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Gruber Diane L
With such a difference in the time involved, why would anyone file with the DAs Office?
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Dividing Assets and Debts In Divorce Proceeding
In a divorce proceeding the couples assets and debts will be divided between them. An asset or debt that is acquired during the marriage is deemed to be a marital asset or debt by the divorce court, even if the asset or debt is held in one spouses sole name, and will be dealt with by the court.
Can divorcing couples determine how to divide their assets and debts without the judge making the decision for them? Yes. The great majority of divorces in Oregon are settled by the parties before the trial date. If the parties have decided how to divide the assets and debts, and have settled all other issues, a Stipulated Judgment is drafted by the attorney representing one of the spouses, and both sign it. The Judgment is then submitted to the Court and signed by a judge. The divorce is then final and the parties are single again. Division of assets is final. The issue of responsibility for debts is not so simple.
Can the spouses decide how to divide debts without the creditors knowledge? Yes and no. If the mortgage, credit card or loan was applied for with both spouses signing the papers, BOTH will be legally responsible until the debt is paid in full. When the couple divorces and the Divorce Judgment requires one of them to repay the debt, the other spouse is not off the hook with the creditor. The creditor was not a party to the divorce proceeding; therefore, the creditors contract rights have not been altered. If payments are not made as required in the loan contract, the creditor can sue one or both parties for the money. If a debt is in just one spouses name it is best that that debt be assigned to that spouse in the Divorce Judgment.
What information is listed on each ex-spouses credit report? Each ex-spouses credit report will show that he or she is liable on a joint loan and will NOT show that the Divorce Judgment requires just one ex-spouse to service the debt. Moreover, if the spouse who received the house in the divorce does not sell it or refinance the mortgage, chances are good that the other spouse will not qualify for a mortgage to buy a house for him/herself. At trial the judge will require that the ex-spouses name be removed from the mortgage within a year or two, but allows the party receiving sole title to decide how to do it. In recent years a few mortgage lenders have been willing to remove the ex-spouses name from the mortgage upon request. Usually the house must be refinanced or sold to end the ex-spouses loan obligations.
If the ex-spouse who is supposed to pay off a joint debt fails to do so, what can the other ex-spouse do? Sometimes one party will not hold up his or her responsibility to pay a debt. The other party can pick up the payments in order to protect his or her credit rating, or wait to be sued by the creditor. After the debt has been paid off, the wronged party can file a motion in the same court that granted the divorce, seeking to be reimbursed by the ex-spouse. If the party can prove that he or she paid off the debt that was assigned to the other party in the Divorce Judgment, a judgment will be granted in favor of the party who paid the debt and against the party who was supposed to pay the debt.
What happens to the house? If the parties each want to retain the house purchased during the marriage the judge has the authority to award it to either party. The judge also has the authority to order the house to be sold, and the authority to rule how the proceeds will be spent or divided. The judge usually requires that the proceeds first be used to pay off all the debts incurred during the marriage in order to disentangle the parties finances.
Is there any difference in the manner in which a divorcing couple will divide the assets and debts, compared to how the judge will divide them? Probably. The judge is restrained by statute and by rulings from the Oregon Court of Appeals & the Oregon Supreme Court when he or she rules upon division of assets and debts. In 1977 the Oregon Court of Appeals ruled that property division should disentangle the spouses financial affairs and make them free from each others interference. The couple can be far more creative in structuring a Divorce Judgment that meets their unique needs and circumstances. Moreover, Oregon Statutes require the Court to consider a homemakers contribution to the marriage as a contribution to acquisition of marital assets. Thus, the family breadwinner does not leave the marriage with all the assets. Nor are the assets divided based upon each partys income during the marriage.
What happens when one or both spouses brought assets or debts into the marriage? In an often cited 1985 ruling, the Oregon Court of Appeals found that the more intertwined the parties financial circumstances the more likely an equal distribution should be ordered even though a short-term marriage was involved, and one spouse did not bring as many assets into the marriage.
How are assets and debts handled when all were acquired during the marriage? The standard formula for property division in a divorce requires first placing a market value on each and every asset (without regard to which spouse holds title), including the present value of a pension plan. These values are added together, and the total debts are subtracted. Each spouse receives half of the value of the total assets. In dividing the assets, some may need to be sold, so that each spouse leaves the marriage with half the value of the marital estate. The judge may order a certain property be sold and the proceeds used to pay off certain debts. Another way to equalize property distribution is for one spouse to receive a money judgment wherein the other spouse will pay a sum of money plus interest in the future. Most such judgments require monthly payments to begin shortly after a judge signs the Divorce Judgment.
What happens to an asset that one spouse brought into the marriage? If a party has brought an asset into the marriage, that party will usually leave the marriage with that asset, or the original value of that asset, UNLESS it has been commingled with joint assets, or with the spouses assets. Regardless, the other spouse will share equally any increase in value of that asset during the marriage, including the first spouses pension plan. The more intertwined the parties financial circumstances the more likely an equal distribution would be ordered by the judge even though a short-term marriage was involved, and even though one spouse did not bring as many assets into the marriage.
Example Number One: Kate brought a house into her marriage with Jerry and she kept sole title. The couple lived in Jerrys house during their marriage, while Kates house was rented out. The rental income Kate received was deposited into Kates bank account, and was never used for marital expenses. Kate paid repairs and expenses associated with the rental house out of these funds, and used most of the remaining funds on personal expenses. When the couple divorced Kate retained the rental house, but she had to share with Jerry the houses appreciation in value during their 10-year marriage.
Example Number Two: During a four-year marriage, Lynn transferred a co-ownership interest to David in her pre-marriage residence, and the parties contributed substantial marital funds toward the improvement of this house. The Oregon Court of Appeals ruled that the parties have equal interest in the residence. Lynn was awarded sole title of the house in the divorce proceeding. However, the total value of the house was included as a marital asset and David received half of its value by receiving other marital assets.
What happens to a loan from one spouses relatives? Loans from relatives are treated by the divorce court as any other debt IF there is a written agreement AND the couple was making regular payments pursuant to the agreement. If not, the loan will be treated as a gift and will not be included as a debt when the couples assets and debts are divided.
Since the Oregon Legislature first enacted a child support statute in 1989, it has made many changes in the formula by which support is calculated. [Prior to 1989 child support was based on a formula created by the Oregon Supreme Court.] The power and authority of the Oregon Department of Justice, Support Enforcement Division has increased significantly, and the authority of parents to make financial decisions regarding their own children has decreased. Nevertheless, parents still have more authority than they may think.
How is Child Support calculated? The current Oregon Child Support Guidelines formula consists of several variables and a fixed chart of basic support. With this information the legal amount of support to be paid from the non-custodial to the custodial parent can be calculated: The variables are: 1) each parents gross monthly income, 2) the number of children, 3) the childrens health insurance premium, if any & which parent is paying the premium, 4) the number of children each parent has from another marriage, 5) which parent will have custody and the amount of visitation time the other parent will have, 6) the ages of the children and 7) the actual monthly day-care expense. With this information an experienced attorney can determine the legal amount of child support.
