
and
PRACTICE TIP: The personal representative should not hold

liquid funds in amounts that exceed FDIC depository insurance
limits. If significant funds are on hand, the attorney should recommend CDARS (multiple certificates of deposit with different banks
all held in one depository).
NOTE: The personal representative should consider income
tax implications before making such distributions. For example,
because the individual beneficiaries income taxes are due and
payable on April 15 of the subsequent calendar year, income distributed in January has a tax due much later than income
distributed in December. The personal representative should obtain
a receipt from each distributee for filing with the court. See Form
11-5.
11.8-1(a) Procedure for Partial Distributions
The personal representative, or any other interested person, may
file a petition stating in substance that all the requirements for
distribution have been met, describing the property to be distributed, and
naming the persons to whom distribution should be made. Petitioners are
not required to wait any prescribed time before filing. In addition, the
petition should recite whether an undertaking is required, and whether
notice should be given or a hearing set by the court. ORS 116.013,
116.023. The petition must include a declaration under penalty of perjury
in the form required by ORCP 1 E. ORS 111.205. See 11.6-1(a).
On the filing of the petition, the court may require that notice be
given to interested parties and that a hearing be set on the petition. ORS
116.013. Notice to particular parties is not required by the statute. The
court may, in appropriate situations, dispense with notice and hearing.
The distribution of property pursuant to the court order is a full
discharge of the personal representative with regard to all property
11-34
2012 Revision
included in the order of the court, subject to the provisions of ORS

116.063. ORS 116.033.
NOTE: The personal representative is not the only party
allowed to petition for partial distribution.
PRACTICE TIP: See 11.8-6(a) to 11.8-6(b) regarding a
distribution to a minor or other protected person.
11.8-1(b) Return of Distributed Property
If property previously distributed is needed for the payment of
claims, administration expenses, or taxes, the personal representative
may petition the court to order the return of all or part of the property.
ORS 116.043.
Notice of hearing on the petition must be given to the distributees.
ORS 116.043. The notice must state the date, time, and place for the
hearing. ORS 111.215(1). Notice of the hearing may be given as follows:
(1) By mailing a copy to the distributee at least 14 days before
the date of the hearing; or
(2) By delivering a copy to the distributee personally at least
five days before the date of the hearing; or
(3) If the distributees address is unknown, by publication in a
newspaper of general circulation in the county where the hearing is to be
held, once a week for three consecutive weeks, with the last publication
at least 10 days before the date set for the hearing.
ORS 111.215.
NOTE: Notice must be given to the Oregon Department of
State Lands for any distributee whose address is unknown.
ORS 113.045.
NOTE: The court may change the requirements for notice of
the hearing. ORS 111.215(2).
Upon the hearing, the court may order the return of the distributed
property, or any part of it, or may require the distributee to pay its value
as of the time of the distribution. If the distributee fails to obey the order
within the time specified, the distributee may be adjudged in contempt of
11-35
2012 Revision
court, and judgment may be entered against the distributee and the
sureties, if any. ORS 116.043.
11.8-2 Final Distribution
The court may enter a general judgment of final distribution if the
following requirements are met:
(1) The personal representative filed in the estate proceeding a
final account meeting the requirements of ORS 116.083 and a petition for
a judgment of distribution (see ORS 116.093);
(2) Notice for filing objections to the final account and petition
was provided as required by ORS 116.093 (see 11.6-2(b));
(3) Any objections to the final account and petition have been
resolved, ORS 116.113(1) (see 11.7-1 to 11.7-3); and
(4) All Oregon income taxes, estate taxes, and personal property
taxes have been paid, or if not paid, payment of those taxes has been
secured by bond, deposit, or otherwise, and all required tax returns have
been filed, ORS 116.083(3)(a), 116.113(2) (see 11.3-2).
COMMENT: ORS 116.113(2) effectively requires a statement
in the judgment of final distribution that Oregon income and
personal property taxes, if any, have been filed and paid, or that
payment of such taxes has been secured by bond, deposit, or
otherwise.
PRACTICE TIP: Although ORS 116.113(2) does not mention
Oregon estate taxes, the judgment of final distribution should
contain a statement indicating payment of any estate tax or the
provision of security for payment. See ORS 116.083(3)(a).
PRACTICE TIP: Neither ORS 116.083 nor ORS 116.113
mentions the Oregon fiduciary income tax, which is included in the
references to Oregon income taxes. Because the fiduciary tax
returns normally must be prepared after final distribution, it is
advisable that the final account include a statement indicating that
these returns will be prepared and filed, and any tax paid, before
closing the estate. See 11.6-4 regarding setting aside a reserve to
pay taxes and tax-preparation fees. Many attorneys advise their
11-36
2012 Revision
personal representatives to file the fiduciary income tax returns

after the personal representative has been discharged and the estate
closed.
11.8-2(a) General Judgment of Final Distribution
Approval of the final account and the distribution of the estate is
made by the court in a general judgment of final distribution. ORS
116.113(1). See Form 11-15. In the judgment, the court:
(1) Approves the final account in whole or in part, ORS
116.113(1)(j);
(2) Designates the persons in whom title to property of the
estate available for distribution is vested and the portion of the estate or
property to which each is entitled under the will, by agreement approved
by the court, or by intestate succession, ORS 116.113(1); and
(3)
regarding:
Includes any special findings that the court may have made
(a)
Advancements;
(b)
Elections against the will by the surviving spouse;
(c)
Renunciations;
(d)
Lapses;
(e)
Adjudicated controversies;
(f)
Partial distributions, which must be confirmed or modified;
(g)
Retainers;
(h)
Claims unpaid but for which a special fund is established;
(i)
Contingent claims allowed but unpaid.
and
ORS 116.113(1).
A personal representatives deed must be recorded in the deed
records of the county where real property belonging to the estate is
situated. The execution of a personal representatives deed does not place
the personal representative in the chain of title to the property conveyed,
11-37
2012 Revision
unless the personal representative is also an heir, devisee, or claiming

successor to the property conveyed. ORS 116.223. See Form 11-6.
11.8-2(b) Procedure for Distributions
The personal representative must distribute the cash and property
remaining in the estate, including income, in accordance with the
provisions of the will, a distribution agreement, or intestate succession.
Income is distributed in accordance with the provisions of ORS 116.007.
The transfer of money, investments, or property by a personal
representative to the proper beneficiaries tends to be straightforward. If
the estate is insolvent, lawyers should refer to the claims statutes,
especially ORS 115.125. See 9.5-8; see also Form 9-8. Property that
escheats is covered in ORS 116.193. See also 2003 Or Laws ch 395. For
further discussion of escheat, see 4.1-2(g) and 5.2-3. If assets are
insufficient to meet all testamentary provisions, and the will is unclear
about abatement, see ORS 116.133 and 8.1-5(c).
The distribution of various types of assets may be accomplished as
discussed below:
(1) Liquid assets. The distribution of liquid assets may be by
check or letter of instructions to an account executive. If funds, stocks, or
bonds have not been sold, the beneficiaries will need to participate by
opening or identifying their own brokerage or fund accounts.
(2) Real estate. A transfer of real property should be by a
personal representatives deed. See Form 11-6. This transaction is a legal
requirement if the property is in a county different than that of the estate.
ORS 116.223. Relying on the judgment is not as efficient as recording a
deed. The personal representative should give the beneficiaries
information about liability and fire insurance on the property, and should
advise the beneficiaries about changeover of utilities and other services
as necessary.
PRACTICE TIP: In all events, the judgment should contain the
legal description of any real property.
11-38
2012 Revision
(3) Household goods and personal belongings. These assets

ordinarily do not have titles, and generally distribution is by possession
and the signing of a receipt.
(4) Vehicles. The Oregon Driver and Motor Vehicle Services
Division (DMV) will actually retitle a vehicle, without probate, once it
receives a DMV form, the Inheritance Affidavit, available at <www
.odot.state.or.us/forms/dmv/516.pdf>. The personal representative should
keep the vehicle insured until a receipt is signed and transfer is complete.
On transferring the vehicle, the personal representative should file with
the DMV a completed DMV form, Notice of Sale or Transfer of a
Vehicle (available at <www.odot.state.or.us/forms/dmv/6890.pdf>) to
assure that liability for future use of the vehicle is not chargeable to the
The personal representative should have each distributee sign a
receipt for distributed property and file the receipts with the court. See
ORS 116.213.
PRACTICE TIP: The personal representative should provide
detailed written receipts to all distributees for signature and return.
See Form 11-7. The court will not enter a supplemental judgment
of discharge until the personal representative has filed receipts or
other evidence satisfactory to the court that distribution has been
made as ordered in the general judgment. ORS 116.213. See
11.9-1.
PRACTICE TIP: The method and manner of distributing assets
other than cash are determined by the character of the property. A
receipt may contain a provision that the beneficiary will contribute
to subsequent liabilities up to the amount received as the
beneficiarys share of the estate. See ORS 116.043. A remainder
beneficiarys receipt may state that a beneficiary is entitled to his
or her share of unused funds held in a tax-preparation reserve fund.
PRACTICE TIP: Occasionally, a beneficiary will accept a
distribution but refuse to sign the receipt. If the distribution is for
cash only, the court will generally accept the negotiated check as
evidence in lieu of the receipt. If there are other issues, a motion to
11-39
2012 Revision
close the estate without a signed receipt and a supporting affidavit

should be filed.
PRACTICE TIP: See 11.8-6(a) to 11.8-6(b) regarding a
distribution to a minor or other protected person.
The personal representative and his or her lawyer must address a
multitude of tax issues. These issues include preparing and filing the
annual and final fiduciary income tax returns, advising the beneficiaries
not to file their own personal returns until they have received from the
estate their copies of IRS Form 1041, Schedule K-1 (Shareholders Share
of Income, Credits, Deductions, etc.), and advising the beneficiaries to
seek tax advice on the income tax consequences of receiving IRD
(income with respect of a decedent) assets, especially in a taxable estate.
11.8-2(c) Effect of Judgment
The judgment of final distribution is a conclusive determination
of the persons who are the successors in interest to the estate and of the
extent and character of their interests therein, subject only to the right of
appeal and the power of the court to vacate the judgment. ORS
116.113(4); see Lawver v. Beesley, 86 Or App 711, 717718, 740 P2d
1215 (1987). The judgment further operates to transfer the title of
property from persons initially vested in title by will or intestate
succession to persons receiving property from them by agreement
approved by the court. ORS 116.113(3).
A supplemental judgment of discharge releases the personal
representative and the personal representatives surety from liability for
the administration of the estate, subject to the right of appeal and the
power of the court to vacate its final orders. ORS 116.123; Lawver, 86 Or
App at 718719. See First Interstate Bank of Oregon, N.A. v. Haynes, 87
Or App 700, 743 P2d 1139 (1987).
11.8-2(d) Settlement Agreements
The personal representative should encourage settlement agreements if beneficiaries desire a distribution different from that required by
the decedents will or by the law of intestate succession. ORS
116.113(1), (3). See 8.3-1. The agreements are also useful in substitut11-40
2012 Revision
ing property for monetary devises and providing a means and manner of
distributing property to residuary devisees or intestate heirs and avoiding
in-common ownership.
All interested beneficiaries must be parties to the agreement. If a
minor or incompetent person is involved, a conservator or guardian ad
litem should be appointed. Furthermore, income tax and estate tax
consequences should be considered before the agreement is finalized.
11.8-3 Offset and Retainer
11.8-3(a) Defined
Offset and retainer is the right and duty of the personal representative to offset a debt due the estate from a distributee against the
interest of the distributee in the estate. ORS 116.153.
Before ORS 116.153 was enacted in 1969, no statutory right of
retainer existed. However, this right was well established in the decisions
of the Oregon Supreme Court. See Stanley v. U.S. Nat. Bank of Portland,
110 Or 648, 657, 224 P 835 (1924); Slusher v. Slusher, 123 Or 108, 109
110, 261 P 75 (1927); Boise Payette Lumber Co. v. Natl Sur. Corp., 167
Or 553, 558559, 118 P2d 1066 (1941); In re Millers Estate, 189 Or
246, 251252, 218 P2d 966 (1950).
NOTE: Retainer differs from the practice of subtracting an
expense of the estate from a beneficiarys share, e.g., the cost to
evict the beneficiary. This latter type of surcharge has no express
statutory authority.
11.8-3(b) Procedure for Offset and Retainer
No particular procedure is necessary to establish the offset and
retainer, except to include the computation in the final accounting and in
the judgment of distribution. The judgment of final distribution must
contain a special finding of the retainer by the court. ORS 116.113(1)(g).
The right of retainer applies to debts owed to the decedent, whether
arising before or after the decedents death. Stanley v. U.S. Nat. Bank of
Portland, 110 Or 648, 657658, 224 P 835 (1924). A debt arising before
the decedents death would be a listed asset in the inventory of the estate.
Stanley, 110 Or at 657658. Debts arising after the decedents death,
11-41
2012 Revision
which also may be offset, include debts arising out of the misappropriation of funds by the personal representative (see Stanley, 110 Or at 658),
and debts arising by reason of the personal representatives paying debts
of distributees guaranteed by the decedent before his or her death.
Slusher v. Slusher, 123 Or 108, 110, 261 P 75 (1927).
11.8-3(c) Priority of Right
The personal representatives right of offset and retainer has
priority over the rights of judgment creditors, heirs, and assignees of the
distributee. ORS 116.153. This provision is a codification of Oregon case
law. Stanley v. U.S. Nat. Bank of Portland, 110 Or 648, 657658, 224 P
835 (1924); Boise Payette Lumber Co. v. Natl Sur. Corp., 167 Or 553,
559, 118 P2d 1066 (1941); In re Millers Estate, 189 Or 246, 252, 218
P2d 966 (1950).
11.8-3(d) Defenses
Under the offset-and-retainer statute, the distributee has all the
defenses that would have been available to the distributee in a direct
proceeding for recovery of the debt. ORS 116.153. These defenses
include the statute of limitations, bankruptcy, setoff, and counterclaim.
The statutory defenses appear to be a departure from prior case law. See
In re Millers Estate, 189 Or 246, 253, 218 P2d 966 (1950), in which the
defense of statute of limitations was not allowed.
11.8-4 Disposition of Unclaimed Assets
11.8-4(a) Unclaimed Asset Defined
The term unclaimed asset refers to the personal representatives
inability to deliver property to a known distributee, either because the
distributee refuses to accept the property, or because the distributee
cannot be found within 30 days after entry of the judgment of distribution. ORS 116.203. An unclaimed asset is to be contrasted with an asset
that escheats to the state when no known heirs exist. See 4.1-2(g) and
5.2-3 regarding escheat.
11.8-4(b) Procedure for Unclaimed Assets
A personal representative faced with the problem of unclaimed
assets should, no fewer than 30 days after entry of the judgment of dis11-42
2012 Revision
tribution, file a report in the estate proceeding showing that payment or

delivery of property in possession or control of the personal representative cannot be made to the distributee entitled to it. The report
should state the reason for the inability to make distribution. See Form
11-8.
The court will then order the personal representative to pay or
deliver the property to the Department of State Lands to be placed in the
escheat funds of the state. ORS 116.203. See Form 11-9.
11.8-4(c) Receipt After Delivery of Unclaimed Asset
After payment or delivery of unclaimed assets to the Department
of State Lands, the personal representative will receive from the department a receipt stating:
(1)
From whom the property was received;
(2)
A description of the property; and
(3)
The name of the person entitled to the property.
ORS 116.203. See Form 11-10.

11.8-4(d) Recovery of Unclaimed Asset
A claim for the recovery of an unclaimed asset may be made in the
same manner provided for the recovery of escheated property. ORS
116.203; see ORS 116.253. Such a claim may be made only by or on
behalf of a person who either had no actual knowledge of the escheat or,
at the time of the escheat, was unable to prove entitlement to the
escheated property. ORS 116.253. The claim must be filed within 10
years after the death of a decedent whose estate escheated in whole or in
part, or within eight years after the entry of a judgment or order escheating property of an estate to the state. ORS 116.253.
NOTE: A person who refused to accept property of an estate
cannot seek to recover the escheated property at a later date. See
ORS 116.253.
QUERY: Can a distributee who refused to accept distribution
make a claim for the property in view of subsections (1) and (2)(c)
of ORS 116.253, which require that the claimant have no knowl11-43
2012 Revision
edge or notice of the order directing delivery to the Department of

State Lands?
11.8-5 Distribution to Foreign Personal Representative
Upon application by the personal representative, the court may
authorize the delivery to the personal representative of an estate of a
decedent pending in a foreign jurisdiction of any assets of the domiciliary
estate appropriate for payment of expenses of the ancillary proceeding or
for distribution in the foreign jurisdiction. ORS 116.163.
COMMENT: This procedure appears to apply to estates being
probated in different states, and not in other countries.
11.8-6 Distribution to Persons Under Legal Disability
11.8-6(a) Distribution to Minors
If the personal representative has actual knowledge of the
appointment of a conservator for a beneficiary who is a minor, or that
proceedings are pending for the appointment of a conservator for the
minor, the personal representative must distribute the minors distributive
share of the estate to the conservator. ORS 126.700(2). If the personal
representative has no such knowledge, he or she may pay or deliver
money or personal property in amounts not exceeding $10,000 per year
to:
(1) A person having the care and custody of the minor with
whom the minor resides, ORS 126.700(1)(a);
(2)
A guardian of the minor, ORS 126.700(1)(b); or
(3) A financial institution pursuant to a deposit in a federally

insured savings account in the sole name of the minor and giving notice
of the deposit to the minor, ORS 126.700(1)(c).
When the personal representative pays or delivers money or
personal property under ORS 126.700, the personal representative is not
responsible for the proper application of the money or property. ORS
127.700(4).
Under ORS 126.816, the personal representative may apply to the
court in the final account for approval to distribute the minors share to a
11-44
2012 Revision
custodian for the minors benefit as authorized in the will, pursuant to the
Oregon Uniform Transfers to Minors Act. ORS 126.832. See GUARDIANSHIPS, CONSERVATORSHIPS, AND TRANSFERS TO MINORS ch 5 (OSB Legal
Pubs 2009).
Under proper circumstances, upon application to the court, the
personal representative may secure other protective arrangements without
the appointment of a conservator.
In all other cases, to avoid possible liability, the personal
representative should secure the appointment of a conservator to accept
the minors distributive share. ORS 125.005 et seq.
11.8-6(b) Distribution to Other Protected Persons
For protected persons who are not minors, the personal
representative must distribute the protected persons share to the conservator, if one has been appointed. ORS 125.420. If the personal representative has notice or knowledge that a distributee has been adjudged to
be mentally ill, or if, under the facts and circumstances, a reasonably
prudent person would consider the distributee to be mentally ill, but no
conservator has been appointed, the personal representative, to avoid
liability, should seek appointment of a conservator for that distributee.
See Cummins Admr v. Walkers Comm., 66 SW2d 48, 51 (Ky 1933).
PRACTICE TIP: Seeking the appointment of a conservator for
an estate beneficiary is not a step that should be taken without a lot
of process. Statutory priorities and requirements, and many other
considerations, should be taken into account. The personal
representative can consider other options, such as getting the beneficiary to legal counsel, trusts, etc.
11.9
DISCHARGE OF PERSONAL REPRESENTATIVE
11.9-1 Procedure for Discharge of Personal Representative

Upon filing receipts or other evidence showing that distribution
has been made as ordered in the general judgment (including the receipt
from the Department of State Lands if required, see 11.8-4(c)), the court
11-45
2012 Revision
will discharge the personal representative by supplemental judgment, and

the estate is closed. ORS 116.213. See Form 11-11.
A supplemental judgment of discharge generally bars any action
against the personal representative and his or her surety. ORS 116.213.
But see 11.9-2 for exceptions.
11.9-2 Exceptions to Release of Personal Representative and
Surety
Although a supplemental judgment of discharge generally bars any
action against both the personal representative and the surety of the
personal representative (see 11.9-1), there are exceptions to this general
rule.
Within one year after the entry of the supplemental judgment of
discharge, the court may permit an action to be brought against a personal representative and the personal representatives surety if the
supplemental judgment of discharge was taken either (1) through fraud or
misrepresentation of the personal representative or the surety, or
(2) through the claimants mistake, inadvertence, surprise, or excusable
neglect. ORS 116.213. But see 7.2-4(a)(3) and 10.8-4 to 10.8-4(d)
regarding a personal representatives liability for environmental contamination.
Furthermore, a judgment that is absolutely void is a mere nullity
and may be vacated by the court at any time. Lothstein v. Fitzpatrick,
171 Or 648, 658, 138 P2d 919 (1943).
NOTE: ORS 116.213 is more restrictive than ORCP 71 B(1),
which allows for relief from a judgment for various reasons,
including mistake, inadvertence, surprise, or excusable neglect.
PRACTICE TIP: Although no specific procedure is mentioned,
the language of ORS 116.213 appears to provide that a claimant
could petition the court for authorization to file such an action
setting forth the grounds, and that the court, in its discretion and on
such terms as it might direct, could permit the action, if the petition
is filed within one year after the entry of the supplemental judgment of discharge.
11-46
2012 Revision
11.10
REOPENING THE ESTATE
11.10-1 Grounds for Reopening an Estate

Even though an estate has been closed, the court may reopen a
decedents estate for any of the following reasons:
(1) If other property is discovered (see 11.10-1(a)(1) to
11.10-1(a)(3));
(2)
If any necessary act remains unperformed; or
(3) For any other proper cause appearing to the court (see
11.10-1(b)(1) to 11.10-1(b)(2)).
ORS 116.233.
See Wells v. Wells, 262 Or 44, 51, 496 P2d 718 (1972) (an estate
may be reopened subject to the courts discretion, not as a matter of
right).
11.10-1(a) Subsequently Discovered Assets
11.10-1(a)(1) In General
The discovery of property of the decedent that was not
administered in the original probate presents a clear case for reopening
the estate. See, e.g., In re Hattrems Estate, 170 Or 613, 648, 135 P2d
777 (1943).
The statute does not state a time limit for reopening an estate.
Once an estate is reopened, the provisions of the probate code
applicable to the original administration of the estate continue to apply to
the reopened estate. ORS 116.233.
PRACTICE TIP: If the original probate involved a solvent
testate estate, the lawyer should give notice to all devisees. If the
original probate involved a solvent intestate estate, the lawyer
should give notice to all heirs at law. If the original probate
involved an insolvent estate, additional notice should be given to
all creditors whose claims were allowed, but not paid in full. See
ORS 113.145. The lawyer must exercise caution because of the
possibility that heirs, devisees, or creditors have died or changed
11-47
2012 Revision
addresses since the original probate was closed. If an address

cannot be determined with reasonable diligence, notice should be
published and an affidavit should be filed documenting reasonable
diligence in attempting to determine that address. See ORS
111.215(1)(c).
Reopening an estate because additional assets are discovered does
not allow creditors to have a second bite of the apple. The probate code
provides that claims already adjudicated or barred may not be asserted in
the reopened administration. ORS 116.233. Assuming that notice to
interested persons was properly published in the original probate, all
claims against the estate are barred on filing the final account in the
original probate. ORS 115.005.
11.10-1(a)(2) Small Estates
If the original probate was a small-estate proceeding (see ORS
114.505114.560), and assets later discovered exceed the dollar
limitations applicable to small estates, the proper procedure is the
commencement of a probate in the same manner as provided for the commencement of an entirely new probate. See ORS 114.515(2), (8); see also
5.3-1 to 5.3-3(a).
Under the small-estate procedure, if a personal representative is not
appointed within four months after the affidavit is filed, the interest of
the decedent in all of the property described in the affidavit is transferred
to the person or persons shown by the affidavit to be entitled to that
property, and any other claims against the property are barred except as
provided in the statute. ORS 114.555. However, a person to whom the
property is transferred pursuant to the small estate affidavit is personally
answerable and accountable to a later-appointed personal representative.
ORS 114.545(2)(b). See 5.3-1 to 5.3-8(d).
11.10-1(a)(3) Amending Tax Returns
The personal representative of the reopened estate should
determine whether amended federal estate tax and Oregon estate tax
returns need to be filed or amended in light of the new assets or facts.
11-48
2012 Revision
11.10-1(b) Intestate EstateWill Later Discovered

11.10-1(b)(1) In General
A petition to reopen an estate is the proper procedure if the original
probate was conducted as an intestate estate and a will of the decedent is
later discovered. The case of Goorman v. Henikens Estate, 244 Or 200,
205206, 416 P2d 662 (1966), decided before the enactment of ORS
113.027 in 1973, stands for the proposition that when a will is discovered
after an intestate probate is completed, the estate may be reopened. The
probate code permits reopening an estate on the petition of any interested
person for any other proper cause appearing to the court. ORS 116.233.
An estate may not be reopened to admit a will to probate more than
one year after the decedents estate has been administered in Oregon and
closed. ORS 113.027.
COMMENT: The safest interpretation of ORS 113.027 is that
the one-year period begins to run when the supplemental judgment
of discharge is entered.
The probate code does not require that notice of reopening be
delivered to any particular person; instead, notice must be given as the
court prescribes. ORS 116.233.
PRACTICE TIP: Notice should be given to all heirs at law and
all devisees named in the newly discovered will. Notice to unpaid
creditors is not necessary unless additional assets are discovered.
The probate code provides that claims already adjudicated or
barred may not be asserted in the reopened administration. ORS
116.233.
11.10-1(b)(2) Recovering Assets Already Distributed
The most difficult problem in reopening an estate because of a
later-discovered will is recovering the assets distributed in the original
probate when the devisees under the will are different from the heirs at
law or the beneficiaries under a previous will. Although the probate code
provides that the judgment of final distribution is a conclusive
determination of the persons entitled to receive the estate, the code also
11-49
2012 Revision
provides that that determination is subject to the right of appeal and the
power of the court to vacate the judgment. ORS 116.113(4).
Oregon case law appears to permit the recovery of assets from the
mistaken distributees if the distribution resulted from a mistake of fact,
rather than a mistake of law. See Scott v. Ford, 45 Or 531, 547, 78 P 742
(1904); Scott v. Ford, 52 Or 288, 295, 97 P 99 (1908). See also T. C. W.,
Annot, Right of Recovery Against Person to Whom, by Mistake of Law,
Property of Decedent's Estate Has Been Improperly Distributed, 147
ALR 121 (Jan 1, 1943); 31 AM JUR2D, Executors and Administrators
11241179 (2002) (supplemented periodically).
Substantial and complicated legal questions also may arise
concerning the recovery of assets from transferees of the original distributees. See Comment, Title Disputes After Probate or Administration, 29
ME L REV 278 (1978) (citation not verified by publisher).
11.10-2 Personal Representative for Reopened Estate
When reopening an estate, the court may either reappoint the
former personal representative or appoint some other party as the
personal representative, based on the petition of the parties. ORS
116.233.
11.10-3 Procedure for Reopening an Estate
The court may reopen an estate upon the petition of any interested
person. ORS 116.233. The petition must include a declaration under
penalty of perjury in the form required by ORCP 1 E. ORS 111.205. See
Form 11-17.
The court will, by order, prescribe what notice, if any, need be
given. Following the appointment and the giving of such notice, the
personal representative may then proceed with the administration of the
estate for the purpose set forth in the petition. See Forms 11-12, 11-13,
and 11-14.
The general provisions of the probate code regarding original
administration apply insofar as applicable to accomplish the purpose for
which the estate is reopened. ORS 116.233.
11-50
2012 Revision
11.10-4 Prior Claims

Any claim that has been previously adjudicated or barred may not
be reasserted in the reopened administration. ORS 116.233.
11-51
2012 Revision
Appendix 11A
Asset Schedule
ASSET SCHEDULE
EXHIBIT 1
Estate of __________________
Date of Death: __________________
DESCRIPTION BEGINNING
OF ASSET
VALUE
TOTALS
VALUE OF
LATER
ACQUIRED
ASSET
VALUE AT
CURRENT
DISPOSITION ENDING
VALUE
COMMENT: See 11.5-3 to 11.5-3(c). See UTCR 9.160(2); Form

9.160, UTCR Appendix of Forms.
NOTE: The asset schedule may be included in either the accounting
narrative or an exhibit to the accounting. See Form 9.160, UTCR
Appendix of Forms.
COMMENT: Creating a spreadsheet for the asset schedule, and
attaching it as an exhibit, will help minimize mathematical errors in the
asset schedule.
CAVEAT: This appendix is illustrative only. Each lawyer must
expertise in using or modifying this appendix.
11-52
2012 Revision
Appendix 11B
Receipts and Disbursements
THE ESTATE OF ____________________

[type of accounting, e.g., Annual or Final] Accounting
____________, 20__ through ________________, 20__
[name of depository], Checking Account #_________
Receipts:
Date:
Source of Receipt:
Explanation:
Total Receipts:
Amount:
Disbursements:
Date:
Payee:
Total
Explanation:
Amount:
Check No.
11-53
2012 Revision

Disbursements:
Reconciliation:
Total Receipts
Total
Disbursements
Ending Balance:
Less:
COMMENT: See 11.5-4(a) to 11.5-4(e). See also UTCR 9.160(3);

Form 9.160, UTCR Appendix of Forms.
NOTE: The schedules of receipts and disbursements may be
included in either the accounting narrative or an exhibit to the
accounting. See Form 9.160, UTCR Appendix of Forms.
COMMENT: Using a spreadsheet or an accounting program (such as
Quickbooks or Quicken) to create attachments for receipts and
disbursements will help minimize errors.
CAVEAT: This exhibit is illustrative only. Each lawyer must depend
using or modifying this exhibit.
11-54
2012 Revision
Form 11-1
Annual or Other Accounting
IN THE ______ COURT OF THE STATE OF OREGON

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
)
)
Case No. _____

[title, e.g., FIRST ANNUAL
or other time period]
ACCOUNTING
[and any other relief requested,
such as PETITION FOR INTERIM
PERSONAL REPRESENTATIVE
FEES AND ATTORNEY FEES]
_____________, the duly appointed and qualified personal

representative of the estate of ______________, deceased, presents this
_______________[Title, e.g., annual] accounting, covering the period
from __________, 20__, through _________, 20__ (the accounting
period).
1.
Bonding and Restrictions. No bond is required because the bond
[was waived by court order dated _____________, 20__ / is waived by
ORS ___________________].
[or]
1.
Bonding and Restrictions. The current amount of the total bond,
including riders, is $__________.
[Complete the following information for annual accountings only.]
11-55
2012 Revision
Value of the assets on last date of this accounting

period:
$_______
Plus: estimated income for next accounting period:
$_______
Total assets and income
$_______
Less: value of restricted assets and income

(Orders restricting assets or income are dated
_____________, 20__)
$_______
Unrestricted assets and income requiring bond or new

restrictions
$________
The personal representative requests the following changes in the

amount of the existing bond or in restrictions on assets or income.
[Reduce / Increase] the bond to
$________
Restrict the following assets:
_______________________
Remove the restrictions from the

following assets:
_______________________
2.
Asset Schedule. Attached hereto and marked as Exhibit 1 is the
Asset Schedule, which is a complete and accurate statement of all assets
owned by the estate at any time during the accounting period, together with
the personal representatives estimate of the value of each asset.
[The asset schedule may be set forth in this document or attached as
an exhibit, using the format set forth in Form 9.160, UTCR Appendix of
Forms. See Appendix 11A. Creating a spreadsheet for the asset schedule
will help minimize mathematical errors in the asset schedule. For assets
restricted by court order, include the date and title of the order. For any
asset acquired or disposed of during the accounting period, include the
date of acquisition or disposal.]
11-56
2012 Revision
3.
Receipts and Disbursements. Attached and marked as Exhibits
____ through ____, are complete and accurate schedules of all funds
received and disbursed from the estates depository accounts.
[The schedules for receipts and disbursements may be set forth in
this document or attached as an exhibit, using the format set forth in Form
9.160, UTCR Appendix of Forms. Using a spreadsheet or an accounting
program (such as Quickbooks or Quicken) to create attachments for
receipts and disbursements will help minimize errors. For each entry, show
the date, the check number, the payee, an explanation of the transaction,
and the amount. Reconcile the difference, if any, between the accounting
ending balance and the depository statement. See Appendix 11B.]
4.
Vouchers and Depository Statements. The filing of vouchers and
depository statements was waived by [Court Order herein dated
____________, 20___/ the following statute or court rule:
__________________].
[or]
4.
Vouchers and Depository Statements. The personal
representative requests that the Court waive the requirement of filing
vouchers and depository statements for this accounting. The vouchers
and depository statements are located at the following address:
______________. The vouchers and depository statements will be
available for examination by interested persons at that location until one
year after the approval of the final accounting.
[or]
4.
Vouchers and Depository Statements. The personal representative requests that the vouchers and depository statements filed with
this accounting be returned. A self-addressed envelope with adequate
postage is attached to the vouchers.
11-57
2012 Revision
[Vouchers are documents evidencing each disbursement and

showing the name of the payee, date, and amount. Depository statements
are statements from banks, brokerage firms, insurance companies, and
similar entities with which estate assets are deposited, showing the
balance in the depository account at the beginning and end of the
accounting period. If vouchers and depository statements are filed with
the account, use the third option above. Otherwise, use the first or second
option. Many financial institutions no longer return canceled checks to
the estate. Courts will often allow the personal representative to submit a
screen shot of checks from the estate online account, or a print of the
screen shot from the estate account, confirming that the check has
cleared. The personal representative should confirm what the local court
will accept before submitting vouchers. When opening the account, the
personal representative should determine what options are available to
show proof that a check has cleared, as well as what the local court will
accept, rather than waiting to determine these matters until an
accounting is due.]
5.
Narrative Description of Changes During the Account Period.
During the accounting period, the following changes in the assets or
financial circumstances occurred:
[Describe all changes not clearly disclosed in the asset schedule,
including, without limitation, corrections to previously declared values,
omitted assets, the closing of an account, the sale or purchase of an
asset, a significant change in living expenses, or a stock split. Use as
many subparagraphs as necessary to separately describe each change.
See the following examples.]
(a) The personal representative closed the decedents personal accounts
held at ________________.
(b) The personal representative collected the decedents various refunds
and uncashed checks and deposited them into the estate checking account
held at ___________________.
(c) The personal representative sold the decedents personal residence
for $_________. After payment of the decedents mortgage at
11-58
2012 Revision
____________________ and closing costs, the net proceeds, in the amount

of $_________, were deposited into the estate checking account held at
____________________. Attached and marked as Exhibit ___ is the Seller
Final Closing Statement.
(d) The personal representative sold the decedents automobile and
deposited the proceeds into the estate checking account held at
_____________.
(e) The personal representative sold some of the decedents personal
effects and deposited the proceeds into the estate checking account held at
___________________. The remaining personal effects were distributed
to the sole beneficiary, as shown in the Custody Receipt filed with the
Court on _____________, 20__.
6.
Fiduciary Disclosures. [Disclose and explain every transaction if
the transaction consisted of any of the following: (a) a gift; (b) a
transaction with a person or entity with whom the personal
representative has a relationship that could compromise or otherwise
affect a decision made by the personal representative; the disclosure
must include, but is not limited to, payment for goods, services, rent,
reimbursement of expenses, and any other like transactions; (c) a
payment for goods or services provided either by a person not engaged in
an established business of providing similar goods or services to the
general public or at a rate higher than that ordinarily charged to the
general public (if the personal representative made any inappropriate
distributions or paid any claims that should not have been paid, that
action should be disclosed and explained, as well as what the personal
representative did to remediate the action, e.g., paid back the amount to
the estate with interest).]
7.
Personal Representatives Fees. The personal representative is
entitled to statutory compensation in the sum of $__________. The
personal representative is requesting partial payment of the fee in the sum
of $__________, a sum equal to less than 50% of the statutory personal
representatives fee.
11-59
2012 Revision
[Most courts will not authorize full payment of fiduciary fees

before the filing of the final account. Most courts will not authorize even
a partial payment of personal representative fees unless a significant
amount of the personal representatives duties have been fulfilled. The
personal representative should check local court policy before requesting
partial payment of the fiduciarys fee.]
8.
Attorney Fees and Costs. The personal representative represents
that [lawyers name] has rendered and will continue to render substantial
services to this estate; that the services are detailed in the Statement for
Attorney Fees, Costs, and Disbursements filed concurrently with this
accounting; and that a partial payment of a reasonable compensation for the
services is the sum of $_________. The requested sum is less than 80% of
the anticipated attorney fees. The Law Offices of ____________________
has advanced costs in the amount of $__________ for administration of
this estate and should be reimbursed. Requested attorney fees and costs
total $___________.
[Most courts will not authorize full payment of attorney fees before
the filing of the final accounting. The personal representative should
check local court policy before requesting partial payment of attorney
fees.]
9.
Notice. Notice, as required by statute, will be provided to those
persons entitled to notice.
10.
Other Matters. [Add as many additional paragraphs as may be
needed to justify requests for court orders included in the prayer of the
accounting and to comply with the requirements applicable to the
particular accounting. If necessary, indicate in the caption any
additional relief requested. The personal representative and the lawyer
for the personal representative should identify and comply with all
requirements imposed by statute, rule, and court order.]
11-60
2012 Revision
11.
Closing. The estate is not ready for final settlement and distribution
because [state the reason why the estate is not ready to close].
WHEREFORE, the personal representative prays for an order:
1.
Approving this accounting [generally, annual accounts in
decedents estates will not be approved by the court until the final
account is approved];
2.
Setting the amount of the bond at $_________ [include this
provision only if a change of the bond amount is requested];
3.
Changing the asset restrictions as follows: ______________
[include this provision only if a change of the asset restrictions is
requested];
4.
Directing the partial payment to ___________________of
$___________ as a reasonable personal representatives fee [if applicable];
5.
Directing the partial payment of $____________to
____________, attorneys for the personal representative, representing
$___________ as reasonable attorney fees, and $________ for costs
incurred [if applicable]; and
6.
[Set forth any additional relief requested.]
DATED: _______________, 20____.

/s/__________________________
[name]
11-61
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: This form illustrates the accounting format required by

UTCR 9.160; see also UTCR Form 9.160, UTCR Appendix of Forms.
Each accounting must also comply with all other applicable statutes and
court rules. An accounting need not include instructions in the form
shown in bracketed italics, or portions of the form inapplicable to the
individual accounting.
COMMENT: See 11.2. See also ORS 116.083, 111.205; UTCR
9.160, UTCR 9.170, UTCR 5.080; ORS 116.173. See UTCR 2.010 and
UTCR 9.030 for the form of documents.
11-62
2012 Revision
Form 11-2
Final Accounting and Petition for General

Judgment of Final Distribution
IN THE ________ COURT OF THE STATE OF OREGON

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
Case No. _____

FINAL ACCOUNTING
AND PETITION FOR
GENERAL JUDGMENT
OF FINAL DISTRIBUTION
__________________, personal representative of the estate of

__________________, presents this Final Accounting and Petition for
General Judgment of Final Distribution, covering the period from
___________, 20__ through _____________, 20___ (the accounting
period).
1.
Bonding. No bond has been required in this estate because the bond
was waived by [the decedents will / court order dated _____________,
20__].
[or]
1.
Bonding. The current amount of the total bond, including riders, is
$____________. The personal representative will request that the Court
exonerate the bond after the entry of the Supplemental Judgment
Discharging Personal Representative and Closing Estate.
11-63
2012 Revision
2.
Restricted Assets. The limited judgment dated ____________,
20__, restricted assets of the estate. The assets are restricted in an account
held at __________________. The personal representative requests that
the Court remove the restriction on that account.
3.
Asset Schedule. Attached hereto and marked as Exhibit 1 is the
Asset Schedule, which is a complete and accurate statement of all assets
owned by the estate at any time during the accounting period, together with
the personal representatives estimate of the value of each asset.
[The asset schedule may be set forth in this document or attached as
an exhibit, using the format set forth in Form 9.160, UTCR Appendix of
Forms. See Appendix 11A. Creating a spreadsheet for the asset schedule
will help minimize mathematical errors in the asset schedule. For assets
restricted by court order, include the date and title of the order. For any
asset acquired or disposed of during the accounting period, include the
date of acquisition or disposal].
4.
Receipts and Disbursements. Attached hereto and marked as
Exhibits __ through __ are complete and accurate schedules of all funds
received and disbursed from the estates depository accounts.
[The schedules for receipts and disbursements may be set forth in
this document or attached as an exhibit, using the format set forth in Form
9.160, UTCR Appendix of Forms. See Appendix 11B. Using a spreadsheet
or an accounting program (such as Quickbooks or Quicken) to create
attachments for receipts and disbursements will help minimize errors. For
each entry, show the date, the check number, the payee, an explanation of
the transaction, and the amount. Reconcile the difference, if any, between
the accounting ending balance and the depository statement.]
5.
Vouchers and Depository Statements. The filing of vouchers and
depository statements was waived by [court order herein dated
11-64
2012 Revision
____________, 20___/
__________________].
the
following
statute
or
court
rule:
[or]
Vouchers and Depository Statements. The personal
representative requests that the Court waive the requirement of filing
vouchers and depository statements for this accounting. The vouchers
and depository statements are located at the following address:
______________. The vouchers and depository statements will be
available for examination by interested persons at that location until one
year after the approval of the final accounting.
[or]
Vouchers and Depository Statements. The personal representative requests that the vouchers and depository statements filed with
this accounting be returned. A self-addressed envelope with adequate
postage is attached to the vouchers.
[Vouchers are documents evidencing each disbursement and
showing the name of the payee, date, and amount. Depository statements
are statements from banks, brokerage firms, insurance companies, and
similar entities with which estate assets are deposited, showing the
balance in the depository account at the beginning and end of the
accounting period. If vouchers and depository statements are filed with
the account, use the third option above. Otherwise, use the first or second
option. Many financial institutions no longer return canceled checks to
the estate. Courts will often allow the personal representative to submit a
screen shot of checks from the estate online account, or a print of the
screen shot from the estate account, confirming that the check has
cleared. The personal representative should confirm what the local court
will accept before submitting vouchers. When opening the account, the
personal representative should determine what options are available to
show proof that a check has cleared, as well as what the local court will
accept, rather than waiting to determine these matters until an
accounting is due.]
11-65
2012 Revision
6.
Narrative Description of Changes during the Account Period.
During the accounting period, the following changes in the assets or
financial circumstances occurred:
[Describe all changes not clearly disclosed in the asset schedule,
including, without limitation, corrections to previously declared values,
omitted assets, the closing of an account, the sale or purchase of an
asset, a significant change in living expenses, or a stock split. Use as
many subparagraphs as necessary to separately describe each change.
See the following examples.]
(a) The personal representative closed the decedents personal accounts
held at ________________.
(b) The personal representative collected the decedents various refunds
and uncashed checks and deposited them into the estate checking account
held at _________.
(c) The personal representative sold the decedents personal residence
for $___________________. After payment of the decedents mortgage at
____________________ and closing costs, the net proceeds, in the amount
of $___________________, were deposited into the estate checking
account held at ________________. Attached and marked as Exhibit __ is
the Seller Final Closing Statement.
(d) The personal representative sold the decedents automobile and
deposited the proceeds into the estate checking account held at
_____________.
(e) The personal representative sold some of the decedents personal
effects and deposited the proceeds into the estate checking account held at
___________________. The remaining personal effects were distributed
to the sole beneficiary, as shown in the Custody Receipt filed with the
Court on _____________, 20__.
7.
Fiduciary Disclosures. [Disclose and explain every transaction if
the transaction consisted of any of the following: (a) a gift; (b) a
transaction with a person or entity with whom the personal representative
11-66
2012 Revision
has a relationship that could compromise or otherwise affect a decision

made by the personal representative; the disclosure must include, but is
not limited to, payment for goods, services, rent, reimbursement of
expenses, and any other like transactions; (c) a payment for goods or
services provided either by a person not engaged in an established business
of providing similar goods or services to the general public or at a rate
higher than that ordinarily charged to the general public (if the personal
representative made any inappropriate distributions or paid any claims
that should not have been paid, that action should be disclosed and
explained, as well as what the personal representative did to remediate the
action, e.g., paid back the amount to the estate with interest).]
8.
Creditors. Other than attorney fees and accountant fees and income
tax returns still due for the final year of the estate, no remaining claims or
expenses of administration are due from this estate, and all creditors of the
decedent and of this estate have been paid in full.
[or]
8.
Creditors. Except for those claims set forth below, all creditors of
the decedent and of this estate have been paid in full.
(a) [Use as many subparagraphs as necessary to list unpaid
creditors.]
9.
Taxes. The personal representative has satisfied the decedents
individual, fiduciary, and estate tax obligations. All Oregon income, estate,
and personal property taxes due have been paid, and all required tax returns
have been filed within the period required by law. The personal
representative represents that no final formal determination has been made
regarding the decedents income tax liability, and the Oregon Department
of Revenue and the Internal Revenue Service have three years to recover
any tax due from the beneficiaries.
11-67
2012 Revision
10.
Reserve. The personal representative requests authorization to
establish a reserve in the sum of $_______ for the costs of preparing the
fiduciary income tax returns, and the sum of $_______ for attorney fees for
completion of the Final Accounting and other closing documents and
distribution of the estates assets. Any balance remaining in the reserve will
be distributed to the [remainder beneficiaries / heirs of the decedent] in
their distributive shares.
11.
Personal Representatives Fee. The personal representative [is
entitled to statutory compensation in the sum of $________ / has waived
his personal representative fee].
12.
Attorney Fees and Costs. The personal representative represents
that [name] has rendered substantial legal services to this estate and that the
services are detailed in the Statement for Attorney Fees, Costs, and
Disbursements filed concurrently with this accounting. Reasonable
compensation for the services is $_____, plus $____ for costs incurred, for
a total of $_______.
13.
Remaining Assets. The remaining estate assets are ready for
distribution.
14.
Distribution. The remaining assets are distributable in accordance
with the [decedents will / laws of intestacy] to the following [beneficiaries
/ heirs]: [List beneficiaries and method of distribution, i.e., specific
devises and/or percentage of residue of estate.]
11-68
2012 Revision
15.
Notice. Notice, as required by statute, will be provided to those
persons entitled to notice.
16.
Other Matters. __________________[Add as many additional
paragraphs as may be needed to justify requests for court orders
included in the prayer of the accounting, and to comply with the
requirements applicable to the particular accounting. If necessary,
indicate in the caption any additional relief requested. The personal
representative and the lawyer for the personal representative should
identify and comply with all requirements imposed by statute, rule, and
court order.]
17.
Closing. The estate is ready for final settlement and distribution.
WHEREFORE, the personal representative prays for a General

Judgment of Final Distribution:
1.
Approving this accounting;
2.
Directing ________________ to remove the restriction on the
estates assets held on deposit in savings account #_________________;
3.
Directing the payment of $________ as the statutory personal
representatives fee;
4.
Directing the payment of $_______ to ________________,
representing $_______ as reasonable attorney fees, and $________ for
costs incurred;
5.
Directing that the personal representative reserve the sum of
$________ for the costs of preparing the fiduciary income tax return and
the payment of any tax due, and the sum of $______ for attorney fees for
completion of the final accounting and other closing documents and
distribution of the estates assets; any balance remaining in the reserve shall
be distributed to the [residual beneficiaries / decedents heirs] in their
percentage shares.
11-69
2012 Revision
6.
Directing distribution of the remaining assets of the estate to
the [devisees and beneficiaries / heirs of the decedent] entitled to them as
set forth in paragraph ____ above.
7.
[Set forth any additional relief requested.]
8.
On filing receipts for the distribution, the personal
representative will submit a supplemental judgment to discharge the
personal representative, exonerate the bond, if any, and close the estate.
DATED:____________________, 20___.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
11-70
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: This form illustrates the accounting format required by

UTCR 9.160; see also UTCR Form 9.160, UTCR Appendix of Forms.
Each accounting must also comply with all other applicable statutes and
court rules. An accounting need not include instructions in the form
shown in bracketed italics, or portions of the form inapplicable to the
individual accounting.
COMMENT: See 11.2, 11.3 to 11.6-7. See also ORS 116.083,
116.173, ORS 111.205; UTCR 9.160, UTCR 9.170, UTCR 5.080. See
UTCR 9.030(1). See also UTCR 2.010(7), which requires that all
documents include the authors name, address, telephone number, and
fax number (if any).
11-71
2012 Revision
Form 11-3
Notice for Filing Objections to Final Accounting

and Petition for General Judgment of Final
Distribution

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
)
)
Case No. _____

NOTICE OF TIME
FOR FILING
OBJECTIONS TO
FINAL ACCOUNTING
AND PETITION FOR
GENERAL JUDGMENT
OF FINAL DISTRIBUTION
Notice is hereby given that the personal representative for the

estate of the above-named decedent has filed the Final Accounting and
Petition for General Judgment of Final Distribution.
Any objections to the Final Accounting and Petition must be filed in
the estate proceeding in the above court on or before ________, 20__.
DATED: ________________, 20____.
/s/__________________________
[name]
11-72
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.2, 11.3-4(a), 11.6-2(b). See also ORS

116.093; UTCR 9.160, UTCR 2.010, UTCR 9.030.
NOTE: The notice may be filed by the personal representative or
the personal representatives lawyer. All documents must include the
authors name, address, telephone number, fax number, if any, and, if
prepared by an attorney, the name, e-mail address, and the Bar number of
the author and the trial attorney assigned to try the case. UTCR
2.010(7).
11-73
2012 Revision
Form 11-4
Verified Statement in Lieu of Final Accounting

and Petition for Judgment of Final Distribution

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
)
Case No. _____

VERIFIED STATEMENT
IN LIEU OF
FINAL ACCOUNTING
AND PETITION FOR
GENERAL JUDGMENT OF
FINAL DISTRIBUTION
___________, personal representative of the estate of

___________, presents this Verified Statement in Lieu of Final
Accounting and Petition for General Judgment of Final Distribution
pursuant to ORS 116.083(4), covering the period from ___________,
20__, through __________, 20__ (the accounting period).
1.
No bond has been required in this estate because the bond was
waived by [the decedents will / court order dated ____________, 20__].
[or]
1.
The current amount of the total bond, including riders, is
$______________. The personal representative requests that the Court
exonerate the bond upon the entry of the Supplemental Judgment
Discharging Personal Representative and Closing Estate.
11-74
2012 Revision
2.
The limited judgment dated ___________, 20__, restricted assets of
the estate. The assets are restricted in an account held at
________________. The personal representative requests that the Court
remove the restriction on that account.
3.
All creditors of the decedent and of this estate have been paid in
full.
4.
All Oregon income taxes, estate taxes, and personal property taxes
due have been paid, and all required tax returns have been filed. All
federal estate and income taxes, if any, due from this estate or on account
of this decedent have been paid, and all required tax returns have been
filed.
5.
The personal representative requests authorization to establish a
reserve in the sum of $_________ for the costs of preparing the final
fiduciary income tax returns, and the sum of $_________ for attorney
fees for completion of the estate closing documents and distribution of
the estates assets. Any balance remaining in the reserve will be
distributed to the [heirs / devisees] of the decedent in their distributive
shares.
6.
The personal representative is entitled to statutory compensation
in the sum of $_______, calculated in accordance with ORS 116.173 as
follows:
Value of property inventoried
$__________
Income and Realized Gains

During Probate
$__________
Total for Statutory Fee
$__________
Fee on first $50,000
$__________
11-75
2012 Revision
2% on Balance
$ __________
1% of non-probate assets
(excluding life insurance)
$__________
Total Fee
[or]
6.
The personal representative has waived the personal representative
fee.
7.
The personal representative represents that _______________ has
rendered substantial legal services to this estate and that the services are
detailed in the Statement of Attorney Fees, Costs, and Disbursements,
filed concurrently with this accounting. Reasonable compensation for the
services is $__________, plus $_________ for costs incurred, for a total
of $_________.
8.
The remaining assets of the estate are ready for distribution.
9.
The remaining assets are distributable in accordance with the
[decedents will / laws of intestacy] to the following [beneficiaries /
heirs] of the decedent: [list beneficiaries and method of distribution, i.e.,
specific devises and/or percentage of residue of estate].
10.
No notice is required because the beneficiaries entitled to notice
have waived the requirement that they be served with notice and have
signed a Waiver of Notice and Consent. The Waiver and Consents are
filed concurrently with this Verified Statement.
11.
The estate is ready for final settlement and distribution.
11-76
2012 Revision
WHEREFORE, the personal representative prays for a General

Judgment of Final Distribution:
1.
Approving this Verified Statement;
2.
Directing ________________ to remove the restriction on the
estates assets held on deposit in savings account #________________;
3.
Directing the payment of $__________ as the statutory
personal representatives fee;
4.
Directing the payment of $_________ to _______________,
representing $_______ as reasonable attorney fees, and $__________ for
costs incurred;
5.
Directing that the personal representative reserve the sum of
$__________ for the costs of preparing the fiduciary income tax return and
payment of any tax due, and the sum of $__________ for attorney fees for
completion of the estate closing documents and distribution of the assets of
the estate; any balance remaining in the reserve will be distributed to the
[residual beneficiaries / decedents heirs] in their percentage shares;
6.
Directing distribution of the remaining assets of the estate to
the [devisees and beneficiaries / heirs of the decedent] entitled to them as
set forth in paragraph ____ above.
7.
On filing receipts for the distribution, the personal
representative will submit a supplemental judgment to discharge the
personal representative, exonerate the bond, if any, and close the estate.
DATED: ________________, 20____.

/s/__________________________
[name]
11-77
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]
[lawyers name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.3-4(b), 11.2. See also ORS 116.083(4);

UTCR 9.160. See UTCR 2.010 and UTCR 9.030 for the form of
documents.
NOTE: In the probate court, the last page of every petition must
11-78
2012 Revision
Form 11-5
Receipt for Partial Distribution

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

RECEIPT FOR
PARTIAL DISTRIBUTION
I, _______________, acknowledge receipt from the personal

representative of this estate of the following property:
[description of property]
DATED: ________________, 20____.
[or]
I, ________________, acknowledge receipt of the sum of
$_________, representing a partial distribution from the estate, as
authorized by the Order Authorizing Partial Distribution signed by Judge
__________ on ________, 20__.
DATED: ________________, 20____.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
11-79
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.8-1. See also ORS 116.013; UTCR 9.160. See
11-80
2012 Revision
Form 11-6
Deed of Personal Representative
_________, Personal Representative,

Estate of _________________, Grantor
_________________________, Grantee
After recording return to:

[name]
[address]
[telephone no.]
Until a change is requested, all tax statements must be sent to the following
address:
_________________________
_________________________
_________________________
DEED OF PERSONAL REPRESENTATIVE
________________, the duly appointed, qualified, and acting
personal representative of the estate of _________, deceased, __________
County probate number __________, grantor, hereby conveys to
________, grantee, that real property situated in _______ County, Oregon,
described as follows: _________________________.
This property is free from encumbrances except for those of record.
The true consideration for this conveyance is $ None (Estate
distribution).
11-81
2012 Revision
DATED:
____________, 20__.
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT,

THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE
ABOUT THE PERSONS RIGHTS, IF ANY, UNDER ORS 195.300
195.336, AND 2007 OR LAWS CH 424, 511, AND 2009 OR LAWS
CH 855, 29, 17. THIS INSTRUMENT DOES NOT ALLOW USE
OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN
VIOLATION OF APPLICABLE LAND USE LAWS AND
REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS
INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE
PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR
COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE
UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY
ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR
215.010, TO VERIFY THE APPROVED USES OF THE LOT OR
PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST
FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930,
AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING
PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301, AND
195.305195.336, AND 2007 OR LAWS CH 424, 511, AND 2009
OR LAWS CH 855, 29.
ESTATE OF ________________
__________________________,
Personal Representative,
Grantor
11-82
2012 Revision
STATE OF __________
)
) ss.
)
This instrument was acknowledged before me on ____________,

20__, by ________, personal representative.
/s/__________________________
COMMENT: See 11.8-2(a) to 11.8-2(b). See also ORS 116.223;

UTCR 9.160; ORS 114.305(4), 114.325, 92.027. See UTCR 2.010 and
UTCR 9.030.
11-83
2012 Revision
Form 11-7
Final Distribution Receipt

FOR THE COUNTY OF _________
Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

FINAL DISTRIBUTION
RECEIPT AND RELEASE
I, ______________, an [heir / devisee] of ___________, deceased,

acknowledge receipt of my full distributive share from the estate of
___________, deceased, and release and forever discharge the estate of
___________, its personal representative, attorneys, the decedent, and
their heirs, administrators, agents, and assigns, and all other persons,
firms, or corporations who are connected therewith, from any and all
claims, demands, damages, actions, causes of actions, or suits of any kind
or nature whatsoever.
I further acknowledge that if any personal income taxes, estate
taxes, or fiduciary income taxes are assessed against the decedent, the
estate, or the personal representative for which the personal
representative is liable, I agree to indemnify and hold the personal
representative harmless for such taxes to the extent that I have received
assets of the estate.
DATED: _______________, 20____.
/s/__________________________
[name]
11-84
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.8-2(b). See also ORS 116.213; UTCR 9.160.

See UTCR 2.010 and UTCR 9.030 for the form of documents.
11-85
2012 Revision
Form 11-8
Report of Unclaimed Assets

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

REPORT OF
UNCLAIMED ASSETS
__________________, personal representative of the above estate,

reports as follows:
1.
The following property is distributed to __________________
pursuant to the Judgment of Final Distribution herein:
2.
[Payment of / Delivery of] the property to ________________
cannot be made because _______________________ [refuses to accept
the property / cannot be found].
WHEREFORE, the personal representative prays for an order
directing [him / her / it] to [pay / deliver] the property to the Department
of State Lands, to be placed in the escheat funds of the state.
DATED: _______________, 20___.
11-86
2012 Revision

/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.8-4(b); see also ORS 116.203, 111.205; UTCR

9.160, UTCR 2.010, UTCR 9.030.
11-87
2012 Revision
Form 11-9
Order of Escheat (of Unclaimed Assets)
IN THE ________COURT OF THE STATE OF OREGON

FOR _______________ COUNTY
Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

ORDER OF ESCHEAT
It appears to the Court that:

1.
__________________ died intestate on ______________, 20___,
in _________________ County, Oregon.
2.
Four months have elapsed since the first publication of the notice
of administration of this estate, and there is no known person to take the
net intestate estate by descent. Therefore it is
ORDERED that:
3.
The entire net estate escheat to the state of Oregon, and the
personal representative is hereby directed to distribute all assets
remaining after payment of claims, taxes, and expenses of administration,
including just and reasonable compensation to the personal
representative, to the Department of State Lands.
DATED: _______________, 20____.
/s/__________________________
[name]
Judge
11-88
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.8-4(b). See also UTCR 9.160. See UTCR

2.010 and UTCR 9.030 for the form of documents.
The last page of every order must also include the name, address,
and telephone number of the personal representative. UTCR 9.030(2).
See also UTCR 2.010(7), (12).
11-89
2012 Revision
Form 11-10
Receipt for Unclaimed Assets

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

RECEIPT FOR
UNCLAIMED ASSETS
The Department of State Lands hereby acknowledges receipt of the

following property from the personal representative of this estate:
_____________________________________________.
The person entitled to the above property pursuant to order of the
Court entered in the probate proceeding of decedents estate is
________________________.
DATED: _______________, 20____.
DEPARTMENT OF STATE LANDS

/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
11-90
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.8-4(c). See also ORS 116.203; UTCR 9.160.

See UTCR 2.010 and UTCR 9.030 for the form of documents.
11-91
2012 Revision
Form 11-11

Representative and Closing Estate

FOR THE COUNTY OF__________
Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
Case No. _____

SUPPLEMENTAL JUDGMENT
DISCHARGING PERSONAL
REPRESENTATIVE AND
CLOSING ESTATE
IT APPEARING to the Court that pursuant to a general judgment

entered on ___________, 20___, the personal representative has paid the
remaining expenses of administration and has distributed the remaining
property in accordance with the general judgment, and a receipt for the
property being on file with the Court, and
IT FURTHER APPEARING that the personal representative has
performed all of the acts required, and that this estate has been fully
administered, it is hereby
ORDERED AND ADJUDGED that the personal representative of
the above estate is hereby discharged, any bond provided is exonerated, and
the estate is closed.
DATED: _______________, 20____.
/s/__________________________
[name]
Judge
11-92
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[lawyers name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
11-93
2012 Revision
Form 11-12
Order Directing Notice of Petition to Reopen

Estate

FOR THE COUNTY OF ___________
Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

ORDER DIRECTING
NOTICE OF PETITION
TO REOPEN ESTATE
IT APPEARS TO THE COURT from the petition of ____________

that further administration of the above estate is necessary.
THEREFORE, AN ORDER OF THIS COURT IS ENTERED AS
FOLLOWS:
1.
____________________ is directed to give notice of the filing
of a petition to reopen the estate to __________________.
2.
The notice given by ____________________ shall provide
that, if written objections to that petition are not filed with this Court on or
before _______________, 20___, this Court will order that the estate be
reopened and that ____________________ be appointed as the personal
representative of the reopened estate to serve without bond.
DATED: _______________, 20____.
/s/__________________________
[name]
Judge
11-94
2012 Revision
PETITIONER:
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
See also UTCR 2.010(7), (12).
11-95
2012 Revision
Form 11-13
Notice of Petition to Reopen Estate

FOR THE COUNTY OF ____________
Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

NOTICE OF PETITION TO
REOPEN ESTATE
To: ____________________
NOTICE IS GIVEN THAT:
1.
___________________ has filed a petition to reopen this estate. A
true copy of that petition is enclosed with your copy of this notice.
2.
If you object to the entry of an order by the Court reopening the
estate and appointing ______________ as personal representative to serve
without bond, then you must file your written objections to the petition
with the Court on or before __________, 20___. A copy of your objections
must be served on the lawyers for _________________ named in the
enclosed petition on or before that date.
3.
If you do not file objections in the manner and within the time stated
above, an order of the Court may be entered reopening the estate and
appointing _______________ as the personal representative to serve
without bond.
11-96
2012 Revision
DATED: _______________, 20____.

/s/________________________
[name]
Attorney for Petitioner
PETITIONER:
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.10-3. See ORS 116.233. See also UTCR 2.010
11-97
2012 Revision
Form 11-14
Order Reopening Estate
IN THE _________ COURT OF THE STATE OF OREGON

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

ORDER
REOPENING ESTATE
IT APPEARS TO THE COURT THAT:

1.
Further administration of the above estate is necessary because
property was discovered that was not administered in the above proceeding.
2.
All claims presented to the personal representative in the above
proceeding and allowed were paid in full before the closing of the estate.
3.
Petitioner and _______________ are the only devisees under the
decedents will admitted to probate in the above proceeding. Notice of the
petition to reopen this estate has been given in the manner required by law
to _______________ and no further notice of that petition is required.
There is no just reason for delay in entering judgment.
THEREFORE, IT IS ORDERED that:
1.
The estate is reopened for the purpose of administering the
interest of the decedent in __________;
2.
____________________ is appointed as the personal
representative to serve without bond;
11-98
2012 Revision
3.
Letters testamentary shall be issued to the personal
representative in the manner provided by law.
DATED: _______________, 20____.
/s/__________________________
[name]
Judge
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
11-99
2012 Revision
See also UTCR 2.010(7), (12).
11-100
2012 Revision
Form 11-15
General Judgment Approving Final Account and

Authorizing Final Distribution
IN THE _________ COURT OF THE STATE OF OREGON

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
Case No. _____

GENERAL JUDGMENT
APPROVING [FIRST AND]
FINAL ACCOUNTING
AND AUTHORIZING
FINAL DISTRIBUTION
The personal representative having filed the [First and] Final

Accounting and Petition for General Judgment of Final Distribution on
__________________, 20___, and the time for filing objections having
passed with no objections filed, the Court finds that:
1.
All Oregon income, estate, and personal property taxes that have
become due have been paid.
[or]
1.
Payment of Oregon income, estate, and personal property taxes has
been secured by [bond / deposit / other].
2.
The personal representative requested authorization to establish a
reserve in the sum of $_________________for the costs of preparing the
fiduciary income tax returns and in the sum of $__________ for attorney
11-101
2012 Revision
fees for completion of the final accounting and distribution of the estates
assets.
3.
The personal representative is entitled to compensation from the
estate in the amount of $_________, as provided in ORS 116.173.
[or]
3.
The personal representative has waived the personal representatives
fee.
4.
Remaining unsatisfied expenses of administration are accountant
fees and attorney fees payable to _________________ in the amount of
$________, representing $_________, as reasonable attorney fees and
$__________ as reimbursement for actual costs.
5.
The remainder of the estate assets, after payment of the expenses set
forth above, is vested in the following [heirs pursuant to the laws of
intestate succession / devisees under the decedents will / persons pursuant
to agreement approved by this Court]:
_______________________________________________________
[Here include findings concerning any advancement; election
against the will by the surviving spouse; renunciation; lapse; adjudicated
controversies; partial distributions (to be confirmed or modified); retainer;
claims for which a special fund is set aside; contingent claims that have
been allowed and are still unpaid; and approval of the final account in
whole or in part.]
6.
Proof of Mailing the Notice for Filing Objections to the [First and]
Final Accounting and Petition for General Judgment of Final Distribution
has been filed.
Therefore, it is hereby ORDERED AND ADJUDGED as follows:
11-102
2012 Revision
1.
The [first and] final accounting [and all interim accounts filed
herein] [is / are] approved [except as may be modified by this judgment];
2.
The personal representative is authorized to establish a reserve
in the sum of $_____________ for the costs of preparing the fiduciary
income tax returns, and the sum of $_____________ for attorney fees and
costs to complete the estate proceeding and distribute the estates assets;
any balance remaining in the reserve shall be distributed to the remainder
beneficiaries in their distributive shares;
3.
The personal representative is directed to pay the remaining
expenses of administration as set forth above;
4.
The personal representative is allowed the sum of $_______
as just and reasonable compensation for [his / her / its] services;
5.
The personal representative is directed to pay
________________ the sum of $_______, representing reasonable attorney
fees in the amount of $________, and reimbursement of expenses in the
amount of $__________;
6.
The personal representative is directed to make distribution of
the remaining estate assets as follows: _________________________; and
7.
Upon filing receipts showing payment and distribution as
herein directed, the Court will enter a supplemental judgment discharging
the personal representative and exonerating the personal representatives
bond, if any.
DATED: _______________, 20____.
/s/__________________________
[name]
Judge
11-103
2012 Revision
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.8-2(a). See also ORS 116.113. See UTCR

2.010 and UTCR 9.030 for the form of documents.
11-104
2012 Revision
Form 11-16
Statement for Attorney Fees and Costs

Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

STATEMENT FOR
ATTORNEY FEES
AND COSTS
I, ____________________declare:
1.
I am a member of the Oregon State Bar. I practice estate planning
and trust and estate administration law.
2.
I make this statement in support of the [(Verified Statement in Lieu
of] the Final Accounting and Petition for General Judgment of Final
Distribution, pursuant to which the personal representative prays for a
General Judgment Approving the [Verified Statement / Final Accounting]
and Authorizing Final Distribution directing payment of attorney fees in the
amount of $_______, and reimbursement of costs advanced in the amount
of $_______, for a total of $_______. This amount constitutes reasonable
attorney fees for legal services rendered and for the customary services
necessary in the administration of an estate of this size and complexity,
based upon fees for similar services performed in the Portland Metropolitan
area.
3.
Our attorneys, paralegals, and legal assistants have performed
customary services involved in the administration of the estate, including
11-105
2012 Revision
the following [provide an expansive description of the services provided,

for example]:
(a) Conferred with the personal representative regarding the
nature of estate assets, size of the estate, names and addresses of devisees
and those persons who would have been decedents heirs had the decedent
died intestate, and gathered the information needed to prepare the Petition
for Probate of Will and Appointment of Personal Representative;
(b)
Established a file for the probate estate;
(c) Sent the Petition for Probate to the personal representative for
execution and filed same with the Court;
(d) Prepared and submitted to the Court the form of Limited
Judgment Admitting Will to Probate and Appointment of Personal
Representative;
(e) Prepared and delivered or mailed information to the heirs,
devisees, interested persons, the Oregon Department of Human Services,
and the Oregon Health Authority;
(f)
Prepared and filed Proof of Mailing to heirs, devisees,
interested persons, the Oregon Department of Human Services, and the
Oregon Health Authority;
(g)
Filed the Affidavit of Publication;
(h) Prepared and filed the Inventory of the Estates assets [and an
Amended Inventory];
(i)
Prepared and filed the Proof of Compliance Regarding Search
for Claims;
(j)
Prepared the Verified Statement in Lieu of Final Accounting
and Petition for Judgment, this statement supporting attorney fees
requested, and a proposed General Judgment Approving Verified
Statement and Authorizing Final Distribution; and
(k) Prepared drafts of the Final Distribution Receipt and Release
and the Supplemental Judgment Discharging Personal Representative and
Closing Estate.
11-106
2012 Revision
4.
Our attorneys, paralegals, and legal assistants have performed the
following extraordinary services: [for example:] We prepared a federal
estate tax return and prepared and filed an Oregon estate tax return on
behalf of the decedent. A significant amount of time was required to assure
that the returns were accurate.
5.
The personal representative is very familiar with the complexities
involved in this estate, and has worked closely with us at every juncture
during the administration of this estate and the valuation of the
decedents assets. The personal representative has carefully reviewed our
statement of fees, and has approved them. After doing so, the personal
representative signed the Petition for Court Approval to pay the amount
of attorney fees as requested in the Verified Statement.
6.
I have spent, together with other attorneys in our office, ___ hours
from ________, 20__, through _________, 20__, in connection with the
probate of this estate, and my legal assistants and paralegals have spent
____ hours in connection with the probate of this estate, totaling $_______.
In addition, it is estimated that the fees for preparing and completing the
estate closing documents and distribution of assets will be $_________,
representing legal, paralegal, and legal assistants time. The total legal fees
equal the sum of $_________. We also expended costs from _______,
20__, through _____________, in the amount of $_______, representing
costs advanced for the estate filing fee, appraisals of the decedents real
property, publication of Notice to Interested Persons, valuation of
securities, and mail charges. On _____________, 20__, the personal
representative reimbursed _________________ in the amount of
$________. Current unpaid costs equal the sum of $_______. I also
estimate that additional costs for judgment fees, recording fees,
photocopies, and mail charges will be approximately $_______ to the date
of closing of this probate. Total legal fees and costs will equal the sum of
$_______. The legal services rendered and costs advanced are described on
11-107
2012 Revision
the attached billing statements. This statement reflects all time and costs
from _______, 20__, through ______, 20__.
7.
I have requested that a reserve in the amount of $__________ be
established for payment of any additional attorney fees and costs incurred
to complete the estate closing documents and to distribute the estates
assets. Any balance remaining in the reserve will be distributed to the
beneficiary of the estate and an accounting will be provided to the Court at
the time the Supplemental Judgment Closing the Estate is submitted for
signing.
DATED: _______________, 20___.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
11-108
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.6-6(a). See also ORS 116.183(2); UTCR

5.080, UTCR 9.060(2), UTCR 9.160; UTCR Form 5.080, UTCR
Appendix of Forms. See UTCR 2.010 and UTCR 9.030.
attorney assigned to try the case. UTCR 2.010(7); see UTCR 9.030.
11-109
2012 Revision
Form 11-17
Petition to Reopen Estate

Estate of
____________________,
Deceased.
)
)
)
)
)
Case No. _____

PETITION TO
REOPEN ESTATE
____________________, Petitioner, petitions and represents to the

Court:
1.
Petitioner has an interest in this estate because Petitioner acted as the
personal representative of the estate in the above proceeding (the Original
Probate) and is a devisee under the will of the decedent.
2.
Further administration of the estate is necessary because [for
example, petitioner has discovered stock certificate no. 1234 representing
_________ shares of the no par value common stock of ____________
issued in the name of the decedent. The interest of the decedent in
_________________ was not administered in the Original Probate].
3.
All claims presented to the personal representative and allowed in
the Original Probate were paid in full before the closing of the Original
Probate.
4.
The names, relationships, and post-office addresses of the devisees
of the decedent are:
11-110
2012 Revision
NAME
RELATIONSHIP
POST-OFFICE
ADDRESS
5.
Petitioner is nominated as personal representative to serve without
bond under the decedents will and is not disqualified to serve under the
provisions of ORS 113.095.
6.
Petitioner has employed the law firm of ____________________ as
lawyers to represent the personal representative in the administration of the
reopened estate.
WHEREFORE, Petitioner prays for an order:
1.
Reopening the administration of the Estate;
2.
Appointing _________________ as personal representative of
the reopened estate to serve without bond; and
3.
Directing that notice of the filing of this petition be delivered
by the Petitioner to ____________________ and directing that no further
notice of the filing of this petition is required.
DATED:____________________, 20___.

/s/__________________________
[name]
Petitioner
11-111
2012 Revision
PETITIONER:
[name]
[address]
[telephone no.]
[fax no.]

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 11.10-3. See also ORS 116.233; UTCR 9.160;

ORS 111.205. See UTCR 2.010 and UTCR 9.030 for the form of
documents.
11-112
2012 Revision
Chapter 12
FEDERAL ESTATE TAX
STEVEN A. NICHOLES, B.A., B.B.A., Oregon State University (1975); J.D., Gonzaga
University School of Law (1980); LL.M. (Taxation), University of Florida
(1981); member of the Oregon State Bar since 1980; partner, Duffy Kekel
LLP, Portland.
We acknowledge Richard W. Miller for his work on the prior edition of this chapter.
The author wishes to acknowledge the exceptional and long-standing contributions
made to this chapter by his deceased partners, Donald J. Georgeson (19311984) and
David A. Kekel (19381999). Their careful and valuable insight continues to provide
meaningful guidance many years after the chapter was first written.
12.1 FEDERAL ESTATE TAXSUBSTANTIVE

ASPECTS ................................................................................ 12-7
12.1-1
Introduction................................................................. 12-7
12.1-2
Valuation of Property Included in Gross Estate ....... 12-13
12.1-2(a)
Date for Valuation ..................................... 12-13
12.1-2(b)
Standard of Valuation ............................... 12-14
12.1-3
Items to Include in the Gross Estate ......................... 12-15
12.1-3(a)
Generally ................................................... 12-15
12.1-3(b)
Property Owned by Decedent ................... 12-16
12.1-3(c)
Gifts Made Within Three Years

Before Death ............................................. 12-18
12.1-3(d)
Transfers Taking Effect at Death .............. 12-19
12.1-3(d)(1)
Transfers with a Reservation

of a Life Interest ........................... 12-20
12.1-3(d)(2)
Federal Transfer Taxes and

Estate FreezesBackground ....... 12-24
12.1-3(d)(3)
Overview of IRC Chapter 14

of Subtitle B ................................. 12-25
12.1-3(d)(4)
Transfers Dependent on
Survivorship ................................. 12-26
12-1
2012 Revision
Chapter 12 / Federal Estate Tax
12.1-3(d)(5)
12.1-3(e)
2012 Revision
Annuities .................................................... 12-28
12.1-3(e)(1)
Generally ....................................... 12-28
12.1-3(e)(2)
Exclusions ..................................... 12-29
12.1-3(e)(3)
Rollover of Lump-Sum
Distributions to IRAs .................... 12-29
12.1-3(f)
Joint Interests with Right of

Survivorship ............................................... 12-30
12.1-3(g)
Powers of Appointment ............................. 12-32
12.1-3(h)
Life Insurance ............................................ 12-33
12.1-4
12-2
Revocable Transfers ..................... 12-27
Deductions from the Gross Estate ............................. 12-36
12.1-4(a)
Generally.................................................... 12-36
12.1-4(b)
Expenses, Indebtedness, and Taxes ........... 12-36
12.1-4(c)
Mortgages .................................................. 12-39
12.1-4(d)
Funeral Expenses ....................................... 12-39
12.1-4(e)
Administration Expenses ........................... 12-39
12.1-4(e)(1)
Executors Commissions and

Attorney Fees ................................ 12-39
12.1-4(e)(2)
Estate Tax Versus Income

Tax Deductions ............................. 12-40
12.1-4(e)(3)
Miscellaneous Administration
Expenses ....................................... 12-43
12.1-4(e)(4)
Interest on Estate or Income

Tax Liabilities ............................... 12-44
12.1-4(f)
Claims Against the Estate .......................... 12-45
12.1-4(g)
Taxes .......................................................... 12-47
12.1-4(h)
Losses ........................................................ 12-48
12.1-4(i)
Transfers for Public, Charitable,

and Religious Uses .................................... 12-48
12.1-4(i)(1)
Remainder Interests ...................... 12-50
12.1-4(i)(2)
Charitable Lead Trusts.................. 12-51
Federal Estate Tax / Chapter 12
12.1-4(j)
12.1-5
Deduction for Qualified FamilyOwned Business Interests ......................... 12-53
The Marital Deduction.............................................. 12-53
12.1-5(a)
Generally ................................................... 12-53
12.1-5(b)
Requirements to Qualify for the

Marital Deduction ..................................... 12-56
12.1-5(b)(1)
Married at Time of Death

with Surviving Spouse ................. 12-57
12.1-5(b)(2)
Property Must Pass from

Decedent to Surviving Spouse ..... 12-58
12.1-5(b)(3)
Property Must Be Included in

Decedents Gross Estate ............... 12-59
12.1-5(b)(4)
Nondeductible Terminable
Interests ........................................ 12-59
12.1-5(c)
12.1-5(c)(1)
Bequest to Spouse
Conditioned on Survivorship
Period Less than Six Months........ 12-61
12.1-5(c)(2)
Life Interest with Power of

Appointment ................................. 12-61
12.1-5(c)(3)
QTIP Trusts .................................. 12-64
12.1-5(c)(4)
Qualified Domestic Trusts ........... 12-71
12.1-5(c)(5)
Life Insurance Proceeds ............... 12-72
12.1-5(d)
12.1-6
Exceptions to Terminable-Interest
Rule ........................................................... 12-60
Marital Deduction Disclaimers ................. 12-73
Credits Against the Tax ............................................ 12-73
12.1-6(a)
Generally ................................................... 12-73
12.1-6(b)
Applicable Credit Amount ........................ 12-74
12.1-6(c)
Credit for State Death Taxes Under

Prior Law ................................................... 12-76
12.1-6(d)
Credit for Federal Gift Taxes .................... 12-77
12.1-6(e)
Credit for Tax on Prior Transfers .............. 12-78
12.1-6(f)
Credit for Foreign Death Taxes ................ 12-79

12-3
2012 Revision
12.2 FEDERAL ESTATE TAXPROCEDURAL

ASPECTS............................................................................... 12-81
12.2-1
Introduction ............................................................... 12-81
12.2-2
Gathering the Facts ................................................... 12-81
12.2-3
Disclaimers ................................................................ 12-82
12.2-4
Valuation of Assets ................................................... 12-83
12.2-5
Federal Estate Tax ReturnIRS Form 706 .............. 12-84
12.2-5(a)
When a Federal Return Is Required .......... 12-84
12.2-5(b)
Where to File a Federal Return.................. 12-86
12.2-5(c)
Who Must File the Return ......................... 12-87
12.2-5(d)
Due Date of Return .................................... 12-87
12.2-5(e)
Alternate Valuation Election ..................... 12-89
12.2-5(f)
Documents to Accompany Form 706 ........ 12-90
12.2-6
Request for Early Audit, Determination

of Tax, and Release ................................................... 12-90
12.2-7
Payment of Estate Tax .............................................. 12-91
12.2-7(a)
Due Date .................................................... 12-91
12.2-7(b)
Extensions of Time for Payment of

Tax ............................................................. 12-92
2012 Revision
Generally ....................................... 12-92
12.2-7(b)(2)
Tax on Reversionary or
Remainder Interests ...................... 12-92
12.2-7(b)(3)
Tax on Interests in Closely

Held BusinessesDeaths
After 1981 ..................................... 12-92
12.2-7(c)
Interest ....................................................... 12-95
12.2-7(d)
Method of Paying Tax ............................... 12-95
12.2-8
12-4
12.2-7(b)(1)
Penalties for Failure to File Tax Return or to

Pay Tax ...................................................................... 12-97
12.2-8(a)
Failure to File Timely Return .................... 12-97
12.2-8(b)
Accuracy-Related Penalty ......................... 12-97
12.2-8(c)
Failure to Pay Tax ...................................... 12-98
12.2-8(d)
Underpayment ........................................... 12-98
12.2-8(e)
Willful Failure to File; False

Statements ................................................. 12-98
12.2-9
Collection of Tax ...................................................... 12-98
12.2-9(a)
Personal Liability of Personal

Representative ........................................... 12-98
12.2-9(b)
Liability of Possessor of Decedents

Property ..................................................... 12-99
12.2-9(c)
Transferees Liability ................................ 12-99
12.2-9(d)
General Lien .............................................. 12-99
12.2-9(e)
Special Lien for Estate Tax ..................... 12-100
12.2-10 Statute of Limitations ............................................. 12-101

12.2-11 Audit and Review Procedures ................................ 12-102
12.2-11(a)
Mathematical Verification ...................... 12-102
12.2-11(b)
Classification ........................................... 12-102
12.2-11(c)
Audit ........................................................ 12-103
12.2-11(d)
Appeals Office Conference ..................... 12-104
12.2-11(e)
Ninety-Day Letter; Tax Court ................. 12-106
12.2-11(f)
Other Forums .......................................... 12-107
12.2-11(g)
Choice of Forum ..................................... 12-109
12.2-12 Completion of Form 706, Schedules, and

Valuation of Particular Assets ................................ 12-110
12.2-12(a)
Schedule AReal Estate ........................ 12-110
12.2-12(b)
Special-Use Value for Certain Farm

and Business Property ............................. 12-111
12.2-12(b)(1) Requirements for Special-Use

Valuation .................................... 12-112
12.2-12(b)(2) Election and Filing ..................... 12-116
12.2-12(b)(3) Special-Use Valuation ................ 12-118
12.2-12(b)(4) Recapture of Tax Savings
Realized by Special-Use
Valuation .................................... 12-119
12-5
2012 Revision
12.2-12(c)
Schedule BStocks and Bonds .............. 12-122
12.2-12(c)(1) Stocks and Bonds Listed on

an Exchange or Sold OTC .......... 12-122
12.2-12(c)(2) Stocks and Bonds When
Prices Do Not Reflect FairMarket Value .............................. 12-123
12.2-12(c)(3) Stock in Closely Held
Businesses ................................... 12-123
12.2-12(c)(4) Dividends .................................... 12-125
12.2-12(c)(5) Interest on Bonds ........................ 12-126
12.2-12(c)(6) United States Savings Bonds ...... 12-127
12.2-12(c)(7) Mutual Fund Shares .................... 12-128
12.2-12(d)
Schedule CMortgages, Notes, and

Cash ......................................................... 12-128
12.2-12(d)(1) Mortgages, Notes, and

Contracts ..................................... 12-129
12.2-12(d)(2) Cash and Bank Deposits ............. 12-129
12.2-12(e)
Schedule DInsurance ........................... 12-130
12.2-12(f)
Schedule EJointly Owned Property ..... 12-132
12.2-12(g)
Schedule FMiscellaneous Property ..... 12-133
12.2-12(h)
Schedule GTransfers During

Decedents Life........................................ 12-134
12.2-12(i)
Schedule HPowers of Appointment .... 12-135
12.2-12(j)
Schedule IAnnuities ............................. 12-135
12.2-12(k)
Schedule JFuneral Expenses and

Expenses Incurred in Administering
Property Subject to Claims ...................... 12-136
12.2-12(l)
Schedule KDebts of Decedent ............. 12-137
12.2-12(m) Schedule LCasualty Losses ................. 12-137
12-6
2012 Revision
12.2-12(n)
Schedule MBequests, etc., to

Surviving Spouse ..................................... 12-138
12.2-12(o)
Schedule OCharitable Bequest ............ 12-140
12.2-12(p)
Schedule PCredit for Foreign

Death Taxes ............................................. 12-140
12.2-12(q)
Schedule QCredit for Tax on

Prior Transfers ......................................... 12-140
12.2-12(r)
Schedules R and R-1GenerationSkipping Transfer Tax............................. 12-140
12.2-12(s)
Documents that Must Accompany

Form 706 ................................................. 12-141
12.1 FEDERAL ESTATE TAXSUBSTANTIVE ASPECTS

12.1-1 Introduction
In computing the federal estate tax, the lawyer should first prepare
a list of all property that will be subject to the tax in the decedents estate.
This property includes all property owned by the decedent at the time of
his or her death (usually reflected in the probate estate), IRC 2033;
insurance transferred by the decedent within three years of death, IRC
2035; property that the decedent transferred during life in which the
decedent retained certain rights (which includes most revocable trusts
created by the decedent and used as will substitutes), IRC 20362038;
certain annuities, IRC 2039; property held jointly with right of
survivorship, IRC 2040; property over which the decedent had a general
power of appointment, IRC 2041; and life insurance, IRC 2042. Property in which the decedent held an income interest created by his or her
deceased spouse for which the marital deduction was elected in the
spouses estate (a so-called QTIP trust, IRC 2044; see 12.1-5(c)(3))
and federal gift taxes that the decedent paid on gifts made within three
years before the decedents death (IRC 2035(c); see 12.1-3(c)) are also
subject to the estate tax.
The total value of the property listed above constitutes the decedents gross estate. Listing all the property to be taxed to arrive at the
gross estate is very much like listing all income to arrive at gross
income under the income tax laws.
12-7
2012 Revision
To arrive at the taxable estate, the following items are deducted

from the gross estate:
(1) Administration expenses (to the extent not taken as income
tax deductions), IRC 2053(a)(2);
(2)
Funeral expenses, IRC 2053(a)(1);
(3) Certain debts owing on the date of the decedents death, IRC
2053(a)(3)(4);
(4) Losses sustained during the administration of the estate, if
not claimed as income tax deductions, IRC 2054;
(5) A charitable deduction for interests in property transferred to
charity, IRC 2055;
(6) A marital deduction that exempts from estate taxation all
property passing to a surviving spouse, IRC 2056; and
(7) A deduction for the amount of any estate taxes actually paid
to a state, IRC 2058.
Effective January 1, 1977, the federal gift tax rate and estate tax
rate were combined into a single-rate schedule, with a single, unified
credit available to offset gift taxes otherwise payable and, to the extent
not used to offset gift taxes, to offset estate taxes payable.
NOTE: The unified credit is now known as the applicable
credit amount. IRC 2010(c); see 12.1-6(b).
For estates of decedents dying after 1976, the total amount of the
taxable gifts made by the decedent after 1976 is added to the taxable
estate to arrive at the tax computation base. The term tax computation
base, although not used in the Internal Revenue Code, means the amount
to which the tax rates from the unified tax rate schedule are applied. The
Internal Revenue Code refers to this amount thus calculated as taxable
amount. IRC 2001(b)(c). The gross-estate tax, computed from the
tables (as set forth in the instructions for Form 706, the federal estate tax
return, available at <www.irs.gov/Forms-&-Pubs>), is the difference
between the tentative tax amount on the tax computation base minus the
12-8
2012 Revision
taxes actually paid on the taxable gifts included in the tax computation
base (i.e., net gifts after 1976).
NOTE: The subtraction for gift taxes on post-1976 gifts is the
gift tax that would have been paid on such post-1976 gifts if the
current gift tax schedules had been in effect at the time of such
gifts. Because the gift tax calculation includes gifts made before
1977 in the tax calculation base, the tax paid on equal amounts of
taxable gifts will vary from decedent to decedent, depending on the
respective amount of pre-1977 gifts.
PRACTICE TIP: If a donor elects gift-splitting with a spouse,
the taxable gift attributed to that donor is halved, so that only onehalf of the gift in excess of the annual exclusion will be added to
the gross estate of each spouse in determining the federal estate tax
of either. This approach can be advantageous because gift-splitting
provides a method for depleting the applicable credit amount
available to the spouse with the smaller estate. See IRC 2012; see
also 12.1-6(d). This can also be advantageous for gifts made in
contemplation of a spouses death because such gifts, with the
exception of insurance, are not added back to the estate. One-half
of the gift is effectively removed from the tax computation base of
the spouse expected to die.
After determining the gross-estate tax, the last step is to subtract
any allowable credits against the gross-estate tax. The statutes provide for
four possible credits:
(1) The applicable credit amount (formerly known as the
unified credit), IRC 2010(c); see 12.1-6(b);
(2) The credit for federal gift taxes (this credit is allowable only
for gifts made before January 1, 1977), IRC 2012; see 12.1-6(d);
(3) The credit for taxes on prior transfers, IRC 2013 (this credit
is allowed in a decedent-transferees estate if the decedent-transferee dies
within two years before or 10 years after the death of a decedenttransferor from whom the decedent-transferee acquired the property
previously taxed, IRC 2013(a)); and
12-9
2012 Revision
(4) The credit for foreign death taxes paid, IRC 2014; see
12.1-6(f).
Under the Taxpayer Relief Act of 1997 (TRA 1997), Pub L No
105-34, 111 Stat 788, the maximum amount that is protected from the
federal estate tax at death by reason of the applicable credit amount was
increased from $600,000 to $1 million in a phased schedule during the
years 1998 through 2006. Former IRC 2010(c). This amount was
previously referred to as the exemption amount and is now called the
applicable exclusion amount. The schedule for the applicable exclusion
amount was revised again by the Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA), Pub L No 107-16, 115 Stat 38,
to accelerate and substantially increase the amount exempt from federal
estate tax. EGTRRA provided that the federal estate tax would expire for
deaths occurring in 2010 (essentially an unlimited exemption amount),
but with the further caveat that the exemption amount would revert to
$1,000,000 for deaths occurring after December 31, 2010. The plan
when EGTRRA was adopted in 2001 was that Congress would re-address
the federal estate tax system before January 1, 2010, and the tax would
never actually expire. This did not occur and the federal estate tax
expired as of January 1, 2010, for deaths occurring during calendar year
2010, although the gift tax continued to apply with a lifetime exemption
of $1,000,000.
In December of 2010, Congress enacted and the President signed
into law the Tax Relief, Unemployment Insurance Reauthorization, and
Job Creation Act of 2010, Pub L No 111-312, 124 Stat 3296 (the 2010
Tax Act). For deaths occurring in 2010, the personal representative of
the decedents estate is permitted to choose between the law as it existed
on January 1, 2010 (unlimited federal estate tax exemption and modified
carry-over income tax basis rules) or, alternatively, to be subject to
federal estate tax with a $5,000,000 federal estate tax exemption and
date-of-death income tax basis (i.e., the so-called fresh-start income tax
basis, which applied in the case of deaths before 2010).
For deaths occurring in 2011 and 2012, the 2010 Tax Act reunifies
the federal gift tax and estate tax exemptions at $5,000,000, establishes
the tax rate on amounts in excess of the applicable credit amount at 35%,
12-10
2012 Revision
and restores the fresh-start basis rules as they applied to deaths occurring
in 2009. IRC 2010(c)(3).
Any portion of the gift tax exemption used before 2011 eats into
the $5,000,000 exemption available under the 2010 Tax Act. In addition
to the relatively liberal exemption amounts, the 2010 Tax Act includes a
portability provision, which permits the surviving spouse of a decedent
who dies after 2010 to include the unused exemption of his or her
deceased spouse on the surviving spouses federal estate tax return. IRC
2010(c)(4). Only the unused estate tax exemption of the last deceased
spouse of the surviving spouse can be used. In other words, a surviving
spouse who remarries several times cannot bank the unused exemptions
of his or her predeceasing spouses.
PRACTICE TIP: The special carryover-tax-basis election
available to decedents who died during 2010 is made on Form
8939. For the special rules and procedures applicable to this
election, see IRS Notice 2011-66, <www.irs.gov/irb/201135_IRB/ar09.html>, and IRS Publication 4895, <www.irs.gov/pub/
irs-pdf/p4895.pdf>.
An unfortunate element of the 2010 Tax Act is the inclusion of a
December 31, 2012, sunset date for the 2010 Tax Act changes to the
federal estate and gift tax provisions. Unless further modified or extended
by Congress, after December 31, 2012, the estate and gift tax exemption
returns to $1,000,000, the tax rate increases to a maximum marginal rate
of 55%, and the portability of a prior deceased spouses unused
exemption is lost.
The following table reflects the applicable exclusion amount
resulting from TRA 1997, EGTRRA, and the 2010 Tax Act:
12-11
2012 Revision
Decedents Dying
in Year:
Applicable Exclusion Amount:
1997
$600,000
1998
$625,000
1999
$650,000
2000 and 2001
$675,000
2002 and 2003
$1,000,000
2004 and 2005
$1,500,000
2006,
2008
2007,
and $2,000,000
2009
$3,500,000
2010
Election of:
(i) Unlimited Applicable Exclusion Amount and
Modified Carryover Basis Rules; or
(ii) $5,000,000 Applicable Exclusion Amount and
Fresh Start Basis Rules
2011 and 2012
$5,000,000
2013
$1,000,000
PRACTICE TIP: For estates of decedents dying after 2010,

portability of the decedents unused exemption is available to a
surviving spouse only if a federal estate tax return was filed on a
timely basis in the predeceasing spouses estate, even if no return
would otherwise be required. Thus, in appropriate cases, the
lawyer should be careful to explain to a surviving spouse the
possible benefit of filing an estate tax return in cases in which a
return would not otherwise be needed, and let the surviving spouse
decide if the potential benefits of future use of the decedents
remaining exemption outweigh the cost and additional complexity
of completing the return.
12-12
2012 Revision
NOTE: Unless the law is changed, the unused (portable)

exemption otherwise available to a surviving spouse from his or
her predeceased spouse expires on December 31, 2012.
PRACTICE TIP: In view of the potentially unlimited federal
estate tax exemption applicable for 2010 deaths, and the large
exemption available for deaths after 2010, lawyers should carefully
review estate plans of existing clients for dispositive provisions
defined in terms of the maximum amount which can pass free of
federal estate tax or similar language. For example, many plans
have been drafted to leave to a testamentary trust (often called a
credit shelter trust or sometimes a family trust) the maximum
amount that can pass free of federal estate tax on the first death.
This plan, which may have made perfect sense for a couple when
the federal estate tax exemption was $600,000, may not make so
much sense with a $5,000,000 exemption.
12.1-2 Valuation of Property Included in Gross Estate
Sections 12.1-2(a) to 12.1-2(b) set forth general valuation rules
that apply to all items making up the gross estate. See 12.2-12 to 12.212(j) for discussions on the valuation of particular assets and information
concerning completion of the various schedules of the federal estate tax
return (IRS Form 706, available at <www.irs.gov/Forms-&-Pubs>).
12.1-2(a) Date for Valuation
Two possible dates may be used for valuing property included in
the decedents gross estatethe date of the decedents death or the
alternate valuation date. The alternate valuation date is six months after
the date of the decedents death or, if earlier, the date that the estate or
trust disposes of the property. IRC 20312032.
If the personal representative elects to use the alternate valuation
date, all property in the gross estate must be valued as of the alternate
date. In other words, all the property must be valued at either its date-ofdeath value or its value on the alternate valuation date.
If the alternate valuation date is elected and some property is
disposed of by sale, exchange, or other disposition within six months
12-13
2012 Revision
after the decedents death, that property is valued at the date of such
disposition instead of at the alternate valuation date. IRC 2032(a). The
date of distribution is the earliest of (1) the date of actual distribution,
(2) the date of the court order authorizing distribution (if the order
subsequently becomes final), or (3) the date the property is irrevocably
segregated from the other estate assets. Treas Reg 20.2032-1(c)(2).
The election to use the alternate valuation date must be made on
the first estate tax return filed by the personal representative of the estate.
The election may be made on a return filed late, as long as it is the first
return filed and is not more than one year late. IRC 2032(d). The
election, once made, is irrevocable. IRC 2032(d)(1). The irrevocability
of the election may make the decision whether to use the alternate
valuation date difficult for the personal representative, who may not
know whether the Internal Revenue Service or the courts will accept the
submitted valuations or whether all the decedents property has been
discovered and identified.
Under IRC 2032(c), the alternate valuation date election may not
be made unless the effect of the election is to reduce both the value of the
decedents gross estate and the estates federal estate tax liability.
Consequently, the alternate valuation date election may not be made for
the sole purpose of achieving a higher income tax basis under IRC
1014.
PRACTICE TIP: Use of the alternate valuation date should be
analyzed in terms of both the impact on the decedents federal
estate tax liability and the impact on the estates income tax basis
in the property subject to the election. In periods of volatile
marginal income tax rates, the use or forbearance of the election
could have a dramatic impact on income taxes payable with respect
to property included in the gross estate and sold shortly after the
decedents death.
12.1-2(b) Standard of Valuation
All property included in the decedents gross estate must be listed
at its fair market value. The fair market value is the price at which the
property would be sold by a willing seller to a willing buyer, neither
12-14
2012 Revision
being under a compulsion to sell or buy, and both being relatively

informed regarding all facts influencing value. The valuation is to be
made in the normal market for the asset, that is, generally the retail
market. Treas Reg 20.2031-1(b).
The asset must be valued even though no market may exist for the
asset. The standard excludes the use of forced-sale prices. This standard
further excludes the use of any subjective standard, such as the propertys
sentimental value to a particular person. The fair-market-value standard
may be vague and general, but it still must be applied to every item
included in the decedents gross estate. Treas Reg 20.2031-1(b).
As a practical matter, the use of this standard of valuation often
results in bargaining between the government and the taxpayer, with the
question finally resolved through compromise. Further discussion of
valuation procedures can be found in 12.2-12 to 12.2-12(r).
12.1-3 Items to Include in the Gross Estate
12.1-3(a) Generally
The two basic categories of items that must be included in the
decedents gross estate are (1) property that the decedent owned at the
time of his or her death and that is transferred by will or intestacy and
(2) interests that the decedent did not own on the date of death but are
statutorily included anyway. See Treas Reg 20.2031-1. In this latter
category are a number of property transfers that might otherwise be
attempted to avoid taxes that are applied only to testamentary dispositions. Thus, while IRC 2033 taxes the value of property owned by the
decedent at the time of his or her death, IRC 20342045 deal with
dower or curtesy interests, certain transfers within three years of death,
transfers with a retained life estate, transfers taking effect at death,
revocable transfers, annuities, joint interests, property subject to powers
of appointment, proceeds of life insurance, transfers for insufficient
consideration, and qualified terminable interests elected for the marital
deduction in the estate of a previously deceased spouse. The Internal
Revenue Code prevents avoidance of the estate tax by requiring that the
gross estate include money or property transferred by the decedent
12-15
2012 Revision
before death in a manner that is closely akin to a testamentary disposition.

