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Questions Answered by Vincent J. Bernabei
1 Answer | Asked in Foreclosure and Probate for Oregon on
Q: How can I obtain legal rights to my parents property after they have passed and left no will.

A brother who has recently passed was staying on property. There is a foreclosure on property due to neglect of paying a county property tax debt. What if any is the easiest way to obtain legal rights to pay off tax debt? And be the executor of property. Thank you.

Vincent J. Bernabei
Vincent J. Bernabei answered on Dec 22, 2020

Probate is the legal process whereby a court oversees the distribution of assets left by a deceased person. Assets are anything a person owns with value, such as real property (home and land).

A probate is needed to clear title to land or a home that was held in the name of the deceased...
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1 Answer | Asked in Family Law for Oregon on
Q: Can I get child support arrears if the other parent hasn’t been following the agreed upon parenting time?

Two years ago I signed an agreement to share 50/50 parenting time. However, shortly after the agreement and child support order was modified the other parent no longer allowed one of his children to visit due to behavior issues and therefore neither child has been at the other parent’s house for... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on Dec 15, 2020

Your question presents a complex and unique situation that cannot be answered here.

Generally, a modification of child custody requires a substantial change of circumstance since the time of the most recent award of custody. Once a person demonstrates a substantial change of...
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1 Answer | Asked in Family Law and Child Custody for Oregon on
Q: I was served custody paperwork dated 11/16/2010. Is it still valid being dated wrong.
Vincent J. Bernabei
Vincent J. Bernabei answered on Dec 15, 2020

The main purposes of service of legal pleadings (service of process) are (1) to notify a person that there is a court proceeding that may affect his or her legal rights and (2) to give that person an opportunity to contest the claim. If the purposes are met, the service of process is considered... Read more »

2 Answers | Asked in Probate for Oregon on
Q: my sister left no will or anything and has 2000 in bank, can i close acct with death certificate?

Not sure how oregon laws work and if probate is always needed when someone really does not own anything and very small funds in bank left

Vincent J. Bernabei
Vincent J. Bernabei answered on Dec 14, 2020

Probate is a legal process whereby a court oversees the distribution of assets left by a deceased person. Assets are any property a person owns that is of some value, such as a bank account.

If your sister named you as a co-owner of the account or as the payable on death beneficiary of the...
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1 Answer | Asked in Divorce for Oregon on
Q: If ex violates court order, should that be addressed before any further discovery?
Vincent J. Bernabei
Vincent J. Bernabei answered on Dec 8, 2020

Oregon courts permit "discovery" of “any matter, not privileged, that is relevant to the claim or defense” of any party. The document or infor­mation being sought need not be admissible in court as long as it “appears reasonably calculated to lead to the discovery of admissible... Read more »

1 Answer | Asked in Family Law for Oregon on
Q: If parenting plan to move out of state is agreed upon, only if child support is cut. Is that extortion?

My wife and I are trying to move from Oregon to Arizona. We met with her ex (non custodial) parent and he agreed upon a parenting plan but he will only sign if child support is cut in half.

Vincent J. Bernabei
Vincent J. Bernabei answered on Nov 20, 2020

No. Extortion is a crime that usually involves a threat of physical harm. You have a dispute about child support.

Oregon’s Uniform Child Support Guidelines contain a formula that takes into account the parties’ gross income, the parties’ parenting plan (the overnights), childcare...
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2 Answers | Asked in Probate for Oregon on
Q: no will or power of attorny on my stepdad n moms house stepdad died 28 days later my mom did i need to know how to claim

my mother died 4 days ago n i need to know how to file claim on house in oregon no will or power of attorny im oldest child my sister died as baby n my brother doesnt want it

Vincent J. Bernabei
Vincent J. Bernabei answered on Nov 20, 2020

You will first need to check the deed to the home to see who owned it. If the home was owned by your stepfather and your mother (or your mother alone), then you will need to probate your mother's estate. Probate is a legal process whereby a court oversees the distribution of assets left by a... Read more »

