Beaverton, OR asked in Estate Planning for Oregon

Q: My brother passed without a will, but wanted me to be the executor of his estate.

I had a power of attorney from years ago, but it got distroyed once I felt I no longer needed it. He has several friends and medical professionals that can attest to the fact that he wanted me to be executor. Can I use letters of afidavits inlue of a PoA? He has one child, and does not want her to receive anything more than the life insurance policy he had for her.

Related Topics:
2 Lawyer Answers
Joanne Reisman
Joanne Reisman
Answered
  • Estate Planning Lawyer
  • Portland, OR
  • Licensed in Oregon

A: First of all, a power of attorney has no power once the principle that signed the POA has died. Any document that expresses the decedent's preference for who should act as their Personal Representative can be shown to the court as an expression of the decedent's wishes for who should be appointed. The document can be a now expired Power of Attorney, a Will, or just some written document which states that they want a certain person to serve as the Personal Representative. If you don't have such a written document signed by the decedent then you just don't have it.

At that point the court will look at Oregon Law that relates to the order of preference for appointing a personal representative. https://www.oregonlaws.org/ors/113.085 Even though your copy of the power of attorney was lost or destroyed, it may be possible to track down the files of the Attorney who prepared the power of attorney and get a copy which will be helpful if the POA does state that you are the preferred PR. You can also challenge the daughter's attempts to become PR and I suppose you could have the affidavits of your associates tendered in support of your challenge, but I don't have any prior experience doing a challenge this way so I can't really tell you if this will persuade the court or not. I suspect that court will appoint the daughter because she is going to be the primary heir to your brother's property absent a Will that states otherwise. (I am assuming that he wasn't married and didn't have any other children when he died.)

You can't do anything about the fact that his daughter is his heir under the intestacy laws. https://www.oregonlaws.org/ors/chapter/112 That is the way it works if someone dies without leaving a Will. There is no way to try to explain your brother's stated wishes to the court and change this outcome. A person either takes affirmative steps to guide the devolution of their property at their death or the property is distributed according to Oregon Law. Would have, should have, could have, doesn't count.

Vincent J. Bernabei
Vincent J. Bernabei
Answered
  • Estate Planning Lawyer
  • Beaverton, OR
  • Licensed in Oregon

A: You can petition the court to be appointed as the personal representative (executor) of your brother's estate. If he was not married when he died and his adult child does not affirmatively consent to your appointment, you have to give her written notice of your petition, and she will have an opportunity to object. If she doesn't object, then the court will appoint you as personal representative of the estate. Your brother's next of kin is adult child, and she will be entitled to serve as personal representative of the estate if she wants and assuming she is otherwise qualified to serve (and able to get a bond if necessary). If your brother was not married and had only one child when he died, his child will receive everything in the estate, after expenses of administration and claims of creditors are paid.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.