12.1-3(b) Property Owned by Decedent
For property to be includable in the decedents gross estate under
IRC 2033, the decedent must own an interest in the property at the time
of his or her death. Section 2033 taxes interests in land and interests in
tangible and intangible chattels. Included are such property interests as
promissory notes (even though they have not matured), income tax
refunds, bonuses or commissions, stocks and bonds, debts due the
decedent, and any other choses in action that the decedent owned at the
time of his or death.
Under IRC 2033, property cannot be taxed in the estate of a
decedent if the decedent did not own the property at the time of his or her
death. In other words, any awards received under an action for wrongful
death are not taxable to the decedents estate because the decedent had no
interest in the right of action during his or her life. Rev Rul 54-19, 1954-1
CB 179, obsoleted in part by Rev Rul 2007-14, 2007-1 CB 747 (the later
ruling revised the income tax conclusions of the prior ruling). However,
recovery of damages for the decedents pain and suffering under survival
statutes is includable. Rev Rul 69-8, 1969-1 CB 219. See 15.3-1 to
15.3-8.
Municipal bonds that a decedent owned that are exempt from
federal income taxation are taxed under IRC 2033 because the tax is a
transfer tax, not a tax on the securities themselves.
The lawyer must remember that a future interest in property must
be transferable to another person upon the decedents death to be includable under IRC 2033. If the interest terminates upon the decedents
death, no interest exists to pass or transfer, so no interest is included in
the gross estate. However, this rule must be carefully distinguished from
the rules described in 12.1-3(d) to 12.1-3(d)(4), relating to transfers of
property by the decedent coupled with a retention of certain rights or
powers in the property transferred.
Any income that was accrued at the time of the decedents death,
such as interest on a bond or note, must be included in the decedents
12-16
2012 Revision
gross estate. Using the alternate valuation date does not normally require
inclusion of income accrued between time of death and the alternate
valuation date. See IRC 2032. Dividends on stocks are includable if the
right to the dividends has become vested before the decedents death, that
is, if the record date coincides with or precedes the date of death. If the
date of death precedes the record date but is after the stock has gone exdividend, the dividend must be added back to the mean quoted price to
arrive at the fair-market value as of the date of death (but is not added to
the alternate valuation date value). A similar adjustment may be required
for the alternate valuation date value if the stock was ex-dividend at that
date. See Treas Reg 20.2033-1.
The purpose of IRC 20332045 is to tax not only transfers made
by will and intestacy, but also any other transfers of property that might
have been used in an attempt to avoid the estate tax. IRC 2033 taxes the
transmission of property at death, while subsequent sections tax the
related transfers. Some of the sections following IRC 2033 tax completed inter vivos transfers and some tax transfers in which the decedent
has retained a partial interest in the property that has been transferred. It
is possible that some of these interests could be taxed under IRC 2033
even without the special treatment in IRC 20342045.
State law determines what interests in property a decedent held at
the time of his or her death, including interests created by trust, ownership interests the decedent had in insurance policies, and the nature of
future interests and powers of appointment. Once the interest determination is made, however, the manner of taxation is a question of
federal law. In determining or applying local law concepts, the federal
court is bound by decisions of the highest state court, but not by decisions
of lower courts. If no decision has been issued by the highest state court,
the federal court must make its own determination of applicable state
law, giving due regard to lower court decisions. See, e.g., Comerica
Bank, N.A. v. United States, 93 F3d 225, 228 (6th Cir 1996). A
determination of rights by a lower state court will not necessarily be
binding for federal estate tax purposes. C.I.R v. Boschs Estate, 387 US
456, 464465, 87 S Ct 1776, 18 L Ed2d 886 (1967).
12-17
2012 Revision
12.1-3(c) Gifts Made Within Three Years Before Death

Under federal law, adjustments are made to the decedents gross
estate to add back the value of certain gifts or transfers made within three
years of the decedents death. IRC 2035(a), (d). The statute applies if:
(1) The decedent transferred the property (or an interest in it), or
relinquished a power with respect to the property, for less than full and
adequate consideration (see IRC 2035(d));
(2) The transfer (or relinquishment of power) was made within
the three-year period ending on the date of the decedents death; and
(3) The value of the property (or interest in it) would have been
included in the decedents gross estate under IRC 2036, IRC 2037,
IRC 2038, or IRC 2042 if such transferred interest or relinquished
power had been retained by the decedent on the date of [his or her]
death (IRC 2035(a)).
NOTE: For deaths occurring before 1982, former IRC
2035(a)(b) required the inclusion of all post-1976 gifts (plus
federal gift taxes paid) if the decedent died within three years of
the gift, whether or not the gift was in contemplation of death.
Former IRC 2035(c) continues to apply only for purposes of
determining special tax treatment of distributions in redemption of
stock to pay death taxes (IRC 303(b)), special valuations of
certain real property (IRC 2032A), extensions of time for payment of the estate tax when the estate consists largely of interest in
a closely held business (IRC 6166), and certain tax liens.
PRACTICE TIP: Under IRC 2035, it is possible to remove
rapidly appreciating property from the donors estate even though
the donors death may be likely to occur within three years of the
gift. Although a gift tax may be due on the gift, the amount of the
tax will usually be less than the estate tax that would result at death
on the higher valuation of the appreciating property. Additionally,
a substantial amount of money or assets can be removed from the
estate by a series of deathbed gifts of $13,000 ($26,000 if giftsplitting is elected) to each donee (the annual exclusion in effect
during 2012). Under IRC 2035, these annual-exclusion gifts will
12-18
2012 Revision
not be brought back into the donors estate and will not be added to
the tax computation base for purposes of calculating the federal
estate tax.
For decedents dying after 1981, the Economic Recovery Tax Act
of 1981, Pub L No 97-34, 95 Stat 172, imposes a limitation on the IRC
1014 stepped-up basis provision in connection with the more liberal
IRC 2035 provision. Under this rule, IRC 1014 does not apply to
appreciated property acquired by the donee-decedent as a gift within one
year before death if, on death, such property passes from the doneedecedent to the original donor or the donors spouse. IRC 1014(e). In
this case, the basis of the property in the decedents hands is carried over
to the original donor or the donors spouse. IRC 1014(e)(1). This provision is intended to prevent individuals from transferring appreciated
property in contemplation of the donees death solely to obtain a steppedup basis on receipt of the property from the decedents estate.
In the Taxpayer Relief Act of 1997, Pub L No 105-34, 111 Stat
788, Congress added IRC 2001(f), which prohibits the Internal Revenue
Service (IRS) from revaluing prior taxable gifts for estate tax purposes
after the statute of limitations has expired for gift tax purposes. Before
this change, the IRS could wait for the grantor to die before questioning
the valuation of gifts made by the decedent during life, and adjust the
amounts of those gifts on the decedents estate tax return, at least as to
gifts for which the applicable credit amount was used but the gift tax was
not actually paid. Under the current rule, the value of the gift reported by
the decedent on a gift tax return will be fixed for federal estate tax
purposes, but only if the value of the gift shown on the gift tax return is
presented in a manner adequate to apprise the IRS of the nature of the
gift, and the gift tax statute of limitations has expired as of the date of
death.
12.1-3(d) Transfers Taking Effect at Death
Interests in property includable in the gross estate as transfers
taking effect upon the decedents death are generally of three distinct
types:
12-19
2012 Revision
(1) Transfers with a reservation of a life interest includable

under IRC 2036 (see 12.1-3(d)(1));
(2) Transfers dependent on survivorship includable under IRC
2037 (see 12.1-3(d)(4)); and
(3)
3(d)(5)).
Revocable transfers includable under IRC 2038 (see 12.1-
Each of these sections of the Internal Revenue Code, however,

excludes transfers that, although otherwise falling within the terms of the
particular section, are made for adequate and full consideration in money
or moneys worth.
12.1-3(d)(1) Transfers with a Reservation of a Life Interest
The decedents gross estate includes any property transferred by
the decedent in which the decedent directly or indirectly retains
(1) possession or enjoyment of the property, (2) the right to the income
from the property, or (3) the right to designate the persons who may
possess or enjoy the property or the income from it. IRC 2036.
The simplest of such transfers is when the grantor reserves a life
estate in the property transferred. However, IRC 2036(a) also includes
transfers in which the transferor reserves an interest for any period not
ascertainable without reference to [the decedents] death or for any
period which does not in fact end before [the decedents] death.
Treasury Regulation 20.2036-1(b)(1)(ii) gives an example in which the
transferor grants a life estate in property to a third party, reserves the
right to receive the income or other payment from the property, or to use
the property, after the death of the current recipient, and then predeceases
the holder of the first life estate. In such a case, all but the value of the
first life estate would be includable in the transferors estate.
If parents convey their residence to their children, reserving the
right to occupy the house rent-free for life, the transfer is taxable, and the
value of the property transferred must be included in the parents gross
estate. If a person creates a trust reserving the unqualified power to
require the trustee to pay that person the income from the trust for his or
her lifetime, the transfer creating the trust is taxable, resulting in all
12-20
2012 Revision
property in the trust being included in the decedents estate. Use of the
property after the transfer to discharge a legal obligation of the decedent,
such as for a dependents support, makes the transfer includable in the
decedents gross estate. Treas Reg 20.2036-1(c). Under the Uniform
Transfers to Minors Act (UTMA), if the donor names himself or herself
as custodian, the powers given to the custodian under the UTMA are
sufficient to make the gifted property includable in the donors estate.
Treas Reg 20.2041-1(c); see ORS 126.805126.886.
PRACTICE TIP: It is generally not desirable to have the
transferor serve as trustee unless the trustee is given absolutely no
discretionary powers.
A retained power to designate or determine the beneficiaries who
are to receive the income is sufficient to make the property includable in
the transferors estate under IRC 2036, even if the transferors right to
exercise the power is subject to a contingency beyond the transferors
control that does not occur before death. Rev Rul 73-21, 1973-1 CB 405.
Even if the transferor retains the power to appoint a successor trustee in
the event of vacancy, and no specific provision addresses the possible
appointment of the transferor, this possibility has been held to be
sufficient retention of a power for purposes of IRC 2036. Estate of
Farrel v. U. S., 553 F2d 637 (Ct Cl Apr 20, 1977).
In Revenue Ruling 95-58, 1995-2 CB 191, the Internal Revenue
Service (IRS) revoked former Revenue Ruling 79-353, 1979-2 CB 325,
which held that if the settlor retains the powers to remove the corporate
trustee and to appoint a successor corporate trustee, all the trustees
powers and discretion will be attributed to the settlor. The premise of
former Revenue Ruling 79-353 was that by appointing successive
corporate trustees, the settlor would eventually find a trustee who was
willing to bend to the settlors will to retain the appointment. Revenue
Ruling 95-58 modifies this result by holding that the settlors retention of
the powers to remove the trustee and to appoint a successor trustee, if
limited to the appointment of a trustee who is not related to or
subordinate to the settlor, will not result in attribution of the trustees
powers to the settlor. This change in position was a result of the rejection
of the IRSs position in several court decisions, including Estate of Wall
12-21
2012 Revision
v. C.I.R., 101 TC 300 (1993), and Estate of Vak v. C.I.R., 973 F2d 1409,
1414 (8th Cir 1992).
Much litigation has ensued regarding when a transferor has, in fact,
retained the right to the income from the trust, or whether or not the
income is being used to discharge the transferors legal obligations. Thus,
in Estate of Sessoms v. Commr, 8 TCM (CCH) 1056, 1058 (1949), the
Tax Court held that property was not includable in the transferors gross
estate even though the income from a trust payable to the transferors
wife could be used for the support of the wife and children because the
transferor could not compel such use. Also, if the power to divert income
is an exclusive discretionary power in the trustee, the transfer is not
taxable. C.I.R. v. Irving Trust Co., 147 F2d 946, 948 (2d Cir 1945).
As stated above, IRC 2036 also provides for inclusion if the
transferor retains the right to designate who will possess or enjoy the
transferred property or its income. If property is put in trust to
accumulate the income during the minority of certain named beneficiaries
and the trustor reserves the right to add other beneficiaries or to change
shares, the transfer is subject to taxation under IRC 2036(a)(2).
The United States Supreme Court, in U.S. v. Byrum, 408 US 125,
144147, 92 S Ct 2382, 33 L Ed2d 238 (1972), held that the donors
retention of voting rights in gifted stock was not a sufficient retention of
enjoyment to require inclusion of the stock in the donors estate under
IRC 2036. This holding has been reversed by statute. IRC 2036(b)(1)
now provides that the retention of voting rights with respect to shares of
stock of a controlled corporation must be considered to be retention of
the enjoyment of the transferred property, with the result that the property
would be includable in the transferors estate under IRC 2036. For this
purpose, the term controlled corporation means a corporation over which
the decedent, at any time after the transfer of such stock, or during the
three years before the decedents death, had actual or constructive
ownership of stock possessing at least 20% of the combined voting
power of all the classes of stock of the corporation. IRC 2036(b)(2).
The rule of IRC 2036(b) applies to the direct or indirect retention
of the right to vote shares of stock of a controlled corporation. For
12-22
2012 Revision
example, retention of voting rights may be found when the decedent

transferred the shares to a trust of which the decedent is the trustee, or
when a relative is the trustee and there is evidence of an arrangement to
follow the decedents directions.
When a transfer is includable in the transferors estate under IRC
2036, generally the propertys entire value is includable in the gross
estate at its date-of-death value, rather than the value of the retained
interest alone. Exceptions to this occur when the decedent grants an
interest in the property preceding his or her life interest and then
predeceases the first tenant. In this situation, the value of the preceding
estate must be subtracted from the total value of the property taxable to
the decedents estate. If the decedent reserves the right to the possession
of, or income from, only part of the transferred property, only that part
will be includable in the decedents gross estate. See Treas Reg
20.2036-1.
In recent years, limited partnerships and limited liability companies have been used routinely by estate planners as vehicles to hold
assets for distribution to younger-generation beneficiaries. The flexibility
inherent in these entities permits creative planning by passing ownership
of the entity to family members at discounts from the underlying asset
values, while enabling the older generation to retain significant control
over the entity. The IRS has been persistent in attacking the more
egregious examples. Although the challenges have largely been unsuccessful, the IRS has been gaining traction in recent years. See, e.g.,
Strangi v. C.I.R., 417 F3d 468 (5th Cir 2005), in which the Court of
Appeals for the Fifth Circuit affirmed the Tax Courts decision (TC
Memo 2003-145), which had concluded that the powers the senior
generation retained through their control of the corporate general partner
in a family limited partnership were sufficient to cause estate inclusion
under IRC 2036 of the assets held in the limited partnership. See also
Kimbell v. United States, 371 F3d 257 (5th Cir 2004); Estate of
Schauerhamer v. C.I.R., 73 TCM (CCH) 2855 (TC 1997); Estate v.
Commissioner, TC Memo 1997-242 (1997); Estate of Reichardt v. C.I.R.,
114 TC 144 (2000).
12-23
2012 Revision
12.1-3(d)(2) Federal Transfer Taxes and Estate Freezes

Background
For a number of years, transactions have been entered into that
have the effect of limiting the value of property held by an older
generation at its current value and passing any appreciation in the property to a younger generation. This is known as an estate freeze. In the
most common type of freeze, the older generation transfers common
stock or similar interests in a partnership to the younger generation while
retaining an interest with a preferred right to dividends, income, or a
limited right to share in the assets on liquidation. The preferred interest
holders estate would not include the companys growth in value because
his or her interest in the companys assets is frozen at a set value. In this
way, the older generation enjoys a steady income stream while
transferring the entitys growth in value to the younger generation.
The Internal Revenue Service perceived this practice as an abuse,
and prevailed on Congress to add IRC 2036(c) in the Revenue Act of
1987, Pub L No 100-203, 101 Stat 1330-382. The statute was
significantly amended by the Technical and Miscellaneous Revenue Act
of 1988, Pub L No 100-647, 102 Stat 3342. The section was designed to
be an anti-freeze provision to prevent what was perceived to be an
avoidance of the transfer-tax system. The approach of the section was to
treat an estate-freeze transaction as inherently testamentary and,
therefore, it included the value of the transferred interest in the donors
gross estate for federal estate tax purposes. The section adopted an
incomplete gift approach that leaves open the final transfer-tax consequences of the transaction until the time of death.
Many people viewed IRC 2036(c) as being overly broad and
unfair in its reach. It was repealed retroactively by the Revenue
Reconciliation Act of 1990, but this act adopted another method of
eliminating certain potential advantages of freeze transactions. See Pub L
No 101-508, 11601(a), 104 Stat 1388. These provisions are contained in
chapter 14 of subtitle B of the Internal Revenue Code, IRC 2701
2704. See 12.1-3(d)(3).
12-24
2012 Revision
12.1-3(d)(3) Overview of IRC Chapter 14 of Subtitle B

Chapter 14 of the Internal Revenue Code has rules relating to
transfers of interests in corporations and partnerships, transfers of
interests in trusts, the effect of buy-sell agreements, and the effect of
certain lapsing rights.
Section 2701 sets forth rules for valuing gifts of common stock and
partnership interests. Transferring an interest in a family-owned corporation or partnership to a member of the transferors family (as defined)
and retaining an applicable retained interest having a distribution right (as
defined) by an applicable family member (as defined) results in the
retained interest being valued at zero unless a qualified payment (as
defined) is the type of interest retained. IRC 2701.
Section 2702 provides that any retained interest in a GRIT
(grantor-retained income trust) or similar arrangement is valued at zero
unless it is structured in the form of an annuity or unitrust interest similar
to the form for retained payments used for qualified charitable remainder
trust gifts. IRC 2702.
Section 2703 provides that a value set by a buy-sell agreement will
be disregarded unless (1) it is a bona fide business arrangement, (2) it is
not a device to transfer property for less than full consideration, and
(3) the terms are comparable to those typically used in an arms-length
transaction. IRC 2703.
Section 2704 provides that a gift occurs when voting or liquidation
rights lapse, but the family retains control of the entity. It also provides
that the tax value of property is determined without regard to any
restriction that limits the ability of the business to liquidate and the
restriction either lapses after transfer or the transferor or a family member
can remove it. IRC 2704.
The foregoing is only a very brief summary of chapter 14. The
chapter is extremely complex and, like IRC 2036(c), many questions
arise about its proper application. It should be noted, however, that
although IRC 2036(c) had significant application in the determination of
federal estate tax, its replacement in chapter 14 primarily affects the
determination of gift tax liability.
12-25
2012 Revision
12.1-3(d)(4) Transfers Dependent on Survivorship

Transfers dependent on survivorship are included in the transferors gross estate. IRC 2037. Section 2037 provides that the value of
the gross estate must include the value of property transferred if (1) the
possession or enjoyment of the property can be obtained only by
surviving the decedent and (2) the decedent has retained a reversionary
interest in the property that is worth more than 5% of the propertys value
immediately before the decedents death.
Inclusion of property under this section requires both a retention of
a reversionary interest and a survivorship element. The interest is not
included unless the beneficiary must survive the decedent in order to
take. If the survivorship requirement is present, the interest still is not
included unless the decedent has retained a reversionary interest by the
express terms of the transfer instrument or, for transfers after October 7,
1949, by the express or implied terms. Finally, the reversionary interest
retained must be valued at more than 5% of the value of the property
immediately before the decedents death. IRC 2037. This valuation is
made according to the usual methods of valuation, including the use of
mortality tables and actuarial principles. Treas Reg 20.2031-7.
Treasury Regulation 20.2037-1(e), example (3), illustrates the
operation of this section of the Internal Revenue Code:
The decedent transferred property in trust with the income payable to
his wife for life and with the remainder payable to the decedent or, if
he is not living at his wifes death, to his daughter or her estate. The
daughter cannot obtain possession or enjoyment of the property
without surviving the decedent. Therefore, if the value of the
decedents reversionary interest immediately before his death
exceeded 5 percent of the value of the property, the value of the
property, less the value of the wifes outstanding life estate, is
includible in the decedents gross estate.
On the other hand, if the decedent transferred property in trust

with the income payable to his wife for life and, at her death, remainder
to the decedents then surviving children or, if none, to the decedent or
his estate, no part of the property is includable in the decedents gross
12-26
2012 Revision
estate because each beneficiary may possess or enjoy the property

without surviving the decedent. Treas Reg 20.2037-1(e), example (1).
The regulations concede that the term reversionary interest does
not include the possibility that the decedent during [the decedents]
lifetime might have received back an interest in transferred property by
inheritance through the estate of another person or as dower, curtesy,
or a statutory substitute from the spouse. See Treas Reg 20.20371(c)(2).
12.1-3(d)(5) Revocable Transfers
The transferors gross estate must include revocable transfers, that
is, transfers in which the transferor has directly or indirectly reserved the
power to alter, amend, revoke, or terminate the transfer. IRC 2038.
However, the power must be in existence at the time of the decedenttransferors death unless it was relinquished in contemplation of death
(for relinquishment before 1977) or within three years of death (if
relinquished after 1976). (Note that the rules of former IRC 2035
continue to apply for this purpose.) The existence of the power results in
the value of the property covered by the trust being included in the
transferors gross estate.
The transfers includable under IRC 2038 are usually referred to as
revocable trusts, but the section includes transfers by trust or
otherwise. IRC 2038(a).
In addition, the section applies not only when the transferor holds a
power to revoke, but also when the enjoyment of the transfer is subject to
any change through the exercise of a power to alter, amend, revoke, or
terminate. IRC 2038(a). To have a taxable transfer, it is not required that
the trustor have all these powers (to alter, amend, revoke, and terminate);
it is sufficient if only one of these powers is held. All that is required is
that the donor have the power to change the beneficial enjoyment of the
property. At the same time, a power to revoke or alter only part of the
trust causes inclusion of only that part, and not the entire trust. Laura B.
Alexander Est., 2 TCM (CCH) 1156, 11581159 (1943). Although a
contingent power to alter, amend, or revoke is not covered by IRC 2038,
it may possibly be taxed under IRC 2037, discussed in 12.1-3(d)(4).
12-27
2012 Revision
The power to change the ultimate beneficiaries or to vary the

distribution of shares is a power to alter; it makes the property includable
in the transferors gross estate. Guggenheim v. Helvering, 117 F2d 469,
475 (2d Cir 1941).
In Lober v. United States, 346 US 335, 336337, 74 S Ct 98, 98
L Ed 15 (1953), the Supreme Court held that the power to terminate a
trust causes inclusion, even if the power is to be exercised by the
decedent only as a trustee and only in the best interests of the
beneficiaries. In the Lober case, the decedent created a trust in favor of
his child that would be terminated and the principal paid over to the child
when the child reached age 25. However, the decedent retained the power
to pay all or any part of the principal to the child before the termination
date, thus allowing the decedent to terminate the trust either completely
or partially at an earlier date. Lober, 346 US at 336.
The property subject to the power to alter, amend, revoke, or
terminate is valued as of the date of the decedents death or as of the
alternate valuation date. Any accumulated income and capital gains
accruing after the trusts creation are also includable. Guggenheim, 117
F2d at 475.
12.1-3(e) Annuities
12.1-3(e)(1)
Generally
Section 2039 taxes annuities and individual retirement accounts or

other payments receivable by any beneficiary by reason of surviving the
decedent. IRC 2039. If the annuity purchased by the decedent is a
straight life annuity resulting from a bona fide purchase for adequate and
full consideration, nothing is taxed to the decedents estate at death, since
there is no residual value. IRC 2039(a). If the annuity is a refund
annuity, any refund due at the annuitants death is taxable either as
property that was owned on the date of the decedents death, under IRC
2033, or as a transfer over which the decedent retained the power to
alter or amend, under IRC 2038.
However, if a decedent purchases an annuity that is to be paid to
the decedent during the decedents life and to a survivor after the
decedents death, IRC 2039 requires that the decedents gross estate
12-28
2012 Revision
include the amount allocable to the consideration paid for the annuity by
the decedent or by the decedents employer if paid by reason of the
decedents employment. IRC 2039(b). Thus, the amount includable is
the proportion of the annuity receivable by the beneficiary that the
contribution paid by the decedent (or the decedents employer) bears to
the total purchase price of the annuity.
12.1-3(e)(2)
Exclusions
PRACTICE TIP: The former $100,000 federal estate tax

exclusion is generally not applicable to decedents dying after
December 31, 1984. However, any retirement benefits the decedent was receiving at the time of death should be reviewed
carefully. To the extent it can be shown that the decedents retirement benefit was in pay status on December 31, 1984, pursuant to
an irrevocable election made before July 18, 1984, the $100,000
exclusion may be available to the estate. The exclusion is
important because it could result in substantial savings. See former
IRC 2039(e) (prior to being amended by 525 of the Tax Reform
Act of 1984, Pub L No 98-369, 98 Stat 494).
12.1-3(e)(3)
Rollover of Lump-Sum Distributions to IRAs
If the decedent-employees surviving spouse is the beneficiary of a

lump-sum distribution from a qualified plan or a distribution from the
decedents individual retirement account (IRA), it may be possible to roll
over the distributed amount into an IRA established by the surviving
spouse and to thereby obtain an exclusion from gross income for the
proceeds rolled over (for income tax purposes). For a distribution from a
qualified plan (IRC 402(c)(9)) and a distribution from an IRA (IRC
408(d)(3)), this special rollover provision applies only to the decedents
surviving spouse, and only to a distribution paid after the employees
death. The income tax exclusion applies only to the portion of the amount
rolled over that is attributable to contributions by someone other than the
decedent. In addition, the rollover to the IRA must occur within 60 days
of the receipt of the lump-sum distribution by the decedents surviving
spouse. IRC 408(d)(3)(A). The portion of the lump-sum distribution not
12-29
2012 Revision
qualifying for rollover treatment will be taxable to the beneficiary on

receipt. IRC 408(d)(1), IRC 72(a).
12.1-3(f)
Joint Interests with Right of Survivorship
Because property held in a tenancy by the entirety or in joint

tenancy with right of survivorship automatically passes to the surviving
tenant or tenants rather than to the estate of a deceased tenant, a favorite
way to avoid probate costs and delay is to hold property in one of these
two ways. However, because the survivorship characteristic of joint
ownership has an effect similar to that of a testamentary disposition, IRC
2040 provides for the taxation of such joint interests.
Section 2040 taxes only joint interests involving the survivorship
characteristic and therefore does not tax tenancies in common, in which
the interest of each tenant passes as part of the estate and not
automatically to the joint tenant. The decedents interest as a tenant in
common is taxed under IRC 2033.
Except for property held jointly between husband and wife (see
IRC 2040(b)), IRC 2040(a) requires that the entire property held in
joint tenancy be included in the estate of the first tenant to die, subject to
the right of the surviving tenant to show that he or she contributed part of
the property or the consideration for the property. If this can be shown,
then part of the property proportionate to the survivors contribution is
excluded from the decedents gross estate. The amount that is excluded
from the estate of a deceased joint tenant (or tenant by the entirety)
because of the surviving tenants contribution is not the amount that the
survivor contributed, but the part of the property that is proportionate to
the surviving tenants contribution.
Proving the amount of a surviving tenants contribution may be a
difficult task. The burden is on the decedents estate to prove which part
of the jointly held property was contributed by the survivor. This is
particularly difficult in the case of joint bank accounts because it must be
shown not only that the survivor deposited funds in the account but that
the deposited funds were not withdrawn.
For estates of decedents dying after 1982, IRC 2040 provides
special treatment for qualified joint interests. The term qualified joint
12-30
2012 Revision
interest includes any interest in property held by the decedent and his or
her spouse as tenants by the entirety or joint tenants with right of
survivorship, but only if the decedent and his or her spouse are the only
joint tenants. IRC 2040(b)(2). The effect of the 1981 amendment to IRC
2040 is to remove the element of contribution when dealing with a
spousal joint interest with right of survivorship. Thus, as long as a
qualified joint interest is present, the personal representative will simply
include in the decedents estate one-half of the value of the entire
property without regard to the respective contributions of each spouse.
NOTE: By including only one-half of the joint interest in the
decedents gross estate, a stepped-up tax basis is acquired only in
that half. The other one-half interest retains the basis existing
before death.
In a series of cases interpreting the effect of the automatic 50%
inclusion rule under IRC 2040 to joint interests created before 1977,
taxpayers have successfully argued that the Economic Recovery Tax Act
of 1981 (ERTA 1981), Pub L No 97-34, 95 Stat 172, did not expressly or
impliedly repeal the effective date of the 50% inclusion rule. Therefore,
joint property acquired before January 1, 1977, is not covered by the
automatic 50% rule. See Gallenstein v. United States, 975 F2d 286, 290
291 (6th Cir 1992); Patten v. United States, 116 F3d 1029 (4th Cir 1997);
Hahn v. C.I.R., 110 TC 140, 143144 (1998) acq., 2001-42 IRB 319,
2001-2 CB XV (2001), and acq. recommended by 2001 WL 1249964
(Oct 15, 2001).
By its acquiescence in the Hahn decision, the Internal Revenue
Service has announced that it will no longer challenge this treatment of
joint interests acquired before January 1, 1977. To qualify under this rule,
the property must have been owned as of the date of death by the
decedent and a surviving spouse (with no other persons) as joint tenants
with right of survivorship, and the spouses must have acquired the
property in that joint form before January 1, 1977. If these requirements
are met, the rule results in the inclusion in the first spouses estate of a
proportionate share of the property based on contribution, but it does not
result in any additional estate tax because the value is covered by the
12-31
2012 Revision
marital deduction, while providing a larger adjusted basis in the property

for income tax purposes.
PRACTICE TIP: When gathering information for the federal
estate tax return of the first spouse to die, the lawyer should look
for real property that the spouse may have acquired before 1977,
and consider whether it would be beneficial to calculate the
includable interest based on the pre-ERTA 1981 principles of
contribution.
12.1-3(g) Powers of Appointment
Powers of appointment are divided into those created on or before
October 21, 1942, and those created after that date. IRC 2041. For
powers of appointment created on or before October 21, 1942, only the
exercise of a general power of appointment now results in inclusion in
the decedents gross estate. The nonexercise or release of such a power is
not taxed. For powers of appointment created after October 21, 1942, the
interest is includable if the general power is exercised or released by a
transfer in contemplation of death or by a transfer that takes effect at
death. In addition, a tax is imposed when the general power is in
existence at the time of the donees death, whether or not it is exercised
by the decedents testamentary will or trust. IRC 2041(a)(2). The
possession, not the exercise, of the general power now controls.
PRACTICE TIP: Although powers of appointment predating
October 21, 1942, are not very common, such powers exist, and
the right to exclude the property by nonexercise of the power can
result in substantial tax savings.
Section 2041 provides for the inclusion of interests subject to a
general power of appointment because the donee of such a power has
substantial incidents of ownership in that property. The statute defines
general power of appointment as a power over property that may be
appointed to the donee, the donees estate, the donees creditors, or the
creditors of the donees estate. IRC 2041(b)(1). Exceptions exist to the
taxability of such a general power of appointment. Thus, a power
allowing the donee to invade or consume property that is limited by an
ascertainable standard relating to the health, education, support, or
12-32
2012 Revision
maintenance of the donee is not regarded as a general power. IRC

2041(b)(1)(A).
If a power gives the income beneficiary of a trust the right to
withdraw principal to the extent needed for the beneficiarys support and
the power is limited by an ascertained standard related to the purposes set
forth in IRC 2041(b)(1)(A), it is not a taxable general power of
appointment. Yet if the power is limited by a standard that uses such
words as comfort, welfare, or happiness, the assets subject to the power
are includable in the gross estate. Treas Reg 20.2041-1(c)(2).
PRACTICE TIP: This provision can be dangerous if a trustee is
given the power to invade principal for his or her own benefit. The
language of the trust should not broaden the standard for invasion
beyond that permitted by the statute if the trust assets are to be
excluded from the trustees estate.
If the power of appointment exists with respect to only a part of a
group of assets, or as to a limited interest, only that part or interest is
includable in the gross estate. Treas Reg 20.2041-1(b)(3).
If the decedent and other persons hold a power of appointment
jointly, the flexibility of the power depends on the rights held by the
other persons. If the power may be exercised only by the decedent jointly
with the creator of the power, it is not a taxable power. Nor is it a taxable
power if it may be exercised only with the consent or approval of a
person having a substantial interest in the property that is adverse to the
exercise of the power in favor of the decedent, the decedents creditors,
the decedents estate, or the creditors of the decedents estate. IRC
2041(b)(1)(C).
12.1-3(h) Life Insurance
Under IRC 2042(1), the decedents gross estate includes the value
of amounts receivable by the executor as insurance on the life of the
decedent.
The gross estate also includes the value of amounts receivable by
other beneficiaries under insurance policies on the decedents life with
respect to which the decedent possessed at the time of death any incidents
12-33
2012 Revision
of ownership, exercisable by the decedent alone or in conjunction with

any other person. IRC 2042(2). For this purpose, a reversionary interest
exceeding 5% of the value of the policy immediately before the
decedents death is deemed to be an incident of ownership. However, the
fact that the decedent might receive a policy or its proceeds by inheritance through the estate of another person does not constitute a
reversionary interest. Treas Reg 20.2042-1(c)(3).
Life insurance includes accidental-death policies, as well as war
risk insurance, and proceeds from life insurance policies issued under the
World War Veterans Act of 1924, 38 USC 1988, the National Service
Life Insurance Act of 1940, 38 USC 1901 et seq., and the Servicemens
Indemnity Act of 1951, 38 USC 1301 et seq. The amount to be included
in the decedents gross estate is the full amount receivable under the
policy.
If an agreement exists in which insurance on the decedents life is
purchased by a business associate and the proceeds of such insurance are
to be used as payment for the decedents share of the business, the
interest included in the gross estate is the decedents share of the
business, not the value of the insurance, although the amount of the
insurance may affect the value of the business. Rev Rul 56-397, 1956-2
CB 599 (1956).
The current test for inclusion of insurance proceeds in the
decedents estate is whether the decedent held any incidents of ownership
in the policy (such as the right to change the beneficiary or the right to
borrow on the policy). For insurance policies transferred by a decedent
within three years before death, the entire proceeds are includable under
IRC 2035.
In IRS Action on Decision 1991-012, 1991 WL 771258 (July 3,
1991), the Internal Revenue Service (IRS) announced its acquiescence to
the result in Estate of Headrick v. C.I.R., 918 F2d 1263 (6th Cir 1990). In
Estate of Headrick, the Sixth Circuit held that the proceeds of a life
insurance policy were not includable in the decedents gross estate when
the decedent never owned the policy, notwithstanding the fact that the
policy was purchased at the decedents instance, the decedent paid the
12-34
2012 Revision
premiums, and the decedent died within three years after the policy was
issued. The decedent had established an irrevocable life insurance trust
within three years of death, and the independent trustee used the
decedents contributions to the trust to purchase a new life insurance
policy on the decedents life. Estate of Headrick, 918 F2d at 12661268.
PRACTICE TIP: When establishing an irrevocable life insurance trust, the lawyer should attempt to come within the protection
afforded by the IRSs acquiescence in the Estate of Headrick case.
Thus, the trustee (rather than the insured) should apply for the
policy, and pay all premiums and costs associated with the policy,
even though the funds to do so are derived from contributions by
the settlor of the trust.
The IRS previously took the position that life insurance owned by
a corporation in which the insured was either the sole or a controlling
shareholder would be includable in the decedents estate as a policy in
which the decedent held an incident of ownership, that is, the control of
economic benefits. The regulations now provide that proceeds on policies
payable to the corporation or payable to a third person for a valid business purpose, such as satisfaction of business debts of the corporation,
will not be taxed in the estate, but those proceeds are to be considered as
nonoperating assets of the corporation for purposes of determining the
value of the stock owned by the decedent. If the proceeds are not paid to
the corporation or to third persons for valid business purposes, the
incidents of ownership are attributed to the decedent and the policy
proceeds are included in the decedents gross estate. Treas Reg 20.20421(c)(6).
Group insurance in which the decedent held any incident of
ownership is includable in the decedents gross estate under IRC 2042.
Treas Reg 20.2042-1(c)(6). The question of includability in regard to an
employees assignment of all the employees incidents of ownership in a
group policy was considered by the IRS in Rev Rul 69-54, 1969-1 CB
221 (1969), which recognizes the possibility of complete assignment of
all incidents of ownership, but only if the transfer is permitted under state
law and is allowed under the policy. However, this ruling suggests that
state law must specifically permit assignment of conversion rights under
12-35
2012 Revision
the policy. It holds that any of these rights constitutes an incident of

ownership, which, if retained by the insured, results in inclusion of the
proceeds in the insureds estate under IRC 2042. After this ruling, many
states passed laws specifically permitting the insured to assign all rights
under a group policy. Oregon law permits assignment if the assignment is
provided for in the policy. ORS 743.043. In a subsequent ruling, the IRS
considered this issue and determined that if a decedent transferred all the
incidents of ownership in a group policy, retaining only the right to
convert the policy to an individual policy should the decedent cease
employment, the retained conversion rights will not result in inclusion
under IRC 2042. Rev Rul 84-130, 1984-2 CB 194 (1984).
12.1-4 Deductions from the Gross Estate
12.1-4(a) Generally
To arrive at the taxable estate (to which adjusted taxable gifts are
added to arrive at the tax computation base used to calculate the tentative
tax amount), any of the following applicable deductions must first be
applied:
(1)
Expenses, indebtedness, and taxes (see 12.1-4(b) to 12.1-
(2)
Losses (see 12.1-4(h));
4(g));
(3) Transfers for public, charitable, and religious uses (see

12.1-4(i) to 12.1-4(i)(2)); and
(4)
The marital deduction (see 12.1-5(a) to 12.1-5(d)).
These deductions are described in IRC 20532056.

12.1-4(b) Expenses, Indebtedness, and Taxes
Several items are deductible from the decedents gross estate under
IRC 2053, including funeral expenses, administration expenses, claims
against the estate, and unpaid mortgages or any indebtedness in respect of
property included in the gross estate. IRC 2053(a). These deductions are
subject to some limitations, such as the requirement that the deduction
must be allowed by the laws of the jurisdiction where the estate is being
administered. IRC 2053(a). Also, the deductions may not exceed the
12-36
2012 Revision
value of the property included in the gross estate that is subject to the
claims, except to the extent that such deductions represent amounts paid
before the expiration of the period of limitation for assessment provided
in section 6501 (within three years after the date for filing the return,
i.e., normally three years and nine months after the date of death). IRC
2053(b); see IRC 6501.
If a decedent had transferred most of his or her property to an inter
vivos trust that was includable in the decedents gross estate, then funeral
expenses, debts, and other expenses that were, in fact, paid by beneficiaries, as well as expenses of administering the trust that were paid out
of the trust assets, are allowed as deductions if paid within three years
after the date for filing the return. The term property subject to claims is
defined as property includable in the decedents gross estate that would
bear the burden of the payment of such deductions in the final
adjustment and settlement of the estate. IRC 2053(c)(2). In an estate
consisting entirely of joint tenancy property, none of the property is
legally subject to claims, but under the statute, the surviving joint tenant
would not lose the ability to take the deductions, as long as the amounts
are actually paid within the period provided.
In 2009, the Internal Revenue Service (IRS) issued final regulations detailing the circumstances under which contingent or unpaid
claims may be deducted. The regulations (Treas Reg 20.2053-1) apply
to decedents dying on or after October 20, 2009, Treas Reg 20.20531(f), and provide detailed guidance. The lawyer should review the
regulations if a deduction is sought for a claim or expense that has not
been paid before the filing of the federal estate tax return. Generally, the
amount that may be deducted as a claim, expense, or debt must either be
paid by the date the federal estate tax return is filed or meet one of
several alternate tests. If the claim, expense, or debt does not qualify for
deduction as of the date the federal estate tax return is filed, the executor
may file a protective claim for refund to preserve the estates right to
claim a deduction under IRC 2053(a). Treas Reg 20.2053-1(d)(4)(ii),
(5). An amount that remains contingent or unascertainable as of the close
of the statute of limitations for filing a refund claim is not deductible.
12-37
2012 Revision
Some of the key points addressed in the regulations permitting a

deduction for amounts that have not been paid by the date of the filing of
the federal estate tax return include the following:
(1) The amount of an expense, claim, or debt may be determined by a final decision of a court of competent jurisdiction over the
administration of an estate that reviews and approves the expenditure if
the court actually considers and rules on the facts upon which
deductibility depends, Treas Reg 20.2053-1(b)(3);
(2) A consent decree may establish the amount if the consent
resolves a bona fide issue in a genuine contest, Treas Reg 20.20531(b)(3)(iii);
(3) The amount of a claim, expense, or debt may be established
by a settlement that resolves a bona fide issue in a genuine contest and is
the product of arms-length negotiations by parties having adverse
interests with respect to the subject matter of the claim or expense,
Treas Reg 20.2053-1(b)(3)(iv);
(4) No deduction is allowed to the extent that the claim or
expense is or could be compensated for by insurance or otherwise could
be reimbursed, Treas Reg 20.2053-1(d)(3);
(5) An amount may be deducted as an expense or claim if the
IRS is satisfied that the amount to be paid is ascertainable with
reasonable certainty and will be paid, Treas Reg 20.2053-1(d)(4)(i)
(for example, a personal representatives fee that has not yet been paid
may be deducted if the amount ultimately to be paid is ascertainable with
reasonable certainty despite the fact that the fee has not been paid by the
time the federal estate tax return is filed); and
(6) The amount of interest on a deductible claim is also deductible as a claim to the extent of interest accrued as of the date of the
decedents death and that is actually paid or ascertainable with reasonable
certainty; the deduction includes only interest accrued through the date of
death even if the executor elects the alternate valuation date, Treas Reg
20.2053-4(e)(1).
12-38
2012 Revision
12.1-4(c) Mortgages
A mortgage on an indebtedness on property is deductible from the
decedents gross estate only if the decedents interest in the property is
included in the gross estate without first being reduced by such mortgage
or indebtedness. IRC 2053(a)(4). If the decedent and others are jointly
and severally liable, the amount to be deducted is the portion of the total
debt for which the decedent is liable. Parrott v. C.I.R., 30 F2d 792, 793
(9th Cir 1929).
Indebtedness that is secured by property included in the decedents
gross estate but that exceeds the value of such property is not deductible
unless the decedent was personally liable for such indebtedness. Estate of
Malkin v. C.I.R, 98 TCM 225 (TC 2009). Thus, nonrecourse indebtedness
is generally deductible only to the extent of the fair-market value of the
property that secures such indebtedness.
12.1-4(d) Funeral Expenses
Funeral expenses deductible under IRC 2053 include reasonable
amounts for a tombstone, monument, or mausoleum; the cost of a burial
lot for the decedent or the decedents family; and the cost of transporting
the person bringing the body to the place of burial. Treas Reg 20.20532.
12.1-4(e) Administration Expenses
According to the regulations, administration expenses under IRC
2053(a) are expenses that are actually and necessarily, incurred in the
administration of the decedents estate; that is, in the collection of assets,
payment of debts, and distribution of property to the persons entitled to
it. Treas Reg 20.2053-3(a).
12.1-4(e)(1)
Executors Commissions and Attorney Fees
Expenses of administration allowed under local law that are

deductible from the decedents gross estate include executors commissions and attorney fees. IRC 2053(a). At the time of filing the return, the
exact amounts of commissions and fees may not be known, but a
deduction may be claimed in an estimated amount, subject to the
requirements set forth in Treasury Regulation 20.2053-1(d)(4) that the
12-39
2012 Revision
amounts will be paid and the amount of the fees is reasonably

ascertainable. If the commissions and fees have not been finally
determined at the time of audit, the Internal Revenue Service agent will
require (1) an affidavit from both the executor and the lawyer regarding
the amount of commissions and fees that will be claimed in the estate and
(2) an agreement to future adjustment if the amounts are not later paid.
The amount of the commissions and attorney fees claimed as a deduction
must be in accordance with the usually accepted standards and practice of
allowing such an amount in estates of similar size and character. Treas
Reg 20.2053-3.
If litigation ensues regarding the amount of the estate tax, additional attorney fees will be incurred for services rendered in connection
with this dispute. The amount of these attorney fees may not be known
until the estate tax liability is finally settled, and a deduction for
additional attorney fees will be allowed only if the petition or complaint
includes a prayer for the additional fees. Cleveland v. Higgins, 148 F2d
722, 724 (2d Cir 1945); Bohnen v. Harrison, 232 F2d 406, 409410 (7th
Cir 1956).
PRACTICE TIP: In all claims for a refund or petitions to the
Tax Court, the lawyer must include a deduction for attorney fees to
be incurred in the dispute. It is not necessary to estimate the
amount of fees at the time of filing the claim or petition.
12.1-4(e)(2)
Estate Tax Versus Income Tax Deductions
Administration expenses may be claimed as estate tax deductions

on the estate tax return or as income tax deductions on the return in the
year paid, but not on both returns. IRC 642(g). Amounts allowable
under IRC 2053 and IRC 2054 as deductions in computing the taxable
estate are not allowed as deductions in computing the taxable income of
the estate unless a statement is filed (1) stating that the amounts claimed
have not been allowed as deductions in computing the taxable estate and
(2) waiving the right to have such amounts allowed as estate tax
deductions at any time. IRC 642(g).
PRACTICE TIP: The above statement must be filed in duplicate. See Treas Reg 1.642(g)-1. It is not essential that the
12-40
2012 Revision
statement be filed with the income tax return, but it must be filed
before the expiration of the statutory period of limitation
applicable to the taxable year for which the deduction is sought.
Rev Rul 53-240, 1953-2 CB 79.
NOTE: The lawyer should determine the effective estate tax
rate before deciding whether to take a particular deduction on the
estate tax return or on the estates income tax return. Depending on
the year of the decedents death, the effective federal estate tax
rates on estates in excess of the applicable credit amount ranges
from 35% to a maximum rate of 55%. See 12.1-6(b). In cases in
which the federal estate tax rate is higher than the income tax rate,
it is probably desirable to claim the expenses on the federal estate
tax return.
When a marital deduction is allowable (see 12.1-5(a) to 12.15(d)), the effective estate tax rate may actually be zero for decedents
dying after 1982. Note, however, that administration expenses, as a
charge against principal, could reduce the principal passing to the
surviving spouse and thus the allowable marital deduction, so that some
estate tax could result from deducting administration expenses for
income tax purposes, unless protected by the exclusion equivalent
amount. In many cases, an advantage may exist in electing to waive
administration-expense deductions as estate tax deductions, and to claim
the deductions against estate income, when the income tax savings may
exceed any extra estate tax cost. If the deductions exceed income in the
final income tax period of the estate, the excess income tax deductions
are carried over to the beneficiaries to be deducted by them on their own
returns. IRC 642(h).
In response to the decision in Commr v. Estate of Hubert, 520 US
93, 117 S Ct 1124, 137 L Ed2d 235 (1997), the Treasury Department
issued new regulations under IRC 2056. In Estate of Hubert, 520 US at
105107, the Court held that the administrator of an estate that had
incurred sizable litigation expenses could properly charge a portion of the
expenses to income earned during the proceedings, and could also claim
the entire amount of expense on the federal estate tax return. The final
regulations separate expenses of administration into estate transmission
12-41
2012 Revision
expenses and estate management expenses. Treas Reg 20.2056(b)4(d). Estate-transmission expenses (whether charged to the income or
principal of the marital portion of the estate) will reduce the value of the
marital property. Treas Reg 20.2056(b)-4(d)(2). Estate-management
expenses, on the other hand, will not reduce the value of the marital
property even if claimed as an income tax deduction. Treas Reg
20.2056(b)-4(d)(3). The regulations take the position that estatetransmission expenses are but for expenses: these expenses would not
have occurred but for the decedents death. Treas Reg 20.2056(b)4(d)(1)(ii). The regulations also include a catchall definition by
classifying as estate-transmission expenses any administration expense
that is not a management expense. Treas Reg 20.2056(b)-4(d)(1)(ii).
Estate-management expenses are those expenses incurred in
connection with the investment of estate assets or with their preservation
or maintenance during a reasonable period of administration. Treas Reg
20.2056(b)-4(d)(1)(i). Examples provided in the regulations include
investment advisory fees, stock brokerage commissions, custodial fees,
and interest. Treas Reg 20.2056(b)-4(d)(1)(i). Litigation expenses that
would have been incurred irrespective of the decedents death should
qualify as management expenses; litigation expenses resulting from the
decedents death (e.g., expenses of a will contest) would be classified as
transmission expenses.
PRACTICE TIP: In an estate in which the expenses of administration are expected to be significant, the lawyer should consider
the potential advantage of classifying the expenses into the estatemanagement and estate-transmission categories. The normal rule
prohibiting a deduction for both income and estate tax purposes
does not apply to the extent that particular expenses can be shown
to be estate-management expenses.
PRACTICE TIP: The prudent lawyer will determine where the
greatest tax advantage will be achieved with the administrationexpense deductions. To do so, the lawyer must determine the
estates effective estate tax rate, the estates income tax rates, and
the anticipated income tax rates of the estates residuary bene12-42
2012 Revision
ficiaries. Generally, administration expenses must be paid during

the tax year to be claimed as income tax deductions for that year.
If the personal representatives fees are waived, they may not be
deducted unless the waiver is withdrawn at a later time and the fees are,
in fact, paid, or unless the waiver by one personal representative does not
affect other personal representatives who receive payment. The decision
to waive fees payable to a personal representative who is also a residuary
beneficiary of the estate should be made only after carefully comparing
the marginal income and estate tax rates. With the reduction in estate tax
rates in recent years, combined with the increase in the applicable
exclusion amount, waiver of fees by the personal representative will
likely be significant in a larger number of estates (since the larger applicable exclusion amount will likely result in fewer estates being subject to
estate tax).
PRACTICE TIP: If the personal representative is an individual
and an estate beneficiary, the lawyer should compare the income
tax cost to estate tax savings in determining whether the personal
representatives commission should be waived.
12.1-4(e)(3)
Miscellaneous Administration Expenses
Miscellaneous administration expenses that may be deducted from

the decedents gross estate under IRC 2053 include such expenses as
court costs, accountants fees, appraisers fees, and clerks compensation.
Treas Reg 20.2053-3(d)(1).
Expenses necessarily incurred in preserving and distributing the
estate are deductible, including the cost of storing or maintaining
property of the estate if it is impossible to effect immediate distribution to
the beneficiaries. Treas Reg 20.2053-3(d)(1). Expenses for preserving
and caring for the property may not include outlays for additions or
improvements, nor will such expenses be allowed for a longer period
than the executor is reasonably required to retain the property. Treas
Reg 20.2053-3(d)(1).
A brokerage fee for selling property of the estate is deductible if
the sale is necessary in order to pay the decedents debts, expenses of
administration, or taxes, to preserve the estate, or to effect distribution.
12-43
2012 Revision
Treas Reg 20.2053-3(d)(2). Other expenses attending the sale are

deductible, such as the fees of an auctioneer if it is reasonably necessary
to employ one. Treas Reg 20.2053-3(d)(2). However, expenses of sale
are subject to the rules disallowing a double deduction of expenses and
requiring an election in claiming the deduction for income tax purposes
or estate tax purposes. IRC 642(g).
PRACTICE TIP: When the estate is liable for estate taxes, the
deduction for expenses of selling estate property should generally
be taken for estate tax purposes, because the current maximum tax
rate on capital gains, for income tax purposes, is lower than the
lowest federal estate tax rate.
12.1-4(e)(4)
Interest on Estate or Income Tax Liabilities
Interest expenses incurred by the estate to pay income tax liabilities of the decedent or death tax liabilities of the estate are deductible to
the extent allowable under local law, unless waived as an estate tax
deduction and claimed as an income tax deduction. Rev Rul 69-402,
1969-2 CB 176 (1969); Rev Rul 78-125, 1978-1 CB 292. In Revenue
Ruling 78-125, the Internal Revenue Service (IRS) acquiesced in a Tax
Court decision, Estate of Bahr v. Commr of Internal Revenue, 68 TC 74,
82 (1977), acq., 1978-2 CB 1 (1978), which held that interest on the
unpaid balance of estate taxes deferred under IRC 6161 is deductible as
an administration expense under IRC 2053(a)(2). Note that in Estate of
Bahr, 68 TC at 83, the Tax Court permitted the estate to claim a
deduction for projected interest that the estate expected to pay during
the administration of the decedents estate. Treas Reg 20.2053-1, Treas
Reg 20.2053-4. The regulations now limit those deductions to the
amounts actually paid, necessitating the filing of periodic claims for
refund during the estate-administration process. Treas Reg 20.20531(d), Treas Reg 20.2053-4(a).
In Lasarzig v. C.I.R., 78 TCM (CCH) 448 (TC 1999), the Tax
Court upheld the IRSs determination that the estate would not be entitled
to deduct, as an administration expense, interest paid on a loan secured
by property received from the estate, even though the purpose of the loan
was to pay federal estate tax. The Tax Court held that to be deductible as
12-44
2012 Revision
an administration expense, the interest must be incurred and paid

pursuant to a deferral agreement (e.g., an agreement under IRC 6166).
Lasarzig v. C.I.R., 78 TCM (CCH) at 449452.
For decedents dying after December 31, 1997, interest on the
portion of federal estate tax deferred under IRC 6166 is not deductible
for estate tax or income tax purposes. IRC 163(k), IRC 2053(c)(1)(D).
Interest on other taxes payable (e.g., interest on federal estate taxes
deferred under IRC 6161) may be deducted as such interest is accrued
and paid, if such amounts otherwise qualify under Treasury Regulation
20.2053-1 and Treasury Regulation 20.2053-4.
12.1-4(f)
Claims Against the Estate
To be deductible, a claim against the decedents estate must be a

personal obligation of the decedent existing at the time of the decedents
death. Treas Reg 20.2053-4; see also IRC 2053(a)(3). Property of the
estate subject to claims is not limited to the assets of the probate estate. In
Estate of Snyder v. U.S., 84 AFTR2d 5963, 59645965 (Fed Cl 1999),
the Internal Revenue Service (IRS) attempted to limit a $750,000 deduction for an environmental-liability claim (which was not determined until
approximately 10 years after the decedents death) to the amount of
$6,500, which was the value of the estates probate assets. The bulk of
the decedents estate was in a revocable trust. The court disagreed with
the IRS, saying that property subject to claims did not distinguish
between probate assets and nonprobate assets, and that the term was
meant to include any property includable in the decedents gross estate
that was required to bear the payment of the claim. Snyder, 84 AFTR2d
at 5965. Any obligations of the estate arising after the decedents death
are not deductible. However, the claim does not have to be mature at the
time of the decedents death to be deductible, as long as it is an
enforceable claim and otherwise meets the requirements of Treasury
Regulation 20.2053-1.
The claim must actually be enforceable against the estate to be
deductible. Treas Reg 20.2053-4. Therefore, if a claim is barred by the
statute of limitations or the statute of frauds, it is not deductible. A claim
founded on a promise or agreement is deductible only to the extent that
12-45
2012 Revision
the promise or agreement was bona fide and in exchange for adequate
and full consideration in money or moneys worth. Treas Reg 20.20534(d)(5). Thus, promissory notes given to the decedents children that
were unpaid at the time of the decedents death were not allowable in
determining the decedents net estate, since they were not claims or
indebtedness contracted for consideration in money or moneys worth.
Langs Estate v. Commr of Internal Revenue, 97 F2d 867, 872 (9th Cir
1938).
Postmortem events are irrelevant regarding the date-of-death
valuation of a claim against the estate. In Propstra v. United States, 680
F2d 1248, 1253 (9th Cir 1982), the Court of Appeals for the Ninth
Circuit held that specific and enforceable claims against an estate are to
be valued as of the date of the decedents death and without regard to
postmortem events. The estate was allowed a deduction for the full
amount of a lien against the decedents property on the date of the
decedents death, even though the claim was settled later at an amount
much lower than the full amount reported on the decedents federal estate
tax return. Propstra, 680 F2d at 1253.
The opinion in Lindberg v. United States, 164 F3d 1312 (10th Cir
1999), illustrates the principle that a claim, to be deductible, must be a
personal obligation owing at the time of the decedents death, and must
not be in the nature of a claim for a share of the decedents estate.
Lindberg involved claims made two months before the decedents death
based on tortious interference with the claimants inheritance, a cause of
action based on common-law principles that the federal appellate court
assumed would be recognized by the Colorado state courts if asked to do
so. Lindberg, 164 F3d at 1319. The cases were resolved after the
decedents death, and resulted in approximately $2,270,000 of estate
assets being distributed to the claimants. Lindberg, 164 F3d at 1315
1316. The district courts decision was upheld on appeal in its
determination that the subject claims were in the nature of a claim for an
inheritance and, therefore, not deductible for estate tax purposes.
Lindberg, 164 F3d at 13181319.
Charitable pledges made by a decedent during life and paid out of
the estate after death are deductible as claims against the estate because
12-46
2012 Revision
the statute provides that such pledges may be deducted irrespective of the
requirement of adequate and full consideration in money or moneys
worth. IRC 2053(c)(1)(A).
12.1-4(g) Taxes
Taxes are generally deductible as claims against the decedents
estate. Treas Reg 20.2053-6(a); IRC 2053. To be deductible, taxes
must represent obligations of the decedent at the time of his or her death,
rather than liabilities of the decedents estate arising after death. Thus,
both income taxes and property taxes accruing before the decedents
death are deductible, but those accruing after death are not. A property
tax has accrued before death if it has become a lien or a personal liability
before death. Treas Reg 20.2053-6(b). Oregon real property taxes
become a lien on July 1, the beginning of each tax year. If taxes are
delinquent and have become a lien on estate property, those amounts,
including penalties and accrued interest up to the date of death, are
deductible.
The amount of estate taxes actually paid to any state are deductible
from the decedents gross estate. IRC 2058; see Treas Reg 20.2053-9.
A deduction is also allowed for any inheritance tax imposed by and
actually paid to any foreign country, in respect of any property situated
within such foreign country and included in the gross estate of a citizen
or resident of the United States, upon a transfer by the decedent for
public, charitable, or religious uses described in IRC 2055. IRC
2053(d); see Treas Reg 20.2053-10.
NOTE: For decedents dying before January 1, 2005, a credit
was allowed against the federal estate tax for state death taxes and
foreign death taxes. Former IRC 2011; see 12.1-6(c).
Unpaid gift taxes on gifts made by the decedent before death are
deductible, Treas Reg 20.2053-6(d), even though the decedents spouse
may have consented to having one-half of the gifts treated as gifts made
by him or her. Unpaid federal gift taxes on gifts made within three years
before death are also deductible. Treas Reg 20.2053-6(d). This result
may appear to be strange and inconsistent with the required add-back of
gift taxes paid or payable on such gifts. However, the deduction offsets
12-47
2012 Revision
the add-back, placing the estate in the same position that it would have
been in had the tax been paid before death (thus lowering the gross
estate) and added back as required by IRC 2001.
When the decedents final income tax return is filed as a joint
return with the spouse, the deductible portion of income taxes must be
determined. The deductible income tax is the amount attributable to the
income of the decedent included in that return for which the decedent
would be liable under local law. In the absence of contrary evidence, the
portion deductible would be the ratio to the joint total tax liability that the
income tax for which the decedent would have been liable had the
decedent filed a separate return bears to the total tax liability of both
spouses had each filed separate returns, after giving effect to the amounts
previously paid on account of the tax by the decedent. Treas Reg
20.2053-6(f).
12.1-4(h) Losses
Casualty losses and losses from theft that are sustained during the
administration of the estate may be deducted from the decedents gross
estate, but losses due to shrinkage in values are not deductible except to
the extent that they are reflected by using the alternate valuation date.
IRC 2054. Casualty losses are deductible only if the loss is not
compensated for by insurance, and losses incurred after distribution of
the estate may not be deducted. Note that an election may be made to
deduct such items on the estates income tax return instead of the estate
tax return under IRC 642(g).
12.1-4(i)
Transfers for Public, Charitable, and Religious Uses
Under IRC 2055, a deduction is allowed for transfers to charity.

The beneficiary must be one of the following:
(1) The United States, any State, any political subdivision
thereof, or the District of Columbia, for exclusively public purposes,
IRC 2055(a)(1);
(2) Any corporation organized and operated exclusively for
religious, charitable, scientific, literary, or educational purposes, including the encouragement of art, or to foster national or international
12-48
2012 Revision
amateur sports competition (other than the provision of athletic

equipment or facilities), and the prevention of cruelty to children or
animals, IRC 2055(a)(2);
(3) A trustee of a fraternal society, order, or association
operating under the lodge system, but only if the transfer is to be used
by the transferee exclusively for religious, charitable, scientific, literary,
or educational purposes, IRC 2055(a)(3);
(4) Any veterans organization incorporated by act of Congress
or of its departments or local chapters or posts, IRC 2055(a)(4); or
(5) An employee stock ownership plan if such transfer
qualifies as a qualified gratuitous transfer of qualified employer
securities within the meaning of IRC 664(g), IRC 2055(a)(5).
A recipient named in items (2) and (3) above must not be
disqualified for tax exemption under IRC 501(c)(3) by reason of
attempting to influence legislation. IRC 2055(a)(2)(3). The deduction
is not limited to transfers to be used in, or to organizations in, the United
States. Also, it is not necessary to specify particular charities if a valid
charitable trust is created. Estate of Boyles v. C. I. R., 4 TC 1092, 1095
(1945).
If a will provides for specific bequests to named beneficiaries with
the residue to charity, and the estate tax is directed to be paid out of the
residue, a problem arises in determining what the charitable deduction
should be. This is because the amount going to charity depends on the
amount of the residue used to pay the tax, and the amount of the tax
depends on the amount of the residue going to charity. A similar problem
frequently exists with respect to computation of the marital deduction.
The deduction is allowable for bequests, legacies, devises, or
transfers to public, charitable, and religious uses. IRC 2055(a). This
includes gifts by will, gifts resulting from the exercise of a power of
appointment in favor of a charity, or transfers to charity resulting from
irrevocable disclaimers. If the decedent leaves property to his or her child
for life with the remainder to a charity, and the child timely disclaims the
life estate, the decedents estate may deduct the value of the entire
interest, as long as the life estate interest does not pass to another in the
12-49
2012 Revision
event of the childs disclaimer. Any such disclaimer must be made before
the due date of the return and before acceptance of the interest. Treas Reg
20.2055-2(c). To be effective, the disclaimer must be filed within nine
months after the later of the date of the decedents death or the day on
which the disclaimant attains age 21. IRC 2518(b)(2). A complete
termination of a power to appoint for a noncharitable purpose before the
due date of the return and before the power is exercised is treated as a
disclaimer. IRC 2055(a).
See 12.1-4(i)(1) regarding remainder interests and 12.1-4(i)(2)
regarding charitable lead trusts.
12.1-4(i)(1)
Remainder Interests
A remainder interest to a charitable beneficiary (other than a

remainder interest in a personal residence or farm) does not qualify for
the charitable deduction unless the charitable interest qualifies as a
charitable remainder annuity trust or a charitable remainder unitrust
(as those terms are defined in IRC 664) or as a remainder interest in a
pooled income fund (as defined in IRC 642(c)(5)). IRC
2055(e)(2)(A). Thus, a clause in a will providing for a life interest to an
individual for life, with the remainder to charity, will not allow a
charitable deduction to be taken for the remainder interest.
A charitable remainder annuity trust is defined as a trust from
which a sum certain (not less than 5% of the initial fair-market value of
the property) is to be paid annually or more frequently to one or more
persons (in the case of individuals, only those who are living at the
creation of the trust) for a term of 20 or fewer years or for life. The
remaining interest at the expiration of such period must be held for, or be
distributed to, a qualified charity. Treas Reg 1.664-2.
A charitable remainder unitrust is defined as a trust having
provisions like the charitable remainder annuity trust except that, instead
of annual or more frequent payment of a sum certain, the trust, with one
exception, must provide for an annual or more frequent distribution of a
fixed percentage (not less than 5%) of the net fair-market value of the
trust assets, valued annually. Treas Reg 1.664-3. The exception permits
a provision limiting payment to actual trust income if this amount is less
12-50
2012 Revision
than the fixed percentage amount and permitting payment of trust income
in excess of the fixed percentage amount to the extent that the aggregate
of amounts paid in prior years was less than the aggregate of fixed
percentage amounts for such prior years. IRC 664(d)(3).
A pooled income fund is a trust maintained by a charitable
organization to which a transfer is made with an income interest retained
or created for the life of one or more living beneficiaries and the
remainder interest passing to the charity maintaining the fund. Such a
trust must contemplate the commingling of the contributed assets with
those contributed by others making similar transfers and for distribution
to the lifetime beneficiaries of income in accordance with the rate of
return earned by the trust during each year. To qualify, it must be a trust
that cannot have investments in tax-exempt securities. IRC 642(c)(5).
These so-called charitable split-interest trusts must meet certain
very technical rules if they are to qualify for the federal estate tax
charitable deduction under IRC 2055. In the Tax Reform Act of 1984,
Pub L No 98-369, 98 Stat 494, Congress established a permanent
procedure for reforming a defective charitable split-interest trust. Under
the revised procedures, judicial reformation proceedings must be
commenced within 90 days after the due date of the federal estate tax
return or, if no federal estate tax return is required, within 90 days
after the due date of the trusts first income tax return. IRC
2055(e)(3)(C)(iii). The trust, however, may not be reformed to qualify
for a deduction unless it provides for an annuity or unitrust payment. IRC
2055(e)(2).
PRACTICE TIP: In light of the relatively narrow window of
opportunity to reform a defective charitable split-interest trust, the
lawyer should carefully review the terms of any such trust well
before the due date of the federal estate tax return.
12.1-4(i)(2)
Charitable Lead Trusts
If the charitable interest is other than a remainder interest, it will

not qualify for the charitable deduction unless the charitable interest is
either in the form of a guaranteed annuity to the charity or in the form of
an annually distributed fixed percentage of the fair-market value of the
12-51
2012 Revision
property (determined yearly). IRC 2055(e)(2)(B). This second category

of split-interest trusts is referred to as charitable lead trusts or lead
trusts.
In a charitable lead trust, the property is devised to a trust, the
terms of which require that a charity be paid either a guaranteed annuity
or a unitrust amount over a fixed period of years. At the expiration of the
charitable period, the trust terminates and the remaining property is
distributed to the noncharitable devisees as set forth in the will. To
qualify the interest for the charitable deduction, the annual payments to
charity must be expressed either as a fixed dollar amount (a guaranteed
annuity) or as a fixed percentage of trust assets. See IRC 170, IRC
2522, and IRC 2055 for the statutory requirements applicable to the
income tax, estate tax, and gift tax charitable deductions. See also
<www.irs.gov/irb/2003-27_IRB/ar13.html>. The advantage of the
annuity method of payment is that annual valuations of the trust property
are not required as with the unitrust method, although the unitrust method
permits the charity to share in any appreciation that occurs in the trust
property.
Generally, the guaranteed annuity is to be preferred if it is
anticipated that the trust assets will significantly appreciate in value. The
value of the charitable gift is to be computed by application of the factors
set forth in Table B of Treasury Regulation 20.2031-7. This table
establishes a variable rate of interest that fluctuates with changes in
market interest rates. Noncharitable beneficiaries of a charitable lead trust
will ultimately receive a greater share of the trust property (as compared
to the value deemed to have passed to charity) to the extent that the actual
growth rate exceeds the rate established under the table. Additionally, the
trust is entitled to an income tax deduction for the amounts distributed
annually to charity and will be taxed only to the extent that its annual
income exceeds the amounts required to be distributed to charity. The
trust property will be included in the decedents gross estate only to the
extent that the date-of-death value of trust property exceeds the date-ofdeath value of the interest passing to charity (i.e., it is not the actual value
of the property that will eventually pass to the noncharitable beneficiary
that is included).
12-52
2012 Revision
PRACTICE TIP: All wills and trusts for living persons

containing partial charitable interest provisions should be drafted
to meet the technical requirements of IRC 2055(e)(2).
12.1-4(j)
Deduction for Qualified Family-Owned

Business Interests
In the Taxpayer Relief Act of 1997, Pub L No 105-34, 111 Stat

788, Congress added IRC 2033A to permit an exclusion from the gross
estate for the value of certain family-owned business interests for estates
of decedents dying after 1997. Congress redesignated IRC 2033A as
IRC 2057 (Internal Revenue Service Restructuring and Reform Act of
1998, Pub L No 105-206, 6007(b), 112 Stat 685) and then repealed IRC
2057 for estates of decedents dying after December 31, 2003 (Economic
Growth and Tax Relief Reconciliation Act of 2001, Pub L No 107-16,
521(d), 115 Stat 38). The complexity of rules to obtain and qualify for
this deduction, combined with the scheduled increase in the applicable
exclusion amount for decedents dying after December 31, 2003, led to
the demise of this little-used deduction.
12.1-5 The Marital Deduction
12.1-5(a) Generally
In a community-property state, when a married person dies, only
one-half of the community property is included in his or her estate even
though the other spouse did not contribute to the accumulation of the
property. In a common-law state, under the same circumstances, all the
property is taxed in the estate. When the marital deduction (IRC 2056)
was first introduced, the stated purpose was to eliminate the unequal
treatment between common-law states and community-property states by
permitting the estate of a deceased taxpayer a deduction for property
passing to a surviving spouse. To achieve this end, the marital deduction
was limited to one-half of the adjusted gross estate and was not available
with respect to community property passing to the surviving spouse.
The ceiling on the marital deduction was removed for decedents
dying after 1981. An entire estate may currently qualify for the marital
deduction. Since an unlimited marital deduction is available for decedents dying after 1981, there is no longer any estate tax advantage to
12-53
2012 Revision
holding community property. As a result, Congress eliminated the

provisions that denied a marital deduction for community property
passing to a surviving spouse. The stated purpose for this liberalization of
the marital deduction was to neutralize the impact of the federal estate tax
with respect to transfers of property between spouses.
Property that meets the requirement that it pass to the surviving
spouse will nevertheless not qualify for the marital deduction if:
(1)
It is not included in the gross estate, IRC 2056(a);
(2) It is in satisfaction of an obligation for which a deduction is

allowed under IRC 2053, dealing with expenses, indebtedness, and
taxes; or
(3) It is a terminable interest not falling within one of the
exceptions to the terminable-interest rule, IRC 2056(b); see 12.1-5(c)
to 12.1-5(c)(5).
The deduction applies irrespective of which spouse dies first, and
nothing in the statute prevents the marital deduction from operating
successively with respect to the same property if the surviving spouse
remarries and leaves the same property to a new spouse at death.
The marital deduction is limited to the value of the property that
the surviving spouse actually receives. If any estate or inheritance taxes
must be paid from the property received by the surviving spouse, these
taxes must be subtracted from the property left to the surviving spouse to
determine the amount qualifying for the deduction. IRC 2056(b)(4).
Similarly, administration expenses or debts payable from the spouses
share will result in a reduction of the allowable marital deduction.
PRACTICE TIP: In drafting a will designed to utilize a marital
deduction in a specific amount, the lawyer should consider
providing that the taxes are to be paid from other portions of the
estate. The will should clearly provide that no death taxes are to be
charged against the marital share. Otherwise, the estate will not get
the exact marital deduction desired.
PRACTICE TIP: From a tax standpoint, it may not be desirable
to use the full marital deduction. For example, with an estate of
12-54
2012 Revision
$1,200,000 in a year in which the applicable exclusion amount is

$1 million, only $200,000 of marital deduction would be needed to
reduce the federal estate tax to zero. If the will used the marital
deduction for the full $1,200,000, there would be an overqualification of $1 million, potentially resulting in an unnecessary
tax on the surviving spouses estate to the extent that the spouses
estate exceeded the applicable exclusion amount in effect at the
time of his or her death.
Full use of the unlimited marital deduction may result in a waste of
the unused portion of the applicable credit amount. A full tax deferral in
the first estate may be obtained by a bequest (either outright or in trust) of
an amount equal to the applicable exclusion amount in effect for the year
of death, followed by a bequest of the remainder to the surviving spouse.
When calculating the applicable exclusion amount, it is important for the
lawyer to take into account any amounts of the applicable credit amount
previously used with respect to gifts made by the decedent. Through the
use of an applicable exclusion amount bequest, it is assured that the full
amount of the applicable credit amount then available will be used, and
the unlimited marital deduction will offset the balance of the decedents
estate that passes under the residuary clause.
In enacting the unlimited marital deduction provisions in 1981,
Congress was concerned with the effect that the amendment would have
on existing wills. The concern was that some persons may not have
intended or desired any greater amount to pass to the surviving spouse
than the original limitation of the marital deductionthe greater of
$250,000 or one-half of the adjusted gross estate. HR Rep No 97-215,
97th Cong, 1st Sess 195, reprinted in 1981 USCCAN 105, 285. Thus,
Congress included in the amendment a transitional rule limiting the
application of the unlimited marital deduction when the computation of
the marital deduction in the will is pursuant to a formula clause. The
transitional rule provides that the unlimited marital deduction will not be
available if (1) the decedent dies after 1981, (2) the formula clause in the
will was not amended at any time after September 13, 1981, to refer
specifically to the unlimited marital deduction, and (3) there is no state
law that would construe the formula clause in the will as referring to the
12-55
2012 Revision
unlimited marital deduction. Pub L No 97-34, as amended by Pub L No

97-448, Title I, 104(a)(10), 96 Stat 2381. To date, no such legislation
has been enacted in Oregon, and it is highly questionable whether such a
statute should be enacted considering the destruction it would do to the
intentions of testators who desired the more limited marital bequest.
PRACTICE TIP: All maximum marital deduction bequests
in wills executed before September 14, 1981, will result in the
limitation of the marital deduction to the ceilings under prior law.
To avoid this result, and if the unlimited marital deduction is
desired, the will must be executed again, or a codicil signed,
specifically referring to the maximum marital bequest provision.
A relatively modern Tax Court case provides a stark reminder that
the Economic Recovery Tax Act of 1981 (ERTA 1981), Pub L No 97-34,
95 Stat 172, transitional rule concerning the unlimited marital deduction
still applies. In Amiel v. C.I.R., 74 TCM (CCH) 239 (TC 1997), the Tax
Court was presented with the decedents 1980 will, which included
language claiming the maximum marital deduction allowable under
federal law. After 1982 but before his death, the decedent executed
several codicils to his will, but none of those codicils referred to or
modified the marital deduction language. The Internal Revenue Service
limited the marital deduction to the 50% of adjusted gross estate under
pre-ERTA 1981 law, and the Tax Court agreed, holding that the ERTA
1981 unlimited marital deduction is available only if a pre-ERTA 1981
will or trust is reformed to request the maximum marital deduction.
12.1-5(b) Requirements to Qualify for the Marital Deduction
The seven requirements to qualify for the marital deduction follow:
(1)
The decedent must have died after December 31, 1947;
(2) The decedent must have been a citizen or a resident of the

United States at the time of his or her death, Treas Reg 20.2056(a)-1;
(3) The decedent must have been married at the time of death
and must have been survived by a spouse, IRC 2056(a); see 12.15(b)(1);
12-56
2012 Revision
(4) An interest in property must have passed from the decedent

to the surviving spouse, IRC 2056(a); see 12.1-5(b)(2);
(5) This interest must be included in the decedents gross estate,
IRC 2056(a); see 12.1-5(b)(3);
(6) The interest must not be a terminable interest unless it
satisfies one of the exceptions to the terminable-interest provision (see
12.1-5(c) to 12.1-5(c)(5)), IRC 2056(b); see 12.1-5(b)(4) to 12.15(c)(5); and
(7) The surviving spouse must be a United States citizen unless
the property passes to a trust that meets the requirements of a qualified
domestic trust, IRC 2056(d); see 12.1-5(c)(4).
12.1-5(b)(1) Married at Time of Death with
Surviving Spouse
A person is considered married at the time of his or her death if he
or she is survived by a living spouse from whom he or she has not been
divorced. When the husband and wife die simultaneously, or under
conditions that it cannot be established which of them survived, and if the
will is silent on the subject, local law controls. Treas Reg 20.2056(b)3(c).
Under Oregons Uniform Simultaneous Death Act, ORS 112.570
112.590, if a governing instrument contains a provision the operation of
which is conditioned on whether a specified person survives the death of
another person, the specified person is deemed to have died before the
other person unless it is established by clear and convincing evidence
that the specified person survived the other person . . . by at least 120
hours. ORS 112.578. However, this presumption does not control if
otherwise provided by will. ORS 112.578, 112.586.
PRACTICE TIP: When a marital deduction is desirable in any
event (this will usually be true when one spouse owns the bulk of
the family wealth), the will should contain a simultaneous-death
clause, reversing the statutory presumption regarding a portion of
the estate. If there is no marital deduction, that is, if the other
12-57
2012 Revision
spouse is not presumed to have survived the spouse with the larger
estate, substantial federal estate tax may be incurred.
PRACTICE TIP: To save the marital deduction in the event of
simultaneous death, the will of the spouse having the larger estate
should provide, In the event that my [wife / husband] and I die
under such circumstances such that no sufficient evidence
establishes who survived the other, I hereby declare that my [wife /
husband] will be deemed to have survived me and this will and all
its provisions will be construed upon that assumption and basis.
Any beneficiary who survives the decedent by less than 120 hours
is deemed to have predeceased the decedent, in the absence of a will
provision to the contrary. ORS 112.572. Because of this, the marital
deduction would be lost if the surviving spouse does not survive the
decedent by at least 120 hours, in the absence of a provision reversing
this statutory presumption.
PRACTICE TIP: To save the marital deduction in the event of
the death of the spouse within 120 hours, the will should provide,
In addition, my spouse will be deemed to have survived me if
[he / she] dies within 120 hours of my death, notwithstanding the
provisions of ORS 112.572 or any similar statutory presumption.
12.1-5(b)(2) Property Must Pass from Decedent
to Surviving Spouse
The requirement in IRC 2056(a) that property pass from the
decedent to the surviving spouse comprehends passing a beneficial
interest in property to the surviving spouse, not only under a will or by a
prior transfer, but also by election against the will or in settlement of a
will contest. Treas Reg 20.2056(c)-2(c)(d). Qualified terminable
interest property (QTIP) included in a donee-spouses gross estate is also
treated as property passing from that spouse. IRC 2044(c). This
characterization is important to assure that marital and charitable
deductions are available to the donee-spouse with respect to such property.
12-58
2012 Revision
12.1-5(b)(3) Property Must Be Included in

Decedents Gross Estate
Interests in property that pass from a decedent to a surviving
spouse qualify for the marital deduction only to the extent that they are
included in the decedents gross estate. IRC 2056(a). Any item of
property that passes to the surviving spouse, but that is not taxed in the
decedents estate, cannot be deducted from that estate. Thus, property
passing to the surviving spouse through the exercise of a nontaxable
power of appointment or property representing the surviving spouses
vested interest in community property would not only be excluded from
the decedents estate, but also could not, for that reason, be deducted
from the estate as part of the marital deduction.
12.1-5(b)(4) Nondeductible Terminable Interests
Even though an interest in property passes from the decedent to the
surviving spouse and is included in the decedents gross estate, it will
still not qualify for the marital deduction if it takes the form of a
nondeductible terminable interest. IRC 2056(b). A terminable interest in
property is an interest that may terminate or fail due to the lapse of time,
the occurrence of a contingency, or the failure of a contingency to occur.
IRC 2056(b)(1). Life estates, terms for years, annuities, patents, and
copyrights are terminable interests, but not all terminable interests are
nondeductible interests. Treas Reg 20.2056(b)-1(b).
A terminable interest is nondeductible only if:
(1) An interest in the property passes without full consideration
to a person other than the surviving spouse and, by reason of its passing,
the other person may possess or enjoy part of the property after the
termination or failure of the spouses interests (unless the surviving
spouses interest is in property that meets the definition of qualified
terminable interest property added to IRC 2056 by the Economic
Recovery Tax Act 1981, Pub L No 97-34, 95 Stat 172), IRC
2056(b)(1)(A)(B); Treas Reg 20.2056(b)-1(c)(1); or
(2) The decedent directs his or her executor or trustee to acquire
a terminable interest, or the interest can be satisfied out of a group of
12-59
2012 Revision
assets that includes nondeductible interests. IRC 2056(b)(1)(C); Treas

Reg 20.2056(b)-1(c)(2).
PRACTICE TIP: It often makes sense to provide in the will
that no properties will be allocated for purposes of the marital
deduction that would not qualify for the marital deduction under
federal estate tax law.
In Estate of Walsh v. C.I.R., 110 TC 393 (1998), the marital
deduction was lost as to a trust intended to qualify under IRC
2056(b)(5) as a life interest with power of appointment when the trust
included boilerplate language cutting off the interest of a beneficiary if
the beneficiary should be determined to be incompetent.
PRACTICE TIP: The lawyer should review form language to
assure that well-intended provisions do not create tax problems or
risks, especially regarding the marital and charitable deductions.
The drafter in the Walsh case probably intended to protect and
preserve the property available to the spouse, but the language
used destroyed the marital deduction for federal estate tax
purposes.
12.1-5(c) Exceptions to Terminable-Interest Rule
There are four exceptions (applicable to U.S. citizens) to the rule
that a terminable interest will not qualify for the marital deduction.
Terminable interests that may be deducted are as follows:
(1) A bequest to the spouse conditioned on survivorship for a
period that will end within six months after the decedents death or
conditioned on the spouses not dying as a result of a common disaster
and such termination date does not in fact occur, IRC 2056(b)(3); see
12.1-5(c)(1);
(2) A bequest of a life interest, coupled with a general power of
appointment, IRC 2056(b)(5); see 12.1-5(c)(2);
(3) Life insurance proceeds paid under settlement options, if the
spouse is given the equivalent of a general power of appointment, IRC
2056(b)(6); see 12.1-5(c)(5); and
12-60
2012 Revision
(4) A life estate in qualified terminable interest property (QTIP),

IRC 2056(b)(7); see 12.1-5(c)(3).
See 12.1-5(c)(4) for the exception applicable to noncitizen
spouses.
12.1-5(c)(1)
Bequest to Spouse Conditioned on Survivorship

Period Less than Six Months
A bequest to the surviving spouse is not a nondeductible

terminable interest merely because it is conditioned on survivorship, if
the period of survivorship does not exceed six months or if it will fail
because the spouse dies as a result of a common disaster. Of course, if the
condition does occur, then the marital deduction will be denied. IRC
2056(b)(3).
The six-month survival requirement may well be desirable to save
probate costs and taxes (if both spouses have substantial estates). If the
required time period of survivorship could exceed six months, the marital
deduction would be disallowed. Thus, a bequest conditioned on the
spouses surviving admission of the will to probate, surviving the filing
of the final account, or surviving to receive distribution of the bequest,
would result in disqualification even though the spouse did survive. Treas
Reg 20.2056(b)-3(d), example (4); United States v. Mappes, 318 F2d
508, 512513 (10th Cir 1963).
Even though the interest may not qualify for the marital deduction,
the assets still pass to the surviving spouse in a manner that will be
subject to estate taxes at the spouses subsequent death (unless disposed
of before the survivors death).
12.1-5(c)(2)
Life Interest with Power of Appointment
An interest in a trust will ordinarily be a terminable interest.

Nevertheless, it will often be desirable not to leave property outright to a
surviving spouse. Property left in trust for a surviving spouse will qualify
for the marital deduction if certain conditions are met. This is the second
exception to the terminable interest rulethe life estate/power of
appointment exception. IRC 2056(b)(5). Under Treasury Regulation
20.2056(b)-5(a), the interest passing to the surviving spouse is a
12-61
2012 Revision
deductible terminable interest if all five of the following conditions are

met:
(1) The surviving spouse must be entitled for life to all of the
income from the entire interest or a specific portion of the entire interest,
or to a specific portion of all the income from the entire interest, Treas
Reg 20.2056(b)-5(a)(1);
(2) The income payable to the surviving spouse must be
payable annually or at more frequent intervals, Treas Reg 20.2056(b)5(a)(2);
(3) The surviving spouse must have the power to appoint the
entire interest or the specific portion to either herself [or himself] or her
[or his] estate, Treas Reg 20.2056(b)-5(a)(3);
(4) The power in the surviving spouse must be exercisable by
[the surviving spouse] alone (whether exercisable by will or during life)
and must be exercisable in all events, Treas Reg 20.2056(b)-5(a)(4);
and
(5) The entire interest or the specific portion must not be
subject to a power in any other person to appoint any part to any person
other than the surviving spouse, Treas Reg 20.2056(b)-5(a)(5).
The interest or the specific portion is deductible whether the
surviving spouse has a legal life estate or the interest is in trust, if the
above conditions are met.
Before 1992, case law had interpreted the term specific portion
used in IRC 2056 to permit a marital deduction to be claimed based or
defined in terms of a specific dollar amount of annual income, with the
election thereafter treated as being made with respect to a sufficient
amount of assets in the fund to produce that income. Congress addressed
this issue in the Energy Policy Act of 1992 (Pub L No 102-486,
1941(a), 106 Stat 3036) by adding IRC 2056(b)(10). That section
defines specific portion to include only a portion determined on a
fractional or percentage basis. Under the amended statute, a qualified
terminable interest property (QTIP) election regarding less than a
surviving spouses entire interest in property or a fund (e.g., a partial
12-62
2012 Revision
QTIP election) will not qualify for the marital deduction unless the
election applies to a fractional or percentile share of the property interest.
If a trustee has the power to invade all income or principal for the
benefit of persons other than the surviving spouse, the spouse does not
have a sufficient interest to qualify the property for the marital deduction.
Estate of Weisberger v. C.I.R., 29 TC 217, 220221 (1957), acq., 1958-2
CB 8 (1958).
However, if the right of invasion is limited to a portion of the
property, the estate is entitled to a marital deduction for the remaining
portion held for the spouses benefit. If the property provides little or no
expected income, and if the trustee has no duty to make the property
income-producing, and the spouse cannot require disposal of unproductive property and investment of the proceeds in income-producing
property, the property will not qualify for the marital deduction. Treas
Reg 20.2056(b)-5(f)(5).
Even the usual power to allocate receipts between income and
principal may make the trust a nondeductible interest if this power may
be used to prevent the production of income for the benefit of the surviving spouse. However, Revenue Ruling 66-39, 1966-1 CB 223, holds that
the power to allocate between principal and income will not affect
qualification as long as local law requires the trustee to treat all beneficiaries fairly.
Provisions of the usual spendthrift clause restricting the power of
alienation of the income do not disqualify the trust for the marital deduction. Also, the provision that the surviving spouse cannot have income
during the administration of the estate does not make the property a
nondeductible terminable interest, unless the executor may delay
distribution beyond the period reasonably necessary for administration of
the estate. Treas Reg 20.2056(b)-5(f)(9). However, the value of the
marital deduction may have to be discounted accordingly. Treas Reg
20.2056(b)-4(a).
Only if the power of appointment in the surviving spouse is
exercisable in favor of the surviving spouse or the surviving spouses
estate, alone and in all events, is the interest deductible. If the power may
12-63
2012 Revision
be defeated by the happening of any contingency, such as remarriage, it

is not exercisable in all events and would not qualify the property for
marital deduction. Treas Reg 20.2056(b)-5(g)(3).
For valuation purposes, a life estate coupled with a general power
of appointment is treated as equivalent to actual ownership of the
property. This fact can result in valuation results that are at odds with the
outcome were the interest to be structured as a QTIP interest. Estate of
Mellinger v. C.I.R., 112 TC 26, acq., 1999-35 IRB 314 (1999), and
Estate of Fontana v. Commissioner, 118 TC 318 (2002), illustrate these
differences. In both cases, the estate owned a minority interest in a
closely held business, with an additional interest owned by a QTIP trust
in the Mellinger case, and a general power of appointment trust in the
Fontana case.
In Mellinger, 112 TC at 3536, the Tax Court held that the stock
owned by the QTIP trust would not be aggregated with the stock owned
directly by the estate and, therefore, the estate was entitled to claim
appropriate minority-interest discounts on both blocks. However, in
Estate of Fontana, 118 TC at 322, the Tax Court held that stock held in
trust subject to a power of appointment was sufficiently equivalent to the
outright ownership of the property to treat those assets as actually owned
by the decedent. Thus, the estates actual ownership of stock was
aggregated with the stock held in trust over which the decedent had a
power of appointment, resulting in both blocks of stock being deemed to
possess a control element and, thus, not eligible for minority-interest
discounts. Estate of Fontana, 118 TC at 322323.
PRACTICE TIP: If aggregation of stock ownership is to be
avoided, it is preferable to structure the marital deduction trust
arising on the first death as a QTIP trust rather than a general
power-of-appointment trust. See 12.1-5(c)(3) regarding QTIP
trusts.
12.1-5(c)(3)
QTIP Trusts
Another exception to the terminable interest rule was added to IRC

2056 by the Economic Recovery Tax Act of 1981 (ERTA 1981), Pub L
No 97-34, 95 Stat 172, in the form of qualified terminable interest
12-64
2012 Revision
property, commonly referred to by lawyers as QTIP trusts. IRC

2056(b)(7).
For estates of decedents dying after 1981, Congress believed that
individuals should have more flexibility in planning the devolution of
their property. A common example of a problem under the old law is as
follows: At the time of death, the decedent was married to a second or
third spouse and, not uncommonly, that spouse had children of a prior
marriage who were not related to the decedent. If the decedent desired the
property to eventually pass to his or her own children (by a prior
marriage), the decedent was faced with a dilemma. If the property were
left to the surviving spouse for life, then to the children of the first
marriage, the bequest would not qualify for the marital deduction. To
qualify for the marital deduction, the property would have to be left to the
surviving spouse for life, and the surviving spouse would have to be
given a general power of appointment over the property. Thus, there was
no guarantee that that property would eventually find its way to the
children of the first marriage. Congress provided a way out of the
dilemma for estates of decedents dying after 1981 by adding qualified
terminable interest property to the list of exceptions to the terminable
interest rule.
The term qualified terminable interest property is defined as
property that passes from the decedent, . . . in which the surviving
spouse has a qualifying income interest for life, and . . . to which an
election under [IRC 2056(b)(7)(B)] applies. IRC 2056(b)(7)(B)(i). A
qualifying income interest for life exists if (1) the surviving spouse is
entitled to all the income from the property, (2) the income is payable at
least annually, and (3) no person has a power to appoint any part of the
property to any person other than the surviving spouse during his or her
lifetime. IRC 2056(b)(7)(B)(ii). Finally, the election under IRC
2056(b)(7) must be filed. IRC 2056(b)(7)(B)(v).
PRACTICE TIP: To assure that the right to income has
substance, a provision giving the spouse the right to compel the
trustee to convert non-income-producing property to incomeproducing property should be included.
12-65
2012 Revision
The parties entitled to make the election in various borderline

circumstances are defined in Treas Reg 20.2056(b)-7(b)(3). The
regulations generally provide that if a personal representative has been
appointed, then that person makes the QTIP election for all the property
in the estate, not just the property in his or her possession (e.g., the
probate estate). If no personal representative has been appointed, then the
election may be made by any person who is in actual or constructive
possession of property qualifying for the election. That person may also
make the election for property that is not in his or her actual possession if
the person who is in possession of the property does not make the
election.
EXAMPLE: On the date of the decedents death, several
revocable trusts were in effect and included in the decedents gross
estate. A personal representative was not appointed to administer
the decedents estate. One of the trustees could then make the
election on behalf of all trusts, even though the particular electing
trustee was not in actual or constructive possession of the other
trust property.
PRACTICE TIP: If any conflict exists among the various
instruments concerning the QTIP election, or whether an election
made with respect to certain property will affect other property, a
personal representative should be appointed to make the election
on behalf of all property includable in the decedents gross estate.
A significant requirement for QTIP treatment is that the surviving
spouse is entitled to all the income from the property for life. IRC
2056(b)(7)(B). The final QTIP regulations reject the concept of a
specified dollar amount of income when defining property subject to
the QTIP election. Treas Reg 20.2056(b)-7(b)(1)(ii). When a single trust
is desired, the regulations provide flexibility by permitting a partial QTIP
election to be made to qualify a portion of the trust for the marital
deduction. Treas Reg 20.2056(b)-7(2).
The final QTIP regulations also clarify the procedure for dividing a
single trust into separate trusts on a partial QTIP election. Treas Reg
20.2056(b)-7(b)(2). Because of the application of the specific portion
12-66
2012 Revision
rule, a partial election regarding a single trust will result in the election
applying to a fractional or percentage share of the assets. This result may
be undesirable when administering a trust with different beneficiary and
investment needs. The final regulations permit the governing instrument
to provide that a single trust may be separated into two separate trusts on
a partial QTIP election. Treas Reg 20.2056(b)-7(b)(2)(ii). Under this
approach, the assets of one trust would be fully covered by the QTIP
election, and the assets of the other would not be covered at all by the
election.
PRACTICE TIP: The governing instrument should grant to the
personal representative or trustee, as appropriate, a general administrative power to separate the assets otherwise subject to a QTIP
election into separate trusts in the event of a partial QTIP election.
A qualified terminable interest is considered to pass to the
surviving spouse and qualifies for the marital deduction if the personal
representative elects to claim the marital deduction in the decedent
spouses estate. In that event, it is included in the surviving spouses
estate at his or her death. IRC 2044. In addition, the Technical
Corrections Act of 1982, Pub L No 97-448, 96 Stat 2365, makes clear
that the QTIP property required to be included in the surviving spouses
gross estate obtains a step-up in basis under IRC 1014 when the
surviving spouse dies. IRC 1014(b)(10).
The final QTIP regulations permit protective QTIP elections for
estate tax purposes, but only under limited circumstances. A protective
QTIP election may be made only if, at the time the estate tax return is
filed, a bona fide issue is presented that either concerns whether an asset
is includable in the decedents gross estate or questions the amount or
nature of the property that the surviving spouse is entitled to receive.
Treas Reg 20.2056(b)-7(c)(1). A protective QTIP election, once made,
is irrevocable. Treas Reg 20.2056(b)-7(c)(2).
The final regulations published in 1994 continued the position
adopted in the proposed regulations that a valid QTIP election could not
be made with respect to property when the surviving spouses income
interest is contingent on the personal representatives electing QTIP
12-67
2012 Revision
treatment. Former Treas Reg 20.2056(b)-7(3) (prior to amendment by

TD 8779, 1998-2 CB 280 (1998)). The Tax Court agreed with the
position of the Internal Revenue Service (IRS), but several federal circuit
courts of appeal reversed the Tax Court on this issue. Estate of Clayton v.
C.I.R., 976 F2d 1486 (5th Cir 1992), revg 97 TC 327 (1991); Estate of
Robertson v. C.I.R., 15 F3d 779, 781 (8th Cir 1994), revg 98 TC 678
(1992); Estate of Spencer v. C.I.R., 43 F3d 226 (6th Cir 1995), revg 64
TCM (CCH) 937 (1992). In final regulations published in 1998 (the socalled Clayton QTIP Regulations), the IRS relented and now allows a
marital deduction for a qualifying terminable property trust even though
the assets will pass to the trust only if the fiduciary elects QTIP treatment
for the trust, and notwithstanding the fact that the property will pass to a
beneficiary other than the surviving spouse if the election is not filed. See
Treas Reg 20.2056(b)-7(d).
Concurrently with the addition of this provision to the estate tax
sections of the Internal Revenue Code, IRC 2519 was added to the gift
tax sections to provide that any disposition of all or part of a qualifying
income interest in QTIP property is treated as a transfer of that property.
Thus, if a decedent leaves his or her surviving spouse a life estate in a
qualified terminable interest trust, and the surviving spouse later assigns,
without consideration, that interest during the surviving spouses lifetime,
the surviving spouse is deemed to have made a gift of a life estate interest
under IRC 2512 and of a remainder interest under IRC 2519, based on
the value of the trust property at the date of assignment.
Many states have adopted new statutes, or liberalized existing
statutes, permitting otherwise irrevocable and nonamendable trusts to be
modified. Oregons provisions are set forth in ORS 130.240. Although it
seems that these statutes might be employed to modify trust language that
contains provisions inconsistent with the marital deduction, the IRS and
the federal courts take a fairly restrictive approach in these cases, as
illustrated by the Ninth Circuits decision in Rapp v. C.I.R., 140 F3d
1211 (9th Cir 1998).
In the Rapp case, a state proceeding was commenced in the local
probate court to reform the decedents trust agreement to require that all
the income of the trust estate be distributed to the decedents surviving
12-68
2012 Revision
spouse during her lifetime, a requirement to elect QTIP marital deduction

treatment. A guardian ad litem was appointed to protect the interests of
the decedents minor children, but few witnesses were called, and the
IRS was not notified of the proceeding. Rapp, 140 F3d at 1213. The
probate court ordered that the trust be modified retroactively to the date
of the decedents death, to require annual distribution of income to the
widow. The IRS disallowed the marital deduction, and the estate placed
the issue before the Tax Court. Rapp, 140 F3d at 1214.
The Tax Court and the Court of Appeals for the Ninth Circuit
upheld the IRSs determination, concluding that the decision of the local
probate court would be given due consideration but would not be binding
for tax purposes (only a decision of the highest court of a state is binding
for federal tax purposes). Rapp, 140 F3d at 12151216. The courts in the
Rapp case held that the decedents will was not ambiguous and there
was little or no evidence that [the decedent] intended to create a QTIP
trust. Rapp, 140 F3d at 1214. The IRS is understandably suspicious of
proceedings in local courts that involve parties who may be friendly
rather than adverse, and when the only real issues involved are tax issues.
The Oregon legislature has adopted provisions designed to salvage
the marital deduction when it may be possible to do so. The 2003
Legislature enacted ORS 128.398, which was renumbered ORS 130.240
in 2005. The statute, which applies to trusts containing marital
deduction gifts, provides that (1) the provisions of the trust, including
any discretionary powers granted to the trustee, must be construed as
necessary to comply with the marital deduction provisions of the Internal
Revenue Code, (2) the trustee may take no action or possess any power
that impairs the marital deduction, and (3) the marital deduction gift
may be satisfied only with property that qualifies for the tax deduction.
ORS 130.240(2).
In 1988, Congress added IRC 2056(b)(7)(C) to provide that an
annuity payable only to a surviving spouse during the spouses lifetime
must be treated as qualifying for QTIP treatment. The personal
representative of the decedent spouses estate must elect out of such
treatment if another result is desired. IRC 2056(b)(7)(C)(ii).
12-69
2012 Revision
Revenue Ruling 2006-26, 2006-1 CB 939, confirms the ability to

claim a marital deduction for an individual retirement account (IRA)
owned by the decedent, and having a beneficiary designation of a
testamentary QTIP trust following the decedents death. The QTIP trust
gave the decedents surviving spouse the right to all the trust income, and
the power to order the trustee to withdraw and distribute all earnings on
the IRA, at least annually. The IRS ruled that the decedents estate may
claim a QTIP marital deduction when (1) the surviving spouse may
compel withdrawal and distribution of the income of the IRA and (2) no
person has a power to appoint any part of the trust property to anyone
other than the surviving spouse.
ERTA 1981 added IRC 2207A to allow the surviving spouses
executor to recover from the recipients of the QTIP property the amount
of federal estate tax incurred as a result of the propertys being included
in the surviving spouses estate. IRC 2207A(a)(1). The decedent is
given discretion to direct otherwise by will. IRC 2207A(a)(2). A similar
rule applies with respect to gift tax liability that a surviving spouse incurs
if he or she transfers a QTIP interest during his or her lifetime. IRC
2207A(b).
PRACTICE TIP: The lawyer should exercise care in selecting
the tax clause for the will. In most cases, a clause providing for the
payment of taxes from the residue should probably exclude the
taxes, if any, attributable to the QTIP property.
The decedents estate is entitled to only one deduction for a
qualified terminable interest. IRC 2056(b)(9). Thus, if the decedent
were to grant the surviving spouse an income interest in property for his
or her life with the remainder passing to charity on the spouses death,
the donor-decedents estate would be entitled to a marital deduction, but
not a charitable deduction, because the property is deemed to have passed
from the decedents estate to the surviving spouse. The surviving
spouses estate would be entitled to a charitable deduction for the value
of property passing to charity on his or her death.
PRACTICE TIP: These rules allow the creation of a trust to
pay all income to the spouse for life, with the remainder going to
12-70
2012 Revision
charity, without the necessity of structuring the spouses interest to

qualify the trust as a charitable remainder annuity trust or unitrust.
The QTIP trust is an extremely important estate planning tool
when the decedent wants to assure that the surviving spouse will have
adequate resources for the remainder of his or her life, with the remainder
going to beneficiaries selected by the decedent.
12.1-5(c)(4)
Qualified Domestic Trusts
The Technical and Miscellaneous Revenue Act of 1988 (TAMRA

1988), Pub L No 647, 102 Stat 3342, disallowed a marital deduction for
property passing to a non-U.S. citizen spouse of the decedent unless the
transfer was to a special kind of trust. IRC 2056(d), IRC 2056A. Thus,
with the result that for estates of decedents dying after November 10,
1988, property passing to a surviving spouse who is not a U.S. citizen is
not eligible for the estate tax marital deduction unless the property passes
to the alien spouse through a qualified domestic trust (sometimes referred
to as a QDOT). To be considered a qualified domestic trust:
(1) The applicable trust instrument must require that at least 1
trustee of the trust be an individual citizen of the United States or a
domestic corporation and that no distribution (other than a distribution
of income) may be made from the trust unless a trustee who is an
individual citizen of the United States or a domestic corporation has the
right to withhold from such distribution the tax imposed by this section
on such distribution, IRC 2056A(a)(1);
(2) The trust must meet the requirements of regulations prescribed by the Internal Revenue Service to ensure the collection of any
tax imposed, IRC 2056A(a)(2); and
(3) The trustee must file an appropriate election to be treated as
a QDOT, IRC 2056A(a)(3).
Treasury Regulation 20.2056A-3 specifies rules relating to the
time and manner of making the QDOT election.
Congress enacted the QDOT rules to make certain that any
property qualifying for the federal estate tax marital deduction in the
resident spouses estate is subject to a federal estate tax if distributions
12-71
2012 Revision
are made to, or for the benefit of, an alien surviving spouse. Congress
was concerned that such property could otherwise effectively be removed
from the reach of the federal estate tax.
Under the QDOT rules, an estate tax is imposed on corpus
distributions from the trust that are made before the date of the surviving
spouses death and on the value of the property remaining in the QDOT
on the date of the surviving spouses death. IRC 2056A(b)(1). An
exception exists if the surviving spouse becomes a U.S. citizen and if
(1) the spouse was a resident of the United States at all times after the
decedent died and before the spouse becomes a U.S. citizen, or (2) no tax
was imposed on a QDOT distribution before the spouse became a U.S.
citizen, or (3) the spouse elects to treat any distribution on which tax had
been imposed as a taxable gift made by the spouse (thereby reducing the
applicable credit amount available to the spouse). IRC 2056A(b)(12).
12.1-5(c)(5)
Life Insurance Proceeds
The final exception to the terminable-interest rule provides that life

insurance proceeds need not be paid over to a spouse in a lump sum to
qualify for the marital deduction. IRC 2056(b)(6). The insurance
exception requires five conditions to be met for the insurance or annuity
contract to comply with the terms of the exception:
(1) The proceeds, or a specific portion of the proceeds, must be
held by the insurer subject to an agreement either to pay the entire
proceeds or a specific portion thereof in installments, or to pay interest
thereon, and all or a specific portion of the installments or interest
payable during the life of the surviving spouse must be payable only to
[the surviving spouse];
(2) The installments or interest payable to the surviving spouse
must be payable annually, or more frequently, commencing not later than
13 months after the decedents death;
(3) The surviving spouse must have the power to appoint all or
a specific portion of the amounts so held by the insurer to either the
[surviving spouse or the surviving spouses] estate;
12-72
2012 Revision
(4) The power in the surviving spouse must be exercisable by

[the surviving spouse] alone and . . . must be exercisable in all events;
and
(5) The amounts or the specific portion of the amounts payable
under such contract must not be subject to a power in any other person to
appoint any part thereof to any person other than the surviving spouse.
Treas Reg 20.2056(b)-6(a).
12.1-5(d) Marital Deduction Disclaimers
The provisions regarding qualified disclaimers (discussed in
12.2-3) may be used to affect property interests available for the marital
deduction. Thus, if more taxes will ultimately result by using the full
marital deduction on the death of the first spouse, a qualified disclaimer
by the surviving spouse may prevent the higher tax exposure. Similarly,
if another beneficiary under the decedents will disclaims in favor of the
surviving spouse, the property is deemed to have passed to the surviving
spouse and qualifies for the marital deduction, as long as the disclaimer
satisfies the conditions of a qualified disclaimer.
12.1-6 Credits Against the Tax
12.1-6(a) Generally
Once the deductions have been subtracted from the decedents
gross estate to determine the taxable estate, the adjusted taxable gifts
made after 1976 are added to the taxable estate to arrive at the tax
computation base.
Adjusted taxable gifts means the total amount of the taxable gifts
made by the decedent after 1976, other than gifts already included in the
decedents gross estate (such as a gift of remainder interests with the
income retained by the donor). IRC 2001(b).
The gross tax is determined by first applying the tax rates to the tax
computation base and then subtracting the taxes paid or payable on the
taxable gifts made by the decedent after 1976. For estates of decedents
dying after December 31, 1987, and before January 1, 2002, Congress
added a 5% surtax on gifts and transfers at death in excess of $10 million,
but less than $21,040,000. Former IRC 2001(c). This surtax erased the
12-73
2012 Revision
benefit of the graduated rates, resulting in what amounted to a flat

effective tax rate of 55% on large estates.
For estates of decedents dying after December 31, 2001, the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA),
Pub L No 107-16, 115 Stat 38, reduced the top marginal federal estate
and gift tax rates to 50% by eliminating the 5% surtax and replacing the
53% and 55% brackets with a 50% bracket. The maximum estate and gift
tax rates are further reduced to 49% for 2003, 48% for 2004, 47% for
2005, 46% for 2006, 45% for 20072009, 0% (federal estate tax
eliminated) for 2010, and 35% for 20112012. IRC 2001(c)(2)(B).
Unless Congress acts to revise this schedule, the maximum federal estate
tax rate is scheduled to return to 55% for deaths after December 31,
2012.
The credit was formerly called the unified credit but is now
referred to as the applicable credit amount, and any other credits that
may apply are then subtracted from the gross tax to determine the estate
tax payable. The tax rates are found in a table included in the instructions
for the federal estate tax return.
There are four credits against the tax:
(1)
The applicable credit amount, IRC 2010; see 12.1-6(b);
(2) The credit for the federal gift tax (applies only to gifts made
before 1977), IRC 2012; see 12.1-6(d);
(3) The credit for the estate tax on prior transfers, IRC 2013;
see 12.1-6(e); and
(4)
The credit for foreign death taxes, IRC 2014; see 12.1-
6(f).
The purpose of all the credits (other than the first) is to reduce the
effect of double taxation on the same transfers or the same property.
These credits are discussed in detail in 12.1-6(b) to 12.1-6(f).
12.1-6(b) Applicable Credit Amount
Every estate is allowed a credit, known as the applicable credit
amount (formerly known as the unified credit), against estate tax due.
12-74
2012 Revision
IRC 2010(c). The credit is applied to gift taxes first and, to the extent
not used to offset gift taxes on post-1976 gifts, against estate taxes. The
credit replaces the old $30,000 lifetime gift tax exemption and the
$60,000 specific exemption for estate tax. The allowable credit is
available to offset gift tax or estate tax. The credit has the effect of
offsetting the lowest portion of the estate, whereas the old specific
exemption would reduce the estate tax at the highest marginal rate of the
estate. As amended by the Economic Growth and Tax Relief
Reconciliation Act of 2001, the credit is defined to be the credit
necessary to offset tax on the applicable exclusion amount in accordance
with the following schedule:
Calendar
Year
Estate Tax
Exclusion
(in millions)
(IRC 2010(c))
GST Tax
Gift Tax
Highest Gift
Exemption
Exclusion
and Estate
Amount
Amount
Tax Rates
(in millions)
(in millions)
(IRC
(IRC 2631(c)) (IRC 2505(c))
2001(c))
2002
$1.0
$1.06
$1.0
50%
2003
$1.0
$1.06
$1.0
49%
2004
$1.5
$1.5
$1.0
48%
2005
$1.5
$1.5
$1.0
47%
2006
$2.0
$2.0
$1.0
46%
2007
$2.0
$2.0
$1.0
45%
2008
$2.0
$2.0
$1.0
45%
2009
$3.5
$3.5
$1.0
45%
2010
N/A (estate tax N/A (GST tax $1.0

repealed)
repealed)
35% (gift tax

only)
OR $5.0 if
elected
35% (both)
$5.0
$1.0
12-75
2012 Revision

Calendar
Year
Estate Tax
Exclusion
(in millions)
(IRC 2010(c))
GST Tax
Gift Tax
Highest Gift
Exemption
Exclusion
and Estate
Amount
Amount
Tax Rates
(in millions)
(in millions)
(IRC
(IRC 2631(c)) (IRC 2505(c))
2001(c))
2011
$5.0
$5.0
$1.0
35%
2102
$1.0
$1.0
$1.0
35%
2013
$1.0
$1.0
$1.0
55%
NOTE: The allowable credit must be reduced by an amount

equal to 20% of any portion of the old $30,000 gift tax exemption
claimed for 1976 gifts made after September 8, 1976. IRC
2010(b).
PRACTICE TIP: In planning the use of the credit for gift tax or
estate tax purposes, the lawyer should not overlook the possible
reduction resulting from the use of any portion of the $30,000
exemption to offset 1976 gifts made after September 8, 1976.
12.1-6(c) Credit for State Death Taxes Under Prior Law
Under former IRC 2011, a credit was allowed against the federal
estate tax for any state inheritance or estate taxes paid for property in the
decedents gross estate. The Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA), Pub L No 107-16, 115 Stat 38,
phased out the state death tax credit for estates of decedents dying after
2004. The credit was reduced to 25% for decedents dying in 2002, 50%
in 2003, and 75% in 2004. IRC 2011(b)(2).
For decedents dying in 2005 and thereafter, the credit is replaced
by an unlimited deduction for state death taxes actually paid. IRC 2058;
Treas Reg 20.2053-9. See 12.1-4(g).
12-76
2012 Revision
12.1-6(d) Credit for Federal Gift Taxes

