"Small Estate Affidavit" - Oregon

Small Estate Affidavit is a legal document that was released by the Oregon Circuit Courts - a government authority operating within Oregon.

Form Details:

  • Released on February 1, 2022;
  • The latest edition currently provided by the Oregon Circuit Courts;
  • Ready to use and print;
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  • Compatible with most PDF-viewing applications;
  • Fill out the form in our online filing application.

Download a printable version of the form by clicking the link below or browse more documents and templates provided by the Oregon Circuit Courts.

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INSTRUCTIONS
FOR
SMALL ESTATE AFFIDAVIT
TALK TO A LAWYER IF YOU DO NOT UNDERSTAND YOUR DUTIES OR ANY PART OF
THESE INSTRUCTIONS!
If you make a mistake, you may have to personally pay the cost of the
mistakes and loss to the estate. The Affidavit will be filed with the court
and has legal consequences.
These instructions are not a complete statement of the law. You are responsible for following
all Oregon laws, even those not explained here.
Contact the Oregon State Bar Lawyer Referral Service if you need help finding a lawyer or
have questions about the Bar’s Modest Means Program.
www.oregonstatebar.org
Oregon State Bar Lawyer Referral Service -
Phone: 503.684.3763 or toll-free in Oregon at 800.452.7636
B
Y
S
EFORE
OU
TART
 Make sure there are no other probate cases filed on this estate. Go to
www.courts.oregon.gov
to search online case records or call your local court for help
searching.
 DO NOT SIGN THE AFFIDAVIT YET! Your signature must be notarized by a court clerk
or notary public. You will need photo identification. Sign the Affidavit in the presence of
the notary or clerk.
 Parties
o You are the Affiant (the person completing the Affidavit). Affiants have specific
legal duties under
ORS 114.505 to
114.560.
o The person who died is the Decedent
 You will need the death certificate and the will (if any)
o You need a certified copy of the death certificate. You can get the death
certificate from the funeral home or the
Office of Vital
Statistics.
If Decedent died outside Oregon, the death record may not be called a
“death certificate.” Anywhere these forms use ‘death certificate’ it means
the official record of death.
o If Decedent left a will, you need the original will and an affidavit of attesting
witness or affidavit of genuine signature (often attached to the will).
ORS
113.055(1)
has more information. You may be able to provide other evidence that
the signature is Decedent’s. Talk to a lawyer about filing a regular probate case if
you don’t have the will and supporting documents.
If the will was submitted for probate in another state, you will need a
certified copy. A non-certified photocopy is not enough. Contact the court
where the will was submitted.
If you only have a copy of the will, you cannot use this form. Talk to a
lawyer about filing a regular probate case, which may accept a copy of the
will.
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Small Estate Affidavit – Instructions
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Page 1 of 7
(Feb 2022)
INSTRUCTIONS
FOR
SMALL ESTATE AFFIDAVIT
TALK TO A LAWYER IF YOU DO NOT UNDERSTAND YOUR DUTIES OR ANY PART OF
THESE INSTRUCTIONS!
If you make a mistake, you may have to personally pay the cost of the
mistakes and loss to the estate. The Affidavit will be filed with the court
and has legal consequences.
These instructions are not a complete statement of the law. You are responsible for following
all Oregon laws, even those not explained here.
Contact the Oregon State Bar Lawyer Referral Service if you need help finding a lawyer or
have questions about the Bar’s Modest Means Program.
www.oregonstatebar.org
Oregon State Bar Lawyer Referral Service -
Phone: 503.684.3763 or toll-free in Oregon at 800.452.7636
B
Y
S
EFORE
OU
TART
 Make sure there are no other probate cases filed on this estate. Go to
www.courts.oregon.gov
to search online case records or call your local court for help
searching.
 DO NOT SIGN THE AFFIDAVIT YET! Your signature must be notarized by a court clerk
or notary public. You will need photo identification. Sign the Affidavit in the presence of
the notary or clerk.
 Parties
o You are the Affiant (the person completing the Affidavit). Affiants have specific
legal duties under
ORS 114.505 to
114.560.
o The person who died is the Decedent
 You will need the death certificate and the will (if any)
o You need a certified copy of the death certificate. You can get the death
certificate from the funeral home or the
Office of Vital
Statistics.
If Decedent died outside Oregon, the death record may not be called a
“death certificate.” Anywhere these forms use ‘death certificate’ it means
the official record of death.
o If Decedent left a will, you need the original will and an affidavit of attesting
witness or affidavit of genuine signature (often attached to the will).
ORS
113.055(1)
has more information. You may be able to provide other evidence that
the signature is Decedent’s. Talk to a lawyer about filing a regular probate case if
you don’t have the will and supporting documents.
If the will was submitted for probate in another state, you will need a
certified copy. A non-certified photocopy is not enough. Contact the court
where the will was submitted.
If you only have a copy of the will, you cannot use this form. Talk to a
lawyer about filing a regular probate case, which may accept a copy of the
will.
