Asked in Banking and Probate for Oregon

Q: I filed a small estate affidavit. 4 yrs later I receive an escrow refund check from WF in my deceased husbands name.

Can i cash or deposit check. I still have Mortgage with WF, my husband's name is still the only one on mortgage but I am paying the mortgage WF refuses to change name on mortgage.

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3 Lawyer Answers
Kenneth V Zichi
Kenneth V Zichi
Answered
  • Estate Planning Lawyer
  • Howell, MI

A: If you had a joint bank account with your husband the bank MAY allow you to deposit it, but otherwise you need to 'reopen' that probate and add the check into it. PLEASE seek local legal help however, as the process could be something rather simple depending on local practice and requirements.

Use the 'find a lawyer' tab to locate an appropriate person if you didn't already use one for that previous proceedings.

--This answer is provided for informational purposes only and does not create an attorney - client relationship. If you need legal advice you should consult with a local attorney. I am licensed to practice in Michigan only.

Joanne Reisman
Joanne Reisman
Answered
  • Probate Lawyer
  • Portland, OR
  • Licensed in Oregon

A: If you still have a joint bank account with your husband's name on it you can usually put the deceased person's check in that account that has their name on it. If that is not an option, you are going to need to have the mortgage company reissue the check to you. Your status as the affiant entitles you to collect funds payable in your deceased husband's name. While that is the correct legal construction large financial institutions often don't understand Oregon's Small Estate process. I have had many battles with financial institutions and eventually I fight my way to their legal department where I can talk Attorney to Attorney with their lawyer and show them the statutes of Oregon's Small Estate law. Since you are not a lawyer you probably won't be given direct access to their legal department. You can read the small estate statutes at this link: https://www.oregonlegislature.gov/bills_laws/ors/ors114.html

I suggest you read ALL of the statutes from ORS 114.505 to 114.560 so you have a working knowledge of these rules. Then go back and focus on ORS 114.535(6) and on 114.550 Summary review of administration of estate; hearing. I would first print out the entire law and highlight these sections and ask to meet with a local representative of the WF mortgage department, show them the law and try to resolve this. If that doesn't work you will need to figure out how to set up a summary review hearing with the probate court.

You will have to give legal notice of the hearing to the representative of the bank designated to be served notice of a legal proceeding. The designated representative of a business is listed with the Oregon Secretary of State Business division: http://sos.oregon.gov/business/pages/default.aspx. I suggest you call them on the phone and have a person help you rather than try to figure it out on the webpage.

Joanne Reisman
Joanne Reisman
Answered
  • Probate Lawyer
  • Portland, OR
  • Licensed in Oregon

A: The statute for summary review doe say that it need to be requested within two years of the filing of the affidavit. You can ask the probate court about this if you can't resolve the matter directly with the bank. You technically don't reopen the probate,because a small estate proceeding isn't a probate that you open and close. Rather I would file a new affidavit of claiming successor. But I would talk to the probate court first and explain the problem. They may have a better suggestion.

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