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In Oregon, is it legal for my probate attorney to petition the court to become the estates personal representative?

Portland, OR |

I am the sole heir to my sister's estate. I have not been able to get bonded as I have no income at the moment and I filed bankruptcy in 2005. I do have assets in excess of the amount the court is requiring the bond amount to be. My attorney says that the court insists that I be bonded, although I have not received any documentation stating this fact. He suggested that he petition the court to appoint him the personal representative and then I can proceed as if I was the personal representative. The only document I have received from the court states that I have been appointed personal representative and to immediately begin acting as such, following the specific instructions that are included in the text of the rest of the document. My attorney says it's a form letter everyone gets.

I requested copies of all documents that my attorney has filed and has received from the court and the court-bonding people . I was not given the copy of the first petition he filed with the court nor the judgments from the first petition or the amended petition. His secretary said they were not in the file. I asked him to site the specific Oregon Revised Statues that were preventing me from serving as PR with no bond as I am the only heir and there is no one else left to contest. That was four days ago and he still hasn't given me that info either.

Attorney Answers 3


Is this Multnomah County? The court will often require a bond unless there was a will that specifically waived the bond. The court is operating from the point of view of not knowing you or the situation and just trying to be cautious. It is not just other heirs that the court is trying to protect, but also creditors of the estate that have the right to be paid. So the fact that you are the only heir is not the only consideration.

You don't have to put up with an attorney that you don't like or who is not answering your questions satisfactorily. But do be aware that if you fire this attorney they still have the right to petition the court for their attorney fees that are going to come out of the assets of the estate - then your new attorney will do the same thing.

If you want to know what was filed in the court - go down to the court house and look at the file. It's a public record that anyone can look at and for a small cost you can get copies of all the documents in the file.

Anyone can be appointed as the Personal Rep. The court probably is willing to waive a bond requirement for your attorney because your attorney has already under gone a background check (including having their finger prints sent to the FBI) in order to get their licenses to practice law, they are subject to supervision by the Oregon State Bar, and they are insured for any malpractice. But here is the law on the list of folks the court would consider as PR in order of priority: As a practical matter, once a PR is appointed it will require a hearing with the court to remove them and appoint someone else. Keep in mind that fighting about this will probably increase the amount of time your attorney ends up billing you and the estate.

So I don't think there is a problem with what your attorney is doing from a legal stand point. I do think that your attorney is lacking in their relationship with you and not providing you with the level of communication that you need to feel comfortable. But that might also help keep the bill down. I would ask your attorney to provide an accounting to you of the time they have spent so far and their fee to date. What you really need to be on the look for is an attorney that doesn't communicate adequately with you and runs up your bill and then you find out at the end of the probate when it's too late to object.

Also be aware that depending on the situation a probate may not have been necessary. I see less experienced attorneys all the time recommending probate when it was needed. Probate does have a lot of paperwork involved and can generate a nice fee for attorneys and their clients are sort of stuck paying the fee since all the property in the estate is held up until they do pay. But probate can also be a good thing or a necessary evil, so I don't want to suggest that your attorney is wrong - I just don't know at this point. So do the steps I have outlined: 1. Get a copy of the court file yourself. 2. Ask your attorney for a statement of time and fees to date. 3. If you stay with this attorney help them as much as possible to gather information and pay bills and debts and keep track of details so that your bill is reduced. 4. If you don't want to work with this attorney fire them and hire someone else but understand that this will increase your overall bill as you will have to pay both attorneys for the work they do or have done out of the estate. (You have to decide if it's worth it.)

The comments by this author to questions posted on Avvo are designed to foster a general understanding of what might be the law governing the area of the legal problem stated and suggest what might be the approach to finding a legal solution. Under no circumstances is this author acting as the attorney for the party who posted the question or as the attorney for subsequent readers to the question or response and no attorney client relationship is being formed. This attorney's comments are not intended to be a substitute for getting legal advice from a licensed attorney. A reader of this author's comments should never act on the information provided in these comments as though these comments were legal advice and should always seek legal advice in a personal consultation with an attorney in their jurisdiction before taking action. The information provided here is not intended to cover every situation with similar facts. Please remember that the law varies between states and other countries and is always changing through actions of the courts and the Legislature.

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If you have an attorney but you still have so many questions and concerns that you need to post on Avvo, you might consider whether you need to seek new counsel. Your attorney should be explaining the probate process and answering your questions.

Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.

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If you have an attorney you should direct questions to him/her. If you are not happy with your attorney you should consider new counsel.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website:

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