Does the Child Support calculation take into account income taxes? No. The child support formula is based upon before-tax income and does not account for changes in federal income taxes from year to year. The payer is not able to deduct child support on tax returns, and the recipient is not required to pay taxes on the child support received.
Can divorcing parents create their own financial arrangements for the children? Yes and No. The short answer is yes, IF the parents work together and have attorneys who are willing to work with them. Some attorneys will tell you that you have no choices, but they are inexperienced and/or uninformed. Seek an attorney who understands all your options and will work with you to maintain some control. The short answer is no, IF the parents do not cooperate and/or the case actually goes to trial. With some exceptions, the trial judge is required to follow the Oregon Child Support Guidelines.
Who decides the correct amount of Child Support? Only a Circuit Court Judge has the authority to order one individual to pay money to another individual, including child support. Both legal parents of a child are obligated to provide for the child. This is true for both paternity parents and divorced parents. If the parents do not live together, one parent can obtain a child support order from the Circuit Court requiring the other parent to pay support.
How does the process start? The parent who wants to modify an existing support order can choose one of two methods. He or she can file a motion directly with the Circuit Court, either with or without hiring an attorney, OR file an application with the DAs Office who will process the paperwork, contact the other parent, calculate the alleged support amount and draft the Support Order. If one parent wants to challenge the amount of support that the DAs Office calculates he/she can request a telephone hearing. The decision of the hearings referee does not become a support order until it is signed by a Circuit Court Judge. Either parent can challenge the referees decision by filing an appeal with the Circuit Court within 60 days. The State of Oregon has no authority to arbitrarily change child support and no authority to rule upon the amount of support. ONLY a Circuit Court Judge can do that. A support order obligates monthly payments only when it is signed by a judge.
Is there any difference between filing for child support directly with the Circuit Court, and filing through the DAs Office? Yes! There is only one child support chart and only one set of rules. The Court, the DAs office and the hearings referee are all supposed to calculate child support the same way. However, judges have much more authority, more experience with the bigger picture and more discretion in applying their own interpretation of the child support rules, than the DAs caseworkers. Also, the expertise of the DAs staff varies from county to county, and the caseworkers are usually NOT attorneys. The key to protecting your interests lies in understanding the process. I strongly recommend a consultation with an experienced attorney before a parent files the application with the DAs Office.
How long does it take to get child support changed? The length of the process varies widely. If a parent files directly with the Circuit Court in Multnomah or Clackamas Counties, the entire process will take 6 to 12 weeks. In my practice I pick a hearing date 6 weeks in advance, because that is all we need to get the other parent served and prepare for the hearing. Filing with the DAs Office takes about 6 to 12 months. The time varies greatly from case to case, depending upon whether a parent requests a telephone hearing, the experience of the caseworker, and whether the case is transferred between caseworkers.
With such a difference in the time involved, why would anyone file with the DAs Office? The taxpayers are paying for the entire process if a parent uses the DAs Office. However, the parent has little control over the process and is not kept informed. If a parent files directly with the Circuit Court (with or without hiring an attorney) he/she has control over the process, is closely involved in each step, and can stop or change the process at many points. Also, other issues, such as the childs medical expenses and visitation problems can only be addressed by the Circuit Court, since the DAs Office has no authority to handle these. Moreover, once the bureaucracy starts the process it is out of the parents control and cannot be stopped until it runs the full course. If the parent is unhappy with the result, his or her only recourse is to file an appeal with the Circuit Court. The old expression: you get what you pay for really applies here. Free services may save you money in the short-run, but often cost you much more in the long run. I have met many unhappy parents who filed for an increase or decrease via the DAs Office, and wound up receiving the opposite.
In its April 26, 2001 decision, the Oregon Supreme Court affirmed an Oregon statute that places financial burdens on divorced and paternity parents that are not forced upon married parents.
The Fourteenth Amendment to the U.S. Constitution prohibits states from treating some citizens differently than other citizens: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
In 1973, the Oregon Legislature decided that divorced and paternity parents would be required, BY STATUTE, to finance their adult childrens forays into post-high school learning. There is no such statutory requirement that requires married parents to provide a dime for ANY purpose to sons and daughters who have reached majority. Indeed, once the kid reaches age 16 parents are not even required to get Junior to the front steps of the high school building, although they are required to support him UNTIL the age of majority, 18.
The age of majority was lowered from 21 to 18 in 1973. At 18 we can vote, we can enter into binding contracts, we can live wherever we like, we can travel to the other side of the world, AND we can force BOTH parents to send us a monthly check.
There are just two conditions that must be met: 1) our parents dont reside together and 2) we are enrolled in ANY type of school part-time (10 credit hours per term) maintaining a C average. We can extort these payments from mom and dad until age 21 so long as we continue with our basket-weaving classes. We are not even required to declare and work toward obtaining a degree.
For years family law attorneys, recognizing that this Oregon statute tramples the 14th Amendment with mud-covered boots, (or should I say ducks), have speculated over just when a trial judge would be brave enough to officially recognize and comply with the U.S. Constitution, and thereby incur the wrath of the powerful Liberal minority who has long controlled the Oregon Judiciary, the Oregon State Bar and the Oregon Legislature.
Finally, in 1997 an Oregon Circuit Court Judge, Paula Kurshner, (Multnomah County) had the courage to follow the U.S. Constitution when she ruled that ORS 107.108 permits a child support obligation to be imposed upon one class of citizens . . . while no provisions exists permitting such an obligation to be imposed in like circumstances upon married parents. In her ruling Judge Kurshner said Dennis Crocker did not have to make child support payments because his 18-year-old daughter decided to go to college. His ex-wife, Marianne Groom, appealed this decision to the Court of Appeals who reversed Judge Kurshners ruling, stating that there is a rational basis for a distinction between divorced parents and cohabiting married parents. Mr. Crocker then appealed to the Oregon Supreme Court.
The Oregon Supreme Court refused to address the issue of constitutionality. In a tortured reasoning process that utilized an obscure statute adopted in 1889, the court came up with an excuse for discriminating against divorced and paternity parents. Neither the fathers attorney nor the mothers attorney used this antiquated statute, ORS 108.110, as supporting either side of this dispute. However, the Support Enforcement Division and the Oregon Attorney General, in its friend of the court brief brought up this statute. That was all the court needed to know. They had their marching orders from the State, and they marched all over the U.S. Constitution, not to mention the Oregon Constitution, and a significant number of Oregons citizens.
The childless, never-divorced and/or naive among us might very well ask Why should Support Enforcement or the Attorney General care whether or not parents must pay child support for adult children? The State of Oregon intercepts the great majority of child support payments paid between mothers and fathers and runs the money through the States coffers before sending it to the college student or the custodial parent. While these funds are being held by the State, the State earns interest on it. This interest is not turned over to the parent or college student.
