Administering Oregon Estates: 2012 Edition Cosponsored by the Estate Planning and Administration Section Friday, November 16, 2012 9 a.m.–4:30 p.m. Oregon Convention Center Portland, Oregon 6 General CLE credits and .5 Ethics credit ADMINISTERING OREGON ESTATES: 2012 EDITION SECTION PLANNERS Holly N. Mitchell, Duffy Kekel LLP, Portland Jack V. Rounsefell, Attorney at Law, Gresham Katharine L. West, Wyse Kadish LLP, Portland Eric J. Wieland, Samuels Yoelin Kantor LLP, Portland OREGON STATE BAR ESTATE PLANNING AND ADMINISTRATION SECTION EXECUTIVE COMMITTEE D. Charles Mauritz, Chair Marsha Murray-Lusby, Chair-Elect Eric H. Vetterlein, Past Chair Jeffrey M. Cheyne, Treasurer Matthew Whitman, Secretary Amy E. Bilyeu Eric R. Foster Janice E. Hatton Amelia E. Heath Melanie E. Marmion Holly N. Mitchell Jeffrey G. Moore Timothy O’Rourke Ian T. Richardson Erik S. Schimmelbusch Kenneth Sherman Margaret Vining The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2012 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Administering Oregon Estates: 2012 Edition ii Table OF CONTENTS Schedule . v Faculty . vii 1A. Alternatives to Probate . 1A–i — David C. Streicher, Black Helterline LLP, Portland, Oregon 1B. Probate Jurisdiction and Procedures . 1B–i — Nikki C. Hatton, Schwabe Williamson & Wyatt PC, Portland, Oregon 1C. Preadministration Procedures . 1C–i — Holly N. Mitchell, Duffy Kekel LLP, Portland, Oregon 1D. Initiating Probate and Small-Estate Proceedings . 1D–i — Lisa N. Bertalan, Hendrix Brinich & Bertalan LLP, Bend, Oregon 1E. Special Considerations . 1E–i — Leslie Sutton, Oregon Council on Development Disabilities, Salem, Oregon — Janice Hatton, Thorp Purdy Jewett Urness & Wilkinson PC, Springfield, Oregon 2. Intestate Succession, Wills, and Community Property . 2–i — Melinda Leaver Roy, Churchill Leonard Lawyers, Salem, Oregon 3. Rights of Interested Persons . 3–i — Timothy J. Wachter, Duffy Kekel LLP, Portland, Oregon 4. Lawyer Professional Liability . 4–i — Bruce L. Schafer, Professional Liability Fund, Tigard, Oregon 5. Initial Responsibilities and Liabilities of Personal Representative . 5–i — Nicholas M. Frost, Hershner Hunter LLP, Eugene, Oregon 6. Oregon Estate Tax . 6–i — Jeffrey M. Cheyne, Samuels Yoelin Kantor LLP, Portland, Oregon 7. Managing Estate Assets . 7–i — Jonathan A. Levy, Cavanaugh Levy Bilyeu LLP, Portland, Oregon — Katie S. Groblewski, Stokes Lawrence PS, Seattle, Washington 8. Accounting, Distribution, and Closing—Outline . 8–i — Sam Friedenberg, Nay & Friedenberg, Portland, Oregon — Amy E. Bilyeu, Cavanaugh Levy Bilyeu LLP, Portland, Oregon 9. Claims Against the Estate . 9–i — Helen Rives Pruitt, Wyse Kadish LLP, Portland, Oregon 10. Litigation . 10–i — Jan K. Kitchel, Schwabe Williamson & Wyatt PC, Portland, Oregon — Katherine O. VanZanten, Schwabe Williamson & Wyatt PC, Portland, Oregon Administering Oregon Estates: 2012 Edition iii Administering Oregon Estates: 2012 Edition iv SCHEDULE 8:00 Registration 9:00 Initiating Probate and Alternatives to Probate F What to do immediately following a death F The how, why, and where of initiating probate F Pre-administration procedures F Post-death strategies for avoiding probate Lisa N. Bertalan, Hendrix Brinich & Bertalan LLP, Bend Holly N. Mitchell, Duffy Kekel LLP, Portland David C. Streicher, Black Helterline LLP, Portland 10:00 Wills, Intestate Succession, and Community Property Under Oregon Law F Is the will valid? F If not, who gets the estate? F Uniform Disposition of Community Property Rights at Death Act Margaret A. Vining, Holland & Knight LLP, Portland 10:30 Break 10:45 Rules and Rights That Affect Distribution F Effect of homicide or abuse F Elective share of surviving spouse F Disclaimers Timothy J. Wachter, Duffy Kekel LLP, Portland 11:15 Lawyer Professional Liability F Disclosure, conflicts, and other legal ethics F Who is your client? F Attorney-client privilege F How to handle mistakes Bruce L. Schafer, Professional Liability Fund, Tigard 12:15 Lunch 1:15 Personal Representatives: Getting Started F Initial instructions and considerations F Fiduciary duty and liability F Preparing the estate for administration Nicholas M. Frost, Hershner Hunter LLP, Eugene 1:45 Oregon Estate Tax F Ballot Measure 84—phasing out Oregon estate tax F New provisions for 2012 F State QTIP and Oregon special marital property elections Jeffrey M. Cheyne, Samuels Yoelin Kantor LLP, Portland Administering Oregon Estates: 2012 Edition v SCHEDULE (Continued) 2:15 Managing Estate Assets F A personal representative’s duties to manage the estate F Investing and borrowing in