Oregon’s New Probate Laws for Estates with Wrongful Death or Personal Injury Claims

By Jonathan P. Bacsalmasi and Ryan W. Collier

When someone dies, certain legal claims must be prosecuted. These claims could relate to the person’s death or preexisting personal injuries. A court supervised probate process is required to legally appoint a representative to pursue these claims in Oregon.

Prior to January 1, 2020, Oregon law allowed no separate procedure for appointing a representative other than the long and procedurally complex full probate process. That probate process was a financial and legal barrier to prosecuting those claims.

Oregon House Bills 3008[1] and 3006[2] passed both houses of the Oregon legislature and become effective on January 1, 2020. These bills describe the new requirements for estates opened solely to settle a wrongful death claim and the probate court’s approval process for settling a personal injury or wrongful death claim.

House Bill 3008 describes what the probate court requires to approve settlement of a personal injury or wrongful death claim.[3] Once a proposed settlement is reached, the personal representative of a probate estate must petition the probate court to approve the proposed settlement agreement.[4] The Petition must include a declaration by the probate attorney that includes the details of the death or injury, the claim, the proposed settlement, and the amount of attorney fees and the personal representative fee.[5] The new bill also clarifies that the proceeds from the personal injury or wrongful death claim are included in the calculation of the personal representative’s fee.[6]

If the only asset of the estate is a personal injury cause of action awaiting settlement, the probate court will defer bond requirements until the claim is approved.[7] The court will also accept annual reports on the status of the claim, rather than an annual accounting.[8]

That bill also provides a new probate process for estates opened for the sole purpose of pursuing a wrongful death claim.[9] The bill describes additional requirements for the initial probate petition including a statement regarding the sole purpose of the estate and that no assets of the estate are known to the petitioner.[10] Many probate requirements are now waived and only become necessary if the probate estate receives funds other than wrongful death proceeds.[11] The waived requirements include notice to interested persons, publication of notice, bond, and filing the inventory and final accounting.[12]

The beneficiaries of a wrongful death claim are often different than the beneficiaries named in a will or through intestate succession. Within thirty days of filing the probate petition for the sole purpose of pursuing a wrongful death claim, the personal representative must file with the court proof of service to the beneficiaries, Department of Human Services (DHS), and Oregon Health Authority (OHA).[13]

If no assets of the estate are discovered, the Personal Representative may file a motion to close the estate after resolution of the wrongful death claim and distribution of the recovered funds.[14] However, the probate cannot be closed until four months after delivery of notice to the beneficiaries, DHS, and OHA.[15] The motion must state that no assets of the estate have been discovered and that the wrongful death claim has been resolved, along with proof of distribution of those funds to the beneficiaries.[16] Each beneficiary will have the opportunity to review the motion to close the estate and to object to the closing.[17] If the court grants the motion to close the estate, the court retains discretion to allow an action against the personal representative for one year after the estate is closed for specific purposes.[18] Those purposes are if the judgment was due to fraud or misrepresentation of the personal representative, or through the mistake, inadvertence, surprise or excusable neglect of the claimant.[19]

Once wrongful death proceeds are recovered, the funds must be placed in the lawyer trust account for an attorney representing the personal representative in the estate or in the wrongful death claim, or another account upon court approval that only the court may withdraw from.[20]

House Bill 3006 amends many previously enacted statutes to account for probate estates opened for the sole purpose of pursing a wrongful death claim. The bill clarifies that although many requirements are initially waived, they become necessary as soon as the probate estate receives assets, other than wrongful death proceeds.[21] If other probate assets are discovered, the Personal Representative must then respond to creditor claims and comply with other requirements that were initially waived including notice to interested persons, filing the bond and inventory.[22]

HB 3008 also broadens venue under the Probate code.[23] Currently, a probate case can be filed in the county of decedent’s domicile, the county where property is located or the county in which the decedent died.[24] The statute now adds the county where a personal injury claim or wrongful death claim could be maintained.[25] That would not only add any county where the claim occurred, but also where a defendant resides or where a business conducts regular, sustained business activity or has an office.[26]

House Bills 3008 and 3006 also include many other revisions and additions to the Oregon probate code not relating to the settlement of a personal injury or wrongful death claim. For instance, an accounting is due within 30 days of a Personal Representative’s resignation or removal.[27] And a Statement in Lieu may be filed rather than either an annual accounting or an accounting due after resignation or removal.[28] The new statutes should be reviewed carefully by practicing estate and probate attorneys in Oregon.

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[1] H.B. 3008, 80th Or. Legis. Assemb., 2019 Reg. Sess. (Or. 2019).

[2] H.B. 3006, 80th Or. Legis. Assemb., 2019 Reg. Sess. (Or. 2019).

[3] Id. at 3.

[4] Id. at 1.

[5] Id. at 1-2.

[6] Id. at 4.

[7] Id. at 2.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 2-3.

[12] Id. at 3.

[13] Id.

[14] Id. at 3-4.

[15] Id. at 3.

[16] Id. at 3-4.

[17] Id. at 4.

[18] Id.

[19] Id.

[20] Id.

[21] H.B. 3006 at 3-6.

[22] Id. at 5-6.

[23] H.B. 3008 at 5.

[24] Id.

[25] Id.

[26] Or. Rev. Stat. § 14.080 (2017).

[27] H.B. 3006 at 6.

[28] Id. at 6-8.

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