Title 114 · ORS Chapter 114

(2) and (11) and except as restricted or otherwise provided by the will

Citation: ORS 97.130

Section: 97.130

97.130 (2) and (11) and except as restricted or otherwise provided by the will of the decedent, a document of anatomical gift under ORS 97.965 or by court order, a personal representative, acting reasonably for the benefit of interested persons, is authorized to:

�� (1) Direct and authorize disposition of the remains of the decedent pursuant to ORS 97.130 and incur expenses for the funeral in a manner suitable to the condition in life of the decedent. Only those funeral expenses necessary for a plain and decent funeral may be paid from the estate if the assets are insufficient to pay the claims of the Department of Human Services and the Oregon Health Authority for the net amount of public assistance, as defined in ORS 411.010, or medical assistance, as defined in ORS 414.025, paid to or for the decedent and for care and maintenance of any decedent who was at a state institution to the extent provided in ORS 179.610 to 179.770.

�� (2) Retain assets owned by the decedent pending distribution or liquidation.

�� (3) Receive assets from fiduciaries or other sources.

�� (4) Complete, compromise or refuse performance of contracts of the decedent that continue as obligations of the estate, as the personal representative may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease real property, the personal representative, among other courses of action, may:

�� (a) Execute and deliver a deed upon satisfaction of any sum remaining unpaid or upon receipt of the note of the purchaser adequately secured; or

�� (b) Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement.

�� (5) Satisfy written pledges of the decedent for contributions, whether or not the pledges constituted binding obligations of the decedent or were properly presented as claims.

�� (6) Deposit funds not needed to meet currently payable debts and expenses, and not immediately distributable, in bank or savings and loan association accounts, or invest the funds in bank or savings and loan association certificates of deposit, or federally regulated money-market funds and short-term investment funds suitable for investment by trustees under ORS 130.750 to 130.775, or short-term United States Government obligations.

�� (7) Abandon burdensome property when it is valueless, or is so encumbered or is in a condition that it is of no benefit to the estate.

�� (8) Vote stocks or other securities in person or by general or limited proxy.

�� (9) Pay calls, assessments and other sums chargeable or accruing against or on account of securities.

�� (10) Sell or exercise stock subscription or conversion rights.

�� (11) Consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of a corporation or other business enterprise.

�� (12) Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate, but the personal representative is liable for any act of the nominee in connection with the security so held.

�� (13) Insure the assets of the estate against damage and loss, and insure the personal representative against liability to third persons.

�� (14) Advance or borrow money with or without security.

�� (15) Compromise, extend, renew or otherwise modify an obligation owing to the estate. A personal representative who holds a mortgage, pledge, lien or other security interest may accept a conveyance or transfer of the encumbered asset in lieu of foreclosure in full or partial satisfaction of the indebtedness.

�� (16) Accept other real property in part payment of the purchase price of real property sold by the personal representative.

�� (17) Pay taxes, assessments and expenses incident to the administration of the estate.

�� (18) Employ qualified persons, including attorneys, accountants and investment advisers, to advise and assist the personal representative and to perform acts of administration, whether or not discretionary, on behalf of the personal representative.

�� (19) Prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of duties as personal representative.

�� (20) Prosecute claims of the decedent including those for personal injury or wrongful death.

�� (21) Continue any business or venture in which the decedent was engaged at the time of death to preserve the value of the business or venture.

�� (22) Incorporate or otherwise change the business form of any business or venture in which the decedent was engaged at the time of death.

�� (23) Discontinue and wind up any business or venture in which the decedent was engaged at the time of death.

�� (24) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.

�� (25) Satisfy and settle claims and distribute the estate as provided in ORS chapters 111, 112, 113, 114, 115, 116 and 117.

�� (26) Perform all other acts required or permitted by law or by the will of the decedent. [1969 c.591 �127; 1969 c.597 �278; 1977 c.211 �1; 1981 c.278 �1; 1995 c.157 �16; 1997 c.472 �10; 2001 c.900 �17; 2005 c.348 �126; 2007 c.681 �25; 2011 c.164 �4; 2011 c.720 �59; 2013 c.688 �16; 2016 c.42 �22; 2019 c.83 �2]

�� 114.310 [Repealed by 1969 c.591 �305]

�� 114.315 Right to perfect lien or security interest. A personal representative has the same rights to perfect a lien or security interest as the decedent would have had if the decedent were living. [1969 c.591 �128]

�� 114.320 [Repealed by 1969 c.591 �305]

�� 114.325 Power to sell, mortgage, lease and deal with property. (1) Except as provided in subsection (2) of this section, and subject to ORS 113.105, a personal representative has power to sell, mortgage, lease or otherwise deal with property of the estate without notice, hearing or court order.

