Civil - Probate and Guardianship

Probate and Guardianship

Probate cases consist of all estate, protective proceeding, and trust cases.

Probate cases include guardianships and Conservatorships. The Court oversees a legal process to distribute assets (anything a person owns with value) and debts left by a deceased person.

Depending on the circumstances of the decedent (deceased person), you may have the option of filing the Small Estate rather than the full estate. Court staff is not permitted to offer you advice on which option applies to the circumstances of the decedent. An attorney is the best resource for helping you determine the right course of action.

Protective proceedings are similar to an estate case, but are used for a living person who can no longer manage their medical or financial decision-making. If you think a family member or friend is in need of a protective proceeding, the Court strongly encourages you to work with an attorney.

Below you will find answers to some of the Probate Department’s most frequently-asked questions.

Court-certified copies of documents from the case can be requested through the Linn County Copy Center at 541-812-8770. Copy and certification costs apply. Certified copies of fiduciary letters will only be issued to the appointed fiduciary or their attorney of record. Fiduciary letters are issued by the Probate department and questions regarding copies of letters should be directed to the Probate Clerk.

The Court generally requires any fiduciary to be bonded for the full amount of the assets to be administered plus the annual income expected to be received. The bond protects both the beneficiaries (or protected person in conservatorships) and the creditors of the estate from breach of the fiduciary’s duties. Unless statute prescribes the circumstances in which bond may be waived, the court requires consent and adequate assurance of protection for all interested parties prior to waiver. Thus, in an intestate estate, consents from all heirs plus assurance that creditors will not be prejudiced by waiver would be required. The latter is usually submitted in the form of an affidavit regarding the creditors of the estate.

An alternative to bonding is restriction of assets. If property is to be restricted, the language of restriction must be included in the judgment setting the restriction. See UTCR 9.050. The form of acknowledgment of restriction, which must be filed within 30 days of the entry of the judgment, should be substantially similar to the form provided by in UTCR 9.050. Court approval by order or judgment must be obtained before any disbursement, release, or sale of any restricted asset or account.

The Probate Department provides a limited number of forms for particular filings on the Forms page. If the form you are looking for is not provided, you may need to consult with an attorney.

You may also refer to Linn County’s full Supplemental Local Rules (SLRs).

Courtesy Notices are notices issued by the court to alert a party that they have missed a prescribed deadline for a filing or other action. The deadline for filing may be set by statute or in relation to another action or occurrence in the case. The Courtesy Notice will contain a brief statement of the omitted filing or action and state that if such omission has not been cured within 30 days, a citation hearing will be scheduled. The Courtesy Notice system should not be relied on as a substitute for an adequate case management and calendaring system.

The Court issues “letters” after formally appointing a personal representative in a full estate proceeding. Letters Testamentary are issued in testate cases (where there is a will and it has been admitted to probate). Letters of Administration are issued in intestate cases (where the decedent did not leave a will). A full estate proceeding begins with a successfully filed petition to appoint a personal representative. As addressed below, the Court does not provide forms to begin these types of cases. Most likely, you will need to work with an attorney to file a petition and limited judgment of appointment before you are issued Letters Testamentary or Letters of Administration. Please note that the filing of a Small Estate Affidavit does not result in issuance of these formal letters.

In testate cases where the decedent’s last will is submitted for admission to probate, the original hard copy of the will must be submitted within seven (7) days of acceptance of the petition.

“Oregon State Law requires the court to appoint a “visitor” when a petition is filed in a protective proceeding which seeks the appointment of a guardian (See ORS 125.150 ). The role of the visitor is to interview persons who are familiar with the circumstances of the alleged incapacitated person for whom the appointment of a guardian has been requested, including interviewing the alleged incapacitated person, and provide a report to the court which includes factual findings and a recommendation regarding the appropriateness of the requested guardianship.
Persons interested in serving as a Court visitor should review the above referenced statute and the two documents below. Court visitors are compensated for their service.”

Resources

Court Visitor Application

Court Visitor PJO-2011

Court Visitor Handbook

UTCR court visitor report