ORS Chapter 115
Chapter 115 — Claims;Actions and Suits
2009 EDITION
CLAIMS;ACTIONS AND SUITS
PROBATELAW
CLAIMSAGAINST ESTATES
115.001 Effectof direction to pay debts, charges, taxes or expenses
115.003 Personalrepresentative to make diligent search for claimants; notice to claimants;contents; proof of compliance
115.004 Recoveryfor failure to make search or give notice; indemnification; time for commencingaction
115.005 Presentationof claims; time limitations
115.008 Applicationof time limitations to public bodies
115.025 Formof claims
115.035 Waiverof defect or insufficiency
115.045 Writtenevidence of claim
115.055 Claimson debts due
115.065 Claimson secured debts due
115.070 Claimson debts reduced to judgments
115.075 Claimson debts not due
115.085 Claimson contingent and unliquidated debts
115.095 Compromiseof claims
115.105 Claimsof personal representative
115.115 Paymentof claims
115.125 Orderof payment of expenses and claims
115.135 Allowanceand disallowance of claims
115.145 Procedureby claimant on disallowance of claim
115.155 Separateaction required by personal representative
115.165 Summarydetermination procedure
115.175 Interestedpersons heard in summary determination or separate action
115.185 Creditormay obtain order for payment
115.195 Prooffor court allowance of disallowed claim; claims for recovery of publicassistance
115.205 Waiverof statute of limitations
115.215 Extensionof statute of limitations
DISCHARGEOF ENCUMBRANCES
115.255 Dischargeof encumbrances
115.265 Powerto redeem estate property
115.275 Encumberedassets; powers of personal representative
ACTIONSAND SUITS
115.305 Survivalof causes of action
115.315 Continuationof action without claim presentation
115.325 Actionnot to be commenced until claim presented and disallowed
APPLICATIONTO NONTESTAMENTARY TRUSTS
115.335 Chapterdoes not apply to certain trusts
CLAIMSAGAINST ESTATES
115.001Effect of direction to pay debts, charges, taxes or expenses. A meretestamentary direction to pay debts, charges, taxes or expenses ofadministration shall not be considered a direction for exoneration fromencumbrances. [1973 c.506 §35]
115.003Personal representative to make diligent search for claimants; notice toclaimants; contents; proof of compliance. (1) During the three monthsfollowing appointment, unless a longer time is allowed by the court, thepersonal representative shall make reasonably diligent efforts to investigatethe financial records and affairs of the decedent and shall take such furtheractions as may be reasonably necessary to ascertain the identity and address ofeach person who has or asserts a claim against the estate. The personalrepresentative shall request and the court shall allow a longer time for ascertainingclaims if the personal representative cannot complete reasonably diligentefforts to identify persons with claims during the time required by thissection or by a previous order of the court.
(2)Not later than 30 days after expiration of the period, including anyextensions, described in subsection (1) of this section, the personalrepresentative shall cause to be delivered or mailed to each person known bythe personal representative during such period to have or assert a claimagainst the estate a notice containing the information required in subsection(3) of this section, except that it shall not be necessary to give notice onaccount of a claim that has already been presented, accepted or paid in full oron account of a claim that is merely conjectural. The personal representativemay also cause such a notice to be delivered or mailed to any person discoveredby the personal representative after expiration of the period described insubsection (1) of this section to have or assert a claim against the estate.
(3)The notice shall include:
(a)The title of the court in which the estate proceeding is pending;
(b)The name of the decedent;
(c)The name of the personal representative and the address at which claims are tobe presented;
(d)A statement that claims against the estate not presented to the personalrepresentative within 30 days of the date of the notice may be barred; and
(e)The date of the notice, which shall be the date on which it is delivered ormailed.
(4)Not later than 60 days after expiration of the period, including anyextensions, described in subsection (1) of this section, the personalrepresentative shall cause to be filed in the estate proceeding proof ofcompliance with subsections (1) and (2) of this section. The proof shallinclude a copy of the form of any notice delivered or mailed, the date on whicheach notice was delivered or mailed and the name and address of the person towhom each notice was delivered or mailed.
(5)The failure of the personal representative to make reasonably diligent effortsto ascertain claims as required by subsection (1) of this section or to cause anotice to be delivered or mailed as required by subsection (2) of this sectionis a breach of duty to the persons concerned, but does not affect the validityof appointment, duties or powers or the exercise of duties or powers. [1989c.229 §2; 2007 c.284 §12]
115.004Recovery for failure to make search or give notice; indemnification; time forcommencing action.If, as a result of breach of a duty imposed by ORS 115.003, a claim or any partof a claim is not paid from the estate during administration, the amount of theclaim may be recovered as follows:
(1)The claimant shall have a cause of action against the personal representativeand the surety for the personal representative for the amount the claimantwould have been paid from the estate had all claims not barred from paymentbeen presented within the time required by ORS 115.005 (2) and allowed by thepersonal representative, provided that any payment on account of a judgmententered under subsection (2) of this section shall also satisfy a judgmententered under this subsection in the amount of the payment.
