Probate is the legal process during which a decedent’s will is validated and their estate settled. The provisions related to probate in Oregon are found in Or. Rev. Stat. § § 113.005 et seq. The purpose is to wrap up the decedent’s outstanding business such as paying their debts. Its purpose is also to effect the legal transfer of the decedent’s property to others. A personal representative appointed by the Probate Unit of the Circuit Court is responsible for caring for the day-to-day activities of the administration process. During the process it is not unusual for disputes to develop involving the personal representative, beneficiaries, heirs, and creditors. Ideally the parties would be able to resolve such disputes without involving the court. Because of the different interests of the parties, oftentimes the parties end up taking their disputes to court for resolution. Probate disputes can have a profound impact on the probate proceeding.
Will Contest in Oregon
Part of the probate process is validating the will. If an interested party such as a beneficiary or heir does not believe the will should be probated, they can file an objection challenging its validity. This is referred to as a will contest. The person objecting to the will must have legal grounds for contesting the will. Under Oregon law, reasons for contesting a will include:
- Will is ineffective. The will would be ineffective if the testator was not legally competent to make a will because they were under the age of 18, unmarried, or was not emancipated. They also would not be legally competent if they were mentally incompetent at the time they executed the will. A will made by a testator who was under duress or who had been subjected to undue influence would be ineffective, as would a will that was not properly executed or that was fraudulent. Or. Rev. Stat. § § 113.075(1)(a)
- Later valid will. If the will that was submitted for probate is not the most recent will executed by the decedent, it would be invalid. A later will that was properly executed revokes the prior will. Or. Rev. Stat. § § 113.075(1)(b)
- Agreement to revoke will. If there is evidence that the testator made an agreement to revoke the will that was submitted for probate, there would be grounds to contest that will. Or. Rev. Stat. § § 113.075(1)(c)
Some testators include “in terrorem” clauses in their wills. An in terrorem clause causes a beneficiary who contests a will to forfeit their testamentary gift. Except under limited circumstances, in Oregon, in terrorem clauses will be enforced. Or. Rev. Stat. §§ 112.272
A fiduciary is a person who is entrusted to care for the interests of someone else. They are expected to act in good faith and honestly. The personal representative is a fiduciary with respect to an estate and its beneficiaries and heirs. If the personal representative acts in a manner that is improper, then they would have breached their fiduciary duty. They would be personally liable to interested parties for any damage or loss to the estate that results from their breach. Or. Rev. Stat. § 111.005.
Examples of breaches of fiduciary duty include:
- Making poor investment choices
- Failing to secure estate property
- Failing to follow an order of the court
- Failing to publish notice to interested parties. Or. Rev. Stat. § 113.155(3
If the personal representative denies a claim, the claimant can choose to bring the claim to court. To do so they can file a request in the probate proceeding for a summary determination of the claim by the court. The claimant must file the request within 30 days of mailing or delivery of the disallowance of their claim. Or. Rev. Stat. § 115.165
Impact of Probate Disputes
Probate disputes can have a significant impact on the probate process. Any type of probate litigation is likely to delay the process. It may also reduce the value of the estate as expenses related to the litigation may be charged to the estate. In addition, depending on the type of dispute, it can impact who is entitled to inherit, who serves as fiduciary, and how assets are distributed.