If a federal gift tax has been paid on any pre-1977 transfer and the
property transferred is included in the decedents gross estate for federal
estate tax purposes, a credit is provided against the estate tax for all or a
portion of the gift tax paid in respect of the transfer. IRC 2012(a). The
amount of the gift tax credit is limited to the lesser of (1) the gift tax
allocable to the property included in the gross estate or (2) the estate tax
allocable to such property. See Treas Reg 20.2012-1(b). The credit will
usually give complete relief from double taxation with respect to the
property transferred.
Under IRC 2012(e), there is no credit for federal gift taxes on
gifts made after 1976, because the unification of gift taxes and estate
taxes under the Tax Reform Act of 1976 allows deduction of the gift
taxes paid on post-1976 gifts to arrive at the gross-estate tax. The credit
applies only to transfers made before 1977.
In substance, IRC 2012 relates to property that the decedent has
transferred inter vivos but that is now held to be includable in the
decedents gross estate for estate tax purposes. Typical examples are pre1977 transfers included in the estate as transfers of remainder interest
with a life estate retained, or other transfers with retained interests.
Some difficulties in the computation may arise because of the splitgift tax provisions of the gift tax law, which allow a gift to be treated as
made one-half by each spouse. IRC 2012(c). In this situation, the gift
tax allocable to the property must be computed separately with respect to
each half of the gift.
Generally, the gift tax allocable to the property is determined by
multiplying the total gift tax paid for the years (or quarter) by the
adjusted gift tax value of the gift at the time of the gift, and dividing this
product by the sum of the total taxable gifts for the years (or quarter) and
the gift tax specific exemption allowed for the years (or quarter). This
computation establishes the amount of the first limitation referred to
above, the gift tax allocable to the property included in the gross estate.
See Treas Reg 20.2012-1(c).
12-77
2012 Revision
The second limitation is the amount of the estate tax attributable to

the inclusion of the gift in the decedents gross estate. If a gift was made
by the decedent and treated by consent of the spouse as made one-half by
the decedent and one-half by the spouse, the estate tax attributable to the
inclusion of the gift is computed with respect to the sum of the two
halves of the gift. The estate tax attributable to the inclusion of the gift is
determined by multiplying (1) the gross-estate tax, minus the applicable
credit amount and state inheritance tax credit, by (2) the adjusted value of
the included gift (i.e., the lower of the gift tax value or estate tax value of
the gift, reduced by all or a part of any gift tax annual exclusions allowed,
by any estate tax charitable deduction allowed for the property, and by
any estate tax marital deduction allowed in respect thereof), and
(3) dividing this product by the value of the gross estate, reduced by the
estate tax charitable deduction and the estate tax marital deduction. See
Treas Reg 20.2012-1(d).
Examples of these computations are provided in Treasury
Regulation 20.2012-1.
12.1-6(e) Credit for Tax on Prior Transfers
In an effort to prevent the federal estate tax from operating on
property that was immediately received by a decedent from another
estate, IRC 2013 allows the estate of the second decedent a credit for the
estate tax paid on the property transferred by the estate of the prior
decedent. The credit applies to decedents who acquired property from a
prior decedent who died within 10 years before or two years after the
decedent died. IRC 2013(a). The decedents estate is allowed to credit
against its estate tax the proportionate part of the estate tax paid by the
prior decedents estate on the transferred property. IRC 2013(b).
The maximum credit equals the amount of the tax paid in the
transferors estate, but not to exceed the amount of tax by which the
current decedents estate would have been reduced if the property were
not in the second estate at all. IRC 2013(c). In other words, the amount
of the maximum credit is the lower of the proportionate part of the tax
paid on the transferred property by the prior decedents estate or the
amount by which the transferred property might increase the estate tax of
12-78
2012 Revision
the transferee. When the transferor dies within two years before or after
the current decedent, the credit will be the full amount so determined. If
the transferor died within the third or fourth year before the current
decedents death, the credit is only 80% of the maximum; if within the
fifth or sixth year, 60%; if within the seventh or eighth year, 40%; if
within the ninth or tenth year, 20%. IRC 2013(a). Treasury Regulation
20.2013-6 contains several examples of the computation of the credit
for tax on prior transfers.
A credit is allowable for the value of a life estate, with the value
determined as of the death of the transferor. See Treas Reg 20.2013-1
to 20.2013-6.
PRACTICE TIP: In providing for a life estate in a nonmarital
deduction residuary trust for the surviving spouse, the lawyer
should not require that the spouse survive the decedent by any
period, such as six months, to be entitled to income for life. The
value of the spouses life estate will be actuarially determined as of
the decedents death. If the surviving spouse should die within a
short period thereafter, and a marital deduction is not claimed, the
credit for tax paid on prior transfers would be available in his or
her estate to offset, to some extent, the federal estate tax payable
by the surviving spouses estate.
12.1-6(f)
Credit for Foreign Death Taxes
A credit is allowed for any inheritance, legacy, or succession taxes

actually paid to a foreign country with respect to property situated within
the country and that is included in the decedents gross estate. IRC
2014.
NOTE: The credit is not available when a deduction for
inheritance taxes paid to a foreign country is allowed under IRC
2053(d). IRC 2014(f). See 12.1-4(g).
The credit is allowed only to a citizen or resident of the United
States and is intended to reduce the burden of double taxation when
property is taxed under the federal estate tax law and also in the foreign
country in which the property is situated. The credit for foreign death
taxes is subtracted from the gross estate tax after the applicable credit
12-79
2012 Revision
amount and the credit for gift taxes have been deducted, but before any
credit for tax on prior transfers is taken.
Bilateral death tax conventions are in effect between the United
States and several other countries, which provide for foreign tax credits
on a mutual basis. When such conventions exist, the executor of the
estate may elect either the credit allowed by IRC 2014 or the credit
allowed by the convention, whichever is the more beneficial to the
estate. Treas Reg 20.2014-4(a)(1). It will not necessarily be more
beneficial to take the larger of the two available credits because the credit
for tax on prior transfers (under IRC 2013) may differ, depending on
whether the credit for foreign death taxes is taken under the convention
or under IRC 2014. Thus, in cases involving both a credit for foreign
death taxes and a credit for prior transfers, the advantages of taking the
larger foreign death tax credit may be more than offset by a resulting
smaller credit for the tax on prior transfers.
The credit allowed by IRC 2014 is limited to the smaller of
(1) the foreign death tax attributable to the qualifying property or (2) the
federal estate tax attributable to the qualifying property. IRC 2014(b).
The first limitation is the amount of the foreign death tax attributable to
the qualifying property, which is determined by multiplying (1) the total
tax paid to the foreign country by (2) a factor determined by dividing the
value of the property subject to the foreign tax (and included in the gross
estate) by the value of all property subject to the foreign tax. Treas Reg
20.2014-2. The second limitation is the amount of the federal estate tax
attributable to the qualifying property, which is determined by
multiplying (1) the gross federal estate tax (minus the gift tax credit) by
(2) a factor equal to the ratio of the adjusted value of the qualified
property to the adjusted value of the total gross estate. Examples of these
computations are presented in the regulations. Treas Reg 20.2014-3.
The foreign death tax credit is allowed only if the executor submits
information on (1) the amount of taxes actually paid to the foreign
country, (2) the amount and date of each payment, (3) the description and
value of the property subject to the foreign tax, and (4) all other information necessary for the verification and computation of the credit. IRC
2014(d). Generally, this evidence is submitted on Form 706-CE,
12-80
2012 Revision
available at <www.irs.gov/pub/irs-pdf/f706ce.pdf>, which is certified by

the foreign government. The credit is allowed only if the tax is actually
paid and credit for it is claimed within four years after the return is filed,
except that (1) if a petition is filed with the Tax Court, then the tax must
be paid and the credit for it must be claimed within such four-year period
or before the expiration of 60 days after the decision of the Tax Court
becomes final, or (2) if an extension of time for payment has been
granted under IRC 6161, within such four-year period or before the date
of expiration of the extension period. IRC 2014(e).
12.2
FEDERAL ESTATE TAXPROCEDURAL ASPECTS
12.2-1 Introduction
Federal estate tax laws apply to the estates of decedents when the
value of the gross estate equals or exceeds the minimum established
amount for filing a return. See 12.2-5(a). When a federal estate tax
return is required, the steps involved include preparing and filing the
estate tax return, paying the tax, and, if necessary, following appeal
procedures.
NOTE: See chapter 14 for a discussion of Oregons estate tax
laws and the requirements for filing a return under them. Oregons
estate tax, which is now separate from the federal estate tax, may
necessitate the filing of an Oregon tax return in estates that are
below the federal filing threshold.
Oregons estate tax was formerly known as an inheritance
tax.
12.2-2 Gathering the Facts
For many estates, the nature and extent of assets or transfers that
may be includable in the decedents gross estate are not fully known. In
such cases, the executor or lawyer must assemble and develop such
information by reference to collateral documents and papers. Income tax
returns filed by the decedent for the years immediately preceding death
may be an important source of information concerning the nature and
extent of assets held by the decedent. Dividend, interest, and rental
12-81
2012 Revision
schedules provide information about income-producing assets. Deductions claimed for real property taxes and expenses may disclose the
existence and location of land and buildings and, possibly, the existence
of other assets not currently producing income.
12.2-3 Disclaimers
In 1976, provisions were adopted to establish a uniform national
rule for qualified disclaimers, to be effective for both federal estate tax
and gift tax purposes. These changes are found in IRC 2046 and IRC
2518, respectively. The stated purpose was to introduce uniformity
among the various state disclaimer laws. See Pub L No 94-455,
2009(b)(1), 90 Stat 1893.
A qualified disclaimer is defined as an irrevocable and
unqualified refusal by a person to accept an interest in property, IRC
2518(b), but only if:
(1)
The refusal is in writing;
(2) The writing is received by the transferor of the interest, the

transferors legal representative, or the holder of legal title to the
property;
(3) Such person receives the writing within nine months after
the later of the date of the transfer creating the interest or the day on
which the disclaimant attains the age of 21;
(4) The disclaimer is made before the disclaimant has accepted
the interest or any of its benefits; and
(5) As a result of the disclaimer, the interest passes to the
decedents spouse or to a person other than the disclaimant, without any
direction by the disclaimant.
IRC 2518(b).
For interests created after 1981, the Economic Recovery Tax Act
of 1981, Pub L No 97-34, 95 Stat 172, has simplified the requirements
for obtaining a qualified disclaimer by providing that a written transfer of
the transferors entire interest in the property that meets conditions (3),
(4), and (5) above will be treated as a qualified disclaimer. IRC
12-82
2012 Revision
2518(c)(3). It is no longer necessary for the disclaimer to be valid under

local law to be effective for federal estate tax purposes, but local law
continues to apply to determine the identity of the transferee.
If a surviving spouse disclaims an interest under the will of his or
her deceased spouse under terms such that the disclaimed property will
pass to a trust in which the surviving spouse has an interest, the
disclaimer is valid if it is otherwise qualified and the disclaimed interest
passes to the surviving spouse, or to a person other than the person
disclaiming the interest, without any direction by the surviving spouse.
IRC 2518(b). Under this provision, it is permissible for a surviving
spouse to disclaim an interest in property with the result that such
disclaimed property passes to a qualified terminable interest property
(QTIP) trust.
The disclaimer provision clearly recognizes the right to make
partial disclaimers. IRC 2518(c)(1). In 1986, the Internal Revenue
Service issued final regulations under IRC 2518, liberalizing the
permissible use of partial disclaimers. Under the regulations as originally
proposed, a disclaimer of a partial interest in property is not qualified
unless the disclaimant also disclaimed all other interests in the subject
property. Under the final regulations, a qualified disclaimer may be made
for part of an interest in property if the part disclaimed is severable from
the part accepted. Treas Reg 25.2518-3(a)(1)(ii). Thus, for example, a
portion of a pecuniary bequest or a bequest of shares of stock could be
the subject of a qualified disclaimer.
PRACTICE TIP: The use of partial disclaimers is useful as a
postmortem estate planning tool to cut down the marital bequest to
the minimum amount needed to reduce the federal estate tax to
zero or to balance the estates of the husband and the wife to
minimize overall taxes.
12.2-4 Valuation of Assets
For purposes of determining whether the estate is large enough to
require filing a federal estate tax return or an Oregon estate tax return, the
assets includable in the gross estate for federal estate tax purposes must
be valued as of the date of the decedents death. See IRC 2031. The
12-83
2012 Revision
assets must be valued at the gross fair-market value, that is, without
reduction for liens or encumbrances that may exist against the property.
For valuation procedures to be applied in determining the value of
specific assets, see 12.2-12 to 12.2-12(j). If doubt exists regarding
whether an asset is includable or excludable from the gross estate, and
the gross estate would exceed the minimum limits if the doubtful asset is
included, a return should be filed to avoid the possible imposition of
penalties and to protect the validity of any elections that are dependent on
a timely filed estate tax return.
12.2-5 Federal Estate Tax ReturnIRS Form 706
12.2-5(a) When a Federal Return Is Required
An estate tax return must be filed on IRS Form 706 (available at
<www.irs.gov/Forms-&-Pubs>) for the estate of a deceased citizen or
resident of the United States whose gross estate exceeds a minimum
value. IRC 6018(a). This minimum value varies, depending on the year
of the decedents death and certain prior gifts.
PRACTICE TIP: Form 706 is routinely revised to reflect
applicable changes in the statute or regulations and, consequently,
the attorney must be sure that he or she is using the correct form,
based on the decedents date of death. See the Internal Revenue
Services Web site, at <www.irs.gov/formspubs>, for up-to-date
forms. In addition, the first page of the instructions to a current
Form 706 contains a table showing the appropriate revision of
Form 706 to use based on the decedents date of death.
The unadjusted gross-estate amounts requiring the filing of an
estate tax return for a deceased citizen or resident are as follows (see IRC
6018(a)(1), IRC 2010(c); see also former IRC 2010(c) for the law
predating the Economic Growth and Tax Relief Reconciliation Act of
2001, Pub L No 107-16, 115 Stat 38):
12-84
2012 Revision
Year of Death
Applicable Exclusion Amount
1997
$600,000
1998
$625,000
1999
$650,000
2000 and 2001
$675,000
2002 and 2003
$1,000,000
2004 and 2005
$1,500,000
2006, 2007, and 2008
$2,000,000
2009
$3,500,000
2010
N/A (tax repealed)

or $5,000,000 if elected
2011 and 2012
$5,000,000
2013
$1,000,000 (see the note below)
NOTE: For deaths occurring in 2013 and thereafter, the

applicable exclusion amount reverts to $1,000,000 (indexed for
inflation) unless Congress and the President act to modify the
statute.
If the value of the decedents gross estate on the date of the
decedents death exceeds the applicable exclusion amount under IRC
2010 for the year of death, IRS Form 706 must be filed. The value of
the gross estate on the date of death sets the filing requirement. See IRC
2031. The filing threshold is reduced, however, by the amount of post1976 taxable gifts and by the amount of any pre-1976 lifetime gift tax
exemption allowed with respect to gifts made after September 8, 1976,
but before January 1, 1977. See IRC 2010(b).
12-85
2012 Revision
EXAMPLE: The decedent dies in 2004 owning real estate that

is valued at $1,700,000 but that is encumbered by mortgages
totaling $500,000. The decedent would have no net taxable estate,
but IRS Form 706 must still be filed because the gross estate is
over the threshold filing limit of $1,500,000.
EXAMPLE: The decedent dies in 2004 owning, with his
spouse as joint tenants with right of survivorship, investment
securities with a value of $2,000,000 on the date of death. IRS
Form 706 need not be filed because the decedents gross estate is
only $1,000,000. Under IRC 2040(b)(1), only one-half of the
qualified joint spousal interests is included in the decedents gross
estate.
For nonresident aliens, IRC 6018(a)(2) requires that a return be
filed if the gross estate situated in the United States exceeds $60,000,
minus any adjustment required under IRC 6018(a)(3).
The value at the date of death governs, regardless whether a tax is
due or whether alternate valuation is elected by the executor. Treas Reg
20.6018-1(a).
To file a complete return, the attorney must file a properly signed
copy of the first three pages of IRS Form 706, Schedule F, and any
schedules needed to support the recapitulation on page 3 of Form 706.
12.2-5(b) Where to File a Federal Return
If the decedent was a resident of the United States, the estate tax
return should be filed with the Internal Revenue Service Center in
Cincinnati, Ohio. Treas Reg 20.6091-1(a). See Instructions for IRS
Form 706. Note, however, that the return may also be filed by handdelivery to any IRS office in the district in which the decedent was
domiciled. Treas Reg 20.6091-1(b). Hand-delivery is often the preferred
method when a large tax payment is owed because a receipt can be
obtained for delivery of both the return and the check in payment of the
tax. IRC 6091(b)(3)(4); Instructions for IRS Form 706, p 3 (available
at <www.irs.gov/Forms-&-Pubs>).
12-86
2012 Revision
If the decedent was a nonresident, the regulations provide that the

return (IRS Form 706-NA) should be filed with the Internal Revenue
Service Center in Philadelphia, or as designated in the Instructions for
Form 706-NA. Treas Reg 20.6091-1(b). The 2012 Instructions for Form
706-NA indicate that the return should be filed with the Internal Revenue
Service in Cincinnati, Ohio.
12.2-5(c) Who Must File the Return
The duly qualified executor or administrator of a decedents estate
must file the estate tax return. Treas Reg 20.6018-2. If there is more
than one executor or administrator, the return must be verified and signed
by each one. See the Instructions for IRS Form 706, at <www.irs.gov/
Forms-&-Pubs>. If there is no executor or administrator, every person in
actual or constructive possession of any property of the decedent situated
in the United States is deemed to be an executor for estate tax purposes
and must make and file a return. Treas Reg 20.6018-2. For example, if
the will is not admitted to probate because, before the decedents death,
the decedents property was conveyed to a revocable probate-avoidance
trust, the trustees of the trust must sign and file IRS Form 706.
12.2-5(d) Due Date of Return
In the absence of an extension of time for filing, the federal estate
tax return must be filed within nine months after the date of the
decedents death. IRC 6075(a). In other words, the due date is the day
of the ninth calendar month after the decedents death numerically
corresponding to the day of the calendar month on which death
occurred. Treas Reg 20.6075-1. However, if there is no numerically
corresponding day in the ninth month, the due date is the last day of the
ninth month after the decedents death, unless the person responsible for
filing the return requests an extension of time for filing before the normal
due date. Treas Reg 20.6075-1. For example, if the decedent died on
May 31, the return would be due on February 28 (or 29) of the following
year, in the absence of an extension of time. Treas Reg 20.6075-1; IRC
6075(a). See Treasury Regulation 20.6081-1 and IRS Form 4768
regarding applications for an extension of time to file a return. See also
12.2-7(b)(1).
12-87
2012 Revision
Timely mailing is deemed to be timely filing. IRC 7502. However, if the return is received after the due date, the executor has the
burden of establishing that the return was timely mailed.
PRACTICE TIP: If the return is to be filed by mail on the due
date or a day or two preceding the due date, the executor should
obtain a certified mail receipt with the postmark stamped at the
post office to establish the mailing date with certainty.
Timely filing is important because certain elections are available
only on timely filed returns, such as the election for alternate valuation
date. Treas Reg 20.2032-1(b). The failure to timely file a return may
result in the imposition of a penalty equal to 5% of the tax for each
month or fraction thereof that the return is delinquent, to a maximum
total penalty of 25% of the tax. IRC 6651(a). In addition, delinquency
may result in a failure-to-pay penalty of % per month of the amount of
tax or fraction thereof that the payment is delinquent. IRC 6651(a). See
12.2-8(a).
If it is impossible or impractical for the executor to file a reasonably complete return within the nine-month period described above, the
executor should apply for an extension of time before the due date of the
return. This application may be made on Form 4768 (available at
<www.irs.gov/Forms-&-Pubs>) and is filed with the Internal Revenue
Service Center in Cincinnati, Ohio. Regulations issued in 2001 provide
that a six-month extension timely requested on Form 4768 will be
automatically granted without the need to show reasonable cause. Treas
Reg 20.6081-1(b). The extension request must be accompanied by an
estimate of the amount of estate tax liability and GST tax liability with
respect to the estate. Treas Reg 20.6081-1(a); see Treas Reg 20.60751.
PRACTICE TIP: The attorney should apply for an extension of
time to file (and an extension to pay, if indicated) before the due
date of the return. The failure to do so will forfeit available
elections and probably result in penalties.
12-88
2012 Revision
12.2-5(e) Alternate Valuation Election

The alternate valuation election is made by checking the box on
page 2 of the federal estate tax return, Form 706 (available at <www.irs
.gov/Forms-&-Pubs>). See IRC 2032. The election must be made within
the time permitted for filing the federal estate tax return, including
extensions, or on a late-filed return, but only if the return is the first
return filed and is no more than one year late. IRC 2032(d)(2).
Once made, and after the filing date has passed, the election is
irrevocable. Treas Reg 20.2032-1(b); IRC 2032(d)(1). Similarly, if the
election is not made within the period for filing the return, the estate must
use the valuations as of the date of the decedents death and may not
thereafter elect to use the six-month alternate valuation date. Even though
a return has been filed using date-of-death values, an amended return
may be filed electing the alternate valuation method, as long as it is filed
within the period allowed for filing the estate tax return, and as long as
the estate is not estopped from making the election because of the
discharge of the personal representative of the estate from personal
liability pursuant to a request for early determination of tax (see 12.2-6).
Treas Reg 20.2204-1.
An alternate valuation election can be extremely important in an
estate in which the postdeath asset values may be expected to fluctuate
significantly. Under IRC 1014, the executor of the decedents estate
takes a basis in the estate property equal to the fair-market value on the
applicable valuation date.
The personal representative of the estate should consider filing the
alternate valuation election if a lower valuation is desired to reduce the
federal estate tax attributable to the property. For example, if the
marginal estate tax rate attributable to a particular piece of property is
50%, while the marginal income tax rate of the devisee of the property is
only 28%, it may be beneficial to seek a lower valuation for federal estate
tax purposes at a cost of a lower basis to the devisee. The combination of
tax deferral plus lower effective federal estate tax rates often militates in
favor of selecting the valuation date that results in the lowest gross-estate
value.
12-89
2012 Revision
Additionally, because the alternate valuation election applies to all

estate property, the personal representative should consider the overall
effect of the election before selecting the valuation date.
Both the 1984 and 1986 tax acts imposed some restrictions on IRC
2032. The Tax Reform Act of 1984, Pub L No 98-369, 98 Stat 494,
added IRC 2032(c), which permits the election only if it will decrease
both the value of the gross estate and the net estate tax on the gross
estate. The Tax Reform Act of 1986, Pub L No 99-514, 100 Stat 2085,
added the requirement that the election under IRC 2032 must also
decrease any generation-skipping tax due. IRC 2032(c)(2). These
amendments reaffirm the purpose of a 2032 election as a relief
provision and preclude its use solely for the purpose of increasing the
value of the estates assets to establish a higher basis for income tax
purposes when no tax liability will result.
12.2-5(f)
Documents to Accompany Form 706
As set forth in Treasury Regulation 20.6018-4 and the

Instructions for IRS Form 706 (available at <www.irs.gov/Forms-&Pubs>), a number of documents must be submitted with the estate tax
return. See 12.2-12(s).
12.2-6 Request for Early Audit, Determination of Tax, and Release
The personal representative of a decedents estate may request a
determination of the estate tax and discharge from personal liability. IRC
2204.
The request must be made by written application and be signed by
the personal representative, not by the lawyer for the estate. No particular
form exists for requesting discharge from personal liability under IRC
2204. Such a request is usually made in the form of a letter, which must
be signed by the personal representative. The following language would
be sufficient:
The undersigned, as personal representative of the estate of
____________, pursuant to IRC 2204, hereby requests a determination of the amount of federal estate tax due by the above-entitled estate
and a discharge from personal liability for any deficiency thereafter
found to be due.
12-90
2012 Revision
If such a request is filed, the Internal Revenue Service (IRS) is to

determine the tax liability and notify the personal representative of the
amount of tax due within nine months after receiving the request or, if the
request is made before the return is filed, within nine months after the
return is filed, whichever is later. IRC 2204(a).
Upon paying the amount of tax determined or, with respect to any
portion qualifying for extended payment, upon posting a bond or giving
the special lien provided by IRC 6324A, the personal representative is
discharged from personal liability for any deficiency in tax thereafter
found to be due. Treas Reg 20.2204-1(b).
The request for determination of tax and discharge from personal
liability under IRC 2204 relates only to the personal representatives
liability as personal representative. Treas Reg 20.2204-1(a). If the
personal representative is also a beneficiary of the estate, he or she may
still be liable as a transferee of the estate for any additional deficiency to
the extent of the interest he or she receives. See Rev Rul 64-305, 1964-2
CB 503.
An application for discharge from personal liability under IRC
2204 may be made at any time.
PRACTICE TIP: As a practical matter, the audit division
generally ignores requests for early audit when the personal
representative is also a beneficiary of the estate and would remain
subject to transferee liability. In those cases, the only benefit from
filing an application for early audit is to practically assure an audit
of the estate tax return, although such a request would not
guarantee that the audit will be commenced within the nine-month
period.
12.2-7 Payment of Estate Tax
12.2-7(a) Due Date
Unless an extension of time for payment is obtained (see 12.27(b)(1)), the federal estate tax is due and payable on the day of the ninth
calendar month after the decedents death numerically corresponding to
the day of the calendar month on which death occurred. Treas Reg
12-91
2012 Revision
20.6075-1. However, if no date in the ninth month numerically

corresponds to the date of death, the tax is due and payable on the last
day of the ninth month. IRC 6075, IRC 6151; Treas Reg 20.6075-1.
12.2-7(b) Extensions of Time for Payment of Tax
12.2-7(b)(1) Generally
Under IRC 6161(a)(2), the Internal Revenue Service may extend
the time for payment of the estate tax for a reasonable period up to 10
years. As a practical matter, extensions are generally not granted for more
than one year at a time, requiring annual requests for further extensions,
if necessary. Treas Reg 20.6161-1. An extension may be granted on a
showing that payment of the tax on the date it is due would impose
undue hardship upon the estate. Treas Reg 20.6161-1(a)(2). Treasury
Regulation 20.6161-2(b) recognizes that the sale of property at a
sacrifice price or during a severely depressed market constitutes an
undue hardship, which is a stricter test than that for reasonable cause.
Also, the regulations recognize that the forced sale of an interest in a
family business to unrelated persons constitutes an undue hardship even
though the sale could be effected at a price equal to current fair-market
value. Treas Reg 20.6161-1(a)(2)(ii), Ex. (1).
12.2-7(b)(2) Tax on Reversionary or Remainder Interests
Under IRC 6163, payment of the portion of the federal estate tax
that may be attributable to the taxation of the value of a reversionary or
remainder interest may be postponed. To obtain an extension of time
under this section, the personal representative must make the election
before the date prescribed for payment of the tax (normally within nine
months of the decedents death). Treas Reg 20.6163-1(b). Payment of
the tax attributable to the future interest may be deferred until six months
after the interest vests in possession. IRC 6163(a).
12.2-7(b)(3) Tax on Interests in Closely Held Businesses
Deaths After 1981
Effective for decedents dying after 1981, the Economic Recovery
Tax Act of 1981, Pub L No 97-34, 95 Stat 172, consolidated former IRC
6166 and former IRC 6166A into a new IRC 6166 and repealed IRC
12-92
2012 Revision
6166A. Under IRC 6166, as amended, the qualification rules for

extending the time for payment of the estate tax are fairly liberal.
The estate may qualify for deferment of estate taxes if the value of
an interest in a closely held business exceeds 35% of the decedents
adjusted gross estate as defined in IRC 6166(b)(6). IRC 6166(a)(1). In
addition, the rules for aggregating two or more closely held businesses
for purposes of meeting the 35% requirement are somewhat more liberal
than under prior law. If the interests in two or more closely held
businesses are included in the decedents gross estate, the interests may
be aggregated for purposes of meeting the 35% requirement if the value
of each interest was at least 20% of the total value of each such business.
IRC 6166(c).
The interest rate on the estate tax attributable to the first
$1,000,000 (adjusted for inflation, $1,430,000 for estates of decedents
dying in 2013) in the value of the closely held business will be subject to
a special interest rate of 2%. IRC 6601(j); see Rev Proc 2012-41, 201245 IRB 539 (2012). Any remaining estate tax attributable to the closely
held business interest will be subject to a special rate of interest
calculated as 45% of the interest rate charged by the Internal Revenue
Service (IRS) on tax deficiencies. IRC 6601(j). In return for these more
favorable interest provisions, estates will no longer be able to deduct
interest deferred under IRC 6166 as an expense of administration under
IRC 2053, or as an interest deduction under IRC 163. IRC
2053(c)(1)(D), IRC 163(k). The deferred tax is subject to interest-only
payments for the first four years and thereafter payment of the tax
balance in up to 10 annual installments of principal and interest.
The Internal Revenue Code allows the withdrawal or disposition of
up to 50% of the value of the decedents interest in a closely held
business before acceleration of unpaid taxes occurs. IRC 6166(g)(1)(A).
Dispositions and withdrawals are aggregated for this purpose.
Additionally, acceleration of unpaid taxes is not triggered by the death of
the original heir or the death of any subsequent transferee if the decedents interest in the closely held business passes, as a result of such
death, only to a family member of the preceding transferor (within the
meaning of IRC 267(c)(4)). IRC 6166(g)(1)(D). Redemptions that
12-93
2012 Revision
qualify under IRC 303 are not counted for purposes of the 50%
disposition test. IRC 6166(g)(1)(B).
The failure to timely pay a tax installment no longer automatically
accelerates payment of the unpaid balance. The principal portion of the
late payment is not eligible for the special 2% interest rate, however, and
a penalty of 5% per month on the amount of the payment is imposed.
IRC 6166(g)(3)(B). If the full delinquent amount is not paid within six
months of the date it was originally due, the entire unpaid tax and interest
is accelerated and payable immediately. IRC 6166(g)(3)(A). Conforming amendments were also made to IRC 303 regarding stock redemptions to pay death taxes and funeral and administration expenses. IRC
303(a). The more liberal rules for aggregation of business interests may
be used, and the estate qualifies for IRC 303 treatment, if the aggregate
value of the decedents interest in closely held corporations comprises at
least 35% of the decedents adjusted gross estate. IRC 303(b)(2).
The Taxpayer Relief Act of 1997, Pub L No 105-34, 111 Stat 788,
also modified the procedural provisions to permit an estate to seek
judicial review of eligibility under IRC 6166 to make installment
payments. The personal representative may seek a declaratory judgment
from the Tax Court concerning the estates eligibility under IRC 6166.
IRC 7479. This procedural avenue is available to estates of decedents
dying after August 5, 1997. The Tax Technical Corrections Act of 1998,
Pub L No 105-206, 112 Stat 790, amended IRC 7479 to make clear that
estates may pursue a refund action in federal district court or the Court of
Federal Claims, only if no case is pending in the Tax Court regarding the
estate tax and no declaratory judgment proceeding is pending regarding
the estate tax installment payments.
Deficiencies, when determined, may also qualify for installment
payments on the same basis. However, the portion of the deficiency
prorated to installments already paid or past due must be paid upon notice
from the IRS. IRC 6166(e).
Finally, Revenue Ruling 2006-34, 2006-1 CB 1171, provides
helpful guidelines and explains the circumstances under which the dece-
12-94
2012 Revision
dents interest in a real estate business may qualify as an interest in a

closely held business qualifying for deferral under IRC 6166.
PRACTICE TIP: If the estates interest in a closely held
business is close to the 35% threshold, the attorney should consider
filing a protective election under IRC 6166. In this way, the estate
preserves the ability to take advantage of the benefits of IRC
6166 if the IRS later revalues the business interest with the result
that the value, as determined by the IRS, exceeds the 35%
threshold.
PRACTICE TIP: Unlike the elections available under IRC
2032A (special-valuation election) and IRC 2057 (a qualified
terminable interest property election), the election under IRC
6166 must be made on a timely filed federal estate tax return.
12.2-7(c) Interest
Interest on extensions for payment of estate taxes on grounds of
reasonable cause under IRC 6161(a)(2) and installment payments
allowed under IRC 6166, as attributable to interests in closely held
businesses, accrues at the same rate as interest on all other underpayments and delinquent payments, except that for payments under IRC
6166, the rate will be 2% on the portion attributable to the first
$1,000,000 ($1,430,000 in 2013 adjusted for inflation) in closely held
business value and 45% of the federal deficiency interest rate on the
balance. IRC 6601(j). The underpayment rate is defined in IRC
6621(a)(2) to be the federal short-term rate, plus three percentage
points, and is adjusted semiannually. Beginning January 1, 1983, the
interest rate on unpaid federal tax deficiencies and on overpayments is
compounded daily. IRC 6622. This provision was added by Congress in
the Tax Equity and Fiscal Responsibility Act of 1982, Pub L No 97-248,
96 Stat 324, in an effort to generate more revenue and speed up the
collection of deficiencies.
12.2-7(d) Method of Paying Tax
The personal representative may pay the estate tax by various
methods. Payment may be by check or money order, made payable to
United States Treasury. According to the Instructions for IRS Form
12-95
2012 Revision
706, writing the decedents name and Social Security number and Form
706 on the check will help ensure that the check is posted to the proper
account. Payment of the tax may be made at the district office if the
return is hand-delivered to that office for filing. If the return is mailed, it
should be addressed to the Internal Revenue Service. Payment should
accompany the return.
PRACTICE TIP: When mailing the return and payment on the
last day or only a few days before the due date, the personal
representative should consider sending the return by certified mail
and having the certified mail receipt postmarked at the post office
to establish the date of mailing.
The Instructions for IRS Form 706 (available at <www.irs.gov/
instructions/i706/ch01.html>) state that the personal representative can
use certain private delivery services designated by the IRS to meet the
timely mailing as timely filing/paying rule for tax returns and
payments. These private delivery services include those listed in the
Instructions for Form 706. Payment of the tax due shown on Form 706
may be submitted electronically through the Electronic Federal Tax
Payment System (EFTPS). EFTPS is a free service of the Department of
Treasury. Instructions for IRS Form 706.
COMMENT: Although it is technically correct that the
Instructions for IRS Form 706 now permit delivery by private
delivery services, most tax attorneys still prefer to rely on the U.S.
postal service for delivery. It is less expensive than the private
courier services. Also, not all of the private couriers are approved,
and the attorney must take care to use the correct delivery options
from those available by the private courier. A large body of law
has affirmed the mailbox rule as it applies to the postal service;
there is little opportunity for mistake as long as the attorney takes
care to obtain proof of mailing by a round date stamp on the
receipt.
12-96
2012 Revision
12.2-8 Penalties for Failure to File Tax Return or to Pay Tax

12.2-8(a) Failure to File Timely Return
In the absence of a showing of reasonable cause, the failure to file
a timely estate tax return results in the imposition of a delinquency
penalty equal to 5% of the amount of tax for each month or fraction of a
month that such delinquency exists (to a maximum of 25%). IRC
6651(a)(1). Thus, a two-day delinquency could result in the imposition
of a penalty of 5% of the tax determined.
To avoid the imposition of the penalty, the personal representative
must show that the failure to file a timely return was due to reasonable
cause and not due to willful neglect. IRC 6651(a)(1). The question is
one of fact. Ferrando v. United States, 245 F2d 582, 587588 (9th Cir
1957). Reliance on an accountant or a lawyer has been held not to
constitute reasonable cause. Ferrando, 245 F2d at 589. But see Estate of
Collino v. C.I.R., 25 TC 1026, 1036 acq., 1956-2 CB 4 (1956).
If the personal representative believes that reasonable cause exists,
an affirmative showing of the facts must be made in the form of a written
statement signed under penalties of perjury. The statement should be
filed with the district director or the director of the service center with
whom the return is required to be filed. Treas Reg 301.6651-1(c).
12.2-8(b) Accuracy-Related Penalty
If the Internal Revenue Service finds an underpayment of tax
required to be shown on a return, and such underpayment is attributable
to a substantial valuation understatement, a penalty is imposed equal to
20% of the portion of the underpayment attributable to a substantial
estate or gift tax valuation understatement. IRC 6662(a), (b), (g). A
substantial estate or gift tax valuation understatement exists if the value
of any property claimed on a federal estate tax return or gift tax return is
65% or less of the amount determined to be the correct amount of such
valuation. IRC 6662(g)(1). In addition, if the undervaluation is
determined to be 40% or less of the correct amount finally determined, a
gross valuation misstatement exists and the penalty increases to 40% of
the portion of the underpayment attributable to the valuation understatement. IRC 6662(h).
12-97
2012 Revision
This penalty creates a significant area of exposure for the personal

representative in view of the uncertainty inherent in valuing assets that
have traditionally been difficult to value, such as stock in a closely held
corporation, real estate interests, and other assets for which no ready
market exists. In most cases, it will be necessary to engage the services of
a qualified appraiser to furnish the estate with a valuation appraisal. Note,
however, that the exercise of due diligence by the personal representative
in obtaining an independent determination of value does not necessarily
avoid the penalty if the appraisal otherwise results in a valuation understatement.
12.2-8(c) Failure to Pay Tax
An additional penalty is imposed for the failure to pay the estate
tax when due or the failure to pay a deficiency when assessed, unless the
failure is shown to be for reasonable cause. This penalty is % per
month of the amount of the tax for the period of delinquency to a
maximum of 25%. IRC 6651(a)(2).
12.2-8(d) Underpayment
If the estate tax is underpaid due to fraud, a penalty results in an
amount equal to 75% of the underpayment. IRC 6663.
12.2-8(e) Willful Failure to File; False Statements
Criminal penalties are provided for the willful failure to file an
estate tax return, or for knowingly making any false statement in the
return. IRC 7203.
12.2-9 Collection of Tax
12.2-9(a) Personal Liability of Personal Representative
The personal representative has primary liability for paying the
federal estate tax, including the portion of the tax imposed on property
that does not come into the possession of the personal representative, and
regardless of the applicable local law or the decedents direction on
apportionment of death taxes. The personal liability is limited, however,
to the value of the property in the actual or constructive possession of the
personal representative. Under 31 USC 3713(b), the personal representative is personally liable to the extent any portion of the estate in the
12-98
2012 Revision
personal representatives actual or constructive possession is used to pay

debts or is distributed to estate beneficiaries. The means by which the
personal representative may be relieved of personal liability are discussed
in 12.2-6.
12.2-9(b) Liability of Possessor of Decedents Property
If no personal representative is appointed and acting in the United
States, any other person in actual or constructive possession of the
decedents property must pay the entire tax to the extent of the value of
the property in that persons possession. To the extent of the value of that
property, such person may be held to be personally liable for the estate
tax as if that person were an executor. IRC 2203.
12.2-9(c) Transferees Liability
An estate beneficiary (using the term in a broad sense to include all
persons in receipt of property includable in the decedents gross estate,
whether as a surviving joint owner, a beneficiary under an insurance
policy, or otherwise) is liable for any portion of the federal estate tax that
is not paid when due, to the extent of the property received by that
beneficiary. IRC 6901.
Any underpayment of federal estate tax may be assessed against
the transferee within one year after the expiration of the period of
limitation for assessment of the federal estate tax against the estate. IRC
6324(a), (c), IRC 6901(a); Field v. C.I.R., 32 TC 187, 206 (1959), affd
sub nom. Field, Gold, Camtin, Daniels, Baskin, Bilton, Daniels v. C.I.R.,
286 F2d 960 (6th Cir 1960).
A request for prompt assessment does not shorten the length of
time of the transferees liability. Rev Rul 64-305, 1964-2 CB 503.
12.2-9(d) General Lien
Upon the assessment of the federal estate tax, a lien arisesto the
extent the tax has not been paidagainst all property owned by the
persons liable for payment of the tax until the liability is satisfied or
becomes unenforceable by lapse of time. IRC 6321, IRC 6322. The
lien is effective to establish prior rights over certain other claimants, even
though a notice of lien has not been filed. The priorities of a nonfiled lien
12-99
2012 Revision
are established by the Federal Tax Lien Act of 1966, Pub L No 89-719,
101(a), 80 Stat 1125. See IRC 63216327.
Generally, purchasers, judgment lien creditors, mechanics lienors,
and holders of security interests are accorded priority over a nonfiled tax
lien. IRC 6323. In addition, certain third-party interests arising after the
filing of the tax lien are accorded priority over the tax lien (in some
cases, even if the third party had actual notice of the liens existence).
The interests accorded these superpriorities under certain conditions
include purchases of stocks or other securities, motor vehicles, certain
retail purchases, purchases of exempt property in a sale for less than
$1,000, possessory liens, mechanics liens against real property, real
property taxes, attorney liens, loans on insurance contracts, and passbook
loans. IRC 6323(b).
The lien is to be filed in a lien index established at the district
office of the Internal Revenue Service for the district in which the
property is situated. Real property is situated where physically located.
Personal property is situated at the residence of the taxpayer at the time
the lien notice is filed. IRC 6323(f).
12.2-9(e) Special Lien for Estate Tax
Under IRC 6324, a lien for estate taxes is imposed on all property
includable in the decedents gross estate, except the portion used for
payment of charges against the estate and expenses of administration.
This special lien exists for 10 years from the date of the decedents death,
unless the estate tax is paid sooner or unless the liability becomes
unenforceable because the statute of limitations has run for collection
(usually six years after assessment).
This statute also provides for a lien on any property that was
included in the gross estate and transferred to a transferee if the federal
estate tax is not paid when due. IRC 6324(a)(2). The lien is limited to
the transferees liability under IRC 6324, which is generally limited to
the value, at the time of the decedents death, of the transferred property.
If the transferee receives property to which a lien under IRC 6324 has
attached, and subsequently transfers that property to a purchaser or
holder of a security interest, the lien is divested from the transferred
12-100
2012 Revision
property, but a like lien then attaches to all property of the person making
the transfer, except for property transferred to a bona fide purchaser or
holder of a security interest for adequate and full consideration. IRC
6324(a)(2).
This statute specifically provides that IRC 2204, relating to the
release of the personal representative from personal liability, cannot
operate as a release of the lien on any estate property. IRC 6324(a)(3).
The priorities of third-party interests over the special lien are generally
the same as under the general lien provisions.
A special lien is allowed when payment of the estate tax has been
deferred under IRC 6166. IRC 6324A. The special lien may be elected
by the executor by filing an agreement signed by all persons having an
interest in the designated IRC 6166 lien property, consenting to the
creation of the lien and designating an agent for the beneficiaries. By
designating IRC 6166 lien property in this manner, the executor avoids
the need to post a bond as a condition to his or her release under IRC
2204. IRC 6324A(d).
12.2-10 Statute of Limitations
In the absence of fraud or the substantial omission of assets from
the decedents gross estate, the period of limitations for the assessment of
a deficiency in the federal estate tax is three years from the due date of
the return or the actual filing date, whichever is later. IRC 6501(a). The
filing of the return before the due date does not accelerate the running of
the period of limitations, since such returns are deemed to have been filed
on the due date. IRC 6501(b)(1). If no return is filed, or if a false or
fraudulent return is filed, the tax may be assessed at any time (i.e., such
assessment is not subject to any period of limitations). IRC 6501(c).
When assets having a value in excess of 25% of the gross estate
stated in the return are omitted from the return, the period of limitations
is extended to a period ending six years after the due date of the return or
the date the return is filed, whichever is later. IRC 6501(e)(2).
12-101
2012 Revision
12.2-11 Audit and Review Procedures

12.2-11(a) Mathematical Verification
After it receives IRS Form 706, the Internal Revenue Service (IRS)
checks the calculations (e.g., 1,000 shares of XYZ stock at $10 per share
equals $10,000), totals, and computations of the tax for mathematical
accuracy. If a mathematical error on the estate tax return results in the
IRSs determining that a deficiency in tax exists, it will send the personal
representative a notice of demand for payment of the deficiency. IRC
6211(a), IRC 6212(a). If an overassessment results, refund of the
overpayment is made.
COMMENT: It should not be assumed that a determination
made at this stage indicates that the balance of the return has been
accepted as filed. Any determination at this stage is based solely on
the mathematical determination from the amounts shown in the
return.
12.2-11(b) Classification
After checking tax returns for mathematical accuracy, the Internal
Revenue Service (IRS) classifies the returns in the IRS Service Center to
determine whether the return should be accepted as filed or assigned for
audit. Although no fixed rules exist for selecting returns for audit, the
following factors, in varying degrees, probably tend to weigh in favor of
an audit:
(1) A request for an early audit and release of the personal
representative from personal liability under IRC 2204;
(2) An incomplete return and the failure to include sufficient
information;
(3) Estate assets of indefinite value, such as real estate, stocks in
closely held businesses, or partnership or sole proprietorship interests in
businesses;
(4) The failure to reduce the marital deduction or charitable
deduction by the amount of death taxes charged against the interest; and
12-102
2012 Revision
(5) Will provisions that give rise to questions about the

qualification of an interest for the marital deduction or charitable
deduction.
When the return, on classification, is not selected for audit, the IRS
mails a closing letter (IRS Form L-154) to the personal representative,
stating that the amount of tax shown on the return is determined to be the
correct tax. Note, however, that the issuance of this letter does not estop
the government from reopening the case, since the closing letter means
only that the return, as filed, is acceptable. A closing letter does not have
the binding effect of a closing agreement. For practical purposes,
however, and in the absence of unusual circumstances, the case will not
be reopened after a closing letter is issued.
12.2-11(c) Audit
If an estate tax return is classified for audit, the estates lawyer will
be contacted by an Internal Revenue Service (IRS) estate tax lawyer
assigned to review the return. Although the time lag between the filing of
the return and the initiation of the audit varies considerably (depending to
a large extent on the workload and the availability of personnel), the
audit is normally commenced between six and 15 months after the return
has been filed. Until recently, the IRS typically assigned estate tax
lawyers from the district where the return was filed. However, the IRS
now assigns estate tax lawyers from a nationwide pool, so there is no
guaranty that the assigned IRS representative will be local.
Before contacting the estates lawyer, the estate tax lawyer will
have made a thorough review of the return to determine the issues to be
considered. The estate tax lawyer may make a preliminary investigation
of the valuations reported on closely held businesses or real estate,
review the probate file at the court, and contact others for facts concerning issues suggested by the return. The valuation of the market
securities will have been verified as well.
If the assigned IRS lawyer is local, the estate tax lawyer may
contact the personal representatives lawyer and arrange for an appointment at the lawyers office, or may conduct the audit from his or her
office. If the assigned IRS lawyer is not local, these discussions and
12-103
2012 Revision
review of documents will be by telephone, with documents typically

being exchanged by fax and e-mail. At the time of audit, the estate tax
lawyer may wish to review the decedents income tax returns and gift tax
returns, the estate fiduciary income tax returns, the decedents bank
records, and other documents relating to the decedent and the estate.
When the audit has been completed, the estate tax lawyer advises
the estates lawyer about whether the return is to be accepted as filed or
whether adjustments are proposed. If adjustments are proposed, the estate
representative will have the opportunity to discuss the proposed
adjustments with the estate tax lawyer, to present additional arguments or
evidence, and to settle the differences of opinion that may exist. Furthermore, the opportunity may be extended to discuss the differences with the
IRS Estate and Gift Tax Manager, who is in charge of the estate tax
lawyers.
If proposed adjustments are agreed on, or if the estates lawyer
does not wish to take advantage of the opportunities for administrative
review, including the Tax Court, a waiver (IRS Form 890) agreeing to the
assessment of the deficiency (or in the unusual case, an overassessment)
may be presented to the personal representative for signature. The
personal representatives signing this waiver permits assessment of a
deficiency without delay and requires payment of the deficiency so
determined. The waiver does not waive the personal representatives
right to file a claim for refund for the amount of tax paid or to file an
action for refund in the United States District Court or the Claims Court.
By signing this waiver, however, the personal representative waives the
right to use the Tax Court as a forum for determining the issues without
payment of the tax. See IRC 6213(d). By waiving his or her rights, the
taxpayer stops the accrual of interest on the deficiency during the period
from 30 days after filing the waiver to the date of notice and demand for
payment. IRC 6601(c).
12.2-11(d) Appeals Office Conference
If the estate representatives and the estate tax lawyer do not agree
on the proposed adjustments, and the estate representatives wish to use
the available administrative review procedures, the estate representatives
12-104
2012 Revision
should advise the estate tax lawyer that the estate does not agree with the
proposed adjustments and that the estate representatives are not willing to
sign the IRS Form 890 waiver. A complete Revenue Agents Report
(commonly known as an RAR) is then prepared. It sets forth, in detail, all
the proposed adjustments, and the resulting deficiency or overassessment
is determined. This report is first sent to the District Review Staff of the
Internal Revenue Service (IRS) for a technical and procedural review.
After review, a copy of the RAR is mailed to the personal representative
or the personal representatives lawyer with a form letter (commonly
known as a 30-day letter), which requests that the IRS be advised within
30 days regarding whether the personal representative wishes to request a
hearing in the Appeals Office of the IRS or will sign the waiver.
If the personal representative desires a hearing in the Appeals
Office, he or she must file a written protest with the local IRS Appeals
Office. The written protest must set forth the facts, the issues, the estates
position, and a legal argument. The personal representative must sign the
protest, stating that it is true under the penalties of perjury. If a lawyer
prepares and signs the protest for the personal representative, the lawyer
must substitute a declaration stating that he or she submitted the protest
and accompanying documents and [w]hether he or she knows personally
that the facts stated in the protest and accompanying documents are true
and correct. IRS Publication 5, available at <http://apps.irs.gov/app/
picklist/list/formsPublications.html>.
The protest must be filed in duplicate within the 30-day period or
within an extended time as may be granted. Extensions for filing are
granted on request if a plausible basis exists for delay. A power of
attorney, if not previously filed, should be executed and a copy filed with
the protest. A printed power-of-attorney form, IRS Form 2848, may be
obtained from the IRS on request or from the IRS Web site at
<www.irs.gov/Forms-&-Pubs>.
If a hearing before the Appeals Office is requested, the case is
transferred to it and an appeals officer is assigned to the case. The
hearing before the Appeals Office is informal and usually consists simply
of a conference between the appeals officer and the lawyer for the estate.
The appeals officer, however, has greater authority than the estate tax
12-105
2012 Revision
lawyer for settling disputed matters, considering in particular the risk of

litigation. A hearing before the Appeals Office may be waived if the
estate so elects.
12.2-11(e) Ninety-Day Letter; Tax Court
If the estate elects to waive a hearing before the Appeals Office of
the Internal Revenue Service (IRS) (see 12.2-11(d)) or if the estate and
appeals officer are unable to reach a settlement of the issues, a 90-day
letter is mailed to the personal representative. A 90-day letter includes an
audit report setting forth the basis for the computation of the proposed
deficiency, and states that the proposed deficiency will be assessed
unless, within the 90-day period, a petition is filed with the Tax Court of
the United States. See IRC 6213. To avoid assessment, the personal
representative must file a petition with the Tax Court in Washington,
D.C., before the 90-day period expires. See IRS Publication 5, available
at <http://apps.irs.gov/app/picklist/list/formsPublications.html>.
An extension of time for filing this petition is not available. If the
petition is filed after the 90-day period expires, the United States Tax
Court does not have jurisdiction to hear the dispute. Timely mailing is
timely filing, but the mail must be postmarked by the due date. Deposit in
a mailbox or even at a post office on the last day is not sufficient if
postmarking does not occur until the next day.
PRACTICE TIP: If the petition is filed by mail but is not likely
to be received by the Tax Court within the 90-day period, it is
desirable to mail the petition at the post office and to obtain a
postmark on the certified mail receipt so that, if necessary, the
estate can establish that the return was timely filed.
The day the notice is mailed is not counted in fixing the 90-day
period, but the day the petition is filed is counted. If the last day is a
Saturday, a Sunday, or a legal holiday in the District of Columbia, it is
not counted as the 90th day. IRC 6213(a). If the United States Tax
Court receives the petition after the 90th day expires, the burden rests on
the estate to establish that the petition was timely mailed.
12-106
2012 Revision
A small claims procedure is available for deficiencies of $50,000

or less, and the Tax Court commissioners, rather than judges, may hear
cases. IRC 7463.
The petition to the United States Tax Court must set forth the name
of the estate, the name and address of the personal representative, the
amount of the asserted deficiency (or overassessment), the asserted errors
made by the IRS in the RAR (see 12.2-11(d)), and the facts on which
the estate relied. The petition may be signed by the lawyer for the
personal representative and generally must be verified by the personal
representative. The original and four conformed copies of the petition,
together with a filing fee of $60, must be filed with the United States Tax
Court, 400 Second St. NW, Washington, DC 20217. IRC 7451; Tax
Court Rules 20, 23. See the filing instructions, as well as a sample
petition, at <www.ustaxcourt.gov/forms/Petition_Kit.pdf>.
Under the Tax Reform Act of 1969, Pub L No 91-172, 83 Stat
487), the United States Tax Court is no longer an administrative court. It
is now a court under Article I of the United States Constitution and has
the same powers as a federal district court. A case before the Tax Court is
conducted in much the same manner as a case before any other court. An
answer to the petition must be filed by the government. A reply may be
filed by the petitioner. After the case is at issue, it is set for trial at the
next session of the Tax Court to be held in the area. Usually, one or two
sessions of the Tax Court are held in Portland, Oregon, every year.
Decisions of the Tax Court may be appealed by either party to the United
States Circuit Court of Appeals. IRC 7482(b)(2).
After the case is at issue, an opportunity is provided for a
conference on the issues and on settlement possibilities with representatives from the Appeals Office and from the regional counsels
office.
12.2-11(f) Other Forums
At any time before filing a petition in the Tax Court, the personal
representative may elect to waive further administrative hearings by
paying the asserted deficiency. After payment, the personal representative may file a claim for refund, setting forth the basis on which the claim
12-107
2012 Revision
of overpayment is predicated. A claim for refund is generally made on

IRS Form 843 (available at <www.irs.gov/Forms-&-Pubs>), although an
overassessment agreement (IRS Form 890) may be considered a claim
for refund. Treas Reg 301.6402-2; Rev Rul 68-65, 1968-1 CB 555.
Attorney fees incurred in the estate tax controversy are deductible
in the final calculation of the tax due (unless claimed as an income tax
deduction). Treas Reg 20.2053-3(c)(2). To be allowed as an estate tax
deduction, the regulation also provides that the attorney fee deduction
should be raised as an issue in the claim for refund to the extent not
previously included in the estate tax return.
Normally, the refund claim is assigned to the estate tax lawyer who
originally audited the return. Unless the claim raises new issues or unless
new evidence is presented, it may be expected that the estate tax lawyer
will summarily reject the claim as not involving new matters for
consideration. Nevertheless, the lawyer for the personal representative
should prepare the claim with care because, if it is rejected and suit is
brought, the personal representative is generally precluded from
advancing grounds for recovery not stated in the claim. United States v.
Felt & Tarrant Mfg. Co., 283 US 269, 272, 51 S Ct 376, 75 L Ed 1025
(1931); Rogan v. Ferry, 154 F2d 974, 976 (9th Cir 1946). However, the
claim for refund may be amended or supplemented during the time
within which to file a claim. See IRC 6511(a); Treas Reg 301.6511(b)1.
On receipt of a formal notice of rejection of the claim for refund,
the personal representative may bring a suit for refund in the United
States District Court for the district in which the return is filed or, in the
alternative, may file a petition with the United States Court of Federal
Claims in Washington, D.C. If the Internal Revenue Service does not
take action on the refund claim within six months from the date it is filed,
the claim may be deemed rejected, and the suit for refund may be filed
without waiting for the formal notice of rejection. After formal notice of
rejection of the claim, the estate has a period of two years within which
to file a suit for refund in the United States District Court or the United
States Court of Federal Claims. IRC 6532(a).
12-108
2012 Revision
Decisions of the United States District Court may be appealed to

the United States Circuit Court of Appeals for the circuit in which the
district court is located. Decisions of the United States Court of Federal
Claims may be appealed to the United States Court of Appeals for the
Federal Circuit. A decision in a refund suit is res judicata regarding any
subsequent proceedings involving the same claim and the same year.
United States v. C.C. Clark, Inc., 159 F2d 489, 490 (5th Cir 1947).
12.2-11(g) Choice of Forum
If settlement of a disputed tax adjustment cannot be reached at the
conference level (see 12.2-11(d)), the lawyer for the personal representative must then determine the forum for the litigation. Many factors
influence the choice of forum.
First, and perhaps foremost, is the requirement of prior payment of
the asserted deficiency before a suit may be filed in the United States
District Court or in the United States Court of Federal Claims. See IRC
7422. If the asserted deficiency is substantial, this requirement alone
may necessitate the use of the Tax Court, since a petition to the Tax
Court may be filed without first paying the asserted deficiency. See
12.2-11(e). If the asserted deficiency is paid before receipt of the 90-day
letter, the Tax Court is not available as a forum. See 12.2-11(f).
Before selecting the forum, the lawyer should research the issue
involved to determine what courts, if any, have already considered and
decided the issue. If, for example, a particular issue has already been
decided by the Tax Court in favor of the Internal Revenue Service, the
choice of the Tax Court as a forum would not be indicated.
Another consideration could be the desirability of a jury trial on
factual questions, which is available only in the United States District
Court. 28 USC 2402, 28 USC 1346. Also, if the issue in dispute
involves applying local law, litigation in the local district court might be
desirable.
12-109
2012 Revision
12.2-12 Completion of Form 706, Schedules, and Valuation

of Particular Assets
In general, property includable in the decedents gross estate must
be valued at its fair-market value as of the valuation date. See IRC 2031,
IRC 2032.
The fair-market value has been defined as the price at which the
property would change hands between a willing buyer and a willing
seller, neither being under any compulsion to buy or sell, and both having
reasonable knowledge of relevant facts. The assets are to be valued as of
the date of the decedents death unless an election is made to use the
alternate valuation method. Treas Reg 20.2031-1(b).
The alternate valuation date is six months after the date of the
decedents death or the date of disposition of the property by the estate or
trust, whichever is earlier. IRC 2032. If the personal representative
elects to use the alternate valuation date, then all property of the gross
estate must be valued at its alternate value.
For further discussion of these general valuation principles, see
12.1-2 to 12.1-3(b). See also 12.2-12(a) to 12.2-12(q).
12.2-12(a) Schedule AReal Estate
As discussed in 12.2-5(a) to 12.2-5(f), an estate tax return must
be filed on IRS Form 706 (and must be the version released by the IRS
for the period that includes the decedents date of death). See
<www.irs.gov/Forms-&-Pubs>. If any real estate is included in the
decedents gross estate, Schedule A must be filed with the return.
The instructions for Schedule A provide that real estate must be
described in enough detail so that the IRS can easily locate it for
inspection and valuation. A legal description and, if available, a street
address should be included. The full market value of the property should
be reported notwithstanding the fact that the decedent may have been
personally liable for a mortgage on the property. The unpaid balance of
any mortgage is shown as a deduction on Schedule K of the return (see
12.2-12(l)).
12-110
2012 Revision
Joint tenancy interests and real estate owned by trusts are not
disclosed on Schedule A. They are disclosed on Schedule E (jointly
owned property; see 12.2-12(f)) and Schedule G (transfers during the
decedents lifetime; see 12.2-12(h)).
PRACTICE TIP: The values for land and improvements should
be shown separately for income tax cost-basis purposes. Timber or
crops on the land should be valued and separately stated.
PRACTICE TIP: The value of livestock, farm machinery, and
other personal property should be listed as separate assets on
Schedule F. See 12.2-12(g). Mineral rights and oil and gas royalty
interests are treated as real property and should be listed on
Schedule A. See IRS Gen Couns Mem 39,767 (Feb 12, 1985).
PRACTICE TIP: It is advisable for the personal representative
to obtain a written appraisal from a qualified appraiser. A purchase
price for a sale occurring within a reasonable time from the date of
death is a strong indication of fair-market value. Before using the
county assessors valuation, the lawyer should make certain that it
is a correct indicator of true market value. At times, it has been too
low, and at other times, it has been too high.
PRACTICE TIP: The personal representative should avoid
using the county assessors valuation for agricultural property
when the property has been taxed as exclusive farm-use property.
In such circumstances, no relationship exists between the
assessors value and market value for highest and best use.
Procedures for a special-use value for certain business and agricultural property are set forth in IRC 2032A. See 12.2-12(b) to 12.212(b)(4).
12.2-12(b) Special-Use Value for Certain Farm and
Business Property
The tax code permits an executor to elect to value certain
qualifying real property at its actual-use value, rather than at its highestand-best-use value or fair-market value (subject to a maximum value
12-111
2012 Revision
reduction of $1,070,000 for decedents dying in 2013 as described below).

IRC 2032A.
The election is available only for property that meets the numerous
requirements of IRC 2032A, including that the property was being used
as a farm for farming purposes or was being used in a trade or
business other than the trade or business of farming, IRC 2032A(b)(2).
See 12.2-12(b)(1).
Once the election is made, the family must continue to use the real
property in the same manner for the next 10 years, or an additional estate
tax will be imposed. IRC 2032A(c)(1).
COMMENT: The numerous technical requirements of IRC
2032A can be understood only by a thorough reading of both the
Internal Revenue Code and the regulations. This chapter does not
provide a detailed discussion of this subject. See Section 2032A
Special Use Valuation, 833-3rd Estate Tax Mgmt (BNA) (citation
not verified by publisher).
PRACTICE TIP: Two separate appraisals will be needed if the
election is made. The property must be appraised at its highest and
best use to determine whether the estate meets the percentage tests
for qualification described in IRC 2032A(b). Also, because the
special valuation cannot reduce the value by more than a specified
amount (IRC 2032A(a); see 12.2-12(b)(1)), the taxpayer must
also have an actual-use value or a production-use value determined
in order to ascertain the difference between the values.
12.2-12(b)(1) Requirements for Special-Use Valuation
If the requirements of IRC 2032A are satisfied, IRC
2032A(a)(3) permits the fair-market value of the qualifying property to
be reduced to its special-use value, subject to a maximum value reduction
of $750,000, as indexed for inflation. For decedents dying in 2013, the
indexed amount is $1,070,000. See Rev Proc 2012-41.
For real property to qualify for the special-use valuation provided
by IRC 2032A, the following requirements must be satisfied:
12-112
2012 Revision
(1) The real property included in the decedents gross estate

must be qualified real property located in the United States;
(2) On the date of the decedents death, the property must have
been devoted to a qualified use, that is, the property was being used as
a farm for farming purposes or was being used in a trade or business
other than the trade or business of farming, IRC 2032A(b)(2); and
(3) The property must be acquired from or passed from the
decedent to a qualified heir (see IRC 2032A(e)(1)(2)).
IRC 2032A(b)(1).
In addition, the following requirements must be met:
(1) The adjusted value of the real property used for the
farming or business purpose must equal or exceed 25% of the adjusted
value of the decedents gross estate, IRC 2032A(b)(1)(B);
(2) The adjusted value of the real and personal property used
for the farming or business purpose must comprise at least 50% of the
adjusted value of the decedents gross estate, IRC 2032A(b)(1)(A); and
(3) An appropriate election must be filed by the executor, IRC
2032A(a)(1)(B).
NOTE: The 25% and 50% tests above are each subject to a
qualified use test, which is described below.
The adjustment required is the reduction for any amounts
allowed as deductions under IRC 2053(a)(4), which permits deductions
for mortgages and liens. IRC 2032A(b)(3).
Property is considered to have been acquired from or to have
passed from the decedent if the property is so considered under IRC
1014(b). Thus, only property receiving a basis adjustment under IRC
1014(b) would be eligible, except that property acquired from a trust is
also eligible to the extent that the property was includable in the
decedents gross estate. Finally, the Economic Recovery Tax Act of 1981
(ERTA 1981), Pub L No 97-34, 95 Stat 172, amended IRC 2032A to
allow property purchased from the estate of the decedent by a qualified
12-113
2012 Revision
heir to be considered as acquired from the decedent. IRC 2032A(e)(9).

This provision is effective for estates of decedents dying after 1976.
NOTE: The repeal of IRC 2035 by ERTA 1981 does not
apply for purposes of IRC 2032A. Thus, transfers within three
years of the decedents death must continue to be taken into
account when calculating the adjusted gross estate for purposes
of determining whether the 25% and 50% tests have been met.
Regarding what is included in the term real property for purposes
of the special-use valuation, IRC 2032A(e)(3) specifies that residential
buildings and related improvements on such real property that are
occupied on a regular basis by the owner or the lessee of the real property
(or by persons employed by either the owner or the lessee) must be
included, as well as roads, buildings, and other structures and improvements functionally related to the qualified use. Timber that is
merchantable and growing crops do not constitute qualified real property,
except that for a decedent whose death occurred after 1981, the executor
may elect to have growing trees excluded from classification as crops if
the trees relate to timber operations for which records are normally
maintained as to distinct areas. See IRC 2032A(e)(13).
As noted above, the 25% and 50% tests are each subject to a
qualified use test. Both of the following tests must be satisfied:
(1)
With respect to the 50% test, the real and personal property
to which the test is applied must have been used on the date of the
decedents death by the decedent or a member of the decedents family
either for farming purposes or in a trade or business other than farming,
IRC 2032A(b)(1)(A)(i); and
(2) With respect to the 25% test, the real property to which the
test is applied must have been used as a farm or in a trade or business
other than farming for periods aggregating five years or more during the
appropriate eight-year observation period; during this five-year period,
the decedent or a member of the decedents family must have materially
participated in operating the farm or business activity. IRC
2032A(b)(1)(C).
12-114
2012 Revision
NOTE: For decedents dying after 1981, the eight-year

observation period is to be the eight-year period ending on the
earliest of (1) the date of the decedents death, (2) the date the
decedent became disabled, or (3) the date the decedent retired. IRC
2032A(b)(4).
The determination of material participation under IRC 2032A is
similar to such determination under IRC 1402(a)(1), which relates to
self-employment. IRC 2032A(e)(6). ERTA 1981 expanded the definition of material participation to include eligible qualified heirs who
actively manage the farm or business. IRC 2032A(c)(7)(B). This
expanded definition permits certain members of the decedents family to
meet the material-participation requirement even though they are not
actually operating the farm or business. Thus, the period of a surviving
spouses active management may be aggregated with that of the
decedent for the purpose of meeting the five-year test. The activemanagement provisions seem to permit less required involvement in the
day-to-day operations as long as general managerial or consultation
activities are carried on with the farm operator. An eligible qualified
heir is a qualified heir who (1) is the surviving spouse of the decedent,
(2) has not attained the age of 21, (3) is disabled, or (4) is a student. IRC
2032A(c)(7)(C).
PRACTICE TIP: For estates of farm owners leasing their
property on a crop-share basis, the terms of the lease should be
such as to enable the lessor to be determined to be materially
participating in the operation, if the benefits of IRC 2032A are
sought. Note, however, that material participation may cause
some of the income to be self-employment income, subject to selfemployment taxes.
The term qualified heir is defined as a member of the decedents
family. IRC 2032A(e)(1). Before ERTA 1981, the term member of the
family included the persons ancestral or lineal descendant, a lineal
descendant of the persons grandparent, his or her spouse, the spouse of
any such descendant, and the legally adopted child of the person.
Effective for estates of decedents dying after 1981, ERTA 1981
12-115
2012 Revision
expanded the definition to include stepchildren by a former marriage and

the spouse of any of the above-described persons. IRC 2032A(e)(2).
12.2-12(b)(2) Election and Filing
The procedure for electing special-use valuation under IRC
2032A is as complex as the requirements for qualifying for the election.
The election is made on Schedule A-1 of IRS Form 706. The qualified
real estate should also be identified by a notation of IRC 2032A
Valuation on the applicable property schedule. The personal representative must answer part 1 of Schedule A-1 by marking it as either
regular election or protective election, as the case may be. Part 2 and
part 3 of Schedule A-1 must then be completed. Part 2 includes all items
required by Treas Reg 20.2032A-8(a)(3) and is called the Notice of
Election. Part 3 of Schedule A-1 contains the agreement to use special
valuation, which must be signed by all qualified heirs and other interested
parties.
To make certain that all requirements have been met for the
election, taxpayers should use the checklist published in the Instructions
for IRS Form 706 (available at <www.irs.gov/Forms-&-Pubs>). The
checklist covers the requirements for the notice of election and a fully
executed agreement.
If the qualification-percentage tests are close, the personal
representative can make a protective election by checking the box on line
2 in part 3 of page 2 of Form 706 and by also checking the box marked
Protective Election in part 1 of Schedule A-1. The personal representative must also complete part 2, line 1, and column A of lines 2 and 3
of part 2 of Schedule A-1. If on audit it is determined that IRC 2032A
applies, then within 60 days of receipt of the notice of qualification, the
personal representative must file an amended Form 706 with all of the
required attachments and a fully completed Schedule A-1. Treas Reg
20.2032A-8(b).
An IRC 2032A election may be made on a late-filed Form 706,
but a protective election must be made on a timely filed Form 706. See
Treas Reg 20.2032A-8(b). Once made, the 2032A election is
irrevocable. IRC 2032A(d)(1).
12-116
2012 Revision
The person making the election under IRC 2032A should keep in
mind the following:
(1) The family must continue to use the real estate in the same
manner for the next 10 years, IRC 2032A(c)(1);
(2) Use of the special election will result in a lower basis for
income tax purposes;
(3) Use of the election may cause the loss of the IRC 6166
installment-payment election because it will cause a direct reduction of
the closely held business interest that must exceed 35% of the adjusted
gross estate for IRC 6166 to apply, see 12.2-7(b)(3);
(4) All qualified heirs and other interested parties must sign part
3 of Schedule A-1 of IRS Form 706, IRC 2032A(d)(2);
(5) Schedule A-1 provides for the appointment of a
representative agent as the party to deal with the Internal Revenue
Service; this agent must also sign the Schedule A-1;
(6) Both a legal description of the property and an appraisal of
the property should be attached to Schedule A-1; without these
attachments, the schedule is not complete and the election may be lost;
(7) If an election is made for qualified woodlands, the notice
of election must include a statement explaining why the estate is entitled
to make the election, see IRC 2032A(e)(13)(D);
(8) Schedule A-1 requires that the executor attach affidavits
describing the activities constituting material participation and the
identity and relationship to the decedent of the material participants;
(9) The executor must attach to Schedule A-1 a description of
the method used to determine the special-use value as required by
Treasury Regulation 20.2032A-8(a)(3)(viii); and
(10) If a qualified heir is also a skip person for purposes of the
generation-skipping transfer tax, additional schedules must be completed
and filed with Schedule A-1.
PRACTICE TIP: All persons having an interest in the property
must sign the election agreement, whether or not such an interest is
12-117
2012 Revision
a possessory interest. IRC 2032A(d)(2). See Treas Reg

20.2032A-8(c). This could mean that consents of minor children
may be required. An executor who will be making an election
under IRC 2032A should make an early determination of the
signatures required on the agreement. The executor should take
steps (including initiating guardianship proceedings, if required) to
obtain all the required signatures in time to file the agreement
before the applicable period of time expires for filing the election.
12.2-12(b)(3) Special-Use Valuation
If the requirements of IRC 2032A are satisfied (see 12.212(b)(1)) so that the property qualifies for the special-use valuation,
including the proper and timely filing of both the election by the executor
and the agreement of all persons having interests in the property (see
12.2-12(b)(2)), the property may be valued for federal estate tax
purposes at its farm-use value or business-use value, instead of at its fairmarket value. IRC 2032A(a)(3).
A special method available for valuing farms may be used if
elected by the executor. IRC 2032A(e)(7). For this purpose, the
executor must determine (1) the average annual gross cash rental for
comparable land, (2) the average annual property taxes on such
comparable land, and (3) the average annual effective interest rate for all
new Federal Land Bank loans in the area. IRC 2032A(e)(7)(A). The
averages are all to be established on the basis of the 5 most recent
calendar years ending before the date of the decedents death. IRC
2032A(e)(7)(A). Applying this valuation method, the average tax
amount is subtracted from the average rent amount to determine the
rental income net of taxes. This amount is then divided by the average
interest figure to arrive at the special farm value. The statute precludes
this method if no data on comparable land exists. IRC 2032A(e)(7)(C).
For all qualifying real property other than farms (and also for
farms, if the special method described above is not used), the special
value is to be determined by applying the following factors:
(1) The capitalization of expected income from the property
under prudent management, IRC 2032A(e)(8)(A);
12-118
2012 Revision
(2) The capitalization of the fair rental value of the land, IRC
2032A(e)(8)(B);
(3) If the land is assessed at its special-use value under state
law, the assessed land values under state law, IRC 2032A(e)(8)(C);
(4) Comparable sales of like property in the same geographical
area far enough removed from a metropolitan or resort area so that
nonagricultural use is not a significant factor in the sales price, IRC
2032A(e)(8)(D); and
(5) Any other factor which fairly values the farm or closely
held business value of the property, IRC 2032A(e)(8)(E).
PRACTICE TIP: From the above list, it is apparent that no
exact method is provided in the statute for determining special
value. The final value depends on the preparation made by the
estate to support its approach.
The reduction in value of qualified real property because of special
valuation cannot exceed the inflation indexed value reduction determined
under IRC 2032A(a)(2) ($1,070,000 for deaths in 2013).
PRACTICE TIP: In estates holding large amounts of real
property that could qualify for special valuation, the tracts with the
largest percentage-reduction possibilities and the tracts most likely
to be retained for the full recapture period should be designated for
special valuation.
12.2-12(b)(4) Recapture of Tax Savings Realized by
Special-Use Valuation
Recapture or recovery of the estate tax savings realized by election
of the special-use valuation results if either the qualified heir disposes of
the property to nonfamily members within the recapture period or the
property ceases to be used for the qualified use within such period. IRC
2032A(c)(1). Generally, the Internal Revenue Service (IRS) may
recover 100% of the tax savings if the triggering event occurs within 10
years after the decedents death.
In one situation, the recovery period may exceed the 10-year
period noted above. The Economic Recovery Tax Act of 1981, Pub L No
12-119
2012 Revision
97-34, 95 Stat 172, added a provision to IRC 2032A to allow a qualified

heir a grace period of up to two years before he or she must begin to use
the property in a qualified use. IRC 2032A(c)(7)(A). The 10-year
recapture period is extended by the portion of the two-year period
that expired before commencement of the qualified use. IRC
2032A(c)(7)(A)(ii). This provision is apparently intended to give the
qualified heir sufficient time to arrange his or her affairs before the heir
must commence the qualified use or suffer the imposition of the recapture tax.
Active management by an eligible qualified heir during the
recapture period satisfies the postdeath material-participation requirement
in the same manner as discussed in 12.2-12(b)(1) with respect to the
predeath material-participation requirement. IRC 2032A(c)(7)(B).
The recapture tax is not triggered when a qualified heir disposes of
qualified real property and receives qualified real property in an
exchange that qualifies under IRC 1031 (relating to like-kind
exchanges), IRC 2032A(i), or if the acquisition results in the
nonrecognition of gain under IRC 1033 (relating to certain involuntary
conversions), IRC 2032A(h). The property received must be used in the
same qualified use as was the original property. IRC 2032A(h)(3)(B),
(i)(3).
By signing the original consent agreement, each interested person
is personally liable for the tax to be recovered. The additional tax is
payable within six months after the triggering event. IRC 2032A(c)(5).
PRACTICE TIP: A sale by one qualified family member to
another qualified family member will not trigger the recovery of
tax, but the purchasing qualified family member will step into the
position of the seller and will be personally liable for any
additional tax even though the purchaser paid full consideration for
the property. See IRC 2032A(c). When appropriate, indemnification of the purchaser by the seller should be sought at the time of
purchase, particularly if the purchase price is determined by the
fair-market value of the property.
12-120
2012 Revision
A special lien is imposed on specially valued real property for the

possible additional tax. The lien exists until the IRS is satisfied that no
further liability for the additional tax may arise, or, if liability has arisen,
until the tax is paid. IRC 6324B(b). Note, however, that the statute
provides that the furnishing of security may be substituted for the lien.
IRC 6324B(d). The statute of limitations for assessing this tax does not
expire until three years after the IRS is notified of the disposition of the
property or the cessation of the qualified use. IRC 2032A(f)(1).
The Tax Reform Act of 1984 added IRC 2032A(d)(3), which
provides for the modification of a special-use election or agreement.
After filing the election and the required agreement, the personal
representative of the estate has a reasonable period of time, not exceeding
90 days, in which to cure any technical defects in them. IRC
2032A(d)(3). The 90-day period commences after IRS notification to
the estate that a defect exists. An example of a technical defect is the
failure to include the signatures of all persons having an interest in the
qualifying property.
PRACTICE TIP: In some cases, the use of IRC 2032A is
indicated. In most cases, however, either the strict qualification
requirements cannot be met, the consent of all heirs cannot be
obtained, the reduction in value is insignificant, the risks of
personal liability among a group outweigh any advantage from tax
savings, or the value-reduction ceiling and other complications
built into IRC 2032A militate against use of the election under the
statute.
PRACTICE TIP: In deciding whether or not to make an
election under IRC 2032A, the executor should consider the
effect that the reduced valuation might have on meeting the
percentages required for an extension of payment under IRC 6166
and the resulting lower increase in tax basis under the basisadjustment provisions of IRC 1014.
PRACTICE TIP: Schedule A-1 of IRS Form 706 is used to
report the additional information that must be submitted to support
the election. To make a valid election, Schedule A-1 must be
12-121
2012 Revision
completed and must be accompanied by all the required statements

and appraisals. Part 3 of Schedule A-1 contains the form of
agreement required to be completed if the election is made.
12.2-12(c) Schedule BStocks and Bonds
If the decedents gross estate contains any stocks or bonds,
Schedule B must be filed with the estate tax return. See IRS Form 706, at
<www.irs.gov/Forms-&-Pubs>.
See 12.2-12(c)(1) to 12.2-12(c)(7).
12.2-12(c)(1) Stocks and Bonds Listed on an
Exchange or Sold OTC
Stocks and bonds sold on a stock exchange or over the counter are
to be valued at the mean between the highest and lowest quoted selling
prices on the valuation date or the mean between the highest and lowest
bid-and-ask quotations on the valuation date. Treas Reg 20.20312(b)(1).
If no sales occurred on the valuation date, the fair market value is
determined by taking a weighted average of the means between the
highest and lowest sales on the nearest [trading] date before and the
nearest [trading] date after the valuation date. Treas Reg 20.20312(b)(1). The average is to be weighted inversely by the respective
numbers of trading days between the selling dates and the valuation
date. Treas Reg 20.2031-2(b)(1). Thus, if a decedent died on Sunday
and the nearest available quotations consisted of a mean price of $10 on
the previous Friday (the nearest preceding trading day) and $13 on the
following Monday (the nearest following trading day), the fair-market
value of the stock as of the Sunday valuation date would be $12.50.
CAVEAT: The executor should take care in valuing many of
the federal governments securities, which are often listed in 32nds
rather than in decimals. For instance, a quote of 101.8 is not 101
and 8/10; it is 101-8/32 (101.25 in decimals).
12-122
2012 Revision
12.2-12(c)(2) Stocks and Bonds When Prices Do Not Reflect

Fair-Market Value
The available selling price or bid-and-ask prices for stocks and
bonds may not reflect fair-market value because of the nature of the
decedents holding. For example, if the decedents stock interest
constitutes a majority holding in a company, the valuation based on a sale
or an offer of sale of a minority stock ownership would not necessarily
establish the fair-market value of the decedents interest. Likewise, if the
decedents holding is so large as to require unusual underwriting methods
for disposition, a selling price or quoted price for the sale of a substantially lesser volume of stock would not necessarily indicate the fairmarket value of the block of stock held by the decedent. Treasury
Regulation 20.2031-2(e) provides as follows:
If the executor can show that the block of stock to be valued is so large
in relation to the actual sales on the existing market that it could not be
liquidated in a reasonable time without depressing the market, the
price at which the block could be sold as such outside the usual
market, as through an underwriter, may be a more accurate indication
of value than market quotations.
When a value other than the quoted bid-and-ask price or selling

price is to be used, the executor must submit complete information with
the return to justify the valuation used. Treas Reg 20.2031-2(f). This
valuation problem, as it relates to letter stock or other restricted stock, is
discussed in Revenue Ruling 77-287, 1977-2 CB 319.
12.2-12(c)(3) Stock in Closely Held Businesses
When selling prices or bid-and-ask prices are unavailable, as in
closely held businesses, the valuation of stock must be determined by
considering all factors influencing the value of stock ownership. Those
factors include, but are not limited to, the economic outlook in the
particular industry; the companys position in the industry and its
management; corporate earnings; the value of underlying assets; the
goodwill of the business; and the value of stocks of comparable
corporations engaged in the same or a similar line of business and that
are quoted on a stock exchange. Treas Reg 20.2031-2(f). Revenue
Ruling 59-60, 1959-1 CB 237, contains a thorough and complete
12-123
2012 Revision
discussion of the valuation guidelines to be used in valuing the stock of

closely held businesses. See also Rev Rul 65-193, 1965-2 CB 370.
PRACTICE TIP: In all cases involving stock in a closely held
business, the executor should consider obtaining an independent
appraisal.
COMMENT: For purposes of federal gift and estate taxes, the
valuation of interests in closely held businesses continues to
occupy much of the time and attention of taxpayers and their
representatives, the Internal Revenue Service (IRS), and the Tax
Court. The potential tax savings through discounting the value of
minority interests in closely held businesses has been the subject of
many articles describing these benefits, and the IRS has taken
notice.
PRACTICE TIP: Although there is no requirement that an
independent appraisal of an interest in a closely held business be
obtained except for certain charitable gifts, it is advisable to obtain
an appraisal in many cases. The appraisal, if prepared correctly,
will often resolve many questions or issues that the IRS might
otherwise wish to raise regarding the values reported on the federal
estate tax return. In addition, an appraisal may provide protection
against the imposition of the accuracy-related penalties discussed
in 12.2-8(b) in the event that the values as finally determined for
federal estate tax purposes are substantially higher than the values
reported on the federal estate tax return.
PRACTICE TIP: The executor should keep in mind that these
discounts can be a two-edged sword. Consider an estate that owns
66% of a business entity. In most cases, the valuation of that 66%
ownership will result in relatively low discounts based on the value
of the business as a whole. Now consider a will that disposes of the
decedents ownership by two bequests, one to charity of 33% of
the outstanding shares (e.g., one-half of the estates ownership),
with the other 33% going to a qualified terminable interest
property (QTIP) trust established for the decedents surviving
spouse. The bequests passing to charity and the QTIP trust are
12-124
2012 Revision
minority interests, although together they comprise the estates

entire interest. The federal estate tax provisions applicable in this
situation would require that the estates interest in the business be
valued as a majority interest (with little valuation discounts), while
the interests passing from the estate to the charitable and marital
devisees would be minority interests (resulting in substantial
valuation discounts when computing). This scenario could occur
when the estate planning lawyer assumed that no tax would be due
because all interests would pass in a manner that qualifies for
either the marital deduction or the charitable deduction.
The valuation principles described in this practice tip are
illustrated in Estate of Mellinger v. C.I.R., 112 TC 26, acq., 199935 IRB 314 (1999), in which the Tax Court held that the estates
ownership of shares in Fredericks of Hollywood would not be
combined with the shares taxed in the estate through a QTIP trust
established on the prior death of the decedents husband. The Tax
Court held that the two interests would be valued independently
and, because each constituted a minority interest, each would be
valued as such, notwithstanding the facts that the decedent
effectively controlled both interests and the two interests combined
would be sufficient to control the corporation. This was a
beneficial result for this taxpayer, but as this practice tip illustrates,
the IRS may apply these principles in other cases in which the
result will favor the government. See also Estate of Bonner v.
United States, 84 F3d 196 (5th Cir 1996); Estate of Schwan v.
C.I.R., 82 TCM (CCH) 168, 171173 (2001).
12.2-12(c)(4) Dividends
The proper treatment of dividends requires the executor to collect
sufficient information before preparing the tax return.
PRACTICE TIP: The executor must determine the following
four dates: (1) the declaration date, (2) the ex-dividend date, (3) the
record date, and (4) the payment date. The declaration date is the
date on which the dividend is declared by a corporations board of
directors. The record date is the date on which a person must be a
12-125
2012 Revision
shareholder according to the corporations records to receive the

dividend. The payment date is the date of the dividend check and is
usually the date on which the dividend is mailed. The ex-dividend
date falls between the date of declaration and the record date, and
is set by the stock exchange on which the security is traded. Stock
trades ex-dividend between those two dates and the amount of
the per-share dividend is usually reflected in the trading value of
the stock. Information concerning these dates may be obtained
from Standard & Poors Annual Dividend Record, Moodys
Dividend Record, dividend checks and quarterly statements that
accompany those checks, or the decedents stockbroker.
If the date of the decedents death falls between the ex-dividend
date and the record date, then the amount of the dividend is generally
reflected in the quoted stock prices. If not, then the dividend should be
added to the fair-market value of the stock.
If the decedents death falls between the record date and the
payment date, then the amount of the dividend is reported separately as
an accrued dividend and is described as a separate item on Schedule B of
IRS Form 706 (available at <www.irs.gov/Forms-&-Pubs>). It should be
listed under the stock to which it applies. If the alternate valuation is
elected, this same dividend amount is reported.
Uncashed dividend checks received by the decedent before his or
her death are reported as miscellaneous property on Schedule F of IRS
Form 706 (see 12.2-12(g)).
12.2-12(c)(5) Interest on Bonds
Interest on each bond accrued from the date of the last payment to
the date of the decedents death is separately itemized on the tax return.
This same amount is used notwithstanding the fact that alternate
valuation is elected.
EXAMPLE: Assume that the decedent owned $30,000 worth
of 3% bonds. The counted number of days between regular
interest payments is 184. The counted number of days between the
last interest payment and the date of redemption is 65.
12-126
2012 Revision
The calculation of interest to the date of redemption is:

$30,000 .035 65 = $185.46
2
184
12.2-12(c)(6) United States Savings Bonds

United States savings bonds are issued by the United States
Treasury. Different types or Series of bonds have been issued in
various periods of time. For example, Series E bonds were issued before
1980; Series HH bonds are no longer sold; and Series EE bonds have
been issued in various time periods, with different rules for each time
period. See <http://invest-faq.com/articles/bonds-us-savings.html>.
Ownership of United States savings bonds is determined by
reference to the federal savings bonds regulations. Bond values are
determined by published redemption tables (available at most banks).
Bonds have different maturity dates, and some bonds can be cashed after
a certain period of time. Most commercial banks will redeem these
bonds. U.S. Series E and EE bonds are valued by a government
redemption table, which is updated monthly and is available at any
commercial bank. The U.S. Treasury Department publishes several
online tools that may be used to determine the value of bonds. See
<www.treasurydirect.gov/indiv/research/indepth/ebonds/res_e_bonds_eer
edeem.htm>.
Series E bonds cease drawing interest exactly 40 years from their
issue dates and Series EE bonds cease drawing interest exactly 30 years
from their issue dates. Series E and EE bonds that reach final maturity
should be cashed since interest accruals stop after the final maturity date.
If the decedent was the only registered owner of the bonds, the
bonds may be collected by presenting them to a bank, completing the
appropriate form, and furnishing the decedents death certificate.
PRACTICE TIP: For information regarding what to do on the
death of a savings-bond owner, see <www.treasurydirect.gov/
indiv/research/indepth/ebonds/res_e_bonds_eedeath.htm>.
United States savings bonds and accrued interest are reported on
Schedule B of the estate tax return, except for bonds that both the
12-127
2012 Revision
decedent and the decedents spouse held in the form of a true joint
tenancy, which are reported on Schedule E (see 12.2-12(f)). The accrued
interest may be reported on the decedents final income tax return. If this
is done, accrued interest is not shown as interest on the estate tax return.
The full redemption value, however, must be reported.
Bonds payable to the decedent or the decedents wife may be
collected at any bank, or through the electronic Treasury Direct system,
by either named party without any legal requirements, even when one of
the named persons is deceased. Payable-on-death (POD) bonds (for
example: John Doe, payable on death, or POD, to Jane Doe) may also be
collected at a bank by the named survivor. The decedents death certificate is required.
Series EE bonds are registered accrual-type bonds. Their purchase
price is equal to the face amount of the bond.
The alternate valuation provisions apply to United States savings
bonds in the same manner as other interest-bearing instruments. Thus, the
bonds are valued at their face amount and interest is accrued through the
date of death, even if the alternate value election is filed under IRC
2032. Treas Reg 20.2032-1(d)(1).
12.2-12(c)(7) Mutual Fund Shares
Open-end mutual funds are valued at the public-redemption price
on the valuation date or on the date that the last redemption price was
quoted before the valuation date. Treas Reg 20.2031-8(b). This
valuation differs from the valuation of closed-end mutual funds and all
other securities in which the average of the high and low (or bid and
asked) quotes before and after the valuation date controls. Treas Reg
20.2031-2. Open-end mutual funds have a market with only the mutual
funds home office and, thus, they are valued at their redemption value.
12.2-12(d) Schedule CMortgages, Notes, and Cash
If the total gross estate contains any mortgages, notes, or cash,
Schedule C must be completed and filed with the federal estate tax
return. See IRS Form 706, at <www.irs.gov/Forms-&-Pubs>. Such items
12-128
2012 Revision
should be listed in a certain order. See Instructions for IRS Form 706,
Schedule C.
See 12.2-12(d)(1) to 12.2-12(d)(2).
12.2-12(d)(1) Mortgages, Notes, and Contracts
Mortgages and notes payable to the decedent at the time of death
are reported on IRS Form 706, Schedule C. However, mortgages payable
by the decedent are reported on Schedule K. See 12.2-12(l).
The fair-market value of mortgages, notes, and contracts receivable
is presumed to be the amount of the unpaid principal, plus interest
accrued to the date of the decedents death, unless the personal representative can establish a lower value by satisfactory evidence. See Treas
Reg 20.2031-4.
The valuation placed on estate assets affects the basis of the asset
to the estate for income tax purposes determined under the basis rules. If
an item is valued at less than face value and later collected in full, the
difference between the basis and the total amount collected is taxable as
ordinary income.
As a general rule, if an alternate valuation date is selected, both the
value of a note and the amount of accrued interest are the same as on the
date of death. The only exception to this rule is when the note was
reported at the unpaid balance on one date and was discounted on the
other date. In either event, the amount of accrued interest is the amount
accrued to the date of death.
PRACTICE TIP: Mortgages, notes, and contracts may be
discounted if the stated interest rate is less than the current rate on
similar obligations, if the maturity date is long-term, or if the
payments are in arrears. A demand note, however, may not be
discounted because of a low interest rate. Once a determination has
been made regarding what an appropriate interest rate yield should
be, the discounted value of the obligation can be determined.
12.2-12(d)(2) Cash and Bank Deposits
All checking accounts, savings accounts, time certificates of
deposit, and cash held separately in the decedents name should be
12-129
2012 Revision
reported on IRS Form 706, Schedule C. Interest accrued from the last
payment date to the date of the decedents death on each of these
accounts should be reported as a separate item.
PRACTICE TIP: It is often helpful to enlist the banks assistance in determining the accrued interest to the date of the
decedents death.
PRACTICE TIP: Any checks issued before the date of the
decedents death that clear after the date of death should either be
taken as a deduction on Schedule K (see 12.2-12(l)), or be used to
reduce the date-of-death balance of the account on Schedule C.
PRACTICE TIP: Bank accounts held jointly with right of
survivorship should not be reported on Schedule C unless the
personal representative can show that (1) the surviving joint
owners name was on the account for the convenience of the
decedent and (2) the account was not meant to pass to the
surviving joint owner. Jointly owned property is reported on Form
706, Schedule E (see 12.2-12(f)).
PRACTICE TIP: Money market accounts at brokerage houses
and mutual funds are generally considered stocks and should be
reported on Form 706, Schedule B.
12.2-12(e) Schedule DInsurance
Every life insurance policy on the life of the decedent must be
listed on Schedule D of IRS Form 706, whether or not the policy is part
of the decedents gross estate. See Instructions for Form 706, Schedule
D; <www.irs.gov/Forms-&-Pubs>.
Proceeds of all insurance policies payable to the decedents estate,
whether or not owned by the decedent, must be included in the gross
estate. IRC 2042.
Proceeds of all insurance policies owned by the decedent or in
which the decedent possessed incidents of ownership must be included
in the gross estate regardless of the named beneficiary. IRC 2042(2).
Incidents of ownership include the power to change the beneficiary, the
power to surrender or cancel the policy, the power to assign the policy,
12-130
2012 Revision
the power to pledge the policy for a loan, a reversionary interest of more
than 5% of the value of the policy, or the right to economic benefits. IRC
2042(2); see Instructions for Form 706, Schedule D.
Life insurance policies on the life of the decedent owned by a
business or a person other than the decedent and payable to someone
other than the decedents estate must also be disclosed on Schedule D.
The proceeds of the policy, however, are not included as part of the gross
estate.
Insurance policies listed on Schedule D should include the name of
the insurance company, the policy number, the beneficiary, and the
amount of the proceeds. The proceeds included are equal to the sum of
the face value of the policy, minus any indebtedness, plus accrued
dividends, and any returned premiums. The check made payable to the
beneficiary frequently includes interest earned on the proceeds after the
date of death, which is not part of the taxable estate, and should be
reported as income on the fiduciary income tax return for the estate.
These are usually labeled as postmortem dividends.
For every life insurance policy listed on Schedule D, the personal
representative must request a statement on IRS Form 712 from the
company that issued the policy, and a copy of each form must be attached
to the estate tax return. The insurance company must provide this form
on request.
Insurance includable on this schedule includes relevant accident
insurance, flight insurance purchased at air terminals, national service life
insurance, group insurance, and double-indemnity proceeds. Death
benefits voluntarily paid by an employer customarily are not treated as
insurance proceeds reported on Schedule D.
If a decedent owns life insurance on the life of another person, the
cost of the replacement value of the policy is reported on Schedule F of
the estate tax return (see 12.2-12(g)). This value may be obtained from
the insurance company. If the value is not readily ascertainable, it may be
approximated by adding the interpolated terminal reserve value of the
policy to the unearned gross premium last paid. Treas Reg 20.20318(a)(2). See 12.1-3(h) for further discussion.
12-131
2012 Revision
12.2-12(f) Schedule EJointly Owned Property

Property in which the decedent at the date of death held an interest
as a joint tenant or as a tenant by the entirety with right of survivorship is
reported on Schedule E of IRS Form 706 (available at <www.irs.gov/
Forms-&-Pubs>). All forms of jointly owned property are reportable on
Schedule E, including real estate, personal property, and bank accounts.
Property held by the decedent as a tenant in common with another
person should not be reported on this schedule, but the decedents interest
should be listed on other appropriate schedules for separately held
property.
For decedents dying after 1981, only one-half of the property held
jointly between husband and wife is subject to tax without regard to
which spouse actually contributed to acquiring the property. IRC
2040(b). However, Schedule E requires that 100% of the value of such
property must first be reported on line 1a of the schedule, with the total
of all properties listed reduced by one-half at line 1b.
As discussed in 12.1-3(f), joint interests between a husband and
wife created before 1977 are not subject to the automatic 50% inclusion
rule, and in some cases it may be desirable to trace contributions to
establish ownership of such property as other than equal.
If indebtedness exists against property held jointly with a spouse,
such as a mortgage on a residence held as tenants by the entirety, the
personal representative may wish to show the mortgage as a reduction in
the value of the property before the division by one-half. If the mortgage
is to be listed as a deduction on Form 706, Schedule K (see 12.2-12(l)),
only one-half is deductible. If mortgage-cancellation insurance will pay
the indebtedness, the full amount of the insurance proceeds should be
shown on Schedule D (see 12.2-12(e)) because the insurance pays off
both spouses indebtedness, and the surviving spouses interest is thereby
enhanced.
Property owned jointly with the surviving spouse is reported on
part 1 of Schedule E. Property held jointly with right of survivorship with
a person other than the surviving spouse is reported on part 2 of the
schedule. The full value of the property is reportable under part 2, unless
12-132
2012 Revision
the surviving joint tenant can show contribution toward acquisition of the
property through purchase or inheritance from someone other than the
decedent. Proof of contribution must be demonstrated. See 12.1-3(f) for
further discussion of this topic.
12.2-12(g) Schedule FMiscellaneous Property
Schedule F of the federal estate tax return (IRS Form 706, available at <www.irs.gov/Forms-&-Pubs>) is used to report various assets
and interests of the decedent that are not reportable on any of the other
schedules. The more common assets reported on Schedule F are as
follows:
(1)
Household furniture and furnishings;
(2)
Federal and state individual income tax refunds;
(3)
Insurance policies on the life of another person;
(4)
Cars, boats, and trailers;
(5)
Jewelry and watches;
(6)
Coin, stamp, and other collections; and
(7)
business.
Business interests in a partnership or other unincorporated
See Instructions for Form 706, Schedule F.

The approach to valuing an unincorporated business interest is
similar to that used in valuing the stock of a closely held corporation. The
net value must be determined on the basis of all relevant factors,
including goodwill, earning capacity, economic outlook for the industry
and business, etc. Treas Reg 20.2031-3.
If the decedent had a qualifying income interest for life under a
qualified terminable interest property (QTIP) trust, the trust corpus is
included in the decedents gross estate under IRC 2044. The QTIP
property is reported on Schedule F, and question 6 on page 2 of IRS
Form 706 must be answered in the affirmative. Trusts created by the
decedent are reported on Form 706, Schedule G (see 12.2-12(h)).
12-133
2012 Revision
If the decedent owned items with artistic or collectible value (e.g.,

jewelry, furs, antiques, and collections), and if any one item or collection
of items is valued at more than $3,000, then the personal representative
must attach to Schedule F an appraisal by an expert given under oath, as
well as the required statement regarding the appraisers qualifications.
See Treas Reg 20.2031-6(b); Instructions for IRS Form 706, Schedule
F.
12.2-12(h) Schedule GTransfers During Decedents Life
Schedule G of IRS Form 706 (available at <www.irs.gov/Forms&-Pubs>) must be completed if the decedent made any of the following
transfers:
(1)
(2)
3(d)(1));
Transfers intended to take effect at death (see 12.1-3(d));

Transfers with the reservation of a life interest (see 12.1-
(3)
Transfers dependent on survivorship (see 12.1-3(d)(4));
(4)
Revocable transfers, IRC 2038 (see 12.1-3(d)(5)); or
(5) Transfers made within three years before the decedents

death includable under IRC 2035 (see 12.1-3(c)).
Certain federal gift taxes paid by the decedent on gifts made by the
decedent or the decedents spouse within three years before the
decedents death must also be reported on line A of Schedule G. The
personal representative must review the federal gift tax returns filed by
the decedent within the three-year period before his or her death. See IRC
2035. The three-year period is measured between the date of the gift and
the date of the decedents death. Generally, no gift need be included on
Schedule G if no gift tax return was required because of the use of the
annual exclusion (see 12.1-3(c)). Gifts of insurance policies, however,
must be reported. Adjusted taxable gifts made after December 31, 1976,
that have not been included in the gross estate are included on page 1,
line 4, of IRS Form 706. Special rules are set forth when split gifts
have been made. See 12.1-6(d).
A worksheet for determining the credit for gift taxes paid is set
forth in the Instructions for IRS Form 706, Worksheet TG. If gift taxes
12-134
2012 Revision
are paid after death, the amount of the tax should be deducted on Form
706, Schedule K. See 12.2-12(l).
12.2-12(i) Schedule HPowers of Appointment
If the decedent possessed, exercised, or released any general power
of appointment, Schedule H must be filed with the federal estate tax
return (IRS Form 706, at <www.irs.gov/Forms-&-Pubs>).
The value of all assets over which a decedent possessed a general
power of appointment at the time of his or her death is includable in the
decedents gross estate. IRC 2041. A general power of appointment is a
power that may be exercised by the holder of the power in favor of the
holder, the holders creditors, the holders estate, or the creditors of the
holders estate. IRC 2041(b)(1). For further discussion of what
constitutes a power of appointment, see Treasury Regulation 20.2041-1;
see also 12.1-3(g).
If the power of appointment is limited by some ascertainable
standard, or if the power is exercisable only in conjunction with another
person, the power may not be a taxable power for death tax purposes, and
a further review of the regulations is required. See IRC 2041(b). If a
general power of appointment was created before October 21, 1942, the
power will not be taxable in most cases unless the decedent has exercised
the power. IRC 2041(a)(1); see Treas Reg 20.2041-2.
PRACTICE TIP: The assets subject to a general power of
appointment take all the customary forms, and the personal representative should prepare and submit a list of the assets subject to
the power, valued as of the date of the decedents death. A copy of
the instrument creating the power must be filed with the return. See
Instructions for IRS Form 706, Schedule H.
12.2-12(j) Schedule IAnnuities
The area of annuities has many rules and exceptions. For
discussion, see 12.1-3(e)(1) to 12.1-3(e)(3). Schedule I of IRS Form
706 (available at <www.irs.gov/Forms-&-Pubs>) is used for reporting
both qualified and nonqualified annuity contracts, including Keogh plans,
12-135
2012 Revision
IRC 401 plans, HR-10 plans, individual retirement accounts, and other
retirement plans.
Generally, if the benefits are paid in a lump sum, the taxable
amount is the amount paid. If, however, installment payments are made
for the life of the beneficiary or for a term certain, the value of the
annuity is determined using actuarial tables. If the payments are the result
of a contract issued by an insurance company, the value to be reported is
the cost of an annuity contract as if purchased at the decedents death.
See IRC 401409A; see also Instructions for IRS Form 706, Schedule
I.
12.2-12(k) Schedule JFuneral Expenses and Expenses
Incurred in Administering Property Subject
to Claims
All funeral expenses and expenses of administration for which a
deduction is claimed should be listed on Schedule J of IRS Form 706
(available at <www.irs.gov/Forms-&-Pubs>). For a discussion of funeral
expenses, see 12.1-4(d). For a discussion of expenses of administration,
see 12.1-4(e) to 12.1-4(e)(4).
PRACTICE TIP: Funeral expenses should be reduced by the
amount of any Social Security benefits, veterans benefits, or other
benefits paid to the estate or to the mortuary. Benefits paid directly
to a surviving spouse need not be considered.
Administration expenses may generally be allocated in any manner
for deduction on the estate tax return or the estates income tax return but
not on both. IRC 642(g). This rule permitting such expenses to be
deducted on one return but not on the other is subject to the limited
exception discussed in 12.1-4(e)(2) for estate-management expenses
that are paid from income. Administration expenses are not deductible,
however, for income tax purposes to the extent that the estate has tax-free
or tax-exempt income. In preparing the fiduciary income tax return, the
preparer must allocate administration expenses between taxable income
and tax-exempt income. Interest determined on any estate tax deficiency
is a deductible administration expense. Rev Rul 79-252, 1979-2 CB 333.
Interest incurred with respect to estate taxes deferred under IRC 6166 is
12-136
2012 Revision
no longer a deductible administration expense after the changes made to

that section by the Taxpayer Relief Act of 1997, Pub L No 105-34, 111
Stat 788.
PRACTICE TIP: If the estate tax rates exceed the income tax
rates, it may make sense for a family member to accept a fee for
acting as the personal representative of an estate. If, for example,
the top estate tax rate is 45% and the top income tax rate of the
family member/personal representative is 31%, every dollar of the
personal representatives fee taken by the family member results in
a savings to the family member of 14 cents.
12.2-12(l) Schedule KDebts of Decedent
All valid debts of the decedent owing at the time of the decedents
death should be listed on Schedule K of IRS Form 706 (available at
<www.irs.gov/Forms-&-Pubs>). See 12.1-4(b) to 12.1-4(c), 12.1-4(f)
to 12.1-4(g).
PRACTICE TIP: In Oregon, real property taxes become a lien
against the property as of July 1 of each year, so such taxes are
deductible only if unpaid at death and the date of death falls after
June 30.
The personal representative has an election with regard to
taking a deduction for medical expenses paid by the estate within
one year of the date of the decedents death. IRC 213(c). The
expenses may be taken either as an estate tax deduction or as a
deduction on the decedents final individual income tax return.
Balances owing on any notes or mortgages, together with
interest accrued to the date of the decedents death, are also
deductible. If any indebtedness is secured by property held jointly
between husband and wife, only half of the indebtedness is
deductible. The decedents share of unpaid income tax liability is
also deductible.
12.2-12(m) Schedule LCasualty Losses
Schedule L of IRS Form 706 (available at <www.irs.gov/Forms&-Pubs>) allows the personal representative to deduct losses from thefts,
12-137
2012 Revision
fires, storms, or other casualties that occurred during the settlement of the
estate. Amounts reimbursed by insurance are not deductible. Expenses
incurred in administering property not subject to claims are also deductible on this schedule. This usually includes expenses in connection with
the administration of a trust created before the decedents death or in
connection with the disposition of other property that is not subject to
probate. Expenses incurred for the administration of property not subject
to claims (nonprobate property) are also deducted on Schedule L. The
fees for preparing Form 706 are also deducted if no probate estate exists
to charge the fees against. See 12.1-4(h) for further discussion of this
topic.
12.2-12(n) Schedule MBequests, etc., to Surviving Spouse
Schedule M of IRS Form 706 (available at <www.irs.gov/Forms&-Pubs>) is used to calculate the marital deduction with regard to gifts
and bequests to a surviving spouse. For a discussion of the marital
deduction, see 12.1-5(a) to 12.1-5(d). A marital deduction for qualified
terminable interest property (QTIP) is possible only if a proper election
has first been made on Schedule M of Form 706. Great care should be
taken in preparing this schedule, and each asset or interest for which a
marital deduction is claimed should be properly identified by item and
schedule number.
PRACTICE TIP: If a marital deduction is being claimed for
QTIP property, the appropriate boxes on Schedule M must be
checked, and all QTIP property must be identified and described in
line 3 of Schedule M. See 12.1-5(c)(3).
CAVEAT: If the decedents will was prepared before
September 12, 1981, the marital deduction could be limited to the
larger of (1) one-half of the gross estate or (2) $250,000. See Amiel
v. C.I.R., 74 TCM (CCH) 239 (TC 1997) (discussed in 12.1-5(a)),
for evidence that the transitional rule concerning the unlimited
marital deduction still applies. See Economic Recovery Tax Act of
1981, Pub L No 97-34, 95 Stat 172. This is the result of a transitional rule for marital deduction clauses contained in wills and
other documents executed before that date. These formula clauses
12-138
2012 Revision
typically give to the surviving spouse an amount of the estate equal

to the maximum marital deduction, with the rest of the estate
passing to, or for the benefit of, others. Because the maximum
marital deduction is now unlimited, such a provision causes the
entire estate to pass to the spouse, while children and others
receive nothing. Congress chose to avoid this result by specifying
that the unlimited marital deduction does not apply to wills and
trusts containing formula clauses if those wills and trusts were
executed on or before September 12, 1981. If the decedents will
was signed on or before that date and has a formula marital
deduction clause, the unlimited marital deduction may not be
available.
CAVEAT: If the decedents will provides that estate and
inheritance taxes are to be paid from the residue of the estate, any
residual bequest to the surviving spouse must be reduced by the
sum of those taxes. Such a reduction of a residual bequest usually
results in an interrelated calculation of the federal estate tax.
The interplay of the marital deduction and deduction for claims
was explained in Private Ruling I.R.S. TAM 200104008 (Jan 26, 2001).
The decedent and his spouse owned certain real property as tenants by
the entirety, resulting in one-half of the value of the property being
included in the decedents gross estate under IRC 2040(b). The property
was also subject to a mortgage on which the decedent and his spouse
were jointly and severally liable. The Internal Revenue Service stated
that one-half of the gross value of the jointly owned property (not
reduced by the mortgage) would be included in the decedents gross
estate, and that one-half of the outstanding balance of the mortgage, as of
the date of the decedents death, would be deductible as a claim under
IRC 2053(a)(3). The estate would also be entitled to a marital deduction
equal to the value of the property included in the gross estate, minus onehalf of the outstanding balance due on the mortgage on the date of the
decedents death.
12-139
2012 Revision
12.2-12(o) Schedule OCharitable Bequest

Assets of the decedent passing to a qualified charity are listed
on Schedule O of IRS Form 706 (available at <www.irs.gov/Forms-&Pubs>) and are deductible against the gross estate. For further discussion,
see 12.1-4(i) to 12.1-4(i)(2).
CAVEAT: If the decedents will provides that estate and
inheritance taxes are to be paid from the residue of the estate, any
residual bequest to charity must be reduced by the sum of those
taxes. Such a reduction of a residual bequest usually results in an
interrelated calculation of the federal estate tax.
If the charitable beneficiary is a residuary beneficiary, the preparer
must attach a computation showing how he or she arrived at the residuary
value. This computation must also show the reduction of all taxes
charged to the charitable residue portion. See Instructions for IRS Form
706, available at <www.irs.gov/Forms-&-Pubs>.
12.2-12(p) Schedule PCredit for Foreign Death Taxes
Schedule P of IRS Form 706 (available at <www.irs.gov/Forms-&Pubs>) is used for claiming a credit for taxes paid to a foreign country
when the credit has been authorized by statute or treaty. See 12.1-6(f).
12.2-12(q) Schedule QCredit for Tax on Prior Transfers
A credit is allowed against the decedents federal estate tax
liability for federal estate taxes that have been paid on the transfer of
property to the decedent from a transferor who died within 10 years
before or two years after the date of the decedents death. To claim such a
credit, the executor must file Schedule Q with the estate tax return (IRS
Form 706, at <www.irs.gov/Forms-&-Pubs>). For further discussion of
this credit, see 12.1-6(e).
12.2-12(r) Schedules R and R-1GenerationSkipping Transfer Tax
Schedules R and R-1 of IRS Form 706 (available at <www.irs.gov/
Forms-&-Pubs>) are multipart forms used to determine the estate tax
value of property interests subject to the generation-skipping transfer
12-140
2012 Revision
(GST) tax and for calculating and allocating available exemptions. For
further discussion of the GST tax, see chapter 13.
12.2-12(s) Documents that Must Accompany Form 706
As set forth in Treasury Regulation 20.6018-4 and the
instructions for IRS Form 706 (available at <www.irs.gov/Forms-&Pubs>), the following documents must accompany the estate tax return:
(1)
A certified copy of the will, if the decedent died testate;
(2)
A certified copy of the death certificate;
(3) If a credit for foreign death taxes is claimed, a certificate on

IRS Form 706-CE signed by the foreign government and evidencing the
amount of the foreign death tax paid (this form is completed by the
personal representative and mailed to the foreign government for
certification);
(4) Life insurance statements: (a) For policies on the decedents
life, the tax preparer should obtain IRS Form 712 from the insurance
company and file it with the return; (b) in addition, the instructions for
Schedule F (see 12.2-12(g)) indicate that when the decedent owned
insurance on the life of another, the tax preparer should obtain IRS Form
712 for each such policy and file each form with the return; (c) the
instructions for Schedule D (see 12.2-12(e)) also provide that the estate
representative must submit complete information for any insurance on
the decedents life that the representative believes is not includable in the
gross estate;
(5) If alternate valuation has been elected, evidence supporting
statements regarding sales or other dispositions during the six-month
period following the decedents death and, if applicable, a court-certified
copy of any judgment of distribution entered into during the six-month
period;
(6) If a transfer has been made by written instrument, a copy of
the instrument (such as a trust agreement) must be filed with the return; if
the instrument is a public record, the copy must be certified; if the
instrument is not a public record, the copy must be verified;
(7)
In the case of an estate of a nonresident citizen:

12-141
2012 Revision
(a) A court-certified copy of any inventory of property and

schedule of liabilities as well as claims against the estate and administration expenses filed with the foreign court of probate jurisdiction; and
(b)
A certified copy of any foreign death tax returns filed;
(8) In the case of a nonresident alien, if deductions are claimed,

a certified copy of the inventory filed under the foreign law;
(9) A copy of any appraisal on which valuation of any real
property is based, together with an explanation of the basis of the
appraisal (see Schedule A, discussed in 12.2-12(a));
(10) Financial statements for closely held businesses for each of
the five years preceding the valuation date (see Schedule B, discussed in
12.2-12(c)(1) to 12.2-12(c)(7));
(11) If the decedent possessed a power of appointment, a
certified or verified copy of the instrument granting the power, together
with a certified or verified copy of any instrument by which the power
was exercised or released (see Schedule H, discussed in 12.2-12(i));
(12) If executors commissions or attorney fees have not been
paid at the time of the final audit of the estate tax return, an affidavit or
statement signed under penalties of perjury of the executor or lawyer
stating that the amount of the claimed deduction for commissions or fees
has been agreed on and will be paid (see Schedule J, discussed in 12.212(k));
(13) If property interests passing by the decedents will are listed
as qualifying for the marital deduction, a certified copy of the order
admitting the will to probate must be included; in addition, if the court
has entered any order or judgment interpreting the will or has entered a
judgment of distribution, a copy of such an order or judgment and a copy
of a renunciation, disclaimer, or election to take against the will filed by
the surviving spouse should also be included (see Schedule M, discussed
in 12.2-12(n)); and
(14) If an estate includes works of art or items with collectible
value and any item or collection of similar items is valued in excess of
12-142
2012 Revision
$3,000, the estate representative must obtain a verified appraisal for filing
with the return (see Schedule F, discussed in 12.2-12(g)).
CAVEAT: It is difficult to set forth a definitive list of all the
documents, enclosures, and attachments that must accompany IRS
Form 706. The preparer should consult the instructions for the
current Form 706 for a review of the supplemental documents,
attachments, and exhibits required by the instructions for each
schedule of the return.
12-143
2012 Revision
Chapter 13
GENERATION-SKIPPING TRANSFER TAX
RICHARD W. MILLER, B.A., Colorado College (1973); J.D., Willamette University
College of Law (1976); member of the Oregon State Bar since 1976; partner,
Cosgrave Vergeer Kester LLP, Portland.
13.1 INTRODUCTION ................................................................... 13-2

13.2 DEFINITIONS ........................................................................ 13-4
13.2-1
Transferor ................................................................... 13-4
13.2-2
Trust ............................................................................ 13-5
13.2-3
Interest ........................................................................ 13-6
13.2-4
Skip Person and Nonskip Person ................................ 13-7
13.2-5
Executor ...................................................................... 13-7
13.3 GENERATION ASSIGNMENT............................................. 13-8

13.3-1
General Rules.............................................................. 13-8
13.3-2
Predeceased-Ancestor Exception ............................. 13-10
13.4 GENERATION-SKIPPING TRANSFERS .......................... 13-11

13.4-1
Direct Skip ................................................................ 13-12
13.4-2
Taxable Termination................................................. 13-12
13.4-3
Taxable Distribution ................................................. 13-13
13.4-4
Nontaxable Gifts ....................................................... 13-13
13.4-5
Multi-Generational Skips and Multiple Skips .......... 13-14
13.4-6
Disclaimers ............................................................... 13-15
13.5 THE GST EXEMPTION ....................................................... 13-15

13.5-1
Taxable Amount ....................................................... 13-15
13.5-2
Amount of Exemption .............................................. 13-16
13.5-3
Allocation of Exemption .......................................... 13-17
13.5-3(a) Allocation for Estate Tax Inclusion

Period ............................................................ 13-19
13.5-3(b) Retroactive Allocations ................................. 13-20
13-1
2012 Revision
Chapter 13 / Generation-Skipping Transfer Tax
13.6 IMPOSITION OF THE GST TAX ........................................ 13-20

13.6-1
Applicable Rate ......................................................... 13-20
13.6-1(a) Maximum Federal Estate Tax Rate ............... 13-21

13.6-1(b) Inclusion Ratio............................................... 13-21
13.6-1(b)(1) General Rule .................................... 13-21
13.6-1(b)(2) Redetermination of Applicable
Fraction ............................................ 13-22
13.6-1(b)(3) Valuation Rules ............................... 13-23
13.6-1(b)(4) Severance of Trusts to Achieve
Desired Inclusion Ratio ................... 13-24
13.6-2
Liability for Tax; Source of Payment ....................... 13-25
13.6-3
Payment of GST Tax on Lifetime Direct Skips ........ 13-26
13.6-4
Credit for State Taxes................................................ 13-26
13.7 EFFECTIVE DATES AND CHANGES TO

GRANDFATHERED TRUSTS ............................................ 13-26
13.7-1
Effective Dates .......................................................... 13-26
13.7-2
Modifications to Grandfathered Trusts ..................... 13-28
13.8 OTHER RELATED ISSUES ................................................. 13-30