(2)The claimant shall have a cause of action against each interested person whoreceived a distribution or other payment from the estate for the amount bywhich the payment received would have been reduced by payment of the claim fromthe estate had all claims not barred from payment been presented within thetime required by ORS 115.005 (2) and allowed by the personal representative,provided that any payment on account of a judgment entered under subsection (1)of this section shall also satisfy a pro rata portion of each judgment enteredunder this subsection.
(3)Each interested person who received a distribution or other payment from theestate shall indemnify the personal representative and the surety for thepersonal representative against liability on the claim in the amount by whichthe payment received would have been reduced by payment of the claim from theestate had all claims not barred from payment been presented within the timerequired by ORS 115.005 (2) and allowed by the personal representative.
(4)Each interested person who received a distribution or other payment from theestate shall indemnify the personal representative and the surety for thepersonal representative against the reasonable costs, including attorney fees,of defense of the action in the same proportion and to the same extent as suchdistributee would be required to indemnify against the claim under subsection(3) of this section:
(a)If the personal representative prevails against the claimant, in suchproportion of the full amount of such costs; or
(b)If the claimant prevails against the personal representative, in suchproportion of the amount of any such costs which could have been reasonablyincurred by the estate upon disallowance of the claim had it been presentedwithin the time required by ORS 115.005 (2).
(5)Except as provided in subsection (6) of this section, an action under thissection against a personal representative, the surety for a personalrepresentative or an interested person shall be commenced within two yearsafter the death of the decedent or within the statute of limitations applicableto the claim, whichever is earlier.
(6)An action for indemnity under subsection (3) or (4) of this section shall becommenced within the time required by subsection (5) of this section, unless:
(a)Notice of the action giving rise to the claim for indemnity is given to eachparty from whom indemnity is sought personally or by mail to the party’slast-known address within 180 days after the complaint in the action is servedon the party seeking indemnity; and
(b)The action is commenced within one year after a judgment in the action givingrise to the claim for indemnity becomes final and not subject to furtherappeal. [1989 c.229 §3]
115.005Presentation of claims; time limitations. (1) Claims against the estate ofa decedent, other than claims of the personal representative as a creditor ofthe decedent, shall be presented to the personal representative.
(2)Except as provided in subsection (3) of this section, a claim is barred frompayment from the estate if not presented within the statute of limitationsapplicable to the claim and before the later of:
(a)Four months after the date of first publication of notice to interestedpersons; or
(b)If the claim was one with respect to which the personal representative wasrequired to deliver or mail a notice under ORS 115.003 (2), 30 days after anotice meeting the requirements of ORS 115.003 (3) is delivered or mailed tothe last-known address of the person asserting the claim.
(3)A claim against the estate presented after claims are barred under subsection(2) of this section shall be paid from the estate if the claim:
(a)Is presented before the expiration of the statute of limitations applicable tothe claim and before the personal representative files the final account;
(b)Is presented by a person who did not receive a notice under ORS 115.003 mailedor delivered more than 30 days prior to the date on which the claim ispresented and who is not an assignee of a person who received such notice; and
(c)Would be allowable but for the time at which the claim is presented.
(4)A claim against an estate may be paid under subsection (3) of this section onlyafter payment of all expenses having priority over claims under ORS 115.125 andpayment of all previously presented claims.
(5)This section does not affect or prevent:
(a)Any proceeding to enforce a mortgage, pledge or other lien upon property of theestate, or to quiet title or reform any instrument with respect to title toproperty; or
(b)To the limits of the insurance protection only, any proceeding to establishliability of the decedent or the personal representative for which the decedentor personal representative is protected by liability insurance at the time theproceeding is commenced. [1969 c.591 §141; 1973 c.506 §29; 1989 c.229 §4; 1993c.214 §1; 2001 c.620 §3; 2003 c.523 §1]
115.008Application of time limitations to public bodies. NotwithstandingORS 12.250, and except as otherwise specifically provided in this chapter, allstatutes of limitation and other time limitations imposed under this chapterapply to actions brought in the name of the state, or brought in the name ofany county or public corporation, and to actions brought for the benefit of thestate or for the benefit of any county or public corporation. [1999 c.675 §3;2001 c.620 §4]
115.010 [Repealed by1969 c.591 §305]
115.015 [1969 c.591 §141a;1973 c.506 §30; repealed by 1989 c.229 §15]
115.020 [Repealed by1969 c.591 §305]
115.025Form of claims.Each claim presented shall:
(1)Be in writing.
(2)Describe the nature and the amount thereof, if ascertainable.
(3)State the names and addresses of the claimant and, if any, the attorney of theclaimant. [1969 c.591 §142; 1973 c.506 §31]
115.035Waiver of defect or insufficiency. A defect of form of a claim timelypresented may be waived by the personal representative or by the court. [1969c.591 §143; 1973 c.506 §32]
115.045Written evidence of claim. When it appears that there is written evidence of aclaim that has been presented to the personal representative, the claimant,upon demand by the personal representative, shall produce the evidence oraccount for its nonproduction. [1969 c.591 §144]
115.055Claims on debts due.If a claim on a debt due is presented and allowed, allowance shall be in theamount of the debt remaining unpaid on the date of allowance. [1969 c.591 §145]
115.065Claims on secured debts due. (1) A claim on a debt due for which thecreditor holds security may be presented as a claim on an unsecured debt due,or the creditor may elect to rely entirely on the security without presentationof the claim.