Custody: The Basic Legal Terms
When a mother and a father do not live together and both want custody of the children, a judge decides who is awarded sole custody. What criteria does the judge utilize? Do judges use the same factors with paternity parents as they do with divorcing parents? Are mothers and fathers treated equally in custody decisions in Oregons Courts? Is joint custody the same as shared custody? What is the difference between legal custody and physical custody? Diane L. Gruber
The judge is required to give primary consideration to the best interests and welfare of the child ORS 107.137(1). There are five factors that the judge is required to consider in granting sole custody to one parent over the other parent: (a) Emotional ties between the child and other family members; (b) Each parents interest in and attitude toward the child; (c) The desirability of continuing an existing relationship; (d) The abuse of one parent by the other and (e) The willingness and ability of the parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
If both parents were living with the child just before the legal action started, the parents begin the custody dispute on equal footing. The next step is to discern which parent is the primary parent. In ORS 107.137 (1)(b) the judge is required to consider the parties interest in and attitude toward the child. This has general been interpreted as determining who fills the role of primary parent. Of the five statutory factors, this factor has the most significance with judges.
The primary parent is the one who handles most of the decision-making and care-taking of the child. The primary parent interacts with the child and spends more time with the child than the other parent, and makes most of the day-to-day decisions about the childs activities. In some marriages, there is no clear-cut primary parent, as the parents divide the parenting duties more or less equally. However, in most marriages the primary parent is the mother. The younger the child, the more likely the mother will be the primary parent.
Therefore, the parents behavior, as parents, prior to the custody dispute largely determines who will be granted sole legal custody and physical custody of the child. Absent unusual circumstances, the non-custodial parent is granted a visitation schedule wherein he or she has the child every other weekend, half the annual holidays and several weeks each summer. The Courts are extremely reluctant to deny contact between the child and the non-custodial parent, as they recognize that a child needs time with both parents.
ORS 107.137 also states: No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father. In actual practice, most mothers have an edge over most fathers due to the fact that the mother is usually the primary parent. This is especially true of paternity mothers, as often the father has never lived with the child.
When a married couple has a baby they have joint legal custody of the baby, even though no one calls it that. Joint legal custody means that each parent is equal under the law as regards to the decision-making for and on behalf of the child. When a child is born out-of-wedlock, the child has only one legal parent, the mother. Joint legal custody does not take effect unless and until the mother and the biological father sign a paternity affidavit and file it with Oregons Vital Statistics office, or the Court declares a man to be the legal father.
During a divorce, parents have the option of continuing joint legal custody of the children, but they must both agree to do so. The judge does not have the authority to aware joint legal custody over the objections of one parent. The judge only has authority to grant sole legal custody to one parent and a visitation schedule to the other parent.
The term physical custody merely designates the adult with whom the child resides. This is typically the same adult who also has legal custody, but it does not have to be. In the past decade or so, it is not unusual for a single parent to turn the children over to his or her parent(s) to raise, both with and without signing formal custody documents. The parent retains legal custody, but the grandparent has physical custody. This means that the parent still has all the legal authority to make decisions about the child, including moving him to another caretaker.
Shared custody between parents consists of the child living in both households. For example, the child lives one week at moms house, the next week at dads house, the following week at moms house again and so on. These parents typically have joint legal custody of the child, but it isnt mandatory. This counsel has seen custody arrangements where one parent has sole legal custody, yet the parenting schedule has the child living half the time with dad and half the time with mom (i.e. the child resides with each parent about 50% of the time).
When a child is born out-of-wedlock, he has only one legal parent. The child does not have a legal father unless and until the mother and a man sign a paternity affidavit and file it with Oregon's Vital Statistics office, or the Court declares a man to be the biological father and makes him the legal father via an Order of Paternity.
ORS 109.094 states "Upon the paternity of a child being established in the proceedings, the father shall have the same rights as a father who is or was married to the mother of the child." This means that a paternity father has the same obligation to pay or right to receive child support as a divorced father. He can also pursue custody and visitation orders through the court. In a custody dispute, most paternity mothers have an edge over the father due to the fact that usually the father has never lived with the child. The court is very reluctant to uproot the child unless there are serious problems in the mother's household. The court grants identical visitation orders mow called "Parenting Time Orders" to paternity fathers as it does to non-custodial divorced parents, except in the situation where the child and father are strangers. In that case, there is often a get-acquainted period of several months before the child stays overnight with his/her father.
Spousal Support (Alimony)
There are three kinds of spousal support (AKA alimony) under Oregons Divorce statutes. Spousal support is unisex in that either spouse can be the recipient of spousal support from the other. However, due to the fact that most homemaking and child rearing duties are done by the wife in a marriage, it is unusual that a wife would be required to pay spousal support to her ex-husband.
The three kinds of Spousal Support are: 1) Transitional, 2) Maintenance, and 3) Compensatory.
Transitional: This spousal support is to assist the dependent spouse to obtain whatever education and training is necessary to allow him/her to prepare for re-entry into the workforce, or for advancement in the workforce.
Maintenance: This spousal support is to assist the dependent spouse to maintain a reasonable standard of living.
Compensatory: This spousal support is paid by one ex-spouse to the other when there has been a significant financial or other contribution by the dependent spouse toward the education, training, skills, career or earning capacity of the other spouse.
Unlike child support, there is no mathematical formula to arrive at the monthly amount of the spousal support, or the length. The amount & length are based upon many factors: a) duration of marriage; b) the parties education & work experience; c) the parties relative earning capacities; d) the financial needs & resources of each party; e) the age & health of each party; f) a partys custodial or child support obligations; g) the standard of living established during the marriage; and h) any other factor the judge deems just & equitable.
A comprehensive analysis by an experienced divorce attorney can give the husband or the wife a ballpark figure of what amount and what duration of spousal support to expect if the case goes to trial. Most spousal support cases settle prior to trial.
The Importance of Having a Will
There is a great deal of misinformation and myth about Estate Planning and Wills circulating among Oregonians. I hope the following questions and answers will clear up some of the confusion. Diane L. Gruber
What happens if I do not have a Will at my death? If you own any property in your name alone, your assets must go through the probate process regardless of whether or not you have a Will. Without a Will your property will be distributed to various relatives according to Oregon Statutes, not according to your wishes. Also a Will can reduce the cost of probate.
Can a Will be changed? You can change your Will as often as you want, so long as you are of sound mind. The sound mind standard is very easy to meet. You may want to change your Will for many reasons, such as a marriage, a divorce, the birth of children or grandchildren, or a significant change in your assets. Everyone should review their estate plan every five years to determine if it meets his or her current needs and objectives. This review may or may not require changes to your Will.
Who will manage my estate after my death? Having a Will allows you to decide who will be the executor (called Personal Representative in the Oregon Statutes) of your estate. You may choose a friend, a relative or a professional, such as an attorney or a CPA. If you think there may be hard feelings in your family and/or your estate is very large or complex, you may want to name a professional; otherwise, a trusted relative or friend can handle the executors duties with the help of a probate attorney.
What are the advantages of having a Will? A Will allows you to decide how your assets will be distributed or managed after you die. Also, it lets your wishes be heard regarding the care of minor children (appointment of guardians). It often prevents disputes among heirs & relatives. The probate process settles all the deceaseds debts, and transfers property debt-free, except for secured debts, to your heirs. A Trust can be set up after your death to provide for the financial needs of your children, spendthrift relatives & disabled loved ones by including Trust provisions in your Will.
What are the disadvantages of having a Will? None. Remember, a Will is not activated until your death. Up to that point you may change it as often as your circumstances and wishes change. Fortunately, the cost of having your Will drafted and updated is quite reasonable if you choose the right attorney.