13.8-1
Basis Adjustments ..................................................... 13-30
13.8-2
Income Tax Deductions ............................................ 13-30
13.8-3
Extension of Time for Payment of Tax; Stock

Redemptions to Pay Tax ........................................... 13-30
13.8-4
Nonresident Aliens .................................................... 13-30
13.9 FILING ................................................................................... 13-31

13.9-1
Forms ......................................................................... 13-31
13.9-2
Section 9100 Relief ................................................... 13-31
13.1
INTRODUCTION
A tax is imposed on a generation-skipping transfer (GST). IRC

2601. A GST occurs when the ownership of certain property is transferred during the transferors lifetime or at the transferors death in a
13-2
2012 Revision
Generation-Skipping Transfer Tax / Chapter 13
manner that, for federal transfer tax purposes, bypasses a generation

below that of the transferor. See IRC 2611. For example, a GST occurs
when a person makes a gift directly to a grandchild. A GST also occurs
when a person gives to his or her child a life interest in property,
remainder to the grandchildren, because the childs property interest is
not included in the childs estate for federal transfer-tax purposes.
The law is found in IRC 26012663. The tax is intended to
ensure that a federal gift or estate tax is assessed on wealth (in excess of a
sizeable, specific generation-skipping exemption) at each generation
level.
A lawyer deals with the GST tax primarily by: (1) preventing a
taxable GST from occurring through the effective use of both the GST
exemption and other transfers that, although skipping a generation, are
excluded from the applicability of the GST tax; and (2) minimizing or
eliminating the applicability of the tax by taking certain remedial
measures.
Because the tax is assessed at the maximum estate tax rate and
necessarily involves relatively large estates, a lawyer dealing with GST
issues should closely review the Internal Revenue Code, the Treasury
Regulations (which are extensive and contain many examples), and GST
filing and reporting requirements. Many private letter rulings issued in
this area may also provide guidance.
Although the GST tax applies to any GST made after October 22,
1986 (see IRC 2601), exceptions apply for GSTs made from certain
wills and trusts in place before that date (see 13.7-1 to 13.7-2).
NOTE: The GST tax was significantly affected by the Tax
Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Pub L No 111-312, 124 Stat 3296 (the 2010
Act). Under the sunset provisions of the Economic Growth and
Tax Reconciliation Act of 2001 (EGTRA), the GST tax was not in
effect for most of 2010. The 2010 Act reinstated the tax for years
2010 through 2012, but with a $5 million GST exemption for all
three years, and a maximum tax rate of 35% on all taxable GSTs
made in 2011 and 2012. IRC 2641; see also IRC 2001, IRC
13-3
2012 Revision
2010. However, the maximum tax rate for GST purposes in 2010
is 0%, meaning that no GST tax applies to taxable transfers made
in that year. See 2010 Act 302(c).
The 2010 Act extended the sunset provisions of EGTRA by two
years. Consequently, in 2013, the GST tax continues, but with a $1
million exemption and a maximum tax rate of 55%. 2010 Act 101(a)(1).
13.2
DEFINITIONS
Determining the existence of, or the potential for, a generationskipping transfer requires reference to a number of definitions found in
the Internal Revenue Code. See 13.2-1 to 13.2-5.
13.2-1 Transferor
A generation-skipping transfer (GST) is made by a transferor
during the transferors life or at his or her death. See IRC 2652(a). For a
transfer that is also subject to the federal estate tax, the transferor is the
decedent. For a transfer subject to the federal gift tax, the transferor is the
donor. IRC 2652(a)(1). If a married couple elects to split a gift that is
also a GST, each spouse is treated as a transferor of one-half of the gift.
IRC 2652(a)(2).
If a trust contains qualified terminable interest property (QTIP
see chapter 12) the surviving spouse-beneficiary of the trust is thereafter
considered to be the transferor of the trust assets for GST purposes. If,
however, the spouse who establishes the trust, or the legal representative
of that spouse, makes a reverse QTIP election, that spouse, rather than
the survivor, is treated as the transferor of the QTIP property. IRC
2652(a)(3). The manner, timing, and effect of making the election are
covered in Treas Reg 26.2652-2(a)(b).
No partial elections are allowed if a reverse QTIP election is
desired for less than all of the assets in a QTIP trust, because reverse
QTIP treatment must be elected with respect to all of the property in a
QTIP trust. Treas Reg 26.2652-2(a) (emphasis added). If the effect of a
partial election is desired, the lawyer should explore options for splitting
13-4
2012 Revision
up the trust. See 13.6-1(b)(4). The result would be two smaller trusts,
with reverse QTIP treatment elected for one of them.
PRACTICE TIP: Because a QTIP trust qualifies for the marital
deduction, making a reverse QTIP election for the trust is a
customary method of using the donors or the decedents unused
GST exemption without generating a gift or estate tax when the
available GST exemption exceeds the available exemption for a
gift and estate tax.
EXAMPLE: A husband (H) has no remaining regular lifetime
gift tax exemption, but he has all of his remaining GST exemption.
H establishes a QTIP trust with income to his wife for life, the
remainder to their grandchildren. No gift tax is due because the
QTIP trust qualifies in full for the marital deduction. H makes a
reverse QTIP election for the trust, and becomes the transferor of
the trust assets for GST purposes, and can allocate his GST
exemption to the transfer.
In the context of an irrevocable life insurance trust (see chapter
12), the grantor is initially the transferor, but a Crummey withdrawal
power holder who lets the power lapse will be considered the transferor
for GST purposes (as well as for federal estate tax purposes) to the extent
that the value of the assets affected by the lapse exceeds the greater of
$5,000 or 5% of the value of the trust estate. See Crummey v. C.I.R., 397
F2d 82 (9th Cir 1968). This rule applies to any other situation in which
powers of appointment may lapse. Treas Reg 26.2652-1(a)(5), Ex. 5.
13.2-2 Trust
A generation-skipping transfer (GST) may be made not only to an
individual, but also (1) to a trust, (2) from a trust, and (3) when a trust
terminates. For GST purposes, a trust includes any arrangement that has
substantially the same effect as a trust. IRC 2652(b)(1). The Internal
Revenue Code gives examples of life estates and remainders, estates for
years, and insurance and annuity contracts. IRC 2652(b)(3). If the
arrangement is considered a trust for GST purposes, the trustee is the
person in actual or constructive possession of the property subject to the
arrangement. IRC 2652(b)(2). Portions of a trust resulting from GSTs
13-5
2012 Revision
from different transferors are treated as separate trusts for GST purposes.
IRC 2654(b)(1). Substantially separate and independent shares of different beneficiaries in the same trust are also treated as separate trusts for
GST purposes. IRC 2654(b)(2).
A revocable trust electing to be part of an estate under IRC 645 is
part of the estate for purposes of the separate share rule. IRC 2654(b).
The electing trust is otherwise considered to be a trust for GST purposes.
13.2-3 Interest
A person has an interest in property held in trust if that person:
(1) [H]as a right (other than a future right) to receive income or
corpus from the trust, IRC 2652(c)(1)(A);
(2) [I]s a permissible current recipient of income or corpus
from the trust and is not [a charity] described in section 2055(a), IRC
2652(c)(1)(B) (IRC 2055(a) relates to transfers for public, charitable,
and religious uses);
(3) Is a charity described in IRC 2055(a) and the trust is a
charitable remainder annuity trust, a charitable remainder unitrust, or a
pooled income fund, IRC 2652(c)(1)(C); or
(d) Is a charity that has a present, nondiscretionary right to
receive trust income or corpus, IRC 2652(c)(1)(B).
EXAMPLE: The following scenario exemplifies items (1) and
(2) above: A parent creates a trust providing for income for life to
the child (C), the remainder to the grandchild. C has an interest in
the trust because of Cs present right to trust income. C would have
an interest even if the income distributions were within the
trustees discretion, because C would be currently permitted to
receive that income.
Any interests that are used primarily to postpone or avoid the tax
on a generation-skipping transfer (GST) are disregarded for purposes of
the statute. IRC 2652(c)(2). A person does not have an interest in a trust
for GST purposes if the income or corpus of the trust is used to satisfy
that persons obligation of support and such use is both (1) discretionary
and (2) pursuant to any state law substantially equivalent to the Uniform
13-6
2012 Revision
Gifts to Minors Act. IRC 2652(c)(3). The Oregon Uniform Transfers to

Minors Act is found at ORS 126.805126.886.
13.2-4 Skip Person and Nonskip Person
A skip person is a person to whom a generation-skipping transfer
(GST) is or may be made, and may be either an individual or a trust. An
individual is a skip person if he or she is assigned to a generation that
is two or more generations below the generation assignment of
the transferor. IRC 2613(a)(1). A charity is a nonskip person. IRC
2651(f)(3).
EXAMPLE: Assuming that a parent (P) is the transferor, then
the grandchild and the great-grandchild of P are skip persons,
because they are two or more generations below that of P.
A trust is a skip person if (1) all of the interests in the trust are held
by skip persons or (2) no person holds an interest in the trust, and at no
time after the transfer may a distribution (including distributions on
termination) be made from the trust to a nonskip person. IRC
2613(a)(2).
EXAMPLE: A trust of which a parent (P) is the grantor
provides for income to the child (C) for Cs life, then income to the
grandchild (GC) for GCs life, the remainder to the greatgrandchild. The trust is not a skip person because C, a nonskip
person, has an interest in the trust and is only one generation below
P. If C had no interest in the trust, the trust would be a skip person,
because GC, a skip person, would have the only interest in the
trust.
A trust is also a skip person if it can be ascertained by actuarial
standards that there is less than a 5 percent probability that a distribution
will be made to a nonskip person. Treas Reg 26.2612-1(d)(2)(ii).
A nonskip person is any person who is not a skip person. IRC
2613(b).
13.2-5 Executor
An executor for generation-skipping transfer (GST) purposes
refers to the definition of that term for estate tax purposes found in IRC
13-7
2012 Revision
2203. IRC 2652(d). The term includes an executor or administrator of

a decedent, or, if none, any person in actual or constructive possession
of any property of the decedent. IRC 2203. For GST purposes,
however, if no executor or administrator is appointed, then the executor
is: (1) the person who is primarily responsible for payment of the
decedents debts and expenses, or, if none, (2) the person who possesses
the largest portion of the value of the decedents estate. Treas Reg
26.2652-1(d).
13.3
GENERATION ASSIGNMENT
13.3-1 General Rules

The applicability of the generation-skipping transfer (GST) tax
depends on the generation to which a particular beneficiary of a transfer
belongs, and whether that generation is more than one generation
younger than that of the transferor. The generation-assignment rules are
set forth in the Internal Revenue Code.
A person who is a lineal descendant of a grandparent of the
transferor is assigned to the generation that results from comparing the
number of generations between the grandparent and [the person] with the
number of generations between the grandparent and the transferor. IRC
2651(b)(1). A person who is a lineal descendant of a grandparent of a
spouse (or former spouse) of the transferor (other than such spouse) [is]
assigned to that generation [that] results from comparing the number of
generations between such grandparent and such [person] with the number
of generations between such grandparent and such spouse. IRC
2651(b)(2).
An individual who was married at any time to an individual
described in the foregoing rules is assigned to the generation of that
individual. IRC 2651(c)(2).
A person who has been married at any time to the transferor is
assigned to the transferors generation. IRC 2651(c)(1).
A relationship by legal adoption is treated as a relationship by
blood, and a relationship by half-blood is treated as a relationship of
13-8
2012 Revision
the whole-blood. IRC 2651(b)(3). The death of the biological parent

moves an adopted child up one generation for purposes of determining
the applicability of the GST tax within the relationships created by
adoption. See Treas Reg 26.2651-1(c), Ex. 7.
EXAMPLE: A child (C) legally adopts the grandchild (GC). If
the parent (P) makes a gift to GC and GCs biological parent is
deceased, no GST occurs, because GC is moved up to Cs
generation.
An adopted person who is a minor is assigned to the generation
below the adopting parent if (1) the adopted person is a descendant of the
parent of the adopting parent or spouse or former spouse of the adoptive
parent, and (2) the adoption is not for the primary purpose of avoiding the
GST tax. Treas Reg 26.2651-2(b). So, if the adoptive parent (AP) is the
brother of the biological parent, an adopted child (AC) is assigned one
generation below AP, regardless of APs or ACs ages. Treas Reg
26.2651-2(b).
If family relationships are not involved, a persons birth date must
be compared with that of the transferor for purposes of generation
assignment. A person born not more than 12 1/2 years after the
transferors birth date is assigned to the transferors generation. IRC
2651(d)(1). A person born more than 12 1/2 years, but not more than
37 1/2 years, after the transferors birth date is assigned to the first
generation younger than the transferor. IRC 2651(d)(2). The same rules
are applied for a new generation every 25 years from the birth date of the
transferor. IRC 2651(d)(3).
Charitable organizations and governmental entities are assigned to
the transferors generation. IRC 2651(f)(3).
Any individual having a beneficial interest in any other entity
having an interest in the property including, but not limited to, an estate,
trust, partnership, or corporation, is treated as having an interest in the
property and is assigned to a generation under the foregoing rules. IRC
2651(f)(2).
13-9
2012 Revision
A person assigned to more than one generation by virtue of the

above rules is deemed to be assigned to the youngest such generation.
IRC 2651(f)(1).
13.3-2 Predeceased-Ancestor Exception
A transfer that would otherwise be a generation-skipping transfer
(GST) might not be considered as such if, at the time of the taxable
transfer that created the GST or a potential GST, the parent of the lineal
descendant who is the transferee is deceased. In that event, the lineal
descendant is moved up one generation for GST purposes. The
predeceased-ancestor exception applies to all three types of GST
transfers: taxable distributions, taxable terminations, and direct skips.
IRC 2651(e). See 13.4 to 13.4-3.
EXAMPLE: A parent creates a trust for the sole benefit of the
grandchild (GC). If the child, GCs parent, is deceased at the time
of the transfer, GC is moved up one generation and no GST occurs.
EXAMPLE: A parent creates a trust with income to child 1
(C1) for life, the remainder to the children of child 2 (C2). If C2 is
deceased when the trust is created, C2s children move up one
generation, and, at the death of C1, a taxable termination does not
occur, because C2s children are not skip persons.
EXAMPLE: A parent creates a trust with the discretionary
income to child 1 (C1) or grandchild 2 (GC2), the child of child 2
(C2), and the remainder to GC2. If C2 is deceased when the trust is
created, no taxable distributions can result from this trust, because
GC2 has been moved up one generation and is on the same level as
C1.
If a transferor has no living lineal descendants at the time of the
transfer, transfers to grandnieces and grandnephews also qualify for the
exception. IRC 2651(e).
EXAMPLE: A transferor (T), who has no children, makes a
transfer to the grandniece (GN). If Ts niece (N), who is the parent
of GN, is deceased at the time of the transfer, no GST occurs,
because GN moves up one generation.
13-10
2012 Revision
EXAMPLE: A transferor (T), who has no children, creates a

trust with income to niece 1 (N1) or grandniece 2 (GN2), the
remainder to GN2. If niece 2 (N2), the parent of GN2, is deceased
when the trust is created, GN2 is moved up one generation, and no
GSTs to or from that trust can occur.
The predeceased-ancestor exception also applies if the ancestor
whose death would move up generations is (1) living at the time of the
GST, but dies within 90 days thereafter, and (2) treated as having
predeceased the transferor either under the terms of the governing
instrument (i.e., the will or living trust) or under applicable local law.
Treas Reg 26.2651-1(a)(2)(iii)(iv). This exception applies to
descendants of the transferor, of the transferors spouse, and of the
transferors former spouse. Treas Reg 26.2651-1(a)(2)(i).
EXAMPLE: A parent (P) leaves the Child (C) a lifetime
interest in a trust, the remainder to the Grandchild (GC). Assuming
a natural sequence of deaths, a GST will occur on Cs death. But if
C dies within 90 days after Ps death, and the will contains the
requisite 90-day window provision, then GC is moved up to Cs
generation, and, because GC is then not a skip person relative to P,
no GST occurs.
PRACTICE TIP: Oregon law does not provide that a person
dying within 90 days after another persons death is presumed to
have predeceased the latter. So if GSTs are part of an estate plan,
such a presumption should be written into a will or living trust.
A disclaimer by the ancestor within 90 days of the transferors
death, which, if made under local law, presumes that the ancestor has
predeceased, does not qualify for the 90-day window, because the
ancestor is still alive. Treas Reg 26.2651-1(a)(2)(iv).
13.4
GENERATION-SKIPPING TRANSFERS
The definition of the term generation-skipping transfer (GST)

includes three types of GSTs:
(1)
A taxable distribution (see 13.4-3);

13-11
2012 Revision
(2)
Ataxable termination (see 13.4-2); and
(3)
Adirect skip (see 13.4-1).
See IRC 2611(a); see also IRC 2612.

Even if a transfer fits within one of these three categories, it will
not be considered a GST if it constitutes a nontaxable gift. See 13.4-4.
13.4-1 Direct Skip
The term direct skip means a transfer subject to [estate or gift tax]
of an interest in property to a skip person. IRC 2612(c)(1).
EXAMPLE: A parent (P) makes a taxable gift of property, or
bequeaths property under Ps will, to the grandchild or the greatgrandchild, or to a trust solely for their benefit. All of the transfers
are direct skips.
13.4-2 Taxable Termination
The term taxable termination means the termination (by death,
lapse of time, release of a power of appointment, or otherwise) of an
interest in property held in a trust, unless (1) immediately after such
termination, a non-skip person has an interest in such property or (2) at
no time after such termination may a distribution (including distributions
on termination) be made from such trust to a skip person. IRC
2612(a)(1). A taxable termination does not occur if the termination is
subject to estate or gift tax. Treas Reg 26.2612-1(b)(1).
EXAMPLE: A parent sets up a trust with income for life to the
child (C), then income for life to Cs brother (B), then the
remainder to grandchild (GC). If B survives C, a taxable termination does not occur, because B, a nonskip person, has an interest in
the trust. A taxable termination occurs on Bs subsequent death,
because then only GC, a skip person, has an interest in the trust. If
B were given a testamentary general power of appointment in the
above example, no generation-skipping transfer would occur,
because the assets subject to the power would be included in Bs
estate on his death.
13-12
2012 Revision
This rule also applies when a distribution of a portion of trust

property is made to a skip person by reason of a termination occurring on
the death of a lineal descendant of the transferor. Treas Reg 26.26121(b)(2); see also IRC 2612(a)(2).
EXAMPLE: A parent (P) creates a trust providing for
discretionary payments of income and principal among Ps children (C1 and C2), and their descendants. The trust further provides
that, on the death of the first child to die, one-half of the trust
assets is distributed to the deceased childs then-living descendants, and the other half remains in trust for the other child and that
childs descendants. On C1s death prior to C2, a taxable
termination occurs with respect to C1s half of the assets even
though a nonskip person, C2, still has an interest in the trust. Treas
Reg 26.2612-1(b)(2), 1(f), Ex. 9.
13.4-3 Taxable Distribution
The term taxable distribution means any distribution from a trust
to a skip person (other than a taxable termination or a direct skip). IRC
2612(b).
EXAMPLE: A parent creates a trust with income to the child
(C) or the grandchild (GC), the remainder to GC. An income distribution made from the trust to GC while C is alive is a taxable
distribution. The distribution is not a direct skip, because it is not
subject to estate or gift tax. It is not a taxable termination, because
C still has an interest in the trust.
13.4-4 Nontaxable Gifts
A nontaxable gift is not a generation-skipping transfer (GST). See
IRC 2642(c)(1). A nontaxable gift means any gift to a skip person to the
extent that it is not taxable because it qualifies for either the annual gifttax exclusion under IRC 2503(b), or the exclusion under IRC 2503(e)
for educational or medical expenses. IRC 2642(c)(3). Contributions to
qualified state tuition programs, so-called 529 plans, are nontaxable
gifts to the extent that they qualify for the annual gift tax exclusion. See
Prop Treas Reg 1.529-5(b).
13-13
2012 Revision
A direct skip of a nontaxable gift to a trust benefiting an individual

is also a nontaxable gift, but only if (1) during the life of the individual,
no portion of the corpus or income of the trust may be distributed to, or
for the benefit of, any person other than the individual; and (2) if the
individual dies before the trust is terminated, the assets of the trust are
includable in the individuals gross estate. IRC 2642(c)(2).
EXAMPLE: A parent (P) makes an annual-exclusion gift to a
trust for the grandchild (GC). The trust allows distributions to be
made only to GC during GCs lifetime, and, if GC dies before the
trust terminates, GC has a general power of appointment over the
trust assets. Ps gift is a nontaxable gift, because the trust assets
subject to the general power would be included in GCs estate. If
GC had only a lifetime interest in the trust, with lower generations
as vested remaindermen, Ps gift would be a GST, and not a
nontaxable gift, because the trust assets would not be includable in
GCs estate.
PRACTICE TIP: Because direct skips of nontaxable gifts to
individuals and certain qualified trusts are completely excluded
from the GST tax and require no use of the GST exemption, they
are a particularly effective means to transfer wealth to grandchildren and more distant generations.
13.4-5 Multi-Generational Skips and Multiple Skips
If a generation-skipping transfer (GST) skips more than one
generation, only one GST transfer takes place because the definition of
skip person does not distinguish between generation levels. See IRC
2613(a)(1). See also 13.2-4.
EXAMPLE: A parent (P), whose child, grandchild, and greatgrandchild of the same lineage are all living, makes a taxable direct
skip to the great-grandchild. Even though Ps transfer has skipped
two generations, only one GST has been made.
Multi-generational skips are different from multiple skips. If (1) a
GST occurs, and (2) immediately after the GST, the property subject to
the transfer is held in trust, the transferor of the property is assigned to
13-14
2012 Revision
the first generation above the highest generation of any person who has
an interest in such trust immediately after the transfer. IRC 2653(a).
EXAMPLE: A parent (P) creates a trust in which the trustee
can make discretionary income distributions to the grandchild
(GC) or the great-grandchild (GGC) for GCs life, the remainder to
GGC. Because the only persons with interests in the trust are skip
persons, a direct skip occurs on the initial transfer by P. Because
the property remains in trust, P is thereafter assigned to one
generation above GC, meaning that GC is no longer a skip person
for purposes of all further trust distributions. GGC, who is deemed
to be two generations below P, is a skip person for such purposes,
and subsequent income distributed to GGC constitutes taxable
distributions. Treas Reg 26.2653-1(b), Ex. 1.
13.4-6 Disclaimers
If, as a result of a qualified disclaimer, the disclaimed property
skips a generation, a generation-skipping transfer occurs. IRC 2518.
13.5
THE GST EXEMPTION
The tax imposed on a generation-skipping transfer (GST) can be

prevented through the effective allocation of the GST exemption and the
use of nontaxable gifts. See IRC 26312632. Total GSTs made during
life and at death will not be subject to the tax if their value does not
exceed the GST exemption that is allocated to them.
See 13.5-1 to 13.5-3(b).
13.5-1 Taxable Amount
The first step in using the generation-skipping transfer (GST)
exemption is determining the taxable amount of the transfer that the
exemption is intended to cover or partially cover. This depends on the
kind of GST involved.
In the event of a direct skip, the taxable amount is equal to the
value of the property received by the transferee. IRC 2623.
13-15
2012 Revision
In the event of a taxable termination, the taxable amount is equal to

the value of all of the property with respect to which the termination has
occurred, minus any administration expenses, indebtedness, and taxes
attributable to that property. IRC 2622.
For a taxable distribution, the taxable amount is equal to the value
of the property received by the transferee, minus any expense incurred
by the transferee in connection with the determination, collection, or
refund of the GST tax. IRC 2621(a). Because a transferee is liable for
the GST taxes caused by a taxable distribution (IRC 2603(a)(1)), the
taxable amount is increased by the amount of any tax paid out of the trust
from which the taxable distribution was made. IRC 2621(b).
In determining taxable amounts, the property is valued as of the
date of the GST. IRC 2624(a). If the alternate valuation date (under IRC
2032) or special-use valuation (under IRC 2032A) is used for a direct
skip of the property that is included in the transferors estate, then that
value is also used for determining the value of the GST. IRC 2624(b).
The alternate valuation date election is also permitted for all of the
property included in one or more taxable terminations with respect to the
same trust occurring at the same time as a result of the death of an
individual. IRC 2624(c).
The value of any property transferred is reduced by the amount of
any consideration provided by the transferee. IRC 2624(d).
13.5-2 Amount of Exemption
Although IRC 2601 imposes a tax on every generation-skipping
transfer (GST), IRC 2631 provides for an exemption from the tax.
Every individual is allowed a GST exemption that can be used for
lifetime transfers or at death.
Unlike the applicable credit amount for the federal estate tax (see
IRC 2010), the GST exemption is not portable. See chapter 12. If a
predeceasing spouse does not fully use that spouses $5 million GST
exemption for lifetime and testamentary transfers, the unused portion
cannot be used by the surviving spouse during life or at death.
13-16
2012 Revision
The amount of the exemption available depends on the year in

which the GST occurs (see IRC 2631(a), (c)):
YEAR OF TRANSFER
GST EXEMPTION
19861998
$1,000,000
1999
$1,010,000
2000
$1,030,000
2001
$1,060,000
2002
$1,100,000
2003
$1,120,000
20042005
$1,500,000
20062008
$2,000,000
2009
$3,500,000
20102011
$5,000,000
2012
$5,000,000 (adjusted
for inflation from 2010)
13.5-3 Allocation of Exemption

The exemption from tax on a generation-skipping transfer (GST) is
allocated by the individual (or the individuals executor) to any property
with respect to which such individual is the transferor. IRC 2631(a).
Once made, the allocation is irrevocable. IRC 2631(b).
Lifetime allocations of the exemption are made by a person on a
timely filed gift tax return, even if no return is required to be filed. IRC
2642(b)(1).
If a person makes a direct skip during his or her lifetime, any
unused portion of the persons GST exemption is allocated to the
property transferred to the extent necessary to make that transfer free
from the GST tax. If the amount of the direct skip exceeds the unused
portion of the exemption, the entire unused portion is allocated to the
property transferred. IRC 2632(b)(1).
13-17
2012 Revision
Likewise, if a person makes an indirect skip during his or her

lifetime, any unused portion of the GST exemption is automatically
allocated to lifetime indirect skips, essentially meaning trusts (with some
exceptions) from which taxable distributions may occur or which may
produce taxable terminations. IRC 2632(c). Treas Reg 26.2632-1.
A transferor may elect in or out of the deemed-allocation rules on
the gift tax return. IRC 2632(b)(3); Treas Reg 26.2632-1(b)(2)(iii).
After the transferors death, the allocation of the transferors GST
exemption may be made at any time on or before the date prescribed for
filing the decedents estate tax return (determined with regard to
extensions). IRC 2632(a)(1). Any portion of the decedents GST
exemption that has not been allocated within such time is deemed to be
allocated as follows:
(1) First, to the property that is the subject of a direct skip
occurring on the decedents death, IRC 2632(e)(1)(A); and
(2) [S]econd, to trusts with respect to which such individual is
the transferor and from which a taxable distribution or a taxable termination might occur at or after such individuals death, IRC 2632(e)(1)(B).
The Internal Revenue Code also provides for deemed allocations
within the above categories. See IRC 2632(e)(2).
If the property to which a GST exemption is to be allocated is held
in trust, the allocation is made to the entire trust rather than to specific
trust assets. Treas Reg 26.2632-1(a).
An allocation of the exemption may be made by a formula. Treas
Reg 26.2632-1(b)(4). For example, the allocation may be expressed in
terms of an amount that will be covered by the exemption so that no taxable transfer will occur.
PRACTICE TIP: As shown in the table in 13.5-2, the GST
exemption has increased from $1 million to $5 million in the past
12 years. Testamentary documents that provide for GSTs tied to
the GST exemption amount should be reviewed with the client to
determine if the larger GST amount is what the client intends to
transfer.
13-18
2012 Revision
An allocation of the exemption to a trust (except for a charitable

lead annuity trust) is void to the extent that the amount allocated exceeds
the amount necessary to obtain a trust inclusion ratio of zero. Treas Reg
26.2632-1(b)(4). A transferor will have made a proper allocation of the
GST exemption if there was substantial compliance with the allocation
rules. IRC 2642(g)(2).
13.5-3(a) Allocation for Estate Tax Inclusion Period
Special rules apply to the allocation of the generation-skipping
transfer (GST) exemption (and so the determination of the applicable
fraction) to lifetime transfers that would be included in the transferors
estate if the transferor died immediately after the transfer. Examples of
such lifetime transfers include a qualified personal residence trust
(QPRT) and a grantor-retained annuity trust (GRAT). In that event, the
allocation is effective no earlier than the termination of the estate tax
inclusion period (ETIP). IRC 2642(f).
The ETIP rule essentially prevents the leveraging of the GST
exemption to transfers that are includable in the transferors estate at
some later date. Any appreciation in the value of the property during the
ETIP will be subject to the GST tax, unless an additional GST exemption
is allocated to the transfer.
EXAMPLE: A parent (P) establishes a QPRT, retaining a 10year term interest, the remainder to the grandchild. The end of the
ETIP, and the first time an allocation of the exemption to the
QPRT is effective, is at the end of the 10-year term, because if P
dies before that time, the residence is includable in Ps estate. The
trust will have an inclusion ratio of zero only if the value of the
corpus of the QPRT at the end of the 10-year period is less than or
equal to the amount of Ps GST exemption that is allocated to it.
An ETIP is the period during which, should death occur, the value
of transferred property would be includible in the gross estate of . . . the
transferor . . . or . . . the spouse of the transferor. Treas Reg 26.26321(c)(2)(i). The ETIP rule, however, does not apply to a qualified
terminable interest property (QTIP) trust with respect to which a reverse
QTIP election has been made. Treas Reg 26.2632-1(c)(2)(ii)(C).
13-19
2012 Revision
The time at which an ETIP terminates is covered in detail in

Treasury Regulation 26.2632-1(c)(3).
13.5-3(b) Retroactive Allocations
If certain lower-generation beneficiaries of a trust, to which
insufficient or no generation-skipping transfer (GST) exemption had been
allocated, die before the transferor, the transferor may retroactively
allocate the transferors exemption to the initial transfers made to the
trust, valued as of the initial transfer date. IRC 2632(d). This allocation
is available if the deceased beneficiary is a child, niece, nephew, or child
of a first cousin of the transferor or the transferors spouse or former
spouse, or a descendant of a child, niece, or nephew who is treated as
being in the childs generation because of the predeceased-ancestor
exception of IRC 2651(e). See 13.3-2.
EXAMPLE: A parent (P) sets up a trust with $100,000,
providing income to the child (C) for 10 years, then outright
distribution to C; if C does not survive the 10-year period, then the
remaining trust assets go to the grandchild (GC). If C dies within
the 10-year period, a taxable termination occurs. P may retroactively allocate $100,000 of Ps GST exemption to the trust to
cover the taxable termination in favor of GC.
The retroactive allocation is made by the transferor on a gift tax
return filed for the year of the beneficiarys death. IRC 2632(d).
13.6
IMPOSITION OF THE GST TAX
If the available generation-skipping transfer (GST) exemption

equals or exceeds the taxable amount (see 13.5-1) to which it is
allocated, no GST tax is due. If it does not, then the taxable amount (or
portion thereof) not covered by the GST exemption will be subject to the
GST tax. The tax is equal to the taxable amount, multiplied by the
applicable rate.
13.6-1 Applicable Rate
The term applicable rate means the maximum federal estate tax
rate in effect at the time that the generation-skipping transfer (GST)
13-20
2012 Revision
occurs, multiplied by the inclusion ratio with respect to the transfer.

IRC 2641. The inclusion ratio is computed by reference to the value of
the property subject to the GST, and the amount of the exemption that
has been allocated to it. IRC 2642(a).
13.6-1(a) Maximum Federal Estate Tax Rate
For years 2011 and thereafter, the maximum federal estate tax rate
is 35%, but under the sunset provisions of the Tax Relief, Unemployment
Insurance Reauthorization, and Job Creation Act of 2010, Pub L No 111312, 124 Stat 3296 (the 2010 Act; see 13.1), the maximum rate is
scheduled to increase to 55% for transfers made in 2013. IRC
2001(c)(2)(B). The maximum rate for GSTs in 2010 was 0%, meaning
GSTs made in that year were tax-free.
The rate has steadily decreased since 2001:
YEAR
MAXIMUM RATE
2001
55%
2002
50%
2003
49%
2004
48%
2005
47%
2006
46%
20072009
45%
2010
0% -No GST tax
20112012
35%
13.6-1(b) Inclusion Ratio

13.6-1(b)(1)
General Rule
The inclusion ratio for any property transferred in a generationskipping transfer (GST) is equal to one minus the applicable fraction for
such transfer. IRC 2642(a)(1). For determining the applicable fraction
of a direct skip, the numerator is equal to the amount of the exemption
13-21
2012 Revision
allocated to such skip. For determining the inclusion ratio of a taxable

termination or a taxable distribution, the numerator of the applicable
fraction is the amount of the GST exemption allocated to the trust. IRC
2642(a)(2)(A).
The denominator of the applicable fraction is the value of the
property transferred to the trust or that is involved in the direct skip,
reduced by the sum of (1) any federal estate tax or state death tax actually
recovered from the trust that is attributable to the property, plus (2) any
charitable deduction allowed under IRC 2055 or IRC 2522 with
respect to that property. IRC 2642(a)(2)(B).
EXAMPLE: A parent (P) transfers property worth $6 million
to a trust that provides for income to the child (C), the remainder to
the grandchild (GC). P allocates his entire $5 million exemption to
the trust. The applicable fraction for the transfer is
$5,000,000/6,000,000 or 5/6. The inclusion ratio of the trust is one
minus 5/6, or 1/6. At Cs death in 2012, when a taxable termination occurs, the trust corpus is worth $10 million. The GST tax is
$700,000, computed as follows:
1/6 (inclusion ratio) x .35 (maximum federal estate tax rate)
= 7/100 (applicable rate)
7/100 (applicable rate) x $10 million (taxable amount)
= $700,000
13.6-1(b)(2) Redetermination of Applicable Fraction
The applicable fraction for a trust must be redetermined whenever
(1) an additional exemption is allocated to the trust; (2) property is added
to the trust; (3) separate trusts created by one transferor are consolidated;
(4) the value of the property held in a trust created by the transferor is
included in the transferors gross estate, and an additional generationskipping (GST) exemption is allocated to the property; or (5) an
additional estate tax is imposed under IRC 2032A.
13-22
2012 Revision
In such cases, the regulations provide that:

the numerator of the redetermined applicable fraction is the sum of the
amount of GST exemption currently being allocated to the trust (if
any) plus the value of the nontax portion of the trust, and the denominator of the redetermined applicable fraction is the value of the trust
principal, determined immediately prior to the event, by the then
applicable fraction.
Treas Reg 26.2642-4(a).

The nontax portion of the trust is the value of trust assets
multiplied by the applicable fraction immediately before the transfer.
Treas Reg 26.2642-4(d)(3).
13.6-1(b)(3)
Valuation Rules
For purposes of computing the inclusion ratio, the value of the

property transferred in a generation-skipping transfer (GST), and to
which an allocation of the exemption is made, must be determined. If the
allocation of the GST exemption is made to property on a timely filed
gift tax return, or if the exemption has not been allocated, but is instead
deemed to have been allocated, the value of such property for purposes of
determining the inclusion ratio is its gift tax value, or if the transfer
involves an estate tax inclusion period (ETIP), the value at the close of
the ETIP (see 13.5-3(a)). IRC 2642(b)(1).
If the allocation to a lifetime transfer is made after the date for
filing a gift tax return (and has not been deemed allocated), the value of
the property is determined as of the time such allocation is filed. IRC
2642(b)(3). If a transferor makes a late allocation of a GST exemption
to a trust on a federal gift tax return, the transferor may, for purposes of
determining the fair-market value of the trust assets, elect to treat the
allocation as having been made on the first day of the month during
which the late allocation is made. Treas Reg 26.2642-2(a)(2).
If the property is transferred as a result of the death of the
transferor, the value of the property is its value for estate tax purposes.
IRC 2642(b)(2). Property subject to the special-use-valuation election
under IRC 2032A is valued at its fair-market value unless the property
is transferred by direct skip, and the recapture agreement filed for the
13-23
2012 Revision
IRC 2032A election specifically provides for a recapture of the GST

tax. Treas Reg 26.2642-2(b). Certain conditions must also be met for
pecuniary amounts in satisfaction of a GST being made by means of a
noncash distribution, and for residual GSTs made after the payment of a
pecuniary amount. Treas Reg 26.2642-2(b)(2).
If a surviving spouse is deemed to be the transferor of any property
from a qualified terminable interest property trust, then the value of
such property is its value for estate tax purposes in the estate of the
surviving spouse. IRC 2642(b)(4).
For lifetime transfers, any value discussed above becomes final
when the value becomes final for gift tax purposes, or at and after the end
of an ETIP. For transfers at death, the value becomes final when the
value shown on the estate tax return is finally determined. IRC 2642(b).
13.6-1(b)(4) Severance of Trusts to Achieve Desired
Inclusion Ratio
For ease of administration, and to prevent wasting the exemption
from tax on a generation-skipping transfer (GST), the lawyer should
consider establishing a trust that has either an inclusion ratio of zero
(making it entirely exempt from the tax) or an inclusion ratio of one
(resulting in a nonexempt trust).
This result might be accomplished by dividing or severing a single
trust into two or more trusts. See IRC 2642(a)(3). To be a qualified
severance for GST purposes, (1) the division of the single trust and the
creation of two or more trusts must be accomplished pursuant to
authority granted under either the governing instrument or local law;
(2) the single trust must be divided on a fractional-share basis; and
(3) the newly created trusts must provide for the same succession of
interests of beneficiaries as are provided in the original trust. IRC
2642(a)(3). For trusts created after death, the severance must occur, or
court proceedings commenced for the severance, before the due date for
filing the estate tax return, and the supporting data must be submitted
with the return. Treas Reg 26.2642-6(e).
PRACTICE TIP: Although Oregon law specifically grants
authority for a fiduciary to separate trusts (ORS 130.230), the
13-24
2012 Revision
lawyer should consider putting a provision to that effect in every

will or trust instrument. Such a provision should permit severance
regardless of the tax consequences.
13.6-2 Liability for Tax; Source of Payment
The liability for the tax imposed on a generation-skipping transfer
(GST) depends on the type of GST that has occurred. See 13.4-1 to
13.4-3. For taxable distributions, the transferee pays the tax. For taxable
terminations or direct skips from a trust, the trustee pays the tax. For
direct skips other than from a trust, the transferor pays the tax. IRC
2603(a).
Unless otherwise directed under the governing instrument by
specific reference to the GST tax, the GST tax is charged to the property
constituting such transfer. IRC 2603(b). A general clause providing
that all death taxes are to be paid from the residue is not a specific
reference to the GST tax for purposes of IRC 2603(b). Estate of Monroe
v. C.I.R, 104 TC 352, 364364 (1995), revd in part on other grounds,
124 F3d 699 (5th Cir 1997).
PRACTICE TIP: When drafting tax clauses in wills and trusts
of clients for whom GST planning is appropriate, the lawyer
should specifically designate the assets that are to bear any GST
tax that may be imposed.
PRACTICE TIP: If a reverse QTIP election has been made
with respect to a trust that is exempt from a GST tax, the lawyer
should consider having the estate tax attributable to the surviving
spouses interest in that trust paid from some other source, so that
the GST exemption allocated to that trust is not otherwise wasted.
QTIP elections (i.e., qualified terminable interest property elections) are discussed in 13.2-1. Even though the surviving spouses
executor has the right to recover from the recipients of QTIP
property the amount of federal estate tax incurred as a result of that
property being included in the surviving spouses estate (see 12.15(c)(3)), that right does not apply to trusts for which a reverse
QTIP election is made. For GST purposes, the trust property is
treated as not includable in the estate of the surviving spouse, so no
13-25
2012 Revision
right of recovery arises under IRC 2207A. Treas Reg 26.26521(a)(3), (5), Ex. 7.
13.6-3 Payment of GST Tax on Lifetime Direct Skips
If a transferor pays the tax imposed on a generation-skipping
transfer as a result of a direct skip that is a taxable gift, the taxable gift is
increased by the amount of the tax so paid. IRC 2515.
13.6-4 Credit for State Taxes
A credit against the tax imposed on a generation-skipping transfer
(GST) is available for state GST tax that is paid on taxable terminations
and taxable distributions that occur at the same time as, and as a result of,
the death of an individual. The credit cannot exceed 5% of the amount of
the federal GST tax that is paid. IRC 2604.
NOTE: Oregon does not have a GST tax.
13.7
EFFECTIVE DATES AND CHANGES TO

GRANDFATHERED TRUSTS
13.7-1 Effective Dates

The tax imposed on a generation-skipping transfer (GST) applies
to any GST made after October 22, 1986, the date that the Tax Reform
Act of 1986 was enacted.
The Internal Revenue Code provides several exceptions to this
rule, the most important of which is that a GST made from a trust that
was irrevocable on September 25, 1985, is generally exempt from the tax.
Treas Reg 26.2601-1(b)(1). This exception does not apply, however, to
the extent that the transfer is made out of corpus added (either actually or
constructively) to the trust after that date. For this purpose, a transfer is
not grandfathered, and thus is subject to the tax, if it is pursuant to the
exercise, release, or lapse of a general power that is treated as a taxable
transfer for gift or estate tax purposes. Treas Reg 26.2601-1(b)(1)(v).
See Estate of Gerson v. C.I.R., 127 TC 139, 154157 (2006), affd, 507
F3d 435 (6th Cir 2007); Estate of Timken v. United States, 601 F3d 431
(6th Cir 2010).
13-26
2012 Revision
EXAMPLE: Before September 25, 1985, a parent (P) creates a

trust with income to the child (C) for 20 years, the remainder to
such lineal descendants as C designates pursuant to a general
power of appointment. After 20 years, C exercises the power so
that the remainder is transferred to Ps great-grandchildren (GGC).
According to the regulation, C has made a GST, notwithstanding
the trusts original creation date.
A transfer made pursuant to a limited power of appointment will
not be a GST, if it does not postpone or suspend the vesting, absolute
ownership, or power of alienation beyond the applicable rule against
perpetuities. Treas Reg 26.2601-1(b)(1)(v)(B).
NOTE: The Oregon rule against perpetuities is found in ORS
105.950(1): A nonvested property interest is invalid unless:
(a) When the interest is created, it is certain to vest or terminate no
later than 21 years after the death of an individual then alive; or
(b) The interest either vests or terminates within 90 years after its
creation.
For GST purposes, the period begins on the date that the power
was irrevocably created (not when exercised). Treas Reg 26.26011(b)(1)(v)(B).
EXAMPLE: A parent (P) creates a trust in 1970, income to the
child (C) for 30 years, the remainder to such lineal descendants as
C designates pursuant to a limited power of appointment. If the
power is exercised to create another trust, the interests created
thereby must vest within 21 years after the death of any lineal
descendant living on the trust-creation date, or the year 2060,
which is 90 years after the trust-creation date. If no lineal descendant of P is alive on the trust-creation date, the interests created by
the exercise of the power must vest no later than 2060. If, by its
terms, the trust will last beyond 2060, the power holder would
become a transferor for GST purposes on the exercise date.
Other exceptions apply to GSTs that occurred under a will or a
revocable trust executed before October 23, 1986, if the decedent died
before 1987, Treas Reg 26.2601-1(a)(2)(ii), and for certain GSTs made
13-27
2012 Revision
if, on October 22, 1986, a decedent-transferor was under a mental

disability and did not regain competence before death, Treas Reg
26.2601-1(b)(3)(i).
PRACTICE TIP: The lawyer should review all well-funded
trusts that were irrevocable on September 25, 1985, to determine
whether they could produce GSTs, as defined under the present
law. Additions (including constructive additions) should not be
made to grandfathered irrevocable trusts. If limited, rather than
general, powers of appointment exist in grandfathered trusts, the
lawyer should consider their exercise in favor of the youngest class
of beneficiaries because no GST consequences will result.
13.7-2 Modifications to Grandfathered Trusts
A modification to a grandfathered generation-skipping transfer
(GST) trust may cause that trust to lose its exempt status. This loss will
not occur if the modification comes within four safe harbors developed
by the Internal Revenue Service.
First, the distribution of principal from a grandfathered trust or
retention of principal in a continuing grandfathered trust will not cause
the trust to lose its exempt status, if:
(1)
Either:
(a) The terms of the grandfathered GST trust authorize distributions to the new trust or the retention of trust principal in a
continuing trust, without the consent or approval of any beneficiary or
court; or
(b) At the time that the grandfathered GST trust became
irrevocable, state law authorized distributions to the new trust or retention of principal in the continuing trust, without the consent or approval
of any beneficiary or court; and
(2) The terms of the new or continuing trust do not extend the
time for vesting of any beneficial interest in the trust in a manner that
may postpone or suspend the vesting, absolute ownership, or power of
alienation of an interest beyond the applicable rule against perpetuities.
Treas Reg 26.2601-1(b)(4)(i)(A).
13-28
2012 Revision
Second, a court-approved settlement of a bona fide issue regarding

the administration of the grandfathered trust or the construction of terms
of the governing instrument of the grandfathered trust will not cause the
trust to lose its exempt status if the settlement is (1) the product of armslength negotiations, and (2) within the range of reasonable outcomes
under the governing instrument and applicable state law addressing the
issues resolved by the settlement. Treas Reg 26.2601-1(b)(4)(i)(B).
Third, a judicial construction to resolve an ambiguity in the terms
of a grandfathered trust or to correct a scriveners error will not cause a
trust to lose its exempt status if (1) the judicial action involves a bona
fide issue, and (2) the construction is consistent with applicable state
law that would be applied by the highest court of the state. Treas Reg
26.2601-1(b)(4)(i)(C).
The fourth safe harbor covers modifications to a trusts governing
terms or its administration that do not fall within the first three safe
harbors. Under Treasury Regulation 26.2601-1(b)(4)(i)(D)(1), a modification in the terms of the governing instrument by judicial reformation
or a modification of the governing instrument in the manner in which it is
administered that does not fall within one of the first three safe harbors
will not cause a trust to lose its exempt status if the modification does
not:
(1) Shift a beneficial interest in the trust to any beneficiary who
occupies a lower generation (as defined in IRC 2651) than the person or
class of persons who held the interest before the modification; and
(2) Extend the time for vesting of any beneficial interest in the
trust beyond the period provided for in the original trust agreement.
PRACTICE TIP: The lawyer should review the terms of any
grandfathered irrevocable trust for which a modification is being
considered to make certain that the modification will not cause the
trust to lose its GST tax-exempt status. If the modification does not
clearly fall within one of the four safe harbors, the lawyer should
request an IRS letter ruling.
13-29
2012 Revision
13.8
OTHER RELATED ISSUES
13.8-1 Basis Adjustments

Property transferred under a taxable termination as a result of the
death of a person receives a stepped-up basis or stepped-down basis in
accordance with IRC 1014(a), except that, if the inclusion ratio of the
property is less than one, the increase or decrease in the basis is multiplied by the inclusion ratio. IRC 2654(a)(2). For all other generationskipping transfers, the basis of the property is increased, but not above its
fair-market value, by the amount of tax attributable to the appreciation in
the property existing immediately before the transfer. IRC 2654(a)(1).
13.8-2 Income Tax Deductions
The generation-skipping transfer (GST) tax imposed on income
distributions from a trust are deductible by the beneficiary for income tax
purposes. IRC 164(a)(4). If a GST tax is imposed on a taxable termination or a direct skip as a result of the transferors death, the trust or
beneficiary is allowed a deduction for that portion of the GST tax
attributable to items of gross income of the trust not properly included in
gross income for periods before the date of the GST. IRC 691(c)(3).
13.8-3 Extension of Time for Payment of Tax; Stock
Redemptions to Pay Tax
If an interest in a closely held business is the subject of a direct
skip at death, and the estate otherwise qualifies for an extension of
payment of the estate tax under IRC 6166 (see 12.2-7(b)(3)), any
generation-skipping transfer (GST) tax resulting from the direct skip is
treated as additional estate tax for purposes of the IRC 6166 election.
IRC 6166(i).
If a GST of stock occurs at the same time as, and as a result of, the
death of a person, redemption of that stock may qualify for sale or
exchange treatment under IRC 303(d).
13.8-4 Nonresident Aliens
Regulations providing for the application of the generationskipping transfer tax to transferors who are nonresident aliens are found
in Treasury Regulation 26.2663-2.
13-30
2012 Revision
13.9
13.9-1
FILING
Forms
The person liable for the tax imposed on a generation-skipping

transfer (GST) (see 13.6-2) must file the applicable forms and report
any allocation of the exemption.
Form 709 is used to report lifetime direct skips subject to the gift
tax.
Form 706 is used to report direct skips subject to the estate tax that
occur on the transferors death. If the direct skip is from a trust, then
Form 706, Schedule R, part 1, must also be filed. For taxable
distributions, a trustee must file Form 706-GS(D-1) and provide a copy to
each transferee who, in turn, must file Form 706-GS(D). For taxable
terminations, a trustee must file Form 706-GS(T).
Direct skips must be reported on or before the due date for the gift
or estate tax return. All other GSTs must be reported on or before the
15th day of the fourth month after the close of the calendar year in which
the transfer occurs. Treas Reg 26.2662-1(d).
PRACTICE TIP: All IRS forms discussed in this section
are available online at <http://apps.irs.gov/app/picklist/list/forms
Instructions.html>.
13.9-2 Section 9100 Relief
A number of elections regarding a generation-skipping transfer
(GST) to be made on the federal forms are regulatory elections, which
the Internal Revenue Service (IRS) can grant reasonable extensions of
time to make under Treasury Regulation 301.9100. They include
allocating the GST exemption and electing out of automatic allocations
of the exemption (see 13.5-3 to 13.5-3(b)), making a reverse qualified
terminable interest property (QTIP) election at death (see 13.2-1),
splitting certain trusts for GST purposes (see 13.6-1(b)(4)), and treating
a single QTIP trust as two separate QTIP trusts under a transitional rule
in Treasury Regulation 26.2652-2(c). To be granted Section 9100 relief,
the taxpayer must satisfy the IRS that: (1) the taxpayer acted reasonably
and in good faith and (2) the grant will not prejudice the interest of the
13-31
2012 Revision
government. Treas Reg 301.9100-3(a). The request for a grant of relief

is made by a request for a private letter ruling. Treas Reg 301.91003(e)(5).
The IRS issued proposed regulations in 2008 intended, when
finalized, to replace Treasury Regulation 301.9100-1 to 301.9100-3 as
the avenue for seeking grants of extensions for GST elections. Prop Treas
Reg 26.2642-7.
13-32
2012 Revision
Chapter 14
OREGON ESTATE TAX
PHILIP N. JONES, B.A., Lewis & Clark College (1973); J.D., Lewis & Clark Law
School (1976); member of the Oregon State Bar since 1976, and the
Washington State Bar Association since 1993; partner, Duffy Kekel LLP,
Portland.
JEFFREY M. CHEYNE, B.A., University of Oregon (1968); J.D., LL.M. (Tax)
University of San Diego School of Law (1975, 1984); member of the Oregon
State Bar since 1990, the Washington State Bar Association since 2003, and
The State Bar of California since 1975; partner, Samuels Yoelin Kantor LLP,
Portland.
Portions of this chapter are based on materials prepared by Holly N. Mitchell, of
Duffy Kekel LLP, Portland.
14.1 INTRODUCTION ................................................................... 14-3

14.1-1
A Brief History ........................................................... 14-4
14.1-2
The Constitutional and Case Law Background .......... 14-6
14.1-3
Terminology ............................................................... 14-9
14.2 OREGON ESTATE TAXFOR DEATHS

OCCURRING ON OR AFTER JANUARY 1, 2012............ 14-11
14.2-1
Calculating the Oregon Estate Tax ........................... 14-11
14.2-2
Lifetime Gift Transfers ............................................. 14-13
14.2-3
Oregon Residents Versus Nonresidents ................... 14-15
14.2-4
Effective Date of the New Estate Tax Law .............. 14-19
14.2-5
Portability Election ................................................... 14-20
14.2-6
Natural Resource Credit Under the New Law.......... 14-21
14.2-6(a) Background ................................................... 14-21

14.2-6(b) Natural Resource Property:
Requirements and Definitions....................... 14-22
14.2-6(b)(1) Natural Resource Property .............. 14-22
14.2-6(b)(2) Operating Allowance ...................... 14-22
14.2-6(b)(3) Use and Transfer Requirements...... 14-23
14-1
2012 Revision
Chapter 14 / Oregon Estate Tax
14.2-6(b)(4) Adjusted Gross Estate ..................... 14-23

14.2-6(c) Calculating the Natural Resource Credit ....... 14-24
14.2-6(d) Transferring or Replacing Natural
Resource Property ......................................... 14-25
14.2-6(d)(1) Disposition Tax and Other
Taxable Transfers ............................ 14-25
14.2-6(d)(2) Annual Reporting Requirement ...... 14-26
14.2-6(d)(3) Natural Resource Tax Forms........... 14-26
14.3 THE PRE-2012 OREGON INHERITANCE TAX ............... 14-26
14.3-1
Introduction ............................................................... 14-26
14.3-2
Lifetime Gift Transfers ............................................. 14-28
14.3-3
Calculating the Oregon Inheritance Tax ................... 14-29
14.3-4
Oregon Residents Versus Nonresidents Under

Prior Law ................................................................... 14-34
14.3-5
Natural Resource Credit Under Pre-2012 Law ......... 14-37
14.4 PROCEDURES APPLICABLE TO BOTH OLD AND

NEW LAW ............................................................................ 14-40
14.4-1
Fiduciarys Request for Release from Personal

Liability for Oregon Estate Tax ................................ 14-40
14.4-2
Extensions of Time to File or Pay ............................. 14-42
14.4-3
Interest and Penalties................................................. 14-44
14.4-4
Statutes of Limitation ................................................ 14-46
14.4-4(a) Statute of Limitations for Notice of

Deficiency ...................................................... 14-46
14.4-4(b) Statute of Limitations to File a Claim for
Refund ........................................................... 14-47
14.4-5
Availability of Federal Elections .............................. 14-47
14.4-5(a) Federal Elections Available Under ORS

118.010 for Estates of Decedents Who
Die on or After January 1, 2012 .................... 14-48
14.4-5(b) Federal Elections Available Under ORS
118.010 for Estates of Decedents Who
Died Before January 1, 2012 ......................... 14-49
14-2
2012 Revision
Oregon Estate Tax / Chapter 14
14.4-5(c) Other Federal Elections Available Under

Oregon Law................................................... 14-50
14.4-6
The Oregon Alternate Valuation Date Election ....... 14-51
14.4-7
Appraisals ................................................................. 14-52
14.4-8
Apportionment of the Oregon Estate Tax ................ 14-53
14.4-9
Federal Estate Tax Audits......................................... 14-53
14.4-10 Deduction for Oregon Special Marital Property:

Schedule OSMP ........................................................ 14-54
14.4-11 Oregon QTIP Election .............................................. 14-59
14.4-12 Deduction for Qualified Family-Owned
Business Interest ....................................................... 14-60
14.4-13 Qualified Tax Disclaimers ........................................ 14-60
14.1 INTRODUCTION
The 2011 Legislature made significant changes to ORS chapter
118, which became effective for decedents dying on or after January 1,
2012. The tax imposed by ORS chapter 118 (formerly known as the
Oregon inheritance tax) is now known as the Oregon estate tax.
This chapter is divided into four sections:
(1) An introduction, including a discussion of the terminology
applicable to both the old inheritance tax and the new estate tax, see
14.1-1 to 14.1-3;
(2) A discussion of the new law adopted by the 2011 Legislature, effective for estates of decedents who died on or after January 1,
2012, see 14.2-1 to 14.2-6(d)(3);
(3) A discussion of the old law applicable to estates of decedents who died before 2012, see 14.3-1 to 14.3-5; and
(4) A discussion of the procedural law applicable to both the old
statutes and the new statutes, see 14.4-1 to 14.4-13.
Many references in this chapter to pre-2012 law are made to the
2009 Oregon Revised Statutes; for purposes of clarification, a
parenthetical (2009)will follow such references.
14-3
2012 Revision
NOTE: This chapter is based on the Internal Revenue Code,

federal regulations, the Oregon Revised Statutes, Oregon Administrative Rules, and reported state and federal cases as of August 31,
2012. Before relying on any statements in this chapter, the reader
should review current statutes, regulations, rules, and case law to
determine whether any changes have occurred to them after
December 31, 2011.
14.1-1 A Brief History
The first inheritance tax was adopted in Oregon in 1903, with an
initial rate that varied from 1% to 6%, depending on the degree of kinship
and the amount inherited. HB 41 (1903). In 1971, a pickup tax equal to
the federal credit for state death taxes was enacted in Oregon as a floor to
the Oregon tax, and the rates then varied from 2% to 20%. Former ORS
118.100; 1971 Or Laws ch 732. After 1971, the legislature regularly
reconnected to changes in the federal law. By 1975, the rates varied
from 3% to 25%. Former ORS 118.100 (1975). These rates ended in
1977, when the Oregon legislature adopted an inheritance tax equal to the
greater of (1) a flat 12% rate after applying an exemption, or (2) the
federal state death tax credit. Former ORS 118.100; 1977 Or Laws ch
666, 9. The 1977 legislation also scheduled the end of the 12% rate by
January 1, 1987, when the Oregon inheritance tax became a pure pickup
tax equal to the federal state death tax credit. Former ORS 118.100(1)(b)
(1977).
In 1997, the legislature reenacted the pickup tax and repealed the
Oregon gift tax, which had been enacted in 1933. Former ORS 118.010;
1997 Oregon Laws ch 99, 7; 1933 Or Laws ch 427. As a result, Oregon
reconnected its inheritance tax to the Internal Revenue Code as amended
by the federal Taxpayer Relief Act of 1997, Pub L No 105-34, 111 Stat
788, which had scheduled an increase in the federal unified credit from
$600,000 in 1997 to $1,000,000 in 2006 and years thereafter. (As
explained in greater detail below, those unified credit amounts remained
in place through 2011 for purposes of calculating the federal Table A cap
on the Oregon inheritance tax.)
14-4
2012 Revision
In 2001, Congress enacted the Economic Growth and Tax Relief

Reconciliation Act (EGTRRA), Pub L No 107-16, 115 Stat 38, which
(1) began the scheduled increases of the federal unified credit that would
eventually reach $3,500,000 in 2009, (2) phased out the federal state
death tax credit by 2005, and (3) caused the phase out of the Oregon
inheritance tax, which was based on the amount of the federal state death
tax credit. The Oregon legislature balked at following the federal
exemption increases and declined to reconnect to the newly amended
Internal Revenue Code. Instead, in 2003, the Oregon legislature enacted
HB 3072 (2003 Or Laws ch 806), which froze Oregons connection to
the Internal Revenue Code as of December 31, 2000. ORS 118.007
(20032009). As a result, Oregon decoupled itself from later changes
in the federal estate tax. In effect, Oregon adopted an exemption
beginning at $700,000 in 2003 and climbing to $1,000,000 in 2006 and
years thereafter. That 2003 Oregon legislation also adopted a $1,000,000
filing threshold for 2002, followed by a $700,000 filing threshold in 2003
that eventually grew to $1,000,000 in 2006, in accordance with preEGTRRA scheduled increases in the federal unified credit. An Oregononly qualified terminable interest property (QTIP) election was also
authorized. See former ORS 118.010(7) (2009).
The nature of this freeze or decoupling is described in Force v.
Dept of Revenue, 350 Or 179, 252, 252 P3d 306 (2011).
During the interim period between 2001 and 2003, some strange
results took place in the Oregon inheritance tax because of the interplay
between the Oregon filing threshold and the federal unified credit. For
example, under HB 3072 if a decedent died in 2002 with a taxable estate
of $999,999, no Oregon tax would be due because of the Oregon filing
threshold, but if the decedent had had a taxable estate of $1,000,000
(only one dollar higher), an Oregon tax of $33,200 would be due. This
odd (and unintended) result came about because HB 3072 provided that
an Oregon inheritance tax return was not required for taxable estates of
less than $1,000,000, but the unified credit equivalent for 2002 was fixed
by HB 3072 at only $600,000. See 2003 Or Laws ch 806, 10. Estates of
slightly more than $1,000,000 similarly paid an Oregon tax of slightly
14-5
2012 Revision
more than $33,200, but not less than that amount. This cliff effect is no
longer present.
As a result of the 2003 legislation, Oregons inheritance tax
required four calculations, which are discussed in 14.3-3 (describing the
law for estates of decedents who died before 2012).
This bizarre tax (or the bizarre four-part calculation of this tax)
was simplified by 2011 legislation, 2011 Or Laws ch 526. The new law is
effective for estates of decedents who die on or after January 1, 2012. It
imposes a wholly new stand-alone state estate tax that does not follow the
federal exemptions. See 14.2-1.
The 2011 Legislature changed the name of the tax to the Oregon
estate tax, rather than the Oregon inheritance tax. The legislature made
other changes as well, such as (1) the dual nature of the calculation was
eliminated, see Table A and Table B in the Instructions for Form IT-1
(Oregon Inheritance Tax Return); (2) the four steps described in 14.3-3
were eliminated; (3) a $1,000,000 exemption was adopted; and (4) a new
rate table was enacted, ranging from 10% to 16%. In addition, the new
law changed the date of the tie-in to the federal estate tax to December
31, 2010, rather than December 31, 2000, under the old law. ORS
118.007.
NOTE: As a result of the 2011 legislative changes, the
Oregon Department of Revenue (DOR) is revising and updating
many of the Oregon Administrative Rules applicable to ORS
chapter 118, and will issue revised forms and instructions from
time to time. The new forms and instructions will be available on
the DORs Web site, at <www.oregon.gov/DOR>. See OAR ch
150, div 118.
14.1-2 The Constitutional and Case Law Background
References to specific sections of the Internal Revenue Code (IRC)
appear throughout ORS chapter 118, such as IRC 2011, IRC 2031,
IRC 2032A, IRC 2056, IRC 2056A, and IRC 2058. The current
limitation ties the Oregon estate tax to the IRC as amended and in effect
on December 31, 2010. ORS 118.007. Since 1997, ORS chapter 118 has
adopted April 28, 1997, December 31, 2000, and now December 31,
14-6
2012 Revision
2010, as the tie-dates for determining which version of the IRC is to be

followed in connection with the Oregon estate tax. Some may ask why
the legislature does not adopt a provision in ORS chapter 118 declaring
that all references to and interpretations of the IRC will use the most
current version of the IRC as amended from time to time. The reason is
that the legislature does not have the constitutional authority to do so.
Any statutory reference to a statute of a jurisdiction outside of Oregon
must be limited to a specific past or current date. This restriction is
derived from 1 of article IV and 21 of article I of the Oregon Constitution.
Section 1 of article IV provides: The legislative power of the
state, except for the initiative and referendum powers reserved to the
people, is vested in a Legislative Assembly, consisting of a Senate and a
House of Representatives. OR CONST ART IV, 1(1).
Section 21 of article I provides: No ex-post facto law, or law
impairing the obligation of contracts shall ever be passed, nor shall any
law be passed, the taking effect of which shall be made to depend upon
any authority, except as provided in this Constitution. OR CONST ART I,
21.
In a letter on behalf of the Legislative Counsel Committee, Dexter
Johnson, Deputy Legislative Counsel, stated:
Section 1, Article IV vests legislative power in the Legislative
Assembly, subject only to the initiative and referendum powers
reserved to the people of this state. Section 21, Article I, prohibits any
law from being passed, the taking effect of which is made to depend
on any authority, except as provided in the Constitution. Read in
conjunction, the two provisions prohibit the Legislature from passing a
law that delegates legislative decision-making to any authority over
which the Legislature has no control. Hillman v. North Wasco Co.
PUD, 213 Or 264, 279, 284286 (1958). A law that attempts to
reference future laws of the United States is a delegation of legislative
authority to Congress, and as such is unconstitutional.
Excerpt from letter from Dexter A. Johnson, Deputy Legislative Counsel,

to Paul Warner, Legislative Revenue Officer (June 6, 2001) (citation not
14-7
2012 Revision
verified by publisher). Permission to print the excerpt was obtained from

both Dexter A. Johnson and Paul Warner.
A controlling case in this matter is Seale v. McKennon, 215 Or
562, 572, 336 P2d 340 (1959), which holds: When a statute adopts by
specific reference the provisions of another statute, regulation, or
ordinance, such provisions are incorporated in the form in which they
exist at the time of the reference, and not as subsequently modified.
Although Seale is not a tax case, it is generally relied on for the
principle that when a state law refers to a specific statute of another
jurisdiction, the law that is adopted in Oregon is the law of the other
jurisdiction as it existed on the date that it was adopted in Oregon. This
holding from the Seale case establishes how IRC sections and terms, such
as IRC 2031 and federal taxable estate, should be interpreted in
connection with the Oregon estate tax.
However, in Seale, 215 Or at 572, the court also added some
confusion to this issue with the following clause:
[W]hereas, where the reference is general, such as a reference to a
system or body of laws or to the general law relating to the subject in
hand, the referring statute takes the law or laws not only in their
contemporary form but also as they may be changed from time to time.
The general reference argument could apply to sections like

ORS 118.100, which states that the tax provided for in ORS 118.010 . . .
shall be paid to the Department of Revenue on the date the federal estate
tax is payable. ORS 118.100(1). In Force v. Dept of Revenue, 350 Or
179, 252 P3d 306 (2011), the personal representative argued that because
no federal estate tax was due (for a decedent who died in 2003), the estate
owed no Oregon inheritance tax. The Oregon Supreme Court upheld the
Oregon Tax Court, concluding that the Oregon inheritance tax was due.
The court applied rules of statutory construction to find, in part, that the
reference in former ORS 118.010(2) (2009) to the state death tax credit
allowable under section 2011 of the Internal Revenue Code meant the
IRC that was in effect on December 31, 2000. Force, 350 Or at 188. The
court looked to the context of the statute, and found that former ORS
118.007 (2009), which provided that any reference to the federal tax law
14-8
2012 Revision
in the Oregon inheritance tax statutes means the federal Internal

Revenue Code as amended and in effect on December 31, 2000, controlled the interpretation of former ORS 118.010(2) (2009). Force, 350
Or at 188. Thus, the court avoided and did not discuss the generalreference argument.
The 2011 Legislature amended ORS 118.100 to provide that if no
federal estate tax return is required, a return must be filed and the tax
must be paid no later than nine months following the date of death of the
decedent. ORS 118.100(1).
14.1-3 Terminology
The following terminology applies to both the old inheritance tax
and the new estate tax, except where noted. In reviewing these
definitions, the reader should keep in mind that the old Oregon inheritance tax was tied to the federal estate tax as the federal statutes existed
on December 31, 2000, former ORS 118.007 (2009), while the new
Oregon estate tax is tied in as of December 31, 2010, ORS 118.007.
Thus, when relevant, the Oregon estate tax ties to provisions of the Tax
Relief, Unemployment Insurance Reauthorization, and Job Creation Act
of 2010 (Pub L No 111-312, 124 Stat 3296), which became effective on
December 17, 2010.
(1) Gross estatethe total value of all assets (worldwide), without any reduction for debts, expenses, or other deductions. The gross
estate is the same for both federal and Oregon purposes. ORS
118.005(6); former ORS 118.005(5) (2009); IRC 2031. The filing
thresholds for both federal and Oregon purposes are measured against the
gross estate to determine whether a return is required to be filed. ORS
118.160(1); former ORS 118.160(1) (2009).
(2) Filing thresholdthe value of the gross estate (above) for
which a return is required to be filed. The Oregon filing threshold has
been $1,000,000 since 2006. ORS 118.160(1)(c); former ORS
118.160(1)(b)(D) (2009). Because of the revenue implications, the
Oregon filing threshold is not scheduled to change. The federal filing
threshold for 2008 was a gross estate of $2,000,000. In 2009, the federal
filing threshold was a gross estate of $3,500,000. The federal tax was
14-9
2012 Revision
bifurcated in 2010, with estate representatives having a choice between a

$5,000,000 exemption or no federal estate tax. In 2011, the federal filing
threshold is $5,000,000 and in 2012, the federal filing threshold is
$5,120,000, with the exemption indexed in 2012. See IRC 6018, IRC
2010.
(3) Deductionsinclude debts, administration expenses, marital
bequests, charitable bequests, funeral expenses, and other items. Deductions are usually slightly different for Oregon and federal purposes. For
example, the Oregon estate tax is allowed as a deduction for federal
purposes (IRC 2058), but not for Oregon purposes. See ORS 118.010.
(4) Federal taxable estatethe gross estate minus deductions.
IRC 2051. The federal taxable estate is usually different than the
Oregon taxable estate. In general terms, the federal taxable estate is the
amount that is multiplied by the federal rate tables to calculate the federal
estate tax (the exception to that statement is when adjusted taxable gifts
have been made).
(5) Oregon taxable estatethe 2011 Legislature, for the first
time, specifically adopted the phrase Oregon taxable estate and defined it
as the federal taxable estate with the adjustments provided by ORS
118.010(3). ORS 118.005(7). These adjustments include adding back
any state death tax deduction under IRC 2058, adding back in Oregon
special marital property (OSMP) from a prior estate (unless already
included in the federal estate), and adding back in the value of marital
deduction property and qualified domestic trust (QDOT) property from a
prior estate, but subtracting the OSMP claimed in this estate, and other
exclusions and deductions. ORS 118.010.
(6) Adjusted taxable giftscumulative gifts made in excess of
the annual exclusion. IRC 2001(b), IRC 2503.
(7) Tentative taxthe federal estate tax before the application
of the unified credit.
(8) Adjusted taxable estatethe Oregon taxable estate reduced
by $60, 000. IRC 2011(b)(3). This is the amount on which the Table B
Oregon inheritance tax is calculated under pre-2012 Oregon law. This
amount does not include adjusted taxable gifts. The term adjusted taxable
14-10
2012 Revision
estate is no longer used in connection with the calculation of the federal

estate tax, and it is not used in connection with the new Oregon estate tax
law.
(9) State death tax creditthis federal credit has been fully
phased out for deaths occurring after 2004. IRC 2011(b)(2)(B). For
federal purposes, it has been replaced by a deduction. IRC 2058.
However, the old state death tax credit rate table is still used to calculate
the old Oregon inheritance tax. Former ORS 118.010(2) (2009). For
deaths before 2012, see Table B in the Instructions for Form IT-1,
Oregon Inheritance Tax Return.
14.2
OREGON ESTATE TAXFOR DEATHS OCCURRING

ON OR AFTER JANUARY 1, 2012
14.2-1 Calculating the Oregon Estate Tax

As discussed in 14.1-1, the 2011 Legislature made many changes
to estate tax law for deaths occurring on or after January 1, 2012. With
the repeal of the two-table tax calculations, Table A and Table B, the
computation of the Oregon estate tax will be simpler since only one tax
table is used. This section describes, step by step, the process to
determine the new Oregon estate tax.
(1) Step 1Determine the decedents gross estate. The first step
is to identify and value the decedents assets at the time of the decedents
death, including all property, real or personal, tangible or intangible,
wherever situated. IRC 2031(a). The total value of these assets
constitutes the decedents gross estate under IRC 2031 and ORS
118.005(6).
(2) Step 2Determine whether an Oregon estate tax return is
required. If the value of the decedents gross estate is less than
$1,000,000, then no Oregon estate tax return is required to be filed. ORS
118.160(1)(c).
However, because the decedents gross estate includes the value of
all of the decedents assets, wherever located in this world, a resident or
nonresident decedent whose estate includes assets located in Oregon
14-11
2012 Revision
worth substantially less than $1,000,000 will still be subject to the filing
requirement if the total value of the gross estate is over $1,000,000. Thus,
if a nonresident decedent has a deeded time-share interest in a beach
property at the Oregon coast worth $300,000 as well as other assets in
California worth $800,000, the decedent would have to file an Oregon
estate tax return because the decedents worldwide gross estate would be
valued at over $1,000,000.
If the value of the decedents gross estate is $1,000,000 or more,
an Oregon estate tax return is required, and it is due on the date the
federal estate tax is payable, but if no federal estate tax return is required,
the Oregon estate tax return is due nine months after the date of the
decedents death. ORS 118.100(1), 118.160(1)(c). Six-month and other
extensions to file the return are discussed in 14.4-2.
(3) Step 3Determine the federal taxable estate. If an Oregon
estate tax return is required, the next step is to determine the federal
taxable estate, which is defined in 14.1-3 and is specifically referenced
by the Oregon estate tax law. ORS 118.005(5). The federal taxable estate
is, generally, the gross estate minus the applicable deductions that are
claimed on a federal estate tax return. See IRC 20512058. If no
federal estate tax return is required, the representative of the estate must
still complete a federal estate tax return because the schedules from the
federal estate tax return must be attached to the Oregon estate tax return.
(4) Step 4Determine the Oregon taxable estate. After the
amount of the federal taxable estate is determined, the next step is to
determine the Oregon taxable estate. See 14.1-3, item (5). The Oregon
taxable estate is determined by making adjustments (i.e., additions and
deletions) to the federal taxable estate. ORS 118.010(3), 118.005(7).
Note that the Oregon taxable estate includes the value of the decedents
worldwide assets and worldwide deductions.
(5) Step 5Calculate the preliminary Oregon estate tax. Once
the Oregon taxable estate is determined, the preliminary Oregon estate
tax can be calculated. ORS 118.010(4). If the Oregon taxable estate is
less than $1,000,000, the Oregon estate tax is zero. If the Oregon taxable
estate is $1,000,000 or more, the tax rate begins at 10% for the first dollar
14-12
2012 Revision
over $1,000,000, and the tax rate incrementally increases from 10% to a
maximum of 16% for Oregon taxable-estate values over $9,500,000.
Assuming that a decedent died in 2012 with an Oregon taxable estate of
$4,500,000, the preliminary Oregon estate tax would be $367,500.
(6) Step 6Determine the actual Oregon estate tax. If the
decedent described in Step 5 was domiciled in Oregon at the time of his
or her death and did not own any real property or tangible personal
property located outside of Oregon, the Oregon estate tax would be
$367,500. If the decedent was domiciled in Oregon, but owned real
property or tangible personal property located outside of Oregon or had
intangible personal property subject to a death tax in another state or
country, then the preliminary Oregon estate tax would be subject to the
fractional adjustment discussed in 14.2-3. ORS 118.010(5). If the
decedent was not domiciled in Oregon at the time of his or her death, but
owned real property or tangible personal property located in Oregon, then
the preliminary Oregon estate tax would be subject to a fractional
adjustment discussed in 14.2-3.
The Oregon estate tax is due when the federal estate tax is payable,
or if no federal estate tax return is required, the Oregon estate tax is due
nine months after the date of the decedents death. ORS 118.100(1).
Requests for extensions to pay the tax are discussed in 14.4-2.
NOTE: For deaths occurring on or after January 1, 2012,
Oregon estate tax returns must be filed on Form OR706, Oregon
Estate Transfer Tax Return. For deaths occurring before that date,
the return must be filed on Form IT-1, Oregon Inheritance Tax
Return. These forms are available online at <www.oregon.gov/
dor/bus/Pages/forms-fiduciary.aspx#New_2012_Form_Information>.
14.2-2 Lifetime Gift Transfers
With the pre-2012 Oregon inheritance tax, the decedents lifetime
gifts in excess of the annual exclusion amounts (described as adjusted
taxable gifts) were taken into account in a complicated way. See former
ORS 118.010(2) (2009), discussed in 14.3-3. In contrast, the new
Oregon estate tax law ignores adjusted taxable gifts, because the defini14-13
2012 Revision
tions for gross estate and federal taxable estate do not include adjusted
taxable gifts. See ORS 118.005(5)(6); see also IRC 2001(b), IRC
2031.
This law presents a significant lifetime planning opportunity. An
elderly person with an estate of $4,900,000 (just below the 2012 federal
unified credit of $5,120,000, see IRC 2010) could make a 2012 gift
(deathbed or otherwise) of $4,000,000 to his or her children. The gift
would not be taxable for federal gift tax purposes because the gift would
be within the $5,120,000 federal lifetime gift exclusion. Although the gift
would be brought back into the federal estate as an adjusted taxable gift,
the total estate of the decedent would be below the federal estate tax
unified credit of $5,120,000. More importantly, the decedent would die
with a gross estate of $900,000, which is below the Oregon filing
threshold. ORS 118.160(1)(c). As a result, no federal estate tax or gift tax
would be due, and no Oregon estate tax would be due. The Oregon tax
savings would be $380,400 under the pre-2012 law, and $413,500 under
the new law.
In the above illustration, significant tax savings would be experienced even if the gift were not successful in reducing the Oregon estate
below the filing threshold. If the decedent in the above illustration had
given away only $3,000,000 in 2012, rather than $4,000,000, his or her
2012 Oregon taxable estate would be $1,900,000, rather than $900,000.
In this situation, the resulting Oregon estate tax would be $91,000. Had
the gift not been made, the resulting estate tax under the new law would
have been $413,500, for a tax savings of $322,500.
Taxpayers and their advisors must be careful, however, because
the Oregon estate tax savings from this sort of death-bed gift may be
offset by the loss of a stepped-up basis for income tax purposes. Lifetime
gifts generally do not receive a stepped-up income tax basis at death. In
contrast, most assets transferred at death that have appreciated during a
decedents lifetime do receive a stepped-up basis equal to the fair-market
value as of the date of death. IRC 1014. Consider, for example, a
$1,000,000 gift in 2012 by the elderly person described above. The
Oregon estate tax savings would be $112,000. If the assets given away
had an income tax adjusted basis of $100,000, the donee would receive
14-14
2012 Revision
the assets with that same low basis of $100,000. Later, when the donee
sells the gifted assets for $1,000,000, there would be a taxable income
gain of $900,000. Using a combined Oregon and federal income tax rate
of 24.5%, the combined income taxes would be $220,500, almost double
the Oregon estate tax savings.
14.2-3 Oregon Residents Versus Nonresidents
Oregon taxes resident decedents on all types of property (tangible
and intangible), wherever situated. The tax is calculated on the entire
Oregon taxable estate (wherever located), and then the tax is multiplied
by a fraction, the numerator of which is the sum of the value of the
decedents (1) real property located in Oregon, (2) tangible personal
property located in Oregon, and (3) intangible personal property
wherever located (but excluding intangible personal property subject to a
death tax in another state or country). The denominator is the total value
of the decedents entire gross estate. ORS 118.010(2)(a), (5).
Nonresident decedents are taxed based on the proportional value of
real property and tangible personal property located in Oregon as it
relates to the value of the entire estate. Thus, the tax is calculated on the
Oregon taxable estate (which includes Oregon assets and non-Oregon
assets, both tangible and intangible), and then the tax is multiplied by a
fraction, the numerator of which is the sum of the value of the Oregon
tangible personal property and the Oregon real property (but no
intangible property), and the denominator is the entire gross estate. ORS
118.010(2)(b), (6).
Unlike the pre-2012 Oregon inheritance tax, nonresidents are no
longer taxed on intangible property located in Oregon. ORS 118.010(6);
see former ORS 118.010(4)(a) (2009). This change greatly simplifies the
calculation of the tax. It also avoids two murky issues: (1) whether an
asset constitutes intangible personal property located in Oregon and
(2) whether a nonresidents home state taxes intangible personal property
of Oregon decedents.
In short, under the new Oregon statutory scheme, tangible property
(both real and personal) will be taxed only by the state in which it is
located. This is true for estates of both residents and nonresidents. Intan14-15
2012 Revision
gible personal property held by resident estates will be taxed regardless

of location. However, intangible personal property that is subject to a
death tax in another state or country is excluded from the numerator of
the fraction. ORS 118.010(5). Intangible personal property held by
nonresident estates will not be taxed if there is no other real or personal
property located in Oregon; however, if a nonresident estate holds real
property or tangible personal property in Oregon, any intangible personal
property will be excluded from the numerator of the fraction. ORS
118.010(2), (5)(6).
These statutes can produce some unexpected results. As noted in
14.2-1, the filing threshold of $1,000,000 is based on the value of the
decedents gross estate, regardless of where the assets included in the
gross estate are located. ORS 118.160(1)(c), 118.005(6). As a result, a
nonresident with a gross estate of $1,000,000 or more, but with a small
amount of Oregon tangible assets, will be required to file an Oregon
estate tax return, and will be required to pay Oregon estate taxes if the
taxable estate exceeds $1,000,000, even if the state of residence imposes
no estate or inheritance tax.
For example, if an Oregon resident moves to California (which has
no estate or inheritance tax), but leaves behind in Oregon either real
property or tangible personal property, the persons estate will be subject
to the Oregon estate tax if the taxable estate (wherever located) exceeds
$1,000,000. The same result will take place if the person never lived in
Oregon, but happens to own real property or tangible personal property in
Oregon. Because of the fractional method of calculating the tax, even a
small amount of tangible property located in Oregon will trigger a tax.
If all of a nonresidents property located in Oregon passes to a
surviving spouse or to a charity, the Oregon estate tax on nonresidents is
not necessarily eliminated. Marital deductions and charitable deductions,
like all other deductions, reduce the taxable estate, not the gross estate,
and the fractional formula uses the value of the decedents gross estate as
its denominator and the value of the decedents gross estate located in
Oregon as its numerator. ORS 118.010(3)(b), (6). The fact that some or
all of the numerator passes to a spouse or a charity does not affect the
fraction or the resulting percentage. Marital deductions and charitable
14-16
2012 Revision
deductions will reduce the overall Oregon tax, but they will not reduce
the percentage of the tax payable to Oregon, nor will they reduce the
assets (the gross estate) to be measured against the filing threshold. As a
result, the amount of tax payable to Oregon will remain the same
regardless of whether Oregon assets or foreign assets pass to the spouse
or to charity (assuming that the value passing to the spouse or to charity
remains the same).
As a further example, if the surviving spouse was an Oregon
resident when the first spouse died, but then moved to California (which
has no estate or inheritance tax), but is the beneficiary of a state-qualified
terminable interest property (QTIP) trust or an Oregon special marital
property (OSMP) trust that holds either real property or tangible personal
property located in Oregon, the surviving spouses estate will be subject
to the Oregon estate tax if the taxable estate (wherever located) exceeds
$1,000, 000. ORS 118.010(3)(b), (6).
The same result occurs if the Oregon property is subject to an
encumbrance. The encumbrance reduces the taxable estate, but it does
not reduce the amount of the gross estate in Oregon, nor does it reduce
the gross estate located elsewhere. Thus, it is possible for a nonresident
decedent to owe an Oregon estate tax even when the net value of the
assets located in Oregon is negative due to an encumbrance on them.
Equally puzzling is the fact that the legislature drafted the statute
in a manner that reflects a determination by the legislature that personal
property of a nonresident decedent can have a situs in Oregon. Yet the
Oregon Court of Appeals has held in a probate case that the personal
property of a nonresident decedent has the same situs as the decedents
domicile. West v. White, 92 Or App 401, 403404, 758 P2d 424, affd,
307 Or 296 (1988). Although the West case dealt with an intangible (a
promissory note), the holding is not limited to intangible personal
property.
The lawyer should keep in mind, however, that no Oregon estate
tax return will be due (and no tax will be due) if the worldwide gross
estate of the decedent is less than the filing threshold of $1,000,000. ORS
118.160(1)(c).
14-17
2012 Revision
The bottom line is that nonresident clients with even a small

amount of tangible assets located in Oregon should review their situation
to determine whether steps should be taken to minimize or eliminate the
Oregon estate tax. These steps might include disposing of Oregon assets
or moving the Oregon assets to another state, such as the state of the
clients residence, depending on the estate tax laws or inheritance tax
laws of the state of residence. A nonresident might also consider placing
tangible property located in Oregon into an entity created in another state,
such as a limited liability company. Even Oregon residents can reduce
their Oregon estate tax by holding tangible assets in other states, but the
amount of the overall tax savings will depend on the estate tax laws of
those other states.
Nonresident surviving spouses who are beneficiaries of a state
QTIP trust or an OSMP trust present an interesting challenge. If the
surviving spouse moves to another state (such as California), and the
state QTIP trust or OSMP trust then liquidates all of the Oregon property
held in trust, what part, if any, of the surviving spouses estate is
reportable in Oregon? Even though the trust holds no Oregon property at
the time of the surviving spouses death, ORS 118.010(3)(a)(B) requires
that the value of property for which a deduction for OSMP was
previously allowed or for which a state QTIP election was previously
allowed be included in the Oregon taxable estate. When the surviving
spouse dies, it was unclear whether the entire value of property held in a
state QTIP or OSMP trust is treated as Oregon property because it was
claimed as a deduction in the first deceased spouses estate. But a number
of lawyers believe that the estate of a nonresident decedent is taxable in
Oregon only to the extent that the estate holds real property or tangible
personal property located in Oregon; thus, no tax would be due. ORS
118.010(2)(b).
Recently, the Oregon Department of Revenue adopted an
administrative rule in response to this issue. OAR 150-118.010(8)(4)
(effective for estates of decedents who die on or after January 1, 2012)
specifies as follows:
The amount to be included in the estate on the death of a
surviving spouse is limited to trust property that is subject to Oregon
14-18
2012 Revision

estate tax. If a QTIP or OSMP election was taken when the first spouse
dies, the property that is required to be included in the estate of the
surviving spouse is dependent upon the residency status of the
surviving spouse. If a resident decedent, the gross estate of a surviving
spouse must include the value of any property included in the QTIP or
OSMP election. If a nonresident decedent, the gross estate of a
surviving spouse must include the value of any property included in
the QTIP or OSMP election to the extent that the property consists of
real property located in Oregon or tangible personal property located
in Oregon.
Example 2 of this rule clarifies that if the surviving spouse is not a

resident at the time of his or her death, [t]he Oregon estate must include
the value of any real property located in Oregon and any tangible
personal property located in Oregon remaining in the trust; intangible
property is excluded from the estate. OAR 150.118.010(8), Example 2.
Thus, if the surviving spouse is no longer a resident of Oregon at
the time of his or her death and has liquidated all of the Oregon property,
no Oregon estate tax would be due. If the surviving spouse liquidated
some but not all of the Oregon property prior to death, then only the
Oregon real property and Oregon tangible personal property held by the
trust would be subject to Oregon estate tax.
14.2-4 Effective Date of the New Estate Tax Law
Technically, the effective date for HB 2541 (2011 Or Laws ch 526)
is September 29, 2011. See 2011 Or Laws ch 526, 31. However, except
for the amendments to ORS 105.645 (regarding tax-qualified
disclaimers) all provisions of HB 2541 apply to estates of decedents who
die on or after January 1, 2012. See 2011 Or Laws ch 526, 30. The 2011
amendments to ORS 105.645 apply to estates of decedents who die on or
after January 1, 2010. See 2011 Or Laws ch 526, 30(2). When HB 2541
was introduced in the House Revenue Committee, the Oregon Law
Commission (OLC) prepared a comprehensive Work Group Report,
which can be found at <www.willamette.edu/wucl/olc/groups/20072009/pdf/Inher.%20Tax%20Report%20Approved%20on%20Letterhead
%203.28.11.pdf>. Note that the OLC report does not discuss the amendments that were made by the senate.
14-19
2012 Revision
14.2-5 Portability Election

QUERY: Can the estate of the first spouse to die during 2011
or 2012 make a portability election under Oregon law to pass the
unused portion of the deceased spouses $1,000,000 Oregon
exclusion amount to the surviving spouse? No. However, if both
spouses die during 2012,an argument can be made that the estate of
the first spouse can make a portability election to include the
deceased spousal unused exclusion amount under IRC 2010(c)
to reduce the Oregon taxable estate of the surviving spouse. The
resolution of such an election will likely have to be litigated in the
Oregon courts.
The Oregon Department of Revenue (DOR) has not issued any
published determination regarding the applicability of the federal
portability election as it applies to Oregon law. However, in a recent
e-mail a DOR representative issued the following response:
The department understands that any other applicable exclusions or
deductions as used in ORS 118.010(3)((b)(B) could possibly be
challenged by an estate to include the federal portability provision of
IRC 2010(c)(2), (3), (4) and (5) based on the plain language of the
statute. However program believes the legislature clearly did not
intend to tie to the federal portability provision because without a
statutory provision that identifies a basis exclusion amount for Oregon
purposes, Oregon would tie to the federal basic exclusion amount
identified in IRC 2010(c)(3) which is $5 million. A tie to the federal
provision would obviously not be revenue neutral which was a goal of
the legislature as evidenced by LROs Revenue Impact Statement
dated June 9, 2011 that shows the expected revenue impact for the
legislation to be near zero.
Program believes there would need to be a legislative change in
order for Oregon to adopt a portability provision. Thanks for bringing
the question to the departments attention and thanks in advance for
communicating the departments position on this issue to practitioners.
If the federal estate tax law is amended to extend the federal

portability provisions beyond 2012, then it may make sense for the
Oregon legislature to consider whether the Oregon estate tax law should
be amended to include express portability provisions, so that a surviving
14-20
2012 Revision
spouse can use the deceased spouses unused Oregon exemption. Until
then, the DOR will likely not recognize any election for a surviving
spouse to use the deceased spouses unused Oregon exemption.
14.2-6 Natural Resource Credit Under the New Law
14.2-6(a) Background
In 2007, the Oregon legislature enacted ORS 118.140 to provide
state tax relief to owners of natural resource property. The statute
granted a $7,500,000 Oregon inheritance tax exemption for natural
resource property that is transferred to a family member. See former ORS
118.140(2). This legislation was drafted late in the session, and a number
of questions arose. Some of these questions were resolved in the 2008
special legislative session when the $7,500,000 exemption was changed
to a credit. Also, the 2008 Legislature added the concept of working
capital as part of the natural resource property that is eligible for the
natural resource credit, but did not define working capital. See former
ORS 118.140(2)(a)(D) (2009).
In 2008, the Oregon Department of Revenue adopted an
administrative rule defining working capital as current assets less
current liabilities. See OAR 150-118.140(4)(i). This definition did not
easily mesh with the working-capital practices used by owners of natural
resource property because, in many cases, working-capital balances had
to be sufficient to carry a natural resource business for several years
through good times and bad times before the business operation started
producing sufficient revenue to cover expenses.
Legislators tried unsuccessfully to resolve this issue during the
2009 legislative session by introducing HB 3305. The bill died in the
House Revenue Committee. Then Representative Vicki Berger, the
Legislative Revenue Office, and several other legislators, including the
chairs and other members of the House and Senate Revenue Committees,
requested that the Oregon Law Commission conduct a law-reform project
regarding Oregons inheritance tax laws. The request included a review
of the natural resource credit. A workgroup was formed in 2009. After
several months of deliberations, HB 2541 was presented to the House
Revenue Committee during the 2011 legislative session. After being
14-21
2012 Revision
amended by both houses, it became law on June 28, 2011. 2011 Or Laws
ch 526. The term working capital was replaced with the term operating
allowance, as defined in ORS 118.140(1)(j). See 14.2-6(b)(2).
14.2-6(b) Natural Resource Property: Requirements and
Definitions
14.2-6(b)(1) Natural Resource Property
Under the pre-2012 law, one had to review approximately six
different statutes to determine whether the nature and use of the property
would qualify as natural resource property. See former ORS
118.140(1) (2009). Instead, the definitions under the new law are more
self-contained within the statute. First there is the property criteria and
then there is the use criteria. The natural resource property definition
includes a broad spectrum of real property and personal property,
including intangible personal property. Generally, any property
reasonably and customarily used in the natural resource businesses
described in the statute will qualify as natural resource property. ORS
118.140(1)(i).
The second part of the definitional criteria concerns how the
property is actually being used. The natural resource property must be
used in a farm business (ORS 118.140(1)(c)), a fishing business
(ORS 118.140(1)(e)), or a forestry business (ORS 118.140(1)(g)),
together referred to as a natural resource business. The definition of
farm use includes the production of biofuel. ORS 118.140(1)(d); see ORS
308A.056(3)(f), (l).
14.2-6(b)(2) Operating Allowance
Because of the practical difficulties with its definition, the term
working capital in former ORS 118.140 (2009) was replaced with the
term operating allowance. See 14.2-6(a). Operating allowance means
cash or a cash equivalent that is spent, maintained, used or available for
the operation of a farm business, forestry business or fishing business and
not spent or used for any other purpose. ORS 118.140(1)(j).
The operating allowance may be claimed as natural resource
property, but the claimed amount may not exceed the lesser of
14-22
2012 Revision
$1,000,000 or 15% of the claimed natural resource property (excluding

the operating allowance itself). ORS 118.140(1)(i)(I), 118.140(2)(a). The
term operating allowance more closely matches the operating life cycle
of natural resource businesses than the term working capital under prior
law (see 14.2-6(a)); cash may accumulate after crop, forest, or livestock
sales, or as savings to buy equipment or other property, only to be
disbursed during the crop-production process.
14.2-6(b)(3) Use and Transfer Requirements
To qualify for the credit under ORS 118.140, the natural resource
property must be transferred to a family member (as defined in IRC
2032A) of the decedent. ORS 118.140(1)(b). There are two time-period
requirements with respect to family use that must be satisfied in order to
fully utilize the natural resource credit.
First, for five out of eight years ending on the date of the
decedents death, the decedent or a family member must have operated
the natural resource business and used the natural resource property in
that business. ORS 118.140(3)(c)(d), (5)(6).
Second, for five out of eight years following the decedents death,
a family member or an entity operated by a family member must operate
the family business and use the natural resource property in the family
business. ORS 118.140(9)(a). See 14.2-6(d)(1) for the tax consequences
of disposing of natural resource property prematurely.
Natural resource property that is leased to or from a family
member, or property that is held in trust for a family member who is a
qualified beneficiary (as defined by ORS 130.010, ORS 118.140(1)(k)),
continues to qualify as natural resource property. ORS 118.140(4)(a)(b).
Natural resource property owned in a limited liability company,
corporation, partnership, or trust in which at least one family member
materially participates also continues to qualify. ORS 118.140(8).
14.2-6(b)(4) Adjusted Gross Estate
The term adjusted gross estate was added to ORS 118.140 as a
defined term, since there are three natural-resource computational
requirements that are based on the value of the adjusted gross estate.
14-23
2012 Revision
Adjusted gross estate means the value of the gross estate reduced by the
deductions under IRC 2053 (expenses, indebtedness, and taxes) and
IRC 2054 (uninsured losses during the settlement of the estate). ORS
118.140(1)(a).
The adjusted gross estate is used to determine (1) the natural
resource credit, which is computed as described in ORS 118.140(2)(b);
(2) the maximum value of the adjusted gross estate that is eligible to
claim the credit, ORS 118.140(3)(a); and (3) the satisfaction of the
requirement that the natural resource property in the estate must meet the
50% requirement, ORS 118.140(3)(b). The amount of natural resource
property claimed cannot exceed $7,500,000. ORS 118.140(2)(b). In order
to claim the credit, the total adjusted gross estate cannot exceed
$15,000,000, and the total value of natural resource property in the estate
must equal at least 50% of the total adjusted gross estate. ORS
118.140(3).
14.2-6(c) Calculating the Natural Resource Credit
Under prior law, the natural resource credit was computed
according to a table set forth in former ORS 118.140(2)(c) (2009). See
14.3-5. Under current law, the credit is calculated as a fraction of the
Oregon estate tax. ORS 118.140(2)(b). The amount allowed as a natural
resource credit is determined as follows:
(1)
First, determine the Oregon estate tax.
(2) Second, determine the value of the natural resource property

that is claimed under ORS 118.140(2)(b). The value of natural resource
property can exceed $7,500,000, but the value claimed on Schedule NRC
of the estate tax return cannot exceed $7,500,000. Also, the executor may
claim less than the full amount of the credit, and may apply the credit
value to specific assets. ORS 118.140(2)(b)(c).
(3) Third, determine the adjusted gross estate and then determine the ratio of the claimed natural resource property; the numerator of
the ratio is the amount of natural resource property claimed (not to
exceed $7,500,000), and the denominator is the total adjusted gross
estate. ORS 118.140(2)(b).
14-24
2012 Revision
(4) Finally, determine the natural resource credit by multiplying

the ratio by the Oregon estate tax. ORS 118.140(2)(b).
14.2-6(d) Transferring or Replacing Natural Resource Property
Generally, personal property (tangible or intangible) that constitutes natural resource property can be replaced with other tangible or
intangible personal property and still qualify for the natural resource
credit if it continues to be used in the natural resource business. ORS
118.140(4)(c), (9)(d); see ORS 118.140(1)(i)(I).
If real property that is claimed to be natural resource property is
transferred after the decedents death but before the estate tax return is
filed, it must be replaced with real property that qualifies as natural
resource property, and it will continue to be eligible for the credit. ORS
118.140(4)(c). The replacement must occur within one year in order to
continue to qualify for the credit, unless the replacement property is
acquired within two years as a result of an involuntary conversion
pursuant to IRC 1033. The replacement property must continue to be
used in a natural resource business. ORS 118.140(9)(d).
If, before the decedents death, real property that constitutes
natural resource property is replaced with qualifying real property
pursuant to an IRC 1031 exchange or an IRC 1033 conversion, the
holding period for the previously owned property may be included for
purposes of satisfying the requirement that the property be operated as
natural resource property for five out of the eight years ending on the
date of the decedents death. ORS 118.140(7).
14.2-6(d)(1) Disposition Tax and Other Taxable Transfers
If natural resource property is sold or is no longer used in a natural
resource business before the property is used for five out of the eight
calendar years after the decedents death, a disposition occurs and an
additional tax is due. ORS 118.140(9)(a). The additional tax is prorated
to reflect a reduced tax applicable to the portion of the five-year period
remaining unused, and the additional tax is due within six months after
the date of disposition or cessation of use. ORS 118.140(9)(e). Also, the
use of cash or other natural resource assets to pay federal estate taxes or
14-25
2012 Revision
state inheritance or estate taxes constitutes a disposition. ORS

118.140(9)(b).
14.2-6(d)(2) Annual Reporting Requirement
The transferees of natural resource property for which a credit has
been claimed under ORS 118.140 must file annual reports with the
Oregon Department of Revenue (DOR) to maintain eligibility for the
credit. The report must track each asset for which the credit is claimed
and must indicate the status of each asset, that is, whether the asset (1) is
still used in the natural resource business, (2) has been replaced with
other natural resource property that is being used in the natural resource
business, or (3) has been subject to a taxable disposition. ORS
118.140(10). The annual reporting requirement ceases when the
transferee has used the property to operate a natural resource business for
the requisite five-year period. ORS 118.140(9)(a), (10).
The annual report form (titled Annual Certification for Natural
Resource Credit Property or Commercial Fishing Business Credit
Property) is available at the DORs Web site, <www.oregon.gov/
dor/forms/business/annual-certification_104-008.pdf>.
14.2-6(d)(3) Natural Resource Tax Forms
The natural resource credit under ORS 118.140 is claimed by filing
Schedule NRC with the Oregon estate tax return, Form OR706. See
<www.oregon.gov/dor/forms/business/schedule-nrc_104-003.pdf>. Any
dispositions before the expiration of five out of eight years of qualified
use following the death of the decedent are subject to tax, which is
reported on Form OR706A.
PRACTICE TIP: Form OR706 and Schedule NRC are online
at <www.oregon.gov/dor/bus/Pages/forms-fiduciary.aspx#New_
2012_Form_Information>.
14.3
THE PRE-2012 OREGON INHERITANCE TAX
14.3-1 Introduction
Sections 14.3-2 to 14.3-5 discuss the Oregon inheritance tax for
estates of decedents who died before January 1, 2012. The four steps
14-26
2012 Revision
summarized belowand discussed in more detail in 14.3-3 do not

appear in the Oregon inheritance tax statutes, but these steps must be
followed in order to calculate the Oregon tax:
(1) Determine the decedents gross estate. If the value of the
decedents gross estate is less than $1,000,000, no return is due. See ORS
118.160(1)(b)(D).
(2) If a return is due, calculate the Oregon inheritance tax on the
adjusted taxable estate using Table B in the Instructions for Oregon Form
IT-1. This rate table reflects the rate of tax for the state death tax credit
under federal law. Do not apply a unified credit. This step produces a tax
even if the adjusted taxable estate is as small as $40,000.
PRACTICE TIP: Form IT-1 is online at <www.oregon.gov/
dor/bus/Pages/forms-fiduciary.aspx#New_2012_Form_Information>.
(3) Calculate the federal estate tax (using federal law in effect in
2000) on the federal taxable estate (defined by federal law in effect in
2000) using Table A in the Instructions for Form IT-1. For purposes of
this calculation, include adjusted taxable gifts in the amount on which the
tax is calculated. After the tax has been calculated using Table A, reduce
the tax by a unified credit of $345,800 (unified credit equivalent of
$1,000,000).The result of this step can be called the federal cap.
(4)
Pay the lesser of the two amounts shown in steps 2 and 3.
The number $1,093,784 is a magic number in the calculation of the