(2)If the claim is presented, it shall describe the security. If the security isan encumbrance that is recorded, it is sufficient to describe the encumbranceby reference to the book, page, date and place of recording.
(3)If the claim is presented and allowed, allowance shall be in the amount of thedebt remaining unpaid on the date of allowance.
(4)If the creditor surrenders the security, payment shall be on the basis of theamount allowed.
(5)If the creditor does not surrender the security, payment shall be on the basisof:
(a)If the creditor exhausts the security before receiving payment, unlessprecluded by other law, the amount allowed, less the amount realized onexhausting the security; or
(b)If the creditor does not exhaust the security before receiving payment or doesnot have the right to exhaust the security, the amount allowed, less the valueof the security determined by agreement or as the court may order.
(6)The personal representative may convey the secured property to the creditor inconsideration of the satisfaction or partial satisfaction of the claim. [1969c.591 §146; 1989 c.229 §5]
115.070Claims on debts reduced to judgments. If a judgment was entered on a claimprior to the death of the decedent, the claim shall be presented in the samemanner as if no judgment had been entered, and a copy of the judgment shall beattached to the claim. Such a claim may be disallowed only if the judgment wasvoid or voidable, or if the judgment could have been set aside on the date ofthe decedent’s death, or if the claim is not presented within the time requiredby ORS 115.005. If the judgment was a lien against the property of the estateon the date of the decedent’s death it shall be treated as a claim on a debtdue for which the creditor holds security. In all other respects a claim whichhas been reduced to judgment shall have the same priority under ORS 115.125 asit would have had were it not reduced to judgment. [1989 c.229 §11]
115.075Claims on debts not due. A claim on a debt not due, whether or not thecreditor holds security therefor, may be presented as a claim on a debt due. Ifthe claim is allowed, allowance shall be in an amount equal to the value of thedebt on the date of allowance. The creditor, after allowance of the claim, maywithdraw the claim without prejudice to other remedies. Payment on the basis ofthe amount allowed discharges the debt and the security, if any, held by thecreditor therefor. [1969 c.591 §147]
115.085Claims on contingent and unliquidated debts. (1) A claim on a contingent orunliquidated debt shall be presented as any other claim.
(2)If the debt becomes absolute or liquidated before distribution of the estate,the claim shall be paid in the same manner as a claim on an absolute orliquidated debt.
(3)If the debt does not become absolute or liquidated before distribution of theestate, the court shall provide for payment of the claim by any of the followingmethods:
(a)The creditor and personal representative may determine, by agreement,arbitration or compromise, the value of the debt, and upon approval thereof bythe court, the claim may be allowed and paid in the same manner as a claim onan absolute or liquidated debt.
(b)The court may order the personal representative to make distribution of theestate, but to retain sufficient funds to pay the claim if and when the debtbecomes absolute or liquidated. The estate may not be kept open for this purposemore than two years after distribution of the remainder of the estate. If thedebt does not become absolute or liquidated within that time, the fundsretained, after payment therefrom of any expenses accruing during that time,shall be distributed to the distributees.
(c)The court may order the personal representative to make distribution of theestate as though the claim did not exist.
(d)If after distribution under paragraph (b) or (c) of this subsection the debtbecomes absolute or liquidated, the distributees are liable to the creditor tothe extent of the estate received by them. Payment of the debt may be arrangedby creating a trust, giving a mortgage, securing a bond from a distributee orby such other method as the court may order. [1969 c.591 §148]
115.095Compromise of claims.The personal representative may compromise a claim against the estate of adecedent. [1969 c.591 §149]
115.105Claims of personal representative. A claim of a personal representativeshall be filed with the clerk of the court within the time required by law forpresentment of claims. Upon application by the personal representative or byany interested person the claim may be considered by the court on the hearingof the final account of the personal representative or prior to the hearing ofthe final account upon notice to interested persons. [1969 c.591 §150; 1973c.506 §33]
115.110 [Repealed by1969 c.591 §305]
115.115Payment of claims.After the day on which all known claims are barred under ORS 115.005 (2), thepersonal representative, after making provision for support of spouse andchildren ordered by the court, for expenses of administration and for claimsalready presented which have not been allowed or allowance of which has beenappealed, shall proceed to pay the claims allowed against the estate in theorder of priority prescribed by ORS 115.125. After payment of those claims,claims presented and allowed under ORS 115.005 (3) shall be paid in the orderin which they are received and to the extent of the remaining assets of theestate. [1969 c.591 §151; 1989 c.229 §6]
115.120 [Repealed by1969 c.591 §305]
115.125Order of payment of expenses and claims. (1) If the applicable assets of theestate are insufficient to pay all expenses and claims in full, the personalrepresentative shall make payment in the following order:
(a)Support of spouse and children, subject to the limitations imposed by ORS114.065.