Are there certain people who need Wills more than others? Yes, 1) married couples who have children from previous marriages, and 2) single adults without children or grandchildren. It is especially important for these individuals to carefully craft an estate plan so that each loved one is treated as the individual wishes that person to be treated when his or her assets are distributed. If these individuals, regardless of age, discuss estate planning with an experienced attorney, he or she can avoid disputes among loved ones, keep probate costs to a minimum and prevent the wrong person from receiving assets.
Is it possible for a deceased person to own assets that are not in his name? Yes. Two situations come to mind immediately: 1) If your death is caused by the negligence of others, your estate may be entitled to receive a judgment against the wrong-doer and/or insurance funds; and 2) Just prior to your death (perhaps without your knowledge), someone else passed away leaving assets to you. I dealt with a mother in her 70s and a daughter in her 40s who passed away within a few weeks of each other. The daughter owned only joint assets, until her mother passed away leaving her half of a large estate. Since the daughter had a Will, her wishes prevailed and a dispute among relatives was avoided.
The Probate Process Is Simple
Some Oregonians view Probate with dread and they try to avoid it at all costs. They will spend hundreds, if not thousands of dollars, and many, many hours planning how to avoid it. In truth, there are few legal proceedings as cost-effective as the Probate process. The Probate process is designed to provide an orderly transfer of the deceaseds assets to the persons chosen to receive them, while protecting the interests of certain close relatives and creditors. It is a simple process that the public has been taught to fear by those wanting to sell them probate alternatives. These so-called probate alternatives are always more complex and more time-consuming than Probate, and are rarely less expensive. Diane L. Gruber
What is probate? Probate is the legal process that transfers the assets of a deceased person to living persons. Probate is usually handled by the court in the county where the deceased resided at the time of death.
When is probate needed? Probate is not needed if the deceased only owns bank accounts & property jointly with a living person. Therefore, a married couple who own all their assets jointly will not need a probate proceeding when the first spouse passes away. Probate is necessary to transfer the deceaseds property when any kind of valuable property is held in his or her sole name. If a person passes away leaving just a few personal belongings & household goods, these can be distributed without a probate proceeding. Therefore, a married couple who own all their assets jointly will not need a probate proceeding when the first spouse passes away.
How long does probate take? Probate can be, and should be, started immediately after death. If the deceased had a will, the person named as "personal representative" (aka: executor) is obligated to start the probate process. If the deceased died without a will, a close relative should start the process. An experienced attorney can finalize a simple probate in five to seven months. If property must be sold during probate, or there are complicated tax matters, probate can take a little longer. Few probates take longer than a year. If funds are needed by a beneficiary the court can make a partial distribution of probate funds or property before the end of the probate process. The Oregon statutes have an expedited process for small estates that takes just over four months.
What is a small estate proceeding? A small estate proceeding applies if the deceased owns total assets valued at $200,000 or less. To remain under this figure the real property cannot be valued at more than $150,000 and the personal property cannot be valued at more than $50,000. Personal property includes everything that is not real property.
Do I need an attorney to help me with my relatives probate? Probate in Oregon is not complicated (unless the assets and debts are complex) but involves a good deal of paperwork that must be filed in a timely manner. To prepare the proper documents at the right time, and to ensure that all property is properly transferred, you need a probate attorney.
What are the costs of probate? The Court filing fee is a percentage of the value of the deceaseds assets. For example, the Court charges $248 for a $50,000 estate, $448 for a $500,000 estate and $648 for a $3,000,000 estate. An attorney will charge by the hour and the court must approve the fees before the attorney is paid.
What happens to my assets if I die without a will? The assets that you own in your sole name will be distributed via Oregon statutes. How your estate is distributed depends upon your marital status and the status of your blood relatives. Here are a few examples. If you are single and have children, each child will receive an equal share of your entire probate estate. If you are married, with or without joint children your spouse will receive your entire estate. If you are married, but your children are from another marriage, your spouse receives one-half of your estate and your children receive one-half. If you die single, leaving no children or grandchildren, your surviving parent(s) will receive your entire estate. If your parents and grandparents are already deceased, and you are unmarried, your brothers and sisters will each receive equal shares of your estate. Statutory distribution does not take into account whether or not you ever MET the relatives that will inherit. Indeed, your least favorite relative could wind up with all or part of your estate. Only by signing a will can you be assured that people you love will receive your assets.
When should probate be started? Probate can and should be started within a few weeks after the person has passed away. The person named as personal representative (executor) in the will is responsible for protecting the deceaseds assets, so he or she will want to begin the process promptly.
How is probate started? Probate begins by filing a petition with the Circuit Court in the county where the deceased lived at the time of death or where the deceased owned property. The will is attached to the petition when it is filed with the court. The court will appoint the person named in the will as personal representative (executor) to serve without bond. (The named person is allowed to decline.) If there is no will, a relative or close friend will ask the court to be appointed personal representative. The court will normally grant the request and require the personal representative to obtain a bond.
What are the duties of the Personal Representative? The personal representative is called executor in most other states. He or she is the person who handles the deceaseds affairs. With the deceaseds funds the executor pays the final expenses of the deceased, collects money that is owed to the deceased, prepares the required tax documents and pays the deceaseds taxes. Oregon statutes provide for a generous fee for the executor, which is based upon the value of the estate. The deceased may provide for an additional fee for the executor in the will.
What steps take place during the probate process? After the executor is appointed by the Court, a notice to creditors is published in a local newspaper. This notice tells creditors that they have four months to bring any claim against the probate estate for debts owed by the deceased. The executor also gives written notice to all known creditors. Heirs (as defined by Oregon statute), as well as the people & organizations named in the will, are notified of the probate proceeding. The executor ascertains what assets the deceased owns and their approximate values, and files an inventory with the court. If funds are needed, the executor may sell assets during the probate process. Four months after the notice is published in the newspaper, the executor can file a motion with the court to close the probate estate and distribute the net assets to the proper beneficiaries or heirs. If all the documents are in order the court will grant this request within a few days. The executors final duties are to be sure beneficiaries or heirs receive all the deceaseds property, after known creditors are paid in full.
What does the Court do? The court makes sure the will is valid, and that the proper person receives the correct asset per the will. If there is no will the court makes sure the heirs receive the assets pursuant to statute. The court also makes sure all the interested persons were notified about the probate, and that claims of creditors are settled. The court reviews the probate receipts to be sure that all expenses taken from probate funds were valid. These court duties are handled without a hearing. Normally, the probate process does not require a court hearing. A hearing will only be needed if a relative or creditor files an objection to how the probate is being handled, or to the validity of the will, and the dispute can not be settled by discussions between the executor and the complaining person. Such disputes are relatively rare when the will has been properly drafted, and an experienced attorney is assisting the executor (Personal Representative).
Is it ever too late to start the probate process? No. In 2000 this attorney handled the probate of an elderly lady who passed away in 1977. A probate was not filed in 1977 because the family members mistakenly believed that probate was not required. The deceased did not own any assets in her sole name other than a piece of undeveloped land on the Oregon coast. A relative paid the property taxes on this land all these years, and decided it was time to remove the deceaseds name from the property so that the deceaseds son and daughter can have title to the land.
