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I am a beneficiary in an estate that is being probated in…

I am a beneficiary in...
I am a beneficiary in an estate that is being probated in Oregon under laws for intestate. There are a total of five beneficiaries which include four children and a surviving spouse who is not the biological mother. Assets of the estate include real estate and a small business. As it turns out the descendant was not paying taxes on the business and there a lot of back taxes due to IRS and ODR. The decedent left some CDs that had payable on death clauses on them to three of the beneficiaries, but not the other two. My question is, given there are back taxes due, is it possible to bring these CDs back into the estate? If not, are there any other conditions were these CDs can be brought back into the estate pie. The beneficiaries that did not receive them feel slighted.
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Answered in 29 minutes by:
3/22/2017
LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 13,353
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Oregon is unique in that in addition to allowing creditor access for up to 18 months to transfer on death accounts, the courts will also void the transfer if they discover it is a result of incapacity, fraud or undue influence. If any one of those are applicable, they can void the transfer and bring it into the probate estate.

However, if there is no evidence of this, unfortunately there would be no basis for voiding it, even if it is not what the decedent wanted. If the probate estate has enough assets to satisfy the creditors, then those assets are used during the probate process.

I wish I had better news but I could not find any authority for that.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

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Customer reply replied 1 year ago
What is defined as a creditor? Are the IRS and ODR considered creditors? When does the eighteen months begin to tally? Can you site the code section in the law for this condition? Thank you.

IRS and ODR would be considered creditors if they were owed money by the decedent.

The statute is below:

SECTION 8. Sec. 8 - Capacity of transferor; fraud, duress or undue influence. (1) The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.

(2) A transfer on death deed or an instrument revoking a transfer on death deed that is procured by fraud, duress or undue influence is void.

(3) A proceeding must be commenced not later than 18 months after the transferor’s death to:

(a) Contest the capacity of the transferor; or

(b) Determine whether a transfer on death deed or an instrument revoking a transfer on death deed is void because it was procured by fraud, duress or undue influence.

the time frame runs from the date of death

the statute can be accessed here:

https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2011orLaw0212.html

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Customer reply replied 1 year ago
The statute you referenced seems to address real property not financial assets like certificate of deposits in bank accounts. The use the term "transfer on death deed."

Thank you for pointing that out- here is the relevant statute:

The rebuttable presumption under subsection (1) of this section may be overcome by evidence establishing that:

(a)The deceased party intended a different result; or

(b)The deceased party lacked capacity when the joint account was established.

That is subsection 6 -

located here:

https://www.oregonlaws.org/ors/708A.470

This analysis from the state bar discusses how there is no case law on point as to creditor rights to POD accounts

So one would need to prove lack of capacity, or a different intent, to void the POD provision.

LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 13,353
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Customer reply replied 1 year ago
Thank you for clarifying.

You are welcome; sorry about the prior information! Take care and thank you for the positive rating.

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