What is probate?

Probate is a lawsuit you file against yourself, at your own expense, to protect your creditors and disgruntled heirs. Probate does not only occur at death. A probate may also be necessary during your life in the form of a conservatorship or a guardianship in the event you are deemed incapacitated and are therefore unable to manage your own affairs. Probate can be expensive, time-consuming, and is a public proceeding. A properly drafted, comprehensive estate plan can help you avoid probate during life or at death.

After death, is probate always necessary?

Probate is not always necessary. All property transferred through a will must generally be probated. But if property was owned jointly with another person, such as a spouse, then the property can often pass to the surviving co-owner without probate. If a person dies leaving very few assets, such as personal belongings or household goods, these items can be distributed among the person's heirs without the supervision of the court. Probate may be required to collect debts, transfer title of property owned solely by the deceased person without any beneficiary designations,settle disputes if more than one person claims to be the rightful owner of the property, and resolve disputes about the validity of the deceased person's will.

What happens during the probate process?

The personal representative (aka "executor" or "executrix") must take charge of the deceased's assets, catalogue those assets and liabilities, give notice to heirs, known creditors, and by publishing a notice in the newspaper, pay creditors, liquidate assets if necessary or desired, file tax returns and pay any taxes due, and obtain court approval to distribute the remaining assets according to the person's will or state law if the person did not leave a will. Assets are anything a person owns with value, such as property, cash, etc.

How long does probate take?

Probate can be started immediately after death. The process will take a minimum of six to nine months. If the estate includes property that must be sold, or if there are complicated tax matters, probates can last much longer. However, a small estate proceeding will only take four to six months and can be handled informally.

What are the costs involved?

Probate can be an expensive, time-consuming process. A personal representative will earn a fixed percentage of the value of the total estate. Extra costs may be approved by the court for the personal representative and a lawyer if the estate is complicated. Other costs include court filing fees, legal notices published in the local newspaper and any other necessary expenses.

Do I need a lawyer?

Probate in Oregon requires that specific actions be taken by specific deadlines. Court documents must be filed in a timely manner. A personal representative can be held personally liable for mistakes and taxes. Personal Representatives should therefore consult an experienced attorney before starting the formal probate process. A probate lawyer can help you avoid the many possible tax traps and other problems that could arise, such as resolving disputes between family members and creditors. A lawyer will also help you prepare and file the required legal documents and attend court hearings.