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Dividing Assets and Debts In Divorce Proceeding
In a divorce proceeding the couples assets and debts will be divided between them. An asset or debt that is acquired during the marriage is deemed to be a marital asset or debt by the divorce court, even if the asset or debt is held in one spouses sole name, and will be dealt with by the court.
Can divorcing couples determine how to divide their assets and debts without the judge making the decision for them? Yes. The great majority of divorces in Oregon are settled by the parties before the trial date. If the parties have decided how to divide the assets and debts, and have settled all other issues, a Stipulated Judgment is drafted by the attorney representing one of the spouses, and both sign it. The Judgment is then submitted to the Court and signed by a judge. The divorce is then final and the parties are single again. Division of assets is final. The issue of responsibility for debts is not so simple.
Can the spouses decide how to divide debts without the creditors knowledge? Yes and no. If the mortgage, credit card or loan was applied for with both spouses signing the papers, BOTH will be legally responsible until the debt is paid in full. When the couple divorces and the Divorce Judgment requires one of them to repay the debt, the other spouse is not off the hook with the creditor. The creditor was not a party to the divorce proceeding; therefore, the creditors contract rights have not been altered. If payments are not made as required in the loan contract, the creditor can sue one or both parties for the money. If a debt is in just one spouses name it is best that that debt be assigned to that spouse in the Divorce Judgment.
What information is listed on each ex-spouses credit report? Each ex-spouses credit report will show that he or she is liable on a joint loan and will NOT show that the Divorce Judgment requires just one ex-spouse to service the debt. Moreover, if the spouse who received the house in the divorce does not sell it or refinance the mortgage, chances are good that the other spouse will not qualify for a mortgage to buy a house for him/herself. At trial the judge will require that the ex-spouses name be removed from the mortgage within a year or two, but allows the party receiving sole title to decide how to do it. In recent years a few mortgage lenders have been willing to remove the ex-spouses name from the mortgage upon request. Usually the house must be refinanced or sold to end the ex-spouses loan obligations.
If the ex-spouse who is supposed to pay off a joint debt fails to do so, what can the other ex-spouse do? Sometimes one party will not hold up his or her responsibility to pay a debt. The other party can pick up the payments in order to protect his or her credit rating, or wait to be sued by the creditor. After the debt has been paid off, the wronged party can file a motion in the same court that granted the divorce, seeking to be reimbursed by the ex-spouse. If the party can prove that he or she paid off the debt that was assigned to the other party in the Divorce Judgment, a judgment will be granted in favor of the party who paid the debt and against the party who was supposed to pay the debt.
What happens to the house? If the parties each want to retain the house purchased during the marriage the judge has the authority to award it to either party. The judge also has the authority to order the house to be sold, and the authority to rule how the proceeds will be spent or divided. The judge usually requires that the proceeds first be used to pay off all the debts incurred during the marriage in order to disentangle the parties finances.
Is there any difference in the manner in which a divorcing couple will divide the assets and debts, compared to how the judge will divide them? Probably. The judge is restrained by statute and by rulings from the Oregon Court of Appeals & the Oregon Supreme Court when he or she rules upon division of assets and debts. In 1977 the Oregon Court of Appeals ruled that property division should disentangle the spouses financial affairs and make them free from each others interference. The couple can be far more creative in structuring a Divorce Judgment that meets their unique needs and circumstances. Moreover, Oregon Statutes require the Court to consider a homemakers contribution to the marriage as a contribution to acquisition of marital assets. Thus, the family breadwinner does not leave the marriage with all the assets. Nor are the assets divided based upon each partys income during the marriage.
What happens when one or both spouses brought assets or debts into the marriage? In an often cited 1985 ruling, the Oregon Court of Appeals found that the more intertwined the parties financial circumstances the more likely an equal distribution should be ordered even though a short-term marriage was involved, and one spouse did not bring as many assets into the marriage.
How are assets and debts handled when all were acquired during the marriage? The standard formula for property division in a divorce requires first placing a market value on each and every asset (without regard to which spouse holds title), including the present value of a pension plan. These values are added together, and the total debts are subtracted. Each spouse receives half of the value of the total assets. In dividing the assets, some may need to be sold, so that each spouse leaves the marriage with half the value of the marital estate. The judge may order a certain property be sold and the proceeds used to pay off certain debts. Another way to equalize property distribution is for one spouse to receive a money judgment wherein the other spouse will pay a sum of money plus interest in the future. Most such judgments require monthly payments to begin shortly after a judge signs the Divorce Judgment.
What happens to an asset that one spouse brought into the marriage? If a party has brought an asset into the marriage, that party will usually leave the marriage with that asset, or the original value of that asset, UNLESS it has been commingled with joint assets, or with the spouses assets. Regardless, the other spouse will share equally any increase in value of that asset during the marriage, including the first spouses pension plan. The more intertwined the parties financial circumstances the more likely an equal distribution would be ordered by the judge even though a short-term marriage was involved, and even though one spouse did not bring as many assets into the marriage.
Example Number One: Kate brought a house into her marriage with Jerry and she kept sole title. The couple lived in Jerrys house during their marriage, while Kates house was rented out. The rental income Kate received was deposited into Kates bank account, and was never used for marital expenses. Kate paid repairs and expenses associated with the rental house out of these funds, and used most of the remaining funds on personal expenses. When the couple divorced Kate retained the rental house, but she had to share with Jerry the houses appreciation in value during their 10-year marriage.
Example Number Two: During a four-year marriage, Lynn transferred a co-ownership interest to David in her pre-marriage residence, and the parties contributed substantial marital funds toward the improvement of this house. The Oregon Court of Appeals ruled that the parties have equal interest in the residence. Lynn was awarded sole title of the house in the divorce proceeding. However, the total value of the house was included as a marital asset and David received half of its value by receiving other marital assets.
What happens to a loan from one spouses relatives? Loans from relatives are treated by the divorce court as any other debt IF there is a written agreement AND the couple was making regular payments pursuant to the agreement. If not, the loan will be treated as a gift and will not be included as a debt when the couples assets and debts are divided.
Since the Oregon Legislature first enacted a child support statute in 1989, it has made many changes in the formula by which support is calculated. [Prior to 1989 child support was based on a formula created by the Oregon Supreme Court.] The power and authority of the Oregon Department of Justice, Support Enforcement Division has increased significantly, and the authority of parents to make financial decisions regarding their own children has decreased. Nevertheless, parents still have more authority than they may think.
How is Child Support calculated? The current Oregon Child Support Guidelines formula consists of several variables and a fixed chart of basic support. With this information the legal amount of support to be paid from the non-custodial to the custodial parent can be calculated: The variables are: 1) each parents gross monthly income, 2) the number of children, 3) the childrens health insurance premium, if any & which parent is paying the premium, 4) the number of children each parent has from another marriage, 5) which parent will have custody and the amount of visitation time the other parent will have, 6) the ages of the children and 7) the actual monthly day-care expense. With this information an experienced attorney can determine the legal amount of child support.
Does the Child Support calculation take into account income taxes? No. The child support formula is based upon before-tax income and does not account for changes in federal income taxes from year to year. The payer is not able to deduct child support on tax returns, and the recipient is not required to pay taxes on the child support received.
