By Freeman Green, Partner – Estate Planning Practice Group
On January 1, 2020, new laws took effect changing Oregon’s Small Estate Affidavit (“SEA”), also known as an “Affidavit of Claiming Successor.” Here are answers to common SEA questions.
What is a small estate affidavit?
A Small Estate Affidavit is a simplified probate proceeding. Its purpose is to transfer a deceased person’s assets to the parties rightly entitled to them.
In Oregon, a court procedure known as “probate” is generally required to transfer a deceased person’s property. Probate is a costly and complicated court proceeding that requires multiple steps and formal court filings to complete. The purpose of probate is to ensure the deceased person’s debts are satisfied, and that assets are correctly transferred to the new rightful owners.
When probate property consists of real property with a total combined gross value of $200,000 or less, or personal property with a total combined gross value of $75,000 or less, or both, Oregon law allows for a simplified probate procedure consisting of a single document filed with the court. This document is known as a SEA. The person filing a SEA promises the probate court that the information provided in the SEA is accurate to the best of his or her knowledge and that he or she will take the actions described in the SEA.
Who is the affiant?
The “affiant” is the person that signs and files the SEA. An affiant must be:
- Legally entitled to inherit property from the decedent;
- Named as personal representative (aka executor) in the decedent’s will; or
- An unpaid creditor of the decedent.
What is the process for using a small estate affidavit?
The affiant using a small estate affidavit must take the following steps:
1. Wait until 30 days have passed from the date of the decedent’s death.
2. Complete (or have an attorney complete) a SEA document containing the information required by Chapter 14 of the Oregon Revised Statutes.
3. Sign the completed SEA in the presence of a notary public.
4. File the SEA with the circuit court named in the SEA, along with a certified short-form death certificate, and the original will of the decedent, assuming the decedent created a will.
5. Receive back from the court a court-certified copy of the SEA.
6. Mail a copy of the court-certified SEA to all heirs, devisees, creditors, and government agencies named in the SEA.
7. Present the court-certified SEA to persons and institutions holding probate assets of the decedent, and work with them to transfer the assets to the affiant’s possession.
8. Hold and safeguard the assets received.
9. Monitor the mail for four months from the filing of the SEA for asset information and creditor claims.
10. Use the assets to pay legitimate debts and expenses of the decedent, including all debts and expenses listed in the SEA, as well as legitimate claims received during the four-month claim period.
11. Transfer the remaining assets to the heirs or devisees listed in the SEA.
Additional steps can be required based on individual circumstances. This is especially true if complications arise, such as a disputed creditor claim or a newly discovered probate asset.
What changes went into effect on January 1, 2020?
It is important to use the correct SEA form. Many widely circulated SEA forms are now obsolete.
For deaths on or after January 1, 2020, the SEA must meet the updated requirements of Oregon Revised Statutes Chapter 14. Key changes include a notice and warning to third parties on the front of the affidavit; new terminology; and disclosures regarding whether the decedent was previously incarcerated, with additional notice requirements if the decedent was incarcerated at any time 15 years prior to death.
In addition to SEA form changes, third parties wrongfully refusing to honor a SEA can now be held liable for payment of resulting legal fees.
What if I make a mistake during the small estate affidavit process?
It is important to complete the SEA as accurately as possible, and to correctly follow through with all SEA steps. Mistakes during the SEA process can result in personal liability for the affiant.
Mistakes can also lead to future ownership and title problems. For example, an inaccurate SEA used to transfer ownership of land may later be called into question by a potential buyer, lender, or title company if the inheritor attempts the sell the land.
Do I need an attorney to help me with the small estate affidavit process?
The SEA process uses language and procedures that are foreign to most people. For this reason, most people will benefit from attorney advice, though the level of attorney involvement needed will vary from case to case.
Please contact our office if you need specific advice or have questions regarding the proper way to handle an after-death administration.
Freeman Green is a partner in the Estate Planning & Probate practice group. Freeman is also a member of the Health industry team. The information in this article is not intended to provide legal advice. For professional consultation, please contact Freeman at firstname.lastname@example.org at Saalfeld Griggs PC. 503.399.1070. © 2020 Saalfeld Griggs PC