Initiation of Estate Proceedings

ORS 113.085
Preference in appointing personal representative


(1)

Except as provided in subsection (3) of this section, upon the filing of the petition under ORS 113.035 (Petition for appointment of personal representative and probate of will), if there is no will or if there is a will and it has been proved, the court shall appoint a qualified person the court finds suitable as personal representative, giving preference in the following order:

(a)

The personal representative named in the will.

(b)

If the surviving spouse of the decedent is a distributee of the estate, the surviving spouse of the decedent or the nominee of the surviving spouse of the decedent.

(c)

If the person is a distributee of the estate, a person who would be entitled to property of the decedent under intestate succession.

(d)

Any other distributee of the estate.

(e)

The Director of Human Services or the Director of the Oregon Health Authority, or an attorney approved under ORS 113.086 (Approval of attorneys who are eligible to be personal representative for decedent who received Medicaid or other public assistance), if the decedent received public assistance as defined in ORS 411.010 (Definitions), received medical assistance as defined in ORS 414.025 (Definitions for ORS chapters 411, 413 and 414) or received care at an institution described in ORS 179.321 (Responsibility to supervise state institutions) (1) and it appears that the assistance or the cost of care may be recovered from the estate of the decedent.

(f)

The Department of Veterans’ Affairs, if the decedent was a protected person under ORS 406.050 (Additional powers and duties of director or department) (10) and the department has joined in the petition for such appointment.

(g)

Any other person.

(2)

Before the court appoints a personal representative under subsection (1)(b) to (g) of this section, the court may require the petitioner to make a reasonable attempt to notify persons of higher priority than the proposed personal representative under subsection (1)(b) to (g) of this section.

(3)

Except as provided in subsection (4) of this section, the court shall appoint the Department of State Lands as personal representative if it appears that the decedent died wholly intestate and without known heirs. The Attorney General shall represent the Department of State Lands in the administration of the estate. Any funds received by the Department of State Lands in the capacity of personal representative may be deposited in accounts, separate and distinct from the General Fund, established in the State Treasury. Interest earned by such account shall be credited to that account.

(4)

The court may appoint a person other than the Department of State Lands to administer the estate of a decedent who died wholly intestate and without known heirs if the person filing a petition under ORS 113.035 (Petition for appointment of personal representative and probate of will) attaches written authorization from the Department of State Lands approving the filing of the petition by the person. Except as provided by rule adopted by the Director of the Department of State Lands, the department may consent to the appointment of another person to act as personal representative only if it appears after investigation that the estate is insolvent. [1969 c.591 §88; 1971 c.421 §1; 1971 c.675 §1; 1973 c.370 §1; 1987 c.158 §17a; 1987 c.425 §1; 1989 c.966 §2; 1995 c.106 §2; 2001 c.102 §3; 2001 c.900 §15; 2003 c.395 §12; 2005 c.381 §20; 2005 c.625 §56; 2009 c.595 §76; 2009 c.602 §2; 2009 c.828 §7; 2011 c.720 §57; 2013 c.36 §33; 2013 c.688 §14; 2015 c.381 §5; 2017 c.169 §13]
Note: The amendments to 113.085 (Preference in appointing personal representative) by section 34, chapter 678, Oregon Laws 2019, become operative July 1, 2021. See section 85, chapter 678, Oregon Laws 2019. The text that is operative on and after July 1, 2021, is set forth for the user’s convenience.
113.085 (Preference in appointing personal representative). (1) Except as provided in subsection (3) of this section, upon the filing of the petition under ORS 113.035 (Petition for appointment of personal representative and probate of will), if there is no will or if there is a will and it has been proved, the court shall appoint a qualified person the court finds suitable as personal representative, giving preference in the following order:

(a)

The personal representative named in the will.

(b)

If the surviving spouse of the decedent is a distributee of the estate, the surviving spouse of the decedent or the nominee of the surviving spouse of the decedent.

(c)

If the person is a distributee of the estate, a person who would be entitled to property of the decedent under intestate succession.

(d)

Any other distributee of the estate.

(e)

The Director of Human Services or the Director of the Oregon Health Authority, or an attorney approved under ORS 113.086 (Approval of attorneys who are eligible to be personal representative for decedent who received Medicaid or other public assistance), if the decedent received public assistance as defined in ORS 411.010 (Definitions), received medical assistance as defined in ORS 414.025 (Definitions for ORS chapters 411, 413 and 414) or received care at an institution described in ORS 179.321 (Responsibility to supervise state institutions) (1) and it appears that the assistance or the cost of care may be recovered from the estate of the decedent.

(f)

The Department of Veterans’ Affairs, if the decedent was a protected person under ORS 406.050 (Additional powers and duties of director or department) (10) and the department has joined in the petition for such appointment.

(g)

Any other person.

(2)

Before the court appoints a personal representative under subsection (1)(b) to (g) of this section, the court may require the petitioner to make a reasonable attempt to notify persons of higher priority than the proposed personal representative under subsection (1)(b) to (g) of this section.

(3)

Except as provided in subsection (4) of this section, the court shall appoint the State Treasurer as personal representative if it appears that the decedent died wholly intestate and without known heirs. The Attorney General shall represent the State Treasurer in the administration of the estate. The State Treasurer shall deposit any funds received by the State Treasurer in the capacity of personal representative in accounts, separate and distinct from the General Fund, established in the State Treasury. Interest earned by such account shall be credited to that account.

(4)

The court may appoint a person other than the State Treasurer to administer the estate of a decedent who died wholly intestate and without known heirs if the person filing a petition under ORS 113.035 (Petition for appointment of personal representative and probate of will) attaches written authorization from the State Treasurer approving the filing of the petition by the person. Except as provided by rule adopted by the State Treasurer, the State Treasurer may consent to the appointment of another person to act as personal representative only if it appears after investigation that the estate is insolvent.

Atty. Gen. Opinions

Division of State Lands authority to dispose of money and property of intestate decedent without heirs, (1974) Vol 37, p 255


Source

Last accessed
Jun. 26, 2021