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2 Answers | Asked in Probate for Oregon on
Q: In my mom's Probate case the Probate Lawyer sent us paperwork containing an invalid (earlier) Will and also in the Court

paperwork listed her surviving husband as heir or devisee when he is not listed in the Will as such and in fact signed a Waiver of Elective Share that is referenced in the Will. My sister and I think that these issues are not valid or legal. We have sent the Lawyer a letter detailing these two... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on Nov 17, 2020

There are many variables to consider, but in most cases, you have four months to file an objection disputing the validity of the will that was submitted to the probate court . The time for objecting begins to run from the date you received notice of the probate proceeding. The objection must be... Read more »

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2 Answers | Asked in Probate for Oregon on
Q: My mom died intestate with big credit card debt. Her only income was social security. Do we have to go thru Probate?

After cremation, she had no money left, didn't own a home, was single and has a financed older car. She lived with my brother.

Vincent J. Bernabei
Vincent J. Bernabei answered on Nov 3, 2020

Please accept my condolences on the death of your mother.

Probate is a legal process whereby a court oversees the distribution of assets left by a deceased person. Assets are anything a person owns with value, such as real and personal property and cash, for example.

You...
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1 Answer | Asked in Child Custody and Family Law for Oregon on
Q: How long is the process to petition the court to move out of state if I have joint custody?

I have physical custody and he has her every other weekend and a couple weeks in the summer. He told me he will not allow me to move. Financially this is best for me and educationally right now is best for her.

Vincent J. Bernabei
Vincent J. Bernabei answered on Nov 3, 2020

Subject to the court's availability during COVID 19, a hearing in most relocation cases can usually be heard within 3-5 months of when Father files his objection to the move. Often, the objection is accompanied by a motion to change custody and/or parenting time. The process usually begins... Read more »

1 Answer | Asked in Family Law and Child Custody for Oregon on
Q: Can my ex say I'm unfit in custody case cause I'm stay at home mother. I'm remarried and my husband has a great income

Being as I'm able to stay home and school our children would my husband income count as providing for my children. Or for custody would they go off just my income? I know with child support they go off just your income but what about custody and providing for your children when your remarried.... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on Oct 16, 2020

One factor that a court may consider in deciding whether to modify child custody is whether a parent is able to provide a secure and stable environment for the children. Your current spouse's income, which allows you to be a stay-at-home mother to your children, could work to your advantage... Read more »

2 Answers | Asked in Divorce, Family Law, Child Custody and Child Support for Oregon on
Q: I want to have my kids more, but my wife refuses.

My wife and I are in getting divorced, neither has filed yet. The girls are with her the majority of the time as I work and she doesn't. I have them every other weekend and friday nights on the weekends I don't have them. I asked her if I could have them more and she refuses. She's... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on Oct 8, 2020

The presumed amount of child support in Oregon is based upon the following variables.

1. Each parent's gross income (before tax). If a parent is unemployed or underemployed, the court will determine that parent's potential income or earning capacity based upon that...
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1 Answer | Asked in Divorce and Real Estate Law for Oregon on
Q: Uncontested divorce, ex is buying out of house: appraisal vs fair-market-value?

I live in OR, and I'm going through my first divorce - short-lived marriage, no dependents, etc.

It's been uncontested so far so most of the assets and finances have been simple, and already divided.