Oregon inheritance tax. As noted above, estates pay Oregon inheritance
tax in an amount equal to the lesser of the Oregon inheritance tax or the
federal cap. Taxable estates below $1,093,784 pay an amount equal to the
federal cap, while taxable estates above this amount pay a tax equal to the
Oregon inheritance tax (the state death tax credit). As a result, taxable
estates between $1,000,000 and $1,093,784 pay an Oregon inheritance
tax at a marginal rate of 41%, because the federal cap (and its federal
estate tax rate table) is the limiting factor on the Oregon inheritance tax.
Above $1,093,784, the marginal rate drops to 6.4% because the state
death tax credit rate table is the limiting factor. That rate eventually
climbs to 16% for very large estates. The significance of the number
14-27
2012 Revision
$1,093,784 is also discussed in 14.3-3, in the discussion of the impact of

adjusted taxable gifts.
Although former ORS 118.220 (2009) and OAR 150-118.100(1)
provide that the Oregon inheritance tax is due and payable on the date
that the federal estate tax is due, these provisions should not be
interpreted as excusing the filing of an Oregon return (or the paying of
the Oregon tax) for estates that owe no federal estate tax under federal
law applicable on the date of death. Because former ORS 118.007 (2009)
provides that Oregon is frozen to the federal estate tax as of December
31, 2000, former ORS 118.220 (2009) and OAR 150-118.100(1) should
be interpreted based on whether a federal estate tax would have been due
under federal law on December 31, 2000. Force v. Dept of Revenue, 350
Or 179, 252 P3d 306 (2011). OAR 150-118.260(1)-(A) and OAR 150118.100(1) confirm that the Oregon return is due nine months after the
date of the decedents death. (In early 2011, the Oregon Department of
Revenue announced that the automatic extension of time to file for 2010
deaths provided for in the federal Tax Relief, Unemployment Insurance,
and Job Creation Act of 2010, Pub L No 111-312, 124 Stat 3296, does
not apply to Oregon returns.)
14.3-2 Lifetime Gift Transfers
For estates of decedents who died before January 1, 2012, adjusted
taxable gifts are not taxed in the calculation of the Oregon inheritance
tax, but they are taxed in the calculation of the federal cap.
Adjusted taxable gifts are the cumulative amounts of gifts of the
decedent that did not qualify for the annual exclusion, combined with the
cumulative amounts by which qualifying gifts exceeded the annual
exclusion. IRC 2001(b), IRC 2503. To determine the impact of
adjusted taxable gifts on the Oregon inheritance tax, the lawyer must
carefully analyze how the adjusted taxable gifts fit into the four-step
process of calculating the Oregon inheritance tax (discussed in 14.3-3).
NOTE: IRC 2035(a), which purports to bring back into the
federal gross estate certain gifts made within three years of death,
is usually not applicable to most pre-death transfers, except for the
transfer of an existing life insurance policy to an irrevocable life
14-28
2012 Revision
insurance trust or a transfer of such property (or an interest therein)

that would have been included in the decedents gross estate under
IRC 2036 (transfers with retained life estates), IRC 2037 (transfers with reversionary interest), IRC 2038 (revocable transfers),
or IRC 2042 (proceeds of life insurance) if such transferred
interest or relinquished power had been retained by the decedent
on the date of his death. IRC 2035(a). The 1976 federal change
that abandoned the contemplation-of-death rule and enacted a
three-year rule was largely abandoned in 1981, and IRC 2035(a)
now has very limited application. Section 2035(b) brings back into
the gross estate any gift taxes paid within three years of the
decedents death, but relatively few decedents have paid gift taxes.
14.3-3 Calculating the Oregon Inheritance Tax
For decedents who died before January 1, 2012, the lawyer must
follow the four steps discussed in this section to calculate the Oregon
inheritance tax.
NOTE: Before working through the four steps, the lawyer
should become familiar with the terms gross estate and adjusted
taxable estate. Oregon adopted the federal definition of gross
estate, so the gross estate will be the same for both federal and
Oregon purposes. Former ORS 118.005(5) (2009); IRC 2031.
The gross estate does not include adjusted taxable gifts. The
adjusted taxable estate is equal to the taxable estate minus
$60,000. IRC 2011(b)(3). None of the gross estate, the taxable
estate, or the adjusted taxable estate includes adjusted taxable gifts.
IRC 2001(b).
For simplicity of illustration, the steps discussed below assume a
2009 death of an unmarried woman with no deductions of any kind (no
marital bequests, charitable bequests, claims, or administration
expenses). Annual exclusions are ignored for purposes of this scenario.
(1) Step 1Determine the filing threshold. The first step in
calculating the Oregon inheritance tax is to determine whether the estate
exceeds the Oregon filing threshold. The filing threshold is determined
by the value of the gross estate. If the gross estate equals or exceeds
14-29
2012 Revision
$1,000,000, then an Oregon return is due, and the second, third, and
fourth steps must then be analyzed. If the gross estate is less than
$1,000,000, the filing threshold is not met, no return is due, and the other
steps need not be examined. If no return is due, then no tax is due.
Former ORS 118.160(1)(b)(D) (2009).
If a client dies with a gross estate of $1,100,000, an Oregon return
is due, and the other steps (described below) will result in a tax. But if the
client makes a gift of $150,000 immediately before her death, her gross
estate will be $950,000, because the gross estate does not include
adjusted taxable gifts. As a result, no return will be due, and no tax will
be due. In both cases, her children will receive the entire estate. In the
first example, the estate will pay an Oregon inheritance tax of $38,800,
but in the second example the estate will pass 100% tax free. See
Instructions for Oregon Form IT-1. Yet in both examples, the client
started out with the same assets. By making a $150,000 gift, the client
saved her family $38,800. (A decision whether to make such gifts should
also take into account that lifetime gifts generally do not receive a
stepped-up basis at death, while assets transferred at death do receive a
stepped-up basis. IRC 1014.)
PRACTICE TIP: Oregon Form IT-1 is online
<www.oregon.gov/dor/bus/Pages/forms-fiduciary.aspx#New_
at
(2) Step 2Calculate the Oregon inheritance tax. If a return is

due, the second step is to calculate the Oregon inheritance tax. The
Oregon inheritance tax is based on the amount of the adjusted taxable
estate. The adjusted taxable estate is equal to the taxable estate minus
$60,000. IRC 2011(b)(3). The adjusted taxable estate does not include
taxable gifts. The amount of the Oregon tax is based on a rate table that is
identical to the old federal table for the state death tax credit. Former
ORS 118.010(2) (2009). The table appears as Table B in the instructions
for Oregon Form IT-1. The table does not use a unified credit. Instead, it
generates a tax as soon as the adjusted taxable estate exceeds $40,000. In
our example, if the gift had not been made, the estate of $1,100,000
would generate an Oregon inheritance tax of $38,800. But this amount is
14-30
2012 Revision
not necessarily the amount that the estate must pay. Instead, the lawyer
must continue on to Step 3.
(3) Step 3Calculate the federal cap. The third step is to
calculate what is called the federal cap. This is the federal estate tax that
the estate would have paid (in our example) for a 2009 death based on the
federal law applicable to a 2009 death as that law existed in 2000. At that
time, the federal unified credit equivalent was scheduled to be
$1,000,000 for a 2009 death. Unlike the calculation of the Oregon
inheritance tax, the calculation of the federal estate tax (and thus the
federal cap) requires that any adjusted taxable gifts be added back in
before the estate tax is calculated. IRC 2001(b). For a $1,100,000 estate,
the federal cap would be calculated on $1,100,000, regardless of whether
or not the decedent had made the deathbed gift of $150,000.
The federal cap is calculated using the federal estate tax rate table
that appears as Table A in the instructions for Oregon Form IT-1. After
the tax is calculated, the unified credit of $345,800 (which is the tax
equivalent of assets worth $1,000,000) is applied. The result is the federal
cap. In the scenario described in this section, the resulting federal cap
would be $41,000.
(4) Step 4Determine the amount of tax to pay. The amount of
the Oregon inheritance tax is the lesser of the results of Step 2 and Step 3,
because former ORS 118.010(2) (2009) imposes a tax equal to the
maximum allowable state death tax credit available for the year of death
based on 2000 federal law. However, an estate can receive a credit only
against the tax it actually owes. The credit cannot exceed the tax. As a
result, if the 2000 federal tax was less than the amount calculated by the
state death tax credit table, then this lower amount of the tax limits the
availability of the credit. The federal tax caps the credit. For a
$1,100,000 estate with no gift, the lesser of the two steps is $38,800. If
the $150,000 gift had been made, the tax would have been zero, because
no return would have been due.
After completing the four-step analysis, the lawyer can determine
whether the Oregon inheritance tax applies to adjusted taxable gifts. This
determination takes three forms:
14-31
2012 Revision
(1) If the decedent used adjusted taxable gifts to reduce her

gross estate below the Oregon filing threshold, then the adjusted taxable
gifts (and the rest of her estate) completely avoid the Oregon inheritance
tax. Former ORS 118.160(1)(b)(D) (2009).
(2) If her gross estate (after the gifts) is above the Oregon filing
threshold, then a return will be due. Her adjusted taxable gifts will not be
taken into account in calculating the Oregon inheritance tax (Step 2), but
the gifts will be taken into account in the calculation of the federal cap
(Step 3). In most cases, making adjusted taxable gifts will (with one
minor exception) reduce the Oregon inheritance tax by the amount of the
marginal rate of the state death tax credit applied to the adjusted taxable
estate. For example, the tax savings resulting from a $10,000 taxable gift
from a $1,100,000 estate would be $560, or 5.6% of the gift. If the estate
were $3,000,000, the tax savings would be $880, or 8.8% of the gift.
(3) There is one minor exception. If the Oregon inheritance tax
is greater than the federal cap (Table A), then the federal cap will be the
determining factor because it is the lesser of the two. In this situation,
making adjusted taxable gifts will not reduce the tax due because the
federal cap includes a tax on the gifts. This exception occurs only if the
taxable estate (before the gifts) is less than $1,093,784. Below this
amount, the Oregon inheritance tax is greater than the federal cap, and
the gifts will be taxed. But even this minor exception has an exception. If
the taxable estate (before the gifts) is only slightly below $1,093,784, and
the gifts are large enough to bring the Oregon inheritance tax below the
federal cap, then tax savings can still be obtained.
Although the Oregon inheritance tax does not generally apply to
adjusted taxable gifts, adjusted taxable gifts may still be important in
determining the Oregon inheritance tax. For example, the presence of
adjusted taxable gifts can significantly reduce the amount that can be
placed in a credit shelter trust, even though no federal tax is due. Consider the following example: The decedent makes adjusted taxable gifts
in the amount of $800,000, then dies in 2011 leaving a gross estate of
$3,000,000, a surviving spouse, and a typical tax-planning will that calls
for the creation of two trustsa credit shelter trust and a marital trustto
be funded with the entire $3,000,000 gross estate. Both trusts are drafted
14-32
2012 Revision
so that they are eligible for an election for qualified terminable interest
property (QTIP), either federal or Oregon. See IRC 2056(b)(7)); former
ORS 118.010(7) (2009). The gross estate is well below the federal
$5,000,000 unified credit, even if adjusted taxable gifts are included, so
no federal return or federal tax is due. Moreover, no Oregon inheritance
tax will be due, as a result of the marital deduction. But how much of a
marital deduction is needed to reduce the Oregon inheritance tax to zero?
And how large may the Oregon-exempt credit shelter trust be, assuming
that the goal is to maximize the size of the Oregon-exempt trust in order
to minimize the tax due on the second death? The answers to these
questions are surprising: The estate will need to claim a $2,800,000
marital deduction by making an Oregon QTIP election on $2,800,000 of
the trusts, and the Oregon-exempt trust will be limited to only $200,000.
This result is caused by several factors. First, the calculation of the
Oregon inheritance tax (Step 2) does not employ a unified credit or an
exemption; it triggers Oregon tax at only $40,000. Second, the
calculation of the federal cap (Step 3) takes into account the adjusted
taxable gifts, which effectively means that the adjusted taxable gifts end
up consuming some of the federal unified credit that was available under
2000 law. In the scenario described in this paragraph, in order to reduce
the Oregon inheritance tax to zero, either Step 2 or Step 3 needs to be
reduced to zero, because the amount to be paid is the lesser of those two
steps. To reduce Step 2 to zero, the marital deduction would have to be
$2,900,000 (the other $100,000 would be protected by the $40,000
Oregon exemption and by the $60,000 difference between the taxable
estate and the adjusted taxable estate). To reduce Step 3 to zero, the
marital deduction would have to be $2,800,000 in order to shelter
$2,000,000 of the trusts and the $800,000 of adjusted taxable gifts,
leaving $1,000,000 to be protected by the $1,000,000 unified credit
available in 2011 under federal law in effect in 2000, since Step 3 is
based on 2000 law. As a result, a marital deduction of $2,800,000 will
need to be claimed (by making an Oregon QTIP election), and the size of
the Oregon-exempt trust will be limited to only $200,000. (Of course, a
different result might be desirable if the lawyer decides to pay some tax
in the first estate in order to reduce the tax payable in the second estate.)
14-33
2012 Revision
If the lawyer plans to use the alternate valuation date election to

eliminate an Oregon inheritance tax that would otherwise be due, and the
client has made adjusted taxable gifts, the reduction in value attributable
to the alternate valuation election must be large enough to reduce the
federal cap to zero. In other words, the taxable estate plus the adjusted
taxable gifts (the federal tax computation base) must be reduced to a
point below $1,000,000 in order to reduce the federal cap to zero. Simply
reducing the Oregon gross estate to a point below $1,000,000 is not
sufficient. This is because the estate will pay the lesser of the federal cap
(Step 3) or the Oregon inheritance tax, which is based on the state death
tax credit table (Step 2). The state death tax credit table does not employ
a unified credit. Instead, the tax is imposed on all amounts over $40,000.
Unless the federal cap is zero, the estate will pay some Oregon tax.
Because an Oregon return must be filed to make an Oregon alternate
valuation date election, using the alternate valuation date to reduce the
gross estate below $1,000,000 does not avoid the filing requirement. IRC
2032(d); OAR 150-118.010(7)(1).
The lawyer should calculate some illustrations to determine the
amount of tax savings that might be obtained by making various taxable
gifts. It all depends on the size of the estate and the size of the gifts. As a
general rule, the client will save the most money if the gifts reduce the
gross estate to a point below the $1,000,000 Oregon filing threshold, but
lesser tax savings are available even if the resulting gross estate is still
above the filing threshold. Also, the lawyer should keep in mind that the
tax savings described above are understated, because they do not take
into account the annual exclusion.
14.3-4 Oregon Residents Versus Nonresidents Under Prior Law
For estates of decedents who died before January 1, 2012, Oregon
taxes resident decedents on (1) tangible personal property located in
Oregon, (2) real property located in Oregon, and (3) all intangible
property regardless of situs. Former ORS 118.010(3) (2009). But the tax
is calculated on the entire taxable estate (wherever located), and then the
tax is multiplied by a fraction, the numerator of which is the sum of the
three classifications described above, and the denominator is the entire
gross estate. Former ORS 118.010(3) (2009).
14-34
2012 Revision
Nonresident decedents are taxed on property located in Oregon,

including tangible personal property and real property. Nonresidents are
also taxed on intangibles located in Oregon, unless the state of domicile
grants reciprocity (an exemption for intangibles owned by nonresident
decedents). But the tax is calculated on the entire taxable estate
(wherever located), and then the tax is multiplied by a fraction, the
numerator of which is the value of the assets subject to tax in Oregon,
and the denominator is the entire gross estate. Former ORS 118.010(4)
(2009). The definition of intangibles located in Oregon appears to be very
broad, at least according to the regulations. OAR 150-118.010(1).
In short, under the Oregon statutory scheme for estates of
decedents who died before 2012, tangible property (both real and
personal) will be taxed only by the state in which it is located, for both
resident estates and nonresident estates. Intangible personal property held
by resident estates will be taxed regardless of location, and intangible
personal property held by nonresident estates will be taxed only if it is
located in Oregon and the resident state does not grant a reciprocal
exemption. Former ORS 118.010; OAR 150-118.010(3), OAR 150118.010(4).
These statutes can produce some unexpected results. As noted in
14.3-3, the filing threshold of $1,000,000 is based on the gross estate,
regardless of where the assets of the gross estate are located. Former
ORS 118.160(1)(b)(D) (2009). As a result, a nonresident with a gross
estate of $1,000,000 or more, but with a small amount of Oregon assets,
will be required to file an Oregon inheritance tax return, and will be
required to pay an Oregon inheritance tax if the taxable estate exceeds
$1,000,000, even if the state of residence imposes no estate or inheritance
tax.
For example, if an Oregon resident moves to California (which has
no estate or inheritance tax), but leaves behind in Oregon either real
property, tangible personal property, or (more likely) intangible personal
property (such as an Oregon bank account), the persons estate will be
subject to an Oregon inheritance tax if the taxable estate (wherever
located) exceeds $1,000,000. The same result will take place if the person
never lived in Oregon, but happens to own real property or personal
14-35
2012 Revision
property (tangible or intangible) in Oregon. Because of the fractional

method of calculating the tax, even a small amount of Oregon property
will trigger a tax. And the definition of intangible personal property is
extremely broad, at least according to the regulations. OAR 150118.010(1).
The same result will take place if the person lived in Washington,
except Washington has its own estate tax, and Oregon exempts the
intangible personal property of Washington residents because Washington grants a reciprocal exemption for intangible personal property of
Oregon residents. RCW 83.100.040; WAC 458-57-125. As a result, an
Oregon tax will be due from the estate of a Washington resident if the
estate holds Oregon real property or tangible personal property located in
Oregon, even if the value of the Oregon property is small. On the other
hand, if the Washington resident holds Oregon intangible personal
property, no Oregon tax will be due.
A reciprocal exemption for intangible property does not exist
between Oregon and California. California has no estate or inheritance
tax, and the Oregon regulations provide that the exemption exists in
Oregon only if the foreign state imposes an estate or inheritance tax and
exempts the intangible personal property of Oregon residents. OAR 150118.010(4)(b); CAL REV & AND TAXN CODE 13302.
As discussed in 14.2-3, if all of a nonresidents property located
in Oregon passes to a surviving spouse or to a charity, the Oregon
inheritance tax on nonresidents is not necessarily eliminated. Marital
deductions and charitable deductions, like all other deductions, reduce
the taxable estate, not the gross estate, and the fractional formula uses the
gross estate as its denominator and the value of the decedents gross
estate located in Oregon as its numerator.
The lawyer should keep in mind, however, that no Oregon
inheritance tax return will be due (and no tax will be due) if the worldwide gross estate of the decedent is less than the filing threshold of
$1,000,000. Former ORS 118.160(1)(b)(D) (2009).
The bottom line is that nonresident clients with even a small
amount of Oregon assets should review their situation to determine
14-36
2012 Revision
whether steps should be taken to minimize or eliminate the Oregon

inheritance tax. These steps might include disposing of Oregon assets or
moving the Oregon assets to another state, such as the state of residence,
depending on the inheritance tax laws of the state of residence. Even
Oregon residents can reduce their Oregon inheritance tax by holding
tangible assets in other states, but the amount of overall tax savings will
depend on the inheritance tax laws of those other states.
14.3-5 Natural Resource Credit Under Pre-2012 Law
In 2007, the Oregon legislature enacted ORS 118.140, which
provided a $7,500,000 inheritance tax exemption for natural resource
property transferred to a qualifying family member. Former ORS
118.140(1), (3). In the 2008 special legislative session, the natural
resource exemption was converted to a credit. See 2008 Or Laws ch 28.
See 14.2-6(a) for additional history about the statute.
For estates of decedents who died before 2012, the natural resource
credit is available in estates in which natural resource property constitutes
at least 50% of the total adjusted gross estate, but the credit is not
available if the adjusted gross estate exceeds $15,000,000. Former ORS
118.140(3) (2009). The rate of the credit begins at 0.8% for natural
resource property valued over $100,000, and then increases to 13.6% for
natural resource property valued over $7,100,000. The amount of the
credit peaks for qualifying property valued at $7,499,999, and the credit
is then phased out for qualifying property exceeding that value. The
credit is optional, and an estate may elect to claim less than the full
amount of the available credit.
COMMENT: It appears that little reason exists to claim a
credit for natural resource property that exceeds $7,499,999 in
value, and in fact, doing so could be detrimental. Accordingly, an
estate holding natural resource property in excess of $7,499,999
should consider claiming a partial credit.
The following definitions apply to the natural resource credit under
former ORS 118.140 (2009):
(1) Adjusted gross estate is defined as the value of the gross
estate reduced by the amounts allowable as deductions under IRC 2053
14-37
2012 Revision
(expenses, indebtedness, and taxes) and IRC 2054 (losses). Former

ORS 118.140(3)(b) (2009); OAR 150-118.140(1)(b). (The term adjusted
gross estate is used in the IRC in only two places, IRC 2057(c) and IRC
6166(b)(6)).
(2) The credit generally applies to qualifying natural resource
property, which is defined as property involved in three industries:
farming, forestry, and commercial fishing. Former ORS 118.140(2)(a)
(2009). The specific types of eligible property within each of the
industries are listed in the statute and can be summarized as follows:
(a) Farming property includes real property and tangible and
intangible personal property used in farming, such as crops, equipment,
and working capital. The definition of farm use includes the production
of biofuel. Former ORS 118.140(1)(a), (2)(a)(C) (2009); see former ORS
308A.056(3)(f), (l) (2009).
(b) Forestry property includes real property and personal
property used in forestry such as trees, timber, improvements, equipment,
and working capital. Former ORS 118.140(2)(a)(C) (2009).
(c) Commercial fishing includes personal property used in the
conduct of commercial fishing, such as boats, gear, equipment, licenses,
and permits as well as equipment, working capital, and property used to
process and sell fish directly to consumers (including a restaurant with
seating capacity of less than 15 seats at which the catch from the fishing
business is prepared and sold). Former ORS 118.140(2)(a)(B) (2009).
(3) The natural resource property must be transferred to a
member of the family as defined in IRC 2032A. Qualified family
members include (a) the decedents living ancestors; (b) the decedents
spouse, registered domestic partner, or parent; (c) the descendants of the
decedent; (d) the descendants of the decedents spouse, registered
domestic partner, or parent; and (e) the spouse or registered domestic
partner of any such descendant. Former ORS 118.140(3)(c), (5), (7)(a)
(2009); OAR 150-118.140(4)(h); IRC 2032A(e)(2).
(4) Before the decedents death, the decedent or a qualifying
family member of the decedent must have used the property for farm or
forest purposes during five out of the last eight years preceding the
14-38
2012 Revision
decedents death. Former ORS 118.140(3)(d) (2009). This prior-use rule

is not required to seek a credit relating to commercial fishing or fishing
property. After the decedents death, a qualifying family member must
continue to use the property for farm-related purposes, forest-related
purposes, or commercial fishing operations for at least five out the eight
calendar years following the decedents death. Former ORS 118.140(7)
(2009).
Property held in trust for the benefit of a qualifying family member
will qualify for the credit. Former ORS 118.140(4)(b) (2009). Also,
property owned by a qualified family member through a limited liability
company, corporation, or partnership will qualify for the credit, as long
as at least one qualifying family member materially participates in the
business after the transfer. Former ORS 118.140(5) (2009).
Transferees of the natural resource property must pay an additional
inheritance tax if they fail to use the property for a qualified use for at
least five out of the eight years following the decedents death. Former
ORS 118.140(7) (2009). Although the statute refers to this as an
additional tax, it is actually a recapture of the tax that would have been
due if the natural resource credit had not been taken. The amount of the
additional tax will be prorated based on the amount of the credit allowed
and the number of years that the property was not used as a qualified use
after the decedents death. In particular, the statute provides that the
additional tax liability will be the amount of the credit allowed on the
disqualified property, multiplied by five minus the number of years the
property was used as natural resource property, divided by five. Former
ORS 118.140(7)(b) (2009).
The natural resource credit is claimed by filing Schedule NRC with
the Oregon inheritance tax return (Form IT-1).
PRACTICE TIP: Schedule NRC and Form IT-1 are online at
<www.oregon.gov/dor/bus/Pages/forms-fiduciary.aspx#New_
14-39
2012 Revision
14.4
PROCEDURES APPLICABLE TO BOTH OLD

AND NEW LAW
14.4-1 Fiduciarys Request for Release from Personal

Liability for Oregon Estate Tax
Effective September 28, 2009, ORS 118.265 permits a personal
representative or trustee to make a written request to the Oregon
Department of Revenue (DOR) for a prompt determination of the Oregon
estate tax and a release from the fiduciarys personal liability for the tax.
This ability to request a release from personal liability from estate tax is
somewhat similar to that under the federal statute, IRC 2204(a).
A form for requesting a discharge from personal liability is
available online. For deaths occurring on or after January 1, 2012, see
Form
150-104-005
at
<www.oregon.gov/dor/bus/Pages/formsfiduciary.aspx#New_2012_Form_Information>. For deaths before that
date, see Form 150-103-005 at <www.oregon.gov/dor/BUS/Pages/Jan_
inher-adv.aspx>.
Upon receipt of such an application, the DOR is required to notify
the fiduciary of the amount of tax due. That notice of tax due must be
given [a]s soon as possible, and in any event within 18 months of the
application, or, if the fiduciary requests the determination before filing
the return, by the earliest of the following: (1) Eighteen months after
the return is filed, (2) the expiration of the period prescribed for the
assessment of the tax under ORS 305.265, or (3) the expiration of the
period prescribed for the issuance of a notice of deficiency under ORS
314.410 (three years after the return was filed). ORS 118.265(1).
After paying any tax specified in the notice, the fiduciary shall be
discharged from personal liability for any deficiency in tax, and the
department will send the fiduciary a receipt or release to that effect. ORS
118.265(2). Administrative rules will be adopted to describe this
procedure in more detail; a request form was published on January 1,
2010. See Form 150-103-005 on the DORs Web site. A special version
of the 18-month rule is provided in the legislation in the unusual
circumstance that an estate makes a request for a release before the return
is filed.
14-40
2012 Revision
COMMENT: Although ORS 118.265 became effective on

September 28, 2009, the procedure is not limited to returns filed
after that date. As a result, any estate may file a request for release
on or after September 28, 2009, including estates that have filed
returns previously.
The ability to request a release for a previously filed return
presents an issue brought about by the Oregon tax amnesty
program (which ran from October 1, 2009, to November 19, 2009).
See 2009 Or Laws ch 710. Under that program, an estate can apply
for amnesty and then file a past-due return or an amended return
and pay past-due taxes for an inheritance tax return originally due
before January 1, 2008. If certain other conditions are met, the
DOR will waive all penalties and half of the interest that would
otherwise apply. However, as an incentive for taxpayers to
participate in the amnesty program, if a taxpayer who decides to
not participate in the program (or who was simply unaware of the
program), but later is found to owe tax on a return that would have
been eligible for the amnesty program, then that taxpayer will be
subject to an additional penalty of 25% of the tax due, in addition
to all of the previously due penalties and interest, with no reduction
under the amnesty program. For example, if in 2010, an estate
requested a release for an inheritance tax return originally timely
filed in 2007, and that request for release caused the DOR to
review the return, and the DOR determined that an additional tax
was due, the DOR could have asserted an additional 25% penalty
for the failure to have participated in the amnesty program.
Accordingly, estates may wish to review their situation carefully
before requesting a release for returns due before January 1, 2008.
Those estates may prefer to simply allow the statute of limitations
to expire. See 14.4-4(a) regarding the Oregon statute of
limitations on the collection of the inheritance tax.
ORS 118.265 does not alter the requirement in ORS 118.250 that
the DOR issue a receipt for any estate/inheritance tax paid. As a result,
the DOR will continue to issue the same receipts that it has been issuing
for the last several years.
14-41
2012 Revision
Although a personal representative may be discharged from

personal liability for estate taxes under ORS 118.265, the statute does not
release the beneficiaries. See ORS 118.210. If a person acting as a
fiduciary is also a beneficiary, that persons potential liability as a
beneficiary will continue. Although the statute does not so state, the form
for requesting a discharge published by the DOR indicates that the
discharge is not effective to the extent that the fiduciary remains in
possession or control of estate assets. Beneficiaries remain liable for the
estate tax to the extent of assets received by them, ORS 118.270, and the
statute of limitations on collecting such tax from them is not limited by
ORS 118.265 (see ORS 314.410). As a practical matter, however, a
release of the fiduciary will likely serve as an indication that the DOR
has examined the return and does not intend to seek any additional taxes.
But it might possibly (although unlikely) mean that the DOR believes
that it will be able to collect any additional tax from the beneficiaries.
Fiduciaries also remain responsible for notifying the DOR of a
change in the estates liability for federal estate taxes, either through an
audit or an amended return. See ORS 118.100(2); IRC 2032A. Any
executor filing an amended federal estate tax return shall also file an
amended return with the [DOR] within 90 days thereafter. ORS
118.100(2).
14.4-2 Extensions of Time to File or Pay
The Oregon Department of Revenue (DOR) may grant extensions
of both the time to file the estate tax return and the time to pay the tax
due. Regarding an extension of the time for filing, see OAR 150118.100(1) (for estates of decedents who die on or after January 1, 2012);
OAR 150-118.160-(B) (for estates of decedents who died on or after
January 1, 2003, and before January 1, 2012). Regarding an extension of
the time for payment, see ORS 118.225 and OAR 150-118.225.
If an estate has requested an extension of time to file a federal
estate tax return or to pay the estate tax (see IRS Form 4768), a copy of
that request must be filed with the Oregon return when it is filed, and the
appropriate boxes should be checked on page 1 of the Oregon return.
OAR 150-118.100(1) (for estates of decedents who die on or after
14-42
2012 Revision
January 1, 2012); OAR 150-118.160-(B) (for estates of decedents who

died on or after January 1, 2003, and before January 1, 2012).
PRACTICE TIP: Oregon returns are online at <www.oregon
.gov/dor/bus/Pages/forms-fiduciary.aspx#New_2012_Form_
Information>.
If no federal return is being filed, or if a federal extension is not
being requested, the same IRS Form 4768 is used to file a request for an
extension of time to file, but the words For Oregon Only should be
typed in the top margin of the form, and the form should be filed with the
DOR before the due date. OAR 150-118.225(1)(a). A copy of the federal
form should also be attached to the Oregon return when it is filed.
A six-month extension of time to file an estate tax return is
automatic. OAR 150-118.100(1) (for estates of decedents who die on or
after January 1, 2012); see OAR 150-118.160-(B) (for estates of decedents who died before 2012). However, the DOR will grant a request for
an extension of time for more than six months to pay the estate tax if (1)
the executor explains why the extension is needed, (2) reasonable cause
exists for the extension, and (3) the estate secure[s] acceptable
collateral for payment of the Oregon estate tax. OAR 150-118.225(1);
ORS 118.225. The DOR will respond with either an approval or a
rejection. Oregon follows federal law in reviewing such requests.
An extension of time to file does not extend the time to pay, nor
does an extension of time to pay extend the time to file. OAR 150118.100(1); see OAR 150-118.160-(B) (for pre-2012 deaths). Interest
continues to accrue during the extension period. ORS 118.260(5); see
OAR 150-118.225; see also OAR 150-118.260. See 14.4-3(discussing
interest and penalties).
In the absence of an extension, the Oregon estate tax must be paid
within nine months after the date of the decedents death. ORS 118.100.
If the executor applied for an extension of the time to pay all or part of
the tax and secured payment of the tax with a bond, deposit or other
good collateral acceptable to the Department of Revenue, the DOR may
extend the time for paying the tax for up to 14 years. ORS 118.225.
14-43
2012 Revision
14.4-3 Interest and Penalties

Interest on Oregon taxes accrues from the original due date of the
estate tax return, which is nine months after the date of the decedents
death. ORS 118.260(5)(a); see ORS 314.400(7), 305.220; see also OAR
150-118.260(4). Although ORS 305.220 specifies an interest rate, the
rate is adjusted occasionally, and the latest rate can be found at OAR
150-305.220(1). The statute refers to simple interest, not compound
interest. Although ORS 305.220(1)(2) calls for a rate of interest per
month or fraction thereof, a daily rate is used for fractional months. ORS
305.220(6); OAR 150-305.220(1); see former OAR 150-118.260(4) (for
estates of decedents who died before January 1, 2012). For interest
covering periods of time during which the interest rate changed, the
interest must be computed at the rates in effect during those time periods.
If the time for paying the tax has been extended under ORS
118.225, the interest nevertheless accrues from the original due date of
the return. ORS 118.260(5)(b); see former OAR 150-118.225(1)(b) and
OAR 150-118.260(1)-(B) (for estates of decedents who died before
January 1, 2012). If the tax has not yet been calculated, a deposit may be
made to stop the running of interest and penalties on the portion of the
tax deposited. ORS 118.260(7), (9); see former OAR 150-118.260(1)-(A)
(for estates of decedents who died before January 1, 2012). Payments are
credited first to penalties and interest, and then to the tax itself. ORS
118.260(8).
If an estate tax or inheritance tax is not paid within 60 days after
notice of a tax delinquency, the interest rate imposed by ORS 305.220 is
increased by one-third of one percent per month (4% annually). ORS
305.222; OAR 150-305.222(1). Such a notice includes a notice of
assessment following a deficiency, or a final order issued by the Oregon
Tax Court or the Oregon Supreme Court that affirms the deficiency.
Reportedly, the Oregon Department of Revenue (DOR) has taken the
position that that enhanced interest rate applies to IRC 6166 installment
payments, even if all of the installment payments are made by their
respective due dates. See ORS 118.260(4).
14-44
2012 Revision
ORS 118.260(1) imposes a 5% delinquency penalty for a late

return. In addition, ORS 118.260(2) imposes an additional 20% failure
to file penalty if the return is more than three months late. Thus, if a
return is more than three months late, the estate would be required to pay
a total penalty of 25%. If any of the delinquency is due to fraud with
intent to avoid tax, then a penalty of 100% is applied pursuant to ORS
118.260(3), although this particular subsection is ambiguous as to
whether it is referring to a penalty or simply the tax itself. (Similar
penalties appear in ORS 314.400, but that statute is apparently limited to
income taxes, while ORS 118.260 applies to estate taxes.) See OAR 150118.260(1)-(A) and OAR 150-118.260(1)-(B) (for estates of decedents
who died before January 1, 2012).
COMMENT: ORS 305.992 purports to impose a 100% penalty
if tax returns are not filed for three consecutive years. An
administrative rule, OAR 150-305.992, confirms that the statute is
intended to apply to annual returns. However, the statute itself
refers to ORS chapter 118, which is the estate tax statute, even
though the estate tax return is not an annual return. As a result, the
DOR might contend that an estate tax return more than three years
late will be subject to a 125% penalty, even if no fraud is involved.
ORS 305.992 also states that the 100% penalty is in addition to any
other penalties. Although that statute also states that the total
penalties may not exceed 100%, the total penalties described in
that statute do not include the penalties imposed by ORS chapter
118.
NOTE: Under prior law, even though the executor obtained
permission from the DOR to extend the time for payment and paid
the tax in the agreed installments, the tier-two penalty interest
(currently 4%) under ORS 305.222 was added to the delinquency
rate of 5% for a total of 9% starting 60 days after the tax was
assessed. Former ORS 118.260(5)(b). The Oregon interest rate of
9% currently is significantly higher that the interest rate payable
under an installment plan under IRC 6166. For estates of
decedents who die on or after January 1, 2012, the law drops the
tier-two interest rate under ORS 305.222 but retains the delin14-45
2012 Revision
quency rate under ORS 305.220. Thus, under the current rates, an
installment plan approved by the DOR will impose a 5% interest
rate. ORS 118.260.
For estates of decedents who die on or after January 1, 2012,
interest on refunds owing to an estate will begin to accrue 45 days after
the due date of the return or on the date the amended return or refund
claim is filed, whichever is later, and ending at the time the refund is
made. ORS 118.100(1); see ORS 314.415; see also ORS 118.260(7).
For estates of decedents who died before that date, interest on refunds
owing to an estate will begin to accrue on the date the amended return or
refund claim is filed to the time the refund is made. Former ORS
118.100(1) (2009).
14.4-4 Statutes of Limitation
14.4-4(a) Statute of Limitations for Notice of Deficiency
The 2009 Legislature enacted ORS 118.265 to correct a flaw in
prior Oregon law, which inadvertently did not impose any statute of
limitations on the collection of an inheritance tax by the Oregon
Department of Revenue (DOR). ORS 118.265(4) provides that [t]he
expiration of the period prescribed for the issuance of a notice of
deficiency concerning any tax due under this chapter shall be as provided
under ORS 314.410. In turn, ORS 314.410(1) imposes a three-year
statute of limitations on the issuance of a notice of deficiency, which
notice must be given as prescribed in ORS 305.265.
Note, however, that the 2011 Legislature enacted ORS 118.165,
which combines ORS 118.265(4) and portions of ORS 314.410 into one
statute. As under prior law, ORS 118.165 provides that the DOR may
give a notice of deficiency as prescribed in ORS 305.265 within three
years after an estate tax return is filed. Although ORS 118.165 applies to
estates of decedents who die on or after January 1, 2012, a notice of
deficiency must be given within the same the period as under prior law.
See 2011 Or Laws ch 526, 28, 30.
ORS 314.410the statute regarding an income tax deficiency
extends the period for giving a notice of deficiency to five years if 25%
or more of gross income was omitted from the return. However, the
14-46
2012 Revision
estate tax statuteORS 118.265(4), which applies to decedents who died

before January 1, 2012makes no mention of a 25% omission from the
gross estate; therefore, presumably, the extended five-year period does
not apply to the inheritance tax for estates of decedents who died before
2012.
However, for estates of decedents who die on or after January 1,
2012, ORS 118.165(2) specifies that if the DOR finds that the gross
estate has been undervalued by greater than 25%, the notice of deficiency
may be given within five years after the estate tax return is filed. If no
return is filed, or if the return is false or fraudulent, the notice may be
issued at any time. ORS 118.165(3).
Under both old law and new law, the statute of limitations on
deficiencies does not begin running until a return is filed.
14.4-4(b) Statute of Limitations to File a Claim for Refund
The 2009 Legislature enacted ORS 118.227 to set forth a time
period for refunds of taxes paid. The statute provides that the Oregon
Department of Revenue may allow or make a refund of any tax (or portion of any tax) paid under ORS chapter 118 within the period prescribed
in ORS 314.415, which is the income tax statute on refunds.
Under ORS 314.415(2)(a), a taxpayer must file a claim for a
refund within three years from the date the return was filed, or two years
from the date the tax was paid, whichever period expires later.
14.4-5 Availability of Federal Elections
Sections 14.4-5(a) to 14.4-5(c) discuss the availability of federal
elections for Oregon estate tax purposes:
(1) Section 14.4-5(a) discusses federal elections available under
ORS 118.010 for decedents who die on or after January 1, 2012;
(2) Section 14.4-5(b) discusses federal elections available under
ORS 118.010 for decedents who died before January 1, 2012; and
(3) Section 14.4-5(c) discusses other federal elections available
under Oregon estate tax law.
14-47
2012 Revision
14.4-5(a) Federal Elections Available Under ORS 118.010 for

Estates of Decedents Who Die on or After January 1,
2012
Pursuant to ORS 118.010(8)(a), any election available under
federal law is available as a separate election for Oregon estate tax
purposes. ORS 118.010(8)(a) provides as follows:
If the federal taxable estate is determined by making an election under
section 2031(c), 2032, 2032A, 2056 or 2056A of the Internal Revenue
Code or another provision of the Internal Revenue Code, or if a federal
estate tax return is not required under the Internal Revenue Code, an
executor may make separate elections for state estate tax purposes
under that same provision.
An estate may claim deductions allowable under IRC 2053 or

IRC 2054 for either estate tax purposes or fiduciary income tax
purposes, but not both. OAR 150-118.010. The executor of an estate
may make different elections for federal and Oregon purposes. OAR
150-118.010.
Also, ORS 118.010(8)(b) provides that an executor may make
elections under ORS 118.013 (adjustment for Oregon special marital
property), ORS 118.140 (credit based on the value of natural resource
property), and IRC 2056 (bequests to surviving spouse) for Oregon
estate tax purposes. ORS 118.010(8)(c) provides that these elections are
irrevocable.
The elections permitted for Oregon estate tax purposes (see ORS
118.010(8)) include the following:
(1) An election with respect to land subject to a qualified
conservation easement under IRC 2031(c);
(2) An election for an alternate valuation date under IRC 2032
(see 12.1-2(a); see also 14.4-6);
(3) The special-use election under IRC 2032A for valuing
certain property used for farming purposes (see 12.2-12(b)(3));
14-48
2012 Revision
(4) A qualified terminable interest property (QTIP) election

under IRC 2056 (see 12.1-5(c)(3); see also 12.2-12(g), 12.2-12(n));
and
(5) A qualified domestic trust (QDOT) election under IRC
2056A (see 12.1-5(c)(4)).
NOTE: Similar provisions previously appeared in OAR 150118.010(7)(1) for estates of decedents who died before 2012. See
former ORS 118.010(7) (2009). See 14.4-5(b).
All of the elections are irrevocable and must be made in the
manner required by federal law, and that manner must be followed on the
Oregon return even if a federal return is not required. ORS 118.010(8).
14.4-5(b) Federal Elections Available Under ORS 118.010 for
Estates of Decedents Who Died Before January 1,
2012
For estates of decedents who died before January 1, 2012, former
ORS 118.010(7) (2009) permitted an executor to make separate elections
under IRC 2032 or IRC 2056, but only as provided in administrative
rules adopted by the Oregon Department of Revenue (DOR). However,
OAR 150-118.010(7) made clear that any election that was available
under federal law was available as a separate election for Oregon
inheritance tax purposes. See 14.4-5(a) regarding elections. See also
14.4-12 regarding a deduction for a qualified family-owned business
interest, which was available for estates of decedents who died before
2012.
Although separate elections could be made for Oregon inheritance
tax purposes, if a federal election was made, it was binding for Oregon
purposes, unless a specific Oregon statute or administrative rule
permitted different elections to be made on the two returns. OAR 150118-140(5) (formerly OAR 150-118.140(2)). The only Oregon rule or
statute that specifically provided otherwise was OAR 150-118.010(2),
which permitted inconsistent elections under IRC 642(g), which is the
election to take administration-expense deductions on either the fiduciary
income tax return or the estate tax return.
14-49
2012 Revision
Although OAR 150-118.010(7) permits separate Oregon elections

for all available federal elections regardless of whether a federal return is
filed, this rule does not appear to address contrary (inconsistent) federal
and Oregon elections. Thus, OAR 150-118-140(5) (formerly OAR 150118.140(2)) and OAR 150-118.010(7), read together, appear to require
that if a federal election is made, the same Oregon election must also be
made but, if a particular election is not made on the federal return, or if
no federal return is filed, the election can nevertheless be made on the
Oregon return. That interpretation seems to be the one held by most
lawyers who have studied this issue. However, it is also possible to read
OAR 150-118.140(5) (formerly OAR 150-118.140(2)) and OAR 150118.010(7) as being entirely inconsistent, such that one permits different
(inconsistent) elections for federal and Oregon purposes, while the other
requires that the elections be exactly the same. As a result, it is possible
that the DOR will require that if federal and state returns are both filed,
the same elections must be made on both returns.
OAR 150-118.010(7)(3) provides that when an Oregon election is
made, the obligations of electing parties, agreements required of persons
benefiting from elections, and the inclusion of property in the gross estate
of a surviving beneficiary are the same as under the [Internal Revenue
Code] in effect on December 31, 2000. In other words, Oregon adopted
all of the federal procedural requirements existing under 2000 federal law
pertaining to federal elections.
If a separate election is being made, the executor has to check the
box to that effect in Part 1 on page 1 of Oregon Form IT-1.
All of the elections are irrevocable, and must be made in the
manner required by federal law, and that manner must be followed on the
Oregon return even if a federal return is not required. OAR 150118.010(7)(1).
14.4-5(c) Other Federal Elections Available Under Oregon Law
Other elections (not mentioned in ORS 118.010) that are available
for purposes of the Oregon estate/inheritance tax include the following:
(1) An election under IRC 642(g) to deduct administration
expenses on the fiduciary income tax return or on the Oregon inheritance
14-50
2012 Revision
tax return, see ORS 118.010(8); see also former ORS 118.010(7) (2009),
OAR 150-118.010(1), and OAR 150-118.010(2) (for deaths before
2012);
(2) An election under IRC 6166 to extend the time to pay the
estate tax due when the estate consists largely of an interest in a closely
held business (see ORS 118.225);
(3) An election under IRC 6163 to extend the time to pay the
tax on the value of a reversionary or remainder interest; and
(4) An election under IRC 6081 and IRC 6161 to extend the
time to pay and/or file a return.
See the discussion on extensions in 14.4-2.
PRACTICE TIP: Most of these elections are discussed on
Oregon Form OR706 (for estates of decedents who die on or after
January 1, 2012) and Oregon Form IT-1(for estates of decedents
who died before that date) as well as in the instructions for those
forms.
See
<www.oregon.gov/dor/bus/Pages/forms-fiduciary
.aspx#New_2012_Form_Information>.
14.4-6 The Oregon Alternate Valuation Date Election
Like other federal elections (see 14.4-5 to 14.4-5(c)), the
election for an alternate valuation date is available for Oregon estate tax
purposes. See ORS 118.010(8); see also former ORS 118.010(7) (2009)
and OAR 150-118.010(7) (for estates of decedents who died before
2012). Under federal law, the election may be made on a timely filed
federal return, or it may be made on a federal return filed up to one year
after its due date, including extensions. IRC 2032(d).
Oregon has adopted these federal procedural requirements. As a
result, if an Oregon alternate valuation election is desired, an Oregon
return must be filed and the election must be made on that return, even if
the election causes the gross estate to fall below the filing threshold, and
the return must be filed no later than one year after the due date, even if it
is a no-tax-due return.
For estates of decedents who die on or after January 1, 2012, see
Part 3 in the Instructions for Oregon Form OR706, which directs the
14-51
2012 Revision
reader to refer to the Instructions for federal Form 706 for information
regarding the alternate valuation election. For estates of decedents who
died before 2012, see OAR 150-118.010(7)(1); see also Part 3 in the
Instructions for Oregon Form IT-1. See <www.oregon.gov/dor/bus/
Pages/forms-fiduciary.aspx#New_2012_Form_Information>.
If the alternate valuation date election is made for Oregon estate
tax purposes, but is not made for federal purposes, then the basis of estate
assets will differ under state law and federal law. ORS 316.716. The
lawyer should keep in mind that a federal alternate valuation date election
cannot be made if the election would not reduce federal taxes. IRC
2032(c). Thus, an estate that owes Oregon taxes, but that owes no
federal taxes, cannot make an alternate valuation date election on the
federal return, but may make the election on an Oregon return. In
addition, if a federal alternate valuation date election is made, the same
election must be made for Oregon purposes.
14.4-7 Appraisals
For estates of decedents who die on or after January 1, 2012, ORS
118.100(6) requires an executor to explain, on the [estate tax] return,
how the reported values were determined. The executor must also
attach copies of any appraisals. ORS 118.100(6). Apparently, this latter
provision does not require the executor to obtain an appraisal, but if one
is obtained, a copy must be attached.
OAR 150-118.100(6)(1) adds, If there was no appraisal, the
executor must attach a statement to the return explaining how the value
was determined. If the determination of value is based on a county
property tax statement, the determination of value must be supported by
other evidence of value.
Furthermore, OAR 150-118.100(6)(2) provides:
A fee appraisal represents both common and best practice for
determination of the value for most real and personal property but may
not always be necessary. For example, where an Oregon Special
Marital Property election has been made, the value of the asset(s)
included within the election may not have an impact upon the estate
tax.
14-52
2012 Revision
Thus, the Oregon Department of Revenue would prefer to have the

estate values determined by appraisal, but recognizes that appraisals may
not always be necessary.
14.4-8 Apportionment of the Oregon Estate Tax
Apportionment of the Oregon estate tax (and the federal estate tax)
is governed by ORS 116.303116.383. The tax is apportioned among the
persons interested in the estate, not among the bequests generated by
the estate. ORS 116.313. The apportionment process includes nonprobate
dispositions, because ORS 116.303(3) defines a person interested in the
estate as any person who either receives property from the decedent or
receives property by reason of the death of the decedent, if the property is
included in the decedents estate. The statute defines estate as the gross
estate of a decedent as determined for the purpose of federal estate tax
and the estate tax payable to this state. ORS 116.303(1).
NOTE: The apportionment rules are the same under current
law and former law.
Marital and charitable bequests do not generally bear any
apportionment of the tax. ORS 116.343(1)(2). These two types of
bequests are discussed in the statute as deductions allowed by reason of
the relationship of any person to the decedent or allowed by reason of
the purpose of the gift. ORS 116.343(2).
In the event of a dispute over the apportionment of the tax, the
probate court has jurisdiction to resolve the dispute, usually in connection
with a petition for the approval of a final accounting, but a separate
petition on the subject of apportionment is permitted. ORS 116.323.
14.4-9 Federal Estate Tax Audits
ORS 118.100(2) requires fiduciaries to report to the Oregon
Department of Revenue if a federal estate tax audit results in a change to
the estate tax, or if an amended federal estate tax return is filed with the
Internal Revenue Service.
14-53
2012 Revision
14.4-10 Deduction for Oregon Special Marital Property:

Schedule OSMP
In the classic estate plan for a married couple, the estate of the first
spouse to die is divided into a credit shelter trust equal to the federal
estate tax exemption, and the remainder of the estate is given to the
surviving spouse, either outright or in a qualified terminable interest
property (QTIP) trust or other trust that qualifies for the marital
deduction. The assets distributed to the credit shelter trust are shielded
from tax by the federal estate tax exemption and the state estate tax
exemption, and the assets given to the surviving spouse are shielded from
tax by the marital deduction, at least at the first death.
The advantage of this plan is that when the first spouse dies, it uses
the deceased spouses exemption amount plus the marital deduction for
property passing to or available to the surviving spouse, resulting in no
tax at the first death. IRC 2010, IRC 2056. This plan worked well for
Oregon residents until 2002, when Oregon broke from the federal estate
tax system. Following the break, the federal exemption amount climbed
from $1,000,000 in 2002 to $3,500,000 in 2009, was unlimited in 2010,
was $5,000,000 in 2011, and was $5,120,000 in 2012. (The federal
exemption after 2012 was not known as of this writing). The Oregon
exemption amount, however, stayed at $1,000,000 for deaths after 2005.
If the classic estate plan for a married couple were followed today, and
the credit shelter trust were funded to the full amount of the federal
exemption, the estate of the first to die would owe Oregon tax on the
value of the credit shelter trust in excess of the $1,000,000 Oregon
exemption.
After 2005, Oregon estate plans needed to be changed to avoid the
Oregon inheritance tax at the first death. Two planning choices were
available. The first solution was to limit the credit shelter trust funding
formula to $1,000,000, but this system had obvious problems. Most of
the existing marital funding and credit shelter funding formulas were tied
to the federal exemption and, therefore, by their terms, would not allow
funding only up to the Oregon exemption amount. As a result with a
federal exemption formula, the credit shelter would be funded in excess
of the $1,000,000 Oregon exemption amount and an Oregon inheritance
14-54
2012 Revision
tax would be due. Also, if the funding formula were revised to use the
$1,000,000 Oregon exemption amount, then the reduced funding would
fail to use the full federal exemption amount for the deceased spouse.
The second solution was to make an Oregon QTIP election for the assets
in the credit shelter trust in excess of $1,000,000, and thereby defer the
Oregon tax on the excess value over $1,000,000 until the later death of
the surviving spouse. This solution would work well if the credit shelter
trust distribution provisions would satisfy the marital QTIP requirements.
IRC 2056(b)(7). Although the terms of many credit shelter trusts qualify
for a QTIP election, some do not. For example, in some credit shelter
trusts, the surviving spouse is not entitled to all of the income
(accumulation trusts) and, in some trusts, the surviving spouse is not the
only trust beneficiary during the surviving spouses lifetime (trust with
other beneficiaries). Either of those facts would disqualify a trust from
QTIP treatment.
To help solve the problems caused by the difference between the
federal exemption amount and the Oregon exemption amount, and to deal
with the fact that some credit shelter trusts do not qualify for a QTIP
election, the 2005 Oregon Legislature enacted statutes allowing an
election for Oregon special marital property (OSMP), ORS 118.013
118.019. The OSMP election is an irrevocable election that allows a
QTIP-like deferral for trusts (or other property interests, or a portion of a
trust or other property) that would not otherwise qualify for an Oregon
QTIP election. For example, trusts that permit income to be accumulated,
and trusts that permit distributions to beneficiaries other than the
surviving spouse, do not quality as QTIP trusts. Credit shelter trusts
frequently contain such provisions. Under the OSMP election, both an
accumulation trust and a trust with other beneficiaries are allowed to
defer estate taxes until the death of the surviving spouse, provided that
while the surviving spouse is living, distributions can only be made to the
surviving spouse. ORS 118.013(2)(3); see former ORS 118.019 (2009)
(for deaths before 2012). By using an OSMP election (or an Oregon
QTIP election) for the portion of the credit shelter trust that exceeds
$1,000,000, an estate can fund the credit shelter trust to the full federal
exemption amount and still pay no Oregon tax at the first death. On the
14-55
2012 Revision
second death, the OSMP assets will be included in the gross estate of the
surviving spouse, valued as of the date of the surviving spouses death
for Oregon purposes, but the OSMP assets would not be included in the
surviving spouses federal estate. ORS 118.010(3); see former ORS
118.019 (2009) (for deaths before 2012).
To make the OSMP election for an accumulation trust, the
executor must attach a statement to the estate tax return that (1) identifies
the trust (or other property interest) that constitutes the OSMP,
(2) affirms that the identified property meets the requirements of OSMP,
and (3) affirms that the trust will be administered as required by the
statute. ORS 118.016(1).
The OSMP election for a trust that has other (nonspouse)
beneficiaries allows the executor to set aside a share of the trust or other
property interest as a separate share of the trust or property interest or as
a separate trust. ORS 118.013(3). In addition to the election described
above for an accumulation trust, the surviving spouse and each potential
beneficiary who is living at the time of the election must sign a notarized
statement in which they (1) consent to a portion of the trust (usually the
amount in excess of $1,000,000) being set aside as OSMP, (2) agree to
release all rights to distributions from the OSMP during the surviving
spouses lifetime (except distributions to the spouse are permitted), and
(3) agree that all other provisions of the trust will remain in effect. ORS
118.016(2). The statute sets forth language to be used for these consents.
The statutory language is contained in Schedule OSMP for the Oregon
return. See <www.oregon.gov/dor/bus/Pages/forms-fiduciary.aspx#New_
The OSMP election is made on Schedule OSMP for Oregon Form
OR706 for estates of decedents dying on or after January 1, 2012, and on
Schedule OSMP for estates of decedents who died before January 1,
2012. The OSMP schedules require the OSMP assets to be identified
(and to contain statements to be signed by the spouse and nonspouse
beneficiaries when an OSMP election is made for a trust that has nonspouse beneficiaries).
14-56
2012 Revision
If a federal return is filed, the differences between the Oregon and

the federal marital deduction amounts must be explained to the Oregon
Department of Revenue (DOR). The executor can do this by filing an
additional Schedule M marked For Oregon Purposes Only that
identifies the OSMP assets.
COMMENT: Although it may seem obvious that an executor
is making an OSMP election if the estate files a Schedule OSMP,
the schedule does not contain the statutorily required statements
that affirm that the identified property meets the requirements of
the OSMP, and that the trust will be administered as required by
ORS 118.016(1). Out of an abundance of caution, an executor
might consider attaching an exhibit to the Schedule OSMP that
contains these two statements.
Schedule OSMP and the related instructions state that each asset
subject to the OSMP election must be described in detail and identified
by showing the schedule number and the item number of the asset shown
on the Oregon estate tax return. The Instructions for Schedule OSMP also
state that [u]nless the executor indentifies a fractional portion or
percentage of the trust or other property for this election, the executor is
deemed to have made an OSMP election on the entire trust or other
property.
The requirement that the OSMP assets be specifically indentified
on the Oregon estate tax return has been changed by OAR 150118.010(8)(3), which provides as follows:
The executor must identify the assets by schedule, item number, and
the fixed amount, percentage or fractional interest that are included as
part of the Oregon QTIP or OSMP election, either on the return or, if
those assets have not been determined when the estate tax return is
filed, on a statement to that effect, prepared when the assets are
definitively identified.
COMMENT: Under OAR 150-118.010(8)(3), the DOR should

permit estates to specify a fractional formula on the Schedule
OSMP (the form even refers to a fractional portion), and then
wait until receipt of the federal estate tax closing letter before
actually funding the federal credit shelter trust and also funding the
14-57
2012 Revision
segregated OSMP trust. In this situation, no specific assets would

be specified on the Oregon-only Schedule M or on the Schedule
OSMP. Under these circumstances, the Schedule OSMP would
specify a fractional formula and further state that an amended
return will be filed when the segregated OSMP trust is funded.
However, the DOR has been reviewing that policy due to the
enactment of ORS 118.265 in 2009. See 14.4-1. This statute
authorizes the executor or trustee of an estate to request a prompt
determination of the estate tax due and discharge from personal
liability therefor. ORS 118.265(1). The DOR must respond to
such a request within the 18-month period described in ORS
118.265(1). The DOR now believes that a request for release under
ORS 118.265 (and its 18-month response period) may interfere
with the filing of an amended return, or might interfere with the
DORs review of such an amended return.
CAVEAT: In light of OAR 150-118.010(8)(3), which allows
the executor to identify OSMP assets and QTIP assets after the
original return is filed, an executor should proceed with caution in
requesting a discharge from personal liability. OAR 150118.265(3) provides that [t]he discharge does not apply to tax
liability resulting from assets of the decedents estate that are still
in the possession or control of the executor. Thus, if the executor
is still in control of the assets because they have not been identified
and transferred for OSMP or QTIP purposes when the request for
discharge is filed, it may not be effective.
NOTE: The 2011 Legislature deleted references to a
beneficiary in the OSMP statutes and substituted that word with
the term permissible distributee, as that term is defined in ORS
130.010 of the Oregon version of the Uniform Trust Code. See
ORS 118.013(1). Since the OSMP statutes did not specifically
define beneficiary, the term was changed to permissible distributee
to more precisely define and identify the beneficiaries who must
consent to the OSMP election.
14-58
2012 Revision
14.4-11 Oregon QTIP Election

ORS 118.010(8) allows the executor of an estate to make for
Oregon estate tax purposes any election permitted under federal law,
including an election under IRC 2056(b)(7) for qualified terminable
interest property (QTIP).
An Oregon QTIP election is made by filing an Oregon-only
Schedule M that specifically identifies the property subject to the
Oregon-only QTIP election. See Instructions for Oregon Form OR706
(online at <www.oregon.gov/dor/bus/Pages/forms-fiduciary.aspx#New_
See 12.1-5(c)(3) regarding QTIP elections under federal law.
NOTE: Although the current statute applies to estates of
decedents who die on or after January 1, 2012, the QTIP election
was also available for estates of decedents who died before that
date. See former ORS 118.010(7) (2009) and OAR 150118.101(7). OAR 150-118.010(7)(3) provides that when an Oregon
election is made, the obligations of the electing parties, agreements
required of persons benefitting from the elections, and the
inclusions of property in the estate of a surviving spouse are the
same under Oregon law as under the Internal Revenue Code. As a
result, all of the other federal requirements for QTIP elections
apply for Oregon purposes.
QUERY: When would an executor prefer to make an Oregon
QTIP election rather than an election under Oregon law for Oregon
special marital property (OSMP)? (See 14.4-10 regarding the
OSMP deduction.) Obviously, if the trust interest would not
qualify as a QTIP interest, but would qualify as an OSMP interest,
then the OSMP election should be made. But if the trust interest
qualifies as both a QTIP interest and an OSMP interest, either
election could be made, and there seems to be little reason to prefer
one over the other. The QTIP election is governed by federal law,
but is subject to the identification requirement of OAR 150118.010(8)(3). Also, the instructions to the Oregon estate tax return
require the identification of specific assets that will be subject to
14-59
2012 Revision
the QTIP election. Making a QTIP election would, however,

eliminate the requirement of filing a Schedule OSMP.
COMMENT: Some lawyers believe that a trust that qualifies
as a QTIP trust is eligible only for a QTIP election, and that such a
trust may not be subject to an OMSP election. In other words, the
OSMP election is limited to trusts that do not qualify for a QTIP
election.
14.4-12 Deduction for Qualified Family-Owned Business Interest
Under prior lawwhich tied ORS chapter 118 to the Internal
Revenue Code as of December 31, 2000an estate could claim a
deduction for a qualified family-owned business interest (QFOBI)
pursuant to the provisions of former IRC 2057. See former ORS
118.007 (2009) and former ORS 118.010(7) (2009). By using this
deduction plus the $1,000,000 exemption, an estate could increase its
effective exemption amount to $1,300,000. This deduction was repealed
at the federal level in 2004 as part of the Economic Growth and Tax
Relief Reconciliation Act of 2001 (EGTRRA), Pub L No 107-16, 115
Stat 38; however it remains in effect for Oregon estates through 2011.
Effective January 1, 2012, the 2011 Legislature changed the IRC
tie-in date to December 31, 2010, and the QFOBI deduction is effectively
repealed beginning in 2012. However, if the provisions of the Tax Relief,
Unemployment Insurance Reauthorization, and Job Creation Act of 2010
(Pub L No 111-312, 124 Stat 3296) sunset in 2013, the QFOBI deduction
will return.
14.4-13 Qualified Tax Disclaimers
ORS 105.645, the statute regarding tax-qualified disclaimers, was
amended to change the Internal Revenue Code reference date to
December 31, 2010, and this change is effective retroactive to January 1,
2010, to accommodate the extension of the time for making a taxqualified disclaimer in connection with a 2010 estate which was provided
in the Tax Relief, Unemployment Insurance Reauthorization, and Job
Creation Act of 2010, Pub L No 111-312, 124 Stat 3296.
14-60
2012 Revision
Chapter 15
LITIGATION
JAN K. KITCHEL, B.S., Oregon State University (1973); J.D., Willamette University
College of Law (1978); member of the Oregon State Bar since 1978 and the
Washington State Bar Association since 1983; shareholder, Schwabe,
Williamson & Wyatt, P.C., Portland.
KATHERINE O. VANZANTEN, B.A., Boston University (1994); J.D., LL.M., Golden
Gate University (1997); member of the Oregon State Bar since 1997;
shareholder, Schwabe, Williamson & Wyatt, P.C., Portland.
15.1 SCOPE OF CHAPTER ........................................................... 15-3

15.2 WILL CONTESTS .................................................................. 15-3
15.2-1
Procedural Requirements ............................................ 15-3
15.2-1(a) The Primary Statute ........................................ 15-3

15.2-1(b) Contents of Petition; Filing Fees .................... 15-6
15.2-1(c) Parties to a Will Contest ................................. 15-7
15.2-1(d) Will Contest Distinguished from Other
Claims ............................................................. 15-8
15.2-1(e) No-Contest Clause in Will .............................. 15-9
15.2-1(f) Will Contest: Action Tried Without a
Jury ................................................................ 15-10
15.2-1(g) Judgment ....................................................... 15-11
15.2-2
Bases for Will Contest .............................................. 15-12
15.2-2(a) Lack of Testamentary Capacity .................... 15-12

15.2-2(b) Undue Influence ............................................ 15-15
15.2-2(c) Insane Delusion ............................................. 15-18
15.2-2(d) Fraud ............................................................. 15-20
15.2-2(e) Mistake .......................................................... 15-21
15.2-2(f) Revocation of Will ........................................ 15-21
15.2-2(g) Intentional Interference with
Prospective Inheritance ................................. 15-21
15-1
2012 Revision
Chapter 15 / Litigation
15.3 WRONGFUL DEATH CLAIMS AND

PROCEDURES; SURVIVORSHIP OF CAUSES OF
ACTION................................................................................. 15-23
15.3-1
Introduction ............................................................... 15-23
15.3-2
Victims Personal Representative ............................. 15-24
15.3-2(a) Appointment .................................................. 15-24

15.3-2(b) Petition for Appointment ............................... 15-26
15.3-2(c) Award and Settlement ................................... 15-26
15.3-3
Distribution of Wrongful Death Proceeds ................ 15-28
15.3-3(a) In General ...................................................... 15-28

15.3-3(b) Compensating Decedents Family................. 15-29
15.3-3(c) Minors as Recipients of Proceeds ................. 15-30
15.3-4
Statutes of Limitations .............................................. 15-30
15.3-5
Attorney Fees and Personal Representative

Fees............................................................................ 15-32
15.3-6
Jury Instructions ........................................................ 15-32
15.3-7
Tortfeasors Personal Representative........................ 15-32
15.3-7(a) Effect of Tortfeasors Death .......................... 15-32

15.3-7(b) Parties ............................................................ 15-33
15.3-7(c) Petition for Appointment ............................... 15-33
15.3-8
Closing the Estate ...................................................... 15-34
15.4 PHYSICAL OR FIDUCIARY ABUSE OF

VULNERABLE PERSONS .................................................. 15-35
Form 15-1 Petition of Personal Representative for Approval
and Authority to Settle Wrongful Death Claim ............. 15-39
Form 15-2 Affidavit of Lawyer ........................................................ 15-43
Form 15-3 Order Approving Settlement of Wrongful Death
Claim .............................................................................. 15-45
Form 15-4 Petition for Apportionment of Proceeds of
Wrongful Death Settlement or Judgment ....................... 15-48
Form 15-5 Agreement of Spouse, Children, and Parents for
Apportionment of Wrongful Death Settlement or
Judgment ........................................................................ 15-52
15-2
2012 Revision
Litigation / Chapter 15
Form 15-6 Order of Apportionment of Wrongful Death

Settlement or Judgment ................................................. 15-55
15.1
SCOPE OF CHAPTER
This chapter discusses:

(1)
Will contests (see 15.2-1(a) to 15.2-2(g));
(2) Wrongful death claims and survivorship of causes of action

(see 15.3-1 to 15.3-8); and
(3) Civil actions against persons who physically or financially
abuse a vulnerable person (see 15.4).
Litigation of creditors claims is discussed in chapter 8.
The procedural requirements of will contests are explained in
15.2-1(a) to 15.2-1(g). The grounds for will contests are separately
discussed in 15.2-2 to 15.2-2(g).
Litigation of wrongful death cases is discussed from both the
plaintiffs and the defendants points of view. The procedures are discussed involving both deceased plaintiffs and deceased defendants.
(Often, litigators do not understand the probate procedures necessary in
a wrongful death case until settlement or trial.)
15.2
WILL CONTESTS
15.2-1 Procedural Requirements

15.2-1(a) The Primary Statute
Any interested person (as defined in ORS 111.005(19)) may
contest the probate of a decedents will by filing a petition in the probate proceedings within four months of the later of two events:
(1) Four months after the date of delivering or mailing the
information described in ORS 113.145 (information to devisees and
heirs), if that information was required to be delivered or mailed to the
person on whose behalf the petition is filed, ORS 113.075(3)(a); or
15-3
2012 Revision
(2) Four months after the first publication of the notice to

interested persons, if the person on whose behalf the petition is filed
was not required to be named in the petition as an interested person,
ORS 113.075(3)(b).
For a contestant to be an interested person, the contestant must
either (1) be an intestate heir, a devisee, or a creditor with a claim
against the decedents estate; or (2) have an interest in a previous will
that was not revoked other than by the will that is being contested. See
ORS 111.005(19). A nonheir party who was a beneficiary under a prior
will that was revoked other than by the will being contested does not
have standing. In re Carlsons Estate, 153 Or 327, 334335, 56 P2d 347
(1936). In In re Carlsons Estate, 153 Or at 332, an earlier will, which
was last seen in the decedents possession, could not be found and was
presumed to have been revoked by the decedents physical act,
independently of the execution of the decedents later will.
In Harris v. Jourdan, 218 Or App 470, 490, 180 P3d 119 (2008),
the court concluded that the evidentiary presumption in In re Carlsons
Estate simply is not applicable in this case because the proponent of the
later will never contended that the [earlier] will was destroyed entirely
independently of his influence on [the decedents] decision to draft the
[later] will. The court said that In re Carlsons Estate was decided
under a different statutory scheme, and one that did not contain the
current definition of an interested person. Harris, 218 Or App at 490.
The court in the Harris case concluded that a person is entitled to
contest the probate of a will, if he or she can demonstrate the existence
of a property right or claim that may be affected by the proceeding.
Harris, 218 Or App at 488 (citing ORS 111.005(19)).
A will contest is commenced by the filing of a petition in the
probate proceedings. ORS 113.075(2). A petition that is filed beyond
the four-month limitation period described in ORS 113.075(3) is
untimely. Betz v. Ganos, 196 Or App 5, 10, 100 P3d 756 (2004). See
ORS 113.145.
It is not clear whether it is necessary to file the petition and serve
the personal representative within the four-month period, or whether it
15-4
2012 Revision
is sufficient to file the petition within the time period, and then serve the
personal representative later. Under the former statute, which allowed
contests within six months from the filing of probate, the Oregon
Supreme Court held that the general statutes of limitations apply only to
common-law rights of action. In re Desboroughs Estate, 220 Or 528,
531, 349 P2d 849 (1960), They do not affect a special statutory
proceeding which sets up its own limitation as has the probate code
pertaining to will contests. In re Desboroughs Estate, 220 Or at 531.
Therefore, under In re Desboroughs Estate, the general statutes of
limitations (see, e.g., ORS 12.020), which provide that an action is
commenced when the complaint is filed and the summons is served or
delivered to the serving officer, do not govern a will-contest proceeding.
COMMENT: Serving the petition on the personal representative within the four-month period is arguably sufficient, even
if the actual filing takes place after the four-month period has
expired.
Note, however, that if the will is contested on the ground that the
decedent promised or represented that the decedent would either
(1) make, revoke, or not revoke a will; or (2) die intestate, the action
may be commenced by the filing of a separate action in a court of
competent jurisdiction. ORS 113.075(2). Such a cause of action may not
be presented as a claim under ORS chapter 115. ORS 113.075(4).
The time to file a will contest does not begin to run against a
contestant who is an interested person (and thus is entitled to individual
notice under ORS 113.145) until individual notice has been mailed. In
the case of a childless decedent, lost or unknown collateral relatives
may occasionally crawl out of the woodwork to contest a will or
assert intestate rights.
The petition for admitting a will to probate must list the name and
post-office address of any person asserting an interest in the estate, or
on whose behalf an interest has been asserted, based on a contention
that (1) the will alleged in the petition to be the decedents will is
ineffective in whole or in part; (2) there exists a will that has not been
alleged in the petition to be the decedents will; or (3) the decedent
15-5
2012 Revision
agreed, promised, or represented that he or she would make or revoke a

will or devise, or not revoke a will or devise, or die intestate. ORS
113.035(8). See ORS 113.075(1).
The notice required to be given to interested persons under
ORS 113.145 must be delivered or mailed to any person asserting an
interest in the estate, as described in the previous paragraph. ORS
113.145(1)(g).
15.2-1(b) Contents of Petition; Filing Fees
A will contest is commenced by the filing of a petition in the
probate proceedings. ORS 113.075(2). See ORS 111.205 (pleadings and
mode of procedure generally).
The contents of a petition contesting a will are not set forth in
ORS 113.075. The general practice is that the petition is filed in the
probate proceeding itself (see ORS 113.075(2)), with the caption
identifying the estate proceeding and, below that heading, listing the
contestants and the respondents.
The body of the petition should identify the parties to establish
that the contestant has an interest in the proceeding, and should set forth
the grounds for the will contest, for example, lack of testamentary
capacity, undue influence, insane delusions, fraud, or mistake. See
15.2-2 to 15.2-2(g), regarding the grounds for a will contest.
PRACTICE TIP: The form of the petition must comply with
the requirements of UTCR 2.010 and UTCR 9.030. See <http://
courts.oregon.gov/OJD/programs/utcr/utcrrules.page?>. Also, all
petitions . . . before a probate court must include a declaration
under penalty of perjury in the form required by ORCP 1 E. ORS
111.205.
Filing fees are found in ORS 21.13521.170. The lawyer should
also check with the local probate court clerk to be sure about the latest
fee schedule. See <www.courts.oregon.gov/OJD/courts/circuit/index
.page?>.
15-6
2012 Revision
ORS 21.105 requires that the caption of a pleading that

commences an action include a reference to the statute that establishes
the filing fee for that proceeding.
15.2-1(c) Parties to a Will Contest
Any interested person may file a will contest against the personal
representative of the estate. ORS 113.075. The term interested person
includes heirs, devisees, children, spouses, creditors and any others
having a property right or claim against the estate of a decedent that may
be affected by the proceeding as well as fiduciaries representing
interested persons. ORS 111.005(19). See Harris v. Jourdan, 218 Or
App 470, 490, 180 P3d 119 (2008).
The personal representative is the only necessary opposing party
and is called the respondent or the proponent. The beneficiaries of the
challenged will are proper parties, but not necessary parties.
PRACTICE TIP: Strategic consideration should govern the
decision of whether to join additional parties other than the
personal representative. For example, if the ground for the will
contest is undue influence, the particular beneficiary who exercised
the undue influence is usually joined to identify him or her as an
adverse party. Often, the beneficiary who exercised undue
influence is also the personal representative. Otherwise, the
contestant may wish to avoid naming additional parties, who may
merely line up additional opposing counsel against the contestant.
Because the personal representative is already before the court
and is usually represented by counsel, and if the petition contesting the
will is filed in the probate proceeding (see 15.2-1(b)), serving the
petition by mail on the lawyer for the personal representative is
adequate. Other parties can be served with a copy of the petition and a
summons, just as in other litigation. In the alternative, the other parties
can be mailed a notice of time within which to object to the will-contest
petition; if they fail to object, they will be bound by the result. A
citation issued by the court ordering these parties to appear is also
satisfactory, but requires unnecessary time and effort. The foregoing are
15-7
2012 Revision
matters of general practice in Oregon without appellate court confirmation.

A homeowners insurer has no duty to defend an action brought
against the homeowner for undue influence and interference with economic relations. Drake v. Mut. of Enumclaw Ins. Co., 167 Or App 475,
481482, 1 P3d 1065 (2000).
15.2-1(d) Will Contest Distinguished from Other Claims
A will contest is a special type of claim to rather than against
the estate. Claims against the estate are usually creditors claims,
which must be presented within the statute of limitations applicable to
the claim and within a specified time or they are barred. ORS 115.005;
see chapter 9. An anomalous third type of claim is a claim that the
decedent violated a promise or an agreement to make a will, or not to
revoke an existing will, or to die intestate. This is a claim to the
estate, but it was not recognized by the legislature until 1991 as a basis
for a will contest. See ORS 113.075(1)(c). See 15.2-2. Because the
breach theoretically is not final until the date of death, the statute of
limitations begins to run at the date of death. See chapter 8.
A claim includes liabilities of a decedent, whether arising in
contract, in tort or otherwise. ORS 111.005(7). This language seems
not to limit a claim to a claim against the estate, and seems to include
a claim involving a contract to make a will. But see Harris v. Craven,
162 Or 1, 18, 91 P2d 302 (1939) (a contract to make a will is not within
the claims statutes, which refer to claims that are pecuniary in nature;
note, however, that this case predates the probate code).
NOTE: ORS 113.075 makes clear that such a claim cannot be
presented as a claim against the estate under ORS chapter 115,
making the statute consistent with case law.
In First Nat. Bank of Oregon v. Dept of Revenue, State of Or.,
294 Or 60, 67, 653 P2d 985 (1982), the court discussed the nature of a
contract to make a will. The court held that this was a claim to rather
than against the estate, and confirmed the rule that an inheritance tax
is determined by the amount of the estate at the time of death, but it did
not settle the statute-of-limitations question. The court of appeals
15-8
2012 Revision
resolved the question whether the claims statute of limitations governs

an action to enforce a contract not to change a will in Willbanks v.
Goodwin, 70 Or App 425, 430431, 689 P2d 1004 (1984), revd on
other grounds, 300 Or 181 (1985), holding that the claims statute of
limitations does not apply to an action to enforce a contract not to
change a will. See Betz v. Ganos, 196 Or App 5, 10, 100 P3d 756 (2004)
(because the petitioners will contest was not filed within the fourmonth limitation period described in ORS 113.075(3), it was untimely
filed).
15.2-1(e) No-Contest Clause in Will
An in terrorem clause is a provision in a will that reduces or
eliminates a devise to a devisee if the devisee contests the will. ORS
112.272(4).
With certain exceptions, an in terrorem clause in a will is valid
and enforceable. ORS 112.272(1). Except as provided in ORS 112.272,
if a devisee contests a will that contains an in terrorem clause that
applies to the devisee, the court must enforce the clause against the
devisee, even though the devisee establishes probable cause for the
contest. ORS 112.272(1). ORS 112.272 prohibits the court from
enforcing an in terrorem clause if:
(1) The devisee contesting the will establishes that he or she
has probable cause to believe that the will is a forgery or that the will
has been revoked, ORS 112.272(2); or
(2) The contest is brought by a fiduciary acting on behalf of a
protected person under ORS chapter 125, a guardian ad litem appointed
for a minor, or a guardian ad litem appointed for an incapacitated or
financially incapable person, ORS 112.272(3).
The in terrorem statute, enacted in 1997, probably puts to rest any
controversy in prior case law. In Wadsworth v. Brigham, 125 Or 428,
454455, 259 P 299 (1927), adhered to on rehg, 125 Or 428 (1928),
the testators illegitimate daughter, who was not named in the will,
contested the will. The will provided that any person who contested the
will or claimed to be an heir of the testator would receive $5; any other
devise or bequest under the will was revoked. The court held that when
15-9
2012 Revision
a will contest is brought in good faith, a no-contest provision is void as

against public policy. In U.S. Nat. Bank of Portland v. Snodgrass, 202
Or 530, 555556, 275 P2d 860 (1954), the court enforced a forfeiture
clause in a trust provision that disinherited the testators daughter if she
married a Catholic. Then, in Larson v. Naslund, 73 Or App 699, 705,
700 P2d 276 (1985), the court of appeals held that the Snodgrass
decision overruled sub silentio the Wadsworth good-faith exception to
the enforcement of a no-contest provision. In Larson, the court upheld a
clause providing that any person who contested the will would receive
$1 in lieu of any provision previously made for that person in the will.
The court in Larson upheld the public policy of testamentary freedom,
as opposed to the public policy argument articulated in Wadsworth. The
court concluded that a will contestant must show that a no-contest
provision is either unlawful or in contravention of some specific public
policy or it will be enforced. Larson, 73 Or App at 706.
COMMENT: No-contest clauses are common in wills that are
the product of undue influence because of the chilling effect that
the clause has on any person contemplating contesting the will.
QUERY: Does the presence of an in terrorem clause evidence
overreaching on the part of a beneficiary who influenced the
testator?
Also, if a beneficiary receives nothing or only a small distribution
under a will, an in terrorem clause will not be much of a deterrent.
15.2-1(f)
Will Contest: Action Tried Without a Jury
In a will contest, proof of any facts must be made in the same

manner as in an action tried without a jury, rather than as in a suit in
equity. ORS 113.055(4). In Matter of Summers Estate, 49 Or App 5, 8
n 3, 618 P2d 1287 (1980), the court stated that this language means that
appellate review of a will contest is not de novo. However, this dictum
has been rejected. In Sanders v. U.S. Nat. Bank, 71 Or App 674, 680
682, 694 P2d 548 (1985), the court held that the statute does not change
the preexisting right to de novo review in will contests. This ruling was
adhered to in Williams v. Overton, 76 Or App 424, 426, 709 P2d 1115
(1985), in which the court also exercised de novo review. The appellate
15-10
2012 Revision
courts continue to review will contests de novo. See, e.g., Harris v.

Jourdan, 218 Or App 470, 473, 180 P3d 119 (2008).
The language in ORS 113.055(4) does not convert a will contest
from a suit in equity to an action at law, invoking the right to a jury
trial. See Sanders v. U.S. Nat. Bank, 71 Or App at 680681; Rantru v.
Unger, 73 Or App 680, 682, 700 P2d 272 (1985).
A plaintiff may be able to obtain a jury trial by contesting a will
in an action alleging the tort of intentional interference with economic
relations. See Allen v. Hall, 328 Or 276, 974 P2d 199 (1999) (discussed
in 15.2-2(g)). The elements of proof in such an action, however, may
be more rigorous.
15.2-1(g) Judgment
The 2003 Legislative Assembly enacted a comprehensive revision
of the laws governing judgments, and made numerous other legislative
changes to the laws governing procedure in civil actions. See 2003 Or
Laws ch 576. Oregon law now provides for three types of judgments: a
general judgment, a limited judgment, and a supplemental judgment,
See ORS 18.038; see also ORS 18.005 (definitions). The title of the
judgment document must specify the type of judgment. See ORS
18.038. Any document captioned as a judgment is appealable. See ORS
19.205. The court must make a determination that there is no just reason
for delay before entering a limited judgment. See ORS 18.052,
111.275(2). Although these words need not appear in the judgment, the
best practice is to include them. See ORS 18.052, 111.275(2). An order
approving a final accounting is a general judgment of final distribution.
ORS 116.113; see ORS 116.093. An order closing the estate and
discharging the personal representative is a supplemental judgment of
discharge. ORS 116.213.
On a determination that there is no just reason for delay, the court
in a probate proceeding may enter a limited judgment for a decision in a
will contest filed in the probate proceeding. ORS 111.275(1)(b), (2).
The judgment document need not reflect the courts determination that
there is no just reason for delay. ORS 111.275(2).
15-11
2012 Revision
See Appendix 2C for a helpful table listing various judgments and

orders and the corresponding ORS sections.
15.2-2 Bases for Will Contest
The two most common substantive grounds for will contests are
lack of testamentary capacity and undue influence. See 15.2-2(a) to
15.2-2(b). Rarely does a contestant allege insane delusion. See 15.22(c). Although a will may also be contested for want of proper execution, this chapter does not discuss that issue. See 4.2-3(a) to 4.2-3(c).
NOTE: A foreign will that is offered for probate in this state
may be contested for a cause which would be grounds for
rejection of a will of a testator who died domiciled in this state.
ORS 113.065(2). See 8.4-2.
Oregon law articulates three substantive grounds on which a will
may be contested. Pursuant to ORS 113.075(1), [a]ny interested person
may contest the probate of the will or the validity of the will or assert an
interest in the estate for any of the following reasons:
(1) The will alleged in the probate petition is ineffective in
whole or in part;
(2) A will exists that has not been alleged in the probate
petition to be the decedents will; or
(3) The decedent agreed, promised or represented that the
decedent would make or revoke a will or devise, or not revoke a will or
devise, or die intestate.
The usual grounds for a will contest, that is, lack of testamentary
capacity, undue influence, and insane delusion, apply to wills contested
under item (1) above.
15.2-2(a) Lack of Testamentary Capacity
One of the requirements of a valid will is that it must be made by
a person who is of sound mind. ORS 112.225. See 4.2-1. The
requirements for testamentary capacity are as follows:
(1) The person must be able to understand the nature of the act
in which he or she is engaged (execution of his or her will);
15-12
2012 Revision
(2)
property;
The person must know the nature and extent of his or her
(3) The person must know, without prompting, the claims, if

any, of those who are, should be, or might be the natural objects of the
persons bounty; and
(4) The person must be cognizant of the scope and reach of the
provisions of the document.
Golden v. Stephan, 5 Or App 547, 550, 485 P2d 1108 (1971).
Although the proponent of the will has the burden of proving
testamentary capacity, the proponent is aided by a presumption of
competence [that] attends a properly executed will. Golden, 5 Or App
at 550; see also Matter of Ungers Estate, 47 Or App 951, 955, 615 P2d
1115 (1980).
A will contest may be commenced after the proponent of the
challenged will offers it for probate in solemn form (i.e., by testimony
of the attesting witnesses as to its execution). See 5.2-4(a) to 5.2-4(h).
The real burden of proof then shifts to the contestant and remains there.
Mental competency to make a will is determined at the precise
moment the will is executed. Matter of Gentrys Estate, 32 Or App 45,
49, 573 P2d 322 (1978); Matter of Johnsons Estate, 24 Or App 897,
905, 547 P2d 658 (1976). For this reason, great weight is given to the
testimony of the attesting witnesses and any other disinterested persons
that are present at the time of the wills execution. Matter of Ungers
Estate, 47 Or App at 955. The will contestant will have difficulty overcoming the strong testimony of the attesting witnesses confirming the
elements of testamentary capacity. See Whitteberry v. Whitteberry, 9 Or
App 154, 157, 496 P2d 240 (1972). The testimony of the attesting
witnesses nonetheless has been overcome by stronger testimony to the
contrary. See Matter of Ungers Estate, 47 Or App at 958 (testimony
from the examining physician and nursing home personnel outweighed
that of the attesting witnesses, who either had little opportunity to
observe the testator or were not disinterested).
15-13
2012 Revision
The significance of the rule that testamentary capacity is

determined at the time that the will is executed is illustrated by holdings
that a person determined to be mentally ill or insane can make a will
during a lucid interval, In re Cooks Estate, 231 Or 133, 136, 372 P2d
520 (1962), or that a person held to be incompetent and functioning
under a guardianship may likewise execute a valid will, Matter of
Gentrys Estate, 32 Or App at 50.
A relatively minimal level of mental competency has been held to
be sufficient to execute a will. Wills have been upheld despite evidence
that:
(1) The testator had filthy living habits; his farm was in
disrepair; animals had died because they had not been fed and had rotted
on his farm; his house was filthy; he slept in his clothes; and he wore
rain gear and rubber boots continuously, Vsetecka v. Novak, 4 Or App
463, 466, 478 P2d 655 (1971);
(2) The testator was 94 years old, blind, failing physically,
living in a nursing home, and afflicted with a chronic brain syndrome,
Nease v. Clark, 6 Or App 589, 595, 488 P2d 1396 (1971); and
(3) The testator had been judicially declared incompetent and
required a guardian, Whitteberry, 9 Or App at 156.
A testator is not required to have had a high degree of mentality
at the time that the will is executed, and one may have testamentary
capacity even if mentally incompetent to execute contracts, deeds or
other bilateral engagements. In re Walthers Estate, 177 Or 382, 388,
163 P2d 285 (1945); see Meister v. Finley, 208 Or 223, 232233, 300
P2d 778 (1956) (a person may have quite limited intelligence and still
be competent to select the persons whom he wishes to receive his worldly
goods at his death and to know that an instrument he signs will effectuate
his purpose in that regard).
For a discussion of representing clients with diminished capacity,
see THE ETHICAL OREGON LAWYER ch 18 (Oregon CLE 2006). See also
ELDER LAW ch 2 (Oregon CLE 2000 & Supp 2005).
15-14
2012 Revision
15.2-2(b) Undue Influence

A leading case in Oregon on the subject of undue influence is
In re Reddaways Estate, 214 Or 410, 418, 329 P2d 886 (1958), in
which the court stated the general principle that the law will not permit
improper influences to control the disposition of a persons property.
Although the term undue influence cannot be specifically defined,
the theory is that the testator is induced by various means to execute
an instrument which, although his, in outward form, is in reality not his
will, but the will of another person which is substituted for that of
testator. In re Reddaways Estate, 214 Or at 418 (quoting In re
Porters Estate, 192 Or 483, 492, 235 P2d 894 (1951)). In other words,
but for the wrongful influence exercised on the testator, he or she would
not have executed the will.
Every person is influenced by the attitudes, communications, and
ideas of others; the courts task is to analyze all the facts to determine
whether the influence in the particular case is undue. In re
Reddaways Estate 214 Or at 418; see also Slusarenko v. Slusarenko,
209 Or App 307, 325, 147 P3d 920 (2006); Harris v. Jourdan, 218 Or
App 470, 491, 180 P3d 119 (2008).
In In re Reddaways Estate, 214 Or at 419, the court did not
approach its determination from the standpoint of the testators freedom
of will, but from the nature of the influencers conduct in persuading the
testator to act and the unfairness of the advantage that was reaped as the
result of wrongful conduct. See also Slusarenko, 209 Or App at 325.
Equity acts because there is want of conscience on the part of the
donee, not want of consent on the part of the donor. In re Reddaways
Estate, 214 Or at 420.
Undue influence is said to have a closer kinship to fraud than to
duress. In re Reddaways Estate, 214 Or at 420. See 15.2-2(d).
Although undue influence may be a species of fraud, in the strict
sense, fraud is not necessary. In re Reddaways Estate, 214 Or at 420.
In a will contest, the burden of proof as to undue influence is
upon the contestant. However, where a confidential relationship exists
between the testator and a beneficiary, along with other suspicious
15-15
2012 Revision
circumstances, the burden of production is placed upon the proponent.

McNeely v. Hiatt, 138 Or App 434, 441, 909 P2d 191 (1996) (quoting
Nease v. Clark, 6 Or App 589, 596, 488 P2d 1396 (1971)). The
proponent must then go forward with proof sufficient to overcome the
adverse inference.
When a confidential relationship exists between a testator and
the beneficiary, slight evidence is sufficient to establish undue influence. In re Reddaways Estate, 214 Or at 420 (if the testamentary gift
results in taking property away from those who had a reasonable
expectation of being the recipients of the testators bounty, the burden is
on the donee to produce evidence that improper influence was not
used); see also Slusarenko, 209 Or App at 326. The influence must exist
at the time that the will is created. The courts recognize that cases of
this type must ordinarily rest on circumstantial evidence. In re
Reddaways Estate, 214 Or at 427.
In In re Reddaways Estate, 214 Or at 421427, the court stated
the guidelines for suspicious circumstances in the form of seven factors,
which have been followed in many subsequent decisions. The court also
stated that [i]nfluence gained by kindness and affection will not be
regarded as undue, if no imposition or fraud be practiced; the court
looks to the donees purpose and motive in inducing the testamentary
gift. In re Reddaways Estate, 214 Or at 425 (emphasis original).
The seven factors set forth in In re Reddaways Estate have been
used in many subsequent decisions to resolve the difficult question of
when a will has been the product of undue influence. See, e.g., Matter of
Swensons Estate, 48 Or App 497, 500502, 617 P2d 305 (1980). The
seven factors are summarized as follows:
(1) Procurement: the beneficiary participates in obtaining or
preparing the will, In re Reddaways Estate, 214 Or at 421422;
(2) Lack of independent advice: a beneficiary who participates in the preparation of a will and who occupies a confidential or
fiduciary relationship to the testator has a duty to see that the testator
receives independent and disinterested advice, In re Reddaways
Estate, 214 Or at 422;
15-16
2012 Revision
(3) Secrecy and haste: the fact of the will being kept from
family members who might otherwise have been the natural objects of
the testators bounty, In re Reddaways Estate, 214 Or at 423;
(4) Change in the testators attitude following close association
with the beneficiary, In re Reddaways Estate, 214 Or at 423424;
(5) Change in the testators plan of disposing of property:
unexplained changes from previous wills or from intestate disposition,
In re Reddaways Estate, 214 Or at 423424;
(6) An unnatural or unjust gift to the beneficiary as compared
to those who otherwise would naturally be expected to take, In re
Reddaways Estate, 214 Or at 424426; and
(7) The donors susceptibility to influence: a testator who is
physically sick, emotionally or mentally confused, or becomes
dependent on the beneficiary is susceptible to influence, In re
Reddaways Estate, 214 Or at 426427; see also In re Weirs Estate, 21
Or App 476, 485, 535 P2d 119 (1975) (the court concluded that the will
was the product of undue influence when the testator, a person of strong
will, had become physically sick and infirm and, by reason of physical
infirmities, depended on the beneficiary).
The same seven factors have been used in actions to set aside
deeds and to set aside transfers that establish joint tenancies because of
undue influence. See, e.g., Ryan v. Colombo, 77 Or App 71, 77, 712 P2d
139 (1985); McKee v. Stoddard, 98 Or App 514, 520, 780 P2d 736
(1989).
[A]n inference of undue influence arises where the evidence
establishes the existence of a confidential relationship, the beneficiarys
dominance over the testator and the presence of suspicious circumstances [the seven factors] surrounding execution of the will.
Sangster v. Dillard, 144 Or App 210, 216, 925 P2d 929 (1996),
modified on recon. sub nom, Matter of Estate of Cochrane, 146 Or App
105 (1997). See also Harris, 218 Or App at 491492. The wills
proponent then bears the burden of producing evidence negating that
inference. Sangster, 144 Or App at 216.
15-17
2012 Revision
Dominance does not necessarily require proof of an

authoritative, controlling person bullying or directing the actions of a
subservient one. It may exist more subtly such as by suggestion or
persuasion or by fostering a sense of need and dependence. Sangster,
144 Or App at 216 (quoting Knutsen v. Krippendorf, 124 Or App 299,
309, 862 P2d 509 (1993)). Dominance may be found when the testator
is isolated from the outside world and relies almost exclusively on the
beneficiary to meet [the testators] daily needs. Sangster, 144 Or App
at 216 (citing In re Weirs Estate, 21 Or App at 477).
The facts that a beneficiary made the appointment and escorted a
testator to an attorneys office do not, in themselves, support an
inference of undue influence. Ramsey v. Taylor, 166 Or App 241, 264,
999 P2d 1178 (2000). Also relevant is the fact that the testator had met
with his own lawyer without the beneficiarys presence.
A bequest to the lawyer who drafts the will, or to the lawyers
secretary, creates a presumption of invalidity on the basis of undue
influence, which must be overcome by clear and convincing evidence.
Cline v. Larson, 234 Or 384, 411, 383 P2d 74 (1963).
In the Harris case, the beneficiary of a previous will of the
decedent contested the probate of a subsequent will on the ground of
undue influence. Citing In re Carlsons Estate, 153 Or 327, 56 P2d 347
(1936), the proponent of the subsequent will claimed that the court was
required to first determine the validity of the earlier will before
entertaining the contest of the later will. Harris, 218 Or App at 489
490. The court disagreed: Nothing in the statutory definition of an
interested person or Oregon case law suggests that a will contestant
who seeks to inherit under an earlier, facially valid will must also
demonstrate that the earlier will could survive a will contest. Harris,
218 Or App at 490.
15.2-2(c) Insane Delusion
An insane delusion affecting a natural object of a testators
bounty may be sufficient to invalidate the will, even though the testator
is otherwise found to have testamentary capacity. In re Quaids Estate,
215 Or 603, 605607, 335 P2d 86 (1959) (substantial evidence existed
15-18
2012 Revision
of expressions of the testators unreasonable hatred toward her daughter,

including pictures of the daughter taken when she was a child, which
the testator had defaced).
To be an insane delusion[,] a belief must have absolutely no
foundation in fact. Matter of Yetts Estate, 44 Or App 709, 714, 606
P2d 1174 (1980). Any evidence, however slight, that provides a basis
for the testators belief negates the conclusion that the will was a
product of the delusion, rather than being the will of the testator. Matter
of Yetts Estate, 44 Or App at 714. See also Potter v. Jones, 20 Or 239,
249250, 25 P 769 (1891) ([d]elusions are conceptions that originate
spontaneously in the mind without evidence of any kind to support them,
and can be accounted for on no reasonable hypothesis).
An insane delusion that does not touch the subject matter of the
will does not negate testamentary capacity. In re Walthers Estate, 177
Or 382, 398399, 163 P2d 285 (1945).
Whether [a] decedents thoughts . . . were insane delusions
depends on whether there is any foundation in fact for them. Sanders v.
U.S. Nat. Bank, 71 Or App 674, 682, 694 P2d 548 (1985) (relying on
the definition of insane delusion articulated in the Potter case). In the
Sanders case, the decedents children challenged the will of their father,
which left only one dollar to each of them. The court concluded that the
fathers will was not the product of an insane delusion, because there
was evidence to support decedents belief that his two children did not
like him and that they were primarily interested in his money on his
death. Sanders, 71 Or App at 683.
The reasoning in the Sanders case was followed in Dillon v.
Phillips, 92 Or App 65, 6869, 756 P2d 1278 (1988), in which the court
upheld a fathers disinheritance of his children. The will stated that the
children made misrepresentations to the decedent, were unwilling to
help the decedent in his old age, and disliked the decedent. The court
stated that the decedents statements, even if wrong, were not insane
delusions, if the decedent had even a slight basis for them. After noting a
long history of family discord, the court concluded that the will was
consistent with the testators treatment of his children during his lifetime.
15-19
2012 Revision
PRACTICE TIP: The definition of paranoia (insane delusion)

articulated in Potter, 20 Or at 249250, may be attacked by
substantial forensic psychiatric evidence showing how psychiatric
criteria have changed from the 1891 concepts.
15.2-2(d) Fraud
In In re Reddaways Estate, 214 Or 410, 420, 329 P2d 886
(1958), the court stated that undue influence has been characterized as
a species of fraud. However, other decisions have stated that fraud is
a species of undue influence. See, e.g., In re Rosenbergs Estate, 196 Or
219, 231, 246 P2d 858 (1952); In re Smiths Estate, 212 Or 481, 483,
320 P2d 273 (1958).
A will may be voided when it was the product of fraud in the
inducement (facts led the testator to make the will) or fraud in the
execution (the testator did not know that he or she was signing a will).
In re Rosenbergs Estate, 196 Or at 231.
Where a beneficiary under a will conceals or suppresses facts
where it was [the beneficiarys] duty to disclose such facts where there
is a confidential relationship existing between [the beneficiary and the
testator], such may constitute fraud sufficient to void a will. In re
Rosenbergs Estate, 196 Or at 231.
Also, when a will was executed [based] on false data brought
about by [a] fraudulent representation by or on behalf of a party or parties
benefiting from the will, the will may be set aside on the ground of
fraud, even though the will may express the [the testators] wishes and
be [the testators] free and voluntary act at the time. In re Rosenbergs
Estate, 196 Or at 231. This type of fraud is a species of undue
influence and is governed by the same criteria generally recognized to
prove fraud. In re Rosenbergs Estate, 196 Or at 231, 247. The entire
will is void, even though the fraud is perpetrated by only one of the
beneficiaries. In re Rosenbergs Estate, 196 Or at 230231. Very few
appellate decisions involving will contests in Oregon are based on fraud
in the standard sense, as compared to undue influence.
15-20
2012 Revision
15.2-2(e) Mistake
Mistake is generally not a basis for contesting a will or any part
of a will. A court may invalidate a portion of a will when a mistake of
facts influenced the disposition of property, and the disposition would
not have been made if the facts had been known. See Estate of
LaGrand, 47 Or App 81, 86, 613 P2d 1091 (1980) (dictum).
15.2-2(f)
Revocation of Will
A will may be contested if it has been revoked or altered as

provided in ORS 112.285112.315.
If a will has been revoked by a subsequent will that cannot be
found, the existence of that subsequent will must be proved with the
type and quantum of proof necessary to prove a lost will. Melhase v.
Melhase, 87 Or 590, 593, 171 P 216 (1918). The contestant should be
prepared to prove that the more recent, lost will either contained an
express revocation clause or was so inconsistent with the earlier will as
to revoke it. Johnstone v. Zimmer, 191 Or App 26, 33 n 3, 81 P3d 92
(2003). The existence of the later will can be proved orally, and it can
have the effect of revoking an earlier will, even though it is not
presented for probate. Melhase, 87 Or at 593. See ORS 113.075(1)(b).
15.2-2(g) Intentional Interference with Prospective Inheritance
In Allen v. Hall, 328 Or 276, 974 P2d 199 (1999), the decedents
relatives brought an action against the beneficiaries under the decedents will, alleging intentional interference with prospective inheritance. According to the relatives, the decedent had drafted a new will
that named them as the beneficiaries of the estate, but the new will was
never executed because of the defendants actions. The relatives claimed
that the defendants intentionally and falsely represented to the decedents
lawyer that the decedent was not lucid enough to execute a new will that
the lawyer had prepared at the decedents request, and that the decedent
thereafter did not have an opportunity to execute the new will. The
relatives also alleged that the defendants intentionally and falsely
represented to the hospital that one of the defendants had a power of
attorney that authorized her to remove the decedent from life support.
15-21
2012 Revision
The court determined that it need not decide in the abstract

whether to recognize a separate and distinct claim for intentional
interference with prospective inheritance in this state. Allen, 328 Or at
288. However, the court held that the relatives complaint state[d] a
claim under a reasonable extension of the scope of the tort of intentional
interference with economic relations. Allen, 328 Or at 288.
The elements of the tort of intentional interference with economic
relations are as follows:
(1) [T]he existence of a professional or business relationship
(which could include, e.g., a contract or a prospective economic advantage);
(2)
[I]ntentional interference with that relationship or advant-
(3)
[B]y a third party;
age;
(4) [A]ccomplished through improper means or for an

improper purpose;
(5) [A] causal effect between the interference and the harm to
the relationship or prospective advantage; and
(6)
[D]amages.
Allen, 328 Or at 281.

