Affiant as fiduciary; duties, functions and powers of affiant; limitation of liability of financial institution
(a)Is a fiduciary who is under a general duty to administer, preserve, settle and distribute the estate in accordance with the terms of the will, the law of intestate succession and ORS 114.505 (Definitions for ORS 114.505 to 114.560) to 114.560 (Exclusive remedy) as expeditiously and with as little sacrifice of value as is reasonable under the circumstances.
(b)May not commingle property of the estate of which the affiant has taken possession with property of the affiant or any other person.
(c)Shall take control of the property of the estate coming into the possession of the affiant and collect the income from property of the estate in the possession of the affiant.
(d)Within 30 days after filing the small estate affidavit shall mail or deliver each instrument that the affidavit states will be mailed or delivered.
(e)May open one or more deposit accounts in a financial institution as defined in ORS 706.008 (Additional definitions for Bank Act) with funds of the decedent, upon which the affiant may withdraw funds by means of checks, drafts or negotiable orders of withdrawal or otherwise for the payment of claims and expenses described in paragraph (f) of this subsection.
(f)From and to the extent of the property of the estate, shall pay or reimburse any person who has paid:
(A)Expenses described in ORS 115.125 (Order of payment of expenses and claims) (1)(b) and (c) and listed in the small estate affidavit;
(B)Claims listed in the small estate affidavit as undisputed;
(C)Allowed claims presented to the affiant within the time permitted by ORS 114.540 (Procedure for claims); and
(D)Claims that the probate court allowed upon summary determination under ORS 114.542 (Summary determination).
(g)Shall pay claims and expenses under paragraph (f) of this subsection in the order of priority prescribed by ORS 115.125 (Order of payment of expenses and claims).
(h)May transfer and sell property that is part of the estate as provided in ORS 114.547 (Sales and transfers to third parties).
(i)Shall retain records of the administration of the estate at least until the later of:
(A)The expiration of the two-year period established in ORS 114.550 (Summary review of administration of estate); or
(B)The conclusion of any summary review proceeding under ORS 114.550 (Summary review of administration of estate).
(2)Notwithstanding any other provision of this section or ORS 114.547 (Sales and transfers to third parties), when an heir or devisee entitled to succeed to a conveyance fails or refuses to join in the conveyance as required by ORS 114.547 (Sales and transfers to third parties), an affiant approved under ORS 114.517 (Approval of attorneys filing affidavits for recipients of Medicaid or other public assistance) may convey any real or personal property that is part of the estate at any time to a third party for a valuable consideration.
(3)Property conveyed by an affiant under ORS 114.547 (Sales and transfers to third parties) this section is subject to liens and encumbrances against the decedent or the estate of the decedent. Property conveyed by an affiant under ORS 114.547 (Sales and transfers to third parties) is not subject to rights of creditors of the decedent or liens or encumbrances against the heirs or devisees of the decedent. The presentation and allowance of a claim in a proceeding under ORS 114.505 (Definitions for ORS 114.505 to 114.560) to 114.560 (Exclusive remedy) does not make the claimant a secured creditor.
(4)Any claiming successor to whom property of the estate is delivered or transferred under ORS 114.505 (Definitions for ORS 114.505 to 114.560) to 114.560 (Exclusive remedy) is personally answerable and accountable:
(a)To the extent of the value of the property received, to creditors of the estate to the extent such creditors are entitled to payment under subsection (1) of this section; and
(b)To any personal representative of the estate of the decedent appointed after the payment, delivery or transfer is made.
(5)A financial institution as defined in ORS 706.008 (Additional definitions for Bank Act) that opens one or more deposit accounts for an affiant pursuant to subsection (1)(e) of this section is not liable to any other person for opening the account or accounts or for permitting the affiant to withdraw funds from the account or accounts by means of checks, drafts, negotiable orders of withdrawal or otherwise. The financial institution is not required to ensure that the funds of the decedent that are paid out by the affiant are properly applied. [1973 c.710 §7; 1979 c.340 §4; 1985 c.300 §5; 1989 c.148 §6; 1989 c.228 §5; 1991 c.191 §4; 2003 c.655 §61; 2015 c.146 §1; 2019 c.165 §13]
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)