We bought a house about a year before the marriage (~1 year married).... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on Sep 18, 2020

The fair market value of the residence is what a willing buyer would pay to a willing seller in an arm's length transaction. The appraised value is an appraiser's expert opinion of the fair market value of the residence. The expert's opinion is only an opinion of fair market value.... Read more »

2 Answers | Asked in Estate Planning for Oregon on
Q: In Oregon, can I be a personal representative/administrator of an estate, and a creditor?
Vincent J. Bernabei
Vincent J. Bernabei answered on Sep 14, 2020

Yes. A claim of the personal representative, as a creditor, is not presented in the same manner as other creditor's claims. The personal representative’s claim must be filed with the court and must be approved by the court before payment. Upon request of the personal representative or of any... Read more »

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2 Answers | Asked in Estate Planning for Oregon on
Q: Do I have to itemize assets to go into a pour over will in oregon
Vincent J. Bernabei
Vincent J. Bernabei answered on Jun 24, 2020

For estate planning purposes, you do not need to specifically identify in a pourover will any assets that will be transferred after death. The pourover will is essentially a back up estate plan. First, all assets except qualified retirement accounts should be placed in trust. Second, if an asset... Read more »

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1 Answer | Asked in Divorce for Oregon on
Q: We are doing our own divorce paperwork in OR.He prenupped the farm.I've lived/helped 13 yrs.Do I get anything from that?

We signed a prenup that he keeps the farm should we divorce. Now I have to move because it's his. We tried to split up other property fairly. He counted the money he had and I had before marriage as owed to him on his side since he had more. Wondering if I am missing $ in equity somehow or he... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on May 26, 2020

If the prenuptial agreement is a valid contract, then the divorce court will most likely approve it. There are many factors that must be considered in determining whether the prenuptial agreement is a valid contract. Factors include whether there was a full disclosure of all material facts... Read more »

1 Answer | Asked in Family Law and Real Estate Law for Oregon on
Q: My spouse was awarded house in decree but owes a buyout. He no longer wants the house nor to do the buyout.

Over two years ago I was divorced and my spouse was awarded the house. He also had to give me a buyout. As part of the divorce decree I would be able to stay in the house for four years and at the end of those four years he would have to buy me out. He has since moved out of the house and has told... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on May 12, 2020

Your understanding that you can't just change the property division in the divorce is correct. Instead of amending the decree, I recommend you enter into a new agreement to purchase the home from your former spouse, who is now the current owner of the home, in exchange for satisfying his... Read more »

2 Answers | Asked in Estate Planning and Probate for Oregon on
Q: Should I let my mom's 100 or so junk vehicles go through probate or should they be re-titled to her Trust?

My mom has roughly 100 non-running or junk vehicles that are titled either to her or one of her closed businesses. Before she passes, should I re-title them in the name of her Trust, or should I let them go through probate? The only value they will have to me is most likely scrap value.

Vincent J. Bernabei
Vincent J. Bernabei answered on May 4, 2020

If your mother has the certificates of title for the vehicles, she should sign her name in the release of seller's interest on the back side of the titles. Once she signs a title, keep it in a secure location. After (or before) your mother passes, you can transfer ownership of the vehicle by... Read more »

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2 Answers | Asked in Child Support, Family Law and Tax Law for Oregon on
Q: Can my boyfriend get child support payments paid directly to him since he is 18?

So general information:

My boyfriend is 18, and I am 19. We are both still enrolled in highschool.

My boyfriend gets child support payments from is adoptive/legal father, not his biological father. The child support payments are I believe, $300? But basically my boyfriend's... Read more »

Vincent J. Bernabei
Vincent J. Bernabei answered on Apr 29, 2020

Yes it is possible under Oregon law to have child support paid directly to an adult child attending school. If support is paid by income withholding through the state, the state will make payment to the adult child directly unless the adult child has indicated another method of payment. Your... Read more »

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1 Answer | Asked in Child Custody and Family Law for Oregon on
Q: Can a noncustodial parent refuse to communicate with custodial parent or minor children unless through a third person?
Vincent J. Bernabei
Vincent J. Bernabei answered on Apr 16, 2020

If there is a written custody order or judgment signed by a judge, both parents are required to follow it. You should review your custody order or judgment to determine whether it requires direct communications. Generally, it is in the children's best interests for the parents to communicate... Read more »

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