Probate Law
At Perkins Law, we understand that losing a loved one can be difficult enough without the additional stress of unknown processes and complicated paperwork. We strive to make the process easier by providing advice and assistance in a compassionate and professional manner. Contact us to schedule a consultation with one of our experienced attorneys.
Probate is a complex area of law and each situation is unique. The answers below are not intended to be relied upon as legal advice. If you have any questions regarding your specific matter, please contact us to schedule a probate consultation.
Resources
My friend or family member died, what are the next steps?
How do I know if there are any assets in the name of the person who passed away?
What is probate?
Do I need to go through the probate process?
My friend or family member left a Last Will and Testament. Do I still need to file for probate?
My friend or family member didn’t have a lot of assets. Do I still need to file for probate?
I’ve heard that when probate is filed, the State takes all of the assets. Is that true?
How long does the probate process take?
Do I need to hire an attorney for the probate process?
My friend or family member died, what are the next steps?
Generally, when a person passes away and there are assets remaining in that person’s name a probate action will need to be filed with the Circuit Court in the county where the person resided or where the property is located.
How do I know if there are any assets in the name of the person who passed away?
Generally, assets include real property, personal property, bank accounts, cash, or other items in which the person would have had an individual ownership interest. These assets are referred to as the deceased’s “estate.”
What is probate?
When a probate filing is made the Court oversees the process of (1) appointing someone to be in charge of the process, called the estate’s “personal representative”; (2) identifying the assets of the deceased person, also called the “decedent”; (3) identifying any valid, outstanding debts and overseeing the payment of those debts with the decedent’s assets; and (4) overseeing final distribution of the remaining assets to the beneficiary or beneficiaries. The Court is also responsible for overseeing any legal conflict or dispute arising out of the process.
This is a very simplified explanation of the process and there are many obligations and requirements involved in the probate process. Please consult an attorney for advice regarding your specific matter.
Do I need to go through the probate process?
Probate is not always necessary. For example, sometimes a decedent’s ownership interest is held “with right of survivorship”, which would allow the ownership interest to pass to the surviving owner or owners. Or sometimes the decedent named an account or other asset “payable on death” to a named individual, which would allow transfer of that asset without going through the probate process.
My friend or family member left a Last Will and Testament. Do I still need to file for probate?
Yes. The purpose of the Last Will and Testament is to be presented to Court and enable the Court to oversee the probate process.
My friend or family member didn’t have a lot of assets. Do I still need to file for probate?
In Oregon, there is a simplified version of the probate process for a “small estate.” In order to qualify as a small estate the assets of the decedent must be under (1) $200,000 for any real estate and (2) $75,000 for personal assets.
These assets are attributed their fair market value and are not offset by any debt. For example, a house owned solely by the decedent, with a fair market value of $400,000 does not have a reduced value even if there is a $200,000 mortgage on the property. The house is considered to be worth $400,000 and would not qualify for a small estate filing.
I’ve heard that when probate is filed, the State takes all of the assets. Is that true?
No. There are certain costs associated with filing for probate, but filing for probate does not increase taxes or liability to creditors.
Some of the costs associated with filing for probate may include but are not limited to: payment to a personal representative for a fixed percentage of the value of the total estate, court filing fees, and payment to an attorney for legal representation.
The more complicated an estate is, the more costs are likely to be incurred.
How long does the probate process take?
The more complicated the estate, the longer the process is likely to take. However, the process generally takes 6 months or longer to complete.
Do I need to hire an attorney for the probate process?
Generally, hiring an attorney is not required. However, in the majority of cases, having legal representation is essential for ensuring the process is completed properly and as quickly as possible.
The probate process requires strict adherence to a number of laws and rules. Improper filing may result in time delays, additional expenses, and personal liability.