Can divorcing parents create their own financial arrangements for the children? Yes and No. The short answer is yes, IF the parents work together and have attorneys who are willing to work with them. Some attorneys will tell you that you have no choices, but they are inexperienced and/or uninformed. Seek an attorney who understands all your options and will work with you to maintain some control. The short answer is no, IF the parents do not cooperate and/or the case actually goes to trial. With some exceptions, the trial judge is required to follow the Oregon Child Support Guidelines.
Who decides the correct amount of Child Support? Only a Circuit Court Judge has the authority to order one individual to pay money to another individual, including child support. Both legal parents of a child are obligated to provide for the child. This is true for both paternity parents and divorced parents. If the parents do not live together, one parent can obtain a child support order from the Circuit Court requiring the other parent to pay support.
How does the process start? The parent who wants to modify an existing support order can choose one of two methods. He or she can file a motion directly with the Circuit Court, either with or without hiring an attorney, OR file an application with the DAs Office who will process the paperwork, contact the other parent, calculate the alleged support amount and draft the Support Order. If one parent wants to challenge the amount of support that the DAs Office calculates he/she can request a telephone hearing. The decision of the hearings referee does not become a support order until it is signed by a Circuit Court Judge. Either parent can challenge the referees decision by filing an appeal with the Circuit Court within 60 days. The State of Oregon has no authority to arbitrarily change child support and no authority to rule upon the amount of support. ONLY a Circuit Court Judge can do that. A support order obligates monthly payments only when it is signed by a judge.
Is there any difference between filing for child support directly with the Circuit Court, and filing through the DAs Office? Yes! There is only one child support chart and only one set of rules. The Court, the DAs office and the hearings referee are all supposed to calculate child support the same way. However, judges have much more authority, more experience with the bigger picture and more discretion in applying their own interpretation of the child support rules, than the DAs caseworkers. Also, the expertise of the DAs staff varies from county to county, and the caseworkers are usually NOT attorneys. The key to protecting your interests lies in understanding the process. I strongly recommend a consultation with an experienced attorney before a parent files the application with the DAs Office.
How long does it take to get child support changed? The length of the process varies widely. If a parent files directly with the Circuit Court in Multnomah or Clackamas Counties, the entire process will take 6 to 12 weeks. In my practice I pick a hearing date 6 weeks in advance, because that is all we need to get the other parent served and prepare for the hearing. Filing with the DAs Office takes about 6 to 12 months. The time varies greatly from case to case, depending upon whether a parent requests a telephone hearing, the experience of the caseworker, and whether the case is transferred between caseworkers.
With such a difference in the time involved, why would anyone file with the DAs Office? The taxpayers are paying for the entire process if a parent uses the DAs Office. However, the parent has little control over the process and is not kept informed. If a parent files directly with the Circuit Court (with or without hiring an attorney) he/she has control over the process, is closely involved in each step, and can stop or change the process at many points. Also, other issues, such as the childs medical expenses and visitation problems can only be addressed by the Circuit Court, since the DAs Office has no authority to handle these. Moreover, once the bureaucracy starts the process it is out of the parents control and cannot be stopped until it runs the full course. If the parent is unhappy with the result, his or her only recourse is to file an appeal with the Circuit Court. The old expression: you get what you pay for really applies here. Free services may save you money in the short-run, but often cost you much more in the long run. I have met many unhappy parents who filed for an increase or decrease via the DAs Office, and wound up receiving the opposite.
In its April 26, 2001 decision, the Oregon Supreme Court affirmed an Oregon statute that places financial burdens on divorced and paternity parents that are not forced upon married parents.
The Fourteenth Amendment to the U.S. Constitution prohibits states from treating some citizens differently than other citizens: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
In 1973, the Oregon Legislature decided that divorced and paternity parents would be required, BY STATUTE, to finance their adult childrens forays into post-high school learning. There is no such statutory requirement that requires married parents to provide a dime for ANY purpose to sons and daughters who have reached majority. Indeed, once the kid reaches age 16 parents are not even required to get Junior to the front steps of the high school building, although they are required to support him UNTIL the age of majority, 18.
The age of majority was lowered from 21 to 18 in 1973. At 18 we can vote, we can enter into binding contracts, we can live wherever we like, we can travel to the other side of the world, AND we can force BOTH parents to send us a monthly check.
There are just two conditions that must be met: 1) our parents dont reside together and 2) we are enrolled in ANY type of school part-time (10 credit hours per term) maintaining a C average. We can extort these payments from mom and dad until age 21 so long as we continue with our basket-weaving classes. We are not even required to declare and work toward obtaining a degree.
For years family law attorneys, recognizing that this Oregon statute tramples the 14th Amendment with mud-covered boots, (or should I say ducks), have speculated over just when a trial judge would be brave enough to officially recognize and comply with the U.S. Constitution, and thereby incur the wrath of the powerful Liberal minority who has long controlled the Oregon Judiciary, the Oregon State Bar and the Oregon Legislature.
Finally, in 1997 an Oregon Circuit Court Judge, Paula Kurshner, (Multnomah County) had the courage to follow the U.S. Constitution when she ruled that ORS 107.108 permits a child support obligation to be imposed upon one class of citizens . . . while no provisions exists permitting such an obligation to be imposed in like circumstances upon married parents. In her ruling Judge Kurshner said Dennis Crocker did not have to make child support payments because his 18-year-old daughter decided to go to college. His ex-wife, Marianne Groom, appealed this decision to the Court of Appeals who reversed Judge Kurshners ruling, stating that there is a rational basis for a distinction between divorced parents and cohabiting married parents. Mr. Crocker then appealed to the Oregon Supreme Court.
The Oregon Supreme Court refused to address the issue of constitutionality. In a tortured reasoning process that utilized an obscure statute adopted in 1889, the court came up with an excuse for discriminating against divorced and paternity parents. Neither the fathers attorney nor the mothers attorney used this antiquated statute, ORS 108.110, as supporting either side of this dispute. However, the Support Enforcement Division and the Oregon Attorney General, in its friend of the court brief brought up this statute. That was all the court needed to know. They had their marching orders from the State, and they marched all over the U.S. Constitution, not to mention the Oregon Constitution, and a significant number of Oregons citizens.
The childless, never-divorced and/or naive among us might very well ask Why should Support Enforcement or the Attorney General care whether or not parents must pay child support for adult children? The State of Oregon intercepts the great majority of child support payments paid between mothers and fathers and runs the money through the States coffers before sending it to the college student or the custodial parent. While these funds are being held by the State, the State earns interest on it. This interest is not turned over to the parent or college student.