�� (2) Exercise of the power of sale by the personal representative is improper, except after notice, hearing and order of the court, if:

�� (a) The sale is in contravention of the provisions of the will; or

�� (b) The property is specifically devised and the will does not authorize its sale.

�� (3) Notwithstanding ORS chapters 270, 273 and 274, an estate administrator of the State Treasurer appointed under ORS 113.235 or the Director of Human Services or Director of the Oregon Health Authority serving as a personal representative may deal with property of the estate as a personal representative under this section. [1969 c.591 �129; 2017 c.169 �25; 2019 c.678 �39]

�� 114.330 [Repealed by 1969 c.591 �305]

�� 114.333 Transfer of title and interest to real property by foreign personal representative. Upon performance of a recorded contract of sale of real property the foreign personal representative of a deceased vendor whose estate is being administered in a foreign jurisdiction may convey the title and interest of the vendor in the property to the vendee or the assignee of the vendee upon recording in the deed records of the county where the property is located a certified copy of letters testamentary or of administration. The certificate shall include a statement that the letters are in effect. [1973 c.506 �28]

�� 114.335 Court order for sale, mortgage or lease. Upon proof satisfactory to the court by an interested person that a sale, mortgage or lease of property of the estate is required for paying support of spouse and children, elective share of surviving spouse, claims or expenses of administration, or for distribution, and that the personal representative has failed or declined to act, the court may order the personal representative to make the sale, mortgage or lease. [1969 c.591 �130]

�� 114.340 [Repealed by 1969 c.591 �305]

�� 114.345 Title conveyed free of claims of creditors. Property sold, mortgaged or leased by a personal representative is subject to liens and encumbrances against the decedent or the estate of the decedent, but is not subject to rights of creditors of the decedent or liens or encumbrances against the heirs or devisees of the decedent. The filing and allowance of a claim in an estate proceeding does not make the claimant a secured creditor. [1969 c.591 �131]

�� 114.350 [Repealed by 1963 c.287 �1]

�� 114.355 Sale or encumbrance to personal representative voidable; exceptions. (1) Any sale or encumbrance to the personal representative, the spouse, agent or attorney of the personal representative, or any corporation or trust in which the personal representative has more than a one-third beneficial interest, is voidable unless:

�� (a) The transaction was consented to by all interested persons affected thereby; or

�� (b) The will expressly authorizes the transaction by the personal representative; or

�� (c) The transaction was made in compliance with another statute or with a contract or other instrument executed by the decedent.

�� (2) The title of a purchaser for value without notice of the circumstances of the transaction with the personal representative is not affected unless the purchaser should have known of the defect in the title of the seller. [1969 c.591 �132]

�� 114.360 [Repealed by 1963 c.287 �1]

�� 114.365 Validation of certain sales. The following are the subject of validating Acts:

�� (1) Certain sales of decedent�s real property made prior to 1903 where confirmation of sale was premature, validated by page 133, section 2, General Laws of Oregon 1903.

�� (2) Certain sales of decedent�s property made prior to 1907 under power in will, validated by chapter 175, General Laws of Oregon 1907.

�� (3) Certain sales of decedent�s real property made prior to 1917 where publication of the notice of sale was improper, validated by section 2, chapter 114, General Laws of Oregon 1917.

�� (4) Certain sales by executors or administrators made prior to 1943, validated by chapter 26, Oregon Laws 1943. [Formerly 116.835]

�� 114.370 [Repealed by 1963 c.287 �1]

�� 114.375 Nonliability of transfer agents. A transfer agent or a corporation transferring its own securities incurs no liability to any person by making a transfer of securities of an estate as requested or directed by a personal representative. [1969 c.591 �134]

�� 114.385 Persons dealing with personal representative; protection. A person dealing with or assisting a personal representative without actual knowledge that the personal representative is improperly exercising the power of the personal representative is protected as if the personal representative properly exercised the power. The person is not bound to inquire whether the personal representative is properly exercising the power of the personal representative, and is not bound to inquire concerning the provisions of any will or any order of court that may affect the propriety of the acts of the personal representative. No provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge of the provision or order. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection expressed in this section extends to a person dealing with or assisting a personal representative appointed under ORS 113.085 without actual knowledge that the personal representative was not qualified as provided in ORS 113.095 or that the appointment of the personal representative involved procedural irregularity. [1969 c.591 �135; 2017 c.169 �52]

�� 114.395 Improper exercise of power; breach of fiduciary duty. If the exercise of power by a personal representative in the administration of an estate is improper, the personal representative is liable for breach of fiduciary duty to interested persons for resulting damage or loss to the same extent as a trustee of an express trust. Exercise of power in violation of a court order is a breach of duty. Exercise of power contrary to the provisions of the will may be a breach of duty. [1969 c.591 �136]

�� 114.405 Personal liability of personal representative. (1) The personal liability of a personal representative to third parties, as distinguished from fiduciary accountability to the estate, arising from the administration of the estate is that of an agent for a disclosed principal.