To be actionable, the interference must come about through
improper motives or improper means. Improper means include violence, threats or other intimidation, deceit or misrepresentation, bribery,
unfounded litigation, defamation, or disparaging falsehood. Allen, 328
Or at 285286. Any of these improper means might be present in a will
contest.
In Church v. Woods, 190 Or App 112, 118, 77 P3d 1150 (2003),
an elder abuse case, the court reasoned that undue influence can also
constitute improper means, allowing an argument in Allen-type cases
that undue influence alone might supply the element of improper means.
In Butcher v. McClain, 244 Or App 316, 260 P3d 611 (2011), the
plaintiffs alleged interference with economic relations. The plaintiffs
15-22
2012 Revision
were disinherited by a subsequent will, and they did not discover the new
will until the decedents death. The appellate court reversed the lower
courts ruling by finding that the damages accrued upon the decedents
death and, therefore, the statute of limitations started to accrue then rather
than when the will was executed. Butcher, 244 Or App at 324.
COMMENT: A prospective litigant should consider carefully
whether a jury trial would help or hurt the cause of action, and
whether the elements of the tort can be proved.
For further discussion of the tort of intentional interference with
economic relations, see 2 TORTS ch 26 (OSB Legal Pubs 2012).
15.3
WRONGFUL DEATH CLAIMS AND PROCEDURES;

SURVIVORSHIP OF CAUSES OF ACTION
15.3-1 Introduction
Actions for wrongful death are authorized by ORS 30.010
30.100. The action must be brought by the personal representative of the
decedent, who brings the action for the benefit of the decedents surviving spouse, children, stepchildren, parents, and stepparents, or other
intestate heirs under ORS 30.020(1); or for the devisees under the will
pursuant to ORS 30.075.
Typically, but not necessarily, ORS 30.075 is the applicable
statute when a person is injured and subsequently dies of a cause that is
unrelated to the injury. See Roe v. Pierce, 102 Or App 152, 157, 794
P2d 4 (1990), vacated on other grounds, 313 Or 228 (1992) (the court
rejected the argument that ORS 30.075 applies only in cases where the
injured person died of causes unrelated to those for which a claim can be
made under ORS 30.020). Under ORS 30.075, causes of action arising
out of injuries to a person do not abate upon the injured persons death.
An action for wrongful death must be commenced within three
years after the injury causing the decedents death is discovered or
reasonably should have been discovered. ORS 30.020(1). The statute
also sets forth other time limitations on the commencement of an action.
See 15.3-4. See generally 2 TORTS ch 30 (OSB Legal Pubs 2012).
15-23
2012 Revision
Oregon law does not recognize other claims that are, essentially,
wrongful death claims, unless they are brought pursuant to ORS
30.01030.100. For example, a child cannot bring a separate action for
emotional distress and loss of parental consortium. Horwell by Penater
v. Oregon Episcopal Sch., 100 Or App 571, 574575, 787 P2d 502
(1990) (a minor childs action for negligent infliction of emotional
distress and loss of parental consortium, alleging that her parent died
due to the defendants negligence, was in substance a wrongful death
action and thus had to meet the requirements of the wrongful death
statute); Simons v. Beard, 188 Or App 370, 373374, 72 P3d 96 (2003)
(a mother cannot recover for emotional distress for the death of a viable
fetus, but she can recover for emotional distress associated with her own
injuries and impact in the birthing process).
15.3-2 Victims Personal Representative
15.3-2(a) Appointment
When a persons death is caused by the wrongful act or omission
of another, or when a person dies while a tort action is pending (whether
or not the tort caused the death), the decedents personal representative
may maintain an action against the wrongdoer if the decedent, had he or
she survived, could have maintained an action against the wrongdoer for
injuries. ORS 30.020(1), 30.075. The personal representative is an
officer of the court representing the interests of several groups of survivors:
(1) The decedents surviving spouse, surviving children and
stepchildren (minors or adults), and surviving parents and stepparents,
ORS 30.020(1);
(2) Persons who, under the laws of intestate succession, would
be entitled to inherit the decedents personal property, ORS 30.020(1);
and
NOTE: Parents have a right to recover damages, whether or
not they would inherit personal property under the laws of intestate
succession, and even if the decedent has a spouse and children.
Rake v. Boise Cascade Corp., 43 Or App 767, 770, 604 P2d 421
(1979).
15-24
2012 Revision
(3) If the action is brought under ORS 30.075, the beneficiaries

of the action are those who take under the decedents will, see Roe v.
Pierce, 102 Or App 152, 156, 794 P2d 4 (1990), vacated on other
grounds, 313 Or 228 (1992).
Actions under ORS 30.075 are not limited to those in which the
tort did not cause the decedents death; this statute also contemplates
actions in which the defendants wrongful act eventually results in the
decedents death. See Roe, 102 Or App at 156; see also ORS 30.075(3).
Only a personal representative may bring an action for wrongful
death. ORS 30.020(1); Brown v. Hackney, 228 Or App 441, 449, 208
P3d 988 (2009); Ross v. Robinson, 169 Or 293, 304305, 124 P2d 918
(1942). A personal representative in a wrongful death claim is appointed
pursuant to ORS chapter 113. Any interested person or executor named
in the will may petition for the appointment of a personal representative.
ORS 113.035. See 5.2-2(a) to 5.2-2(b).
After the petition for the appointment of a personal representative
is filed, the court is authorized to appoint a qualified person it finds
suitable as personal representative, giving preference in the order set
forth in ORS 113.085. See In re Roedlers Estate, 110 Or 147, 151, 222 P
301 (1924).
Although the person who is appointed as the personal
representative may be the person nominated under the decedents will to
serve, the proceeds from the wrongful death action may or may not pass
pursuant to the terms of the will. See Roe, 102 Or App at 156. The
primary reason to petition for admission of the will and to appoint the
person nominated in the will as the personal representative is to avoid
the requirement of a bond when the language of the will waives the
bond. See chapter 5.
The personal representative is authorized to [p]rosecute claims of
the decedent including those for personal injury or wrongful death. ORS
114.305(20). See also ORS 30.070.
PRACTICE TIP: In the absence of a will, the court may follow
the preference statute, ORS 113.085, and appoint any one of a
number of persons. The result may be a race to the courthouse for
15-25
2012 Revision
the appointment when some family members believe that the loss
is theirs alone and try to exclude other family members from any
recovery, particularly in view of the different potential beneficiaries under ORS 30.020 and 30.075. The lawyer should give careful
thought to selecting the best plaintiff to serve as the personal
representative, and in deciding which statute to use, ORS 30.020 or
ORS 30.075. See Roe, 102 Or App at 156.
15.3-2(b) Petition for Appointment
Any interested person or executor named in the will may petition
for the appointment of a personal representative. ORS 113.035. The
petition for the appointment of a personal representative in a wrongful
death claim must be carefully drafted. If the wrongful death action is the
only asset in the estate, the petition should so state and indicate value
unknown. In such a case, an estate is not administered per se.
Publication of notice to creditors (see 2.5-1, 5.2-8, 7.3-2(a), 9.3-3),
inventory (see 7.4-1 to 7.4-5), tax releases (see chapter 7), and annual
accountings (see chapter 11) are not required in most counties. See ORS
30.030(5). The personal representative must comply with the
requirements for accounting and closing the estate under ORS chapter
166. Including any other assets in the estate, however, triggers the full
administrative process.
15.3-2(c) Award and Settlement
The personal representative in a wrongful death action may seek
and be awarded five different types of damages:
(1) Expenses incurred for services rendered to the decedent,
including charges for doctor, hospital, nursing or medical services, and
burial and memorial services, ORS 30.020(2)(a);
(2) Damages that would compensate the decedent for
disability, pain, suffering, and loss of income between the time of injury
and the date of death, ORS 30.020(2)(b);
(3) Compensatory damages for pecuniary loss to the decedents
estate, ORS 30.020(2)(c);
15-26
2012 Revision
(4) Just, fair, and reasonable compensation for the decedents

spouse, children, stepchildren, parents, and stepparents for pecuniary
loss and for loss society, companionship and services of the decedent,
ORS 30.020(2)(d) (note that parents are included in the group of people
entitled to share in a damages award for wrongful death); and
(5) Punitive damages (separately stated in a finding or verdict)
that the decedent would have been entitled to recover from the
wrongdoer if the decedent had lived, ORS 30.020(2)(e).
Damages for emotional distress suffered by the persons who
survive the decedent are not recoverable in a wrongful death case.
Simons v. Beard, 188 Or App 370, 373374, 72 P3d 96 (2003) (a
mother could not recover for emotional distress for the death of her
viable fetus, but she could recover for emotional distress associated with
her own injuries and impact in the birthing process); Demars v. Erde, 55
Or App 863, 866867, 640 P2d 635 (1982).
The personal representative probably may pursue only the
damages that the decedent would have been able to pursue had he or she
lived, along with a normal loss-of-consortium claim and attorney fees.
ORS 30.075. The personal representative cannot pursue attorney fees if
the injuries sued for caused the decedents death. ORS 30.075(3). After
the decision in Roe v. Pierce, 102 Or App 152, 794 P2d 4 (1990),
vacated on other grounds, 313 Or 228 (1992), it is not clear whether the
plaintiff can pursue a claim for loss of consortium only for the time
period between the tort and the decedents death under ORS 30.075.
If an action for wrongful death is brought under ORS 30.020,
damages for disability, pain, suffering, and loss of income between the
time of the decedents injury and the time of his or her death can be
recovered only in the wrongful death action. ORS 30.075(3). See
generally 1 DAMAGES 13.113.30 (Oregon CLE 1998 & Supp 2007).
With the approval of the court, the personal representative has the
authority to settle a claim with no notice requirement to other interested
persons. ORS 30.070; Matter of Whites Estate, 289 Or 13, 19, 609 P2d
365 (1980); see ORS 114.305(20). See Forms 15-1 and 15-2. Although
the statute does not require notice to the beneficiaries or grant them a
15-27
2012 Revision
right to intervene in the proceeding to approve the settlement, . . . [t]hey

may be heard as a matter of right regarding allocation of the proceeds.
Matter of Whites Estate, 41 Or App 439, 444, 599 P2d 1147 (1979),
affd, 289 Or 13 (1980).
On the settlement or recovery of the judgment, the personal
representative must distribute the damages as prescribed in ORS 30.030,
if the personal representative brought the action under ORS 30.020.
ORS 30.030(1). The personal representative must pay or reimburse
costs, expenses, and fees incurred in prosecuting or enforcing the claim,
action, or judgment. ORS 30.030(2). Payment or reimbursement also
must be made for the reasonable charges incurred for doctor, hospital,
nursing, or other medical services, and burial and memorial services
rendered for the decedent. ORS 30.020(3).
15.3-3 Distribution of Wrongful Death Proceeds
15.3-3(a) In General
The careful probate lawyer in a wrongful death claim appears
before (or files appropriate documents with) the court, has the settlement approved, represents in detail to the court the charges prescribed
in ORS 30.030(2)(3) (see 15.3-2(c)), and asks the court to order that
those charges be paid. See Form 15-3. At this point, the personal representative is in possession of a given amount of money for distribution.
According to the practice in each jurisdiction, the personal representative may be required to post a corporate surety bond in the amount
of the proceeds, or may have the court order that the proceeds be
deposited in an interest-bearing account, not to be withdrawn except on
further order of the court.
If the proceeds are placed in an interest-bearing account, the
interest must be apportioned on distribution. The interest earned is
taxable income to the estate, and the personal representative must file a
tax return and apportion the tax appropriately among the beneficiaries
shares.
When the beneficiaries agree completely on the apportionment of
the proceeds, the personal representative may have all the beneficiaries
consent to or join in the petition for distribution, which is then presented
15-28
2012 Revision
to the court. See Forms 15-4, 15-5, and 15-6. If the beneficiaries do not
agree, the personal representative should file a petition proposing a
scheme of distribution, and notify the beneficiaries of it.
15.3-3(b) Compensating Decedents Family
The portion of the wrongful death damages intended to justly,
fairly, and reasonably compensate the decedents surviving spouse,
children, stepchildren, parents, and stepparents for pecuniary loss and
loss of society, companionship, and services must be distributed as follows:
(1) In accordance with each persons loss as determined by
agreement, ORS 30.020(2)(d), 30.030(4); or
(2) By the probate court in the case of a settlement and absent
agreement among the beneficiaries, ORS 30.040; or
(3) As determined by the trial judge if the judgment for the
plaintiff is given, and absent agreement by the beneficiaries, ORS
30.050.
Any remaining damages pass pursuant to the laws of intestate
succession, but no damages are subject to taxes or claims against the
decedents estate. ORS 30.030(5).
If the matter proceeds to trial, the probate court takes evidence
from each of the persons asserting an interest in the proceeds on the
issues of pecuniary loss and loss of society, companionship, and
services. See Matter of Whites Estate, 41 Or App 439, 444, 599 P2d
1147 (1979), affd, 289 Or 13 (1980).
PRACTICE TIP: Special problems arise when the beneficiaries
disagree about the apportionment of the wrongful death proceeds.
One problem is the personal representatives potential conflict of
interest. The personal representatives lawyer must exercise great
caution to ensure that he or she does not provide representation for
any other members of the group.
15-29
2012 Revision
15.3-3(c) Minors as Recipients of Proceeds

Problems may arise when members of the class receiving the
proceeds from a wrongful death action are minors, in which case most
courts will require the appointment of a lawyer to represent the minors
interests. In some counties, the court makes the appointment on its own
motion when a large amount of money is involved. If the amount of
money that accrues to a minors benefit exceeds $10,000, a conservator
must be appointed. See ORS 126.700. Although ORS 126.700 allows
for payment of less than $10,000 to a natural parent or guardian, many
insurance companies require that a release be executed by a conservator
to protect the company against liability once the minor reaches the age of
majority.
If payment to a minor from a settlement agreement or pursuant to a
judgment exceeds $25,000, a conservator must be appointed. See ORS
126.725(1)(b). Without a conservator, problems arise if the minor alleges
that he or she never received the money or the benefit of it from the
guardian. The court can either continue the conservatorship until the
minor reaches the age of 18 or allow the conservator to distribute the
funds to a parent as trustee pursuant to ORS 126.700, after which the
conservatorship is closed. See GUARDIANSHIPS, CONSERVATORSHIPS, AND
TRANSFERS TO MINORS (OSB Legal Pubs 2009).
An early New York case, In re Kaisers Estate, 198 Misc 582, 100
NYS2d 218, 220 (Sur 1950), applied a formula to determine the
allocation of the wrongful death proceeds with regard to pecuniary loss.
The decedent was survived by a spouse and a one-year-old child. Given
the decedents life expectancy of 25.27 years at the time of death, the
court used, as the numerator, the years of dependency of the beneficiary
and, as the denominator, the years of dependency plus the life
expectancy of the decedent. This fraction multiplied by the net proceeds
determined the childs share.
15.3-4 Statutes of Limitations
An action for wrongful death must be commenced within three
years after the injury causing the death of the decedent is discovered or
15-30
2012 Revision
reasonably should have been discovered. ORS 30.020(1). In any case,

an action may not be commenced later than the earlier of the following:
(1)
Three years after the decedents death, ORS 30.020(1)(a);
or
(2) The longest of any other period for commencing an action
under a statute of ultimate repose that applies to the act or omission
causing the injury, including but not limited to the statutes of ultimate
repose provided for in ORS 12.110(4), 12.115, 12.135, 12.137 and
30.905, ORS 30.020(1)(b).
An action under ORS 30.075, if commenced before the
decedents death, must comply with the time limits of ORS 12.110; if
not commenced before the decedents death, the action must be
commenced by the personal representative within three years of the
injury. ORS 30.075(1).
The wrongful death statute of limitations controls over the
medical malpractice statute of limitations in ORS 12.110(4). Baxter v.
Zeller, 42 Or App 873, 877, 601 P2d 902 (1979). But see Kambury v.
DaimlerChrysler Corp., 334 Or 367, 374, 50 P3d 1163 (2002) (the
product liability statute of limitations is the more specific statute and
must control over the more general wrongful death statute of
limitations). Furthermore, ORS 30.020 contains no tolling procedure
for any delay in the appointment of a personal representative. Eldridge
v. Eastmoreland Gen. Hosp., 307 Or 500, 505, 769 P2d 775 (1989);
Korbut v. Eastman Kodak Co., 100 Or App 649, 650, 787 P2d 896
(1990) (the action was dismissed when the personal representative was
appointed more than two years after the decedents death, and brought a
medical malpractice action against several defendants more than three
years after the injury that caused the death, but within two years of
discovery of the cause of injury).
The statute of limitations for wrongful death actions against
public bodies is governed by ORS 30.275. See Housen v. Morse Bros.,
Inc., 32 Or App 491, 493, 574 P2d 361 (1978) (an action against a
public body must be commenced within two years after the occurrence
giving rise to the right).
15-31
2012 Revision
The statute of limitations in products liability cases is governed

by Oregons Products Liability Act, ORS 30.90030.928. Thompson v.
Communications Tech., Inc. (CTI), 877 F2d 27, 28 (9th Cir 1989).
The statute of limitations for products liability actions arising out
of injury from breast implants is governed by ORS 30.908.
All statutes of limitations imposed under ORS chapter 115 apply
to actions brought in the name of the state, or brought in the name of
any county or public corporation, and to actions brought for the benefit
of the state or for the benefit of any county or public corporation. ORS
115.008.
15.3-5 Attorney Fees and Personal Representative Fees
A cause of action arising out of injuries to a person does not abate
on the persons death. ORS 30.075(1). Attorney fees are allowed to the
prevailing plaintiff in ORS 30.075 claims. ORS 30.075(2). Attorney
fees are not allowed, however, if the injury actually results in the death
of the person. ORS 30.075(3).
Fees to personal representatives should take into account a
wrongful death recovery. In Brown v. Hackney, 228 Or App 441, 448
449, 208 P3d 988 (2009), the court of appeals concluded that the phrase
whole estate under ORS 116.173 included a wrongful death settlement
for purposes of calculating the personal representatives fee.
15.3-6 Jury Instructions
UCJI Nos. 21.01, 21.03, 21.04, and 21.05 (relating to comparative
negligence) may help the lawyer in structuring the proof required to
realize the damages claimed and promote a proper allocation of the
award received.
15.3-7 Tortfeasors Personal Representative
15.3-7(a) Effect of Tortfeasors Death
The death of a wrongdoer does not abate the plaintiffs wrongful
death claim for relief. The claim of the plaintiffs personal representative continues against the personal representative of the wrongdoers
15-32
2012 Revision
estate, with the exception that punitive damages will not lie. ORS
30.080.
15.3-7(b) Parties
When a wrongdoer dies after the commencement of an action for
injuries or wrongful death, the court, upon motion of the plaintiff or the
plaintiffs personal representative, shall cause to be substituted as
defendant the personal representative of the wrongdoer, and the action
shall continue against such personal representative. ORS 30.100.
When a wrongdoer is deceased when the action is filed, the action
must be brought against the personal representative of the wrongdoers
estate. Worthington v. Estate of Davis, 250 Or App 755, 764, 282 P3d
895 (2012); Ramirez v. Lembcke, 191 Or App 70, 76, 80 P3d 510 (2003)
(the court has no jurisdiction over a deceased wrongdoer). See ORS
30.080. If the plaintiff filed an action against a deceased wrongdoer, the
plaintiff must then file an amended or supplemental complaint to name
the personal representative of the wrongdoers estate as the defendant.
Ramirez, 191 Or App at 76; Worthington, 250 Or App at 764. It is not
proper or sufficient for the plaintiff to simply have a personal
representative appointed for the wrongdoer, and then continue the case
against the decedent personally. Ramirez, 191 Or App at 7677 (the
case was dismissed for want of personal jurisdiction because the
plaintiff named only the decedent as the defendant).
15.3-7(c) Petition for Appointment
If no estate is initiated for the deceased wrongdoer within 60 days
of the wrongdoers death, the plaintiff may petition the court to appoint
an administrator. ORS 30.090.
PRACTICE TIP: If the plaintiff must secure the appointment of
a personal representative to have a party defendant, the plaintiff
may allege in the petition that the plaintiff is seeking the
appointment under ORS 30.090; this procedure restricts the scope
of the proceeding to the wrongful death action alone. By securing
this appointment, the tortfeasors personal representative has not
volunteered to probate any assets requiring administration that
belong to the decedent wrongdoer.
15-33
2012 Revision
PRACTICE TIP: Obtaining the appointment of a personal

representative for a tortfeasor occasionally occurs when the decedent wrongdoer owned nothing that required probate administration, and the family members simply do not wish to be involved in
the lawsuit. A lawyer often finds another lawyer who is willing to
be appointed for the purpose of tendering the defense to the
insurance company. Most lawyers give notice, either formally or
informally, to the relatives of the deceased wrongdoer of their
intent to proceed in this fashion. Occasionally, a family member
will then come forward and serve. On tendering the defense to the
insurance carrier, the personal representative in this situation often
chooses to resign and allow the insurance company, as the real
party in interest, to request appointment of a successor personal
representative. A lawyer should avoid appointing one of his or her
own staff members to serve as personal representative.
15.3-8 Closing the Estate
When a plaintiffs estate consists of assets requiring probate
administration as well as a claim for wrongful death, all of the steps of
administration can be completed and the distribution of assets can be
made before the wrongful death action is resolved. See ORS 116.013.
The estate must not be closed, however, because the personal representative continues to be a party in the pending proceeding (whether the
personal representative is the plaintiff or the defendant). Once the
wrongful death action is concluded, the estate may be closed when the
receipts evidencing the distribution of the proceeds are filed. ORS
116.213.
In Haugh v. Kilmer, 71 Or App 345, 692 P2d 631 (1984), the
decedent was survived only by his parents. Before the appointment of a
personal representative for the decedent, the parents obtained a
settlement from the defendants and released them from further liability.
A subsequently appointed personal representative filed an action for
wrongful death against the defendants. The trial court granted the
defendants motion for summary judgment on the ground that the
parents release barred the action. The court of appeals affirmed because
all the interested parties of a single class had joined in the settlement.
15-34
2012 Revision
15.4
PHYSICAL OR FIDUCIARY ABUSE OF

VULNERABLE PERSONS
A vulnerable person who suffers injury, damage or death by

reason of physical abuse or financial abuse has a cause of action
against any person who has caused the physical or financial abuse or
who has permitted another person to engage in physical or financial
abuse. ORS 124.100(2).
Under the statute, the term vulnerable person means:
(1) An elderly person, that is, a person who is age 65 or
older, ORS 124.100(1)(a), (e)(A);
(2) A financially incapable person (as defined in ORS
125.005), ORS 124.100(1)(b), (e)(B);
(3) An incapacitated person (as defined in ORS 125.005),
ORS 124.100(1)(c), (e)(C); or
(4)
A person with a disability who is
threat, duress, coercion, persuasion or physical
because of the persons physical or mental
124.100(1)(e)(D) (see ORS 124.100(1)(d) for the
with a disability).
susceptible to force,
or emotional injury
impairment, ORS
definition of person
The action may be brought by (1) the vulnerable person; (2) a

guardian, conservator, or attorney-in-fact for the vulnerable person;
(3) the personal representative for the estate of a decedent who was a
vulnerable person at the time the cause of action arose; (4) a trustee for
a trust on behalf of the trustor or the spouse of the trustor who is a
vulnerable person; (5) the attorney general; (6) the Department of
Human Services; or (7) any district attorney. ORS 124.100(3), 124.125.
NOTE: An action may also be brought against any person
who has permitted another person to engage in physical or
financial abuse. ORS 124.100(2), (5).
The term financial abuse includes a wrongful taking of the money
or property of a vulnerable person, ORS 124.110(1)(a). See Church v.
Woods, 190 Or App 112, 117, 77 P3d 1150 (2003). Financial abuse also
includes a transferees retention, without good cause, of a vulnerable
15-35
2012 Revision
persons money or property after the vulnerable person has requested

that the money or property be returned. ORS 124.110(1)(b); see Hoffart
v. Wiggins, 226 Or App 545, 549550, 204 P3d 173 (2009) (the plaintiff
need not prove that the broker wrongfully took the plaintiffs property).
Physical abuse subject to the statute is described in ORS 124.105.
Physical abuse includes the defendants use of any unreasonable
physical constraint on the vulnerable person. ORS 124.105(2). Also, an
action may be brought under the statute if the defendant subjected the
vulnerable person to prolonged or continued deprivation of food or
water. ORS 124.105(2).
A prevailing plaintiff in an action under ORS 124.100 may
recover (1) an amount equal to three times the economic damages
resulting from the physical or financial abuse, or $500, whichever is
greater; (2) an amount equal to three times all noneconomic damages;
(3) reasonable attorney fees; and (4) reasonable fees for a conservator or
guardian ad litem incurred because of the litigation. ORS 124.100(2).
A valid claim for the wrongful appropriation of money or
property of a vulnerable person does not require a traditional fiduciary
relationship between the plaintiff and the defendant. ORS 124.110(1)
(overruling White v. McCabe, 159 Or App 189, 979 P2d 289 (1999)).
A taking can include creating in the defendant a right of
survivorship in the abused persons real property. Church v. Woods, 190
Or App 112, 117, 77 P3d 1150 (2003). In Church, 190 Or App at 118,
the court of appeals also defined the word wrongful, stating that
[c]onduct generally is wrongful if it is carried out in pursuit of an
improper motive or by improper means. Improper means must be
independently wrongful by reason of statutory or common law, beyond
the mere fact of the injury complained of. Church, 190 Or App at 118.
Improper means may include violence, threats, intimidation, deceit,
misrepresentation, bribery, unfounded litigation, defamation and
disparaging falsehood. Church, 190 Or App at 118 (quoting Conklin
v. Karban Rock, Inc., 94 Or App 593, 601, 767 P2d 444 (1989)). The
court stated that undue influence also can constitute improper means.
The court explained that the emphasis in cases involving undue
15-36
2012 Revision
influence should be on the unfairness of the advantage reaped. Church,

190 Or App at 118.
The appellate court has ruled on a few elder-abuse cases in the past
few years. Of note are the following decisions:
(1) In order to be liable for permitting another person to
engage in physical or financial abuse under ORS 124.100(5), the
defendant must have known, or reasonably should have known, that the
abuser would abuse the plaintiff, Miller ex rel. Miller v. Tabor W. Inv.
Co., LLC, 223 Or App 700, 717, 196 P3d 1049 (2008) (an apartment
manager had no idea that one tenant might follow another to a mini mart
and assault the other tenant);
(2) A participant in an allegedly fraudulent investment scheme
can be liable under ORS 124.100, along with securities violations under
ORS chapter 59, and racketeering violations under ORS chapter 166,
Cruze v. Hudler, 246 Or App 649, 267 P3d 176 (2011), adhd to as
modified on recons., 248 Or App 180 (2012);
(3) Taking property includes diminishing the owners share in
the property, Church, 190 Or App at 117118 ([b]ecause the
conveyance transferred an undivided interest in Eldens property to
defendant, and it diminished Eldens interest commensurately, defendant
took Eldens property within the meaning of ORS 124.110(1)(a));
(4) The initial taking of property need not be wrongful for an
action to exist under ORS 124.110(1)(b) for the wrongful retention of
property, Hoffart, 226 Or App at 548549 (after the plaintiffs asked their
investment broker to return their money to them, the broker acted in bad
faith in failing to return the entire amount of their investment); and
(5) An action for financial abuse under the current version of
ORS 124.110(1)(a) does not require the existence of a fiduciary
relationship between the abuser and the vulnerable person, Cruze, 246 Or
App at 666; see White, 159 Or App at 195 (the court construed an earlier
version of the statute to require a fiduciary relationship).
15-37
2012 Revision
PRACTICE TIP: A copy of the complaint must be served on

the attorney general within 30 days after the action is commenced.
ORS 124.100(6).
For further information on civil actions for the abuse of a
vulnerable person, see ELDER LAW ch 10 (Oregon CLE 2000 & Supp
2005).
15-38
2012 Revision
Form 15-1
Petition of Personal Representative for Approval

and Authority to Settle Wrongful Death Claim

Estate of
)
)
)
)
)
)
)
)
)
)
____________________,
Deceased.
Case No. _____

PETITION OF
PERSONAL
REPRESENTATIVE FOR
APPROVAL AND
AUTHORITY TO SETTLE
WRONGFUL DEATH
CLAIM
The personal representative represents:

1.
An agreement to settle the wrongful death claim of
____________, deceased, filed in the ____________ Court, Case No.
_____, has been reached for the amount of $_______, subject to the
approval of this Court.
2.
The affidavit of [lawyer for petitioner] in support of this
settlement and in support of attorney fees and costs in the total amount
of $__________ is attached to this petition and marked Exhibit 1.
3.
Notice of the proposed settlement and this petition have been
given to decedents surviving spouse, children, and parents.
[or]
15-39
2012 Revision
3.
The surviving spouse, children, and parents have agreed to this
settlement subject to the approval of the Court as indicated by their
signatures on this petition.
WHEREFORE,
4.
The personal representative prays for an order:
(a) Approving the agreement of the personal representative to
settle the above-described wrongful death claim for the sum of
$_______;
(b) Authorizing the personal
appropriate settlement instruments;
representative
to
execute
(c) Authorizing the personal representative to pay attorney fees

in the wrongful death action in the sum of $______ and costs of
$________, as supported by the attached affidavit of _______________;
and
(d) Authorizing the deposit of the settlement funds after
payment of attorney fees and costs in _____________ Bank, not to be
withdrawn until further order of the Court.
DATED:____________________, 20___.
15-40
2012 Revision

/s/__________________________
[name]
/s/__________________________
[name]
Surviving Spouse
/s/__________________________
[name]
Decedents Father
/s/__________________________
[name]
Decedents [Daughter / Son]
/s/__________________________
[name]
Decedents [Daughter / Son]
[name]
[address]
[telephone no.]
[fax no.]
15-41
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
NOTE: Although notice to spouse, parents, and children is not

required by statute, the failure to represent all their interests adequately
could result in a malpractice claim against the lawyer for the personal
representative; the notice of settlement and an opportunity for them to
object should diminish this risk.
COMMENT: See 15.3-2(c). See also ORS 30.070, 111.205. See
UTCR 2.010 and UCTR 9.030 for the form of documents.
15-42
2012 Revision
Form 15-2
Affidavit of Lawyer
EXHIBIT 1
Estate of
____________________,
Deceased.
)
)
)
)
)
)
Case No. _____

AFFIDAVIT OF
[LAWYER FOR
PETITIONER]
I, ___________________, being first sworn, say:

[Describe claim, the amount of the settlement, and reason for
recommending settlement; negligence; decedents earnings, age, and
health; ages of spouse, children, and parents; and other damages items,
such as medical and funeral expenses, pain and suffering, loss of wages,
support given to spouse, children, and parents, nature of family
relationships, and add the following:]
Considering the nature of the claim, the likelihood of recovery, the
pecuniary loss, and the loss of society and companionship and services of
the decedent as well as all other damages authorized by ORS
30.020(2)(d), I recommend acceptance of the settlement.
15-43
2012 Revision
[Describe fee arrangement.]
/s/__________________________
[name]
Lawyer for Petitioner
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
SUBSCRIBED AND SWORN TO before me on ________,
20___.
/s/__________________________
COMMENT: See 15.3-2(c). See also ORS 116.183; UTCR

9.060(2).
15-44
2012 Revision
Form 15-3
Order Approving Settlement of Wrongful Death

Claim

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
Case No. _____

ORDER APPROVING
SETTLEMENT OF
WRONGFUL DEATH
CLAIM
Based on the petition of the personal representative for approval

and authority to settle the wrongful death claim for the amount of
$__________, and it appearing that notice of the proposed settlement
has been given to the proper parties; and the Court being fully advised;
IT IS ORDERED that the settlement of the personal
representative of the wrongful death claim filed in the _____________
Court, Case No. _______, in the amount of $__________ is hereby
approved; and attorney fees and costs in the amount of $__________
hereby approved;
15-45
2012 Revision
IT IS FURTHER ORDERED that the proceeds of the settlement

be deposited in an interest-bearing account in _________________
Bank not to be withdrawn until further order of this Court.
DATED: __________________, 20___.
/s/__________________________
[name]
Judge
[name]
[address]
[telephone no.]
[fax no.]
[name]
[OSB no.]
[address]
[telephone no.]
[fax number]
[e-mail address]
NOTE: The final paragraph is unnecessary if an apportionment

agreement has been reached, and funds are to be distributed
immediately. No increase in the bond should be necessary under these
circumstances.
15-46
2012 Revision
COMMENT: See 15.3-3(a). See also ORS 30.070. See UTCR

2.010 and UCTR 9.030 for the form of documents.
NOTE: In the probate court, the last page of every order must
also UTCR 2.010(7), (12).
15-47
2012 Revision
Form 15-4
Petition for Apportionment of Proceeds of

Wrongful Death Settlement or Judgment

Estate of
____________________,
Deceased.
[Settlement]
[or]
_____________________,
of the Estate of
_____________________,
Deceased
v.
_____________________,
[Judgment]
15-48
2012 Revision
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. _____

PETITION FOR
APPORTIONMENT OF
PROCEEDS OF
WRONGFUL DEATH
[SETTLEMENT /
JUDGMENT]
The personal representative represents:

1.
[The settlement of the claim for the wrongful death of this
decedent has now been approved by the court / The judgment has been
obtained for this wrongful death action]. The amount of the [settlement /
judgment] is $__________. After payment of attorney fees
($________), costs ($________), medical expenses ($________), and
funeral expenses ($_________), the sum of $_________ plus
accumulated interest will be available for distribution. Surviving the
decedent are the spouse, _______________; the decedents parents,
_______________ and _______________; and the decedents children,
_______________, ________________, and _________________.
2.
The decedents spouse, parents, and children are each entitled to
receive the amount that would justly, fairly, and reasonably compensate
them for their pecuniary loss and for the loss of the society,
companionship, and services of the decedent.
3.
The personal representative is giving notice to all of the following:
Name
ADDRESS
RELATIONSHIP
AGE
[spouse]
[children]
[decedents father]
[decedents mother]
4.
A hearing on the apportionment will be held on ______________,
20___, before [judge], Room _____, ___________ County Courthouse,
to determine the apportionment of the settlement among the parents,
spouse, and children of the decedent, and each party should appear with
his or her lawyer at that time.
15-49
2012 Revision
WHEREFORE,
5.
Petitioner prays that the [settlement / judgment] funds and interest
remaining after payment of attorney fees, costs, medical expenses, and
funeral expenses be apportioned as provided by law.
DATED:____________________, 20___.
/s/__________________________
[name]
[name]
[address]
[telephone no.]
[fax no.]
15-50
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 15.3-3(a). See also ORS 30.02030.070,

111.205. See UTCR 2.010 and UCTR 9.030 for the form of documents.
15-51
2012 Revision
Form 15-5
Agreement of Spouse, Children, and Parents for

Judgment

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
)
)
Case No. _____

AGREEMENT OF
SPOUSE, CHILDREN,
AND PARENTS FOR
APPORTIONMENT OF
WRONGFUL DEATH
[SETTLEMENT /
JUDGMENT]
The undersigned spouse, children, and parents of the decedent

fully understand that they are each entitled to receive as part of the
[settlement / judgment] in the wrongful death action filed in
__________________ Court, Case No. _________, against [defendants
name], an amount that would justly, fairly, and reasonably compensate
them for their pecuniary loss and for the loss of the society,
companionship, and services of the decedent. The undersigned fully
understand that any additional amounts received in the settlement
should be distributed in accordance with the laws of intestate succession
in the decedents state of domicile. The undersigned have been advised
by the lawyer for the personal representative that the lawyer cannot
represent any of the undersigned with respect to a dispute among them
as to the apportionment of the proceeds of the [settlement / judgment].
The undersigned have been advised that it is in their best interests for
each of them to obtain a lawyer to represent their interests, advise them
15-52
2012 Revision
of their rights, and recommend to them the amount they should receive.
The undersigned parties to this agreement have determined that they
wish to settle the apportionment among themselves. Now, therefore, the
parties agree to the apportionment of the [settlement / judgment] as
follows:
(1)
Attorney fees $_________
(2)
Costs $_________
(3) Doctor, hospital, nursing, and burial and memorial services

for the decedent $_________
(4)
Spouse
[name]
$_________
(5)
Father
[name]
$_________
(6)
Mother
[name]
$_________
(7)
Children
[name]
$_________
[name]
$_________
[name]
$_________
(8) Beneficiaries under the laws of intestacy in state of the

decedents domicile $________.
AGREED to on _________________, 20___.
SPOUSE
/s/__________________________
CHILDREN:
/s/__________________________
FATHER:
/s/__________________________
/s/__________________________
MOTHER:
/s/__________________________
/s/__________________________
15-53
2012 Revision
NOTE: Minor children cannot agree to the settlement; a guardian

ad litem and/or a lawyer should be appointed for them.
15-54
2012 Revision
Form 15-6
Order of Apportionment of Wrongful Death

Settlement or Judgment

Estate of
____________________,
Deceased.
)
)
)
)
)
)
)
)
Case No. _____

ORDER OF
APPORTIONMENT OF
WRONGFUL DEATH
[SETTLEMENT /
JUDGMENT]
This matter has come on the petition for apportionment of the

[settlement / judgment] of the wrongful death proceeds and interest, and
the parties to the apportionment have appeared individually and by
their respective lawyers, and the Court has heard their testimony. The
Court finds that the spouse is entitled to $________, the parents are
entitled to $_________, the children are entitled to $__________,
divided as follows: _____________, _______________, and
________________, and the beneficiaries under the laws of intestacy of
the decedents domicile are entitled to $__________; now, therefore, it
is
ORDERED that the proceeds recovered for the wrongful death
claim of _________, deceased, and interest on the [settlement /
judgment] be apportioned as follows:
15-55
2012 Revision
(1)
Spouse
$_________
(2)
Father
$_________
(3)
Mother
$_________
(4)
Child [name]
$_________
(5)
Child [name]
$_________
(6)
Child [name]
$_________
(4) Beneficiaries under the laws of intestacy of the decedents

domicile $________.
IT IS FURTHER ORDERED that the funds received in
settlement be deposited in _________________ Bank and not released
until further order of this court.
DATED: __________________, 20___.
/s/__________________________
[name]
Judge
[name]
[address]
[telephone no.]
[fax no.]
15-56
2012 Revision

[name]
[OSB no.]
[address]
[telephone no.]
[fax no.]
[e-mail address]
COMMENT: See 15.3-3(a). See UTCR 2.010 and UCTR 9.030 for
the form of documents.
NOTE: In the probate court, the last page of every order must
also UTCR 2.010(7), (12).
15-57
2012 Revision
TABLE OF FORMS AND APPENDIXES
Chapter 1Alternatives to Probate

Form 1-1
Form 1-2
Affidavit Pursuant to ORS 708A.430(2)
Chapter 2Probate Jurisdiction and Procedures

Appendix 2A
Table of Situations Requiring Petitions
Appendix 2B
Table of Notice Requirements
Appendix 2C
Table of Judgments and Orders in Probate Court
Appendix 2D
Table of Potential Probate Situations
Appendix 2E
Table of Time Limitations
Form 2-1
Order Transferring Venue
Form 2-2
Order Establishing Venue Where First Commenced
Form 2-3
Notice of Hearing
Form 2-4
Admission of Personal Service
Form 2-5
Waiver of Notice
Form 2-6
Waiver of Notice and Consent to Entry of Order
Chapter 3Preadministration Procedures

Appendix 3A
Master Information List
Appendix 3B
Initial Information Checklist
Appendix 3C
Probate Checklist
Form 3-1
Appointment of Person to Make Decisions Concerning

Disposition of Remains
F-1
2012 Revision
Table of Forms and Appendixes (continued)
Chapter 5Initiating Probate and Small-Estate Proceedings

Form 5-1
Initiating Probate: Critical Dates Checklist
Form 5-2
Letter to Personal Representative
Form 5-3
Petition for Probate of Will and Appointment of Personal

Representative
Form 5-4

Form 5-5
Affidavit of Attesting Witness to Will
Form 5-6
Affidavit of Witness to Signature of Testator or Witness
Form 5-7

Appointing Personal Representative
Form 5-8
Limited Judgment for Administration of Intestate Estate

and Appointment of Personal Representative
Form 5-9
Personal Surety Bond
Form 5-10
Information to Heirs and Devisees (Testate Estate)
Form 5-11
Information to Heirs (Intestate Estate)
Form 5-12
Affidavit of Proof of Mailing or Delivery of Information

to Heirs and Devisees
Form 5-13
Affidavit of Mailing Information to Oregon Department

of Human Services
Form 5-14
Waiver of Notice of Information
Form 5-15
Notice to Interested Persons
Form 5-16
Affidavit of Publication
Form 5-17
Affidavit of Claiming Successor of Small Estate (Testate

Estate)
Form 5-18

(Intestate Estate)
F-2
2012 Revision
Chapter 6Special Considerations

Form 6-1
Petition for Appointment of Special Administrator
Form 6-2
Order Appointing Special Administrator
Form 6-3
Petition for Order Awarding Support
Form 6-4

Petition for Support
Form 6-5

Setting Time for Hearing
Form 6-6

Dependent Children of Decedent
Form 6-7

Support and Terminating Administration
Form 6-8
General Judgment Setting Aside Whole Estate
Chapter 7Initial Responsibilities and Liabilities of Personal

Representative
Form 7-1
Inventory of Property of Decedents Estate
Form 7-2
Form 7-3
Amended Inventory
Chapter 8Rights of Interested Persons

Form 8-1

ORS 114.610
Form 8-2
Disclaimer by Heir
Form 8-3
Disclaimer by Surviving Spouse
Form 8-4
Written Partial Disclaimer of Bequest of Partnership

Interest
Form 8-5
Disclaimer to Cover Residuary Interest
Form 8-6
Disclaimer of Intestate Succession or Devise
Form 8-7
Nontestamentary Disclaimer
F-3
2012 Revision
Chapter 9Claims Against the Estate

Form 9-1
Form of Claim Against Decedents Estate
Form 9-2
Personal Representatives Creditor Search Checklist
Form 9-3
Notice of Right to Assert Claims Against the Estate
Form 9-4
Proof of Personal Representatives Compliance
Form 9-5
Notice of Disallowance of Claim
Form 9-6
Request for Summary Determination of Claim
Form 9-7
Notice by Personal Representative of Separate Action on

Claim Required
Form 9-8

Claims
Chapter 10Managing Estate Assets

Form 10-1
Relinquishment of Possession and Control of Decedents

Property
Form 10-2
Application of Personal Representative for Authority,

Approval, or Instructions
Form 10-3
Petition of Personal Representative for Authority to Sell

Property
Form 10-4
Order Authorizing Sale of Property
Form 10-5
Petition for Order Requiring Testimony
Form 10-6
Order Requiring Testimony
Chapter 11Accounting, Distribution, and Closing

Appendix 11A Asset Schedule
Appendix 11B Receipts and Disbursements
Form 11-1
Annual or Other Accounting
Form 11-2
Final Accounting and Petition for General Judgment of

Final Distribution
F-4
2012 Revision
Form 11-3
Notice for Filing Objections to Final Accounting and

Petition for General Judgment of Final Distribution
Form 11-4
Verified Statement in Lieu of Final Accounting and

Petition for Judgment of Final Distribution
Form 11-5
Receipt for Partial Distribution
Form 11-6
Deed of Personal Representative
Form 11-7
Final Distribution Receipt
Form 11-8
Report of Unclaimed Assets
Form 11-9
Order of Escheat (of Unclaimed Assets)
Form 11-10
Receipt for Unclaimed Assets
Form 11-11

Representative and Closing Estate
Form 11-12
Order Directing Notice of Petition to Reopen Estate
Form 11-13
Notice of Petition to Reopen Estate
Form 11-14
Order Reopening Estate
Form 11-15
General Judgment Approving Final Account and

Authorizing Final Distribution
Form 11-16
Statement for Attorney Fees and Costs
Form 11-17
Petition to Reopen Estate
Chapter 15Litigation
Form 15-1
Petition of Personal Representative for Approval and

Authority to Settle Wrongful Death Claim
Form 15-2
Affidavit of Lawyer
Form 15-3
Order Approving Settlement of Wrongful Death Claim
Form 15-4
Petition for Apportionment of Proceeds of Wrongful

Death Settlement or Judgment
F-5
2012 Revision
Form 15-5
Agreement of Spouse, Children, and Parents for

Judgment
Form 15-6
Order of Apportionment of Wrongful Death Settlement

or Judgment
F-6
2012 Revision
TABLE OF STATUTES AND RULES

OREGON REVISED STATUTES
ORS
Page
ORS
Page
5.120.............................................. 2-41
28.090................................... 8-13, 8-15
12.020 ........................................... 15-5
28.100............................................ 8-16
12.080 ........................................... 4-32
28.110.............. 8-13, 8-14, 8-15, 10-46
12.110 ......................................... 15-31
28.160............................................ 9-23
12.110(4)..................................... 15-31
30.010 ......................................... 10-46
12.115 ......................................... 15-31
30.01030.100 ........3-25, 15-23, 15-24
12.135 ......................................... 15-31
30.020.....................3-25, 15-23, 15-26,
12.137 ......................................... 15-31
.........................15-27, 15-28, 15-31
12.250............................................ 9-22
30.02030.070 ............................ 15-51
14.030 ........................................... 7-38
30.020(1)................3-25, 15-23, 15-24,
15.170............................................ 2-26
.................................... 15-25, 15-31
18.005 ............. 2-57, 2-60, 2-61, 15-11
30.020(1)(a) ................................ 15-31
18.005(7) ....................2-30, 2-44, 2-55,
30.020(1)(b) ................................ 15-31
........................................ 2-56, 2-57
30.020(2)(a) ................................ 15-26
18.005(7)(a) .................................. 2-58
30.020(2)(b) ................................ 15-26
18.005(13) ..................................... 2-57
30.020(2)(c) ................................ 15-26
18.005(13)(d) ................................ 2-58
30.020(2)(d) ..........15-27, 15-29, 15-43
18.005(17) ......... 2-30, 2-45, 2-56, 2-57
30.020(2)(e) ................................ 15-27
18.028............................................ 2-31
30.020(3)..................................... 15-28
18.038 ......................................... 15-11
30.030 ......................................... 15-28
18.052 ......................................... 15-11
30.030(1)..................................... 15-28
18.082(2) ....................................... 2-44
30.030(2)..................................... 15-28
18.312................................... 9-13, 9-14
30.030(2)(3) .............................. 15-28
18.312(2) ....................................... 9-14
30.030(4)..................................... 15-29
19.205 ............. 2-43, 2-58, 8-16, 15-11
30.030(5).......................... 15-26, 15-29
19.205(1) .............................. 2-44, 2-45
30.040 ................................ 2-58, 15-29
19.255............................................ 2-58
30.050 ................................ 2-58, 15-29
21.105............................................ 15-7
30.070 ....... 15-25, 15-27, 15-42, 15-47
21.135............................................ 5-38
30.075 ..................15-23, 15-24, 15-25,
21.13521.170............................... 15-6
............. 15-26, 15-27, 15-31, 15-32
21.135(2)(h) .................................. 8-40
30.075(1).......................... 15-31, 15-32
30.075(2)..................................... 15-32
21.145 ........................................... 4-48
30.075(3)...............15-25, 15-27, 15-32
21.170................................... 5-45, 5-51
30.080 ......................................... 15-33
ch 28 ................................... 8-13, 10-46
30.090 ................................ 7-13, 15-33
28.010................................... 8-12, 8-15
30.100 ......................................... 15-33
28.01028.160.............8-10, 8-12, 9-23
30.275 ......................................... 15-31
28.040....... 8-10, 8-12, 8-13, 8-14, 9-23
30.90030.928 ............................ 15-32
28.070............................................ 8-16
S&R-1
2012 Revision
Table of Statutes and Rules (continued)

ORS
Page
30.905 ......................................... 15-31
30.908 ......................................... 15-32
30.930.......................................... 11-82
ch 59 ............................................ 15-37
59.53559.585............................... 1-17
59.540............................................ 1-17
59.555............................................ 1-17
59.560............................................ 1-17
59.565............................................ 1-17
59.570(1) ....................................... 1-17
59.570(3) ....................................... 1-17
59.580............................................ 1-17
ch 60 ............................................ 10-51
60.064.......................................... 10-52
60.081.......................................... 10-52
60.307(1) ..................................... 10-52
60.331.......................................... 10-52
62.430............................................ 1-14
ch 63............................................ 10-53
63.249 ......................................... 10-53
63.265(1)..................................... 10-53
63.265(2)(a) ................................ 10-53
63.265(2)(b) ................................ 10-53
ch 67............................................ 10-52
67.015 ......................................... 10-52
67.060 ......................................... 10-52
67.100 ......................................... 10-53
67.105 ......................................... 10-53
67.220(7)(a) ................................ 10-52
67.230 ......................................... 10-52
67.250.......................................... 10-52
67.255.......................................... 10-52
67.290 .............................. 10-52, 10-53
68.420............................................ 9-19
ch 78 ............................................ 10-28
78.3040........................................ 10-28
78.3060........................................ 10-28
78.4010........................................ 10-28
78.4010(1)(b) .............................. 10-28
78.4010(1)(c) .............................. 10-28
78.4020........................................ 10-28
78.4020(1)(c) .............................. 10-28
78.4020(3)(b) .............................. 10-28
82.010(1) .............................. 9-27, 9-28
S&R-2
2012 Revision
ORS
Page
82.010(2) ....................................... 9-28
86.620 ......................................... 10-17
87.430 ........................................... 4-46
92.010.......................................... 11-82
92.027.......................................... 11-83
ch 93 .............................................. 5-32
93.180(1)(a) .................................. 1-16
93.180(1)(b) .................................. 1-15
93.180(3) ....................................... 1-16
93.240(2) ....................................... 1-16
93.94893.979...................... 1-11, 4-19
93.955............................................ 1-11
93.959(3) ....................................... 1-11
93.961............................................ 1-11
93.967............................................ 1-11
93.969............................................ 1-11
93.977............................................ 1-11
97.082(1) ......................................... 3-9
97.130........... 3-7, 3-10, 3-14, 3-53, 6-4
97.130(1) ......................................... 3-9
97.130(2) ................................ 3-10, 6-4
97.130(2)(g) .................................... 6-4
97.130(3) ....................................... 3-10
97.130(3)(a) .................................. 3-10
97.130(4) ....................................... 3-10
97.130(5) ................................ 3-8, 3-10
97.130(6) ......................................... 3-9
97.130(7) ....................................... 3-10
97.130(10) ..................................... 3-10
97.145............................................ 3-10
97.150(1)(a) .................................. 3-14
97.150(1)(b)(c) ............................ 3-14
97.150(1)(d) .................................. 3-14
97.92397.949............................... 3-12
97.945(2) ....................................... 3-12
97.95197.982.......................... 3-5, 3-7
97.95197.983................................. 3-4
97.955(1)......................................... 3-4
97.955(2) ......................................... 3-4
97.955(2)(b) .................................... 3-6
97.955(2)(d) .................................... 3-6
97.957....................................... 3-5, 3-7
97.957(1) ......................................... 3-5
97.957(3) ......................................... 3-5

ORS
Page
97.957(4) ......................................... 3-5
97.959....................................... 3-5, 3-6
97.959(1) ......................................... 3-5
97.959(4) ......................................... 3-5
97.959(6) ......................................... 3-5
97.959(7)(8) .................................. 3-5
97.959(8) ......................................... 3-6
97.963(1) ......................................... 3-7
97.963(2) ......................................... 3-6
97.963(4) ......................................... 3-6
97.965.............................................. 3-7
97.967(1) ......................................... 3-7
97.967(2)(3) .................................. 3-7
97.969 ............................................. 3-4
97.976(1) ......................................... 3-5
97.976(2) ......................................... 3-5
97.978(2) ......................................... 3-7
97.978(3) ......................................... 3-7
105.005 ....................................... 10-46
105.605 ....................................... 10-46
105.623105.649................. 3-23, 5-40,
........... 7-12, 7-50, 8-30, 8-37, 8-45,
............ 8-48, 8-52, 8-54, 8-56, 8-58
105.625105.640........................... 8-37
105.628(2) ..................................... 8-37
105.629(1) ..................................... 8-35
105.629(3)(a) ................................ 8-32
105.629(3)(b) ................................ 8-32
105.629(3)(c) ................................ 8-32
105.629(3)(d) ................................ 8-32
105.629(3)(e) ................................ 8-32
105.629(5) ..................................... 8-32
105.633................................. 8-30, 8-31
105.633105.641........................... 8-32
105.633(2)(b) ................................ 8-31
105.633(3)(a)(A) ........................... 8-31
105.633(3)(a)(B) ........................... 8-31
105.633(3)(a)(B)(C) .................... 8-31
105.633(3)(a)(C) ........................... 8-32
105.633(3)(b) ................................ 8-32
105.634.......................................... 8-33
105.636.......................................... 8-33
105.638.......................................... 8-33
105.639.......................................... 8-33
ORS
Page
105.641.......................................... 8-33
105.642.......................................... 8-32
105.642(2) ..................................... 8-32
105.642(3)(a) ................................ 8-32
105.642(3)(b) ................................ 8-33
105.642(4)(a) ................................ 8-33
105.642(4)(b) ................................ 8-33
105.642(4)(c) ................................ 8-33
105.643................................. 8-37, 8-45
105.643105.649........................... 8-36
105.643(1) ..................................... 8-36
105.643(2)(a) ................................ 8-37
105.643(2)(b) ................................ 8-37
105.643(2)(c) ................................ 8-37
105.643(6) ..................................... 8-37
105.645....................7-12, 14-19, 14-60
105.920.......................................... 1-16
105.950(1) ................................... 13-27
ch 106.............................................. 4-6
106.010 ......................................... 4-24
106.150 ......................................... 4-24
106.310............................................ 4-6
106.340................................... 3-4, 8-19
106.340(1) ....................................... 4-6
108.700108.740........................... 8-28
109.010.......................................... 6-11
109.060 ......................................... 4-22
109.070 ......................................... 4-22
ch 111 ............................................ 2-57
111.005118.990............................. 2-4
111.005(5) ..................................... 4-20
111.005(7).....................9-4, 9-11, 15-8
111.005(12) ........................ 5-21, 10-37
111.005(18) ................................... 5-21
111.005(19) ........ 2-17, 2-18, 2-29, 5-6,
.................... 5-21, 7-26, 8-11, 15-3,
........................................ 15-4, 15-7
111.005(23) ................4-4, 7-41, 10-57
111.005(24) .................................... 4-4
111.005(26) ..................................... 6-5
111.005(27) ........................ 4-39, 10-37
111.015(1) .......................... 4-22, 10-55
111.055................................... 2-40, 5-5
111.070..................................... 2-5, 8-9
S&R-3
2012 Revision

ORS
Page
111.075..........................2-10, 5-5, 8-12
111.075111.085............................. 2-9
111.085............................2-6, 2-8, 2-10
111.085(3) ....................................... 2-7
111.085(5)(6) ................................ 2-8
111.085(6) ....................................... 2-7
111.095.........................2-7, 2-10, 2-30,
........................................ 2-31, 2-40
111.095(1) ....................................... 2-9
111.095(2)............ 2-9, 8-9, 8-10, 8-11,
.................... 8-12, 8-13, 8-14, 8-16,
...................................... 9-23, 10-45
111.105..........................2-9, 2-42, 2-43
111.105(2) ......... 2-41, 2-43, 8-16, 8-40
111.105(3) ............................ 2-41, 8-40
111.115..........................2-10, 2-62, 5-5
111.115(1) ...................2-10, 8-13, 8-40
111.115(2) ..................................... 2-11
111.115(3) ..................................... 2-11
111.175.......................................... 2-11
111.175111.185........................... 2-11
111.185.......................................... 2-12
111.185(1) ..................2-12, 2-13, 2-30,
..................... 2-31, 2-41, 2-59, 2-65
111.185(2) ............................ 2-12, 2-41
111.185(3) ...................2-12, 2-31, 2-41
111.205 ......................2-16, 2-17, 2-18,
............... 2-27, 2-42, 2-47, 5-6, 5-8,
........... 5-49, 5-54, 6-21, 6-28, 7-60,
......... 7-62, 7-64, 8-13, 8-15, 10-68,
.............. 10-73, 11-6, 11-27, 11-34,
............ 11-50, 11-62, 11-71, 11-87,
.............. 11-112, 15-6, 15-42,15-51
111.205111.275........................... 8-11
111.205(4) ..................................... 2-57
111.205(5) ..................................... 2-31
111.215 ............ 2-14, 2-29, 2-50, 2-51,
.................. 2-53, 7-26, 8-15, 10-37,
............. 11-27, 11-28, 11-32, 11-35
111.215(1)..................2-18, 2-22, 2-64,
.................................... 10-37, 11-35
111.215(1)(a) ....................... 2-21, 2-22
111.215(1)(a)(b) ............................ 6-8
111.215(1)(b) ....................... 2-21, 2-22
S&R-4
2012 Revision
ORS
Page
111.215(1)(c) .............2-21, 2-22, 2-26,
.............................2-32, 5-20, 11-48
111.215(2) ....... 2-22, 2-62, 2-64, 11-35
111.215(3) ..................................... 2-23
111.218 .............. 5-9, 5-73, 5-75, 5-77,
.............................7-27, 7-29, 10-37
111.218(1) ............................ 2-23, 5-20
111.218(2) ...................2-23, 5-20, 5-80
111.225 ........... 2-20, 2-23, 2-59, 10-37
111.235................................. 2-41, 2-65
111.245 .....................2-27, 6-17, 10-37
111.255.......................................... 2-27
111.265.......................................... 2-28
111.275............. 2-45, 2-56, 2-58, 2-59,
...............................2-60, 2-61, 8-12
111.275(1) ......... 2-30, 2-55, 2-56, 2-57
111.275(1)(a) ....................... 2-55, 5-16
111.275(1)(b) ..................... 2-55, 15-11
111.275(1)(c) ..................... 2-55, 11-32
111.275(1)(d) ....................... 2-55, 8-16
111.275(1)(e) ................................ 2-55
111.275(1)(f) ................................. 2-31
111.275(2) ........ 2-30, 2-31, 2-56, 5-16,
............... 8-16, 11-32, 11-33, 15-11
112.015 ................................ 4-4, 10-57
112.017(2)................................ 4-5, 4-6
112.025112.035............................. 5-9
112.025112.045.................... 4-6, 4-15
112.025112.055 ................. 4-4, 10-57
112.025(1)....................................... 4-7
112.025(2)....................................... 4-7
112.035 ........................................... 4-7
112.045 .........................4-10, 4-12, 5-9
112.045(1)................................ 4-7, 4-8
112.045(2)....................................... 4-9
112.045(3)............................ 4-10, 4-11
112.045(4)............................ 4-11, 4-12
112.045(5)..................................... 4-12
112.047..........................5-8, 7-14, 8-38
112.047(1).............................. 4-9, 4-10
112.047(1)(2) ................4-5, 4-9, 4-10
112.047(2).............................. 4-9, 4-10
112.047(3)..................................... 4-10
112.047(4)..................................... 4-10

ORS
Page
112.047(5)..................................... 4-10
112.049 ................................ 4-10, 7-25
112.055 .......................4-12, 4-15, 7-27
112.055(1) ....................................... 5-9
112.055(2).....................4-15, 5-9, 7-27
112.055(3).............................. 4-16, 5-9
112.055(3)(c)(B)........................... 7-27
112.058 ......................................... 4-15
112.058(1)..................................... 7-27
112.058(1)(b) ................................ 4-15
112.058(1)(b)(A) .......................... 4-15
112.058(1)(b)(B) ................. 4-15, 4-16
112.058(1)(b)(C) .......................... 4-16
112.058(1)(b)(D) .......................... 4-16
112.058(2)............................ 4-16, 7-27
112.065 ........................................... 4-8
112.075 ......................................... 4-17
112.085............................................ 8-5
112.095 ......................................... 4-20
112.105 ......................................... 4-22
112.105(1)..................................... 4-22
112.105(2)(a) ................................ 4-22
112.105(2)(b) ................................ 4-22
112.115 ......................................... 4-13
112.135 .................................. 4-22, 8-5
112.145112.155............................. 8-5
112.145(1)............................ 4-22, 4-23
112.155 ......................................... 4-23
112.175112.195 .......................... 4-20
112.175(1)(2) .............................. 4-20
112.175(2) ..................................... 4-21
112.175(2)(a) ................................ 4-21
112.175(2)(b) ................................ 4-21
112.175(3)..................................... 4-21
112.185.......................................... 4-21
112.195.......................................... 4-21
112.225 ............. 3-4, 3-17, 4-24, 15-12
112.227................................. 4-26, 7-15
112.230 ......................................... 4-26
112.232........................3-17, 4-26, 5-12
112.232(1)(b) ................................ 4-27
112.232(2) ..................................... 5-12
112.232(2)(a) ................................ 4-27
112.232(5)............................ 4-27, 5-12
ORS
Page
112.232(9)..................................... 4-27
112.235 ............. 4-25, 4-27, 4-28, 5-11
112.235(1) ..................................... 8-39
112.235(1)(b) ................................ 4-27
112.235(1)(c) ....................... 4-27, 4-28
112.235(2)..................................... 4-27
112.235(3)(a)(b) ......................... 4-28
112.235(3)(c) ................................ 4-28
112.235(4)..................................... 4-27
112.245 ................................ 4-28, 5-12
112.255(1)..................................... 4-29
112.255(2)............................ 4-27, 4-29
112.265 ......................................... 4-29
112.265(1)..................................... 4-29
112.265(2)..................................... 4-29
112.265(4)(b) ................................ 4-29
112.265(5) ....................................... 8-8
112.270 ................................ 4-30, 4-31
112.270(1)...................4-29, 4-30, 4-33
112.270(1)(c) ................................ 4-35
112.270(2)..................................... 4-30
112.272 .................................. 9-3, 15-9
112.272(1)..................................... 15-9
112.272(2)..................................... 15-9
112.272(2)(3) ................................ 9-3
112.272(3)..................................... 15-9
112.272(4).............................. 9-3, 15-9
112.275 ......................................... 4-35
112.285................................. 3-18, 8-41
112.285112.315 ............... 4-35, 15-21
112.285(1)..................................... 4-35
112.285(2)............................ 4-35, 4-36
112.295 ................................ 4-36, 8-41
112.305........................3-18, 4-36, 4-37
112.315................................. 3-18, 4-38
112.325 ................................ 4-38, 4-39
112.335 ......................................... 4-40
112.345 ......................................... 4-41
112.355.......................................... 4-40
112.365 ......................................... 4-41
112.385 ......................................... 4-43
112.385(4) ..................................... 4-39
112.395............. 3-19, 4-39, 4-43, 4-44,
.......................................... 4-45, 8-8
S&R-5
2012 Revision

ORS
Page
112.400(1)..................................... 4-45
112.400(2)..................................... 4-45
112.405................ 3-19, 4-39, 4-45, 8-8
112.405(1)..................................... 4-45
112.405(2)..................................... 4-45
112.405(3)..................................... 4-45
112.405(3)(b) ................................ 4-45
112.405(4)..................................... 4-46
112.410 ......................................... 4-46
112.415 ......................................... 4-39
112.455112.555 ................ 4-23, 4-24,
............................................ 8-6, 8-7
112.455(1)..................................... 4-24
112.455(2)(b) ......................... 4-24, 8-6
112.455(3).............................. 4-23, 8-6
112.457 ......................................... 4-24
112.465............................4-5, 4-23, 8-6
112.465(1) .......................4-23, 8-6, 8-5
112.465(2) .............................. 4-23, 8-6
112.475..................................... 8-6, 8-8
112.485............................................ 8-6
112.495............................................ 8-7
112.505(1) ....................................... 8-7
112.505(2) ....................................... 8-7
112.515(1) ....................................... 8-7
112.515(2) ....................................... 8-7
112.525............................................ 8-7
112.535............................................ 8-7
112.545............................................ 8-7
112.555 .................................. 4-23, 8-6
112.570112.590........3-19, 4-17, 4-18,
.............................4-19, 4-20, 12-57
112.570(1)..................................... 4-18
112.570(2) ..................................... 4-19
112.572........................4-17, 8-4, 12-58
112.575112.645.................... 4-17, 8-5
112.578........................................ 12-57
112.580 ......................................... 4-18
112.580(1)..................................... 4-18
112.580(2)..................................... 4-18
112.582 ......................................... 4-17
112.582(1) ................................ 8-4, 8-5
112.582(2)(a) ................................ 4-17
112.582(4)..................................... 4-18
S&R-6
2012 Revision
ORS
Page
112.582(5)..................................... 4-17
112.586......................4-17, 4-18, 12-57
112.586(1) ..................................... 4-18
112.586(2)(4) .............................. 4-18
112.586(5)(6) .............................. 4-18
112.588.......................................... 4-19
112.588(1) ..................................... 4-19
112.588(2) ..................................... 4-19
112.588(3) ..................................... 4-19
112.590.......................................... 4-20
112.590(1) ..................................... 4-19
112.590(2) ..................................... 4-20
112.590(3) ..................................... 4-20
112.590(4) ..................................... 4-20
112.650112.667........................... 8-37
112.705112.775........1-13, 3-45, 4-49,
..................... 4-51, 8-16, 8-17, 8-26
112.715 .......................4-50, 7-37, 8-16
112.725(1) ..................................... 4-50
112.725(2) ............................ 4-50, 4-52
112.735 .......................4-50, 8-16, 8-17
112.745 ............. 4-51, 4-52, 7-37, 8-17
112.755 ......................4-51, 4-52, 7-38,
........................................ 8-10, 8-17
112.765(1)..................................... 4-51
112.765(2)..................................... 4-51
112.775 ......................................... 4-51
112.775(1)..................................... 4-51
112.775(2) ..................................... 4-52
112.775(3)..................................... 4-50
112.800112.830 ........4-46, 4-48, 4-49
112.805(1) ..................................... 4-46
112.810 ......................................... 4-46
112.810(1)..................................... 4-47
112.810(1)(e) ................................ 4-48
112.810(2)..................................... 4-47
112.815 ................................ 4-47, 4-48
112.820 ................................ 4-47, 4-48
112.820(1) ..................................... 4-48
112.820(1)(a) ................................ 4-48
112.820(1)(b) ................................ 4-48
112.820(1)(c) ................................ 4-48
112.820(1)(d) ................................ 4-48
112.820(2)..................................... 4-48

ORS
Page
112.825 ................................ 4-48, 4-49
112.830 ......................................... 4-49
ch 113.......................................... 15-25
113.005................. 2-47, 2-59, 6-4, 6-5,
...............................6-20, 6-21, 6-23
113.005(1) ............. 3-11, 3-20, 6-3, 6-4
113.005(2) ....................................... 6-5
113.005(3) ....................................... 6-5
113.005(4) ....................................... 6-5
113.005(5) ....................................... 6-6
113.005(6) ....................................... 6-6
113.015............. 3-25, 3-45, 5-30, 5-46,
........................................ 5-52, 8-20
113.015(1) ....................................... 5-5
113.015(1)(a) ................................ 2-13
113.015(1)(b) ................................ 2-13
113.015(1)(c) ................................ 2-13
113.015(2) .......................2-6, 2-8, 2-14
113.025..... 2-50, 2-59, 2-68, 2-71, 3-26
113.025(1) ............................ 2-14, 2-15
113.025(2) ............................ 2-15, 2-16
113.027........................................ 11-49
113.035............. 2-17, 2-18, 2-20, 2-47,
................. 3-26, 4-10, 5-6, 5-7, 5-8,
........ 5-21, 6-12, 11-9, 15-25, 15-26
113.035(1) ....................................... 5-7
113.035(2) ....................................... 5-8
113.035(3) ..................................... 2-14
113.035(4) ..................................... 2-20
113.035(5) ............................ 2-20, 8-38
113.035(5)(8) .............................. 2-21
113.035(5)(9) .............................. 2-19
113.035(7) .....................2-20, 5-8, 8-38
113.035(8)........ 2-20, 5-10, 5-47, 5-49,
............ 5-53, 5-68, 5-71, 7-26, 15-6
113.035(8)(9) ..............1-4, 2-19, 5-49
113.035(8)(a) ................................ 8-38
113.035(8)(b) ................................ 8-38
113.035(8)(c) ....................... 4-31, 8-38
113.035(9) ........ 2-20, 5-47, 5-49, 5-53,
..................... 5-68, 5-71, 7-26, 8-38
113.035(10) .......................... 5-46, 5-82
113.045......................2-21, 2-49, 11-35
113.045(1) .............................. 5-9, 5-20
ORS
Page
113.045(1)(2) .............................. 5-20
113.045(2) .............................. 5-9, 5-20
113.055................................. 2-27, 5-11
113.055(1) .. 1-4, 2-42, 3-17, 5-10, 5-11
113.055(2) ...................2-65, 5-10, 5-11
113.055(3) ............................ 3-17, 5-12
113.055(4)........ 2-42, 5-11, 5-13, 5-14,
.................................... 15-10, 15-11
113.065.............. 2-27, 3-17, 5-12, 8-39
113.065(1) ...................5-12, 6-17, 8-39
113.065(2) .................5-12, 8-39, 15-12
113.075 ............ 2-26, 2-42, 4-30, 5-11,
........... 5-13, 5-21, 5-67, 5-70, 7-25,
.......... 8-39, 10-37, 15-6, 15-7, 15-8
113.075(1)..................2-42, 5-13, 5-67,
.............................8-38, 15-6, 15-12
113.075(1)(b) .............................. 15-21
113.075(1)(c) ................................ 15-8
113.075(2) ........ 4-30, 4-32, 8-39, 15-4,
........................................ 15-5, 15-6
113.075(3)........ 2-42, 2-65, 4-32, 5-11,
.................. 5-13, 5-21, 8-38, 10-68,
........................................ 15-4, 15-9
113.075(3)(a) ....................... 4-32, 15-3
113.075(3)(b) ................................ 15-4
113.075(4)...................4-32, 8-38, 15-5
113.085 .............. 1-3, 2-17, 2-59, 3-26,
...................... 5-15, 5-46, 5-52, 6-5,
...................................... 10-7, 15-25
113.085(1) .............................. 5-9, 5-14
113.085(2) .............................. 5-9, 5-14
113.085(3) .............................. 5-9, 5-14
113.086................................. 5-14, 5-16
113.087.......................................... 5-16
113.087(2) ..................................... 2-52
113.092................................. 2-49, 5-15
113.092(1) ..................................... 5-15
113.092(2) ..................................... 5-15
113.095 .............. 5-15, 5-46, 5-52, 6-5,
.................................... 10-7, 11-111
113.105............... 2-30, 2-32, 2-59, 5-9,
..................... 5-16, 5-19, 5-39, 7-13
113.105(1) ..................2-33, 2-59, 5-17,
...................................... 7-13, 11-12
S&R-7
2012 Revision

ORS
Page
113.105(2) .................5-17, 7-13, 11-12
113.105(3)..................................... 7-13
113.105(4) ....... 2-29, 5-17, 7-13, 11-12
113.115............. 2-30, 2-47, 2-59, 5-17,
...................................... 5-18, 11-13
113.125................................. 5-19, 5-39
113.125(1) ............................ 2-59, 7-31
113.125(2) ..................................... 5-19
113.125(3) ..................................... 5-19
113.135..............................5-6, 5-9, 7-5
113.145............. 2-19, 2-24, 2-49, 4-32,
........... 5-10, 5-20, 5-21, 5-67, 5-68,
........... 5-70, 5-72, 5-74, 7-25, 8-19,
......... 8-20, 8-38, 8-43, 11-9, 11-47,
..................... 15-3, 15-4, 15-5, 15-6
113.145(1) ........ 2-20, 2-25, 4-31, 5-21,
..................... 5-76, 7-25, 7-26, 8-38
113.145(1)(g) ....................... 5-71, 15-6
113.145(1)(g)(h)................. 5-68, 7-25
113.145(3)..................................... 7-26
113.145(4) ......... 2-65, 5-21, 5-39, 7-25
113.145(5) ...................2-20, 4-31, 7-26
113.145(5)(a) ................................ 2-20
113.145(5)(b) ................................ 2-20
113.145(5)(c) ................................ 2-20
113.145(6) .......... 1-4, 2-19, 5-20, 5-21,
........................................ 5-39, 7-26
113.155............. 2-19, 2-22, 2-32, 2-49,
.................... 5-20, 5-23, 5-39, 7-28,
.......................................... 9-8, 11-9
113.155(1) ........... 1-4, 2-16, 7-26, 7-27
113.155(2) ..................................... 7-26
113.155(3)..................................... 7-27
113.155(4) ............................ 5-40, 7-27
113.165............... 1-4, 2-32, 2-65, 7-31,
..................... 7-32, 7-33, 7-39, 11-9
113.175................................. 7-33, 11-9
113.185 ....................................... 10-60
113.185(1) ............................ 2-32, 7-33
113.185(2) ............................ 2-62, 7-34
113.185(3)..................................... 7-34
113.185(4) ............................ 2-32, 7-34
113.195.......................................... 2-61
113.195(1) ..................................... 5-21
S&R-8
2012 Revision
ORS
Page
113.195(2) ............................ 5-15, 7-16
113.195(2)(3) .............................. 5-21
113.195(4) ............................ 2-47, 5-22
113.215.......................................... 2-61
113.215(1) ..................................... 5-22
113.215(2) ..................................... 5-23
113.215(3) ..................................... 5-23
113.215(4) ..................................... 5-23
113.225.............. 2-16, 2-52, 5-23, 7-28
113.225(1) ..................................... 5-23
113.225(2) ..................................... 5-23
113.235..........................2-21, 2-49, 5-9
113.238.......................................... 2-21
113.242(1)(2) .............................. 4-16
114.005................ 6-7, 6-11, 7-39, 7-40
114.005(4)..................................... 7-39
114.015................. 2-53, 2-59, 6-8, 6-9,
.............. 6-11, 6-28, 7-40, 7-41, 8-4
114.015114.025........................... 6-10
114.015114.035............................. 6-7
114.015(1) .............................. 2-47, 6-7
114.015(2) ....................................... 6-7
114.015(3) .............................. 6-8, 7-41
114.015(4) ..................................... 2-26
114.025............................6-7, 6-8, 6-28
114.025(1) ............................ 2-47, 6-11
114.025(2) .............................. 6-8, 6-30
114.035............. 2-47, 2-59, 6-11, 6-26,
........................................ 6-33, 7-40
114.045................................. 2-59, 7-42
114.055.......................................... 6-36
114.055(1) ....................................... 6-9
114.055(1)(c) ................................ 6-11
114.055(2)..................................... 7-41
114.065................... 6-7, 6-8, 6-9, 6-11,
........................................ 7-41, 9-27
114.075................................... 6-7, 7-41
114.085............. 2-47, 2-59, 2-60, 2-64,
............. 6-9, 6-10, 6-41, 6-42, 6-44,
........................................ 7-42, 9-27
114.105114.165................. 4-39, 4-49,
........................................ 8-17, 8-29
114.125.......................................... 8-29
114.160(1)(b) ................................ 8-43

ORS
Page
114.205..........................2-13, 4-40, 8-4
114.215........................7-10, 8-4, 10-46
114.215(1).................6-17, 10-9, 10-40
114.215(3)..................1-15, 3-21, 5-32,
...........................7-32, 10-12, 10-13
114.225 ................ 2-7, 2-8, 3-22, 6-17,
.................... 7-39, 10-6, 10-8, 10-9,
.........................10-11, 10-45, 10-63
114.255................................. 3-20, 5-19
114.265............. 7-15, 10-5, 10-6, 10-8,
..........................10-9, 10-13, 10-24,
.................................... 10-49, 11-32
114.275............. 2-20, 2-28, 2-29, 2-47,
........... 2-51, 2-53, 8-10, 8-11, 8-12,
........... 8-13, 9-22, 9-23, 10-7, 10-8,
............ 10-18, 10-19, 10-34, 10-42,
............... 10-44, 10-65, 11-9, 11-32
114.305............. 2-20, 2-29, 2-60, 10-7,
..........................10-8, 10-21, 10-44,
.................................... 10-49, 11-32
114.305(4)..............9-22, 10-34, 10-38,
.................................... 10-44, 11-83
114.305(4)(b) .............................. 10-35
114.305(6)..............2-29, 10-16, 10-17,
.................................... 10-18, 10-19
114.305(8)(10) .......................... 10-17
114.305(10) ................................ 10-23
114.305(12) ................................ 10-17
114.305(13) ................................ 10-13
114.305(14) ..................... 10-24, 10-26
114.305(15) ................................ 10-44
114.305(16) ................................ 10-44
114.305(17) ..................................... 1-4
114.305(18) .................................... 7-5
114.305(19) ................................ 10-45
114.305(20) ...........10-46, 15-25, 15-27
114.305(21) ..................... 10-26, 10-48
114.305(21)(23) .......................... 7-19
114.305(22) ................................. 10-49
114.305(22)(23) ........................ 10-49
114.305(25) ................................... 9-22
114.305(26) ................................ 10-18
114.315 ....................................... 10-45
ORS
Page
114.325 .............. 2-29, 5-18, 8-4, 10-8,
............. 10-38, 10-68, 10-70, 11-83
114.325(1)...............10-7, 10-35, 10-36
114.325(2)........ 2-26, 2-47, 2-50, 2-60,
............... 10-7, 10-36, 10-37, 10-38
114.325(2)(b) ................................ 7-11
114.325(2)(c) ............5-18, 10-7, 10-37
114.333.......................................... 6-17
114.335 .....................2-47, 2-60, 10-37
114.345 ....................................... 10-37
114.355 .....................7-24, 7-25, 10-38
114.355(1).......................... 7-24, 10-38
114.355(2).......................... 7-24, 10-38
114.375 ....................................... 10-29
114.385 .......................7-23, 10-7, 10-8
114.395 ............ 2-32, 7-14, 7-15, 7-17,
.............................10-5, 10-8, 10-20
114.405 ......................................... 10-8
114.405(1)............................ 7-23, 10-5
114.405(2)............................ 7-23, 9-16
114.405(3).................7-24, 9-16, 10-13
114.405(4)............................ 7-24, 9-16
114.415 ......................................... 7-21
114.415(1)..................................... 10-9
114.415(2)..................................... 10-9
114.425 .......... 2-47, 2-62, 3-47, 10-11,
.........................10-45, 10-73, 10-75
114.425(1) ..................................... 2-28
114.425(2).......................... 2-28, 10-11
114.435 ....................................... 10-47
114.505114.560..........1-9, 3-23, 3-25,
........... 5-24, 5-34, 5-35, 5-81, 5-87,
...............................9-9, 9-13, 11-48
114.505(1)(c) ................................ 5-34
114.505(2) ......... 5-28, 5-37, 5-81, 5-87
114.505(2)(c) ....................... 5-34, 5-28
114.505(3) ..................................... 5-25
114.515............. 3-15, 3-24, 5-25, 5-28,
..................... 5-34, 5-38, 5-40, 9-10
114.515(1) ..................................... 5-30
114.515(1)(a) ....................... 5-34, 5-28
114.515(1)(b) ................................ 5-28
114.515(2) 1-9, 5-24, 5-25, 5-28, 11-48
S&R-9
2012 Revision

ORS
Page
114.515(3) ..................................... 5-29
114.515(7) ..................................... 5-28
114.515(7)(8) .............................. 5-36
114.515(8) .......................... 5-28, 11-48
114.517.......................................... 5-29
114.520(1) ..................................... 5-29
114.520(1)(2) .............................. 5-29
114.520(2) ..................................... 5-29
114.520(2)(a)(b) .......................... 5-29
114.520(3) ..................................... 5-29
114.525............................................ 1-8
114.525(1) ..................................... 5-25
114.525(2) ............................ 5-25, 5-26
114.525(3) ..................................... 5-26
114.525(4) ..................................... 5-26
114.525(5) ..................................... 5-26
114.525(6) ..................................... 5-26
114.525(7) ..................................... 5-26
114.525(8) ..................................... 5-26
114.525(9) ............................ 5-26, 5-27
114.525(10) ................................... 5-27
114.525(11) ................................... 5-27
114.525(12) ................................... 5-27
114.525(13) ................................... 5-27
114.535.......................................... 5-31
114.535(1) ............................ 5-30, 5-31
114.535(2) ..................................... 5-31
114.535(3) ..................................... 5-31
114.535(4) ..................................... 5-32
114.535(5) ..................................... 5-31
114.535(6) ..................................... 5-32
114.537........................3-15, 4-47, 5-31
114.537(1) ...................5-25, 5-26, 5-30
114.537(2) ..................................... 5-25
114.540.............. 5-30, 5-33, 5-37, 5-38
114.540(1) ............................ 5-35, 5-36
114.540(2) ..................................... 5-35
114.540(3) ...................5-34, 5-35, 5-36
114.545........................5-30, 5-33, 5-37
114.545(1)(a) ................................ 5-30
114.545(1)(c) ................................ 5-34
114.545(1)(c)(d) ................. 5-34, 5-33
114.545(1)(e)(f) .......................... 5-40
114.545(1)(f) ...............5-30, 5-32, 5-34
S&R-10
2012 Revision
ORS
Page
114.545(2) ..................................... 5-36
114.545(2)(a) ................................ 5-36
114.545(2)(b) ............5-36, 5-37, 11-48
114.545(3) ..................................... 5-32
114.550..... 5-30, 5-34, 5-37, 5-38, 9-10
114.552(1) ............................ 5-38, 5-39
114.555............. 5-24, 5-30, 5-36, 5-37,
................... 5-40, 5-84, 5-90, 11-48
114.600................................. 2-52, 2-65
114.600114.725 .......4-39, 4-40, 4-49,
............... 5-31, 5-37, 7-14, 8-4, 8-8,
..................... 8-17, 8-18, 8-19, 8-42
114.600(1) ..................................... 8-19
114.600(2) ............................ 7-40, 7-41
114.600(3) ..................................... 8-19
114.605.......................................... 8-18
114.605(2) ..................................... 8-18
114.610............. 2-52, 2-65, 8-11, 8-19,
........................................ 8-42, 8-43
114.610(1)(a) ....................... 8-20, 8-44
114.610(1)(b) ................................ 8-20
114.610(1)(c) ....................... 5-40, 8-20
114.615..........................8-9, 8-19, 8-26
114.620 .......................7-14, 7-41, 8-28
114.620(1) ..................................... 8-28
114.620(2) ..................................... 8-28
114.625.......................................... 8-19
114.630 ............. 7-14, 8-20, 8-24, 8-29
114.630114.635........................... 8-18
114.630(1) ..................................... 8-20
114.630(3) ............................ 8-25, 8-24
114.630(4) ............................ 8-24, 8-25
114.635................................. 8-29, 8-26
114.635(1) ..................................... 8-25
114.635(2) ..................................... 8-25
114.635(3) ..................................... 8-25
114.635(5) ..................................... 8-26
114.650................................. 8-21, 8-23
114.660..... 8-21, 8-22, 8-23, 8-24, 8-29
114.665................................. 8-21, 8-29
114.665(1) ..................................... 8-21
114.665(2) ..................................... 8-21
114.665(3) ..................................... 8-22
114.665(4) ............................ 8-22, 8-26

ORS
Page
114.665(5) ..................................... 8-22
114.675.............. 8-23, 8-24, 8-26, 8-29
114.675(1)(a) ................................ 8-22
114.675(1)(b) ................................ 8-23
114.675(1)(c) ................................ 8-23
114.675(1)(d) ................................ 8-23
114.675(2)(a) ................................ 8-24
114.675(2)(b) ....................... 8-24, 8-25
114.675(2)(c) ................................ 8-24
114.675(2)(d) ................................ 8-24
114.685.......................................... 8-22
114.690................................. 8-23, 8-42
114.690(1)(c) ................................ 8-22
114.690(2) ..................................... 8-23
114.700........................8-26, 8-27, 8-29
114.700(1) ..................................... 8-26
114.700(2) ..................................... 8-26
114.700(3)(a) ................................ 8-26
114.700(3)(b)(c) .......................... 8-27
114.705(1) ..................................... 8-27
114.705(2) ..................................... 8-27
114.710(1) ..................................... 8-27
114.710(2) ..................................... 8-28
114.720.......................................... 8-20
114.720(1) ..................................... 8-20
114.720(3) ..................................... 8-20
114.725........................2-60, 8-28, 8-29
ch 115............... 4-32, 8-10, 8-38, 9-13,
.............................15-5, 15-8, 15-32
115.001 ....................................... 10-57
115.001115.215............................. 8-4
115.001115.335............................. 9-3
115.003................. 1-4, 2-25, 5-6, 6-11,
.............. 7-28, 7-29, 9-9, 9-37, 11-7
115.003115.004 .......................... 7-20
115.003(1).............................. 7-28, 9-7
115.003(1)(2) ....................... 5-40, 9-8
115.003(2) ..................2-50, 7-28, 7-29,
.................................9-8, 9-27, 9-45
115.003(2)(4) ................................ 9-3
115.003(3)........... 7-28, 9-8, 9-17, 9-35
115.003(4) ........... 3-46, 5-40, 7-29, 9-8
115.003(5) ..................................... 7-29
115.004........................2-25, 2-44, 9-18
ORS
Page
115.004(1) ...................2-25, 7-21, 7-29
115.004(2) ..................................... 7-30
115.004(3) ..................................... 7-30
115.004(3)(4) .............................. 7-21
115.004(4) ..................................... 7-30
115.004(5)............................ 7-22, 7-30
115.004(6) ..................................... 7-30
115.005................. 5-35, 9-4, 9-6, 9-10,
.......... 9-14, 9-19, 9-22, 11-48, 15-8
115.005(1) ................................ 9-4, 9-7
115.005(2) ............. 1-4, 7-28, 9-9, 9-27
115.005(2)(3) .............................. 9-46
115.005(2)(4) ..................... 2-63, 9-15
115.005(2)(a) ................................ 9-27
115.005(2)(b) ................................ 7-28
115.005(3) ................................ 1-4, 9-9
115.005(3)(a) .................................. 9-9
115.005(3)(b) .................................. 9-9
115.005(3)(c) .................................. 9-9
115.005(4) .............................. 9-9, 9-46
115.005(5) ............................ 9-10, 9-18
115.005(5)(a) ................................ 9-10
115.005(5)(b) ....................... 9-10, 9-19
115.008 .....................9-21, 9-22, 15-32
115.025................................... 5-36, 9-6
115.035..........................9-6, 9-15, 9-22
115.045............................................ 9-6
115.065.............. 9-10, 9-13, 9-15, 9-18
115.065(1) ............................ 9-11, 9-13
115.065(2) ..................................... 9-13
115.065(5) ..................................... 9-13
115.065(6) ..................................... 9-13
115.070................................. 9-14, 9-26
115.075................................. 9-14, 9-15
115.085.......................................... 9-11
115.085(2) ..................................... 9-11
115.085(3) ..................................... 2-61
115.085(3)(a) ................................ 9-12
115.085(3)(b) ................................ 9-12
115.085(3)(c)(d) .......................... 9-12
115.085(3)(d) ................................ 9-12
115.095.......................................... 9-22
115.105.......................................... 9-12
115.115................................. 9-26, 9-27
S&R-11
2012 Revision

ORS
Page
115.125 ............ 1-26, 5-33, 5-35, 6-17,
............. 9-9, 9-14, 9-26, 9-27, 9-46,
.................................... 10-15, 11-38
115.125(1) ...................9-16, 9-27, 9-46
115.125(1)(a) ....................... 6-11, 9-44
115.125(1)(b) ................................ 9-44
115.125(1)(c) ....................... 3-13, 9-44
115.125(1)(d) ................................ 9-44
115.125(1)(e) ................................ 9-44
115.125(1)(f) ................................. 9-44
115.125(1)(g) ................................ 9-44
115.125(1)(h) ................................ 9-44
115.125(1)(i) ................................. 9-45
115.125(1)(j)(A)............................ 9-45
115.125(1)(j)(B) ............................ 9-45
115.125(1)(k) ................................ 9-45
115.125(1)(l) ................................. 9-45
115.125(1)(m) ...................... 9-45, 9-46
115.125(2) ............................ 9-26, 9-46
115.135................................... 9-6, 9-39
115.135(1) .......... 1-5, 2-22, 2-50, 2-63,
........................................ 9-19, 9-20
115.135(2) ..................................... 9-20
115.135(3) ............................ 2-63, 9-20
115.145.......................9-12, 9-13, 9-20,
........................................ 9-38, 9-41
115.145115.175........................... 2-43
115.145(1) ..................................... 2-63
115.145(1)(a) ..............2-53, 9-20, 9-40
115.145(1)(b) ....................... 2-43, 9-21
115.145(2) ..................................... 9-20
115.155............. 2-43, 2-51, 2-63, 2-64,
...............................9-21, 9-42, 9-43
115.165.......................................... 2-28
115.165(1) ..................................... 9-23
115.165(1)(2) .............................. 9-24
115.165(2) ..................................... 2-53
115.165(2)(3) .............................. 2-43
115.165(3) ..................................... 9-24
115.175................................. 9-21, 9-24
115.185........................2-48, 2-60, 9-27
115.195(1) ...................9-21, 9-24, 9-25
115.195(2) ............................ 5-35, 9-21
115.205........................9-10, 9-22, 9-27
S&R-12
2012 Revision
ORS
Page
115.215................................. 9-11, 9-19
115.255 ......................................... 4-40
115.255115.275 ............... 4-42, 10-55
115.255(1)................................... 10-55
115.255(1)(a) .............................. 10-55
115.255(1)(b) .............................. 10-55
115.255(2)................................... 10-55
115.255(3)................................... 10-56
115.255(3)(a) .............................. 10-56
115.255(3)(b) ................... 10-55, 10-56
115.255(4)................................... 10-56
115.255(5) ................................... 10-55
115.265 ....................................... 10-57
115.275 ....................................... 10-56
115.305 ....................................... 10-47
115.315.......................................... 9-17
115.325................................. 9-10, 9-18
ch 116 ............................................ 2-57
116.007 .................10-14, 11-28, 11-38
116.007(2)(a) .............................. 10-14
116.007(2)(b) .............................. 10-14
116.013............. 2-44, 2-48, 2-51, 2-61,
................ 8-10, 10-15, 11-6, 11-31,
............. 11-33, 11-34, 11-80, 15-34
116.023............................. 11-33, 11-34
116.033............................... 7-21, 11-35
116.043............. 2-26, 2-48, 2-51, 2-61,
.........................11-35, 11-36, 11-39
116.063 ......... 7-15, 10-11, 11-6, 11-35
116.063(1)...............7-18, 10-11, 10-15
116.063(2) ..................................... 7-18
116.063(2)(b) ................................ 7-18
116.063(3)............................ 7-17, 7-18
116.063(3)(a) .............................. 10-11
116.063(3)(c) .............................. 10-15
116.063(3)(d)(f) .......................... 7-18
116.063(3)(f) ................................ 7-21
116.063(3)(g) .............................. 10-13
116.073 ......................................... 7-19
116.083......... 2-20, 2-66, 11-10, 11-27,
.........................11-36, 11-62, 11-71
116.083116.133........................... 2-58
116.083(1)(a) ............2-60, 11-6, 11-12
116.083(1)(b) ....................... 2-16, 11-6

ORS
Page
116.083(1)(c) ....................... 11-6, 11-7
116.083(1)(d) ....................... 2-60, 11-6
116.083(2) ....................... 11-10, 11-11,
.................................... 11-16, 11-32
116.083(2)(a) .............................. 11-12
116.083(2)(d) 2-48, 2-60, 11-25, 11-26
116.083(2)(f) ................................. 11-9
116.083(2)(g) .............................. 11-27
116.083(3) ............................ 1-4, 11-28
116.083(3)(a) ..........10-16, 11-7, 11-36
116.083(3)(b) ..............2-18, 2-48, 11-9
116.083(4) .............11-10, 11-74, 11-78
116.083(4)(b) ................................ 11-7
116.083(6) ................................... 11-16
116.093............. 2-20, 2-22, 2-39, 2-52,
.................. 5-20, 8-11, 11-5, 11-10,
............. 11-32, 11-36, 11-73, 15-11
116.093(1) ..... 2-23, 2-66, 11-28, 11-32
116.093(1)(c)(d) .......................... 2-24
116.093(3) ................................... 11-28
116.103.......................2-26, 2-60, 2-66,
...................................... 8-10, 11-32
116.113............... 1-5, 2-30, 2-44, 2-55,
.................... 2-56, 2-57, 2-60, 2-61,
.................. 4-5, 6-18, 11-15, 11-36,
.................................. 11-104, 15-11
116.113(1) ................8-11, 8-29, 11-15,
.........................11-36, 11-37, 11-40
116.113(1)(g) .............................. 11-41
116.113(1)(j) ............................... 11-37
116.113(2)...............10-15, 11-7, 11-36
116.113(3)......................... 8-29, 10-32,
.................................... 11-15, 11-40
116.113(4) ..................2-43, 8-11, 8-15,
.................................... 11-40, 11-50
116.123............. 2-35, 2-43, 2-61, 7-15,
.................... 7-16, 7-17, 7-21, 7-22,
.................................... 11-28, 11-40
116.133................................. 8-8, 11-38
116.133(1) ....................................... 8-8
116.133(2) ................................ 8-8, 8-9
116.133(3) ....................................... 8-9
116.133(5) .............................. 2-61, 8-9
116.143 ...................3-51, 10-19, 11-28
ORS
Page
116.143(1)................................... 10-19
116.143(2) ..................................... 2-61
116.153............................. 11-41, 11-42
116.163............ 2-48, 2-61, 6-18, 11-44
116.173............. 2-33, 2-48, 2-61, 9-16,
........................11-62, 11-71, 11-75,
.................................. 11-102, 15-32
116.173(1) .................2-33, 2-34, 11-29
116.173(2) ...............2-33, 11-29, 11-30
116.173(3) ..................................... 2-34
116.183............. 2-31, 2-32, 2-36, 2-37,
........ 2-39, 2-40, 9-16, 11-30, 15-44
116.183(1) ..................2-32, 2-35, 2-36,
................. 2-48, 2-52, 11-30, 11-31
116.183(2).............2-36, 10-47, 11-109
116.193............ 2-61, 5-10, 8-10, 11-38
116.203.....................2-48, 2-61, 11-42,
.........................11-43, 11-87, 11-91
116.213............. 2-24, 2-30, 2-44, 2-56,
........... 2-57, 2-61, 2-66, 7-21, 7-22,
.............. 11-6, 11-39, 11-46, 11-85,
.........................11-93, 15-11, 15-34
116.233............. 2-24, 2-25, 2-44, 2-45,
.................... 2-48, 2-53, 2-61, 5-28,
............ 11-38, 11-47, 11-48, 11-49,
............ 11-50, 11-51, 11-83, 11-95,
.......................11-97, 11-99, 11-112
116.253............ 2-48, 5-10, 8-10, 11-43
116.253(1) .................2-45, 2-67, 11-43
116.253(2) ..................................... 2-45
116.253(2)(c) .............................. 11-43
116.263........................2-67, 6-14, 6-15
116.263(1) ..................................... 6-15
116.263(2) ..................................... 6-15
116.263(3) ..................................... 6-15
116.303116.383................ 4-42, 14-53
116.303(1) ................................... 14-53
116.303(3) ................................... 14-53
116.313............................... 7-48, 14-53
116.323......................2-48, 2-60, 14-53
116.343(1)(2) ............................ 14-53
116.343(2) ................................... 14-53
116.373.......................................... 6-19
ch 117 ............................................ 6-12
S&R-13
2012 Revision

ORS
Page
117.005................................. 2-48, 6-12
117.005117.095.................. 3-24, 6-12
117.005(3) ..................................... 3-24
117.015.......................................... 2-54
117.015(1) ..................................... 6-12
117.015(2) ..................................... 6-12
117.025.......................................... 6-13
117.035................................. 2-62, 6-13
117.055.......................................... 6-13
117.065.......................................... 6-13
117.075(1) ..................................... 6-13
117.075(2) ............................ 2-67, 6-13
117.095.......................................... 6-13
ch 118 ............... 6-19, 14-3, 14-6, 14-7,
.........................14-45, 14-47, 14-60
118.005(5) ...............14-9, 14-12, 14-29
118.005(5)(6) ............................ 14-14
118.005(6) ...............14-9, 14-11, 14-16
118.005(7) ........................ 14-10, 14-12
118.007............. 7-46, 14-5, 14-6, 14-8,
.............................4-9, 14-28, 14-60
118.010........... 11-7, 14-4, 14-8, 14-10,
........................14-35, 14-47, 14-48,
.................................... 14-49, 14-50
118.010(2) ................14-8, 14-9, 14-11,
............. 14-13, 14-16, 14-30, 14-31
118.010(2)(a) .............................. 14-15
118.010(2)(b) ................... 14-15, 14-18
118.010(3) ....................... 14-10, 14-12,
.................................... 14-34, 14-56
118.010(3)(a)(B) ......................... 14-18
118.010(3)(b) ................... 14-16, 14-17
118.010(3)(b)(B) ......................... 14-20
118.010(4) ...............7-46, 14-12, 14-35
118.010(4)(a) .............................. 14-15
118.010(5) .............14-13, 14-15, 14-16
118.010(5)(6) ............................ 14-16
118.010(6) .............14-15, 14-16, 14-17
118.010(7) ..............14-5, 14-33, 14-49,
.........................14-51, 14-59, 14-60
118.010(8) ...... 7-34, 7-48, 7-52, 14-48,
.........................14-49, 14-51, 14-59
118.010(8)(a) .............................. 14-48
118.010(8)(b) .............................. 14-48
S&R-14
2012 Revision
ORS
Page
118.010(8)(c) .............................. 14-48
118.013............................... 7-48, 14-48
118.013(1) ................................... 14-58
118.013(2)..................................... 7-55
118.013(2)(3) ............................ 14-55
118.013(3) .......................... 7-55, 14-56
118.016(1) ...............7-55, 14-56, 14-57
118.016(2) .................7-54, 7-55, 14-56
118.019............................. 14-55, 14-56
118.100............ 14-4, 14-8, 14-9, 14-43
118.100(1) ...... 7-44, 14-8, 14-9, 14-12,
.................................... 14-13, 14-46
118.100(1)(b) ................................ 14-4
118.100(2) ........................ 14-42, 14-53
118.100(6) .......................... 7-33, 14-52
118.140....... 7-53, 14-21, 14-22, 14-23,
.........................14-26, 14-37, 14-48
118.140(1) ........................ 14-22, 14-37
118.140(1)(a) ................... 14-24, 14-38
118.140(1)(b) .............................. 14-23
118.140(1)(c) .............................. 14-22
118.140(1)(d) .............................. 14-22
118.140(1)(e) .............................. 14-22
118.140(1)(g) .............................. 14-22
118.140(1)(i) ............................... 14-22
118.140(1)(i)(I) ................ 14-23, 14-25
118.140(1)(j) ............................... 14-22
118.140(1)(k) .............................. 14-23
118.140(2) ................................... 14-21
118.140(2)(a) ................... 14-23, 14-38
118.140(2)(a)(B) ......................... 14-38
118.140(2)(a)(C) ......................... 14-38
118.140(2)(a)(D) ......................... 14-21
118.140(2)(b) ................... 14-24, 14-25
118.140(2)(b)(c) ........................ 14-24
118.140(2)(c) .............................. 14-24
118.140(3) ........................ 14-24, 14-37
118.140(3)(a) .............................. 14-24
118.140(3)(b) ................... 14-24, 14-38
118.140(3)(c) .............................. 14-38
118.140(3)(c)(d) ........................ 14-23
118.140(3)(d) .............................. 14-39
118.140(4)(a)(b) ........................ 14-23
118.140(4)(b) .............................. 14-39

ORS
Page
118.140(4)(c) .............................. 14-25
118.140(5) ........................ 14-38, 14-39
118.140(5)(6) ............................ 14-23
118.140(7) ........................ 14-25, 14-39
118.140(7)(a) .............................. 14-38
118.140(7)(b) .............................. 14-39
118.140(8) ................................... 14-23
118.140(9)(a) ........14-23, 14-25, 14-26
118.140(9)(b) .............................. 14-26
118.140(9)(d) .............................. 14-25
118.140(9)(e) .............................. 14-25
118.140(10) ................................. 14-26
118.160(1) ..................................... 14-9
118.160(1)(b)(D)............... 14-9, 14-27,
............. 14-30, 14-32, 14-35, 14-36
118.160(1)(c) .........14-9, 14-11, 14-12,
.........................14-14, 14-16, 14-17
118.165........................................ 14-46
118.165(2) ................................... 14-47
118.165(3) ................................... 14-47
118.171.......................................... 2-64
118.210............................... 9-17, 14-42
118.220........................................ 14-28
118.225......... 3-49, 7-53, 14-42, 14-43,
.................................... 14-44, 14-51
118.227........................................ 14-47
118.250........................................ 14-41
118.260............................. 14-45, 14-46
118.260(1) ................................... 14-45
118.260(2) ................................... 14-45
118.260(3) ................................... 14-45
118.260(4) ............................ 1-5, 14-44
118.260(5) ................................... 14-43
118.260(5)(a) .............................. 14-44
118.260(5)(b) ................... 14-44, 14-45
118.260(7) ........................ 14-44, 14-46
118.260(8) ................................... 14-44
118.260(9) ................................... 14-44
118.265.................14-40, 14-41, 14-42,
.................................... 14-46, 14-58
118.265(1) ........................ 14-40, 14-58
118.265(2) ................................... 14-40
118.265(4) ........................ 14-46, 14-47
118.270........................................ 14-42
ORS
Page
118.310.......................................... 6-19
118.320........................................ 10-29
118.350.......................................... 2-60
118.540.......................................... 6-19
124.100 ............................ 15-36, 15-37
124.100(1)(a) ................... 10-47, 15-35
124.100(1)(b) ................... 10-48, 15-35
124.100(1)(c) ................... 10-48, 15-35
124.100(1)(d) .............................. 15-35
124.100(1)(e) .............................. 10-48
124.100(1)(e)(A) ........................ 15-35
124.100(1)(e)(B)......................... 15-35
124.100(1)(e)(C)......................... 15-35
124.100(1)(e)(D) ......................... 15-35
124.100(2) .............10-47, 15-35, 15-36
124.100(3)................................... 15-35
124.100(3)(c) .............................. 10-47
124.100(5) ........................ 15-35, 15-37
124.100(6) ................................... 15-38
124.105 .......................4-24, 8-5, 15-36
124.105(2) ................................... 15-36
124.110 .................................. 4-24, 8-6
124.110(1)................................... 15-36
124.110(1)(a) ................... 15-35, 15-37
124.110(1)(b) ................... 15-36, 15-37
124.125 ....................................... 15-35
ch 125................ 2-57, 3-24, 6-11, 15-9
125.005 .................10-48, 11-45, 15-35
125.005(3) ..................................... 3-24
125.420........................................ 11-45
126.700............................. 11-44, 15-30
126.700(1)(a) .............................. 11-44
126.700(1)(b) .............................. 11-44
126.700(1)(c) .............................. 11-44
126.700(2) ................................... 11-44
126.725(1)(b) .............................. 15-30
126.805126.886................ 12-21, 13-7
126.816........................................ 11-44
126.822.......................................... 3-51
126.832........................................ 11-45
127.700(4) ................................... 11-44
128.398........................................ 12-69
ch 129.......................................... 10-14
129.225.......................................... 8-24
S&R-15
2012 Revision

ORS
Page
130.010....................7-55, 14-23, 14-58
130.230........................................ 13-24
130.240............................. 12-68, 12-69
130.240(2) ................................... 12-69
130.350130.450........................... 1-23
130.650 ......................................... 7-15
130.650130.725 .......................... 10-8
130.650130.910 .......................... 7-17
130.655 ......................................... 7-15
130.660 ......................................... 7-15
130.665 ......................................... 7-15
130.670 ......................................... 7-15
130.675 ......................................... 7-15
130.680 ......................................... 7-15
130.680(1)..................................... 7-14
130.680(3)..................................... 7-14
130.695 ......................................... 7-15
130.700 ......................................... 7-15
130.710 ......................................... 7-15
130.750130.775.......2-29, 7-14, 10-17
130.760........................................ 10-21
130.765........................................ 10-21
130.770........................................ 10-20
130.775........................................ 10-18
130.800 ......................................... 7-15
130.800130.810 .......................... 10-5
130.805 ......................................... 7-15
137.101137.109........................... 8-37
146.090............................................ 3-8
146.117............................................ 3-8
146.121.......................................... 3-13
163.118............................................ 8-6
163.125............................................ 8-6
163.145............................................ 8-6
ch 166 ....................10-58, 15-26, 15-37
176.740................................. 3-24, 6-12
179.010.......................................... 5-28
179.321(1) ..................................... 5-14
179.321(2) ..................................... 5-14
179.610179.770........................... 9-45
183.310.......................................... 2-45
ch 193 ............................................ 5-80
195.300........................................ 11-82
195.300195.336......................... 11-82
S&R-16
2012 Revision
ORS
Page
195.301........................................ 11-82
215.010........................................ 11-82
293.490293.500........................... 1-15
305.220............................. 14-44, 14-46
305.220(1)(2) ............................ 14-44
305.220(6) ................................... 14-44
305.222............................. 14-44, 14-45
305.265............................. 14-40, 14-46
305.280.......................................... 2-64
305.560.......................................... 2-64
305.992........................................ 14-45
307.250................................. 3-47, 7-44
307.260 ......................................... 7-44
308A.056(3)(f) ................. 14-22, 14-38
311.250 ......................................... 7-44
314.400........................................ 14-45
314.400(7) ................................... 14-44
314.410..................14-40, 14-42, 14-46
314.410(1) ................................... 14-46
314.415............................. 14-46, 14-47
314.415(2)(a) .............................. 14-47
316.382 ......................................... 7-44
316.387.......................................... 9-17
316.716........................................ 14-52
348.282.......................................... 3-10
406.050(8)..................................... 2-18
411.010........................5-14, 9-21, 9-45
411.708.......................................... 6-16
411.795.......................................... 6-16
416.350.......................................... 6-16
446.561.......................................... 5-34
446.616................................. 5-31, 5-34
ch 465............................................ 7-19
465.200465.455......................... 10-42
465.200(13) ................................. 10-40
465.200(20) ...................... 10-40, 10-41
465.255........................................ 10-42
465.255(3)(b) ................................ 7-19
465.440......................7-19, 7-20, 10-42
465.475465.482......................... 10-43
465.900........................................ 10-42
652.190.......................................... 1-15
708A.430 ....................1-14, 1-26, 5-32,
........................................ 5-31, 6-16

ORS
Page
708A.430(1) ......................... 1-14, 6-16
708A.430(1)(b) ............................. 1-14
708A.430(2) ......................... 1-14, 1-26
708A.430(2)(b) ............................. 1-14
708A.430(2)(d) ............................. 1-14
708A.430(5) .................................. 1-14
708A.435 ....................................... 1-19
708A.435(1) .................................. 1-19
708A.435(3) .................................. 1-19
708A.455(12) ................................ 1-20
708A.470.............................. 1-19, 1-20
708A.470(1) ......................... 1-18, 1-19
708A.470(2) .................................. 1-19
708A.470(3) .................................. 1-20
708A.470(3)(b) ............................. 1-20
708A.470(4) .................................. 1-20
708A.470(5) ......................... 1-18, 1-20
708A.470(6) .................................. 1-18
708A.470(7) .................................. 1-19
708A.655 .....................3-15, 4-47, 5-25
708A.655(2) .................................. 3-15
708A.655(2)(5) ........................... 4-47
ORS
Page
708A.655(3) .................................. 3-15
708A.655(4).................................. 4-47
708A.655(4)(5) ........................... 3-16
708A.655(4)(8) ........................... 3-16
708A.655(11) ....................... 3-16, 3-17
709.030........................................ 11-25
709.240.......................................... 5-16
716.024................................. 1-14, 6-16
723.466.............. 1-14, 5-31, 5-32, 6-16
723.480(1) ..................................... 1-18
723.844................................. 3-15, 4-47
723.844(2) ..................................... 3-15
723.844(2)(5) .............................. 4-47
723.844(3) ..................................... 3-15
723.844(4)..................................... 4-47
723.844(4)(5) .............................. 3-16
723.844(4)(8) .............................. 3-16
723.844(11) .......................... 3-16, 3-17
743.043........................................ 12-36
803.094........................1-13, 5-31, 5-32
803.094(2)(b)(c) .......................... 1-13
OREGON CONSTITUTION
Or Const art I, 21...................... 14-7
Or Const art IV, 1..................... 14-7
Or Const art IV, 1(1) ................ 14-7
Or Const art VII, 1 ................... 8-12
OREGON RULES OF CIVIL PROCEDURE

ORCP
Page
ORCP
Page
1 E ...................... 2-16, 2-17, 2-45, 5-6,
13 B ............................................... 8-14
.................. 5-8, 11-6, 11-27, 11-34,
16 A ............................................... 8-14
...................................... 11-50, 15-6
23 C ............................................... 2-25
7 D(6) ............................................ 2-26
26 A............................................. 10-46
7 D(6)(a)........................................ 2-21
34 ................................................. 9-17
7 D(6)(e)........................................ 8-15
34 B(2) .......................................... 9-17
7 F ........................................ 2-23, 5-80
68 C(2)(a) ...................................... 2-38
7 F(2)(b) ...................... 2-23, 5-20, 5-80
71 ................................................. 2-43
9 C ..................... 2-23, 5-73, 5-75, 5-77
71 B(1) ........................................ 11-46
S&R-17
2012 Revision

OREGON ADMINISTRATIVE RULES
ORAP
Page
ORAP
Page
ch 150, div 118 .............................. 14-6
150-118.140(4)(h) ....................... 14-38
150-118.010 ................................ 14-48
150-118.160-(B)............... 14-42, 14-43
150-118.010(1)...... 14-35, 14-36, 14-51
150-118.225 ..................... 14-42, 14-43
150-118.010(2)................. 14-49, 14-51
150-118.225(1)............................ 14-43
150-118.010(3)............................ 14-35
150-118.225(1)(a) ....................... 14-43
150-118.010(4)............................ 14-35
150-118.225(1)(b) ....................... 14-44
150-118.010(4)(b) ....................... 14-36
150-118.260 ................................ 14-43
150-118.010(7)......... 7-48, 7-54, 14-49,
150-118.260(1)-(A) ......... 14-28, 14-44,
.................................... 14-50, 14-51
............................................... 14-45
150-118.010(7)(1) ........... 14-34, 14-49,
150-118.260(1)-(B) .......... 14-44, 14-45
.................................... 14-50, 14-52
150-118.260(4)............................ 14-44
150-118.010(7)(3) ............ 14-50, 14-59
150-118.265(3)............................ 14-58
150.118.010(8), Example 2 ......... 14-19
150-118-140(5) ................ 14-49, 14-50
150-118.010(8)(3) ........... 14-57, 14-58,
150-305.222(1)............................ 14-44
............................................... 14-59
150-305.992 ................................ 14-45
150-118.010(8)(4) ....................... 14-18
340-122-0140 ............ 7-12, 7-20, 10-42
150-118.100(1)...... 14-28, 14-42, 14-43
407-043-0010(4)(h)(A) ........ 5-20, 5-27
150-118.100(6)(1) ....................... 14-52
830-030-0010(1) ........................... 3-12
150-118.100(6)(2) ....................... 14-52
830-030-0010(4) ........................... 3-13
150-118.101(7)............................ 14-59
830-030-0040 ................................ 3-13
150-118.140(1)(b) ....................... 14-38
830-030-0050 ................................ 3-13
150-118.140(2)................. 14-49, 14-50
943-001-0020(2)(e) ..... 5-20, 5-27, 7-26
150-118.140(4)(i) ........................ 14-21
OREGON RULES OF APPELLATE PROCEDURE

ORAP 8.05(1) ............................ 9-17
ORAP 8.05(2) ............................ 9-17
OREGON LEGISLATIVE SESSION LAWS

1933 Or Laws ch 427 .............................................. 14-4
1947 Or Laws ch 562 .............................................. 4-22
1971 Or Laws ch 732 .............................................. 14-4
1997 Or Laws ch 99, 7 .......................................... 14-4
1977 Or Laws ch 666, 9 ........................................ 14-4
1993 Or Laws ch 598, 5 .......................................... 4-5
1995 Or Laws ch 235, 2 ......................................... 4-6
1999 Or Laws ch 131, 9 .......................................... 8-5
2001 Or Laws ch 245, 20 ...................................... 8-37
S&R-18
2012 Revision

2003 Or Laws ch 395 ............................................ 11-38
2003 Or Laws ch 576 ........................................... 15-11
2003 Or Laws ch 799 ............................................ 10-43
2003 Or Laws ch 806 .................................. 10-29, 14-5
2003 Or Laws ch 806, 10 ...................................... 14-5
2005 Or Laws ch 1 ............................................... 10-40
2005 Or Laws ch 568 .............................................. 2-57
2007 Or Laws ch 424 ........................................... 10-40
2007 Or Laws ch 424, 511 .............................. 11-82
2008 Or Laws ch 28 .............................................. 14-37
2009 Or Laws ch 50 ................................................ 2-57
2009 Or Laws ch 574, 23 ...................................... 8-29
2009 Or Laws ch 574, 24 ...................................... 8-28
2009 Or Laws ch 710 ............................................ 14-41
2009 Or Laws ch 855, 29 ................................ 11-82
2009 Or Laws ch 855, 17 .................................... 11-82
2011 Or Laws ch 212, 26 ...................................... 4-23
2011 Or Laws ch 305 ........................... 4-40, 4-49, 8-29
2011 Or Laws ch 305, 1 ........................................ 8-26
2011 Or Laws ch 305, 2 .............................. 8-21, 8-24
2011 Or Laws ch 305, 3 ........................................ 8-22
2011 Or Laws ch 305, 4 .............................. 8-21, 8-24
2011 Or Laws ch 305, 5 .............................. 8-23, 8-24
2011 Or Laws ch 305, 67 .................................. 8-27
2011 Or Laws ch 305, 7 ........... 8-21, 8-22, 8-23, 8-24,
................................................................. 8-26, 8-29
2011 Or Laws ch 526 .............. 7-46, 14-6, 14-19, 14-22
2011 Or Laws ch 526, 16 ..................................... 7-12
2011 Or Laws ch 526, 28 .................................... 14-46
2011 Or Laws ch 526, 30 ........................ 14-19, 14-46
2011 Or Laws ch 526, 30(2) ............................... 14-19
2011 Or Laws ch 526, 31 .................................... 14-19
OREGON RULES OF PROFESSIONAL CONDUCT

Oregon RPC 1.5(a) ................................................... 2-40
Oregon RPC 1.7 ......................................................... 7-5
Oregon RPC 1.15-1 ................................................ 11-31
OREGON ETHICS OPINIONS
OSB Legal Ethics Op No 2005-62........................... 7-5
OSB Legal Ethics Op No 2005-119 ........................ 7-5
S&R-19
2012 Revision

REVISED CODE OF WASHINGTON
RCW 26.16.120 ........................................ 1-12
RCW 83.100.040 .................................... 14-36
CODE OF FEDERAL REGULATIONS

CFR
Page
CFR
Page
31 CFR 315.70(b) ....................... 1-20
31 CFR 353.71(e)........................ 1-21
31 CFR 315.70(c)........................ 1-21
31 CFR 353.71(e)(3) ................... 1-21
31 CFR 315.71(3) ....................... 1-21
31 CFR 360.70(b) ....................... 1-20
31 CFR 353.70(b) ....................... 1-20
31 CFR 360.70(c)........................ 1-21
31 CFR 353.70(c)........................ 1-20
31 CFR 360.71(e)........................ 1-21
INTERNAL REVENUE CODE

IRC
Page
IRC
Page
1(a) .............................................. 7-49
454............................................... 3-50
2(a) .............................................. 7-49
454(a) .......................................... 7-52
2(a)(2)(A) ................................... 7-49
501(c)(3) ................................... 12-49
ch 14 ...................... 12-24, 12-25, 12-81
642(c)(5) ........................ 12-50, 12-51
67(a) ............................................ 7-53
642(g) ................. 12-40, 12-44, 12-48,
72(a) .......................................... 12-30
....................... 12-136, 14-49, 14-50
163............................................. 12-93
642(h) ................................. 1-5, 12-41
163(k) ............................. 12-45, 12-93
643(e)(3) ............................ 7-55, 7-56
164(a)(4) ................................... 13-30
645...................................... 7-51, 13-6
170............................................. 12-52
645(c) .......................................... 7-52
213(c) ............................. 7-52, 12-137
663(a)(1) ................................... 10-59
267(c)(4) ................................... 12-93
663(b) .......................................... 7-52
303........................... 3-47, 7-48, 12-94
664............................................. 12-50
303(a) ........................................ 12-94
664(d)(3) ................................... 12-51
303(b) ........................................ 12-18
664(g) ........................................ 12-49
303(b)(2) ................................... 12-94
691(a) .......................................... 7-52
303(d) ........................................ 13-30
691(a)(4) ..................................... 7-37
401........................................... 12-136
691(c)(3) ................................... 13-30
401409A .............................. 12-136
753754 .................................... 7-56
401(a)(9) ..................................... 8-27
754............................................... 3-47
402(c)(9) ................................... 12-29
1014............ 7-33, 7-34, 12-14, 12-19,
408(d)(1) ................................... 12-30
...................... 12-67, 12-89, 12-121,
408(d)(3) ................................... 12-29
.................................... 14-14, 14-30
408(d)(3)(A) .............................. 12-29
1014(a) ...................................... 13-30
417(a)(2) ..................................... 8-28
1014(b) .................................... 12-113
441 .............................................. 7-51
1014(b)(10) ............................... 12-67
443(a)(2) ............................ 7-44, 7-51
1014(e) ...................................... 12-19
446 .............................................. 7-51
1014(e)(1) ................................. 12-19
S&R-20
2012 Revision

IRC
Page
1022 ............................................ 7-34
1031.............................. 12-120, 14-25
1033.............................. 12-120, 14-25
1361(b)(1) ................................... 7-13
1361(b)(1)(A) ............................. 7-13
1402(a)(1) ............................... 12-115
2001.................................. 13-3, 12-48
2001(b) ................. 7-46, 12-73, 14-10,
............. 14-14, 14-28, 14-29, 14-31
2001(b)(c) ................................. 12-8
2001(c) ........................... 12-73, 12-75
2001(c)(2)(B) ............................ 12-74
2010.......... 12-74, 12-85, 13-3, 13-16,
......................... 14-10, 14-14, 14-54
2010(b) ........................... 12-76, 12-85
2010(c) ......... 7-45, 12-8, 12-9, 12-10,
......................... 12-75, 12-84, 14-20
2010(c)(2) ................................. 14-20
2010(c)(3) ...................... 12-11, 14-20
2010(c)(4) ...................... 12-11, 14-20
2010(c)(4)(5) ............................. 7-47
2010(c)(5) ................................. 14-20
2011............. 12-47, 12-76, 14-6, 14-8
2011(b)(2) ................................. 12-76
2011(b)(2)(B) ............................ 14-11
2011(b)(3) ...........14-10, 14-29, 14-30
2012....................... 12-9, 12-74, 12-77
2012(a) ...................................... 12-77
2012(c) ...................................... 12-77
2012(e) ...................................... 12-77
2013........... 12-9, 12-74, 12-78, 12-80
2013(a) .................. 12-9, 12-78, 12-79
2013(b) ...................................... 12-78
2013(c) ...................................... 12-78
2014......... 12-10, 12-74, 12-79, 12-80
2014(b) ...................................... 12-80
2014(d) ...................................... 12-80
2014(e) ...................................... 12-81
2014(f)....................................... 12-79
2031................................. 7-34, 12-83,
.............. 12-85, 12-110, 14-6, 14-8,
.............. 14-9, 14-11, 14-14, 14-29,
IRC
Page
20312032............................... 12-13
2031(a) ...................................... 14-11
2031(c) ........................................ 7-35
2032.............. 7-34, 7-44, 7-52, 12-17,
........ 12-89, 12-90, 12-110, 12-128,
......................... 13-16, 14-48, 14-49
2032(a) ...................................... 12-14
2032(c) ........................... 12-14, 12-90
2032(c)(2) ................................. 12-90
2032(d) ................ 12-14, 14-34, 14-51
2032(d)(1) ...................... 12-14, 12-89
2032(d)(2) ................................. 12-89
2032A ........... 7-34, 7-48, 7-52, 12-18,
...... 12-95, 12-111, 12-112, 12-113,
.................. 12-114, 12-115, 12-116,
.................. 12-117, 12-118, 12-120,
...................... 12-121, 13-16, 13-22,
.............. 13-23, 13-24, 14-6, 14-23,
......................... 14-38, 14-42, 14-48
2032A(a) ................................. 12-112
2032A(a)(1)(B) ....................... 12-113
2032A(a)(2)............................. 12-119
2032A(a)(3)................ 12-112, 12-118
2032A(b) ................................. 12-112
2032A(b)(1) ............................ 12-113
2032A(b)(1)(A) ....................... 12-113
2032A(b)(1)(A)(i) ................... 12-114
2032A(b)(1)(B) ....................... 12-113
2032A(b)(1)(C) ....................... 12-114
2032A(b)(2) ............... 12-112, 12-113
2032A(b)(3) ............................ 12-113
2032A(b)(4) ............................ 12-115
2032A(c) ................................. 12-120
2032A(c)(1)... 12-112, 12-117, 12-119
2032A(c)(5)............................. 12-120
2032A(c)(7)(A) ....................... 12-120
2032A(c)(7)(A)(ii) .................. 12-120
2032A(c)(7)(B) .......... 12-115, 12-120
2032A(c)(7)(C) ....................... 12-115
2032A(d)(1) ............................ 12-116
2032A(d)(2) ............... 12-117, 12-118
2032A(d)(3) ............................ 12-121
S&R-21
2012 Revision