Custody: The Basic Legal Terms
When a mother and a father do not live together and both want custody of the children, a judge decides who is awarded sole custody. What criteria does the judge utilize? Do judges use the same factors with paternity parents as they do with divorcing parents? Are mothers and fathers treated equally in custody decisions in Oregons Courts? Is joint custody the same as shared custody? What is the difference between legal custody and physical custody? Diane L. Gruber
The judge is required to give primary consideration to the best interests and welfare of the child ORS 107.137(1). There are five factors that the judge is required to consider in granting sole custody to one parent over the other parent: (a) Emotional ties between the child and other family members; (b) Each parents interest in and attitude toward the child; (c) The desirability of continuing an existing relationship; (d) The abuse of one parent by the other and (e) The willingness and ability of the parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
If both parents were living with the child just before the legal action started, the parents begin the custody dispute on equal footing. The next step is to discern which parent is the primary parent. In ORS 107.137 (1)(b) the judge is required to consider the parties interest in and attitude toward the child. This has general been interpreted as determining who fills the role of primary parent. Of the five statutory factors, this factor has the most significance with judges.
The primary parent is the one who handles most of the decision-making and care-taking of the child. The primary parent interacts with the child and spends more time with the child than the other parent, and makes most of the day-to-day decisions about the childs activities. In some marriages, there is no clear-cut primary parent, as the parents divide the parenting duties more or less equally. However, in most marriages the primary parent is the mother. The younger the child, the more likely the mother will be the primary parent.
Therefore, the parents behavior, as parents, prior to the custody dispute largely determines who will be granted sole legal custody and physical custody of the child. Absent unusual circumstances, the non-custodial parent is granted a visitation schedule wherein he or she has the child every other weekend, half the annual holidays and several weeks each summer. The Courts are extremely reluctant to deny contact between the child and the non-custodial parent, as they recognize that a child needs time with both parents.
ORS 107.137 also states: No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father. In actual practice, most mothers have an edge over most fathers due to the fact that the mother is usually the primary parent. This is especially true of paternity mothers, as often the father has never lived with the child.
When a married couple has a baby they have joint legal custody of the baby, even though no one calls it that. Joint legal custody means that each parent is equal under the law as regards to the decision-making for and on behalf of the child. When a child is born out-of-wedlock, the child has only one legal parent, the mother. Joint legal custody does not take effect unless and until the mother and the biological father sign a paternity affidavit and file it with Oregons Vital Statistics office, or the Court declares a man to be the legal father.
During a divorce, parents have the option of continuing joint legal custody of the children, but they must both agree to do so. The judge does not have the authority to aware joint legal custody over the objections of one parent. The judge only has authority to grant sole legal custody to one parent and a visitation schedule to the other parent.
The term physical custody merely designates the adult with whom the child resides. This is typically the same adult who also has legal custody, but it does not have to be. In the past decade or so, it is not unusual for a single parent to turn the children over to his or her parent(s) to raise, both with and without signing formal custody documents. The parent retains legal custody, but the grandparent has physical custody. This means that the parent still has all the legal authority to make decisions about the child, including moving him to another caretaker.
Shared custody between parents consists of the child living in both households. For example, the child lives one week at moms house, the next week at dads house, the following week at moms house again and so on. These parents typically have joint legal custody of the child, but it isnt mandatory. This counsel has seen custody arrangements where one parent has sole legal custody, yet the parenting schedule has the child living half the time with dad and half the time with mom (i.e. the child resides with each parent about 50% of the time).
When a child is born out-of-wedlock, he has only one legal parent. The child does not have a legal father unless and until the mother and a man sign a paternity affidavit and file it with Oregon's Vital Statistics office, or the Court declares a man to be the biological father and makes him the legal father via an Order of Paternity.
ORS 109.094 states "Upon the paternity of a child being established in the proceedings, the father shall have the same rights as a father who is or was married to the mother of the child." This means that a paternity father has the same obligation to pay or right to receive child support as a divorced father. He can also pursue custody and visitation orders through the court. In a custody dispute, most paternity mothers have an edge over the father due to the fact that usually the father has never lived with the child. The court is very reluctant to uproot the child unless there are serious problems in the mother's household. The court grants identical visitation orders mow called "Parenting Time Orders" to paternity fathers as it does to non-custodial divorced parents, except in the situation where the child and father are strangers. In that case, there is often a get-acquainted period of several months before the child stays overnight with his/her father.
Spousal Support (Alimony)
There are three kinds of spousal support (AKA alimony) under Oregons Divorce statutes. Spousal support is unisex in that either spouse can be the recipient of spousal support from the other. However, due to the fact that most homemaking and child rearing duties are done by the wife in a marriage, it is unusual that a wife would be required to pay spousal support to her ex-husband.
The three kinds of Spousal Support are: 1) Transitional, 2) Maintenance, and 3) Compensatory.
Transitional: This spousal support is to assist the dependent spouse to obtain whatever education and training is necessary to allow him/her to prepare for re-entry into the workforce, or for advancement in the workforce.
Maintenance: This spousal support is to assist the dependent spouse to maintain a reasonable standard of living.
Compensatory: This spousal support is paid by one ex-spouse to the other when there has been a significant financial or other contribution by the dependent spouse toward the education, training, skills, career or earning capacity of the other spouse.
Unlike child support, there is no mathematical formula to arrive at the monthly amount of the spousal support, or the length. The amount & length are based upon many factors: a) duration of marriage; b) the parties education & work experience; c) the parties relative earning capacities; d) the financial needs & resources of each party; e) the age & health of each party; f) a partys custodial or child support obligations; g) the standard of living established during the marriage; and h) any other factor the judge deems just & equitable.
A comprehensive analysis by an experienced divorce attorney can give the husband or the wife a ballpark figure of what amount and what duration of spousal support to expect if the case goes to trial. Most spousal support cases settle prior to trial.
The Importance of Having a Will
There is a great deal of misinformation and myth about Estate Planning and Wills circulating among Oregonians. I hope the following questions and answers will clear up some of the confusion. Diane L. Gruber
What happens if I do not have a Will at my death? If you own any property in your name alone, your assets must go through the probate process regardless of whether or not you have a Will. Without a Will your property will be distributed to various relatives according to Oregon Statutes, not according to your wishes. Also a Will can reduce the cost of probate.
Can a Will be changed? You can change your Will as often as you want, so long as you are of sound mind. The sound mind standard is very easy to meet. You may want to change your Will for many reasons, such as a marriage, a divorce, the birth of children or grandchildren, or a significant change in your assets. Everyone should review their estate plan every five years to determine if it meets his or her current needs and objectives. This review may or may not require changes to your Will.
Who will manage my estate after my death? Having a Will allows you to decide who will be the executor (called Personal Representative in the Oregon Statutes) of your estate. You may choose a friend, a relative or a professional, such as an attorney or a CPA. If you think there may be hard feelings in your family and/or your estate is very large or complex, you may want to name a professional; otherwise, a trusted relative or friend can handle the executors duties with the help of a probate attorney.
What are the advantages of having a Will? A Will allows you to decide how your assets will be distributed or managed after you die. Also, it lets your wishes be heard regarding the care of minor children (appointment of guardians). It often prevents disputes among heirs & relatives. The probate process settles all the deceaseds debts, and transfers property debt-free, except for secured debts, to your heirs. A Trust can be set up after your death to provide for the financial needs of your children, spendthrift relatives & disabled loved ones by including Trust provisions in your Will.
What are the disadvantages of having a Will? None. Remember, a Will is not activated until your death. Up to that point you may change it as often as your circumstances and wishes change. Fortunately, the cost of having your Will drafted and updated is quite reasonable if you choose the right attorney.