�� (2) A personal representative is not personally liable on contracts properly entered into in the fiduciary capacity in the course of administration of the estate unless the personal representative expressly agrees to be personally liable.

�� (3) A personal representative is not personally liable for obligations arising from possession or control of property of the estate or for torts committed in the course of administration of the estate unless the personal representative is personally at fault.

�� (4) Claims based upon contracts, obligations and torts of the types described in subsections (2) and (3) of this section may be allowed against the estate whether or not the personal representative is personally liable therefor. [1969 c.591 �137]

�� 114.410 [Repealed by 1969 c.591 �305]

�� 114.415 Copersonal representatives; when joint action required. (1) When two or more persons are appointed copersonal representatives, the concurrence of all is required for all acts connected with the administration and distribution of the estate, except:

�� (a) Any copersonal representative may receive and receipt for property due the estate.

�� (b) When the concurrence of all cannot readily be obtained in the time reasonably available for emergency action.

�� (c) Where any others have delegated their power to act.

�� (d) Where the will provides otherwise.

�� (e) Where the court otherwise directs.

�� (2) Persons dealing with a copersonal representative who are actually unaware that another has been appointed to serve with the person are as fully protected as if the person with whom they dealt had been the sole personal representative. [1969 c.591 �138]

�� 114.420 [Repealed by 1969 c.591 �305]

�� 114.425 Discovery of property, writings and information. (1) The court may order any person to appear and give testimony by deposition if it appears probable that the person:

�� (a) Has concealed, secreted or disposed of any property of the estate of a decedent;

�� (b) Has been entrusted with property of the estate of a decedent and fails to account therefor to the personal representative;

�� (c) Has concealed, secreted or disposed of any writing, instrument or document pertaining to the estate;

�� (d) Has knowledge or information that is necessary to the administration of the estate; or

�� (e) As an officer or agent of a corporation, has refused to allow examination of the books and records of the corporation that the decedent had the right to examine.

�� (2) If a person cited as provided in subsection (1) of this section fails to appear or to answer questions asked as authorized by the order of the court, the person is in contempt and may be punished as for other contempts. [1969 c.591 �139; 1979 c.284 �106]

�� 114.430 [Repealed by 1969 c.591 �305]

�� 114.435 Power to avoid transfers. The property liable for the payment of expenses of administration, funeral expenses, claims and taxes shall include property transferred by the decedent with intent to defraud the creditors of the decedent or transferred by any means which is in law void or voidable as against the creditors of the decedent. The right to recover that property so far as necessary for the payment of those expenses, claims and taxes is in the personal representative, who shall take necessary steps to recover it. That property constitutes general assets for the payment of creditors. [1969 c.591 �140]

�� 114.440 [Repealed by 1969 c.591 �305]

WRONGFUL DEATH CLAIMS AND ESTATES WITH PERSONAL INJURY CLAIMS

(Generally)

�� 114.441 Definitions for ORS 114.441 to 114.462. As used in ORS 114.441 to 114.462:

�� (1) �Beneficiary� means a person for whose benefit an action against a wrongdoer may be brought under ORS 30.020.

�� (2) �Interested person� has the meaning given that term in ORS 111.005.

�� (3) �Personal injury claim� means a cause of action arising out of injuries to a decedent, caused by the wrongful act or omission of another, that do not result in the death of the decedent.

�� (4) �Wrongful death claim� means a cause of action arising out of injuries to a decedent, caused by the wrongful act or omission of another, that result in the death of the decedent. [2019 c.166 �1]

�� Note: 114.441 to 114.462 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 114 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

�� 114.444 Application. Except as specifically provided in ORS 114.441 to 114.462, ORS 30.010 to 30.100 and 119.006 to 119.081 and ORS chapters 111, 112, 113, 114, 115, 116, 117 and 118 apply to wrongful death claims and estates with personal injury claims. [2019 c.166 �2]

�� Note: See note under 114.441.

