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Barrister, Lawyer
Category: Family Law
Satisfied Customers: 37081
Experience:  Attorney with 16 years experience
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My aunt passed away in Feb. 2015 & her will left me as the

Customer Question

My aunt passed away in Feb. 2015 & her will left me as the executor. I have received a check made out to her estate & she also had tax return refunds. In order to collect on these cophecks I was told I need to set up an account for her estate. I have filed a small estate affvidavit but it has not completed probate. I need to know how to set up a small estate account. thank you
Submitted: 2 years ago.
Category: Family Law
Expert:  Barrister replied 2 years ago.
Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.
Typically in a full blown estate proceeding, "letters testamentary" are issued to the person filing the petition and then can then take these letters to the bank as the estate representative to open an estate account. A small estate affidavit replaces a full probate case and no letters testamentary are issued. The small estate affidavit, once approved by the court, gives the Affiant the right to take possession of any personal property the deceased owned, including any checks that may be made out to her estate or to her personally.
Many bank employees don't understand this if they don't deal with Affidavits on a regular basis. So you may have to "educate" them on the law here and have a copy of the Oregon Statutes on hand so that they can see proof.
The applicable statute is ORS 114.535 and states:
Transfer of decedents property to affiant
• proceedings to compel transfer
(1) Not sooner than 10 days after the filing of an affidavit under ORS 114.515 (Value of estate), the affiant may deliver a certified copy of the affidavit to any person who was indebted to the decedent or who has possession of personal property belonging to the estate. Except as provided in this section, upon receipt of the copy, the person shall pay, transfer, deliver, provide access to and allow possession of the personal property to the affiant.
Further, it goes on to state:
(4) Any person that pays, transfers, delivers, provides access to or allows possession of property of a decedent in the manner provided by this section is discharged and released from any liability or responsibility for the property in the same manner and with the same effect as if the property had been transferred, delivered or paid to a personal representative of the estate of the decedent.
So once you get a certified copy of the affidavit, the bank should allow you to simply endorse the checks and deposit them into an estate account set up under the deceased's social security number so they can be disbursed to the heirs. Or they might allow you to just endorse them as the Affiant and deposit them into your personal account.
If she has another refund due to her from current taxes, you would need to file an IRS Form 243 Claim to Refund Due a Deceased Person along with her taxes so the IRS can make any refund payable to you as the Affiant.