Are there certain people who need Wills more than others? Yes, 1) married couples who have children from previous marriages, and 2) single adults without children or grandchildren. It is especially important for these individuals to carefully craft an estate plan so that each loved one is treated as the individual wishes that person to be treated when his or her assets are distributed. If these individuals, regardless of age, discuss estate planning with an experienced attorney, he or she can avoid disputes among loved ones, keep probate costs to a minimum and prevent the wrong person from receiving assets.
Is it possible for a deceased person to own assets that are not in his name? Yes. Two situations come to mind immediately: 1) If your death is caused by the negligence of others, your estate may be entitled to receive a judgment against the wrong-doer and/or insurance funds; and 2) Just prior to your death (perhaps without your knowledge), someone else passed away leaving assets to you. I dealt with a mother in her 70s and a daughter in her 40s who passed away within a few weeks of each other. The daughter owned only joint assets, until her mother passed away leaving her half of a large estate. Since the daughter had a Will, her wishes prevailed and a dispute among relatives was avoided.
The Probate Process Is Simple
Some Oregonians view Probate with dread and they try to avoid it at all costs. They will spend hundreds, if not thousands of dollars, and many, many hours planning how to avoid it. In truth, there are few legal proceedings as cost-effective as the Probate process. The Probate process is designed to provide an orderly transfer of the deceaseds assets to the persons chosen to receive them, while protecting the interests of certain close relatives and creditors. It is a simple process that the public has been taught to fear by those wanting to sell them probate alternatives. These so-called probate alternatives are always more complex and more time-consuming than Probate, and are rarely less expensive. Diane L. Gruber
What is probate? Probate is the legal process that transfers the assets of a deceased person to living persons. Probate is usually handled by the court in the county where the deceased resided at the time of death.
When is probate needed? Probate is not needed if the deceased only owns bank accounts & property jointly with a living person. Therefore, a married couple who own all their assets jointly will not need a probate proceeding when the first spouse passes away. Probate is necessary to transfer the deceaseds property when any kind of valuable property is held in his or her sole name. If a person passes away leaving just a few personal belongings & household goods, these can be distributed without a probate proceeding. Therefore, a married couple who own all their assets jointly will not need a probate proceeding when the first spouse passes away.
How long does probate take? Probate can be, and should be, started immediately after death. If the deceased had a will, the person named as "personal representative" (aka: executor) is obligated to start the probate process. If the deceased died without a will, a close relative should start the process. An experienced attorney can finalize a simple probate in five to seven months. If property must be sold during probate, or there are complicated tax matters, probate can take a little longer. Few probates take longer than a year. If funds are needed by a beneficiary the court can make a partial distribution of probate funds or property before the end of the probate process. The Oregon statutes have an expedited process for small estates that takes just over four months.
What is a small estate proceeding? A small estate proceeding applies if the deceased owns total assets valued at $200,000 or less. To remain under this figure the real property cannot be valued at more than $150,000 and the personal property cannot be valued at more than $50,000. Personal property includes everything that is not real property.
Do I need an attorney to help me with my relatives probate? Probate in Oregon is not complicated (unless the assets and debts are complex) but involves a good deal of paperwork that must be filed in a timely manner. To prepare the proper documents at the right time, and to ensure that all property is properly transferred, you need a probate attorney.
What are the costs of probate? The Court filing fee is a percentage of the value of the deceaseds assets. For example, the Court charges $248 for a $50,000 estate, $448 for a $500,000 estate and $648 for a $3,000,000 estate. An attorney will charge by the hour and the court must approve the fees before the attorney is paid.
What happens to my assets if I die without a will? The assets that you own in your sole name will be distributed via Oregon statutes. How your estate is distributed depends upon your marital status and the status of your blood relatives. Here are a few examples. If you are single and have children, each child will receive an equal share of your entire probate estate. If you are married, with or without joint children your spouse will receive your entire estate. If you are married, but your children are from another marriage, your spouse receives one-half of your estate and your children receive one-half. If you die single, leaving no children or grandchildren, your surviving parent(s) will receive your entire estate. If your parents and grandparents are already deceased, and you are unmarried, your brothers and sisters will each receive equal shares of your estate. Statutory distribution does not take into account whether or not you ever MET the relatives that will inherit. Indeed, your least favorite relative could wind up with all or part of your estate. Only by signing a will can you be assured that people you love will receive your assets.
When should probate be started? Probate can and should be started within a few weeks after the person has passed away. The person named as personal representative (executor) in the will is responsible for protecting the deceaseds assets, so he or she will want to begin the process promptly.
How is probate started? Probate begins by filing a petition with the Circuit Court in the county where the deceased lived at the time of death or where the deceased owned property. The will is attached to the petition when it is filed with the court. The court will appoint the person named in the will as personal representative (executor) to serve without bond. (The named person is allowed to decline.) If there is no will, a relative or close friend will ask the court to be appointed personal representative. The court will normally grant the request and require the personal representative to obtain a bond.
What are the duties of the Personal Representative? The personal representative is called executor in most other states. He or she is the person who handles the deceaseds affairs. With the deceaseds funds the executor pays the final expenses of the deceased, collects money that is owed to the deceased, prepares the required tax documents and pays the deceaseds taxes. Oregon statutes provide for a generous fee for the executor, which is based upon the value of the estate. The deceased may provide for an additional fee for the executor in the will.
What steps take place during the probate process? After the executor is appointed by the Court, a notice to creditors is published in a local newspaper. This notice tells creditors that they have four months to bring any claim against the probate estate for debts owed by the deceased. The executor also gives written notice to all known creditors. Heirs (as defined by Oregon statute), as well as the people & organizations named in the will, are notified of the probate proceeding. The executor ascertains what assets the deceased owns and their approximate values, and files an inventory with the court. If funds are needed, the executor may sell assets during the probate process. Four months after the notice is published in the newspaper, the executor can file a motion with the court to close the probate estate and distribute the net assets to the proper beneficiaries or heirs. If all the documents are in order the court will grant this request within a few days. The executors final duties are to be sure beneficiaries or heirs receive all the deceaseds property, after known creditors are paid in full.
What does the Court do? The court makes sure the will is valid, and that the proper person receives the correct asset per the will. If there is no will the court makes sure the heirs receive the assets pursuant to statute. The court also makes sure all the interested persons were notified about the probate, and that claims of creditors are settled. The court reviews the probate receipts to be sure that all expenses taken from probate funds were valid. These court duties are handled without a hearing. Normally, the probate process does not require a court hearing. A hearing will only be needed if a relative or creditor files an objection to how the probate is being handled, or to the validity of the will, and the dispute can not be settled by discussions between the executor and the complaining person. Such disputes are relatively rare when the will has been properly drafted, and an experienced attorney is assisting the executor (Personal Representative).
Is it ever too late to start the probate process? No. In 2000 this attorney handled the probate of an elderly lady who passed away in 1977. A probate was not filed in 1977 because the family members mistakenly believed that probate was not required. The deceased did not own any assets in her sole name other than a piece of undeveloped land on the Oregon coast. A relative paid the property taxes on this land all these years, and decided it was time to remove the deceaseds name from the property so that the deceaseds son and daughter can have title to the land.
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