Administration of Estates Generally

ORS 114.535
Transfer of decedent’s property to affiant

  • payment of debt owing to decedent
  • motion to compel transfer or payment


Transfer of decedent’s property to affiant; payment of debt owing to decedent motion to compel transfer or payment. (1) The affiant may deliver a certified copy of a small estate affidavit to any person who has possession of personal property belonging to the estate or who was indebted to the decedent. Except as provided in this section, upon receipt of the certified copy, the person shall pay the debt or transfer, deliver, provide access to and allow possession of the personal property to the affiant.

(2)

Subject to ORS 114.537 (Safe deposit boxes), if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person that controls access to personal property belonging to the estate of the decedent, including personal property held in a safe deposit box for which the decedent was the sole lessee or the last surviving lessee, the person shall:

(a)

Provide the affiant with access to the decedent’s personal property; and

(b)

Allow the affiant to take possession of the personal property.

(3)

Subject to ORS 114.537 (Safe deposit boxes), if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person who owes a debt to the decedent or has received property of the decedent under ORS 446.616 (Transfer of interest in manufactured structure), 708A.430 (Disposition of deposit on death of depositor), 723.466 (Disposition of deposit on death of depositor) or 803.094 (Release or assignment of title interest), or a similar statute providing for the transfer of property of an estate that is not being probated, the person shall pay the debt or transfer, deliver, provide access to or allow possession of the property to the affiant if the person would be required to pay the debt or transfer, deliver, provide access to or allow possession of the property to a personal representative of the estate.

(4)

Any person that pays a debt owing to the decedent or transfers, delivers, provides access to or allows possession of property of a decedent in the manner provided by this section is discharged and released from any liability or responsibility for the debt or property in the same manner and with the same effect as if the debt had been paid or the property had been transferred or delivered to a personal representative of the estate of the decedent.

(5)

The affiant may deliver a certified copy of a small estate affidavit to a transfer agent of any corporate security registered in the name of the decedent. The transfer agent shall change the registered ownership on the books of the corporation to the affiant or the person named in the affidavit entitled to it, as directed by the affiant.

(6)

(a) If a person to whom a certified copy of a small estate affidavit is delivered under this section refuses to pay a debt or deliver, transfer, provide access to or allow possession of personal property as required by this section, the affiant may serve a written demand by certified mail on the person to pay the debt or deliver, transfer, provide access to or allow possession of the personal property. The demand must state that, if the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property.

(b)

If the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property within 30 days after service of a demand under paragraph (a) of this subsection, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property. The court may enter a judgment awarding reasonable attorney fees to the prevailing party if the court finds that the affiant filed the motion without an objectively reasonable basis or the person refused to pay the debt or deliver, transfer, provide access to or allow possession of any personal property without an objectively reasonable basis.

(7)

If a small estate affidavit was signed by the Director of Human Services, the Director of the Oregon Health Authority or an attorney approved under ORS 114.517 (Approval of attorneys filing affidavits for recipients of Medicaid or other public assistance), the Director of Human Services, the Director of the Oregon Health Authority or the attorney may certify a copy of the affidavit for the purposes described in this section. [1973 c.710 §4; 1979 c.340 §3; 1989 c.228 §4; 1991 c.67 §23; 1997 c.631 §404; 2003 c.196 §2; 2003 c.655 §60; 2009 c.541 §4; 2009 c.595 §80; 2009 c.828 §11; 2011 c.422 §3; 2019 c.165 §8]
Note: The amendments to 114.535 (Transfer of decedent’s property to affiant) by section 42, 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.
114.535 (Transfer of decedent’s property to affiant). (1) The affiant may deliver a certified copy of a small estate affidavit to any person who has possession of personal property belonging to the estate or who was indebted to the decedent. Except as provided in this section, upon receipt of the certified copy, the person shall pay the debt or transfer, deliver, provide access to and allow possession of the personal property to the affiant.

(2)

Subject to ORS 114.537 (Safe deposit boxes), if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person that controls access to personal property belonging to the estate of the decedent, including personal property held in a safe deposit box for which the decedent was the sole lessee or the last surviving lessee, the person shall:

(a)

Provide the affiant with access to the decedent’s personal property; and

(b)

Allow the affiant to take possession of the personal property.

(3)

Subject to ORS 114.537 (Safe deposit boxes), if a certified copy of a small estate affidavit is delivered under subsection (1) of this section to a person who owes a debt to the decedent or has received property of the decedent under ORS 446.616 (Transfer of interest in manufactured structure), 708A.430 (Disposition of deposit on death of depositor), 723.466 (Disposition of deposit on death of depositor) or 803.094 (Release or assignment of title interest), or a similar statute providing for the transfer of property of an estate that is not being probated, the person shall pay the debt or transfer, deliver, provide access to or allow possession of the property to the affiant if the person would be required to pay the debt or transfer, deliver, provide access to or allow possession of the property to a personal representative of the estate.

(4)

Any person that pays a debt owing to the decedent or transfers, delivers, provides access to or allows possession of property of a decedent in the manner provided by this section is discharged and released from any liability or responsibility for the debt or property in the same manner and with the same effect as if the debt had been paid or the property had been transferred or delivered to a personal representative of the estate of the decedent.

(5)

The affiant may deliver a certified copy of a small estate affidavit to a transfer agent of any corporate security registered in the name of the decedent. The transfer agent shall change the registered ownership on the books of the corporation to the affiant or the person named in the affidavit entitled to it, as directed by the affiant.

(6)

(a) If a person to whom a certified copy of a small estate affidavit is delivered under this section refuses to pay a debt or deliver, transfer, provide access to or allow possession of personal property as required by this section, the affiant may serve a written demand by certified mail on the person to pay the debt or deliver, transfer, provide access to or allow possession of the personal property. The demand must state that, if the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property.

(b)

If the person fails to pay the debt or deliver, transfer, provide access to or allow possession of the personal property within 30 days after service of a demand under paragraph (a) of this subsection, the affiant may file a motion to compel payment of the debt or delivery of, transfer of or access to the personal property. The court may enter a judgment awarding reasonable attorney fees to the prevailing party if the court finds that the affiant filed the motion without an objectively reasonable basis or the person refused to pay the debt or deliver, transfer, provide access to or allow possession of any personal property without an objectively reasonable basis.

(7)

If a small estate affidavit was signed by the Director of Human Services, the Director of the Oregon Health Authority or an attorney approved under ORS 114.517 (Approval of attorneys filing affidavits for recipients of Medicaid or other public assistance), the Director of Human Services, the Director of the Oregon Health Authority or the attorney may certify a copy of the affidavit for the purposes described in this section.

(8)

Notwithstanding ORS chapters 270, 273 and 274, an estate administrator of the State Treasurer appointed under ORS 113.235 (Appointment of estate administrators by Director of Department of State Lands) or the Director of Human Services or Director of the Oregon Health Authority serving as an affiant may deal with property of the estate as an affiant under this section.

Law Review Citations

26 WLR 292 (1990)

§§ 114.505 to 114.560

Notes of Decisions

Small estate statutory scheme has jurisdictional effect such that all claims within it must be resolved within its process and deadlines. Givan v. Dept. of Human Services, 289 Or App 125, 410 P3d 311 (2017)

Atty. Gen. Opinions

Minimum probate filing fees for "small estates," (1974) Vol 37, p 212

Law Review Citations

16 WLR 307 (1979); 26 WLR 286 (1990)


Source

Last accessed
Jun. 26, 2021