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Small Estate Affidavit – Instructions
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 Decedent must have died at least 30 days before you file the Affidavit (60 days if you are
a creditor)
 The “estate” means all of Decedent’s assets that are subject to administration by a court
in Oregon
o “Subject to administration” means the asset is in Decedent’s name alone and
generally requires the asset to be located in Oregon. Talk to a lawyer if the estate
includes assets in another state.
o The estate does not include assets that transfer automatically to others following
death, for example:
Assets owned jointly with right of survivorship (like vehicles and bank or
investment accounts)
Assets that transfer by beneficiary designation (like life insurance and
retirement accounts), unless Decedent’s estate is designated as a
beneficiary
Accounts that are designated payable on death or transfer on death
 Court staff can answer questions about filing your forms, but cannot give you legal
advice, including what to put on the form
 Oregon laws are found in the Oregon Revised Statutes (ORS) here:
https://www.oregonlegislature.gov/bills_laws/Pages/ORS.aspx. Where you see “ORS”
and a number, the first 3 numbers are the chapter and the last 3 numbers are the section.
For example, ORS 114.505 means chapter 114 and section 505. Small estates are
governed by
Oregon Revised Statutes (ORS) 114.505-114.535
. Other laws and rules
1
apply to court filings generally and to probate (estate) law.
Q
F
E
E
UALIFIED
ILERS AND
LIGIBLE
STATES
F
/ A
ILER
FFIANT
You can file a Small Estate Affidavit if you are any of the following:
 An heir. An heir is someone who would inherit from an estate if there is no will. Heirs
are defined by
ORS 112.015 –
112.115.
 A devisee. A devisee is someone named in the will to receive part of the estate. A devisee
may be a person, trustee, charity, or other organization.
 A personal representative. A will may name a personal representative (also called
‘executor’) to handle the estate.
 A creditor of the estate. A creditor is a person or organization who has a claim (debts,
for example) against the estate. If you are filing as a creditor, you must mark the
appropriate box on the form. If the decedent did not leave a will and has no heirs, you
must get written authorization to file the Affidavit from the State Treasurer.
You can only file the Affidavit if all the statements in Section 2 of the Affidavit are true. Talk to a
lawyer if you are not sure you are qualified.
E
STATE
You can only file a Small Estate Affidavit if the total value of the estate is under $275,000 and:
 No more than $75,000 of the fair market value of the estate is from personal property
and
 No more than $200,000 of the fair market value of the estate is from real property
The dollar limits are based on the fair market value of the assets. Do not reduce any asset’s value
https://www.oregonlegislature.gov/bills_laws/ors/ors114.html
1
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by debts or liens. Do not include any asset that transfers automatically. See the next section for
more information about assets. Talk to a lawyer if the estate values are higher than the limits
above.
F
O
T
F
ILL
UT
HE
ORM
Be sure your entries and descriptions are clear and specific to avoid confusion. If your entries
are not clear, you may have to file an amended Affidavit.
YOU MAY HAVE TO PERSONALLY PAY THE COST OF MISTAKES IF YOU DO NOT
DISTRIBUTE ASSETS CORRECTLY! Talk to a lawyer if you are not sure how to
distribute the estate.
A
(Assets include both real and personal property)
SSETS
 Valuation Date means the date the asset’s value is established.
o If Decedent died within a year of filing the Affidavit, use the value as of the date
of death. If it has been more than a year, the valuation date must be no more than
45 days before filing the Affidavit.
o Example: Decedent died two years before the Affidavit is filed. Asset A was worth
$10,000 when Decedent died. Asset A is worth $12,000 three weeks before the
filing date. Use the $12,000 value for Asset A.
 Value to use
o Use the fair market value as of the valuation date
o Do not reduce any values by the amount owed on debts or liens (like mortgages
or loans)
 Real Property means land or interests in land. This may include a house, rental
property, or easement. Mineral rights and timber that was not harvested by the date of
death are considered real property. You must use a legal description of the property in
addition to the street address.
o The legal description can be found on the deed or by calling the county
recorder’s office
 Personal Property means any asset that is not real property, including intellectual
property and money. The following details will help identify assets:
Vehicles - year, make, model, VIN, and license number
Bank and Investment Accounts - the name of the bank, type of account (checking,
savings, IRA, 402(k), brokerage, etc.), and last 4 digits of the account number
Stocks and bonds - the name of company, number of shares or type of bond, and any
identifying numbers (a CUSIP number is good)
Manufactured home - year, make and serial number
Promissory notes (such as for real property sold and secured by a trust deed) - the
name of the borrower, the date of the note, and the original amount of the note
Life insurance (payable to the estate or without a designated beneficiary) - the name
of the insurance company and the policy number
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D
EVISEES
If Decedent left a valid will, “devisees” are those named in the will to receive any part of the
