Probate is a court procedure to transfer proper title and ownership to those who are supposed to inherit someone’s property after death. The court’s probate process can be used for persons who died with or without a will. If a person died with a will, the court will appoint a “personal representative” (commonly referred to as “executor”) to make sure the property is distributed to the “devisees” according to the terms of the will. If there is no will, the court will appoint a personal representative to make sure that the property is distributed to the family members who according to Oregon law are the rightful “heirs.”
Probate is not always necessary to transfer proper title, but it is wise to consult with an attorney when someone with valuable property passes away to make sure that all legitimate debts and taxes are paid before distributing any property. Even if someone dies with a revocable living trust, the successor trustee should consult with a lawyer to make sure that they are complying with the laws of the Uniform Trust Code and that there isn’t any property that was accidentally not placed in the trust that still needs to go through the probate process.
Filing fees, costs, and attorney fees for probate are generally paid from the “estate” of the person who passed away. Therefore, in ordinary circumstances, Lake Oswego Elder Law does not ask for a retainer to represent a client in a probate proceeding. There is no up front cost to the client.
At Lake Oswego Elder Law, we can also represent an heir or devisee who is concerned that a personal representative or trustee is not properly handling the distribution of an estate. We also represent persons who believe they have been unjustly disinherited.
Probate is a somewhat lengthy process, taking between 6 months to well over a year for complicated estates with tax issues, and is also recorded in the court’s public records. Not only do all of the heirs and devisees need to be provided with notice of the court proceeding in case they want to contest the will, but a brief newspaper article must be published whenever a probate court case is opened to allow creditors to present their bills to the personal representative for payment. This is why many people with privacy issues or who wish to expedite the transfer of their estate to their devisees choose to draft a revocable living trust instead of a will. If properly drafted and managed, a revocable living trust does not have to go through the probate process.