General DefinitionAny part of the decedent's estate not validly disposed of by will. Sec. 112.015.
Order of DistributionIf the decedent leaves a surviving spouse and issue, the intestate share of the surviving spouse is as follows:
- If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the entire net intestate estate.
- If there are surviving issue of the decedent one or more of who are not issue of the surviving spouse, one-half of the net intestate estate. Sec. 112.025
If the decedent leaves a surviving spouse and no issue, the surviving spouse will receive all of the net intestate estate. Sec. 112.035.
The part of the net intestate estate not passing to the surviving spouse shall pass:
- To the issue of the decedent. If the issue are all of the same degree of kinship to the decedent, they may take equally, but if of unequal degree, then those of more remote degrees take by representation.
- If there is no surviving issue, to the surviving parents of the decedent.
- If there is no surviving issue or parent, to the brothers and sisters of the decedent and the issue of any deceased brother or sister of the decedent by representation. If there is no surviving brother or sister, the issue of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degrees take by representation.
- If there is no surviving issue, parent or issue of a parent, to the grandparents of the decedent and the issue of any deceased grandparent of the decedent by representation. If there is no surviving grandparent, the issue of grandparents take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degrees take by representation.
- If, at the time of taking, surviving parents or grandparents of the decedent are married to each other, they shall take real property as tenants by the entirety and personal property as joint owners with the right of survivorship. Sec. 112.045.
If no person is entitled to inherit under Oregon law the property shall escheat to the State. Sec. 112.055.
Common Law or Community PropertyOregon is a common law, elective share state.
CapacityAny person who is 18 years of age or older or who has been lawfully married, and who is of sound mind, may make a will. Sec. 112.225.
DraftingA will must be made in writing. The testator, in the presence of each of the witnesses, shall:
- Sign the will; or
- Direct one of the witnesses or some other person to sign thereon the name of the testator; or
- Acknowledge the signature previously made on the will by the testator or at the testator's direction. Sec. 112.235(1).
Any person who signs the name of the testator must sign the signer's own name on the will and write on the will that the signer signed the name of the testator at the direction of the testator. Sec. 112.235(2).
At least two witnesses must each:
- See the testator sign the will; or
- Hear the testator acknowledge the signature on the will; and
- Attest the will by signing the witness' name to it. Sec. 112.235(3).
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary. Beneficiary is defined as a recipient of a beneficial interest in property or the income in property transferred in a manner taxable. Sec. 118.005.
ModificationsA will may be revoked or altered by another will. A will may be revoked by being burned, torn, canceled, obliterated or destroyed, with the intent and purpose of the testator of revoking the will, by the testator, or by another person at the direction of the testator and in the presence of the testator. The injury or destruction by a person other than the testator at the direction and in the presence of the testator shall be proved by at least two witnesses. Sec. 112.285.
If a will or a part of a will has been revoked or is invalid, it can be revived only by a re-execution of the will or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference. Sec. 112.295.
Naming of Personal RepresentativeLetters testamentary or letters of administration shall be issued to the personal representative appointed by the court upon the filing with the clerk of the court the bond, if any, required by the court. Sec. 113.125.
The court must appoint a qualified person it finds suitable as personal representative, giving preference in the following order:
- The executor named in the will.
- The surviving spouse of the decedent or the nominee of the surviving spouse of the decedent.
- The nearest of kin of the decedent or the nominee of the nearest of kin of the decedent.
- The Director of Human Services, or an attorney approved by the director if the decedent received public assistance or received care at an institution and it appears that the assistance or the cost of care may be recovered from the estate of the decedent.
- The Director of the Oregon Health Authority, or an attorney approved by the director if the decedent received public assistance or received care at an institution and it appears that the assistance or the cost of care may be recovered from the estate of the decedent.
- The Department of Veterans' Affairs, if the decedent was a protected person and the department has joined in the petition for such appointment.
- Any other person. Sec. 113.085.
A person is not qualified to act as personal representative if the person is:
- An incompetent.
