Full Probate vs. Small Estate (Which is Right for You?)
By Patricia Louise Nelson of Two Spruce Law
In Oregon, we have two types of probates. One is called a small estate proceeding, which starts with the filing of an Affidavit of Claiming Successor. The other is generally referred to as a full probate. A small estate proceeding is less expensive, simpler, and takes less time than a full probate. It is vital that when starting a probate, we start with the right kind of probate. Starting with a small estate and later having to start over with a full probate is more expensive than starting with a full probate. There are three primary reasons an estate must go through a full probate rather than a small estate proceeding. Please bear in mind that that probate is only necessary if there are assets held in the name of a person who has died and there is no co-owner or beneficiary designated for those assets.
Under Oregon law, an estate must go through a full probate unless the value of the real property is $200,000 or less and the value of all other property (like bank accounts, investment accounts, cars, manufactured homes that are not part of the land, other tangible personal property – everything except land) is $75,000 or less. These value limits are one of the top three reasons an estate must go through a full probate.
As a practical matter, a small estate is only for very simple situations. The statutes allowing for a full probate give the person in charge full authority to deal with a multitude of different situations. These situations include things like evicting people on the estate’s real property, asking the court for clarification of the meaning of a provision in the Will, objecting to someone who claims the person who died owed them money, and many other matters. On the other hand, the small estate proceeding is simply designed to transfer the assets listed in the Affidavit of Claiming Successor to the people listed to receive them, subject to the debts listed in the Affidavit. If the situation involves anything odd, it is likely best to start with a full probate even if the value of the assets allows the estate to qualify for a small estate proceeding.
The third primary reason for filing a full probate even if the estate otherwise qualifies for a small estate proceeding is that selling real property from a small estate can be very cumbersome, sometimes even impossible. Under the small estate proceeding statues, if the person who filed the Affidavit of Claiming Successor wants to sell the real estate during the first four months after filing the Affidavit, all of the heirs must sign the deed along with the Affiant. Even if an heir is disinherited under the Will of the person who died, that heir must sign the deed. Sometimes the heirs are not yet age 18 so they do not have the legal capacity to sign a deed. These circumstances can make selling the real property impossible. Once four months have passed from the date the Affidavit was filed, the person who filed it must sign a deed transferring ownership of the real property to the beneficiaries – if those beneficiaries are minors, there is no way to sell the real property until they turn 18 with a small estate proceeding. In a full probate, the person in charge can sell the estate’s real property without anyone else signing the deed.
Find out more at: https://twosprucelaw.com/videos/full-probate-vs-small-estate