(Court Approval of Settlement)

�� 114.447 Court approval of settlement of personal injury claim or wrongful death claim. (1) The parties to a personal injury claim or a wrongful death claim may enter into a settlement agreement, subject to the approval of the probate court, whether or not an action asserting the personal injury claim or the wrongful death claim has been commenced. The personal representative shall petition the probate court for approval of the proposed settlement. The petition need not state the amount of the proposed settlement.

�� (2) A petition to approve a settlement under this section must be accompanied by a declaration under penalty of perjury of the attorney for the personal representative in the personal injury claim or the wrongful death claim:

�� (a) Stating whether the claim being settled is a personal injury claim or a wrongful death claim;

�� (b) Describing the incident causing the injury or death;

�� (c) Describing the injuries;

�� (d) Stating the amount of the claim;

�� (e) Stating the amount of the settlement;

�� (f) Stating the amount of attorney fees and costs;

�� (g) Stating the amount of payments or reimbursements owed under ORS 30.030 (3) and, in the case of a personal injury claim, under ORS 416.540;

�� (h) Stating the amount of any personal representative fee attributable to a wrongful death claim;

�� (i) Stating the reasons for the settlement and the efforts to maximize recovery;

�� (j) Stating that the attorney has examined the applicable medical records; and

�� (k) Explaining why it is appropriate to settle the case. [2019 c.166 �3]

�� Note: See note under 114.441.

(Probate of Estate With Personal Injury Claim as Only Asset)

�� 114.450 Deferral of requirements. If the only asset of an estate is a personal injury cause of action that has not been adjudicated or settled, the court shall:

�� (1) Defer bond requirements until a settlement of the personal injury claim is approved under ORS 114.447; and

�� (2) Accept an annual report on the status of the personal injury claim in lieu of the annual account required under ORS 116.083. [2019 c.166 �4]

�� Note: See note under 114.441.

(Probate for Sole Purpose of Pursuing Wrongful Death Claim)

�� 114.453 Petition for appointment of personal representative. Any beneficiary, any interested person or the person nominated as personal representative named in the will may petition for the appointment of a personal representative for the sole purpose of pursuing a claim for the wrongful death of the decedent. Except as provided in ORS 114.459, a personal representative appointed under this section has all the duties of a personal representative under ORS 119.006 to 119.081 and ORS chapters 113, 114, 115, 116, 117 and 118. In addition to the information required under ORS 113.035, a petition filed under this section must include the following information, so far as known:

�� (1) A statement that the petitioner is filing the petition for the sole purpose of pursuing a wrongful death claim;

�� (2) The names, relationship to the decedent and post-office addresses of beneficiaries, and the ages of any beneficiaries who are minors; and

�� (3) A statement that reasonable efforts have been made to identify and locate all beneficiaries. If the petitioner knows of any actual or possible omissions from the list of beneficiaries, the petition must include a statement indicating that there are omissions from the information relating to beneficiaries. [2019 c.166 �5]

�� Note: See note under 114.441.

�� 114.456 Information to beneficiaries and Department of Human Services and Oregon Health Authority. (1) A personal representative appointed under ORS 114.453 shall deliver or mail to the beneficiaries at their last-known address information that must include:

�� (a) The title of the court in which the estate proceeding is pending and the case number;

�� (b) The name of the decedent and the place and date of the death of the decedent;

�� (c) The name and address of the personal representative, the attorney representing the personal representative in the wrongful death action and the attorney representing the personal representative in the probate proceeding;

�� (d) The date of the appointment of the personal representative; and

�� (e) A statement advising the beneficiaries that the rights of the beneficiaries may be affected by the proceeding and that additional information may be obtained from the records of the court, the personal representative or the attorney for the personal representative.

�� (2) If the personal representative is a beneficiary named in the petition, the personal representative is not required to deliver or mail the information under this section to the personal representative.

�� (3) Within 30 days after the date of appointment the personal representative shall cause to be filed in the estate proceeding proof of the delivery or mailing required by this section or a waiver of notice as provided under ORS 111.225. The proof must include a copy of the information delivered or mailed and the names of the persons to whom it was delivered or mailed.

�� (4) If before the filing of the motion to close the estate under ORS 114.462 the personal representative has actual knowledge that the petition did not include the name and address of any beneficiary, the personal representative shall:

�� (a) Make reasonable efforts under the circumstances to ascertain the names and addresses of the beneficiaries that were not included;

�� (b) Promptly deliver or mail information specified in subsection (1) of this section to each beneficiary located after the filing of the petition and before the filing of the motion to close the estate under ORS 114.462 and to the State Treasurer; and

�� (c) File in the estate proceeding, on or before filing the motion to close the estate under ORS