- A minor.
- A person suspended for misconduct or disbarred from the practice of law, during the period of suspension or disbarment.
- A person who has resigned from the Oregon State Bar when charges of professional misconduct are under investigation or when disciplinary proceedings are pending against the person, until the person is reinstated.
- A licensed funeral service practitioner unless the decedent was: a relative of the licensed funeral service practitioner; or a licensed funeral service practitioner who was a partner, employee or employer in the practice of the licensed funeral service practitioner who is petitioning for appointment as personal representative. Sec. 113.095.
Submission of WillAny person having custody of a will:
- Must deliver the will to the testator upon demand from the testator, unless the person having custody of the will is an attorney and is entitled to retain the will;
- May at any time deliver the will to the testator;
- Upon demand from the conservator, shall deliver the will to a conservator for the testator;
- Upon demand from the attorney-in-fact, shall deliver the will to an attorney-in-fact acting under a durable power of attorney signed by the testator expressly authorizing the attorney-in-fact to demand custody of the will;
- May deliver the will to any attorney licensed to practice law in Oregon willing to accept delivery of the will if the person does not know or cannot ascertain, upon diligent inquiry, the address of the testator; or
- Must deliver the will to a court having jurisdiction of the estate of the testator or to a personal representative named in the will within 30 days after the date of receiving information that the testator is dead. Sec. 112.810.
If it appears to a court having jurisdiction of the estate of a decedent that a person has custody of a will made by the decedent, the court may issue an order requiring that person to deliver the will to the court. Sec. 112.830.
NotificationsUpon appointment a personal representative must cause a notice to interested persons to be published once in each of three consecutive weeks in:
The notice must include:
- The title of the court in which the estate proceeding is pending;
- The name of the decedent;
- The name of the personal representative and the address at which claims are to be presented;
- A statement requiring all persons having claims against the estate to present them, within four months after the date of the first publication of the notice to the personal representative at the address designated in the notice for the presentation of claims or they may be barred;
- The date of the first publication of the notice; and
- A statement advising all persons whose rights may be affected by the proceeding that additional information may be obtained from the records of the court, the personal representative or the attorney for the personal representative. Sec. 113.155(2).
The failure of the personal representative to cause a notice to be published is a breach of duty to the persons concerned, but does not affect the validity of appointment, duties or powers or the exercise of duties or powers. A personal representative must file in the estate proceeding proof of the publication of notice. The proof must include a copy of the published notice. Sec. 113.155(3)-(4).
InventoryWithin 60 days after the date of appointment, unless a longer time is granted by the court, a personal representative must file in the estate proceeding an inventory of all the property of the estate that has come into the possession or knowledge of the personal representative. The inventory must show the estimates by the personal representative of the respective true cash values as of the date of the death of the decedent of the properties described in the inventory. Sec. 113.165.
Homestead, Elective Share and the Family AllowanceThe surviving spouse and dependent children may continue to occupy the principal residence for one year after the death of the decedent. During that occupancy, the family must maintain the property, carry insurance and pay any property taxes due. Sec. 114.005.
If a decedent is domiciled in this state on the decedent's date of death, and the decedent is survived by a spouse, the surviving spouse of the decedent may elect to receive the elective share. An election must be made before the death of the surviving spouse by the filing of a motion or petition in the manner. Sec. 114.600(1). The amount of the elective share is determined in accordance with Sec. 114.605.
If a decedent is domiciled in this state at the time of death and dies testate, the surviving spouse of the decedent has a right to elect to take an elective share. The elective share consists of one-fourth of the value of the net estate of the decedent, but the elective share shall be reduced by the value of the following property given to the surviving spouse under the will of the decedent:
- Property given outright;
- The present value of legal life estates; and
- The present value of the right of the surviving spouse to income or an annuity, or a right of withdrawal, from any property transferred in trust by the will that is capable of valuation with reasonable certainty. Sec. 114.105(1).
