What is Probate?
Probate is the process of using the Court to settle and distribute the assets in a persons estate. It is used only if there are assets not controlled by some other probate alternatives.
Probate in Oregon is different from many other states, in that it generally only takes 5-8 months if there are no disputes or complications, and also due to the fact that legal fees are charged on an hourly basis, not a percentage of the estate. These differences make it a much less onerous process than in other states. It is also a common misconception that probate freezes everything, when in fact the probate period is when nearly everything gets done. The Personal Representative (executor) gathers all assets, and bills. Any items that need to be sold, including possibly the residence, are sold. All the bills are paid, necessary tax returns filed, and, at the end of the process (after a final account has been mailed to all interested persons and approved by the Court) distribution is made. It is often possible to make a partial distribution early in the process if there are sufficient assets to insure payment of all bills and costs of administration.
Are there any circumstances where probate is an advantage? We will often advise the filing of a probate petition in situations where there may be some ongoing potential of liability. A person in a profession can have potential liability for their actions which will exist many years after providing the service. Physicians, lawyers, real estate professionals, contractors, and many others can fall in this category. If their estate is not probated this potential liability is limited only by the applicable statute of limitations, which can be many years after the death. If, however, their estate is probated, any claims must be presented during the probate, or they will be lost.
We also find probate to be an advantage if there is a likelihood of conflict or litigation between surviving family members. With the probate process all contestants must take their disputes to the same place at the same time, preventing multiple lawsuits and traveling to different courts. Also, with one court hearing all the disputes there is a much better chance that a clear picture will appear, rather than several different presentations which are biased one way or another. When all disputes are resolved in one place there is usually a much lower cost for legal fees than with multiple suits, and, since there is a lot of prior case law in the probate courts, many of the issues will have already been resolved in other cases, which can also lower costs and allows a better evaluation of success or failure based upon the particular facts at hand. |
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