probate F Selling and leasing estate property F Collecting debts owed to decedent F Dealing with the decedent’s business Jonathan A. Levy, Cavanaugh Levy Bilyeu LLP, Portland 2:45 Break 3:00 Accounting, Distribution, and Closing, or Showing Up, Getting Paid, and Getting the Heck Out of Dodge F Why we do accountings (other than the law requires them) F Ensuring your accounting will be approved (without objection from nefarious personal representatives and feuding families) F Distributing assets—cash, in-kind, sales, and beneficiary horse-trading F Beneficiaries and assets with issues—minors, special needs, and guns Amy E. Bilyeu, Cavanaugh Levy Bilyeu LLP, Portland 3:30 Practice Tips for Unusual Creditor Problems F Managing insolvent estates F Creditor/debtor laws outside of the probate code F Offers in compromise and settling claims Helen Rives Pruitt, Wyse Kadish LLP, Portland 4:00 The Stripper from Vegas vs. the Bad Seed: Estate Planning Gone Wrong F Will contest procedures F Proving your will contest F Wrongful death claims F Distribution of wrongful death proceeds Jan K. Kitchel, Schwabe Williamson & Wyatt PC, Portland Katherine O. VanZanten, Schwabe Williamson & Wyatt PC, Portland 4:30 Adjourn Administering Oregon Estates: 2012 Edition vi FACULTY Lisa N. Bertalan, Hendrix Brinich & Bertalan LLP, Bend. Ms. Bertalan specializes in estate planning, probate, guardianships and conservatorships, and elder law. She served as a Bend Municipal Judge from 1997 to 2008. She is a member of the National Academy of Elder Law Attorneys and the Oregon Department of Justice Elder Abuse Task Force, a past member of the Oregon Long Term Care Advisory Committee and the Oregon State Bar Elder Law and Estate Planning and Administration section boards, and founder of her local Elder Abuse Roundtable. She drafted legislation to protect Oregon seniors from financial and physical abuse, codified at ORS Chapter 127, and she hosts a weekly TV segment that highlights and discusses issues affecting seniors. Amy E. Bilyeu, Cavanaugh Levy Bilyeu LLP, Portland. Ms. Bilyeu’s practice emphasizes estate planning and administration for small and large taxable estates, as well as business succession planning, income and gift tax planning, charitable planning, and estate planning for noncitizens. She is a member of the Oregon State Bar Estate Planning Section Executive Committee and is a chapter coauthor of Administering Oregon Estates (OSB Legal Pubs 2012). Ms. Bilyeu is also a member of the Oregon Mediation Association, Oregon Women Lawyers, and the Estate Planning Council of Portland. Ms. Bilyeu has taught continuing legal education seminars for the Oregon State Bar and others on both estate planning and administration matters. Ms. Bilyeu holds a Masters of Law in Taxation from the University of Washington School of Law. She is licensed to practice in Oregon and Washington. Jeffrey M. Cheyne, Samuels Yoelin Kantor LLP, Portland. Mr. Cheyne represents clients with their estate, tax, business, and real estate planning needs. He is a board member of the Portland Tax Forum, treasurer of the Oregon State Bar Estate Planning & Administration Section, and a Fellow in the American College of Trust and Estate Counsel. He currently serves on an Oregon State Bar Estate Planning & Administration Section workgroup that drafted legislation for the 2013 Oregon legislative session authorizing personal representatives, trustees, and guardians to have access to the digital accounts and digital assets of the deceased and the disabled. From 2009 through 2011, he served on the Oregon Law Commission Oregon Inheritance Tax Workgroup, which drafted and coordinated the passage of the transition legislation from the Oregon inheritance tax to the Oregon estate tax that passed in the 2011 Oregon legislative session. Mr. Cheyne is licensed in California, Oregon, and Washington. Nicholas M. Frost, Hershner Hunter LLP, Eugene. Mr. Frost practices in the fields of estate planning, business formation and succession planning, and trust and estate administration. Mr. Frost has taught as an adjunct professor at the University of Oregon Law School. He is a member of the Eugene Estate Planning Council, the Eugene-Springfield Tax Association, the American Bar Association, and the Oregon State Bar Business Law, Estate Planning and Administration, and Elder Law sections. He is admitted to practice in Oregon and Illinois. Jan K. Kitchel, Schwabe Williamson & Wyatt PC, Portland. Mr. Kitchel’s practice focuses on catastrophic personal injury, wrongful death, will and probate contests, and insurance coverage