From the Multnomah Lawyer: Tips from the Bench – 2019 Probate Legislative Update
The 2019 legislature enacted a number of new provisions relating to protective proceedings and estates. There is not enough room here to discuss all the bills, so I encourage you to go the legislature’s web page to read the very helpful summaries, or better yet the full text, of the bills listed at the bottom of this article.
The following are some bills of significant interest and are effective January 1, 2020:
This bill limits a guardian’s authority to limit a protected person’s preferred associations with third parties. It permits interested persons, including the protected person or a third party whose contact with the protected person is being limited, to move court to review a guardian’s power to limit a protected person’s associations and requires the court to conduct a hearing. It authorizes the court to remove guardians for unreasonably limiting protected persons’ associations or failing to perform certain duties.
The other significant provisions in HB 2601 codify the substituted judgment standard. It provides that the guardian will promote the self-determination of the protected person and to encourage the protected person to participate in decisions.
This bill directs guardians to deliver notice of the order of appointment to all the people who were required to receive notice of the filing of the petition. Among other things, the notice must contain contact information for both the guardian and protected person, a description of the guardian’s authority and any limitations, and a statement regarding the protected person’s right to seek removal of the guardian.
SB 376 also directs court to order guardian to file a motion to terminate the protective proceeding or supplement the guardian’s report if guardian indicates the guardianship should not continue or fails to provide adequate information on the continuing need for guardianship.
HB 3006 creates procedures for the probate of an estate with no known assets. Among other things, it waives the bond requirement, removes the notice requirement via newspaper, requires the PR to file an inventory stating that there are no assets, removes the requirement to make diligent efforts to search for claims against the estate, removes the duty to allow or disallow claims presented, and allows the PR to close the estate four months after the deliver of required notices. The bill also provides that the PR will follow standard practices if estate assets are discovered or become known.
In addition, HB 3006 allows a personal representative to file a statement in lieu of certain required annual accountings if the distributees of the estate consent in writing. The statement must include basic information, such the value of estate assets, a list of all unpaid claims, and a statement as to why the estate is not ready to close. A copy of the statement must be sent to all unpaid creditors. Creditors then have 30 days in which to require that the PR file a full accounting.
House Bill 3007 contains numerous modifications to Oregon law relating to small estates. Among other things, this bill specifies that the date that fair market value of the estate is measured, prohibits the use of an affidavit if the affiant is prohibited from serving as a PR, provides that if the affidavit is amended to add additional property which increases the value of the estate above small estate limitations, the authority of the affiant is terminated and a personal representative must be appointed. The bill contains new provisions relating to attorney fees and liability for the affiant.
This bill requires probate court approval of personal injury and wrongful death claim settlements, and that attorneys provide a detailed statement regarding the settlement. This is the current practice in Multnomah County pursuant to SLR 9.055.
The bill details the requirements of a petition for the appointment of a personal representative (PR) for the sole purpose of pursuing a wrongful death claim and requires PRs to give notice to beneficiaries, DHS, and OHA within 30 days, and provides what the notice must contain. The bill waives the following requirements when the sole purpose of the petition is to pursue a wrongful death claim: Information to heirs, devisees, and interested persons, publication, bond, proof of compliance of search for creditors, and inventory.
Other Bills of Interest
In addition to the above bills, I recommend that probate practitioners review the following: SB 35, SB 454, and SB 474.
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