After a loved one dies, it is common for people to have questions like:
- “How can I access the person’s bank account to pay their final bills and debts to wrap everything up?”
- “The life insurance company is asking me for estate letters or a small estate affidavit. What can I give them?”
- “I need to sell the decedent’s property because the lender is trying foreclose on it. How can I do that?”
Probate is the typical route for handling the estate of a deceased Oregon resident (when someone dies in Oregon, the law refers to them as the "decedent"). But probate can be expensive and can take a long time to complete. To address these problems, the Oregon legislature created a simplified process called a Small Estate Affidavit.
Affidavit. A sworn statement, made under oath and put in writing, that a court or judge will accept as evidence in a legal proceeding
Affiant. The person who makes an affidavit.
Creditor. A person or business to whom a deceased person owed money when they died.
Decedent. A person who has died; a deceased person.
Devisee. A person to whom real estate is given in a will.
Estate. All property and debts of a person after they have died.
Heir. A person who is entitled to receive property from a decedent's estate.
Personal Representative. A person designated by a will to manage the distribution of the decedent's estate.
What is the Small Estate Affidavit Process?
An "affidavit" is a sworn statement, put in writing, that a court or judge will accept as evidence in a legal proceeding. A Small Estate Affidavit can be used by a person who is entitled to receive property or money from the estate of someone who has died (specific eligibility requirements are below).
A Small Estate Affidavit can only be used when the total value of the estate is less than a certain amount defined by statute (more information below).
The small estate affidavit process provides authority to manage a decedent’s estate to the person who files the affidavit (the "Affiant"). The process is shorter, simpler, and more cost effective than probate. It includes the following steps:
1. Document and Information Collection
First, the Affiant collects information about the decedent’s property and their outstanding debts. The Affiant also collects the decedent’s will (if they had one) and their death certificate. The Affiant can request a certified copy of the death certificate from the funeral home or by requesting it directly from the Oregon Health Authority.
2. Drafting the Affidavit
Second, the Affiant drafts an affidavit about the decedent and their estate (called the “Small Estate Affidavit”). The courts have a form with detailed instructions on filling out the form.
3. Filing the Affidavit
Then, the Affiant files the Small Estate Affidavit, death certificate, and original will (if any) with the court. The filing fee is currently $124 and must be paid at time of filing. In some circumstances, an Affiant can get a deferral or waiver of payment of this filing fee by filing an Application for Deferral or Waiver of Fees. The court will issue a file-stamped copy of the Small Estate Affidavit to the Affiant.
4. Providing Required Notices
Within thirty (30) days of filing the Small Estate Affidavit, the Affiant must provide proper notice of the filed Affidavit to:
- all the heirs and devisees of the estate;
- all known creditors of the estate;
- the Oregon Department of Human Services and the Oregon Health Authority; and
- if the decedent was imprisoned at any time during the 15 years before death, to the Oregon Department of Corrections.
5. Administering the Estate
At this point, the Affiant has the authority to begin administering the decedent’s estate. The Affiant can now:
- collect and preserve the decedent's assets;
- file final tax returns for the decedent;
- receive and qualify claims against the decedent's estate;
- pay valid debts of the decedent; and
- sell assets not allocated by the decedent's will.
6. Distributing the Estate
After four (4) months from the filing the Affiant may distribute any remaining assets to the beneficiaries. But, the Affiant can only make distributions after they have paid all claims, expenses, and taxes.
Who Can Use the Small Estate Affidavit Process?
An heir, devisee, personal representative, or creditor may file a Small Estate Affidavit.
- Heir. An heir is an individual who would inherit from the estate under Oregon’s laws of intestacy. Oregon Revised Statutes Chapter 112
explains who inherits and in what proportions. Generally, the following individuals inherit in successive order:
- surviving spouse,
- surviving lineal descendants,
- surviving parents,
- surviving siblings and their lineal descendants, and then
- surviving grandparents and their lineal descendants.
- Devisee. "Devisees" are individuals listed as beneficiaries in a will.
- Personal Representative. If a will exists and the decedent appoints an individual to manage their estate, that person is the "personal representative."
- Creditor. A creditor may also file a Small Estate Affidavit to collect on an unpaid debt of the decedent. A creditor cannot file a Small Estate Affidavit until sixty (60) days after the decedent’s death.
When Can I Use the Small Estate Affidavit Process?
The small estate affidavit process can only be used if the estate qualifies. The estate qualifies if:
- the value of the decedent’s personal property (personal effects, cars, jewelry, etc.) does not exceed $75,000; AND
- the value of the decedent’s real property (any immovable property such as land and buildings) does not exceed $200,000.
These limits do not take debts and mortgages into consideration. The Affidavit cannot be filed until at least thirty (30) days have passed since the decedent’s date of death.
Do I Need a Lawyer to Help Me File a Small Estate Affidavit?
The short answer is no. But, the process is often more complicated than expected. A lawyer can help ensure a complete filing and provide further guidance on the administration. If you need help with filing a Small Estate Affidavit, please submit an intake request or call us at (503) 850-0811.