Attorney at Law

VALERIE KIRKENDALL

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WHAT IS PROBATE?

Probate is the process the court uses to distribute the assets of a person who has died. Probate may not be required if all the assets are owned jointly with another person or if the value of the estate is low, although even in these cases probate may be useful to ensure that creditors are paid and taxes filed.  

 

Once the probate has been opened, assets can be accessed, bills paid, and property bought and sold. In addition to the attorney fee, the expenses include publication in a local newspaper and the court filing fees. Attorney fees will vary depending on the complexity of the estate. Many probates can be closed within six months.  

 

Probate involves a great deal of paperwork that must be filed in compliance with court-imposed deadlines. A probate attorney can help you avoid many traps for the unwary.

 

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WHEN IS PROBATE NEEDED?

Probate is a court-supervised process to settle the affairs of a deceased person. A person dies either “testate” (with a Will) or “intestate” (without a Will). Probate is used primarily to settle the debts of the deceased and to pass title of assets to heirs. Probate is necessary to give the Personal Representative the legal authority to deal with the decedent's probate assets. The Personal Representative has a duty to protect the assets of the decedent for the beneficiaries, heirs, creditors and other persons due money from the estate, and to ensure the collection of money due to the estate. Probate also provides for payment of outstanding debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs.

 

Probate is not always necessary. If all the assets of the deceased person are owned jointly, or have named beneficiaries, the surviving joint owner or beneficiary will become the owner of the asset automatically. In addition, if the estate is small (total assets are less than $275,000, the real property is valued at less than $200,000, and the personal property of the estate is valued at less than $75,000), then a “small estate” probate proceeding is available.

WHAT HAPPENS DURING THE PROBATE PROCESS?

• An individual named as the Personal Representative under the Will must be appointed by the Court in the county where the deceased person resided. If a person dies intestate (without a will), the Court will choose who to appoint as personal representative.

 

• The Personal Representative must file with the court an inventory of the estate assets. The estate assets may be sold if funds are needed or if selling the assets is not contrary to the Will.

 

• A notice is published in a local newspaper to let creditors know that they have four months from the publication date to bring any claim against the estate.   Notice is also given to the deceased person’s next of kin and to anyone named in the Will.

 

• It is the duty of the Personal Representative to see that any required tax returns are filed and paid.

 

• Once the four month notice period has passed, and all required tax returns filed, the personal representative must file an accounting of the estate assets.  After the account is approved by the Court, the deceased person’s assets may be distributed to the people and entities named in the Will, or if the deceased died intestate, the assets are distributed as determined by Oregon statute.

HOW LONG WILL PROBATE TAKE?

Probate can usually be started immediately after death. (For a “small estate” the papers cannot be filed with the Court until 30 days after death.) The typical probate proceeding takes about six months. If there is property to be sold, or tax issues, or family disputes, the process can last longer.

WHAT ARE THE COSTS OF PROBATE?

The Personal Representative will earn a fixed percentage of the value of the total estate. Other typical costs include the attorney fees, court filing fees, and publication costs. Attorney fees charged for handling matters of the estate must be approved by the court and typically are based on an hourly rate for the actual services performed by the attorney.

DOES PROBATE AFFECT TAXES?

Having a Will or a probate proceeding does not affect the taxes that must be paid. Federal Estate taxes apply to estates with a value greater than $5.34 Million. Oregon Estate taxes will apply to estates with a value greater than $1 Million. If the deceased person typically paid income tax, then it is likely that an income tax return may be required.