IRC
Page
2032A(e)(1)............................. 12-115
2032A(e)(1)(2) ...................... 12-113
2032A(e)(2).................. 12-116, 14-38
2032A(e)(3)............................. 12-114
2032A(e)(6)............................. 12-115
2032A(e)(7)............................. 12-118
2032A(e)(7)(A) ....................... 12-118
2032A(e)(7)(C) ....................... 12-118
2032A(e)(8)(A) ....................... 12-118
2032A(e)(8)(B) ....................... 12-119
2032A(e)(8)(C) ....................... 12-119
2032A(e)(8)(D) ....................... 12-119
2032A(e)(8)(E) ....................... 12-119
2032A(e)(9)............................. 12-114
2032A(e)(13)........................... 12-114
2032A(e)(13)(D) ..................... 12-117
2032A(f)(1) ............................. 12-121
2032A(h) ................................. 12-120
2032A(h)(3)(B) ....................... 12-120
2032A(i) .................................. 12-120
2032A(i)(3) ............................. 12-120
20332045............................... 12-17
20342045.................... 12-15, 12-17
2035.......... 12-7, 12-18, 12-19, 12-27,
..................... 12-34, 12-114, 12-134
2035(a) ................ 12-18, 14-28, 14-29
2035(a)(b) ............................... 12-18
2035(c) ............................. 12-7, 12-18
2035(d) ...................................... 12-18
2036........................................... 14-29
20362038................................. 12-7
2036(a) ...................................... 12-20
2036(a)(2) ................................. 12-22
2036(b) ...................................... 12-22
2036(b)(1) ................................. 12-22
2036(b)(2) ................................. 12-22
2036(c) ........................... 12-24, 12-25
2037........................................... 14-29
2038.................... 12-18, 12-20, 12-27,
....................... 12-28, 12-134, 14-29
2038(a) ...................................... 12-27
2039.................................. 12-7, 12-28
S&R-22
2012 Revision
IRC
Page
2039(a) ...................................... 12-28
2039(b) ...................................... 12-29
2039(e) ...................................... 12-29
2040....................... 12-7, 12-30, 12-31
2040(a) ...................................... 12-30
2040(b) ............ 12-30, 12-132, 12-139
2040(b)(1) ................................. 12-86
2040(b)(2) ................................. 12-31
2041..................... 12-7, 12-32, 12-135
2041(a)(1) ............................... 12-135
2041(a)(2) ................................. 12-32
2041(b) .................................... 12-135
2041(b)(1) .................... 12-32, 12-135
2041(b)(1)(A) ............................ 12-33
2041(b)(1)(C) ............................ 12-33
2042.......... 12-7, 12-18, 12-35, 12-36,
.................................. 12-130, 14-29
2042(1) ...................................... 12-33
2042(2) ............ 12-34, 12-130, 12-131
2044..................... 12-7, 12-67, 12-133
2046........................................... 12-82
2051........................................... 14-10
20512058............................... 14-12
2053.......... 7-52, 12-36, 12-39, 12-40,
............. 12-43, 12-47, 12-54, 12-93
20532056............................... 12-36
2053(a) ................ 12-36, 12-37, 12-39
2053(a)(1) ................................... 12-8
2053(a)(2) ........................ 12-8, 12-44
2053(a)(3) .................... 12-45, 12-139
2053(a)(3)(4) ............................. 12-8
2053(a)(4) .................... 12-39, 12-113
2053(b) ...................................... 12-37
2053(c)(1)(A) ............................ 12-47
2053(c)(1)(D) ................. 12-45, 12-93
2053(c)(2) ................................. 12-37
2053(d) ........................... 12-47, 12-79
2054..................... 14-24, 14-38, 14-48
2055............ 7-48, 12-8, 12-47, 12-48,
......................... 12-51, 12-52, 13-22
2055(a) .................. 12-49, 12-50, 13-6
2055(a)(1) ................................. 12-48

IRC
Page
2055(a)(2) ................................. 12-49
2055(a)(2)(3) ........................... 12-49
2055(a)(3) ................................. 12-49
2055(a)(4) ................................. 12-49
2055(a)(5) ................................. 12-49
2055(e)(2) ...................... 12-51, 12-53
2055(e)(2)(A) ............................ 12-50
2055(e)(2)(B) ............................ 12-52
2055(e)(3)(C)(iii) ...................... 12-51
2056............ 7-47, 12-8, 12-41, 12-53,
.............. 12-59, 12-62, 12-64, 14-6,
......................... 14-48, 14-49, 14-54
2056(a) ............... 12-54, 12-56, 12-57,
.................................... 12-58, 12-59
2056(b) ................ 12-54, 12-57, 12-59
2056(b)(1) ................................. 12-59
2056(b)(1)(A)(B) .................... 12-59
2056(b)(1)(C) ............................ 12-60
2056(b)(3) ...................... 12-60, 12-61
2056(b)(4) ................................. 12-54
2056(b)(5) ...................... 12-60, 12-61
2056(b)(6) ...................... 12-60, 12-72
2056(b)(7) ..............7-47, 7-54, 12-61,
............. 12-65, 14-33, 14-55, 14-59
2056(b)(7)(B) ................. 12-65, 12-66
2056(d) ........................... 12-57, 12-71
2056A............................... 14-6, 14-49
2056A(b)(12) ............................ 12-72
2057..................... 12-53, 12-95, 14-60
2057(c) ...................................... 14-38
2058...................... 12-8, 12-47, 12-76,
........................... 14-6, 14-10, 14-11
2203......................... 12-99, 13-7, 13-8
2204............ 3-50, 11-8, 12-90, 12-91,
................................ 12-101, 12-102
2204(a) ........................... 12-91, 14-40
2207A............................. 12-70, 13-26
2207A(a)(1)............................... 12-70
2207A(a)(2)............................... 12-70
2207A(b) ................................... 12-70
2503................................ 14-10, 14-28
2503(b) ...................................... 13-13
IRC
Page
2503(e) ...................................... 13-13
2505(c) ...................................... 12-75
2512........................................... 12-68
2515........................................... 13-26
2518....... 5-40, 7-50, 7-54, 8-31, 8-34,
............... 8-35, 12-82, 12-83, 13-15
2518(b) ........ 8-34, 8-52, 12-82, 12-83
2518(b)(1) ................................... 8-34
2518(b)(2) ..... 7-12, 8-34, 8-35, 12-50
2518(b)(2)(A)(B) ...................... 8-34
2518(b)(3) ................................... 8-34
2518(b)(4)(A)(B) ...................... 8-34
2518(c)(1) ................................. 12-83
2518(c)(3) ........................ 1-12, 12-82
2519........................................... 12-68
2521 ............................................ 7-46
2522................................ 12-52, 13-22
2601......................... 13-2, 13-3, 13-16
26012663................................. 13-3
2603(a) ...................................... 13-25
2603(a)(1) ................................. 13-16
2603(b) ...................................... 13-25
2604........................................... 13-26
2611............................................. 13-3
26112663 ................................ 7-48
2611(a) ...................................... 13-12
2612........................................... 13-12
2612(a)(1) ................................. 13-12
2612(a)(2) ................................. 13-13
2612(b) ...................................... 13-13
2612(c)(1) ................................. 13-12
2613(a)(1) ........................ 13-7, 13-14
2613(a)(2) ................................... 13-7
2613(b) ........................................ 13-7
2621(a) ...................................... 13-16
2621(b) ...................................... 13-16
2622........................................... 13-16
2623........................................... 13-15
2624(a) ...................................... 13-16
2624(b) ...................................... 13-16
2624(c) ...................................... 13-16
2624(d) ...................................... 13-16
S&R-23
2012 Revision

IRC
Page
2631........................................... 13-16
26312632............................... 13-15
2631(a) ............................. 7-56, 13-17
2631(b) ...................................... 13-17
2631(c) ........................... 12-75, 13-17
2632(a)(1) ................................. 13-18
2632(b)(1) ................................. 13-17
2632(b)(3) ................................. 13-18
2632(c) ...................................... 13-18
2632(d) ...................................... 13-20
2632(e)(1)(A) ............................ 13-18
2632(e)(1)(B) ............................ 13-18
2632(e)(2) ................................. 13-18
2641.................................. 13-3, 13-21
2642(a) ...................................... 13-21
2642(a)(1) ................................. 13-21
2642(a)(2)(A) ............................ 13-22
2642(a)(2)(B) ............................ 13-22
2642(a)(3) ................................. 13-24
2642(b) ...................................... 13-24
2642(b)(1) ...................... 13-17, 13-23
2642(b)(2) ................................. 13-23
2642(b)(3) ................................. 13-23
2642(b)(4) ................................. 13-24
2642(c)(1) ................................. 13-13
2642(c)(2) ................................. 13-14
2642(c)(3) ................................. 13-13
2642(f)....................................... 13-19
2642(g)(2) ................................. 13-19
2651........................................... 13-29
2651(b)(1) ................................... 13-8
2651(b)(2) ................................... 13-8
2651(b)(3) ................................... 13-9
2651(c)(1) ................................... 13-8
2651(c)(2) ................................... 13-8
2651(d)(1) ................................... 13-9
2651(d)(2) ................................... 13-9
2651(d)(3) ................................... 13-9
2651(e) ........................... 13-10, 13-20
2651(f)(1) .................................. 13-10
2651(f)(2) .................................... 13-9
2651(f)(3) ........................... 13-7, 13-9
S&R-24
2012 Revision
IRC
Page
2652(a) ........................................ 13-4
2652(a)(1) ................................... 13-4
2652(a)(2) ................................... 13-4
2652(a)(3) ................................... 13-4
2652(b)(1) ................................... 13-5
2652(b)(2) ................................... 13-5
2652(b)(3) ................................... 13-5
2652(c)(1)(A) .............................. 13-6
2652(c)(1)(B) .............................. 13-6
2652(c)(1)(C) .............................. 13-6
2652(c)(2) ................................... 13-6
2652(c)(3) ................................... 13-7
2652(d) ........................................ 13-8
2653(a) ...................................... 13-15
2654(a)(1) ................................. 13-30
2654(a)(2) ................................. 13-30
2654(b) ........................................ 13-6
2654(b)(1) ................................... 13-6
2654(b)(2) ................................... 13-6
2701........................................... 12-25
27012704............................... 12-24
2702........................................... 12-25
2703........................................... 12-25
2704........................................... 12-25
6012(a)(3) .......................... 7-47, 7-45
6012(a)(5) ................................... 7-47
6013(a)(3) ................................... 7-49
6015.................................... 7-49, 7-50
6018........................................... 14-10
6018(a) ............................. 7-45, 12-84
6018(a)(1) ................................. 12-84
6018(a)(2) ................................. 12-86
6018(a)(3) ........................ 7-46, 12-86
6072(a) ........................................ 7-45
6075.................................. 7-44, 12-92
6075(a) ...................................... 12-87
6081.................................. 3-49, 14-51
6091(b)(3)(4)........................... 12-86
6153.................................... 7-49, 7-50
6161............ 3-49, 7-53, 10-26, 12-44,
............. 12-45, 12-81, 12-92, 14-51
6161(a)(2) ...........10-26, 12-92, 12-95

IRC
Page
6163................................ 12-92, 14-51
6163(a) ...................................... 12-92
6166.............. 3-49, 7-48, 7-53, 10-26,
............ 12-18, 12-45, 12-92, 12-93,
....... 12-94, 12-95, 12-101, 12-117,
.................... 12-121, 12-136, 13-30,
......................... 14-44, 14-45, 14-51
6166(a)(1) ................................. 12-93
6166(b)(6) ...................... 12-93, 14-38
6166(c) ...................................... 12-93
6166(e) ...................................... 12-94
6166(g)(1)(A) ............................ 12-93
6166(g)(1)(B) ............................ 12-94
6166(g)(1)(D) ............................ 12-93
6166(g)(3)(A) ............................ 12-94
6166(g)(3)(B) ............................ 12-94
6166(i) ....................................... 13-30
6166A ........................................ 12-92
6211(a) .................................... 12-102
6212(a) .................................... 12-102
6213......................................... 12-106
6213(a) .................................... 12-106
6213(d) .................................... 12-104
6321........................................... 12-99
63216327............................. 12-100
6322........................................... 12-99
6323......................................... 12-100
6323(b) .................................... 12-100
6323(f)..................................... 12-100
6324......................................... 12-100
6324(a) ...................................... 12-99
6324(a)(2) .................. 12-100, 12-101
6324(a)(3) ............................... 12-101
6324(c) ...................................... 12-99
6324A........................... 12-91, 12-101
6324A(d) ................................. 12-101
IRC
Page
6324B(b) ................................. 12-121
6324B(d) ................................. 12-121
6501........................................... 12-37
6501(a) .................................... 12-101
6501(b)(1) ............................... 12-101
6501(c) .................................... 12-101
6501(d) ............................... 3-50, 11-8
6501(e)(2) ............................... 12-101
6511(a) .................................... 12-108
6532(a) .................................... 12-108
6601(c) .................................... 12-104
6601(j) ................. 10-26, 12-93, 12-95
6621(a)(2) ................................. 12-95
6622........................................... 12-95
6651(a) ...................................... 12-88
6651(a)(1) .......................... 1-5, 12-97
6651(a)(2) ................................. 12-98
6654............................................. 7-50
6654(l)(2) ........................... 7-45, 7-49
6662(a) ...................................... 12-97
6662(b) ...................................... 12-97
6662(e)(1)(A) ............................. 7-35
6662(g) ............................. 7-35, 12-97
6662(g)(1) ................................. 12-97
6662(h) ...................................... 12-97
6663........................................... 12-98
6901........................................... 12-99
6901(a) ...................................... 12-99
6905........................... 7-50, 9-17, 11-8
7203........................................... 12-98
7422......................................... 12-109
7451......................................... 12-107
7463......................................... 12-107
7479........................................... 12-94
7482(b)(2) ............................... 12-107
7502........................................... 12-88
S&R-25
2012 Revision

UNIFORM TRIAL COURT RULES
UTCR
Page
2.010................. 1-25, 2-16, 2-70, 2-73,
............... 2-75, 5-6, 5-9, 5-16, 5-49,
.................... 5-54, 5-57, 5-61, 5-63,
........... 6-21, 6-23, 6-28, 6-30, 6-33,
........... 6-36, 6-41, 6-44, 7-60, 7-62,
........... 7-64, 8-44, 8-47, 8-50, 8-53,
........... 8-55, 8-57, 9-30, 9-35, 9-37,
....... 9-39, 9-41, 9-43, 10-63, 10-65,
............ 10-68, 10-70, 10-73, 10-75,
............ 11-62, 11-71, 11-73, 11-78,
............ 11-80, 11-83, 11-85, 11-87,
............ 11-89, 11-91, 11-93, 11-95,
........ 11-97, 11-99, 11-104, 11-109,
............ 11-112, 15-6, 15-42, 15-47,
.................................... 15-51, 15-57
2.010(3) ........................................... 5-6
2.010(6) ....................................... 11-27
2.010(7) .............. 2-70, 2-73, 2-75, 5-6,
............. 5-8, 5-50, 5-55, 5-61, 5-63,
........... 6-21, 6-23, 6-28, 6-30, 6-33,
........... 6-36, 6-41, 7-60, 7-62, 7-64,
.................... 8-44, 8-50, 8-53, 8-55,
........ 8-57, 9-30, 9-41 10-63, 10-65,
............ 10-68, 10-70, 10-73, 10-75,
............ 11-27, 11-62, 11-71, 11-73,
............ 11-78, 11-80, 11-83, 11-85,
............ 11-87, 11-89, 11-91, 11-93,
.......... 11-95, 11-97, 11-99, 11-100,
...... 11-104, 11-109, 11-112, 15-42,
............. 15-44, 15-47, 15-51, 15-57
2.010(11) ....................................... 8-14
2.010(12) .......... 2-70, 2-73, 5-61, 5-63,
....... 6-23, 6-33, 6-36, 10-70, 10-75,
.......... 11-89, 11-95, 11-100, 15-47,
............................................... 15-57
2.100(1)(a) ...................................... 5-7
2.1002.110................. 5-25, 5-86, 5-92
2.110................................................ 5-7
5.060................................................ 6-3
5.060(2) ........................................... 6-3
5.080............... 2-39, 6-41, 6-44, 11-30,
....................... 11-62, 11-71, 11-109
ch 9 ............................ 2-16, 2-39, 11-16
S&R-26
2012 Revision
UTCR
Page
9.010................................... 5-16, 11-10
9.020.............................................. 5-18
9.030............ 2-70, 2-73, 5-6, 5-9, 5-16,
........... 5-54, 5-49, 5-57, 5-61, 5-63,
........... 6-21, 6-23, 6-28, 6-30, 6-33,
........... 6-36, 6-41, 6-44, 7-60, 7-62,
........... 7-64, 8-44, 8-47, 8-50, 8-53,
............ 8-55, 8-57, 9-30, 9-35, 9-37
.................. 9-39, 9-41, 9-43,10-63,
............ 10-65, 10-68, 10-70, 10-73,
............ 10-75, 11-27, 11-62, 11-71,
............ 11-73, 11-78, 11-80, 11-83,
............ 11-85, 11-87, 11-89, 11-91,
............ 11-93, 11-95, 11-97, 11-99,
........ 11-104, 11-109, 11-112, 15-6,
......................... 15-42, 15-51, 15-57
9.030(1) .............. 2-70, 2-73, 2-75, 5-8,
........... 5-50, 5-55, 6-28, 6-33, 6-36,
................ 6-41, 8-44, 10-68, 10-70,
............ 10-73, 10-75, 11-71, 11-78,
.......... 11-89, 11-95, 11-99, 11-112,
............. 15-42, 15-47, 15-51, 15-57
9.030(1)(2) .................................. 6-23
9.030(2) ............ 2-70, 2-73, 6-33, 6-36,
............ 10-70, 10-75, 11-89, 11-95,
....................... 11-100, 15-47, 15-57
9.040............................................ 10-47
9.050.......................... 6-6, 11-13, 11-18
9.060.............................. 6-6, 6-41, 6-44
9.060(2) ..... 2-39, 11-30, 11-109, 15-44
9.060(3) ....................................... 11-30
9.060(4) ....................... 2-22, 2-39, 2-52
9.070............................ 9-13, 9-20, 9-41
9.160............... 2-36, 6-6, 11-11, 11-26,
............ 11-71, 11-73, 11-78, 11-80,
............ 11-83, 11-85, 11-87, 11-89,
......... 11-91, 11-109, 11-112, 11-17
9.160(1)(a) .................................. 11-12
9.160(1)(b) ....................... 11-12, 11-13
9.160(1)(b)(i)(vii)...................... 11-13
9.160(2) ............................ 11-17, 11-52
9.160(2)(a) .................................. 11-18
9.160(2)(a)(i) ......... 11-13, 11-18, 11-19

UTCR
Page
9.160(2)(a)(ii).............................. 11-18
9.160(2)(a)(iii) ............................ 11-19
9.160(2)(a)(iv) ............................. 11-20
9.160(2)(a)(v) .............................. 11-21
9.160(2)(b) .................................. 11-21
9.160(2)(c) .................................. 11-21
9.160(2)(d) .................................. 11-21
9.160(2)(e) .................................. 11-17
9.160(2)(f) ................................... 11-26
9.160(3) ............................ 11-22, 11-54
9.160(3)(a) .................................. 11-22
9.160(3)(b) .................................. 11-22
9.160(3)(c) .................................. 11-22
9.160(3)(d) ....................... 11-22, 11-26
9.160(3)(e) .................................. 11-23
9.160(3)(f) ................................... 11-23
UTCR
Page
9.160(3)(g) .................................. 11-23
9.160(3)(h) .................................. 11-26
9.160(4) ....................................... 11-14
9.160(5) ....................................... 11-17
9.170............ 2-36, 11-15, 11-62, 11-71
9.180..................................... 6-6, 11-25
9.180(1) ....................................... 11-25
9.180(2) ....................................... 11-26
9.180(3) ............................ 11-22, 11-26
9.180(4) ....................................... 11-26
9.190..................................... 6-6, 11-25
Form 5.080 ................................ 11-109
Form 9.160 ........... 11-11, 11-16, 11-17,
............ 11-52, 11-54, 11-56, 11-57,
......................... 11-62, 11-64, 11-71
PRIVATE LETTER RULING

Priv Ltr Rul 91-02-010 (Oct 10, 1990) ......................... 7-50
Priv Ltr Rul 9135043 (Aug 30, 1991)............................ 1-12
REVENUE PROCEDURES
Rev Proc 2012-41 ...................................................... 12-112
Rev Proc 2012-41, 2012-45 ......................................... 12-93
REVENUE RULINGS
Rev Rul 53-240, 1953-2 CB 79 ................................... 12-41
Rev Rul 54-19, 1954-1 CB 179 ................................... 12-16
Rev Rul 56-397, 1956-2 CB 599 (1956)...................... 12-34
Rev Rul 58-5, 1958-1 CB 322 (1958)........................... 7-51
Rev Rul 59-60, 1959-1 CB 237 ................................. 12-123
Rev Rul 64-104, 1964-1 CB 223 (1964) ...................... 7-52
Rev Rul 64-113, 1964-1 CB 483 ................................... 3-47
Rev Rul 64-305, 1964-2 CB 503 ...................... 12-91, 12-99
Rev Rul 65-193, 1965-2 CB 370 ............................... 12-124
Rev Rul 66-39, 1966-1 CB 223 ................................... 12-63
Rev Rul 66-167, 1966-1 CB 20 (1966) ........................ 7-51
Rev Rul 67-276, 1967-2 CB 321 (1967) ...................... 7-36
S&R-27
2012 Revision

Rev Rul 68-65, 1968-1 CB 555 ................................. 12-108
Rev Rul 68-145, 1968-1 CB 203 (1968)............. 7-52, 10-59
Rev Rul 69-8, 1969-1 CB 219 ..................................... 12-16
Rev Rul 69-54, 1969-1 CB 221 (1969)........................ 12-35
Rev Rul 69-402, 1969-2 CB 176 (1969)...................... 12-44
Rev Rul 73-21, 1973-1 CB 405 ................................... 12-21
Rev Rul 77-287, 1977-2 CB 319 ............................... 12-123
Rev Rul 78-125, 1978-1 CB 292 ................................. 12-44
Rev Rul 79-252, 1979-2 CB 333 ............................... 12-136
Rev Rul 79-353, 1979-2 CB 325 ................................. 12-21
Rev Rul 84-130, 1984-2 CB 194 (1984)...................... 12-36
Rev Rul 95-58, 1995-2 CB 191 ................................... 12-21
Rev Rul 2006-26, 2006-1 CB 939 ............................... 12-70
Rev Rul 2006-34, 2006-1 CB 1171 ............................. 12-94
Rev Rul 2007-14, 2007-1 CB 747 ............................... 12-16
TREASURY REGULATIONS
Treas Reg
Page
Treas Reg
Page
20.2031-2(e) ............................ 12-123
1.441-1(c)(1)............................... 7-51
20.2031-2(f) ............................ 12-123
1.529-5(b).................................. 13-13
1.642(g)-1.................................. 12-40
20.2031-2(i) ................................ 7-36
20.2031-3 ................................ 12-133
1.664-2 ...................................... 12-50
20.2031-4 ....................... 7-36, 12-129
1.664-3 ...................................... 12-50
1.6015.......................................... 7-50
20.2031-6(a) ............................... 7-37
20.2031-6(a)(b) ......................... 3-22
1.6072-1(b) ................................. 7-44
20.2031-6(b) ....... 7-37, 10-60, 12-134
1.6153-1(a)(4)............................. 7-50
1.6153-1(a)(4) ............................. 7-50
20.2031-6(c) ................................ 3-22
1.6654-2(e)(7)(ii)........................ 7-49
20.2031-7 .............. 7-38, 12-26, 12-52
1.7520-3(b)(1)(ii)(iii) ................ 8-25
20.2031-8(a)(2) ....................... 12-131
1.7520-3(b)(2)(ii)(A) .................. 8-25
20.2031-8(b)................... 7-36, 12-128
20.2012-1 .................................. 12-78
20.2032-1(a)(1)......................... 10-22
20.2012-1(b).............................. 12-77
20.2032-1(b)................... 12-88, 12-89
20.2012-1(c) .............................. 12-77
20.2032-1(c)(2). ........................ 12-14
20.2012-1(d).............................. 12-78
20.2032-1(d)(1) ....................... 12-128
20.2013-120.2013-6 .............. 12-79
20.2032A-8(a)(3) .................... 12-116
20.2013-6 .................................. 12-79
20.2032A-8(a)(3)(viii) ............ 12-117
20.2014-2 .................................. 12-80
20.2032A-8(b) ......................... 12-116
20.2014-3 .................................. 12-80
20.2032A-8(c) ......................... 12-118
20.2014-4(a)(1) ......................... 12-80
20.2033-1 .................................. 12-17
20.2031-1 .................................. 12-15
20.2033-1(b) ...................... 7-36, 7-38
20.2031-120.2031-8 ............... 7-35
20.2036-1 .................................. 12-23
20.2031-1(b)........ 7-34, 12-15, 12-110
20.2036-1(b)(1)(ii) .................... 12-20
20.2031-2 ................................ 12-128
20.2036-1(c) .............................. 12-21
20.2031-2(b)(1) .............. 7-36, 12-122
20.2037-1(c)(2) ......................... 12-27
S&R-28
2012 Revision

Treas Reg
Page
20.2037-1(e), example (1)......... 12-27
20.2037-1(e), example (3)......... 12-26
20.2041-1 ................................ 12-135
20.2041-1(b)(3) ......................... 12-33
20.2041-1(c) .............................. 12-21
20.2041-1(c)(2) ......................... 12-33
20.2041-2 ................................ 12-135
20.2042-1(c)(3) ......................... 12-34
20.2042-1(c)(6) ......................... 12-35
20.2053-1 ............ 12-37, 12-44, 12-45
20.2053-1(b)(3) ......................... 12-38
20.2053-1(b)(3)(iii) ................... 12-38
20.2053-1(b)(3)(iv) ................... 12-38
20.2053-1(d).............................. 12-44
20.2053-1(d)(3) ......................... 12-38
20.2053-1(d)(4) ......................... 12-39
20.2053-1(d)(4)(i) ..................... 12-38
20.2053-1(d)(4)(ii) .................... 12-37
20.2053-1(d)(5) ......................... 12-37
20.2053-1(f) .............................. 12-37
20.2053-2 .................................. 12-39
20.2053-3 .................................. 12-40
20.2053-3(a) .............................. 12-39
20.2053-3(c)(2) ....................... 12-108
20.2053-3(d)(1) ......................... 12-43
20.2053-3(d)(2) ......................... 12-44
20.2053-4 ....................... 12-44, 12-45
20.2053-4(a) .............................. 12-44
20.2053-4(d)(5) ......................... 12-46
20.2053-4(e)(1) ......................... 12-38
20.2053-6(a) .............................. 12-47
20.2053-6(b).............................. 12-47
20.2053-6(d).............................. 12-47
20.2053-6(f) .............................. 12-48
20.2053-9 ....................... 12-47, 12-76
20.2053-10 ................................ 12-47
20.2055-2(c) .............................. 12-50
20.2055-3(b) ............................... 7-53
20.2056(a)-1 .............................. 12-56
20.2056(b)-1 ............................... 7-41
20.2056(b)-1(b) ......................... 12-59
20.2056(b)-1(c)(1) .................... 12-59
20.2056(b)-1(c)(2) .................... 12-60
20.2056(b)-3(c) ......................... 12-57
Treas Reg
Page
20.2056(b)-3(d), example (4) .... 12-61
20.2056(b)-4(a) ......................... 12-63
20.2056(b)-4(d) ......................... 12-42
20.2056(b)-4(d)(1)(i) ................ 12-42
20.2056(b)-4(d)(1)(ii) ............... 12-42
20.2056(b)-4(d)(2) .................... 12-42
20.2056(b)-4(d)(3) .................... 12-42
20.2056(b)-5(a) ......................... 12-61
20.2056(b)-5(a)(1) .................... 12-62
20.2056(b)-5(a)(2) .................... 12-62
20.2056(b)-5(a)(3) .................... 12-62
20.2056(b)-5(a)(4) .................... 12-62
20.2056(b)-5(a)(5) .................... 12-62
20.2056(b)-5(f)(5) ..................... 12-63
20.2056(b)-5(f)(9) ..................... 12-63
20.2056(b)-5(g)(3) .................... 12-64
20.2056(b)-6(a) ......................... 12-73
20.2056(b)-7(2) ......................... 12-66
20.2056(b)-7(b)(1)(ii) ............... 12-66
20.2056(b)-7(b)(2) .................... 12-66
20.2056(b)-7(b)(2)(ii) ............... 12-67
20.2056(b)-7(b)(3) .................... 12-66
20.2056(b)-7(c)(1) .................... 12-67
20.2056(b)-7(c)(2) .................... 12-67
20.2056(b)-7(d) ......................... 12-68
20.2056(b)-7(h) ........................... 7-54
20.2056(c)-2(c)(d) ................... 12-58
20.2056A-3 ............................... 12-71
20.2204-1 .................................. 12-89
20.2204-1(a) .............................. 12-91
20.2204-1(b).............................. 12-91
20.6018-1(a) .............................. 12-86
20.6018-2 .................................. 12-87
20.6018-4 ..................... 12-90, 12-141
20.6075-1 ...................... 12-87, 12-88,
.................................... 12-91, 12-92
20.6081-1 .................................. 12-87
20.6081-1(a) .............................. 12-88
20.6081-1(b).............................. 12-88
20.6091-1(a) .............................. 12-86
20.6091-1(b)................... 12-86, 12-87
20.6161-1 .................................. 12-92
20.6161-1(a)(2) ......................... 12-92
20.6161-1(a)(2)(ii), Ex. (1) ....... 12-92
S&R-29
2012 Revision

Treas Reg
Page
20.6161-2(b).............................. 12-92
20.6163-1(b).............................. 12-92
25.2518-2(b)(2) ........................... 8-34
25.2518-2(c)(4)(i) ....................... 8-36
25.2518-2(c)(4)(iii) ..................... 8-36
25.2518-2(c)(5) ........................... 8-36
25.2518-2(d)(1) ........................... 8-34
25.2518-2(d)(3) ........................... 8-34
25.2518-2(e) ................................ 8-34
25.2518-3(a)(1)(ii) .................... 12-83
25.2518-3(b)................................ 8-35
26.2601-1(a)(2)(ii) .................... 13-27
26.2601-1(b)(1) ......................... 13-26
26.2601-1(b)(1)(v) .................... 13-26
26.2601-1(b)(1)(v)(B) ............... 13-27
26.2601-1(b)(3)(i) ..................... 13-28
26.2601-1(b)(4)(i)(A)................ 13-28
26.2601-1(b)(4)(i)(B) ................ 13-29
26.2601-1(b)(4)(i)(C) ................ 13-29
26.2601-1(b)(4)(i)(D)(1) ........... 13-29
26.2612-1(b)(1) ......................... 13-12
26.2612-1(b)(2) ......................... 13-13
26.2612-1(f), Ex. 9 .................... 13-13
26.2612-1(d)(2)(ii) ...................... 13-7
26.2632-1 .................................. 13-18
26.2632-1(a) .............................. 13-18
26.2632-1(b)(2)(iii) ................... 13-18
26.2632-1(b)(4) .............. 13-18, 13-19
26.2632-1(c)(2)(i) ..................... 13-19
26.2632-1(c)(2)(ii)(C) ............... 13-19
Treas Reg
Page
26.2632-1(c)(3) ......................... 13-20
26.2642-2(a)(2) ......................... 13-23
26.2642-2(b).............................. 13-24
26.2642-2(b)(2) ......................... 13-24
26.2642-4(a) .............................. 13-23
26.2642-4(d)(3) ......................... 13-23
26.2642-6(e) .............................. 13-24
26.2642-7 .................................. 13-32
26.2651-1(a)(2)(i) ..................... 13-11
26.2651-1(a)(2)(iii)(iv) ........... 13-11
26.2651-1(a)(2)(iv) ................... 13-11
26.2651-1(c), Ex. 7 ..................... 13-9
26.2651-2(b)................................ 13-9
26.2652-1(a)(3) ......................... 13-26
26.2652-1(a)(5), Ex. 5................. 13-5
26.2652-1(a)(5), Ex. 7............... 13-26
26.2652-1(d)................................ 13-8
26.2652-2(a) ................................ 13-4
26.2652-2(a)(b) ......................... 13-4
26.2652-2(c) .............................. 13-31
26.2653-1(b), Ex. 1 ................... 13-15
26.2662-1(d).............................. 13-31
26.2663-2 .................................. 13-30
301.6402-2 .............................. 12-108
301.6511(b)-1.......................... 12-108
301.6651-1(c) ............................ 12-97
301.9100.................................... 13-31
301.9100-3(a) ............................ 13-32
301.9100-3(e)(5) ....................... 13-32
301.9100-1301.9100-3 .......... 13-32
UNITED STATES CONSTITUTION

US Const amend 14 ............................................. 2-5
US Const art I................................................. 12-107
S&R-30
2012 Revision

UNITED STATES CODE
USC
Page
USC
Page
18 USC 922(k) .......................... 10-58
38 USC 2402 ............................... 1-23
26 USC 2204 ............................... 9-17
42 USC 69016992k ............... 10-41
26 USC 6324 ............................... 9-17
42 USC 96019675 ....... 7-19, 10-40,
28 USC 1346 ........................... 12-109
............................................... 10-42
28 USC 2402 ........................... 12-109
42 USC 402(b) ............................ 1-22
31 USC 3713 ............................. 10-41
42 USC 402(d) ............................ 1-22
31 USC 3713(b) ............. 10-41, 12-98
42 USC 402(i) ............................. 1-22
38 USC 11012410 ................... 1-23
42 USC 6991b(h)(9)(B) ............. 7-20
38 USC 1301 ............................. 12-34
42 USC 9601(9) ........................ 10-40
38 USC 1310 ............................... 1-23
42 USC 9601(35)(A)(iii) ............ 7-19
38 USC 1318 ............................... 1-23
42 USC 9607(a)(1).................... 10-40
38 USC 15411542 ................... 1-23
42 USC 9607(a)(4).................... 10-40
38 USC 1901 ............................. 12-34
42 USC 9607(n)(1) ................... 10-41
38 USC 1988 ............................. 12-34
42 USC 9607(n)(3) .......... 7-19, 10-41
38 USC 2302 ............................... 1-23
42 USC 9607(n)(4) ................... 10-41
38 USC 2306 ............................... 1-23
42 USC 9607(n)(4)(H) .............. 10-41
38 USC 2307 ............................... 1-23
S&R-31
2012 Revision
TABLE OF CASES
Allard v. Pacific Nat. Bank,

663 P2d 104 (Wash 1983)................................................................................ 10-36
Allen v. Hall,
328 Or 276, 974 P2d 199 (1999) .................................... 8-39, 15-11, 15-21, 15-22
Am. Nat. Red Cross v. Wilson,
274 Or 237, 545 P2d 883 (1976) ...................................................................... 4-35
Ankeny v. Lieuallen,
169 Or 206, 113 P2d 1113, 127 P2d 735 (1942) .............................................. 4-34
Baker v. Mohr By & Through Adams,
111 Or App 592, 826 P2d 111 (1992) .............................................................. 4-35
Barker v. Barker,
65 Or App 635, 672 P2d 370 (1983).................................................................. 9-23
Baumann v. Wright,
249 Or 212, 437 P2d 488 (1968) ......................................................................... 9-5
Baxter v. Zeller,
42 Or App 873, 601 P2d 902 (1979) .............................................................. 15-31
Beach v. Holland,
172 Or 396, 142 P2d 990 (1943) ....................................................................... 1-18
Betz v. Ganos,
196 Or App 5, 100 P3d 756 (2004)........................................................... 15-4, 15-9
Bigej v. Boyer,
108 Or App 663, 817 P2d 760 (1991) .............................................................. 4-25
Binder v. Oregon Bank,
284 Or 89, 585 P2d 655 (1978) ........................................................................... 9-5
Bohnen v. Harrison,
232 F2d 406 (7th Cir 1956) ............................................................................. 12-40
Boise Payette Lumber Co. v. Natl Sur. Corp.,
167 Or 553, 118 P2d 1066 (1941) ........................................................ 11-41, 11-42
Bonner v. Arnold,
296 Or 259, 676 P2d 290 (1984) ...................................................................... 4-41
Bonnett v. Keiffer,
115 Or 244, 237 P 1 (1925) ............................................................................... 9-24
C-1
2012 Revision
Table of Cases (continued)

Brown v. Hackney,
228 Or App 441, 208 P3d 988 (2009) ........................................2-33, 15-25, 15-32
Brown v. Oregon State Bar,
293 Or 446, 648 P2d 1289 (1982) ..................................................................... 8-14
Buresh v. First Nat. Bank,
10 Or App 463, 500 P2d 1063 (1972).................................................................. 2-7
Butcher v. McClain,
244 Or App 316, 260 P3d 611 (2011)................................................... 15-22, 15-23
C.I.R v. Boschs Estate,
387 US 456, 87 S Ct 1776, 18 L Ed2d 886 (1967) .......................................... 12-17
C.I.R. v. Irving Trust Co.,
147 F2d 946 (2d Cir 1945)............................................................................... 12-22
Catching v. Lashway,
84 Or App 602, 735 P2d 13 (1987) ................................................4-32, 4-33, 4-34
Church v. Woods,
190 Or App 112, 77 P3d 1150 (2003) .......................... 15-22, 15-35, 15-36, 15-37
Clark v. Clark,
125 Or 333, 267 P 534 (1928) ............................................................................. 8-5
Cleveland v. Higgins,
148 F2d 722 (2d Cir 1945)............................................................................... 12-40
Cline v. Larson,
234 Or 384, 383 P2d 74 (1963) ...................................................................... 15-18
Comerica Bank, N.A. v. United States,
93 F3d 225 (6th Cir 1996) ............................................................................... 12-17
Commr v. Estate of Hubert,
520 US 93, 117 S Ct 1124, 137 L Ed2d 235 (1997) ............................. 7-53, 12-41
Conduct of Morris,
326 Or 493, 953 P2d 387 (1998) ....................................................................... 2-39
Conklin v. Karban Rock, Inc.,
94 Or App 593, 767 P2d 444 (1989) .............................................................. 15-36
Crummey v. C.I.R.,
397 F2d 82 (9th Cir 1968) ................................................................................. 13-5
Cruze v. Hudler,
246 Or App 649, 267 P3d 176 (2011).............................................................. 15-37
Cummins Admr v. Walkers Comm.,
66 SW2d 48 (Ky 1933) .................................................................................... 11-45
C-2
2012 Revision

Dahlhammer v. Schneider,
197 Or 478, 252 P2d 807 (1953) ............................................................. 7-22, 7-23
DeLaMater v. DeLaMater,
69 Or App 40, 688 P2d 1350 (1984) ....................................................... 4-30, 4-34
Demars v. Erde,
55 Or App 863, 640 P2d 635 (1982) .............................................................. 15-27
Dibble v. Meyer,
203 Or 541, 278 P2d 901 (1955) ......................................................................... 6-4
Dickie v. Dickie,
95 Or App 310, 769 P2d 225 (1989)........................................................... 4-31, 9-5
Dillon v. Phillips,
92 Or App 65, 756 P2d 1278 (1988) .............................................................. 15-19
Drake v. Mut. of Enumclaw Ins. Co.,
167 Or App 475, 1 P3d 1065 (2000) ................................................................ 15-8
Dunham v. Siglin,
39 Or 291, 64 P 661 (1901) ............................................................................... 9-18
Eldridge v. Eastmoreland Gen. Hosp.,
307 Or 500, 769 P2d 775 (1989) .................................................................... 15-31
Estate of Bahr v. Commr of Internal Revenue,
68 TC 74 (1977) ............................................................................................... 12-44
Estate of Bennett,
100 TC 42 (1993) ............................................................................................... 1-12
Estate of Bonner v. United States,
84 F3d 196 (5th Cir 1996) ............................................................................. 12-125
Estate of Boyles v. C. I. R.,
4 TC 1092 (1945) ............................................................................................. 12-49
Estate of Bruner,
691 A2d 530 (Pa Super Ct 1997) .................................................................... 10-19
Estate of Clayton v. C.I.R.,
976 F2d 1486 (5th Cir 1992) ........................................................................... 12-68
Estate of Collino v. C.I.R.,
25 TC 1026, 1036 acq., 1956-2 CB 4 (1956) .................................................. 12-97
Estate of Farrel v. U. S.,
553 F2d 637 (Ct Cl Apr 20, 1977) ................................................................... 12-21
Estate of Fontana v. Commissioner,
118 TC 318 (2002) ........................................................................................... 12-64
C-3
2012 Revision

Estate of Gerson v. C.I.R.,
127 TC 139 (2006) ........................................................................................... 13-26
Estate of Grove v. Selken,
109 Or App 668, 820 P2d 895 (1991) ............................................2-40, 7-15, 7-16
Estate of Headrick v. C.I.R.,
918 F2d 1263 (6th Cir 1990) ................................................................ 12-34, 12-35
Estate of LaGrand,
47 Or App 81, 613 P2d 1091 (1980) .............................................................. 15-21
Estate of Malkin v. C.I.R,
98 TCM 225 (TC 2009) ................................................................................... 12-39
Estate of Mellinger v. C.I.R.,
112 TC 26 ........................................................................................... 12-64, 12-125
Estate of Monroe v. C.I.R,
104 TC 352 (1995) ........................................................................................... 13-25
Estate of N. R. Palanuk,
Polk County Case No 92P4037........................................................................ 11-31
Estate of Reichardt v. C.I.R.,
114 TC 144 (2000) ........................................................................................... 12-23
Estate of Robertson v. C.I.R.,
15 F3d 779 (8th Cir 1994) ............................................................................... 12-68
Estate of Schauerhamer v. C.I.R.,
73 TCM (CCH) 2855 (TC 1997) .............................................12-23, 12-56, 12-138
Estate of Schwan v. C.I.R.,
82 TCM (CCH) 168 (2001) ........................................................................... 12-125
Estate of Sessoms v. Commr,
8 TCM (CCH) 1056 (1949) ............................................................................. 12-22
Estate of Snyder v. U.S.,
84 AFTR2d 5963 (Fed Cl 1999) ...................................................................... 12-45
Estate of Spencer v. C.I.R.,
43 F3d 226 (6th Cir 1995) ............................................................................... 12-68
Estate of Timken v. United States,
601 F3d 431 (6th Cir 2010) ............................................................................. 13-26
Estate of Vak v. C.I.R.,
973 F2d 1409 (8th Cir 1992) ........................................................................... 12-22
Estate of Wall v. C.I.R.,
101 TC 300 (1993) ........................................................................................... 12-21
C-4
2012 Revision

Estate of Walsh v. C.I.R.,
110 TC 393 (1998) ........................................................................................... 12-60
Estate of Weisberger v. C.I.R.,
29 TC 217 (1957) ............................................................................................. 12-63
Estate v. Commissioner,
TC Memo 1997-242 (1997) ............................................................................. 12-23
Ferrando v. United States,
245 F2d 582 (9th Cir 1957) ............................................................................. 12-97
Field v. C.I.R.,
32 TC 187 (1959) ............................................................................................. 12-99
First Interstate Bank of Oregon, N.A. v. Haynes,
87 Or App 700, 743 P2d 1139 (1987)..................................................... 2-24, 11-40
First Nat. Bank of Oregon v. Dept of Revenue, State of Or.,
294 Or 60, 653 P2d 985 (1982) ........................................................................ 15-8
Fitchard v. Hirschbergs Estate,
128 Or 317, 272 P 906, 274 P 505 (1929) ............................................. 7-18, 10-19
Fleenor v. Williamson,
171 Or App 599, 17 P3d 520 (2000) ....................................................... 7-50, 8-32
Florey v. Meeker,
194 Or 257, 240 P2d 1177 (1952) ..................................................................... 4-31
Force v. Dept of Revenue,
350 Or 179, 252 P3d 306 (2011) ......................................... 14-5, 14-8, 14-9, 14-28
Gallenstein v. United States,
975 F2d 286 (6th Cir 1992) ............................................................................. 12-31
Golden v. Stephan,
5 Or App 547, 485 P2d 1108 (1971) ..................................................... 4-24, 15-13
Goltra v. Penland,
45 Or 254, 77 P 129 (1904) ............................................................................... 9-24
Goorman v. Henikens Estate,
244 Or 200, 416 P2d 662 (1966) ..................................................................... 11-49
Guggenheim v. Helvering,
117 F2d 469 (2d Cir 1941)............................................................................... 12-28
Hahn v. C.I.R.,
110 TC 140 (1998) ........................................................................................... 12-31
Hanson v. Denckla,
357 US 235, 78 S Ct 1228, 2 L Ed2d 1283 (1958) .............................................. 2-9
C-5
2012 Revision

Hargrove v. Taylor,
236 Or 451, 389 P2d 36 (1964) ........................................................................... 8-8
Harris v. Craven,
162 Or 1, 91 P2d 302 (1939).................................................................... 9-18, 15-8
Harris v. Jourdan,
218 Or App 470, 180 P3d 119 (2008) ........15-4, 15-7, 15-11, 15-15, 15-17, 15-18
Hatcher v. U. S. Nat. Bank of Oregon,
56 Or App 643, 643 P2d 359 (1982)................................................................ 10-36
Haugh v. Kilmer,
71 Or App 345, 692 P2d 631 (1984) .............................................................. 15-34
Heiller v. Nelson,
127 Or App 189, 872 P2d 26 (1994).................................................................. 9-26
Hendricksons Estate v. Warburton,
276 Or 989, 557 P2d 224 (1976) ..................................................8-4, 10-46, 10-47
Hillman v. North Wasco Co.
PUD, 213 Or 264 (1958) .................................................................................... 14-7
Hitcheva v. Div. of State Lands,
31 Or App 839, 572 P2d 625 (1977).................................................................. 2-45
Hitchman v. Burkey,
95 Or App 508, 769 P2d 799 (1989).................................................................. 9-17
Hoffart v. Wiggins,
226 Or App 545, 204 P3d 173 (2009) ................................................. 15-36, 15-37
Holst v. Purdy,
117 Or App 307, 844 P2d 229 (1992)................................................................ 5-22
Horwell by Penater v. Oregon Episcopal Sch.,
100 Or App 571, 787 P2d 502 (1990) ............................................................ 15-24
Housen v. Morse Bros., Inc.,
32 Or App 491, 574 P2d 361 (1978) .............................................................. 15-31
In Matter of Ungers Estate,
54 Or App 713, 636 P2d 436 (1981).................................................................. 2-36
In re Altstatt,
321 Or 324, 897 P2d 1164 (1995) ..................................................................... 2-40
In re Armstrongs Estate,
159 Or 698, 82 P2d 880 (1938) ......................................................................... 2-14
In re Banfields Estate,
137 Or 256, 3 P2d 116 (1931) ........................................................................ 10-15
C-6
2012 Revision

In re Booths Estate,
220 Or 534, 349 P2d 840 (1960) ......................................................................... 6-8
In re Broders Estate,
224 Or 165, 355 P2d 738 (1960) ......................................................................... 2-4
In re Carlsons Estate,
153 Or 327, 56 P2d 347 (1936) ............................................................. 15-4, 15-18
In re Chandlers Estate,
136 Or 128, 297 P 841 (1931) .......................................................................... 7-24
In re Conduct of Coe,
302 Or 553, 731 P2d 1028 (1987) ..................................................................... 2-37
In re Conduct of Gresham,
318 Or 162, 864 P2d 360 (1993) ...................................................................... 7-27
In re Conduct of Weidner,
320 Or 336, 883 P2d 1293 (1994) .............................................................. 2-40, 9-5
In re Cooks Estate,
231 Or 133, 372 P2d 520 (1962) .................................................................... 15-14
In re Desboroughs Estate,
220 Or 528, 349 P2d 849 (1960) ...................................................................... 15-5
In re Elders Estate,
164 Or 347, 101 P2d 412 (1940) ......................................................................... 2-6
In re Estate of Eddy,
95 Or App 733, 770 P2d 969 (1989).................................................................. 2-25
In re Estate of Perry,
597 A2d 796 (Vt 1991) ................................................................................... 10-19
In re Estate of Toles,
188 Or App 456, 71 P3d 584 (2003).................................................................. 8-16
In re Feehelys Estate,
182 Or 246, 187 P2d 156 (1947) ....................................................................... 2-34
In re Gorday Garment Co.,
2 F Supp 162 (D Or 1932) ................................................................................ 10-5
In re Hattrems Estate,
170 Or 613, 135 P2d 777 (1943) ............................................................ 9-24, 11-47
In re Hemshorns Estate,
184 Or 364, 198 P2d 597 (1948) ...................................................................... 7-23
In re Jensen,
995 F2d 925 (9th Cir 1993) ............................................................................. 10-42
C-7
2012 Revision

In re Johnsons Estate,
178 Or 214, 164 P2d 886 (1945) ....................................................................... 9-24
In re Kaisers Estate,
198 Misc 582, 100 NYS2d 218 (Sur 1950) .................................................... 15-30
In re Kries Estate,
182 Or 311, 187 P2d 670 (1947) ....................................................................... 9-24
In re Marriage of Keller,
232 Or App 341, 222 P3d 1111 (2009).............................................................. 1-22
In re McKinneys Estate,
175 Or 28, 149 P2d 980 (1944) ......................................................................... 9-28
In re Millers Estate,
189 Or 246, 218 P2d 966 (1950) .......................................................... 11-41, 11-42
In re Murrays Estate,
56 Or 132, 107 P 19 (1910) ................................................................................. 2-6
In re Nistler,
259 BR 723 (Bankr D Or 2001)......................................................................... 8-30
In re Noyes Estate,
182 Or 1, 185 P2d 555 (1947) ........................................................................... 2-13
In re Papes Estate,
135 Or 650, 297 P 845 (1931) .......................................................................... 4-38
In re Porters Estate,
192 Or 483, 235 P2d 894 (1951) .................................................................... 15-15
In re Quaids Estate,
215 Or 603, 335 P2d 86 (1959) ...................................................................... 15-18
In re Reddaways Estate,
214 Or 410, 329 P2d 886 (1958) .................................. 15-15, 15-16, 15-17, 15-20
In re Roachs Estate,
50 Or 179, 92 P 118 (1907) ............................................................................. 11-32
In re Roedlers Estate,
110 Or 147, 222 P 301 (1924) ......................................................................... 15-25
In re Rosenbergs Estate,
196 Or 219, 246 P2d 858 (1952) .................................................................... 15-20
In re Smiths Estate,
212 Or 481, 320 P2d 273 (1958) .................................................................... 15-20
In re Stouts Estate,
151 Or 411, 50 P2d 768 (1935) ....................................................................... 10-14
C-8
2012 Revision

In re Walthers Estate,
177 Or 382, 163 P2d 285 (1945) ......................................................... 15-14, 15-19
In re Warrens Estate,
138 Or 283, 4 P2d 635 (1931) ........................................................................... 5-12
In re Websters Estate,
74 Or 489, 145 P 1063 (1915) .......................................................................... 7-22
In re Weirs Estate,
21 Or App 476, 535 P2d 119 (1975) ................................................... 15-17, 15-18
In the Matter of Estate of Roley,
01C-19332, A124116 (Or Feb 2, 2005) ............................................................. 8-11
Interstate Roofing, Inc. v. Springville Corp.,
347 Or 144, 218 P3d 113 (2009) .............................................................. 2-31, 2-56
Irving Trust Co. v. Day,
314 US 556, 62 S Ct 398, 86 L Ed 452 (1942) .................................................... 2-4
Jarrett v. U.S. Nat. Bank of Oregon,
81 Or App 242, 725 P2d 384 (1986)................................................................ 10-39
Johnson v. Ranes,
67 Or App 667, 680 P2d 688 (1984)......................................................... 9-24, 9-25
Johnstone v. Zimmer,
191 Or App 26, 81 P3d 92 (2003) .................................................................. 15-21
Jones v. Hunt,
228 Or App 11, 206 P3d 1202 (2009)......................................................... 9-9, 9-26
Jones v. Kuhn,
59 Or App 135, 650 P2d 999 (1982).................................................................. 2-37
Kambury v. DaimlerChrysler Corp.,
334 Or 367, 50 P3d 1163 (2002) .................................................................... 15-31
Kidney Assn of Oregon, Inc. v. Ferguson,
97 Or App 120, 775 P2d 1383 (1989)....................................................... 2-34, 2-40
Kidney Assn of Oregon, Inc. v. Ferguson,
315 Or 135, 843 P2d 442 (1992) .............................................................. 2-38, 2-40
Kimbell v. United States,
371 F3d 257 (5th Cir 2004) ............................................................................. 12-23
Kinney v. Uglow,
163 Or 539, 98 P2d 1006 (1940) ..................................................................... 10-39
Kirkeby v. Covenant House,
157 Or App 309, 970 P2d 241 (1998) .................................. 4-27, 4-28, 4-36, 8-39
C-9
2012 Revision

Knutsen v. Krippendorf,
124 Or App 299, 862 P2d 509 (1993) ............................................................ 15-18
Kohler v. Armstrong,
92 Or App 326, 758 P2d 407 (1988).................................................................. 9-25
Korbut v. Eastman Kodak Co.,
100 Or App 649, 787 P2d 896 (1990) ............................................................ 15-31
Kruegers Estate v. Ropp,
282 Or 473, 579 P2d 847 (1978) ............................................................. 4-30, 4-33
LaDu v. Oregon Clinic, P.C.,
165 Or App 687, 998 P2d 733 (2000) .............................................................. 4-17
Langs Estate v. Commr of Internal Revenue,
97 F2d 867 (9th Cir 1938) ............................................................................... 12-46
Larson v. Naslund,
73 Or App 699, 700 P2d 276 (1985) .............................................................. 15-10
Lasarzig v. C.I.R.,
78 TCM (CCH) 448 (TC 1999) ............................................................ 12-44, 12-45
Laura B. Alexander Est.,
2 TCM (CCH) 1156 (1943) ............................................................................. 12-27
Lawrence v. Ladd,
280 Or 181, 570 P2d 638 (1977) ...................................................................... 4-30
Lawver v. Beesley,
86 Or App 711, 740 P2d 1215 (1987)..................................................... 2-24, 11-40
Ledford v. Yonkers,
278 Or 37, 562 P2d 970 (1977) ...................................................................... 10-47
Leibee v. Leibee,
220 Or 256, 349 P2d 486 (1960) ....................................................................... 1-18
Lindberg v. United States,
164 F3d 1312 (10th Cir 1999) ......................................................................... 12-46
Littlepage v. Sec. Sav. & Trust Co.,
137 Or 559, 3 P2d 752 (1931) ........................................................................... 9-24
Lober v. United States,
346 US 335, 74 S Ct 98, 98 L Ed 15 (1953) .................................................... 12-28
Lothstein v. Fitzpatrick,
171 Or 648, 138 P2d 919 (1943) ............................................................ 2-43, 11-46
Lowry v. Ireland Bank,
779 P2d 22 (Idaho 1989) ................................................................................... 4-53
C-10
2012 Revision

Martin v. Kenworthy,
92 Or App 697, 759 P2d 335 (1988).................................................................... 2-7
Mason, Ehrman & Co. v. Lewis,
131 Or 242, 282 P 772 (1929) ........................................................................... 9-24
Matter of DeMarys Estate,
294 Or 650, 661 P2d 931 (1983) ....................................................................... 2-24
Matter of Gentrys Estate,
32 Or App 45, 573 P2d 322 (1978) ..................................................... 15-13, 15-14
Matter of Hills Estate,
27 Or App 893, 557 P2d 1367 (1976) ............................................................ 10-47
Matter of Johnsons Estate,
24 Or App 897, 547 P2d 658 (1976) .............................................................. 15-13
Matter of Marriage of Ellinwood,
59 Or App 536, 651 P2d 190 (1982)......................................................... 4-31, 4-33
Matter of Phillips Estate,
23 Or App 363, 542 P2d 928 (1975)..................................................2-8, 2-33, 2-34
Matter of Plues Estate,
63 Or App 677, 666 P2d 835 (1983)........................................................... 2-8, 2-34
Matter of Riddles Estate,
288 Or 687, 607 P2d 1370 (1980) ............................................................ 2-26, 8-13
Matter of Ross Estate,
25 Or App 191, 548 P2d 1001 (1976)..............................................2-41, 2-42, 5-13
Matter of Steinbergs Estate,
34 Or App 293, 578 P2d 487 (1978) ..................................................... 2-35, 10-19
Matter of Summers Estate,
49 Or App 5, 618 P2d 1287 (1980) ....................................................... 2-42, 15-10
Matter of Swensons Estate,
48 Or App 497, 617 P2d 305 (1980) .............................................................. 15-16
Matter of Trust of Crockett,
145 Or App 151, 929 P2d 314 (1996)................................................................ 2-41
Matter of Ungers Estate,
47 Or App 951, 615 P2d 1115 (1980) ................................................... 4-25, 15-13
Matter of Whites Estate,
41 Or App 439, 599 P2d 1147 (1979)................................................... 15-28, 15-29
Matter of Whites Estate,
289 Or 13, 609 P2d 365 (1980) ............................................................. 7-18, 15-27
C-11
2012 Revision

Matter of Yetts Estate,
44 Or App 709, 606 P2d 1174 (1980) ............................................................ 15-19
McClain v. Hardy,
184 Or App 448, 56 P3d 501 (2002) ......................................................... 4-4, 4-26
McKee v. Stoddard,
98 Or App 514, 780 P2d 736 (1989) .............................................................. 15-17
McNeely v. Hiatt,
138 Or App 434, 909 P2d 191 (1996) ..........................................2-38, 8-40, 15-16
McPherson v. Dauenhauer,
187 Or App 551, 69 P3d 733 (2003)................................................................ 10-38
Meissner v. Murphy,
58 Or App 174, 647 P2d 972 (1982).................................................................. 9-13
Meister v. Finley,
208 Or 223, 300 P2d 778 (1956) .................................................................... 15-14
Melhase v. Melhase,
87 Or 590, 171 P 216 (1918)........................................................................... 15-21
Miller ex rel. Miller v. Tabor W. Inv. Co., LLC,
223 Or App 700, 196 P3d 1049 (2008)............................................................ 15-37
Moser v. Van Winkle,
103 Or App 398, 797 P2d 1063 (1990) ................................................... 7-15, 7-17
Muller v. Evans,
516 SW2d 923 (Tex 1974) ................................................................................ 4-53
Musselman v. Mitchell,
46 Or App 299, 611 P2d 675 (1980) ................................................................ 4-33
Nadstanek v. Trask,
130 Or 669, 281 P 840 (1929) ............................................................................. 9-5
Nease v. Clark,
6 Or App 589, 488 P2d 1396 (1971) ................................................... 15-14, 15-16
Neuschafer v. McHale,
76 Or App 360, 709 P2d 734 (1985).................................................................. 1-16
Newell v. Weston,
150 Or App 562, 946 P2d 691 (1997).............................................................. 10-40
Newton v. Bank of the W.,
183 Or App 347, 51 P3d 1281 (2002)................................................................ 1-19
Parker v. Richards,
43 Or App 455, 602 P2d 1154 (1979) .............................................................. 4-33
C-12
2012 Revision

Parrott v. C.I.R.,
30 F2d 792 (9th Cir 1929) ............................................................................... 12-39
Patten v. United States,
116 F3d 1029 (4th Cir 1997) ........................................................................... 12-31
Perry v. Adams,
112 Or App 77, 827 P2d 930 (1992) ....................................................... 4-25, 4-28
Potter v. Jones,
20 Or 239, 25 P 769 (1891).................................................................. 15-19, 15-20
Propstra v. United States,
680 F2d 1248 (9th Cir 1982) ........................................................................... 12-46
Prudential Ins. Co. v. Weatherford,
49 Or App 835, 621 P2d 83 (1980).................................................................... 1-22
Rake v. Boise Cascade Corp.,
43 Or App 767, 604 P2d 421 (1979) .............................................................. 15-24
Ramirez v. Lembcke,
191 Or App 70, 80 P3d 510 (2003) ................................................................ 15-33
Ramsey v. Taylor,
166 Or App 241, 999 P2d 1178 (2000) .......................................................... 15-18
Rantru v. Unger,
73 Or App 680, 700 P2d 272 (1985) ..................................................... 2-27, 15-11
Rapp v. C.I.R.,
140 F3d 1211 (9th Cir 1998) ................................................................ 12-68, 12-69
Rennie v. Pozzi,
294 Or 334, 656 P2d 934 (1982) ................................................................ 2-7, 3-20
Reynolds v. Schrock,
341 Or 338, 142 P3d 1062 (2006) ...................................................................... 7-6
Richardson v. Richardson,
58 Or App 338, 648 P2d 377 (1982) ................................................................ 4-30
Ricks v. Brown,
15 Or App 160, 515 P2d 206 (1973) ................................................................ 4-33
Roberts v. Fearey,
162 Or App 546, 986 P2d 690 (1999)......................................................... 2-39, 7-5
Robertson v. U. S. Nat. Bank,
44 Cal Rptr 871 (Cal Ct App 1965) .................................................................. 7-38
Roe v. Pierce,
102 Or App 152, 794 P2d 4 (1990) .............................. 15-23, 15-25, 15-26, 15-27
C-13
2012 Revision

Rogan v. Ferry,
154 F2d 974 (9th Cir 1946) ........................................................................... 12-108
Rogers v. Rogers,
71 Or App 133, 691 P2d 114 (1984) ................................................................ 4-28
Roley v. Sammons,
197 Or App 349, 105 P3d 879 (2005)................................................................ 8-11
Roley v. Sammons,
215 Or App 401, 170 P3d 1067 (2007).................................. 4-26, 5-21, 7-16, 7-17
Ross v. Robinson,
169 Or 293, 124 P2d 918 (1942) .................................................................... 15-25
Ryan v. Colombo,
77 Or App 71, 712 P2d 139 (1985) ................................................................ 15-17
Sanders v. U.S. Nat. Bank,
71 Or App 674, 694 P2d 548 (1985) .............................. 2-42, 15-10, 15-11, 15-19
Sangster v. Dillard,
144 Or App 210, 925 P2d 929 (1996) ........................................8-39, 15-17, 15-18
Schaad v. Lorenz,
69 Or App 16, 688 P2d 1342 (1984) ........................... 2-37, 4-32, 4-33, 4-34, 4-35
Schomp v. Brown,
215 Or 714, 335 P2d 847 (1959) ...................................................................... 4-32
Scott v. Ford,
45 Or 531, 78 P 742 (1904) ............................................................................. 11-50
Scott v. Ford,
52 Or 288, 97 P 99 (1908) ............................................................................... 11-50
Seale v. McKennon,
215 Or 562, 336 P2d 340 (1959) ....................................................................... 14-8
Seed v. Jennings,
47 Or 464, 83 P 872 (1905) ................................................................................. 8-5
Shea v. Begley,
94 Or App 554, 766 P2d 418 (1988) ....................................................... 4-33, 4-35
Simmons v. Simmons,
82 Or App 540, 728 P2d 921 (1986) ................................................................ 7-41
Simons v. Beard,
188 Or App 370, 72 P3d 96 (2003) ..................................................... 15-24, 15-27
Slusarenko v. Slusarenko,
209 Or App 307, 147 P3d 920 (2006) ................................................. 15-15, 15-16
C-14
2012 Revision

Slusher v. Slusher,
123 Or 108, 261 P 75 (1927) ................................................................ 11-41, 11-42
Smith v. Brannan,
152 Or App 505, 954 P2d 1259 (1998).............................................................. 8-40
Smith v. U.S. Nat. Bank of Oregon,
47 Or App 967, 615 P2d 1119 (1980) ..................................................... 2-38, 7-24
Smith v. Wells,
128 Or App 492, 876 P2d 850 (1994) .............................................................. 7-13
Springer v. Gollyhorn,
146 Or App 389, 934 P2d 501 (1997)................................................................ 2-43
St. Paul Fire & Marine Ins. Co., Inc. v. McCormick & Baxter Creosoting Co.,
324 Or 184, 923 P2d 1200 (1996) ................................................................... 10-43
Stanley v. U.S. Nat. Bank of Portland,
110 Or 648, 224 P 835 (1924) .............................................................. 11-41, 11-42
State ex rel Dept. of H.S. v. Broyles,
228 Or App 264, 208 P3d 519 (2009)....................................................... 9-11, 9-22
State ex rel. Dept. of Human Res. v. Payne,
157 Or App 612, 970 P2d 266 (1998)................................................................ 9-21
State ex rel. Dewberry v. Kulongoski,
220 Or 345, 187 P3d 220 (2008) ....................................................................... 8-13
Steele v. Mayoral,
231 Or App 603, 220 P3d 761 (2009)................................................................ 2-57
Stevenson v. U.S. Nat. Bank of Oregon,
72 Or App 39, 695 P2d 77 (1985) .................................................................... 4-37
Strangi v. C.I.R.,
417 F3d 468 (5th Cir 2005) ............................................................................. 12-23
Taylor v. Rubey,
2 Or App 277, 467 P2d 132 (1970) .................................................................. 7-22
Thomas By & Through Petersen v. State By & Through Senior &
Disabled Services Div.,
319 Or 520, 878 P2d 1081 (1994) ...................................................9-15, 9-27, 9-28
Thomas Kay Woolen Mill Co. v. Sprague,
259 F 338 (D Or 1919)....................................................................................... 6-18
Thompson v. Communications Tech., Inc. (CTI),
877 F2d 27 (9th Cir 1989)............................................................................... 15-32
C-15
2012 Revision

Tulsa Profl Collection Services, Inc. v. Pope,
485 US 478, 108 S Ct 1340, 99 L Ed2d 565 (1988) ................. 2-5, 2-24, 2-25, 5-5,
..................................................................................................................... 7-20, 9-7
U.S. v. Byrum,
408 US 125, 92 S Ct 2382, 33 L Ed2d 238 (1972) .......................................... 12-22
U.S. v. Moore,
423 US 77, 96 S Ct 310, 46 L Ed2d 219 (1975) .............................................. 10-42
U. S. Nat. Bank of Portland v. Snodgrass,
202 Or 530, 275 P2d 860 (1954) .............................................................. 2-4, 15-10
Uhler v. Harbaugh,
110 Or 609, 224 P 89 (1924) ............................................................................. 9-24
United States v. C.C. Clark, Inc.,
159 F2d 489 (5th Cir 1947) ........................................................................... 12-109
United States v. Felt & Tarrant Mfg. Co.,
283 US 269, 51 S Ct 376, 75 L Ed 1025 (1931) ............................................ 12-108
United States v. Mappes,
318 F2d 508 (10th Cir 1963) ........................................................................... 12-61
United States v. McPherson,
631 F Supp 269 (MDNC 1986) ........................................................................... 2-8
United States v. Silverman,
621 F2d 961 (9th Cir 1980) ................................................................................. 2-8
United States v. Swink,
41 F Supp 98 (ED Va 1941) ................................................................................ 2-8
Vsetecka v. Novak,
4 Or App 463, 478 P2d 655 (1971) ................................................................ 15-14
W. v. White,
307 Or 296, 766 P2d 383 (1988) ................................................................ 2-6, 6-14
Wadsworth v. Brigham,
125 Or 428, 259 P 299 (1927) ............................................................... 15-9, 15-10
Walker v. Walker,
145 Or App 144, 929 P2d 316 (1996)................................................................ 8-39
Wall v. Malarkey,
252 Or 261, 449 P2d 424 (1969) ....................................................................... 2-35
Waybrant v. Bernstein,
75 Or App 550, 706 P2d 1002 (1985)..................................................... 2-24, 11-32
Weill v. Clarks Estate,
9 Or 387 (1881).................................................................................................... 9-4
C-16
2012 Revision

Wells v. Wells,
262 Or 44, 496 P2d 718 (1972) ....................................................................... 11-47
Wenker v. Landon,
161 Or 265, 88 P2d 971 (1939) ........................................................................... 8-8
West v. White,
92 Or App 401, 758 P2d 424 (1988)................................................................ 14-17
Wharff v. Rohrback,
152 Or App 68, 952 P2d 87 (1998).................................................................... 5-14
Wheeler v. Williams,
136 Or App 1, 900 P2d 1076 (1995).................................................................. 2-25
White v. McCabe,
159 Or App 189, 979 P2d 289 (1999) ................................................. 15-36, 15-37
Whitteberry v. Whitteberry,
9 Or App 154, 496 P2d 240 (1972) ..................................................... 15-13, 15-14
Widing, Matter of Estate of,
149 Or App 451, 944 P2d 969 (1997)................................................................ 9-16
Wilkinson v. Higgins,
117 Or App 436, 844 P2d 266 (1992)................................................................ 9-19
Willbanks v. Goodwin,
70 Or App 425, 689 P2d 1004 (1984) ..............................................9-4, 9-18, 15-9
Willbanks v. Goodwin,
300 Or 181, 709 P2d 213 (1985) ......................................................4-30, 9-5, 9-18
Williams v. Overton,
76 Or App 424, 709 P2d 1115 (1985) ............................................................ 15-10
Wilson v. Culbertson,
41 Or App 475, 599 P2d 1163 (1979)........................................................... 9-6, 9-7
Wink v. Marshall,
237 Or 589, 392 P2d 768 (1964) ....................................................................... 2-14
Woelke v. Calfee,
45 Or App 459, 608 P2d 606 (1980) ................................................................ 4-33
Wolfe v. Shelley,
1 Co Rep 93b, 76 Eng Rep 206 (CP) (15791581) ........................................... 4-41
Wood v. Bettis,
130 Or App 140, 880 P2d 961 (1994) .............................................................. 4-36
Worthington v. Estate of Davis,
250 Or App 755, 282 P3d 895 (2012) ............................................................ 15-33
C-17
2012 Revision

Zschernig v. Miller,
389 US 429, 88 S Ct 664, 19 L Ed2d 683 (1968) ......................................... 2-5, 8-9
C-18
2012 Revision
SUBJECT INDEX
References are to section numbers in the 2012 revision of ADMINISTERING
OREGON ESTATES.
ABATEMENT
Devises, 8.1-5(c)
ABSENTEES ESTATES
Absentee, definition of, 6.5-1
Administration of, 3.6-2(a)
Distributed property, rights in, 6.5-2
Guardians ad litem, 6.5-2
Hearing on petition, 6.5-2
Letters of administration/testamentary,
6.5-2
Notice of hearing, 6.5-2
Probate of
Overview, 6.5-1
Statutory procedure, 6.5-2
Sold property, rights in, 6.5-2
ABUSE OF VULNERABLE
PERSONS
Abusers right to receive property
Intestate succession, 4.1-3(g)
Limitations on, 8.1-4(a)
Overview of, 8.1-4(a)
Prior law, 8.1-4(c)
Property interests covered, 8.1-4(b)
Action for in action for, 15.4
Attorney fees, 15.4
Damages, 15.4
Definitions, 15.4
Elder-abuse cases, 15.4
Intestate succession rights, 4.1-3(g)
Litigation costs, 15.4
Overview of, 15.4
Parties, 15.4
Takings, 15.4
Wrongful appropriations of money, 15.4
ACCOUNTANTS FEES
Federal estate tax deduction,
12.1-4(e)(3)
ACCOUNTING(S)
Accrual method, 7.6-6(d)
Annual accounting
Form of, Form 11-1
Notice of, 11.6-2(a)
Overview of, 11.2
Term of, 11.4-2
Asset schedule
Additional information, 11.5-3(c)
All assets, 11.5-3(a)(1)
Current value, 11.5-3(a)(5)
Exhibits, 11.5-5
Five-column requirement, 11.5-3(a)
Form of, Appendix 11A
Household goods, 11.5-3(d)
Overview of, 11.5-3
Paragraphs, 11.5-5
Sample schedule, Appendix 11A
Sum of columns, 11.5-3(b)
Value at disposition, 11.5-3(a)(4)
Value at the beginning of accounting,
11.5-3(a)(2)
Value of later-acquired assets,
11.5-3(a)(3)
Asset schedule columns
Column 1, 11.5-3(a)(1)
Column 2, 11.5-3(a)(2)
Column 3, 11.5-3(a)(3)
Column 4, 11.5-3(a)(4)
Column 5, 11.5-3(a)(5)
Summation of columns 1-5,
11.5-3(b)
SI-1
2012 Revision
Subject Index (continued)

Attorney fees
Interim fees, 11.6-6(b)
Request for, 11.6-6(a)
Bank accounts. Depository accounts,
below
Bond broker accounts. Depository
accounts, below
Cash method, 7.6-6(d)
Court-ordered accountings, 11.2
Declaration under penalty of perjury,
11.6-1(a)
Depository accounts
Disbursements, 11.5-4(a); Appendix
11B
Exhibits, 11.5-5
Paragraphs, 11.5-5
Real property sales, 11.5-4(e)
Receipts, 11.5-4(a); Appendix 11B
Reconciliation balances, 11.5-4(b)
Statements, 11.5-4(d)
Vouchers, 11.5-4(c)
Displaced personal representative, by,
2.3-4(d)
Distribution expenses, payment of,
11.6-4
Final. See FINAL ACCOUNTING
Financial information
Rules (UTCRs), 11.5-1, 11.5-2
Statutory requirements, 11.5-1
Formalities of, 11.6-1
Household goods, 11.5-3(d)
Income-producing property, 11.6-3
Interim accounting
Notice of, 11.6-2(a)
Overview of, 11.2
Lawyer information, 11.6-1(b)
Lawyers costs, 11.6-7
Method, election of, 7.6-6(d)
Mutual funds. Depository accounts,
above
Notices
Annual accounting, 11.6-2(a)
Final accounting, 11.6-2(b)
Interim accounting, 11.6-2(a)
Overview of, 11.1
Personal representatives fees
SI-2
2012 Revision
Additional compensation, 11.6-5(b)

Generally, 11.6-7
Interim representatives fees,
11.6-5(c)
Statutory fee, 11.6-5(a)
Personal representatives
Approval of final account, 7.2-4(b)(2)
Compensation of. Personal
representatives fees, above
Information about, 11.6-1(b)
Special administrators, 6.1-6
Stockbroker accounts. Depository
accounts, above
Types of, 11.2
When required, 11.2
ACTIONS
See also LITIGATION
Action for abuse of vulnerable person,
15.4
ADEMPTION BY EXTINCTION
Common-law doctrine of, 4.2-7(g)
Nonademption of specific devises,
4.2-7(g)
ADMINISTRATION EXPENSES
See also specific expense
Appraisers fees, 2.8-2
Attorney fees. See ATTORNEY FEES
Bond costs, 2.8-3
Claims against estates, 9.4-6(b)
Federal estate tax
Gross estate deduction, 12.1-4(e)
Schedule J, 12.2-12(j)
Generally, 2.8-4(b)
Income tax deduction, 7.6-6(l),
12.1-4(e)(2)
Payment of
Estate assets, with, 10.3-6
Will provisions, 4.2-7(f)
Publication costs, 2.8-1
ADMINISTRATION OF ESTATES
See also PROBATE PROCEEDINGS
Absentees, 3.6-2(a)

Advice to interested parties, 3.6-3
Borrowing money. See BORROWING
MONEY
Expenses. See ADMINISTRATION
EXPENSES
Generally, 1.1, 1.2
Information checklist, 3.6-6(a);
Appendix 3B
Intestate estates. See INTESTATE
SUCCESSION
Master information list, 3.6-6(a);
Appendix 3A
Missing persons, 3.6-2(a)
Nonprobate transfers. See
NONPROBATE TRANSFERS
Preadministration procedures
Collection of documents/information,
3.4
Disposition of remains. See
Lawyers role, 3.2
Overview of, 3.1
Protection of property. See
Preparation for
Advice to interested parties,
3.6-3
Information checklist, 3.6-6(a);
Appendix 3B
Master information list (MIL),
3.6-6(a); Appendix 3A
Recommendations to interested
parties, 3.6-3
Selection of venue, 3.6-4
Probate estates. See PROBATE
PROCEEDINGS
Recommendations to interested parties,
3.6-3
Small estates, 3.6-2(b). See also
SMALL-ESTATE PROCEEDINGS
Types of, 1.1
Venue, 3.6-4
ADMINISTRATORS
See PERSONAL REPRESENTATIVES
ADOPTED PERSONS
Adoption by decedent after making will,
4.2-7(j)
Generation-assignment rules, 13.3
Intestate succession, 4.1-3(d)
ADVANCE DIRECTIVES
Anatomical gift directions, conflicts
with, 3.3-1(b)
ADVANCEMENTS
Final accounting, narrative of, 11.4-1
Final distribution, general judgment of,
11.8-2(a)
Intestate succession, 4.1-3(f), 8.1-3
AFFIDAVITS
Attesting witnesses to will
Generally, 5.2-4(a), 5.2-4(b); Forms
5-5, 5-6
Missing affidavits, 3.4-1
Bank accounts/deposits, disbursement
of, 1.5-13; Form 1-2
Department of Human Services, mailing
of information to, Form 5-13
Destruction of will, 4.2-8(c)
Heirship, of. See AFFIDAVITS OF
HEIRSHIP
Probate proceedings
Claiming successor of small estate,
Form 5-17
Proof of mailing of information to
heirs and devisees, Form 5-12
Oregon Department of Human
Services, Form 5-13
Publication of notice, Form 5-16
Signature on will, Form 5-6
Small-estate proceedings. See
SMALL-ESTATE AFFIDAVIT(S)
Wills
Attesting witnesses to will, above
Destruction of, 4.2-8(c)
Signatures on, Form 5-6
SI-3
2012 Revision

AFFIDAVITS OF HEIRSHIP
Form, Form 1-1
Overview of, 1.5-3, 3.6-1
AFTER-ACQUIRED PROPERTY
Devisees, 4.2-7(e)
Wills, 4.2-7(e)
AFTER-ADOPTED CHILDREN
See PRETERMITTED HEIRS
AFTER-BORN CHILDREN
See PRETERMITTED HEIRS
AGREEMENTS
See CONTRACTS AND
AGREEMENTS
AGRICULTURAL REAL ESTATE
Federal estate tax, 12.2-12(b)
Special-use valuation. See SPECIALUSE VALUATION
AIRCRAFT
Appraisal of, 10.12-5
ANATOMICAL GIFTS
Advance directive directions, conflicts
with, 3.3-1(b)
Amendment of
Gifts at time of donors death,
3.3-1(a)
Gifts before death, 3.3-1(a)
Conflict of laws, 3.3-1(a)
Disposition-of-remains directions,
conflicts with, 3.3-1(b), 3.3-3(a),
3.3-3(b)
How made
3.3-1(a)
Overview of, 3.3-1
Revocation of
3.3-1(a)
SI-4
2012 Revision

Time made
3.3-1(b)
Assets, 7.4-6
Bank accounts, release of, 6.6-1(d)(2)
Claims against estate, 6.6-5
Distribution of estate, 6.6-6
Entireties property, 6.6-1(c)
Establishment of foreign will, 6.6-3
Jointly owned property, 6.6-1(c)
Necessity for, 6.6-1(b)
Personal property
Bank accounts, release of,
6.6-1(d)(2)
Release to foreign personal
representative, 6.6-1(d)(1)
Possession of property, 6.6-4
Procedure, 6.6-2
Purpose of, 6.6-1(a)
Real property, 6.6-1(c)
Title to property, 6.6-1(c), 6.6-4
ANNUITIES
Federal estate tax. See FEDERAL
ESTATE TAX
Inventory of assets, 7.4-3(k)
Nonprobate property, as, 1.6-4
ANNULMENT OF MARRIAGE
Revocation of will, 4.2-6(e)
ANTILAPSE STATUTE
Escheated property, 4.1-2(g)
Overview of, 4.2-7(h), 8.1-5(a)
ANTIQUES AND COLLECTIBLES
Federal estate tax (Schedule F),
12.2-12(f)
Inventory of, 7.4-3(h)
Probate of nonprobate property,
1.7
Protection of, 3.5-3

APPRAISAL OF PROPERTY
See also VALUATION OF PROPERTY
Estate/inheritance tax (Oregon), 14.4-7
Inventory of assets, 7.4-2(c)
Overvaluing assets, 7.4-2(d)
Special-use property, 12.2-12(b)
Undervaluing assets, 7.4-2(d)
Unusual assets, 10.12-5
APPRAISERS FEES
12.1-4(e)(3)
Overview of, 2.8-2
ART WORK
Inventory of assets, 7.4-3(h)
ASSETS
Accounting(s). See ACCOUNTING(S)
Administration expenses, use for,
10.3-6
Ancillary administration, 7.4-6
Appraisal of. See APPRAISAL OF
PROPERTY; VALUATION OF
PROPERTY
Collection of estate assets
Adjustment of indebtedness to estate,
10.9-2
Compromise of indebtedness to
estate, 10.9-2
Litigation, 10.9-3
Overview of, 10.9-1
Commingling of
Lawyers, 7.1-3
Personal representatives, 7.1-3,
7.2-4(a)(1)
Condominiums, 10.12-6
Contraband, 10.12-2
Control, relinquishment of, Form 10-1
Cooperative apartments, 10.12-6
Delivery alternatives, 10.3-3
Distribution of. See DISTRIBUTION
OF ESTATE ASSETS
Encumbered assets
Devised property, 4.2-7(c)
Heirs, 10.11-5
Involuntary encumbrances, 10.11-2,

10.11-3
Overview of, 10.11-1
responsibilities, 10.11-3
Real property, 7.4-3(b)
Voluntary encumbrances, 10.11-2,
10.11-3
Will provisions, 10.11-4
Final distribution of. See FINAL
DISTRIBUTION(S)
Firearms, 10.12-2
Identification of, 7.4-1
Information gathering, 10.3-2
Insuring, 10.3-4
Inventory of. See INVENTORY OF
ASSETS
Investment of estate funds. See
INVESTMENTS
Lawyers instructions for personal
representative, 7.1-3
Management of
Overview, 10.3-1
Special administrators. See SPECIAL
ADMINISTRATORS
Natural resources, 10.12-1
Nonprobate. See NONPROBATE
PROPERTY
Out-of-state assets, 7.4-4
Overvaluing, 7.4-2(d)
Personal. See PERSONAL PROPERTY
Possession
Personal representative, taking by,
10.3-3
Relinquishment of, Form 10-1
Retention by devisee/heir, 10.3-3
Preservation of. See SPECIAL
ADMINISTRATORS
Probate. See PROBATE PROPERTY
Protection of. See PROTECTION OF
PROPERTY
Realty. See REAL PROPERTY
Repair of, 10.3-5
Reporting of, 7.4
Subsequently discovered assets
Overview of, 11.10-1(a)(1)
SI-5
2012 Revision

Small-estate proceeding,
11.10-1(a)(2)
Tax returns, amendment of,
11.10-1(a)(3)
Unclaimed assets
Definition of, 11.8-4(a)
Order of escheat, Form 11-9
Procedure for, 11.8-4(b)
Receipt after delivery of, 11.8-4(c);
Form 11-10
Recovery of, 11.8-4(d)
Report of, Form 11-8
Undervaluing, 7.4-2(d)
United States savings bonds, 10.12-3
Unusual, 10.12-1 to 10.12-6
ATTORNEYS-IN-FACT
See POWER OF ATTORNEY
ATTESTATION OF WILLS
Affidavit of witness
5-5, 5-6
Overview, 4.2-3(a), 4.2-3(b)
Testimony of witness, 4.2-1, 5.2-4(c)
BANK ACCOUNTS/DEPOSITS
Ancillary administration procedures,
6.6-1(d)(2)
Deposit insurance, 10.4-2(c)
Federal estate tax (Schedule C),
12.2-12(d)(2)
Inventory of assets, 7.4-3(f)
Joint bank accounts
Federal estate tax issues, 12.1-3(f)
Nonprobate property, 1.3, 1.6-1(e)
Supplemental inventories, 7.4-2(b)
Tax-qualified disclaimers, 8.3-2(c)
representatives, 7.1-3
Multiple-party accounts. Joint bank
accounts, above
Nonprobate transfers
Affidavit of disbursement, 1.5-13;
Form 1-2
Generally, 1.5-13
Multiple-party accounts, 1.6-1(e)
Payment-on-death accounts, 1.6-1(e)
ATTORNEY FEES
Abuse of vulnerable persons, 15.4
Claim for, 9.2, 9.4-6(b)
Deduction for, 12.1-4(e)(1)
Federal estate tax deduction, 12.2-11(f),
12.1-4(e)(1)
Interim fees, 11.6-6(b)
Litigation, incurred in, 10.9-3
Personal representatives, 2.8-5
Request for, 11.6-6(a)
Statement of fees and costs, Form 11-16
Wrongful death actions, 15.3-5
ATTORNEY GENERAL
Department of State Lands,
representation of, 5.2-3
Vulnerable person abuse cases, 15.4
ATTORNEYS
See LAWYERS
SI-6
2012 Revision
AUDITS
Estate/inheritance tax (Oregon), 14.4-9
ESTATE TAX
AUGMENTED ESTATE
Elective share. See ELECTIVE SHARE
AUTOPSIES
Cause-of-death determinations,
3.3-2
BANKRUPT ESTATES
See INSOLVENT ESTATES
BEARER BONDS
Nonprobate transfers, 1.5-17

BOATS AND OTHER VESSELS
Estate/inheritance tax (Oregon) natural
resource credit, 14.3-5
Federal estate tax (Schedule F),
12.2-12(f)
Possession of, 10.3-3
BOND ISSUES
See STOCKS AND BONDS
BONDS, SURETY
Personal representatives. See
PERSONAL REPRESENTATIVES
BORROWING MONEY
Business judgment necessary,
10.5-2(a)(2)
Considerations in, 10.5-1
Decision to borrow, 10.5-2(a)
Devaluation risk, 10.5-2(a)(1)
Mortgages. See MORTGAGES
Notes. See NOTES
Personal representatives, 10.5-1(b)
Problems in
Basic problems, 10.5-2(b)
Special problems, 10.5-2(c)
Purposes and procedure, 10.5-3
BUSINESS(ES) OF DECEDENT
Buy-sell agreements, 10.10-3(c)
Change of form of business, 10.10-1
Closely held business. See CLOSELY
HELD BUSINESS INTERESTS
Continuation of business, 7.2-4(a)(2)
Corporation, private, 10.10-4(a)
Discontinuation of business, 10.10-1
Entity agreements, 10.10-3(a)
Lifetime interest of decedent, retention
of, 12.1-3(d)(1)
Limited liability company. See
LIMITED LIABILITY
COMPANIES
Minority, noncontrolling interests,

10.10-3(b)
Nonprobate assets, 1.5-2
Ongoing management of, 10.10-2
Partnership interest. See
PARTNERSHIP INTERESTS
Personal representatives authority,
10.10-1
Sole proprietorship, 1.5-2, 10.10-4(d)(1),
10.10-4(d)(2)
Winding up, 10.10-1
BUSINESS-JUDGMENT TEST
Borrowing money, for, 10.5-2(a)(2)
BUSINESS REAL ESTATE
Special-use valuation. See
SPECIAL-USE VALUATION
BUY-SELL AGREEMENTS
Business(es) of decedent, 10.10-3(c)
Collection of, 3.4-2
Federal estate tax, 12.1-3(d)(3)
CASH FLOW PROBLEMS

CASH ON HAND
12.2-12(d), 12.2-12(d)(2)
Inventory of assets, 7.4-3(f)
CASUALTY LOSSES
Federal estate tax deduction, 12.1-4(h),
12.2-12(l)
Insurance, 7.1-3
CATS
See PETS
CEMETERY AUTHORITIES
Disposition of remains, 3.3-3(a), 3.3-3(e)
SI-7
2012 Revision

CEMETERY LOTS
Inventory of assets, 7.4-3(j)
CHAIN OF TITLE
Affidavits of heirship, 1.5-3
Perfection of, 1.4-2
Personal representatives deed, 11.8-2(a)
CHARGES AND EXPENSES
Administration expenses. See
ADMINISTRATION EXPENSES
Federal estate tax deduction, 12.1-4(b)
Will directions to pay, 4.2-7(f)
CHARITABLE DEDUCTION
See FEDERAL ESTATE TAX
CHARITABLE LEAD TRUSTS
12.1-4(i)(2)
CHARITABLE ORGANIZATIONS
CHARITABLE REMAINDER
ANNUITY TRUSTS
Federal estate tax deduction, 12.1-4(i)(1)
Generation-skipping transfer, as, 13.2-3.
See also
GENERATION-SKIPPING
TRANSFER(S) (GSTS)
CHARITABLE REMAINDER
UNITRUSTS
Generation-skipping transfer, as, 13.2-3.
See also GENERATIONSKIPPING TRANSFER(S) (GSTS)
CHARITABLE SPLIT-INTEREST
TRUSTS
SI-8
2012 Revision
CHILDREN BORN OUT OF

WEDLOCK
Intestate succession, 4.1-3(e)
CHILDREN OR MINORS
Adopted children as heirs, 4.1-3(d),
4.2-7(j)
Anatomical gifts, 3.3-1(b)
Conservators. See GUARDIANS AND
CONSERVATORS
Disqualified personal representatives,
5.2-5(b)
Distributions to minors, 11.8-6(a)
Family home, occupation of, 6.2-1, 7.5-1
Guardians. See GUARDIANS AND
CONSERVATORS
Notice to, 2.5-2
Social Security benefits, 1.6-5
Support
Generally. See SUPPORT
Temporary support. Support during
administration, below
Support during administration
Answer to petition, 6.2-2; Form 6-4
Extent of, 6.2-3
Limitations on, 6.2-4
Nature of, 6.2-3
Order awarding temporary support,
Form 6-5
Order of support, 6.2-3; Form 6-6
Order setting time for hearing, Form
6-5
Overview, 6.2-1
Petition for, 6.2-2; Form 6-3
Pretermitted children. See
PRETERMITTED HEIRS
Primary residence, occupation of,
6.2-1, 7.5-1
Priority of, 6.2-1
Procedure to obtain, 6.2-2
Veterans benefits, 1.6-6
Wrongful death proceeds, to, Forms
15-4 to 15-6

CHOICE OF FORUM
Federal estate tax, 12.2-11(g)
Venue. See VENUE
CHOICE OF LAW
Federal estate tax, 12.1-1
Wills, 4.2-2(b)
CLAIMS AGAINST ESTATES
Actions pending against decedent
Appellate court proceedings,
9.4-6(d)(2)
Trial court proceedings, 9.4-6(d)(1)
Administration expenses, 9.4-6(b)
Allowance of
Disallowance of, below
Error in, 9.5-2
Overview, 9.5-1
Compromise or settlement, 9.5-4
Contingent debts, 9.4-2(b)
Debts not due
Allowance of claims for, 9.4-4(c)
Presenting claims on, 9.4-4(a)
Secured debts, 9.4-4(b)
Definition of, 9.2
Disallowance of
Notice, Form 9-5
Overview, 9.5-1
Procedure after, 9.5-3
Disposition of, 9.5
Federal estate tax deduction, 12.1-4(f)
Formalities of, 9.3-1; Form 9-1
Handwritten notes as, 9.3-1
Insurance claims, 9.4-6(f)
Interest on, 9.3-1, 9.5-10
Judgment of debts, 9.4-3
Letters as, 9.3-1
Notice(s)
Failure to search for claimants,
7.3-3(b)
Requirements, 9.3-3
Right to assert claim, Form 9-3
Search for claimants, 7.3-3
Overview of, 9.1
Payment of
Checklist for priority of, Form 9-8
Final accounting, as prerequisite to,
11.3-2
Generally, 9.5-9
Claims by, 9.4-2(c)
Indemnification from liability,
7.3-3(b)
Notice of separate action of claim,
Form 9-7
Proof of compliance, Form 9-4
Search for claimants, below
Petition for instructions, 9.5-5
Presentation of claims
Claims that must be presented, 9.4-2
Contingent debts, 9.4-2(b)
Debts not due, 9.4-4(a)
Equitable claims, 9.4-6(e)
Evidence supporting claim, 9.3-1
Judgment debts, 9.4-3
Manner of, 9.3-2
Personal representatives claims,
9.4-2(c)
Rights not requiring, 9.4-6
Secured claims, 9.4-2(d), 9.4-4(b)
Time for, 9.3-4
Waiver of defects, 9.4-5
Priority of
Checklist for priority of payment,
Form 9-8
Generally, 9.5-8
Protecting against, 1.4-4
Search for claimants
Checklist, Form 9-2
Failure to give notice, 7.3-3(b)
Failure to search, 7.3-3(b)
Notice to claimants, 7.3-3
Overview of, 1.2, 7.2-4(a)(4), 9.3-3
Proof of delivery or mailing of notice,
7.3-3(a)
Time for, 7.3-3(a)
Secured claims, 9.4-2(d), 9.4-4(b)
Services, for, 9.5-7
Settlement, 9.5-4, 11.3-2
SI-9
2012 Revision

Small-estate proceedings, 5.3-7, 9.3-4
Statute of limitations, 7.3-3(a)
Summary determinations
Requests for, Form 9-6
Small-estate proceedings, 5.3-7
Tax claims, 9.4-6(c)
Time limitations, 7.3-3(a)
Types of, 9.4
Unliquidated debts, 9.4-2(b)
Who may make, 9.4-1
Wrongful death claims, distinguished,
15.2-1(d)
CLAIMS OF INTEREST IN
ESTATE
Declaratory judgment proceedings,
8.2-1. See also DECLARATORY
JUDGMENT PROCEEDINGS
Disclaimers. See DISCLAIMERS
Escheated property, 8.2-1
Procedure for, 8.2-1
Reopened estate, prior claims in, 11.10-4
Time for raising, 8.2-1
CLEANUP COSTS
(ENVIRONMENTAL
CONTAMINATION). See
ENVIRONMENTAL
CONTAMINATION
CLOSELY HELD BUSINESS
INTERESTS
See also BUSINESS(ES) OF
DECEDENT
Estate/inheritance tax (Oregon),
14.4-5(c), 14.4-12
Federal estate tax
Business real estate. See FEDERAL
ESTATE TAX
Extensions of time to pay tax,
7.6-6(j), 12.1-3(c), 12.2-7(b)(3)
SI-10
2012 Revision
Gross estate deductions, 12.1-4(j)

Life interests with power of
appointment, 12.1-5(c)(2)
Payment deferrals, 10.5-2(c)
Returns, 12.2-11(b), 12.2-12(r)
Stock in, 12.2-12(c)(3)
Generation-skipping transfer (GST) tax,
13.8-3
Nonprobate transfers of, 1.5-7
Stock in
Federal estate tax, 12.2-12(c)(3)
Indemnification agreements,
1.5-6
S corporation stock, 7.1-3
Valuation of, 7.4-3(c)
CLOSING AN ESTATE
Discharge of personal representative.
See PERSONAL
REPRESENTATIVES
Final accounting. See FINAL
ACCOUNTING
Final distribution(s). See FINAL
DISTRIBUTION(S)
Reopening an estate. See REOPENING
AN ESTATE
Summary closure. See SUMMARY
CLOSURE
Supplemental judgment, 11.9-2; Form
11-11
CODICILS
Marital deduction, 12.1-5(a)
COIN COLLECTIONS
Federal estate tax, 12.2-12(f)
COLLECTIBLES
See ANTIQUES AND
COLLECTIBLES

COLLECTION OF ESTATE
ASSETS
Adjustment of indebtedness to estate,
10.9-2
Compromise of indebtedness to estate,
10.9-2
Litigation, 10.9-3
Overview of, 10.9-1
10.9-3
COMMINGLING OF ASSETS
Lawyers, 7.1-3
Personal representatives, 7.1-3,
7.2-4(a)(1)
COMMON-LAW SPOUSE
Surviving spouse, 4.1-2(a)(1)
COMMUNITY PROPERTY
Agreements, 1.5-11
Disposition of, 4.3-2(a), 8.2-4(a)
Distribution of, 4.3-2(a)
Elective share rights, 8.2-4(b)(3)
Inventory of assets, 7.4-3(i)
Perfection of title
Decedent, property held by,
8.2-4(b)(1)
Generally, 4.3-2(b)
Surviving spouse, property held by,
8.2-4(b)(2)
Severance of interests, 4.3-4
Surviving spouse
Property held by, 8.2-4(b)(2)
Third parties rights to, 4.3-3
Title held by surviving spouse, 7.4-3(i)
Transfer of, 1.5-11
Types of, 8.2-4(a)
Uniform act
Effect of, 4.3-2, 4.3-5
Generally, 4.3
Property subject to, 4.3-1
COMPREHENSIVE ENVIRONMENTAL RESPONSE,

COMPENSATION AND
LIABILITY ACT (CERCLA)
COMPROMISE
See SETTLEMENT
CONDOMINIUMS
Estate assets, as, 10.12-6
CONFLICT OF LAWS
Anatomical gifts, 3.3-1(a)
CONFLICTS OF INTEREST
Lawyers, 7.1-1
CONSENT
Bank deposit insurance, 10.4-2(c)
Entry of order, Form 2-6
Liquidation of investments,
10.4-2(a)(3)
Personal representatives actions,
defense to, 7.2-4(b)(4)
CONSERVATORS
See GUARDIANS AND
CONSERVATORS
CONTAMINATED PROPERTY
See ENVIRONMENTAL
CONTAMINATION
CONTEMPT OF COURT
Orders, violation of, 2.7-4(a)
CONTESTED WILLS
See WILL CONTESTS
CONTINGENT DEBTS
CONTRABAND
SI-11
2012 Revision

CONTRACTS AND AGREEMENTS
Buy-sell agreements. See BUY-SELL
AGREEMENTS
Community-property agreements, 1.5-11
Completion of, transfers of property to
effect. See TRANSFERS OF
PROPERTY
Devised property, sale of, 4.2-6(f)
Distribution of estate, 8.3-1
12.2-12(d), 12.2-12(d)(1)
Inventory of assets, 7.4-3(e)
Personal representatives liability,
7.2-4(c)(1)
Right of survivorship property, 1.6-1
Settlement agreements. See SETTLEMENT AGREEMENTS
CONTRACTS NOT TO REVOKE
WILLS
Evidentiary issues, 4.2-5(c)
Governing law, 4.2-5(a)
Overview of, 4.2-5
Statute of limitations, 4.2-5(b)
CONTRACTS TO DIE INTESTATE
Overview of, 4.2-5
CONTRACTS TO MAKE WILLS
Breach of contract, 8.4-1
Forms of, 4.2-5(c)
Joint or mutual wills, 4.2-5(c)
Oral contracts, 4.2-5, 4.2-5(c)
Overview of, 4.2-5
Will contests, 4.2-5, 4.2-5(b)
CONVEYANCES
See DEEDS; TRANSFERS OF
PROPERTY
SI-12
2012 Revision
COOPERATIVE APARTMENTS
COPERSONAL REPRESENTATIVES
Authority of, 10.2-5(c)
Liability for, 7.2-4(a)(1), 7.2-4(a)(5)
Protection of persons dealing with,
10.2-5(c)
CORPORATE INTERESTS
Privately held entities of decedent,
10.10-4(a). See also
CLOSELY-HELD BUSINESS
INTERESTS
Stock. See STOCKS AND BONDS
CORPSES
Autopsies, 3.3-2
Disposition of. See DISPOSITION OF
REMAINS
Holding longer than 10 days, 3.3-3(d)
Holding longer than 24 hours,
3.3-3(d)
Shipping to other locality, 3.3-3(d)
COUNTY COURTS
Jurisdiction, 2.2-3(a). See also
JURISDICTION
Transfer of cases to circuit court
Discretionary transfers, 2.2-3(b)(1)
Mandatory transfers, 2.2-3(b)(2)
Procedure for, 2.2-3(b)(3)
COURT COSTS
See LITIGATION COSTS
COURTS
See PROBATE COURTS
CREDITORS
Probate estates, of, 1.2. See also
CLAIMS AGAINST ESTATES
Small-estate proceedings. See

CREDIT-SHELTER TRUSTS
Disclaimed property, 1.5-10
Estate/inheritance tax (Oregon) issues,
14.3-3, 14.4-10
Federal estate tax issues, 12.1-1
CREDIT UNION DEPOSITS
CREMATIONS
Disposition of remains, 3.3-3(e)
CREMATORY AUTHORITIES
Disposition of remains, 3.3-3(a), 3.3-3(e)
CURRENCY
See CASH ON HAND
CUSTODIANS OF WILLS
Duties of, 4.2-8(b)
DEAD BODIES
Autopsies, 3.3-2
REMAINS
Holding longer than 24 hours, 3.3-3(d)
DEATH
Autopsies, 3.3-2
Cause-of-death investigations, 3.3-2
Simultaneous death, 4.1-3(b)
DEATH TAXES
Federal. See FEDERAL ESTATE TAX
Foreign death taxes
Federal estate tax credit, 12.1-4(g),
12.1-6(a), 12.1-6(f), 12.2-12(o),
12.2-12(r)
Recovery of, 6.7-3
State death taxes
Federal estate tax credit, 12.1-6(c)
Oregon. See ESTATE/

INHERITANCE TAX
(OREGON)
DEBTS DUE DECEDENT
Adjustment of, 10.9-2
Compromise of, 10.9-2
Liens, 10.9-2
Offset and retainer, 11.8-3(a), 11.8-3(b).
See also OFFSET AND
RETAINER
Personal representatives, liability of,
7.2-4(a)(1)
DEBTS OF DECEDENTS
See also CLAIMS AGAINST ESTATES
Documents evidencing, 3.4-2
Federal estate tax (Schedule K),
12.2-12(k)
Federal estate tax deduction, 12.1-4(b)
Will provisions providing for payment
of, 4.2-7(f)
DECLARATORY JUDGMENT
PROCEEDINGS
Answer to complaint, 8.2-3(b)(4)
Appeal and review, 8.2-3(b)(6)
Claiming interests with, 8.2-1
Complaint(s)
Answer to, 8.2-3(b)(4)
Form and contents, 8.2-3(b)(1)
Overview of, 8.2-3(b)(1)
Costs of actions, 8.2-3(b)(7)
Judgment(s), 8.2-3(b)(6)
Jurisdiction, 8.2-3(a)
Jury trial, 8.2-3(b)(5)
Parties
Defendant parties, 8.2-3(b)(2)
Overview, 8.2-3(b)(3)
DEEDS
Direct deeds as qualified disclaimers,
1.5-10
SI-13
2012 Revision

Personal representatives deed,
11.8-2(a); Form 11-6
Transfer-on-death deeds, 1.5-9
DEFERRED COMPENSATION
PLANS
See also specific type of plan
Payout options, review of, 7.6-6(o)
DEPARTMENT OF HUMAN
SERVICES
Affidavit of mailing information to
department, 5.2-8, 5.3-3(a); Form
5-13
Bank accounts released to, 6.6-1(d)(2)
Notice to, 2.5-1, 5.2-8, 7.3-1(a)
DEPARTMENT OF STATE LANDS
(DSL)
Attorney general, representation by,
5.2-3
Notice of estate administration, 5.2-8
Personal representative, as, 5.2-3,
5.2-5(a)
DEPOSIT INSURANCE
Bank accounts, 10.4-2(c)
DEPOSITIONS
Authority to order, 2.6-2(b)
DEVISEES
See INTERESTED PERSONS; WILLS
DEVISES
See WILLS
DISABILITIES, PERSONS WITH
Abuse of. See ABUSE OF
VULNERABLE PERSONS
Guardians and conservators. See
GUARDIANS AND
CONSERVATORS
DISCLAIMER WILLS
SI-14
2012 Revision
DISCLAIMERS
Bars to, 8.3-2(d)
Delivery of, 8.3-2(b)
Devises, of, Form 8-6
Election of, 7.6-6(b)
Estate/inheritance tax (Oregon)
Fiduciarys request for release from
personal liability, 14.4-1
Qualified tax disclaimers, 14.4-13
Federal estate tax
Marital deduction, 12.1-5(d)
Overview, 8.3-2(c), 12.2-3
Qualified disclaimers, 12.2-3
Generation-skipping transfer(s) (GST),
13.4-6
Heirs, by, Form 8-2
Intestate succession, Form 8-6
Keogh accounts, Form 8-7
Nontestamentary disclaimers, Form 8-7
Other rights, effect on, 8.3-2(e)
Partnership interests, partial disclaimer
of, Form 8-4
Estate tax liability, 14.4-1
Prior law, 8.3-2(f)
Requirements of
Federal tax law, 8.3-2(c)
Oregon law, 8.3-2(b)
Residuary interests, of, Form 8-5
Revocability of, 8.3-2(a), 8.3-2(b)
Surviving spouse, by, 12.1-5(d); Form
8-3
Tax-qualified disclaimer, 8.3-2(c)
DISCOVERY OF INFORMATION
See INFORMATION GATHERING
Anatomical gifts, 3.3. See also
ANATOMICAL GIFTS
Cemetery authorities, 3.3-3(a)

Control of, 3.3-3(a)
Cremations, 3.3-3(e)
Crematory authorities, 3.3-3(a), 3.3-3(e)
Decedents directions
Anatomical gift instructions, conflicts
with, 3.3-3(b)
Overview of, 3.3-3(a), 3.3-3(c)
Delegation of authority, 3.3-3(a); Form
3-1
Funeral benefit insurance, 3.3-3(c)
Funeral directors
Arrangements with, 3.3-3(d)
Liability of, 3.3-3(a)
Persons who may decide
Appointment of, Form 3-1
Prearranged funeral plans/trusts, 3.3-3(c)
Special administrators, 3.3-3(b)
Trust arrangements, 3.3-3(c)
Veterans benefits, 3.3-3(c)
DISSOLUTION OF MARRIAGE
DISTRIBUTION OF ESTATE
ASSETS
Affidavits of heirship
Form, Form 1-1
Agreement, by, 8.3-1
Bank accounts/deposits, 1.5-13; Form
1-2
Community property, 4.3-2(a)
Distribution expenses, payment of,
11.6-4
11.3-2
DISTRIBUTION(S)
Foreign personal representative, to,
11.8-5
Gain or loss recognition, 7.6-6(m)
Income-tax considerations,
11.8-1
Minors, to, 11.8-6(a)
Partial distributions
Discharge of personal representative
from liability, 7.2-4(b), 11.8-1(a)
Overview of, 11.8-1
Personal representatives liability
after, 7.2-4(b)(1)
Petition for, 11.8-1(a)
Preadministration, 3.5-5
Procedure for, 11.8-1(a)
Receipt for, Form 11-5
Return of distributions, 11.8-1(b)
Petitions
Partial distributions, for, 11.8-1(a)
Return of distributions, for, 11.8-1(b)
Protected persons, to, 11.8-6(b)
Return of distributions
Notice of hearing, 11.8-1(b)
Order for, 11.8-1(b)
Overview of, 11.8-1(b)
Petition for, 11.8-1(b)
Reopened, intestate estates, from,
11.10-1(b)(2)
Unclaimed assets
Form 11-10
DISTRICT ATTORNEYS
Autopsy, authority to order, 3.3-2
DIVIDENDS
DIVORCE
DOGS
See PETS
DOMESTIC PARTNERS
Survivorship rights, 3.2. See also
SURVIVING PARTNER/SPOUSE
SI-15
2012 Revision

DRIVER LICENSES
DUE PROCESS ISSUES
Jurisdiction, 2.2-2(d)
States control of probate matters, 2.1
ELDERLY PERSONS
VULNERABLE PERSONS
Lifetime gift transfers, 14.2-2
Multiple-party bank accounts,
1.6-1(e)
ELECTIVE SHARE
Augmented estate
Decedents nonprobate property,
8.2-5(d)(2)
Decedents probate estate, 8.2-5(d)(1)
Determination of, 8.2-5(d)
Exclusions from, 8.2-5(d)(5)
Percentage of, 8.2-5(a)
Surviving spouses estate, 8.2-5(d)(3)
Valuation of, 8.2-5(d)(4)
Community property rights, 8.2-4(b)(3)
Election to receive
Availability of, 8.2-5(b)
Form of election, Form 8-1
Mechanics of, 8.2-5(c)
Overview of, 4.2-9, 8.2-5(a)
Payment of, 8.2-5(e)
Percentage(s), 8.2-5(a)
Prior law
Law before January 2011, 8.2-5(i)(1)
Law from January 1, 2011 to June 8,
2011, 8.2-5(i)(2)
Protective orders, 8.2-5(f)
Separated spouses, 8.2-5(h)
Waiver of, 8.2-5(g)
ENCUMBERED ASSETS
Devised property, 4.2-7(c)
Heirs, 10.11-5
SI-16
2012 Revision
Involuntary encumbrances
Definition of, 10.11-2
Liens. See LIENS
Real property, 7.4-3(b). See also
MORTGAGES
Voluntary encumbrances
Will provisions, 10.11-4
ENTIRETIES PROPERTY
See also JOINTLY OWNED
PROPERTY
Ancillary administration, 6.6-1(c)
Federal estate tax
Gross estate, inclusion in, 12.1-3(f)
Schedule E, 12.2-12(e)
ENTITY AGREEMENTS
Business(es) of decedent, 10.10-3(a)
ENVIRONMENTAL
CONTAMINATION
Cleanup costs
Federal Superfund statute, 10.8-4(a)
Generally, 10.8-4
Liability insurance, 10.8-4(d)
Oregon statute, 10.8-4(c)
Priority of claims, 10.8-4(b)
Federal Claims Priority statute, 10.8-4(b)
Federal Superfund statute (CERCLA),
10.8-4(a)
Lawyers instructions to personal
Oregon cleanup statute, 10.8-4(c)
Overview of, 10.8-4
Lawyers instructions for, 7.1-3