The court may make necessary and reasonable provision from the estate of a decedent for the support of the spouse and dependent children of the decedent, or any of them. Sec. 114.015.
Debts and DistributionsClaims against the estate of a decedent, other than claims of the personal representative as a creditor of the decedent, must be presented to the personal representative. Sec. 115.005.
If the applicable assets of the estate are insufficient to pay all expenses and claims in full, the personal representative shall make payment in the following order:
- Support of spouse and children, subject to the limitations imposed by Sec. 114.065.
- Expenses of administration.
- Expenses of a plain and decent funeral and disposition of the remains of the decedent.
- Debts and taxes with preference under federal law.
- Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent.
- Taxes with preference under the laws of this state that are due and payable while possession of the estate of the decedent is retained by the personal representative.
- Debts owed employees of the decedent for labor performed within 90 days immediately preceding the date of death of the decedent.
- Child support arrearages.
- The claim of the Oregon Health Authority for the amount of the state's monthly contribution to the federal government to defray the costs of outpatient prescription drug coverage provided to a person who is eligible for Medicare Part D prescription drug coverage and who receives benefits under the state medical assistance program or Title XIX of the Social Security Act.
- The claim of the Department of Human Services for the net amount of assistance paid to or for the decedent, in the following order: (i) Public assistance funded entirely by moneys from the General Fund; and (ii) Public assistance funded by a combination of state and federal funds.
- The claim of the Department of Human Services or the Oregon Health Authority for the care and maintenance of the decedent at a state institution.
- The claim of the Department of Corrections for care and maintenance of any decedent who was at a state institution.
- All other claims against the estate. Sec. 115.125(1).
If the applicable assets of the estate are insufficient to pay in full all expenses or claims of any one class specified, each expense or claim of that class must be paid only in proportion to the amount thereof. Sec. 115.125(2).
An estate is required to file an Oregon estate tax return if it exceeds $1 million. Above that amount, the estate tax is a graduated tax with a top rate of 16%. Sec. 118.010.
Income Tax Charitable Deductions and/or Credits
Oregon allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Sec. 316.695(c)(A).
Gift Annuity Requirements
Oregon, a "conditional exemption" state as of January 1, 2006 (previously Oregon required certificates of authority to issue gift annuities), regulates the issuance of charitable gift annuities under Secs. 731.038 through 731.046. Charities must meet certain conditions before issuing a charitable gift annuity in this state, with the exception of charities that were granted certificates of authority prior to the 2006 changes (see below).
Exemption QualificationTo qualify to issue a charitable gift annuity, the charity must be an organization described in Sec. 170(c) and: (i) have been in continuous operation for at least five years (or be the a successor/affiliate of an organization that satisfies this condition); (ii) hold a minimum of $300,000 in net assets (as shown by an annual audited financial statement prepared by an independent CPA and kept on file by the charity); and (iii) maintain a segregated annuity account fund adequate to meet the future payments of all outstanding gift annuities.
Charities that previously held the certificate of authority (issued prior to 2006) are permitted to continue issuing charitable gift annuities even if (i) and (ii) above are not satisfied.
Disclosure LanguageThe gift annuity must meet Sec. 501(m)(5) requirements and must contain the following state-required disclosure language:
"The charitable gift annuity is not issued by an insurance company, is not subject to regulation by the state of Oregon and is not protected by an insurance guaranty association."
Reserve RequirementsCharities must maintain a separate and distinct trust fund as a reserve fund adequate to meet future payments under all outstanding annuity agreements. The reserves are to be a calculated in accordance with the standard of valuation based on current mortality tables and an interest rate recommended by a qualifying national organization. Reinsurance of one or more gift annuities is permissible provided the insurer is an authorized insurer in the state in which the charity has its principal office and in the state in which the single premium annuity is issued.
Annual Filing RequirementsNo annual reporting or notification is required.
State Contact InformationDepartment of Consumer and Business Services
Oregon Insurance Division-4
P.O. Box 14480
Salem, OR 97309-0405
Linda J. Rothenberger