estate. The same person may be both a devisee and an heir. If so, they should be listed on the
Affidavit in both sections.
Divorce and marriage may affect the terms or validity of a will. Talk to a lawyer.
Check to see if the will requires a devisee to survive Decedent by a certain amount of time or
until an event occurs. Such conditions may be called survivorship provisions. Note any
conditions on the Affidavit with the asset to be distributed.
H
EIRS
An heir is anyone entitled to inherit part of an estate under Oregon law. You must figure out
who the heirs are.
Read
ORS 112.015 – 112.115
for Oregon’s laws about heirs (“intestate
succession”). Read the law carefully!
Other Oregon laws may affect who is an heir. If you have questions, talk to a lawyer.
Notes about heirs and devisees
 Adopted children are treated as natural-born children under the law
 If there are no heirs or devisees, the estate is inherited by (“escheats to”) the State
Treasurer under
ORS 112.055
 Even if you cannot locate an heir or devisee, that person remains entitled to their portion
of the estate. You must tell the court the names of any heirs you cannot locate. All heirs
must be listed, even if Decedent did not know of them or have any contact with them.
Any asset not covered by the will must be distributed to heirs as though the will did
not exist. See the “Heirs” section above for how to handle assets not awarded to a
devisee. If you have questions, talk to a lawyer.
Notes about Wills
 Many wills break the estate down into “tangible personal property” and “residue.” Often
the same people will receive the same shares of those assets. If not, list those categories
separately.
o Residue means any asset not specifically identified in the will
o If the will directs that the residue goes to “my children” and the decedent had a
deceased child, read the will carefully. Depending on what the will says, the
deceased child’s share could go to their children, or the siblings of the deceased
child could receive a larger share of the residue.
o If the will does not include directions about how to distribute residue, the residue
must be distributed among the heirs according to
ORS 112.015 – 112.115.
 You can enter the specific asset to be distributed to a recipient, or the portion of the
estate each recipient will get
Claims, Creditors, and Estate Expenses
 Claims are liabilities of Decedent. Claims can include bills, debts, etc. Any person,
business, or institution with a claim is a “creditor.”
o You can use estimates for claims. If you don’t know the amount of a claim and
can’t get a reasonable estimate, enter “unknown.”
o See
for information about paying undisputed claims like funeral
ORS 114.545
expenses, utility bills, credit cards, mortgages, caregiver costs, etc.
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 You must file any required tax returns and pay any taxes owed from estate assets. This
includes the decedent’s final personal income tax returns. This could also require
fiduciary income tax returns if the decedent’s assets after death earned enough income
before you distribute the estate. You may want to talk to a tax advisor.
o
Click here
to go to the IRS for more information about federal taxes
o
Click here
to go to the Oregon Department of Revenue website for information
about state taxes
 If the estate does not have enough money or assets to pay all claims and expenses, you
must pay claims and expenses in the order of priority in
ORS
115.125. You could be
personally liable if the estate does not have enough money and you pay the claims in the
wrong order.
 If Decedent received any government assistance such as Medicaid, the Oregon Health
Plan, food stamps, or welfare benefits, a state agency may have a claim against the estate
 Administrative expenses are usually expenses that arise after the decedent’s death.
Examples include the filing fee for this Affidavit, lawyer fees, cost of preparing tax
returns and buying death certificates, costs to maintain or prepare assets for sale, etc.
Disputed Claims
 If you believe a claim is not valid, you must deny it in writing. Enter it as a ‘disputed
claim’. For example, a claim for services you believe were not rendered to Decedent,
claims you believe were already paid, or claims for more than Decedent agreed to pay.
 You cannot enter a claim as ‘disputed’ just because the estate does not have enough
assets to pay it.
 You must deny in writing claims that are not presented on time. See
ORS 114.540(1)(a)
for the time deadlines, usually within four months of the date of filing the Affidavit or
amended Affidavit.
How to Deny Claims
 You must give notice of denial of claim within 60 days after the claim is presented to you.
If you don’t, the claim is considered allowed. If you allow a claim that is invalid, you
could be personally liable.
 Mail or deliver notice that you are denying the claim to the person who filed the claim
and their lawyer, if any. You can deny all or part of the claim. The notice must state the
reason for denial and include other information required by
ORS
114.540(2).
A creditor can ask the court for a “summary determination” of a claim. The court will hold a
hearing unless you and the creditor reach an agreement about the claim. See
ORS
114.540.
Before distributing the estate assets, you must wait until
(1) 4 months have passed after the date the Affidavit, or the latest-filed amended Affidavit,
was filed
AND
(2) all claims, expenses, and taxes have been paid
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