Liability of, 7.2-4(a)(3), 10.8-4(a),
10.8-4(b)
Protection from liability, 10.8-4(d)
Prior violations, liability for, 10.8-4(b)
EQUITABLE CLAIMS
Claims against estates, 9.4-6(e)
ESCHEATED PROPERTY
See also UNCLAIMED ASSETS
Antilapse statute, 4.1-2(g)
Claims of interest, 8.2-1
Devisee cannot be found, 5.2-3
Intestate succession, 4.1-2(g), 5.2-3
Missing persons estate, 7.3-2(a)
Overview of, 5.2-3
Perishable property, 4.1-2(g)
Personal representatives, 5.2-3, 5.2-5(a)
Recovery of, 2.9-8
ESTATE FREEZES
ESTATE/INHERITANCE TAX
(OREGON)
Adjusted taxable estate, 14.1-3
Adjusted taxable gifts, 14.1-3
Alternate valuation date election,
14.4-6
Apportionment of, 14.4-8
Appraisals, 14.4-7
Calculation of tax
January 1, 2012, deaths occurring
before, 14.3-3
January 1, 2012, deaths occurring on
or after, 14.2-1
Case law background, 14.1-2
Constitutional background, 14.1-2
Deductions
Family-owned business interests,
14.4-12
Generally, 14.1-3
Special marital property, 14.4-10
Definitions, 14.1-3
Disclaimers
Fiduciarys request for release from
personal liability, 14.4-1
Qualified tax disclaimers, 14.4-13
Due dates, 7.6-4(a)
Elections
14.4-6
Available federal elections, 14.4-5
Portability election, 14.2-5
QTIP elections, 14.2-3, 14.3-3,
14.4-10, 14.4-11
Extension of time to file, 14.4-2
Extension of time to pay, 7.6-6(j), 14.4-2
14.4-12
Federal elections, 14.4-5
Federal estate-tax audits, 14.4-9
Federal taxable estate, 14.1-3, 14.2-1
Filing threshold, 14.1-3
Gross estate, 14.1-3, 14.2-1
Historical overview, 14.1-1
Interest, 14.4-3
January 1, 2012, deaths occurring before
Calculation of tax, 14.3-1, 14.3-3
Federal elections for, 14.4-5(b)
Natural resource credit (under
pre-2012 law), 14.3-5
Oregon residents versus nonresidents,
14.3-4
Overview of, 14.3-1
January 1, 2012, deaths occurring on or
after
Calculation of tax, 14.2-1
Effective date of law, 14.2-4
Federal elections for, 14.4-5(a)
Natural resource credit (under new
law), below
Oregon residents versus nonresidents,
14.2-3
Lifetime gift transfers
before, 14.3-2
SI-17
2012 Revision

or after, 14.2-2
Natural resource credit (under new law)
Adjusted gross estate, 14.2-6(b)(4)
Annual reporting requirement,
14.2-6(d)(2)
Calculation of, 14.2-6(c)
Disposition tax, 14.2-6(d)(1)
Form for filing, 14.2-6(d)(3)
Historical backdrop, 14.2-6(a)
Natural resource property,
14.2-6(b)(1)
Operating allowance, 14.2-6(b)(2)
Replacing natural resource property,
14.2-6(d)
Taxable transfers, 14.2-6(d)(1)
Transfer requirements, 14.2-6(b)(3)
Transferring natural resource
property, 14.2-6(d)
Use requirements, 14.2-6(b)(3)
Natural resource credit (under pre-2012
law), 14.3-5
Nonresidents
before, 14.3-4
or after, 14.2-3
Notice of deficiency, 14.4-4(a)
Oregon taxable estate, 14.1-3, 14.2-1
Overview of, 14.1
Payment of
11.3-2
Foreign personal representative, by,
6.7-2
Generally, 14.4-2
Penalties, 14.4-3
QTIP elections, 14.2-3, 14.3-3, 14.4-10,
14.4-11
Refund claims, 14.4-4(b)
Returns
Due date, 7.6-4(a)
Extension of time to file, 14.4-2
Filing requirements, 7.6-4(b)
SI-18
2012 Revision
Final accounting, filing as

prerequisite to, 7.6-4(b)
Necessity of, 14.2-1
Online returns, 14.4-2
Reopened estate, amendment for,
11.10-1(a)(3)
Schedule OSMP, 14.4-10
Special marital property, 7.6-5, 14.1-3,
14.2-3, 14.4-5(a), 14.4-10, 14.4-11
State death-tax credit, 14.1-3
Statute of limitations
Tentative tax, 14.1-3
Valuation of property
14.4-6
Appraisals, 14.4-7
ESTATE TAX (FEDERAL)
ESTOPPEL
Personal representatives, actions against,
7.2-4(b)(4)
EVIDENCE
Contested wills, 5.2-4(h)
Contracts to make wills, 4.2-5(c)
Presumptions. See PRESUMPTIONS
Will, of. See WILLS
EXECUTION OF WILLS
Attestation, 4.2-3(a), 4.2-3(b)
Formalities, 4.2-3(a)
Signatures, 4.2-3(a)
Validity of, 4.2-3(c)
When will deemed executed, 4.2-1
EXECUTORS
EXECUTORY CONTRACTS
Devised property, sale of, 4.2-6(f)

EXPENSES
See ADMINISTRATION EXPENSES;
CHARGES AND EXPENSES
FAMILY HOME
Homestead exemption, 7.5-1(a)
Household goods. See HOUSEHOLD
GOODS
Insurance, 10.3-4
Life interest of decedent, 12.1-3(d)(1)
Occupancy of
Children or minors, by, 6.2-1, 7.5-1
Duties of occupants, 7.5-1(b)
Surviving partner/spouse, by, 6.2-1,
7.5-1
FAMILY-OWNED BUSINESS
INTERESTS
See CLOSELY HELD BUSINESS
INTERESTS
FARM PROPERTY
FEDERAL CLAIMS PRIORITY
STATUTE
Environmental contamination, 10.8-4(b)
FEDERAL ESTATE TAX
Accountants fees, 12.1-4(e)(3)
Administration expenses
Generally, 12.1-4(e)
Alternate valuation election, 12.1-2(a),
12.2-5(f)
Annuities
Exclusions/exemptions, 12.1-3(e)(2)
IRA rollovers, 12.1-3(e)(3)
Overview of, 12.1-3(e)(1)
Schedule I, 12.2-12(i)
Appeals Office conference, 12.2-11(d)
Applicable credit amount, 12.1-6(b)
Applicable exclusion amount, 12.1-1
Appraisers fees, 12.1-4(e)(3)

Attorney fees, 12.1-4(e)(1)
Audit/review procedures
Appeals Office conference,
12.2-11(d)
Audit procedure, 12.2-11(c)
Choice of forum, 12.2-11(g)
Classification of returns, 12.2-11(b)
Early audit requests, 12.2-6
Litigation, 12.2-11(g)
Mathematical verification, 12.2-11(a)
Ninety-day letter, 12.2-11(e)
Oregon estate tax, 14.4-9
Refund claims, 12.2-11(f)
Tax Court, 12.2-11(e)
Bank accounts, 12.2-12(d)(2)
Boats, 12.2-12(f)
Business real estate
Generally, 12.2-12(b)
Buy-sell agreements, 12.1-3(d)(3)
Calculation of tax
Mathematical verification, 12.2-11(a)
Overview of, 12.1-1
Cars, 12.2-12(f)
Cash on hand, 12.2-12(d), 12.2-12(d)(2)
Casualty losses, 12.1-4(h), 12.2-12(l)
Charitable deduction
Charitable lead trusts, 12.1-4(i)(2)
Overview of, 12.1-4(i)
Remainder interests, 12.1-4(i)(1)
Schedule O, 12.2-12(n)
Charitable remainder annuity trusts,
12.1-4(i)(1)
Charitable remainder unitrusts,
12.1-4(i)(1)
Charitable split-interest trusts,
12.1-4(i)(1)
Choice of forum, 12.2-11(g)
Choice of law, 12.1-1
Claims against estates, 12.1-4(f)
Clerks compensation, 12.1-4(e)(3)
Closely held business interests
Business real estate, above
SI-19
2012 Revision

Generally. See CLOSELY-HELD
BUSINESS INTERESTS
Coin collections, 12.2-12(f)
Collection of tax
General lien, 12.2-9(d)
12.2-9(a)
Possessor of decedents property,
liability of, 12.2-9(b)
Special lien, 12.2-9(e)
Transferees liability, 12.2-9(c)
Contracts (Schedule C), 12.2-12(d),
12.2-12(d)(1)
Corporate interests, 12.1-3(d)(3)
Court costs, 12.1-4(e)(3)
Credits
Applicable credit amount, 12.1-6(b)
Applicable exclusion amount, 12.1-1
Federal gift tax credit, 12.1-6(d)
Foreign death taxes, 12.1-4(g),
12.1-6(a), 12.1-6(f), 12.2-12(o),
12.2-12(r)
List of, 12.1-1
Prior transfers tax, 12.2-12(p)
Prior transfers tax credit, 12.1-6(e)
State death tax credit, 12.1-6(c)
United credit, 12.1-1
Debts of decedent (Schedule K),
12.2-12(k)
Decedents property, 12.1-3(b)
Deductions. Gross estate deductions,
below
Deficiency payments, 12.2-11(f)
Determination-of-tax requests, 12.2-6
Discharge from liability, application for,
12.2-6
Disclaimers
Overview, 8.3-2(c), 12.2-3
Qualified disclaimers, 12.2-3
Dividends, 12.2-12(c)(4)
Due dates, 7.6-4(a), 12.2-5(e)
Estate freezes, 12.1-3(d)(2)
Exclusions/exemptions
Annuities, 12.1-3(e)(2)
SI-20
2012 Revision
Applicable exclusion amount,

12.1-1
Executors commissions, 12.1-4(e)(1)
Extensions of time
Filing of returns, 12.2-5(e)
Payment of tax. Extensions of time to
pay, below
Extensions of time to pay
Closely held business interests, tax
on, 12.2-7(b)(3)
Generally, 7.6-6(j), 12.2-7(b)(1)
Interest on, 12.2-7(c)
Remainder interests, tax on,
12.2-7(b)(2)
Reversionary interests, tax on,
12.2-7(b)(2)
12.1-4(J)
Farm property
Generally, 12.2-12(b)
Special-use valuation. See SPECIALUSE VALUATION
Final accounting prerequisites
Filing of return, 11.3-2
Payment of tax, 11.3-2
Foreign death taxes, 12.1-4(g),
12.1-6(a), 12.1-6(f), 12.2-12(o),
12.2-12(r)
Forms 706 & IT-1, 12.5-5. Returns,
below
Funeral expenses, 12.1-4(d), 12.2-12(j)
Generation-skipping transfer tax
Estate tax inclusion period, 13.5-3(a)
Schedule R, 12.2-12(q)
Gift taxes
Estate tax credit, 12.1-6(d)
Unified credit to offset, 12.1-1
Gifts made within 3 years before death,
12.1-3(c)
Grantor-retained income trusts (GRITs),
12.1-3(d)(3)
Gross estate
Annuities, above
Decedents property, 12.1-3(b)

Deductions from. Gross estate
deductions, below
Gifts made within 3 years before
death, 12.1-3(c)
Items included in, 12.1-1, 12.1-3
Joint interests with right of
survivorship, 12.1-3(f)
Life insurance, 12.1-3(h)
Overview of, 12.1-3
Powers of appointment, 12.1-3(g)
Transfers taking effect at death, below
Valuation of property in, 12.2-2.
Valuation of property, below
Gross estate deductions
Accountants fees, 12.1-4(e)(3)
Administration expenses, 12.1-4(e)
Appraisers fees, 12.1-4(e)(3)
Attorney fees, 12.1-4(e)(1)
Clerks compensation, 12.1-4(e)(3)
Court costs, 12.1-4(e)(3)
Debts of decedent, 7.6-6(f),
12.2-12(k)
Executors commissions, 12.1-4(e)(1)
12.1-4(j)
Funeral expenses, 12.1-4(d)
Income taxes, 12.1-4(g)
Interest on estate tax liabilities,
12.1-4(e)(4)
Interest on income tax liabilities,
12.1-4(e)(4)
Losses, 12.1-4(h)
Medical expenses, 7.6-6(f),
12.2-12(k)
Mortgages, 12.1-4(c)
Overview of, 12.1-4(a), 12.1-4(b)
Property taxes, 12.1-4(g)
Household goods, 12.2-12(f)
Income tax deduction, 12.1-4(g)
Income tax refunds, 12.2-12(f)
Insurance
Life of another person, 12.2-12(f)
Schedule D, 12.2-12(d)(3)
Interest
Bonds, on, 12.1-5(c)(2)
Extensions for payment of tax,
12.2-7(c)
Gross estate deductions, 12.1-4(e)(4)
U.S. savings bonds, on, 12.1-5(c)(2)
Jewelry, 12.2-12(f)
Jointly owned property
Liens
Special lien, 12.2-9(e), 12.2-12(b)(4)
Life insurance
Domestic trusts for proceeds,
12.1-5(c)(5)
Gross estate, inclusion in, 12.1-3(h)
Life interests. See LIFE ESTATES/
INTERESTS
Lifetime transfers, 12.2-12(g)
List of property taxable, preparation of,
12.1-1
Litigation, 12.2-11(g)
Losses
Gross estate deduction, 12.1-4(h)
Schedule L, 12.2-12(l)
Marital deduction
Availability of, 7.6-5
Bequests to spouse conditioned on
survivorship, 12.1-5(c)(1)
Disclaimers, 12.1-5(d)
Gross-estate property requirement,
12.1-5(b)(3)
Life interests with power of
Nondeductible terminable interests,
12.1-5(b)(4)
Property-transfer requirements,
12.1-5(b)(2)
QTIP elections/property, 7.6-6(k),
12.1-1, 12.2-12(m)
QTIP trusts, 12.1-5(c)(3)
Qualification requirements, 12.1-5(b)
SI-21
2012 Revision

Qualified domestic trusts,
12.1-5(c)(4)
Schedule M, 12.2-12(m)
Special marital property, 7.6-6(l)
Terminable-interest rule exceptions,
12.1-5(c)
Time-of-marriage requirement,
12.1-5(b)(1)
Mathematical errors, 12.2-11(a)
Mortgages
Gross estate deduction, 12.1-4(c)
Schedule C, 12.2-12(d), 12.2-12(d)(1)
Schedule K, 12.2-12(k)
Mutual funds, 12.2-12(c)(7)
Ninety-day letter, 12.2-11(e)
Notes (Schedule C), 12.2-12(d),
12.2-12(d)(1)
Overview of, 12.1-1
Partnership interests, 12.1-3(d)(2),
12.1-3(d)(3), 12.2-12(f)
Payment of tax
Deficiency payments, 12.2-11(f)
Due date, 12.2-7(a)
Extensions of time to pay, above
Failure to pay, 12.2-8(c)
Method of, 12.2-7(d)
Penalties for failure to pay, 12.2-8
Underpayments, 12.2-8(d)
Personal representatives liability
Application for discharge from,
12.2-6
Disclaimer of liability, 14.4-1
Overview, 12.2-9(a)
Pooled income funds, 12.1-4(i)(1)
Powers of appointment
Gross estate, inclusion in, 12.1-3(g)
Gross estate deduction, 12.1-5(c)(5)
Life interests with, 12.1-5(c)(2)
Revocable transfers, 12.1-3(d)(5)
Schedule H, 12.2-12(h)
Prior transfers tax, 12.2-12(p)
Procedural aspects, 12.2-1
Property tax deduction, 12.1-4(g)
QTIP trusts, 12.1-5(c)(2), 12.1-5(c)(3),
12.2-12(c)(3)
SI-22
2012 Revision
Qualified domestic trusts

Life insurance proceeds, for,
12.1-5(c)(5)
Marital deduction, 12.1-5(c)(4)
Real estate
Business real estate, 12.2-12(b).
Farm property
SPECIAL-USE
VALUATION
Schedule A, 12.2-12(a)
Recapture of tax savings realized by
special-use valuation, 12.2-12(b)(4)
Refund claims, 12.2-11(f)
Returns
Accuracy-related penalty, 12.2-8(b)
Alternate valuation election,
12.1-2(a), 12.2-5(f)
Classification by IRS, 12.2-11(b)
Completion of, 12.2-12
Documents to accompany, 12.2-5(g),
12.2-12(r)
Due date, 7.6-4(a), 12.2-5(e)
Extension of time to file, 12.2-5(e)
Failure to file, 12.2-8(e)
Failure to file timely return, 12.2-8(a)
False statements in, 12.2-8(e)
Form to file, 12.2-5(a)
Oregon estate-tax return, 12.2-5(b)
Penalties for failure to file, 12.2-8
Reopened estate, amendment for,
11.10-1(a)(3)
Schedules, below
When required, 12.2-5(a)
Where to file, 12.2-5(c)
Who must file, 12.2-5(d)
Review procedures. Audit/review
procedures, above
Revocable transfers, 12.1-3(d)(5),
12.2-12(g)
Schedules
A. Real estate, above
B. Stocks and bonds, below

C, 12.2-12(d)
D, 12.2-12(d)(3)
E, 12.2-12(e)
F, 12.2-12(f)
G, 12.2-12(g)
H, 12.2-12(h)
I, 12.2-12(i)
J, 12.2-12(j)
K, 12.2-12(k)
L, 12.2-12(l)
M, 12.2-12(m)
O, 12.2-12(o)
P, 12.2-12(p)
Q, 12.2-12(q)
R, 12.2-12(r)
R-1, 12.2-12(r)
Special-use valuation (farm & business
property)
Recapture of realized tax savings,
12.2-12(b)(4)
See also SPECIAL-USE
VALUATION
Requirements for, 12.2-12(b)(1)
Stamp collections, 12.2-12(f)
Statute of limitations, 12.2-10
Stocks and bonds
Closely held business stock,
12.2-12(c)(3)
Dividends, 12.2-12(c)(4)
Fair-market value not reflected in
prices, 12.2-12(c)(2)
Interest on bonds, 12.2-12(c)(5)
Mutual funds, 12.2-12(c)(7)
Over-the-counter, 12.2-12(c)(1)
Schedule B, 12.2-12(c)
Stock exchanges, on, 12.2-12(c)(1)
Transfers taking effect at death,
12.1-3(d)(3)
United States savings bonds,
12.2-12(c)(6)
Sunset rate, 12.1-1
Surviving spouse
Bequests, etc., to, 12.2-12(m)
Marital deduction, above
Taxable estate
Credits, above
Gross estate deductions, above
Overview of, 12.1-1
Tax-computation base
Overview of, 12.1-1
Tax Court, 12.2-11(e)
Trailers, 12.2-12(f)
Transfers of property
Lifetime transfers, 12.2-12(g)
Transfers taking effect at death, below
Transfers taking effect at death
Buy-sell agreements, 12.1-3(d)(3)
Corporate interests, 12.1-3(d)(3)
Gross estate, inclusion in, 12.1-3(d)
Life interest, reservation of,
12.1-3(d)(1)
Overview of, 12.1-3(d)
Partnership interests, 12.1-3(d)(3)
Revocable transfers, 12.1-3(d)(5)
Survivorship, dependent on,
12.1-3(d)(4)
Trust interests, 12.1-3(d)(3)
Trust interests
Charitable remainder annuity trusts,
12.1-4(i)(1)
Charitable remainder unitrusts,
12.1-4(i)(1)
Charitable split-interest trusts,
12.1-4(i)(1)
Election to be taxed as estate, 7.6-6(e)
Grantor-retained income trusts
(GRITs), 12.1-3(d)(3)
Gross estate, inclusion in,
12.1-3(d)(3)
QTIP trusts, 12.1-5(c)(2),
12.1-5(c)(3), 12.2-12(c)(3)
Qualified domestic trusts, above
Transfers taking effect at death,
12.1-3(d)(3)
Underpayments, 12.2-8(d)
Unincorporated interests, 12.2-12(f)
United credit, 12.1-1
SI-23
2012 Revision

United States savings bonds,
12.2-12(c)(6)
Valuation elections, 7.6-6(h)
Valuation of property
Alternate valuation date, 12.1-2(a),
12.2-5(f)
Date for, 12.1-2(a)
Fair-market value, 12.1-2(b)
Gross estate, property in, 12.1-2
Overview of, 12.2-4
Special-use valuation for farm and
business property. See SPECIALUSE VALUATION
Standard of, 12.1-2(b)
Watches, 12.2-12(f)
Year of death
2010, deaths occurring in, 12.1-1
FEDERAL GIFT TAX
Federal estate tax implications. See
FEDERAL ESTATE TAX
Sunset rate, 12.1-1
Unqualified disclaimers, 8.3-2(c)
FEDERAL SUPERFUND STATUTE
(CERCLA)
Environmental contamination, 10.8-4(a)
FELONY CONVICTIONS
Personal representative, disqualification
of, 5.2-5(b)
FIDUCIARY ABUSE
See ABUSE OF VULNERABLE
PERSONS
FINAL ACCOUNTING
Accounting options, 11.3-4
Bonds
Asset restriction in lieu of, 11.4-3(c)
Requirement of, 11.4-3
When no bond required, 11.4-3(a)
SI-24
2012 Revision
Changes in assets/finances, 11.4-4

Consent accounting, 11.3-4(b)
Courts approval, effect of, 11.3-4
Fiduciary disclosures, 11.4-5
Form of, Form 11-2
Judgment(s)
Final judgment of distribution, 11.4-6
account, Form 11-15
Narrative of, 11.4
Notice(s)
Final accounting, of, 2.5-1, 11.6-2(b)
Objections, opportunity to file, 5.2-8;
Form 11-3
Prerequisite of, 11.3-2
Objections to
Form of, 11.7-2
Hearing on, 11.7-3
Notice of opportunity to file, 5.2-8,
5.2-8; Form 11-3
Who may object, 11.7-1
Ordinary accounting, 11.3-4(a)
Overview of, 11.2, 11.3-1
Prerequisites to approval, 5.2-8
Tasks involved, 11.3-2
Term of, 11.4-2
Unresolved issues, 11.3-3
Verified statement in lieu of accounting
Form of, Form 11-4
Statement for attorney fees and costs
supporting, Form 11-16
FINAL DISTRIBUTION(S)
Judgment(s)
Effect of, 11.8-2(c)
Finality of, 2.9-5
General judgment of final
distribution, 8.3-1, 8.3-2,
11.8-2(a); Form 11-15
Petition for general judgment, Forms
11-2 to 11-4
Liquid assets, of, 11.8-2(b)
Overview of, 11.8-2
Petition for general judgment, Forms
11-2 to 11-4

Receipt of, 11.8-2(b); Form 11-7
Reopening an estate. See REOPENING
AN ESTATE
Settlement agreements, 11.8-2(d)
Tax matters, 11.8-2(b)
FINANCIAL ABUSE
See also ABUSE OF VULNERABLE
PERSONS
Definition of, 15.4
FIREARMS
FISCAL YEAR
Election of, 7.6-6(d)
FOREIGN DEATH TAXES
12.1-6(a), 12.1-6(f), 12.2-12(o),
12.2-12(r)
Recovery of, 6.7-3
FOREIGN PERSONAL
REPRESENTATIVES
Distribution to, 11.8-5
Release of personalty to, 6.6-1(d)(1)
Taxes
Domicile disputes, settlement of,
6.7-1
Foreign death taxes, recovery of,
6.7-3
Inheritance tax, payment of, 6.7-2
Overview, 6.7
FOREIGN WILLS
Establishment of, 6.6-3
Probate of, 5.2-2(b), 5.2-4(e)
Will contests, 5.2-4(e), 8.4-2, 15.2-2
401(K) PLANS
FRAUD AND DECEIT
Will contests, 15.2-2(d)
FUNERAL BENEFIT INSURANCE

Disposition of remains, 3.3-3(c)
FUNERAL DIRECTORS/SERVICE
PRACTITIONERS
Disposition of remains, 3.3-3(a),
3.3-3(d), 3.3-3(e)
5.2-5(b)
Payments for services, 3.3-3(d)
FUNERALS
Arrangements with funeral director,
3.3-3(d)
Decedents instructions regarding,
3.3-3(c)
Cremation, 3.3-3(e)
Expenses of
deduction, 14.1-3
Federal estate tax deduction
Overview of, 12.1-4(b), 12.1-4(d)
Right to control, 3.3-3(a), 3.3-3(b)
GENERATION-SKIPPING
TRANSFER(S) (GSTS)
Avoiding unnecessary taxes, 7.6-6(p)
Definition of, 13.1, 13.4
Direct skips, 13.4-1
Disclaimers, 13.4-6
Federal estate tax (Schedule R),
12.2-12(q)
Interests in property, 13.2-3
Multi-generational skips, 13.4-5
Multiple skips, 13.4-5
Nonskip persons, 13.2-4
Nontaxable gifts, 13.4-4
Predeceased ancestors, 13.3-2
Skip persons, 13.2-4
Taxable distributions, 13.4-3. See also
GENERATION-SKIPPING
TRANSFER (GST) TAX
SI-25
2012 Revision

Taxable terminations, 13.4-2
Transferors, 13.2-1
Trusts, 13.2-2
Types of, 13.4
GENERATION-SKIPPING
TRANSFER (GST) TAX
Basis adjustments, 13.8-1
Definitions, 13.2
Effective dates, 13.7-1
Exemption
Allocation of, 13.5-3
Amount of, 13.5-2
Estate tax inclusion period, allocation
for, 13.5-3(a)
Overview of, 13.5
Retroactive allocations, 13.5-3(b)
Taxable amount, determination of,
13.5-1
Extension of time to pay, 13.8-3
Federal estate tax
Schedule R, 12.2-12(q)
Filing of, 13.9
Forms, 13.9-1
Grandfathered trusts, modifications to,
13.7-2
Imposition of, 13.6
Inclusion ratio
Applicable fraction, redetermination
of, 13.6-1(b)(2)
General rule, 13.6-1(b)(1)
Severance of trusts, 13.6-1(b)(4)
Valuation rules, 13.6-1(b)(3)
Income tax deductions, 13.8-2
Liability for, 13.6-2
Nonresident aliens, 13.8-4
Overview of, 13.1
Payment of
Extension of time for, 13.8-3
Lifetime direct skips, on, 13.6-3
Source of, 13.6-2
Stock redemptions for, 13.8-3
Powers of appointment, 13.4-2,
13.7-1
SI-26
2012 Revision
QTIP elections/property, 13.2-1,

13.5-3(a), 13.9-2
Rate of
Applicable rate, 13.6-1
Inclusion rate, above
Maximum rate, 13.6-1(a)
Section 9100 relief, 13.9-2
State taxes, credit for, 13.6-4
Trusts
Grandfathered trusts, modifications
to, 13.7-2
Severance to achieve inclusion ratio,
13.6-1(b)(4)
GIFTS
Anatomical. See ANATOMICAL
GIFTS
Charitable deduction. See FEDERAL
ESTATE TAX
before, 14.3-2
or after, 14.2-2
Federal estate tax, 12.1-3(c)
Federal gift tax. See FEDERAL GIFT
TAX
Generation-skipping transfers. See
GENERATION-SKIPPING
TRANSFER(S) (GST)
GOLD BULLION
GOVERNMENTAL ENTITIES
GRANDCHILDREN
GRANDPARENTS
Issues intestate share, 4.1-2(e)

GRANTOR-RETAINED INCOME
TRUSTS (GRITS)
HEALTH AUTHORITY
Bank accounts released to, 6.6-1(d)(2)
Notice to, 2.5-1, 5.2-8
GST
See GENERATION-SKIPPING
TRANSFER(S) (GSTS)
HEARINGS
Absentees estates
Hearing on petition, 6.5-2
Notice of hearing, 6.5-2
Conduct of, 2.6-2(a)
Final accounting, objections to, 11.7-3
Notice of
Absentees estates, 6.5-2
Form, Form 2-3
Probate proceedings, 5.2-2(a)
Service of, Form 2-4
Waiver of, Forms 2-5, 2-6
Real property, sale of, 10.8-1(a)
Stenographic record at, 2.6-3
Subpoena to compel attendance at,
2.6-2(b)
Summary determination of claim at. See
SUMMARY DETERMINATIONS
When required, 2.6-1
GST TAX
See GENERATION-SKIPPING
TRANSFER (GST) TAX
GUARDIANS AD LITEM
Abused vulnerable persons, for, 15.4
Notice to, 2.5-2
Will contests, 15.2-1(e)
GUARDIANS AND
CONSERVATORS
Anatomical gifts, 3.3-1(a), 3.3-1(b)
Autopsy, consent to, 3.3-2
Disposition of decedents remains,
3.3-3(a)
Distributions to minors, 11.8-6(a)
Elective share, election of, 8.2-5(b)
Jurisdiction over, 2.2-2(a)
Notice to, 2.5-2
Surety bonds, approval of, 5.2-6(c)
Temporary guardians. See
GUARDIANS AD LITEM
Wages of decedent, 1.5-15
Wrongful death action proceeds,
15.3-3(c)
GUNS
Estate assets, 10.12-2
HALF-BLOODS
Intestate succession, 4.1-3(c)
HEIRS
See INTERESTED PERSONS;
HOMESTEAD EXEMPTION
Family home, 7.5-1(a)
HOMICIDE
See SLAYERS
HOUSEHOLD GOODS
Accountings, 11.5-3(d)
Final distribution of, 11.8-2(b)
Inventory of assets, 7.4-3(g)
HUSBANDS
See SPOUSE(S)
SI-27
2012 Revision

IDENTIFICATION CARDS
Savings bond interest, 7.6-6(g)

Taxpayer I.D. number, 7.6-3(a)
ILLEGITIMATE CHILDREN
Intestate succession, 4.1-3(e)
INCOMPETENT PERSONS
5.2-5(b)
GUARDIANS AND
CONSERVATORS
Minors. See CHILDREN OR MINORS
Notice to, 2.5-2
IN TERROREM CLAUSES
Wills, 9.1
INCAPACITATED PERSONS
VULNERABLE PERSONS
GUARDIANS AND
CONSERVATORS
INCOME TAXES
Deductions
Administration expenses, 7.6-6(i),
12.1-4(e)(2)
GST tax, 13.8-2
Medical expenses, 7.6-6(f)
Estimated tax payments, 7.6-2,
7.6-4(a)
12.1-4(g)
Final accounting, payment as
prerequisite to, 11.3-2
Inventory-of-assets considerations,
7.6-6(c)
Notices, 7.6-3(a)
Personal representatives compensation,
7.6-6(c)
Returns
Due dates, 7.6-4(a)
Elections, 7.6-6
Fiduciary returns, 7.6-4(a), 7.6-4(b),
11.3-2
Final accounting, filing as
prerequisite to, 7.6-4(b)
Gathering prior returns, 7.6-2
SI-28
2012 Revision
INDEMNIFICATION
AGREEMENTS
Securities, transfer of, 10.6-3
INDEMNIFICATION FROM
LIABILITY
Personal representatives, 7.3-3(b)
INDIVIDUAL RETIREMENT
ACCOUNTS
See IRAs (INDIVIDUAL RETIREMENT ACCOUNTS)
INFORMATION GATHERING
Assets, 10.3-2
Checklist, 3.6-6(a); Appendix 3B
Codicils, 3.4-1
Documents, 3.4
Preadministration procedures, 3.4
Tax matters, 7.6-2
Trust agreements, 3.4-1
Wills, 3.4-1
INHERITANCE
Intentional interference with prospective
inheritance, 15.2-2(g)
Intestate succession, by. See
Nonresident aliens, by, 8.1-6
Taxes. See ESTATE/INHERITANCE
TAX (OREGON)
Will, by. See WILLS

INHERITANCE TAXES
See ESTATE/INHERITANCE TAX
(OREGON)
U.S. savings bonds, on

Generally, 7.6-6(g)
INSANE DELUSIONS
Will contests, 15.2-2(c)
INTERESTED PERSONS
Abusers. See ABUSE OF
VULNERABLE PERSONS
Advice to, 3.6-3
Claims of. See CLAIMS OF INTEREST
IN ESTATE
Definition of, 3.4-1, 5.2-5(a)
Determination of heirship, 8.1-7, 8.2-1
Gathering information about, 3.4-3
Identification of
11.3-2
Overview, 3.4-3
Nonresident aliens, 8.1-6
Notices to
Failure to notify, 7.3-1(b)
Failure to publish notice, 7.3-2(b)
Overview, 2.5-1, 7.3-1(a)
Probate administration, notice of, 1.2,
4.2-5, 5.2-4(g), 5.2-5(a); Form
5-15. See also PROBATE
PROCEEDINGS
Proof of delivery or mailing, 7.3-1(a)
Publication of notice, 7.3-2
Successor representatives, 7.3-2(c)
Recommendations to, 3.6-3
Slayers. See SLAYERS
Will contests, notice to, 7.3-1(a). See
also WILL CONTESTS
INSOLVENT ESTATES
Support payments, 6.4-2
INSURANCE
Annuities. See ANNUITIES
Casualty losses, 7.1-3
Decedents insurance, liability claims
covered by, 9.4-6(f)
Environmental liability insurance,
10.8-4(d)
Federal estate tax
Life of another person, 12.2-12(f)
Funeral benefit insurance, 3.3-3(c)
Life. See LIFE INSURANCE
Motor vehicles, 3.5-3, 10.3-4
Lawyers instructions, 7.1-3
Life insurance claims, 7.1-3
Preadministration review of, 3.5-3
Primary residence, 10.3-4
Real property, 10.3-4
Title insurance, 1.5-8
INTENTIONAL INTERFERENCE
WITH PROSPECTIVE
INHERITANCE
Will contests, 15.2-2(g)
INTEREST
Claims against estates, 9.3-1, 9.5-10
14.4-3
ESTATE TAX
INTERNATIONAL WILLS
Overview, 4.2-2(c)
Probate of, 5.2-4(f)
Abusers, 4.1-3(g)
Adopted persons, 4.1-3(d)
Advancements, 4.1-3(f), 8.1-3
After-born heirs, 4.1-3(a)
Children born out of wedlock,
4.1-3(e)
SI-29
2012 Revision

Contracts to die intestate
Overview of, 4.2-5
Definitions, 4.1-1
Disclaimers, Form 8-6
Disinheritance clauses, effect of, 4.1-1
Escheat estates, 4.1-2(g), 5.2-3
Expected property, 4.1-1
Half-bloods, 4.1-3(c)
Heirs
Abusers of, 4.1-3(g)
Adopted persons, 4.1-3(d)
Advancements, 4.1-3(f)
After-born heirs, 4.1-3(a)
Children born out of wedlock,
4.1-3(e)
Half-bloods, 4.1-3(c)
Rules governing, 4.1-3
Simultaneous death, 4.1-3(b)
Slayers of, 4.1-3(g)
Time of determining relationship,
4.1-3(a)
Issue
Distribution method to, 4.1-2(b)(3)
Grandparents issue intestate share,
4.1-2(e)
Intestate share, with no spouse
surviving, 4.1-2(b)(2)
Intestate share, with spouse surviving,
4.1-2(b)(1)
Parents issue intestate share, 4.1-2(d)
Taking by representation,
4.1-2(b)(3)
Limited judgments, Form 5-8
Missing persons, 4.1-2(g)
Notices to heirs, Form 5-11
Parents
Intestate share, 4.1-2(c)
Issues intestate share, 4.1-2(b)
Persons related through two lines,
4.1-2(f)
Petition for administration, Form 5-4
Property passing by, 4.1-1
Reopening an estate, 11.10-1(b)
SI-30
2012 Revision
Rules of, 4.1-2

Slayers, 4.1-3(g)
Small-estate affidavit of claiming
successor, Form 5-18
Surviving spouse
Common-law spouse, 4.1-2(a)(1)
Definition of, 4.1-2(a)(1)
Intestate share, with issue surviving,
4.1-2(a)(3)
Intestate share, with no issue
surviving, 4.1-2(a)(2)
INVENTORY OF ASSETS
Amended inventory, 7.4-2(b); Form 7-3
Annuities, 7.4-3(k)
Antiques, 7.4-3(h)
Appraisal fees, 7.4-2(c)
Appraisal of property, 7.4-2(c)
Art work, 7.4-3(h)
Bank accounts, 7.4-3(f)
Cash on hand, 7.4-3(f)
Cemetery lots, 7.4-3(j)
Coins, 7.4-3(h)
Community property, 7.4-3(i)
Considerations in preparing, 7.4-2(a)
Contracts, 7.4-3(e)
Filing of
Duty to file, 7.4-2(a)
Time for, 7.4-2(a)
True cash value estimates, 7.4-2(a)
11.3-2
Form and contents
Contracts, 7.4-3(e)
Form, Form 7-1
Mortgages, 7.4-3(e)
Mutual funds, 7.4-3(d)
Notes, 7.4-3(e)
Stocks and bonds, 7.4-3(c)
Household goods, 7.4-3(g)
Income tax considerations, 7.4-2(d)
Incomplete inventories, 7.4-5
Item numbers, use of, 7.4-3(a)
Jewelry, 7.4-3(h)

Life estates, 7.4-3(k)
Mortgages, 7.4-3(e)
Mutual funds, 7.4-3(d)
Notes, 7.4-3(e)
Overview of, 1.2
Personal effects, 7.4-3(g)
Pets, 10.3-3
Property to be itemized in, 7.4-2(a)
Remainders, 7.4-3(k)
Supplemental inventory, 7.4-2(b); Form
7-2
Tax matters, 7.4-2(d)
True cash value estimates, 7.4-2(a)
INVESTMENTS
Authority to invest
Court authorization, 10.4-1(b)(2)
10.4-1
Scope of, 10.4-1(a)
Sources of, 10.4-1(b)
Statutory authority, 10.4-1(b)(1)
Testamentary authority, 10.4-1(b)(3)
Court authorization
Investments pursuant to, 10.4-1(b)(2)
Investments without, 10.4-1(c)(2)
Failure to invest, 10.4-1(c)(1)
Liability for
Court order, investing without,
10.4-1(c)(2)
Failure to invest, 10.4-1(c)(1)
10.4-1(c)
Standard of care, 10.4-1(c)(3)
Liquidation
Consent to, 10.4-2(a)(3)
Necessity for, 10.4-2(a)(1)
Time of, 10.4-2(a)(2)
Practical considerations, 10.4-2
Standard of care, 10.4-1(c)(3)
Stocks and bonds
Fractional shares, 10.4-2(b)(2)
Mutual funds, shares in, 10.4-2(b)(3)

Stock rights, 10.4-2(b)(1)
IRAs (INDIVIDUAL RETIREMENT
ACCOUNTS)
Rollovers of lump-sum distributions,
12.1-3(e)(3)
ISSUE
See also CHILDREN OR MINORS
Devises to testators issue, 4.2-7(h)
SUCCESSION
JEWELRY
JOINT BANK ACCOUNTS
Federal estate tax issues, 12.1-3(f)
Nonprobate property, 1.3, 1.6-1(e)
Supplemental inventories, 7.4-2(b)
Tax-qualified disclaimers, 8.3-2(c)
JOINTLY OWNED PROPERTY
Disclaimer wills, 1.5-10
Disclaimers, 8.3-2(b)
Federal estate tax
Savings bonds, 1.6-2
Simultaneous death of owners,
4.1-3(b)
JUDGMENTS AND ORDERS
Autopsy, authority to order, 3.3-2
Claims against estates, 9.4-3
Consent to entry of order, Form 2-6
Contempt of court for disobeying,
2.7-4(a)
SI-31
2012 Revision

Declaratory judgments, 8.2-3(b)(6). See
also DECLARATORY
JUDGMENT PROCEEDINGS
Depositions, authority to order, 2.6-2(b)
Distribution of estate assets
Unclaimed assets, Form 11-9
Elective share protective orders, 8.2-5(f)
Escheated property
Recovery of, 2.9-8
Final accounting
Final judgment of distribution, 11.4-6
account, Form 11-15
DISTRIBUTION(S)
Finality of judgment/order
Admission of will to probate, 2.9-3
Discharge of personal representative,
2.9-6
Final distribution(s), 2.9-5
Overview of, 2.9-1
Probate commissioners orders,
2.9-2
Summary determinations, 2.9-4
Limited judgment(s). See LIMITED
JUDGMENT(S)
Overview of, 2.7-1
Permissible judgments/orders, 2.7-2
Personal property, sale of, Form 10-4
Probate commissioners orders
Finality of, 2.9-2
Overview of, 2.7-3
Reopening an estate
Effect of order, 2.9-7
Generally, 11.10-3; Form 11-14
Required judgments/orders, 2.7-2
Summary closure, Form 6-8
Summary determinations. See
Form 6-5
SI-32
2012 Revision

6-5
Tables as to, Appendices, 2C, 2D
Venue
Order establishing venue where
action first commenced, Form
2-2
Order transferring, Form 2-1
Violation of
Breach of fiduciary duty, 2.7-4(b)
Contempt of court, 2.7-4(a)
Will contests, 15.2-1(g)
Wills
Admission to probate, finality of
order of, 2.9-3
Delivery of, 4.2-8(e)
Wrongful death actions, Forms 15-4 to
15-6
JURISDICTION
County courts, 2.2-3(a). See also
COUNTY COURTS
8.2-3(a)
Due process issues, 2.2-2(d)
Historical overview, 2.2-1
Improper venue as defect in, 2.3-3
Probate proceedings, 5.2-1(a)
Special administrators, appointment of,
6.1-2
Subject-matter jurisdiction, 2.2-2(a)
JURY INSTRUCTIONS
JURY TRIAL
8.2-3(b)(5)
KEOGH ACCOUNTS
KILLERS
See SLAYERS

LACHES
Claims, 7.2-4(b)(3)
Personal representatives, claims against,
7.2-4(b)(4)
LAPSE OF DEVISE
Antilapse statute. See ANTILAPSE
STATUTE
Trust devises, 8.1-5(b)
LAWYERS
Assets
Commingling of, 7.1-3
Division of responsibilities, 7.1-3
Attorney fees. See ATTORNEY FEES
Bank accounts, 7.1-3
Beneficiaries, representation of,
7.1-1
Commingling of assets, 7.1-3
Conflicts of interest, 7.1-1
Costs, 11.6-5(c)
Counselor, role as, 3.2
Delivery of wills to, 4.2-8(b)
Destruction of wills, 4.2-8(c)
5.2-5(b)
Dual representation, 7.1-1
Income tax returns, 7.1-3
Notification responsibilities, 3.2
Client, personal representative as,
7.1-1
Division of responsibilities, 7.1-2,
7.1-3
Lawyers instructions for, 7.1-3
Overview, 7.1-1
Reading of the will, 3.2
Tax matters
Trustees, representation of, 7.1-1
Wills, retention of, 3.4-1
LEASES
LETTERS OF ADMINISTRATION/
TESTAMENTARY
Evidence of authority, as, 5.2-7, 10.2-7
Form of, Form 5-2
Issuance of
Effect of, 5.2-7
Overview, 5.2-7
Personal representatives authority, as
prerequisite to, 5.2-7, 10.2-1,
10.2-7
Purpose of, 5.2-7
Securities, transfer of, 10.6-2, 10.6-3(d)
Successor personal representatives,
5.2-10(b)
LIENS
See also ENCUMBERED ASSETS
Debts due decedent, 10.9-2
Federal estate tax
Special lien, 12.2-9(e), 12.2-12(b)(4)
Real property, sale of, 10.8-1(d)
LIFE ESTATES/INTERESTS
Devise of, 4.2-7(d)
Family home, occupancy of, 7.5-1(a)
Federal estate tax
Charitable deduction, 12.1-4(h)
Federal gift tax credit, 12.1-6(d)(2)
Generally, 12.1-3(d)(1)
Gross estate, inclusion in, 12.1-3(a)
Life insurance proceeds, 12.1-5(c)(5)
Life interest with power of
Prior transfers, credit for, 12.1-6(e)
QTIP property, 12.1-5(c)
QTIP trusts, 12.1-5(c)(2),
12.1-5(c)(3)
SI-33
2012 Revision

Inventory of assets, 7.4-3(k)
Securities, transfer of, 10.6-3(c)
LIFE INSURANCE
Federal estate tax
Domestic trusts for insurance
proceeds, 12.1-5(c)(5)
Gross estate, inclusion in, 12.1-3(h)
Nonsurvival of beneficiary, 1.6-3
Payment of proceeds, 1.6-3
LIFETIME GIFTS
See GIFTS
LIMITATION OF ACTIONS
See STATUTE OF LIMITATIONS
LIMITED JUDGMENT(S)
Bond requirements, 5.2-5(d)
Decisions to which applicable, 2.9-9
Intestate estates, 5.2-5(d); Form 5-8
Mailing of, 5.2-5(d)
Overview of, 2.9-9, 5.2-5(d)
Testate estates, 5.2-5(d); Form 5-7
LIMITED LIABILITY COMPANIES
Decedent, of, 10.10-4(c). See also
Minority, controlling interests in,
10.10-3(b)
LIQUIDATION OF INVESTMENTS
See INVESTMENTS
LITIGATION
Abuse of vulnerable persons. See
ABUSE OF VULNERABLE
PERSONS
SI-34
2012 Revision
Actions pending against decedent

Appellate court proceedings,
9.4-6(d)(2)
Trial court proceedings, 9.4-6(d)(1)
Collection of estate assets,
10.9-3
Federal estate tax, 12.2-11(g)
Jurisdiction. See JURISDICTION
Limitation of actions. See STATUTE OF
LIMITATIONS
Overview of, 15.1
Personal representatives, actions against
Claimants of estate assets, by,
7.3-3(b)
Waiver of actions, 7.2-4(b)(3),
7.2-4(b)(4)
Venue. See VENUE
Will contests. See WILL CONTESTS
Wrongful death claims. See
WRONGFUL DEATH ACTIONS
LITIGATION COSTS
8.2-3(b)(7)
12.1-4(e)(3)
LOANS
See BORROWING MONEY
LOSSES
Federal estate tax deduction, 12.1-4(h),
12.2-12(l)
Income tax deduction, 7.6-6(i)
MARITAL DEDUCTION
MARRIED PERSONS
See SPOUSE(S); SUPPORT; SURVIVING PARTNER/SPOUSE

MASTER INFORMATION LIST
(MIL)
Administration of estates, 3.6-6(a);
Appendix 3A
MEDICAL EXAMINERS
Cause-of-death investigations,
3.3-2
MEDICAL EXPENSES
Federal estate tax deduction, 7.6-6(f),
12.2-12(k)
Income tax deduction, 7.6-6(f)
Nontaxable gifts, 13.4-4
MINORS
See CHILDREN OR MINORS
MISSING PERSONS
See also ABSENTEES ESTATES
Administration of estates, 3.6-2(a)
Escheat of estate, 7.3-2(a)
Presumptions, 3.6-2(a), 4.1-2(g), 6.5-1,
7.3-2(a)
MISTAKE
MONEY DUE FROM STATE OF
OREGON
MONEY ON HAND
See CASH ON HAND
MORTGAGES
Encumbered property generally. See
ENCUMBERED ASSETS
Federal estate tax deduction
Gross estate deduction, 12.1-4(c)
Schedule C, 12.2-12(d),
12.2-12(d)(1)
Schedule K, 12.2-12(k)
MOTOR VEHICLES
Insurance, 3.5-3, 10.3-4
Possession of, 10.3-3
Probate of nonprobate property, 1.7
MULTIPLE-PARTY BANK
ACCOUNTS
See also JOINT BANK ACCOUNTS
Nonprobate property, as, 1.6-1(e)
MURDERERS
See SLAYERS
MUTUAL FUNDS
Inventory of assets, 7.4-3(d)
Shares in, 10.4-2(b)(3)
MUTUAL SAVINGS BANK
DEPOSITS
Bank deposits generally. See BANK
ACCOUNTS/DEPOSITS
Nonprobate transfers, as, 1.5-14
NATIONAL BANK DEPOSITS
Bank deposits generally. See BANK
ACCOUNTS/DEPOSITS
Nonprobate transfers, as, 1.5-13; Form
1-2
NATURAL RESOURCES
Oregon estate/inheritance tax credit. See
(OREGON)
NECESSARIES
See SUPPORT
NEWSPAPERS AND
DELIVERABLES
Preadministration handling of,
3.5-3
SI-35
2012 Revision

NINETY-DAY LETTER
Federal estate tax, 12.2-11(e)
NO-CONTEST CLAUSES
See IN TERROREM CLAUSES
NONJURY TRIALS
Will contests, 15.2-1(f)
NONPROBATE PROPERTY
Annuities, 1.6-4
Business assets, 1.5-2
Contracts requiring payment to survivor,
1.6-1(d)
Definition of, 1.3
IRAs (individual retirement accounts),
1.6-4
Joint bank accounts, 1.6-1(e)
Life insurance, 1.6-3
Multiple-party bank accounts, 1.6-1(e)
Personal property, 1.6-1(b)
Probate of, 1.7
Real property, 1.6-1(a)
Retirement plans, 1.6-4
Social Security benefits, 1.3, 1.6-5,
8.2-5(d)(3)
Transfers of. See NONPROBATE
TRANSFERS
Types of, 1.6
U.S. savings bonds, 1.6-2
Affidavits of heirship, 1.5-3. See also
AFFIDAVITS OF HEIRSHIP
Bank accounts/deposits
Form 1-2
Generally, 1.5-13
Multiple-party accounts, 1.6-1(e)
Bearer bonds, 1.5-17
Cash on hand, 1.5-2
Closely held businesses, 1.5-7
Community property, 1.5-11
SI-36
2012 Revision
Credit union deposits, 1.5-14

Disclaimer wills, 1.5-10
Household goods, 1.5-2
Indemnification agreements, 1.5-6
Jewelry, 1.5-2
Money due from state of Oregon, 1.5-16
Motor vehicles, 1.5-12
Mutual savings bank deposits, 1.5-14
National bank deposits
Form 1-2
Generally, 1.5-13
Overview of, 1.5-1
Personal property, 1.5-2
Pets, 1.5-18
Purpose of, 1.5-1
Real property
Right of survivorship property,
1.6-1(a) to 1.6-1(e). See also
JOINTLY OWNED PROPERTY;
TENANCIES BY THE ENTIRETY
Title insurance, 1.5-8
Transfer of death deeds, 1.5-9
Settlement agreements, 1.5-5
Small-estate affidavits, 1.5-4. See also
Sole proprietorship equipment, 1.5-2
Title to property, 1.5-1
Trust company deposits
Form 1-2
Generally, 1.5-13
Untitled assets, 1.5-2
U.S. savings bonds, 1.6-2
Wages, 1.5-15
NONRESIDENT ALIENS
Generation-skipping transfer tax, 13.8-4
Inheritance by, 8.1-6
NONRESIDENT DECEDENTS
Ancillary administration. See
before, 14.3-4

or after, 14.2-3
Foreign wills
Contesting, 5.2-4(e), 8.4-2, 15.2-2
Probate of, 5.2-2(b), 5.2-4(e)
Personal representatives. See FOREIGN
Taxes
Domicile disputes, settlement of,
6.7-1
above
Foreign death taxes, recovery of,
6.7-3
Overview, 6.7
NOTES
See also BORROWING MONEY
12.2-12(d), 12.2-12(d)(1)
NOTICE(S)
Absentees estates. See ABSENTEES
ESTATES
Affidavit of publication, Form 5-16
Affidavit of proof of delivery or mailing,
Forms 5-12, 5-13
Claims against estates. See CLAIMS
AGAINST ESTATES
Department of Human Services, to,
2.5-1, 5.2-8, 7.3-1(a)
Department of State Lands, to, 5.2-8
deficiencies, 14.4-4(a)
Failure to give, 2.5-7, 7.3-1(b)
11.3-2
Guardians, to, 2.5-2
Health Authority, to, 2.5-1, 5.2-8
Hearings, of, 2.5-1. See HEARINGS
Income taxes, 7.6-3(a)
Incompetent persons, to, 2.5-2

Interested persons, to
Failure to notify, 7.3-1(b)
Failure to publish notice, 7.3-2(b)
Overview, 2.5-1, 7.3-1(a)
Probate administration, notice of, 1.2,
4.2-5, 5.2-4(g), 5.2-5(a); Form
5-15. See also PROBATE
PROCEEDINGS
Proof of delivery or mailing, 7.3-1(a)
Publication of notice, 7.3-2
Successor representatives, 7.3-2(c)
Lawyers responsibilities, 3.2
Mailing of, 2.5-3
Manner of giving, 2.5-3; Appendix 2B
Minors, to, 2.5-2
Overview of, 2.5-1
Personal delivery of, 2.5-3
Probate proceedings. See PROBATE
PROCEEDINGS
Proof of, 2.5-5
Publication of notice
Costs of, 2.8-1
Failure to publish, 7.3-2(b)
Generally, 2.5-3
Interested persons, to, 7.3-2(a)
Successor personal representatives,
7.3-2(c)
Real property, sale of, 10.8-1(a),
10.8-1(b)
Reopening an estate, petition for,
11.10-3; Form 11-13
Successor personal representatives
Generally, 10.11-3
Publication of notice, 7.3-2(c)
Support, for, 7.5-2(b)
Table of requirements, Appendix 2B
Time for giving, 2.5-3; Appendix 2B
Waiver of, 2.5-6
Will contests, 7.3-1(a)
OBJECTIONS
See FINAL ACCOUNTING
SI-37
2012 Revision

OFFSET AND RETAINER
Debts due decedent, 11.8-3(a), 11.8-3(b)
Defenses, 11.8-3(d)
Priority of right, 11.8-3(c)
OLDER PERSONS
VULNERABLE PERSONS
ORAL CONTRACTS
Contracts to make wills, 4.2-5, 4.2-5(c)
ORDERS
See JUDGMENTS AND ORDERS
OREGON CLEANUP STATUTE
Environmental contamination, 10.8-4(c)
OREGON ESTATE TAX
See ESTATE/INHERITANCE TAX
(OREGON)
OUT-OF-STATE ASSETS
Inventory of assets, 7.4-4
PARENTAL NEGLECT
PARENTS
Intestate share, 4.1-2(c)
Issues intestate share, 4.1-2(d)
PARTIES
Declaratory judgment proceedings
Defendant parties, 8.2-3(b)(2)
Overview, 8.2-3(b)(3)
Survival of actions, 15.3-7(b)
Will contests, 15.2-1(a), 15.2-1(c)
SI-38
2012 Revision
PARTNERSHIP INTERESTS
Basis adjustments in, 7.6-6(n)
Collection of documents evidencing,
3.4-2
Continuation of, 10.10-1
Decedent, of, 10.10-4(b). See also
Dissolution of, 10.10-4(b)
Elective share, election of, 8.2-5(b)
14.2-6(b)(3), 14.3-4, 14.3-5
Federal estate tax, 12.1-3(d)(1)-(3),
12.2-11(b), 12.2-12(f)
Generation-skipping assignment rules,
13.3-1
Minority, controlling interests in,
10.10-3(b)
Partial disclaimer of, Form 8-4
Probate property, as, 1.3
S Corporation stock, transfer of,
7.1-3
Transfers of, 1.5-7
Winding up affairs of, 10.10-4(b)
PAYMENT-ON-DEATH
ACCOUNTS
Nonprobate transfers, 1.6-1(e)
PENALTIES
14.4-3
Overvaluing assets, 7.4-2(d)
Undervaluing assets, 7.4-2(d)
PERFECTION OF TITLE
Chain of title, 1.4-2
Community property, 4.3-2(b). See also
COMMUNITY PROPERTY
PERISHABLE PROPERTY
Escheated property, 4.1-2(g)

Special administrators
Appointment of, 6.1-3
Power to sell property, 6.1-5
PERSONAL PROPERTY
Ancillary administration
Release of bank accounts, 6.6-1(d)(2)
Release to foreign personal
representative, 6.6-1(d)(1)
Delivery to heirs or devisees, 3.5-5
Inventory of assets, 7.4-3(g)
Nonprobate property, 1.6-1(b)
1.6-1(b)
Sale of
Order authorizing sale, Form 10-4
Petition of personal representative,
Form 10-3
Title to property, 8.1-1. See also TITLE
TO PROPERTY
Transfer of
Small-estate affidavits, 5.3-4(a)
Actions against
Claimants of estate assets, by,
7.3-3(b)
Indemnification from liability,
7.3-3(b)
Waiver of, 7.2-4(b)(3), 7.2-4(b)(4)
Application for instructions by, 2.7-1
Appointment of
Department of State Lands, 5.2-3,
5.2-5(a)
Disqualified persons, 5.2-5(b)
Failure to give notice of, 2.5-7
Generally, 1.2
Intestate estates, Form 5-8
Limited judgment, Forms 5-7, 5-8
Petition for appointment, below
Preferences, 5.2-5(a)
Successors, 5.2-10(a)
Testate estates, Form 5-7
Who may be appointed, 1.2, 5.2-5(a)
Wrongful death actions, 15.3-2(a),
15.3-2(c), 15.3-7(c)
Assets. See also ASSETS
Ancillary proceedings, 7.4-6
Commingling of, 7.1-3, 7.2-4(a)(1)
Division of responsibilities, 7.1-3
Encumbered assets. See ENCUMBERED ASSETS
Identification of, 7.4-1
Inventory of. See INVENTORY OF
ASSETS
Reporting of, 7.4
Responsibilities regarding, 7.1-3
Sale of, 7.1-3
Attorney fees, 2.8-5
Authority of
Collection of estate assets, 10.9-3. See
also COLLECTION OF
ESTATE ASSETS
Copersonal representatives, 10.2-5(c)
Decedents businesses/ventures,
10.10-1. See also
BUSINESS(ES) OF
DECEDENT
Duties and obligations, below
Powers, below
Probate Code under, 10.2-5(a)
Will, under, 10.2-5(b)
Bank accounts, lawyers instructions as
to, 7.1-3
Beneficiaries, transactions with,
7.2-4(d)(2)
Bonds, surety
Amount of, 5.2-6(b)
Costs of, 2.8-3
Court approval, 5.2-6(d)
Court discretion, 5.2-6(a)
Creditworthiness and, 5.2-6(c)
Decrease in, 5.2-6(a), 5.2-6(c)
Desirability of, 3.6-5
Form of, Form 5-9
SI-39
2012 Revision

Increase in, 5.2-6(a), 5.2-6(c)
Limited judgment proceedings,
5.2-5(d)
Local rules, 5.2-6(a)
Necessity of, 5.2-6(a)
New bond, 5.2-6(c)
Personal surety bond, 5.2-6(c); Form
5-9
Release of surety, 11.9-2
Waiver of, 5.2-6(a)
Borrowing money, 10.5-1(b). See
BORROWING MONEY
Breach of fiduciary duty, 2.7-4(b),
7.2-1
Business(es) of decedent, continuation
of. See BUSINESS(ES) OF
DECEDENT
Cash flow, 7.1-3
Claims against estates. See CLAIMS
AGAINST ESTATES
Claims against representatives, waiver
of, 7.2-4(b)(3), 7.2-4(b)(4)
Commingling of assets, 7.1-3,
7.2-4(a)(1)
Compensation
Accounting for, 11.6-5. See also
ACCOUNTING(S)
Additional, 11.6-5(b)
Amount of, 2.8-4(a)(1)
Denial of, 2.8-4(a)(2)
Election of, 7.6-6(c)
12.1-4(e)(1)
Overview of, 7.6-6(c)
Waiver of, 7.6-6(c)
Contractual liability, 7.2-4(c)(1)
Copersonal representatives
Authority of, 10.2-5(c)
Liability for, 7.2-4(a)(1), 7.2-4(a)(5)
Protection of persons dealing with,
10.2-5(c)
Costs, 11.6-7
Deeds, 11.8-2(a); Form 11-6
Department of State Lands (DSL), 5.2-3,
5.2-5(a)
SI-40
2012 Revision
Discharge from liability

liability, 14.4-1
Final account, after approval of,
7.2-4(b)(2)
Partial distribution, after, 7.2-4(b)(1),
11.8-1(a)
Discharge of representative
Exceptions, 11.9-2
Finality of judgment, 2.9-6
Procedure, 11.9-1
Supplemental judgment, 11.9-2; Form
11-11
Disclaimers
Estate tax liability, 14.4-1
Disqualified persons, 5.2-5(b)
Duties and obligations
Breach of fiduciary duty, 2.7-4(b),
7.2-1
Encumbered assets, as to, 10.11-3.
See also ENCUMBERED
ASSETS
Fiduciary duties, 7.2-1
General duties, 10.2-3
Lawyers instructions, 7.1-3
Notices generally. See NOTICE(S)
Overview, 10.2-1
Encumbered assets, 10.11-3. See
ENCUMBERED ASSETS
Environmental contamination
Lawyers instructions for
Liability of representative,
7.2-4(a)(3), 10.8-4(a), 10.8-4(b)
Protection from liability, 10.8-4(d)
Escheated property, 5.2-3, 5.2-5(a)
Estoppel, 7.2-4(b)(4)
Expenses of, 2.8-4(b)
Fiduciary duties, 7.2-1
Foreign. See FOREIGN PERSONAL
REPRESENTATIVES

Generation-skipping transfer(s) (GST),
13.2-5
Indemnification from liability, 7.3-3(b)
Insurance
Lawyers instructions as to, 7.1-3
Interim representatives fees, 11.6-5(c)
SUCCESSION
Investment of estate funds. See
INVESTMENTS
Lawyers for
Client, personal representative as,
7.1-1
Division of responsibilities, 7.1-2,
7.1-3
Instructions for personal
Overview, 7.1-1
Letters of administration. See LETTERS
OF ADMINISTRATION/
TESTAMENTARY
Letters testamentary. See LETTERS OF
ADMINISTRATION/
TESTAMENTARY
Liability of
Bases for, 7.2-4(a)(1)
Consent defenses, 7.2-4(b)(4)
Copersonal representatives acts, for,
7.2-4(a)(1), 7.2-4(a)(5)
Defenses
Approval of final account,
7.2-4(b)(2)
Discharge after partial
distribution, 7.2-4(b)(1)
Estoppel and waiver, 7.2-4(b)(4)
Laches, 7.2-4(b)(3)
Discharge from liability, above
Environmental liability, 7.2-4(a)(3),
10.8-4(d)
Federal estate tax, for. See FEDERAL
ESTATE TAX
Personal liability, 7.2-3, 7.2-4
Principles of, 7.2-4
Self-dealing, for, 7.2-4(d)

Specific situations, 7.2-4(a)
Third persons, to, 7.2-4(c)(1),
7.2-4(c)(2)
Tort liability, 7.2-4(c)(2)
Waiver of right to complain,
7.2-4(b)(4)
Mail, 7.1-3
Malpractice, 1.2
Nature of position, 10.1
Nonresident decedents. See FOREIGN
Nonresidents, 5.2-5(c)
Notices generally. See NOTICE(S)
Obligations. Duties and obligations,
above
Outline of estate plan, 7.1-3
Personal liability
Debts due decedent, for, 7.2-4(a)(1)
Depreciation in property value, for,
7.2-4(a)(1)
Federal estate tax, for. See FEDERAL
ESTATE TAX
Interested persons, to, 7.2-4
Third persons, to, 7.2-4
Petition for appointment
Contents of, 3.6-5
Filing of, 3.6-5
Form of, Form 5-3
Intestate estates, 5.2-2(b), Form 5-4
Testate estates, 5.2-2(b)
Venue, 2.3-2
Wrongful death actions, 15.3-2(b),
15.3-7(c); Form 15-1
Petition for instructions. See PETITION
FOR INSTRUCTIONS
Powers
Borrowing money, 10.5-1(b)
Commencement of, 10.2-2
General powers, 10.2-4
Overview of, 10.2-1
Preference in appointment of, 5.2-5(a)
Probate duties, 1.2
SI-41
2012 Revision

Protection of property
Delivery of personalty to
devisees/heirs, 3.5-5
Power before appointment, 3.5-1
Purchase of estate property, 7.2-4(d)(1)
Removal of
Discretionary, 5.2-9(a)
Grounds, 5.2-9(a), 7.2-2
Mandatory, 5.2-9(a)
Overview, 7.2-2
Reopening an estate, 11.10-2
Search for claimants
Checklist, Form 9-2
Failure to give notice, 7.3-3(b)
Failure to search, 7.3-3(b)
Notice to claimants, 7.3-3(a), 7.3-3(b)
Overview of, 1.2, 7.2-4(a)(4), 9.3-3
Proof of delivery or mailing of notice,
7.3-3(a)
Time for, 7.3-3(a)
Securities, transfer of, 10.6-3(a)
Self-dealing
Purchase of estate property,
7.2-4(d)(1)
Transactions with beneficiaries,
7.2-4(d)(2)
Small-estate proceedings
Devisees liability to representative,
5.3-8(b)
Failure to appoint representative,
effect of, 5.3-8(b)
Heirs liability to representative,
5.3-8(b)
Successors
Appointment of, 5.2-10(a)
Letters of
administration/testamentary,
5.2-10(b)
Notices, 5.2-10(d), 10.11-3
Powers of, 5.2-10(c)
Tax matters
SI-42
2012 Revision
Payment of taxes, 10.3-7

Third persons, liability to
Trust companies as, 11.5-6
Venue
Accounting by displaced
representative, 2.3-4(d)
Petition for appointment, 2.3-2
Will contests, 15.2-1(c)
Wrongful death actions. See WRONGFUL DEATH ACTIONS
PETITION(S)
Declaration under penalty of law, 2.4-2
Distribution of estate assets
Partial distributions, 11.8-1(a)
Final distribution, general judgment of,
Forms 11-2 to 11-4
Form of, 2.4-1
Instructions, for. See PETITION FOR
INSTRUCTIONS
Interested-person requirement, 2.4-3
Intestate administration, for, Form 5-4
Personal property, sale of, Form 10-3
Personal representative, appointment of.
Probate, for. See PROBATE PROCEEDINGS
Real property. sale of, Form 10-3
Reopening an estate, for, 11.10-3; Form
11-17
Special administrators, appointment of,
Form 6-1
Stocks/bonds, order requiring testimony
as to, Form 10-5
Summary closure, for, 6.3-2, 6.3-3;
Form 6-7
Support
Generally. See SUPPORT
Support during administration, below

When required, 2.4-4; Appendix 2A
Who may file, 2.4-3
PETITION FOR INSTRUCTIONS
Claims against estates, 9.5-5
Claims of interest, 8.2-2
Final accounting, 11.3-3
Form of application, Form 10-2
PETS
Custody of decedents pet, 3.5-4, 10.3-3
Inventory of assets, 10.3-3
Protection and safekeeping of, 3.5-3,
3.5-4, 10.3-3
PHYSICAL ABUSE
See also ABUSE OF VULNERABLE
PERSONS
Definition of, 15.4
POLLUTION
See ENVIRONMENTAL
CONTAMINATION
POOLED INCOME FUNDS
Generation-skipping transfers, 13.2-3
POWER OF ATTORNEY
Anatomical gifts, 3.3-1(a), 3.3-1(b)
Delivery of will to attorney-in-fact,
4.2-8(b)
Election of elective share, 8.2-5(b)
Federal estate tax protests, 12.2-11(d)
Simultaneous death clauses, 4.1-3(b)
POWERS OF APPOINTMENT
Abusers rights, 8.1-4(b)
ESTATE TAX
Generation-skipping transfer (GST) tax,
13.4-2, 13.7-1
Nontaxable gifts, as, 13.4-4
Slayers rights, 8.1-4(b)

Will contests, 8.4-3
Wills
General disposition, effect of,
4.2-2(a), 4.2-7(k)
Residuary clause, effect of, 4.2-7(k)
PREADMINISTRATION
PROCEDURES
Anatomical gifts, see ANATOMICAL
GIFTS
Autopsy, 3.3-2
Collection of documents/information,
3.4-1 to 3.4-3
Discovery of will, 3.4-1
Disposition of remains. See
Funeral, see FUNERALS
Lawyers role, 3.2
Overview of, 3.1
Protection of property. See
PREARRANGED FUNERAL
PLANS/TRUSTS
PRESUMPTIONS
Absentees/missing persons, 3.6-2(a),
4.1-2(g), 6.5-1, 7.3-2(a)
Community property, 4.3-1, 4.3-5
Fair-market value, 12.2-12(d)(1)
Uniform Simultaneous Death Act,
4.1-3(b)
PRETERMITTED HEIRS
Adopted person, 4.2-7(j)
Definition of, 4.2-7(j)
Devises, 4.2-7(j)
Intestate succession, 4.1-3(a)
PRIMARY RESIDENCE
Homestead exemption, 7.5-1(a)
Household goods. See HOUSEHOLD
GOODS
SI-43
2012 Revision

Insurance, 10.3-4
Occupancy of
Children or minors, by, 6.2-1, 7.5-1
Duties of occupants, 7.5-1(b)
Surviving partner/spouse, by, 6.2-1,
7.5-1
PROBATE COMMISSIONER
Appointment of, 2.2-3(c)(2)
Finality of orders, 2.2-3(c)(4)
Identity of, 2.2-3(c)(2)
Orders of
Finality, 2.9-2
Overview, 2.7-3
Overview of position, 2.2-3(c)(1)
Powers of, 2.2-3(c)(3)
Purpose of, 2.2-3(c)(1)
PROBATE COURTS
Depositions, authority to order, 2.6-2(b)
Jurisdiction. See JURISDICTION
Powers of, 2.2-2(c)
Stenographic records, 2.6-3
Subpoena powers, 2.6-2(b)
Summary determinations. See
Venue. See VENUE
PROBATE PROCEEDINGS
Absentees estates
Overview, 6.5-1
Statutory procedure, 6.5-2
Affidavits
Claiming successor of small estate,
Form 5-17
heirs and devisees, Form 5-12
Services, Form 5-13
Alternatives to, 3.6-1. See also
AFFIDAVITS OF HEIRSHIP;
Checklist, 3.6-6(b); Appendix 3C
SI-44
2012 Revision
Commencement of
Critical dates checklist, Form 5-1
Petition for probate, below
Common form, in, 5.2-4(a)
Contested wills. See WILL CONTESTS
County court proceedings, 5.2-1(a)
Creditors of estate, 1.2
Desirability, 1.4-1 to 1.4-6
Dispute resolution, 1.4-3
Final accounting. See FINAL
ACCOUNTING
Foreign wills, 5.2-2(b), 5.2-4(e)
Hearings. See HEARINGS
International wills, 5.2-4(f)
Jurisdiction
Probate jurisdiction, 2.2-3(a),
5.2-1(a)
Limited judgment(s)
Bond requirements, 5.2-5(d)
Decisions to which applicable, 2.9-9
Intestate estates, 5.2-5(d); Form 5-8
Mailing of, 5.2-5(d)
Overview of, 2.9-9, 5.2-5(d)
Testate estates, 5.2-5(d); Form 5-7
Need for, 1.4-1 to 1.4-6
Nonprobate property, 1.7. See also
NONPROBATE PROPERTY
Notices. See also NOTICE(S)
Affidavits of proof of delivery or
mailing, Forms 5-12, 5-13
Contracts to make wills, interests
arising from, 4.2-5
Department of State Lands, to, 5.2-8
Generally, 2.5-1
Hearing on petition, 5.2-2(a)
Information to heirs and devisees,
Form 5-10
Interested persons, to, 1.2, 4.2-5,
5.2-4(g), 5.2-5(a), 7.3-1(a); Form
5-15
Services, to, 5.2-8
Oregon Health Authority, to, 5.2-8

Required notices, 1.2, 5.2-8
Solemn form, probate in, 5.2-4(g)
Venues to publish, 5.2-1(b)
Waiver of notice of information,
Form 5-14
Affidavit of mailing information to
department, 5.2-8, 5.3-3(a); Form
5-13
Notice of probate proceeding, 5.2-8,
7.3-1(a)
Overview of, 1.1, 1.2, 5.1
Personal representatives. See PERSONAL REPRESENTATIVES
Petition for probate
Contents of, 5.2-2(b)
Contracts to make wills, interests
arising from, 4.2-5
Declaration required, 2.4-2, 5.2-2(b)
Filing of, 5.2-2(a)
Form of, 2.4-1, 5.2-2(b); Form 5-3
Information required in, 5.2-2(b)
Last page of, 5.2-2(b)
Overview of, 5.2-2(a), 8.4-1,
15.2-1(a)
Who may file, 2.4-3, 5.2-2(a)
Probate, definition of, 1.1
Probate commissioner. See PROBATE
COMMISSIONER
Probate jurisdiction, 2.2-3(a), 5.2-1(a)
Proof of will
Affidavit of attesting witness,
5.2-4(a), 5.2-4(b); Forms 5-5,
5-6
Contested will, 5.2-4(h)
Foreign will, 5.2-4(e)
International will, 5.2-4(f)
Probate in solemn form, 5.2-4(g)
Self-proving will, 5.2-4(b)
Testimony of attesting witness,
5.2-4(c)
Small-estate proceedings. See SMALLESTATE PROCEEDINGS
Solemn form, in, 5.2-4(g)

Special administrators. See SPECIAL
ADMINISTRATORS
Summary closure. See SUMMARY
CLOSURE
Support during
Extent of, 6.2-3
Nature of, 6.2-3
Form 6-5
6-5
Overview, 6.2-1
Petition for, 6.2-2, 7.5-2(a); Form 6-3
Practice tips, 7.5-2(a)
6.2-1
Priority of, 6.2-1
Transfer to circuit court, 5.2-1(a)
Venue. See VENUE
PROBATE PROPERTY
Definition of, 1.3
Nonprobate transfers of. See NONPROBATE TRANSFERS
Ownership of, 1.3
Title to, 1.3. See also TITLE TO
PROPERTY
Valuation of, 1.4-6. See also VALUATION OF PROPERTY
PROFIT-SHARING PLANS
PROOF OF WILL
Affidavit of attesting witness
5-5, 5-6
SI-45
2012 Revision

Testimony of attesting witness, 5.2-4(c)
PROPERTY
See also ASSETS
Escheated property. See ESCHEATED
PROPERTY
Nonprobate. See NONPROBATE
PROPERTY
Personal. See PERSONAL PROPERTY
Probate. See PROBATE PROPERTY
Protection of. See PROTECTION OF
PROPERTY
Real. See REAL PROPERTY
Special marital property. See SPECIAL
MARITAL PROPERTY
PROPERTY TAXES
Federal estate tax deduction, 12.1-4(g)
Final accounting, payment as
prerequisite to, 11.3-2
Veterans exemption, 7.6-3(b), 7.6-4(a)
Delivery of personalty to devisees/
heirs, 3.5-5
Power before appointment, 3.5-1
Pets, 3.5-3, 3.5-4
Safekeeping arrangements, 3.5-3
Special arrangements, 3.5-3
PROTECTIVE ORDERS
Elective share, 8.2-5(f)
QTIP ELECTIONS/PROPERTY
Bypass trusts, 7.6-5
Credit shelter trusts, 14.4-10
Decision to make election, 7.6-5
SI-46
2012 Revision
Estate/inheritance tax (Oregon), 14.2-3,

14.3-3, 14.4-10, 14.4-11
Federal estate tax, 12.1-5(c)(3),
12.2-12(f), 12.2-12(m)
Generation-skipping transfer tax, 13.2-1,
13.5-3(a), 13.9-2
Marital deduction, 7.6-6(k), 12.1-1,
12.2-12(m)
QTIP trusts
12.2-12(c)(3)
14.2-3, 14.3-3, 14.4-10
Estate tax inclusion period,
13.5-3(a)
12.1-5(c)(3), 12.2-12(c)(3)
Generation-skipping transfers,
13.5-3(a), 13.9-2
Life interests, 12.1-5(c)(2),
12.1-5(c)(3)
Nonresident surviving spouses,
14.2-3
Reverse QTIP elections, 13.2-1,
13.6-2
QUALIFIED DOMESTIC TRUSTS
12.1-5(c)(5)
QUALIFIED TERMINABLE
INTEREST PROPERTY
See QTIP ELECTIONS/PROPERTY
REAL PROPERTY
Business real estate. See BUSINESS
REAL ESTATE
Deeds. See DEEDS
Encumbrances on, 7.4-3(b). See also
MORTGAGES
Environmental contamination. See
ENVIRONMENTAL
CONTAMINATION

Farm property. See FARM PROPERTY
ESTATE TAX
Insurance, 10.3-4
Inventory of assets, 7.4-3(b)
Leases, 10.8-2
Mortgages on. See MORTGAGES
Nonprobate property, 1.6-1(a)
1.6-1(a). See also JOINTLY
OWNED PROPERTY;
Sale of
Accountings, 11.5-4(e)
Court order, 10.8-1(a)
Deed of personal representatives,
11.8-2(a); Form 11-6
Failure to sell property, 10.8-1(c)
Hearing, 10.8-1(a)
Liens, 10.8-1(d)
Notice, 10.8-1(a), 10.8-1(b)
Order authorizing sale, Form 10-4
Overview, 10.8-1(a)
Petition of personal representative,
Form 10-3
Service of notice, 10.8-1(b)
Voidable sales, 10.8-1(e)
Small-estate affidavit(s)
Claiming successors, joinder of,
5.3-3(b)
Transfer of property, 5.3-4(b)
Title insurance, 1.5-8, 6.6-1(c)
Title to, 8.1-1. See also TITLE TO
PROPERTY
Transfer of
Deeds. See DEEDS
Sale of property. Sale of, above
Small-estate affidavits, 5.3-4(b)
Undeveloped realty, 10.8-3
REMAINS
Autopsies, 3.3-2
REMAINS

Holding longer than 24 hours, 3.3-3(d)
REMARRIAGE
Power of appointment, defeat of,
12.1-5(c)(2)
Will, revocation of, 4.2-6(e)
REOPENING AN ESTATE
Grounds for, 11.10-1
Intestate estates, 11.10-1(b)
Notice of petition to reopen estate,
11.10-3; Form 11-13
Order directing notice of petition to
reopen estate, 11.10-3; Form 11-12
Order reopening estate
Effect of, 2.9-7
Generally, 11.10-3; Form 11-14
Petition to reopen estate, 11.10-3; Form
11-17
Prior claims, 11.10-4
Procedure for, 11.10-3
Subsequently discovered assets
Small-estate proceeding,
11.10-1(a)(2)
11.10-1(a)(3)
Will later discovered, 11.10-1(b)
RETAINER
See OFFSET AND RETAINER
RETIREMENT PLANS
See also specific type of plan
REVIVAL OF WILLS
Invalid wills, 4.2-6(c)
Revoked wills, 4.2-6(c)
REVOCABLE TRANSFERS
Federal estate tax, 12.1-3(d)(1),
12.1-5(c)(5)
SI-47
2012 Revision

Generation-skipping transfers. See
GENERATION-SKIPPING
TRANSFER(S) (GST)
Personal property. See PERSONAL

PROPERTY
Real property. See REAL PROPERTY
REVOCATION OF WILLS
Annulment of marriage, by, 4.2-6(e)
Contracts not to revoke wills. See
CONTRACTS NOT TO REVOKE
WILLS
Dissolution of marriage, by, 4.2-6(e)
Executory contract of sale of devised
property, 4.2-6(f)
Express revocations, 4.2-6(b)
Governing statutes, 4.2-6(a)
Marriage, by, 4.2-6(d)
Revival of revoked will, 4.2-6(c)
Will contest, basis for, 15.2-2(f)
SECURED CLAIMS
Claims against estates, 9.4-2(d), 9.4-4(b)
RIFLES
RIGHT OF SURVIVORSHIP
PROPERTY
PROPERTY; TENANCIES BY
THE ENTIRETY
Nonprobate property, 1.6-1
RULE AGAINST PERPETUITIES
Grandfathered trusts, 13.7-2
Simultaneous death law limitations,
4.1-3(b)
Statement of, 13.7-1
SECURITIES
See also STOCKS AND BONDS
Overview of, 10.6-1
Transfer of
Buyer, to, 10.6-3(b)
Co-owner, to, 10.6-3(c)
Direct transfers, 10.6-2
Distributee, to, 10.6-3(d)
Documentation requirements, 10.6-2
Indemnification agreements, 10.6-3
Indorsement/instructions, 10.6-2
Laws affecting, 10.6-2
Mechanics of, 10.6-3
Overview, 10.6-1
Personal representative, to, 10.6-3(a)
Registration, 10.6-2
Requirements, 10.6-2
Signature guarantees, 10.6-2
Signatures, 10.6-2
SELF-DEALING BY PERSONAL
REPRESENTATIVES
Purchase of estate property, 7.2-4(d)(1)
Transactions with beneficiaries,
7.2-4(d)(2)
SELF-PROVING WILL
Affidavit of attesting witness, 5.2-4(b)
SAFE-DEPOSIT BOXES
Trusts, 3.4-1
Wills, 3.4-1, 4.2-8(b)
SALES
Assets, of, 7.1-3
Devised property, executory contracts
for sale of, 4.2-6(f)
SI-48
2012 Revision
SENIOR CITIZENS
VULNERABLE PERSONS
SEPARATED SPOUSES
Elective share, 8.2-5(h)

SEPARATION AGREEMENTS
Contracts to make wills, 4.2-5(c)
SETTING ASIDE WHOLE ESTATE
See SUMMARY CLOSURE
SETTLEMENT
Indebtedness to estate, 10.9-2
Wrongful death actions, 15.3-2(c);
Forms 15-1 to 15-6
SETTLEMENT AGREEMENTS
Final distribution(s), 11.8-2(d)
SEVERANCE OF INTERESTS
SHIPS
See BOATS AND OTHER VESSELS
SILVER BULLION
SIMULTANEOUS DEATH LAW
SLAYERS
Intestate succession rights, 4.1-3(g)
Rights to receive property
Limitations on, 8.1-4(a)
Prior law, 8.1-4(c)
Property interests covered, 8.1-4(b)
See also SMALL-ESTATE
PROCEEDINGS
Affiants
Duties of, 5.3-5
Powers of, 5.3-5
Amended affidavits, 5.3-7
Claiming successor of estate, of, Forms

5-17, 5-18
Contents of, 5.3-3(a)
Creditors, filing by, 5.3-3(b)
Errors in, 5.3-3(a)
Filing of
When affidavit may be filed, 5.3-3(c)
Where affidavit may be filed, 5.3-3(c)
Who may file, 5.3-3(b)
Omissions in, 5.3-3(a)
Overview of, 5.3-1
Real property
Claiming successors, joinder of,
5.3-3(b)
Transfer of property, 5.3-4(b)
Safe-deposit box of decedent, effect of,
5.3-2
Supplemental affidavits, 5.3-3(a), 5.3-7
Transfers of property
Overview, 5.3-4
Personal property, 5.3-4(a)
When affidavit may be filed, 5.3-3(c)
When useful, 5.3-1
Where affidavit may be filed, 5.3-3(c)
Who may file, 5.3-3(b)
Advantages of, 5.1
Affidavits. See SMALL-ESTATE
AFFIDAVIT(S)
Bar of claims against property, 5.3-8(d)
Creditors
Affidavit of claiming successor of
estate, Forms 5-17, 5-18
Affidavits, filing of, 5.3-3(b)
Bar of claims against property,
5.3-8(d)
Claims, 5.3-7
Devisees liability to, 5.3-8(a)
Heirs liability to, 5.3-8(a)
Rights and remedies, 5.3-7
Estates qualifying for, 5.3-2
Generally, 5.3-1
SI-49
2012 Revision

Omitted devisees/heirs, 5.3-8(c)
Overview of, 5.1, 5.3-1
Devisees liability to, 5.3-8(b)
Failure to appoint, effect of,
5.3-8(b)
Heirs liability to, 5.3-8(b)
Purchasers of property, 5.3-6
Purpose of, 5.1
Safe-deposit boxes, 5.3-2
Subsequently discovered assets,
11.10-1(a)(2)
Summary determinations, 5.3-7
Transfers of property, see
SOCIAL SECURITY BENEFITS
Nonprobate property, as, 1.3, 1.6-5,
8.2-5(d)(3)
SOLE PROPRIETORSHIPS
See also BUSINESS(ES) OF
DECEDENT
Nonprofessional, 10.10-4(d)(1)
Professional, 10.10-4(d)(2)
SPECIAL ADMINISTRATORS
Accountings, 6.1-6
Appointment of
Duration, 6.1-5
Grounds, 6.1-3
Jurisdiction, 6.1-2
Overview, 6.1-1
Petition for appointment, Form 6-1
Qualifications, 6.1-4
When appropriate, 6.1-3
Bond requirement, 6.1-4
Charges and expenses, 6.1-6
Compensation of, 6.1-6
Disposition of remains, 3.3-3(b)
Duration of appointment, 6.1-5
SI-50
2012 Revision
Limitations of, 6.1-5

Powers of, 6.1-5
Protection of property, 3.5-2
Purpose of, 6.1-1
Qualifications of, 6.1-4
SPECIAL MARITAL PROPERTY
Estate/inheritance tax (Oregon), 7.6-5,
14.1-3, 14.2-3, 14.4-5(a), 14.4-10,
14.4-11
Overview of, 7.6-6(l)
SPECIAL-USE VALUATION (farm &
business property)
Appraisal required, 12.2-12(b)
Election and filing, 12.2-12(b)(2)
Overview of, 12.2-12(b), 12.2-12(b)(3)
Property qualifying for (farm & business
property), 12.2-12(b)
Recapture of realized tax savings,
12.2-12(b)(4)
Requirements for, 12.2-12(b)
SPOUSE(S)
Definition of, 4.1-2(a)(1)
Entireties property. See TENANCIES
BY THE ENTIRETY
Family home, occupancy of, 7.5-1
Marital deduction. See FEDERAL
ESTATE TAX
Remarried spouses
12.1-5(c)(2)
Separated spouses
Elective share, 8.2-5(h)
Separation agreements. See
SEPARATION AGREEMENTS
Simultaneous death of, 4.1-3(b)
Special marital property. See SPECIAL
MARITAL PROPERTY
Support. See SUPPORT
Surviving. See SURVIVING
PARTNER/SPOUSE

STAMP COLLECTIONS
STATE DEATH TAXES
Federal estate tax credit, 12.1-6(c)
Oregon. See ESTATE/INHERITANCE
TAX (OREGON)
STATE OF OREGON
Control of probate matters, 2.1
Escheats to. See ESCHEATED
PROPERTY
Money due from, 1.5-16
STATUTE OF LIMITATIONS
Claims against estates, 7.3-3(a)
Contracts to make wills, 4.2-5(b)
Table of time limitations, Appendix 2E
Will contests, 15.2-1(a)
STENOGRAPHIC RECORDS
Probate court proceedings, 2.6-3
STOCKS AND BONDS
Bearer bonds, 1.5-17
Broker accounts. See ACCOUNTING(S)
Closely held business interests. See
CLOSELY HELD BUSINESS
INTERESTS
ESTATE TAX
Fractional shares, 10.4-2(b)(2)
Inventory of assets, 7.4-3(c)
Mutual funds, shares in, 10.4-2(b)(3)
Nonprobate property, 1.6-1(c)
1.6-1(c)
Stock rights
Generally, 10.4-2(b)(1)
Voting rights in gifted stock,

12.1-3(d)(1)
Testimony as to
Order requiring testimony, Form 10-6
SUBPOENAS
Authority to issue, 2.6-2(b)
SUBSEQUENT MARRIAGE
12.1-5(c)(2)
SUBSEQUENTLY DISCOVERED
ASSETS
Small-estate proceeding, 11.10-1(a)(2)
11.10-1(a)(3)
SUCCESSOR PERSONAL
REPRESENTATIVES
Appointment of, 5.2-10(a)
Letters of administration/testamentary,
5.2-10(b)
Notices, 5.2-10(d), 10.11-3
Powers of, 5.2-10(c)
SUMMARY CLOSURE
Judgment(s), Form 6-8
Overview, 6.3-1
Petition for, 6.3-2, 6.3-3; Form 6-7
Procedure, 6.3-1, 6.3-3
Purpose of, 6.3-1
Statutory provisions, 6.3-2
Support in
Overview, 6.3-3; Form 6-7
Petition for support, Form 6-7
Appeal or review, 5.3-7
Claims against estates
Overview, 9.5-3, 9.5-6
Requests, Form 9-6
SI-51
2012 Revision

Finality of, 2.9-4
Procedure for, 2.6-2(c)
SUPERFUND STATUTE (CERCLA)
SUPPORT
Considerations in determining,
7.5-2(b)
Insolvent estates, 6.4-2
Modification of, 7.5-2(d)
Notice requirements, 7.5-2(b)
Petition for
Generally, 7.5-2(a)
Summary closure proceedings, Form
6-7
Temporary support, 6.2-2, 7.5-2(a);
Form 6-3
Priority of
Overview, 7.5-2(c)
Temporary support, 6.2-1
Setting apart entire estate for, 7.5-3. See
also SUMMARY CLOSURE
Summary closure
Overview, 6.3-3; Form 6-7
Petition for support, Form 6-7
Temporary support
Extent of, 6.2-3
Nature of, 6.2-3
Form 6-5
6-5
Overview, 6.2-1
Petition for, 6.2-2, 7.5-2(a); Form 6-3
Practice tips, 7.5-2(a)
6.2-1
Priority of, 6.2-1
Termination of, 7.5-2(d)
SI-52
2012 Revision
SURVIVAL OF ACTIONS
Appointment of administrator, petition
for, 15.3-7(c)
Parties, 15.3-7(b)
Tortfeasors death, effect of, 15.3-7(a)
SURVIVING PARTNER/SPOUSE
Common-law spouse, 4.1-2(a)(1)
Community property. See also
COMMUNITY PROPERTY
Property held by surviving spouse,
8.2-4(b)(2)
Disclaimers, 12.1-5(d); Form 8-3
Elective share. See ELECTIVE SHARE
Entireties property. See TENANCIES
BY THE ENTIRETY
Federal estate tax
Bequests, etc., to surviving spouse,
12.2-12(m)
Marital deduction. See FEDERAL
ESTATE TAX
Intestate share, with issue surviving,
4.1-2(a)(3)
Intestate share, with no issue surviving,
4.1-2(a)(2)
Primary residence, occupation of, 6.2-1,
7.5-1(a), 7.5-1(b)
Extent of, 6.2-3
Nature of, 6.2-3
Form 6-5
6-5
Overview, 6.2-1, 7.5-2(a), 7.b-2(b)
6.2-1, 7.5-1

Priority of, 6.2-1
Support of. See SUPPORT
Surviving spouse, definition of,
4.1-2(a)(1)
Wages of decedent-spouse, 1.5-15
SURVIVORSHIP
Contracts requiring payment to
survivors, 1.6-1(d)
Overview of, 8.1-2
Time of death
Deaths occurring before October 23,
1999, 8.1-2
Deaths occurring on or after October
23, 1999, 8.1-2
TAX COURT
Federal estate tax proceedings,
12.2-11(e)
TAX MATTERS
Accounting method, 7.6-6(d)
Claims against estates, 9.4-6(c)
Deductions
Availability of, 7.6-5
Estate/inheritance tax (Oregon). See
(OREGON)
ESTATE TAX
Income taxes. See INCOME TAXES
Disclaimers of interests, 8.3-2(c)
Due dates, 7.6-4(a)
Early stages of dealing with, 7.6
Elections, 7.6-6
Estate taxes. See
(OREGON); FEDERAL ESTATE
TAX
Final distribution(s), 11.8-2(b)
Fiscal year, 7.6-6(d)

Foreign death taxes
12.1-6(a), 12.1-6(f), 12.2-12(o),
12.2-12(r)
Recovery of, 6.7-3
Generation-skipping transfer (GST). See
GENERATION-SKIPPING
TRANSFER (GST) TAX
Income taxes. See INCOME TAXES
Inheritance taxes. See ESTATE
INHERITANCE TAX (OREGON)
Inventory of assets, 7.4-2(d)
Malpractice issues, 1.2
Nonresident decedents. See
NONRESIDENT DECEDENTS
Partnership elections, 7.6-6(n)
Payment of taxes, 10.3-7
Property taxes. See PROPERTY TAXES
Resolution of, 1.4-5
Special provisions, 7.6-5
Wills providing for payment of taxes,
4.2-7(f)
TEMPORARY GUARDIANS
Abused vulnerable persons, for,
15.4
Notice to, 2.5-2
PROPERTY
Federal estate tax
TESTATE ESTATES
See PROBATE PROCEEDINGS;
PROBATE PROPERTY; WILLS
SI-53
2012 Revision

THIRD PERSONS
Community property rights, 4.3-3
Personal representatives liability to
Generally, 7.2-5
TIME LIMITATIONS
Statute of limitations. See STATUTE OF
LIMITATIONS
Table of, Appendix 2E
TITLE INSURANCE
Real property, 1.5-8, 6.6-1(c)
TITLE TO PROPERTY
Chain of title
Affidavits of heirship, 1.5-3
Perfection of, 1.4-2
Personal representatives deed,
11.8-2(a)
Community property held by surviving
spouse, 7.4-3(i)
Perfection of title. See PERFECTION
OF TITLE
Probate property, 1.3
Survivorship statutes, 8.1-2. See also
SURVIVORSHIP
Vesting of title
Overview, 10.3-1
Survivorship statutes, 8.1-2. See also
SURVIVORSHIP
When title vests, 8.1-1
TORT LIABILITY
Personal representatives, 7.2-4(c)(2)
TRANSFER-ON-DEATH DEEDS
TRANSFERS OF PROPERTY
Completion of contract, for
Definitions, 10.7-1
SI-54
2012 Revision
General principles, 10.7-2

Limitations, 10.7-3
Method of transferring property,
10.7-4
Deeds. See DEEDS
ESTATE TAX
Mortgages, 10.7-4. See also
MORTGAGES
Nonprobate property. See
Real property. See DEEDS; REAL
PROPERTY
Securities. See SECURITIES
Small-estate affidavit(s)
Overview, 5.3-4
Personal property, 5.3-4(a)
TRUST COMPANIES
Deposits
Form 1-2
Generally, 1.5-13
Personal representatives, as, 11.5-6
TRUSTS
Credit-shelter trusts
Disclaimed property, 1.5-10
issues, 14.3-3, 14.4-10
Federal estate tax issues, 12.1-1
Devise to trust, lapse of, 8.1-5(b)
Election to be taxed as estate, 7.6-6(e)
ESTATE TAX
Generation-skipping transfer tax
Grandfathered trusts, modifications
to, 13.7-2
Severance to achieve inclusion ratio,
13.6-1(b)(4)
Generation-skipping transfers, 13.2-2

Payment-on-death accounts, 1.6-1(e)
QTIP trusts
12.2-12(c)(3)
14.2-3, 14.3-3, 14.4-10
12.1-5(c)(3), 12.2-12(c)(3)
Generation-skipping transfers,
13.5-3(a), 13.9-2
Life interest with power of
Nonresident surviving spouses,
14.2-3
Safe-deposit boxes, 3.4-1
Testamentary additions to, 4.2-4
U.S. SAVINGS BONDS

Interest on
Generally, 7.6-6(g)
Right of survivorship property, as,
1.6-1
U.S. TAX COURT
Federal estate tax proceedings,
12.2-11(e)
UNCLAIMED ASSETS
Form 11-10
UNDUE INFLUENCE
Will contests, 15.2-2(b)
UNIFORM DISPOSITION OF
COMMUNITY PROPERTY
RIGHTS AT DEATH ACT
See COMMUNITY PROPERTY
UNIFORM INTERNATIONAL
WILLS ACT (UIWA)
Overview of, 4.2-2(c)
UNIFORM SIMULTANEOUS
DEATH ACT
UNINCORPORATED INTERESTS
UNITED STATES SAVINGS BONDS
See U.S. SAVINGS BONDS
UNLIQUIDATED DEBTS
UNTITLED ASSETS
VALUATION OF PROPERTY
Appraisals. See APPRAISAL OF
PROPERTY
Augmented estate subject to elective
share, 8.2-5(d)(4)
ESTATE TAX
Federal estate tax elections, 7.6-6(h)
Probate property generally, 1.4-6
Special-use valuation. See SPECIAL
USE VALUATION
VENTURES OF DECEDENT
See BUSINESS(ES) OF DECEDENT
VENUE
Administration of estates, 3.6-4
Allegation of in petition, 2.3-2
SI-55
2012 Revision

Choices for, 2.3-1
Improper venue, 2.3-3
Multi-county proceedings
Original county as determinative of
venue, 2.3-4(c); Form 2-2
Transfer to another court, 2.3-4(b);
Form 2-1
Order establishing venue where action
first commenced, Form 2-2
Order transferring, Form 2-1
Petition for appointment, 2.3-2
Probate proceedings, 5.2-1(b)
VESSELS
See BOATS AND OTHER VESSELS
VETERANS
Property tax exemption, 7.6-3(b),
7.6-4(a)
VETERANS BENEFITS
VULNERABLE PERSONS
VULNERABLE PERSONS
GUARDIANS AND
CONSERVATORS
WAGES
WEAPONS
SI-56
2012 Revision
WILL CONTESTS
Appeal and review, 8.4-5, 15.2-1(f)
Bases for, 15.2-2
Commencement of, 8.4-1, 15.2-1(a)
Contracts to make wills, 4.2-5, 4.2-5(b)
De novo review of, 15.2-1(f)
Distinguished from other claims,
15.2-1(d)
Effect of successful contest, 8.4-6
Evidence, 5.2-4(h)
Filing fees, 8.4-4, 15.2-1(b)
Filing of, 15.2-1(a)
Foreign wills, 5.2-4(e), 8.4-2, 15.2-2
Fraud and deceit, 15.2-2(d)
Grounds for
Defective exercise of power of
appointment, 8.4-3
Fraud, 15.2-2(d)
Improper execution of will, 8.4-3,
15.2-2
Insane delusion, 15.2-2(c)
Intentional interference with
prospective inheritance,
15.2-2(g)
Lack of testamentary capacity,
8.4-3, 15.2-2(a)
Mistake, 15.2-2(e)
Undue influence, 8.4-3, 15.2-2(b)
Will is ineffective, 15.2-2
Will was revoked, 15.2-2(f)
In terrorem clauses, 15.2-1(e)
Interested persons
Generally, 15.2-1(a)
Notice to, 7.3-1(a)
Overview, 5.2-4(g)
Judgment(s), 15.2-1(g)
Mistake, 15.2-2(e)
No-contest clause in will, effect of,
15.2-1(e)
Nonjury trials, 15.2-1(f)
Notice to interested persons, 8.4-1,
15.2-1(a), 15.2-1(b)
Parties, 15.2-1(a), 15.2-1(c)
Personal representatives, 15.2-1(c)

Petition for
Contents of, 15.2-1(b)
Filing fees, 15.2-1(b)
Filing of, 15.2-1(a)
Service of, 15.2-1(a)
Procedural requirements, 15.2-1
Revocation of will, 15.2-2(f)
Solemn form, probates in, 5.2-4(g)
Statute of limitations, 15.2-1(a)
Statutory basis for, 15.2-1(a)
Successful contests, effects of, 8.4-6
Testamentary capacity, lack of, 15.2-2(a)
Undue influence, 15.2-2(b)
Who may contest, 5.2-4(g), 5.2-4(h)
WILLS
Ademption by extinction
Common-law doctrine of, 4.2-7(g)
4.2-7(g)
Admission to probate
Finality of order, 2.9-3
Intestate estates, Form 5-8
Limited judgment, Forms 5-7, 5-8
Testate estates, Form 5-7
Affidavit of attesting witness
5-5, 5-6
Affidavits
Affidavit of attesting witness, above
Signatures on will, Form 5-6
After-acquired property, 4.2-7(e)
Alteration of wills
Express alterations, 4.2-6(b)
Attestation of
Affidavit of witness, 5.2-4(a),
5.2-4(b); Forms 5-5, 5-6
Overview, 4.2-3(a), 4.2-3(b)
Testimony of witness, 4.2-1, 5.2-4(c)
Beneficiaries as witnesses, 4.2-3(b)
Capacity to make
Determination of, 4.2-1
Lack of capacity, 15.2-2(a)

Overview of, 4.2-1
Charges, payment of, 4.2-7(f)
Choice of law, 4.2-2(b)
Codicils
Marital deduction, 12.1-5(a)
Contested wills. See WILL CONTESTS
Contracts not to revoke wills
Overview of, 4.2-5
Contracts to make wills
Breach of contract, 8.4-1
Forms of, 4.2-5(c)
Joint or mutual wills, 4.2-5(c)
Oral contracts, 4.2-5, 4.2-5(c)
Overview of, 4.2-5
Will contests, 4.2-5, 4.2-5(b)
Custodians duties, 4.2-8(b)
Debts, payment of, 4.2-7(f)
Delivery of
Court-ordered delivery, 4.2-8(e)
Custodian of will, by, 4.2-8(b)
Destruction of
40-year-old will, 4.2-8(c)
Liability for, 4.2-8(d)
Devises/devisees. See also
INTERESTED PERSONS
Abatement, 8.1-5(c)
After-acquired property, 4.2-7(e)
Antilapse statute, 8.1-5(a)
Disposition of devised property,
4.2-7(c)
Effect of provisions, 4.2-7
Encumbrances, 4.2-7(c)
Entire estate, passing of, 4.2-7(b)
Failure of, 4.2-7(i)
In terrorem clauses, 9.1
Life estates, 4.2-7(d)
SI-57
2012 Revision

4.2-7(g)
Payment of debts, taxes, and other
charges, 4.2-7(f)
Pretermitted children, 4.2-7(j)
Testators issue, to, 4.2-7(h)
Trust, lapse of devise to, 8.1-5(b)
Discovery of, 3.4-1
Disinheritance clauses, effect of, 4.1-1
Disposition of, 4.2-8(a)
Elective share of surviving spouse,
4.2-9. See also ELECTIVE SHARE
Encumbered assets, 10.11-4
Evidence of. Proof of will, below
Execution of
Attestation, 4.2-3(a), 4.2-3(b)
Formalities, 4.2-3(a)
Signatures, 4.2-3(a)
Validity of, 4.2-3(c)
When will deemed executed, 4.2-1
Foreign wills
Contesting, 5.2-4(e), 8.4-2, 15.2-2
Probate of, 5.2-2(b), 5.2-4(e)
In terrorem clauses, 9.1, 15.2-1(e)
Intention of testator, 4.2-2(a)
International wills
Overview, 4.2-2(c)
Probate of, 5.2-4(f)
Invalid wills, revival of, 4.2-6(c)
Investment of estate funds, 10.4-1(b)(3)
Lack of capacity, 15.2-2(a)
Later-discovered will, reopening of
estate for, 11.10-1(b)
10.2-5(b)
Powers of appointment
General disposition, effect of,
4.2-2(a), 4.2-7(k)
Residuary clause, effect of, 4.2-7(k)
Proof of will
Affidavit of attesting witness,
5.2-4(a), 5.2-4(b); Forms 5-5, 5-6
SI-58
2012 Revision

Overview of, 1.2
Testimony of attesting witness,
5.2-4(c)
Reading of the will, 3.2
Residuary clauses, 4.2-7(k)
Retention by drafting lawyer, 3.4-1
Revival of wills
Invalid wills, 4.2-6(c)
Revoked wills, 4.2-6(c)
Revocation of wills
Annulment of marriage, by, 4.2-6(e)
Contracts not to revoke wills, above
Dissolution of marriage, by, 4.2-6(e)
Executory contract of sale of devised
property, 4.2-6(f)
Express revocations, 4.2-6(b)
Marriage, by, 4.2-6(d)
Revival of revoked will, 4.2-6(c)
Will contest, basis for, 15.2-2(g)
Safe-deposit boxes, 3.4-1, 4.2-8(b)
Safekeeping of, 3.4-1
Self-proving wills, 5.2-4(b)
Signatures
Affidavit of witness to signature,
Form 5-6
Execution of will, 4.2-3(a)
Taxes, payment of, 4.2-7(f)
Trusts, additions to, 4.2-4
Will contests. See WILL CONTESTS
Who may make, 4.2-1
Witnesses
Acknowledgment of testators
signature, 4.2-3(a)
Affidavit of, 5.2-4(a), 5.2-4(b); Forms
5-5, 5-6
Beneficiaries, as, 4.2-3(b)
Choice of, 4.2-1
Missing witness, 5.2-4(d)
Persons who may be, 5.2-4(d)
Signature of testator, 4.2-3(a)
Testimony of, 4.2-1, 5.2-4(c)

WIVES
See SPOUSE(S)
WRONGFUL DEATH ACTIONS
Closing an estate, 15.3-8
Damages, 15.3-2(c)
Distribution of proceeds
Apportionment of, Forms 15-4 to
15-6
Decedents family, to, 15.3-3(b)
Minors, to, 15.3-3(c)
Judgment(s), Forms 15-4 to 15-6
Jury instructions, 15.3-6
Overview of, 3.6-2(c), 15.1, 15.3-1
Personal representative(s)
Mismanagement by, 7.2-4(a)(1)
Tortfeasor, of, 15.3-7
Victim, of. Personal representative of
victim, below
Personal representative of victim
Appointment of, 15.3-2(a), 15.3-2(b)
Authority of, 15.3-2(a)

Damages, 15.3-2(c)
Fees, 15.3-5
Petition for appointment, 15.3-2(b);
Form 15-1
Settlements, 15.3-2(c); Forms 15-1 to
15-6
Settlements, 15.3-2(c); Forms 15-1 to
15-6
Statute of limitations, 15.3-4
Survival of actions
Appointment of administrator,
petition for, 15.3-7(c)
Parties, 15.3-7(b)
Tortfeasors death, effect of,
15.3-7(a)
YACHTS
See also BOATS AND OTHER
VESSELS
SI-59
2012 Revision
ISBN 1-879049-16-3

Ades

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Ades

Enviado por

Direitos autorais:

Formatos disponíveis

ADMINISTERING

NOTE: This package contains the 2012 revision of

NOTE: This edition completely replaces the 2004 edition and

This handbook may be cited as:

OREGON STATE BAR

OREGON STATE BAR

OREGON STATE BAR

Alternatives to Probate .......................................David C. Streicher

Probate Jurisdiction and Procedures ..................... Nikki C. Hatton

Preadministration Procedures............................. Holly N. Mitchell

Initiating Probate and

Special Considerations ............................................... Janice Hatton

Initial Responsibilities and Liabilities

Rights of Interested Persons .............................Timothy J. Wachter

Claims Against the Estate ................................... Helen Rives Pruitt

Managing Estate Assets ....................................... Jonathan A. Levy

Accounting, Distribution, and Closing ................. Sam Friedenberg

Federal Estate Tax .............................................Steven A. Nicholes

Generation-Skipping Transfer Tax ..................... Richard W. Miller

Oregon Estate Tax ................................................... Philip N. Jones

Litigation ................................................................... Jan K. Kitchel

INTRODUCTION ..................................................................... 1-3

GENERAL OVERVIEW OF PROBATE ................................. 1-3

PROBATE PROPERTY AND NONPROBATE

ASSESSING THE NEED OR DESIRABILITY FOR

In General ..................................................................... 1-6

Perfecting Chain of Title .............................................. 1-6

Resolving Disputes Among Heirs and

Protecting Against Creditors Claims ........................... 1-7

Settling Tax Matters and Allocations ........................... 1-7

Value of Probate Assets ................................................ 1-7

NONPROBATE TRANSFERS OF PROBATE

In General ..................................................................... 1-8

Untitled Assets .............................................................. 1-8

Affidavit of Heirship .................................................... 1-8

Small-Estate Affidavits................................................. 1-9

Settlement Agreements ................................................. 1-9

Indemnification Agreements ........................................ 1-9

Transfers of Interests in Closely Held

Chapter 1 / Alternatives to Probate

Real Estate Title Insurance.......................................... 1-10

Real Estate Transfer on Death Deeds ......................... 1-11

Funding Disclaimers Without Probate ........................ 1-11

Community Property ................................................... 1-12

Motor Vehicles ............................................................ 1-13

Bank, Trust Company, or National Bank

Other Deposits ............................................................. 1-14

Wages .......................................................................... 1-15

Money Due from the State of Oregon......................... 1-15

Bearer Bonds ............................................................... 1-15

Pets .............................................................................. 1-15

TYPES OF NONPROBATE PROPERTY .............................. 1-15

Right of Survivorship Property ............................... 1-15

Real Property ................................................... 1-15

Personal Property............................................. 1-16

Stocks and Bonds ............................................ 1-16

Contracts Requiring Payment to

Multiple-Party Bank Accounts ........................ 1-18

U.S. Savings Bonds ..................................................... 1-20

Life Insurance.............................................................. 1-21

IRAs, Annuities, and Retirement Plans ...................... 1-22

Social Security Benefits .............................................. 1-22

Veterans Benefits ........................................................ 1-23