In the Matter of the Estate of Lelah A. Nelson, Deceased.
STATE OF OREGON, acting by and through Department of Human Services; Evelyn Wilson; and Clifford Nelson, Personal Representative of the Estate of Lelah A. Nelson, Deceased, Claiming Successors-Respondents. Cassandra GIVAN and Richard Lariviere, Jr., Claiming Successors-Appellants,
and submitted May 18, 2016
County Circuit Court 13PB00876 Jenefer Stenzel Grant, Judge.
D. Gish argued the cause and fled the brief for appellants.
L. Kutler, Assistant Attorney General, argued the cause for
respondent State of Oregon. With him on the brief were Ellen
F. Rosenblum, Attorney General, and Paul L. Smith, Deputy
appearance for respondent Evelyn Wilson.
appearance for respondent Clifford Nelson.
Tookey, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Or.App. 126] Case Summary: Appellants fled claims against the
decedent's estate. The decedent's estate was
initially administered in a small estate proceeding and later
put into full probate. The probate court allowed
appellants' claims in the small estate proceeding but
denied them in whole or part in the full probate proceeding.
On appeal, appellants challenge the probate court's
actions, asserting that, on the procedural facts of this
case, the probate court lacked jurisdiction to order
distribution of the property of the estate in a manner other
than that provided in ORS 114.555. One appellant also
challenges an attorney fee award against her contained in a
supplemental limited judgment. Held: Where the
probate court did not appoint a personal representative
within four months of the fling of the small estate
affidavit, the probate court lacked jurisdiction to
administer the estate in a manner contrary to ORS 114.555.
judgment vacated and remanded; appeal of supplemental limited
Or.App. 127] AOYAGI, J.
appeal pertains to the estate of Lelah Nelson. Givan and
LaRiviere are grandchildren of the decedent and claimants
against her estate. Their claims were allowed in a small
estate proceeding. That proceeding was later converted to
full probate, after which the probate court disallowed
Givan's claim, gave nonpriority status to a portion of
LaRiviere's claim, and entered a limited supplemental
judgment for attorney fees against Givan.
and LaRiviere's first three assignments of error
challenge different rulings but all fundamentally turn on one
legal issue-whether the probate court had jurisdiction to
order distribution of the property of the estate in a manner
other than that provided in ORS 114.555. We conclude that it
did not. We therefore vacate and remand the general judgment
based on the first assignment of error and do not reach the
second and third assignments of error. As to the fourth
assignment of error, in which Givan challenges the limited
supplemental judgment for attorney fees, we dismiss that
portion of the appeal for lack of jurisdiction.
following facts are undisputed. Lelah Nelson of St. Helens
died, testate, in January 2012. On February 15, 2012, her son
Clifford Nelson (Nelson) filed a small estate affidavit
pursuant to ORS 114.515, triggering the small estate
procedures in ORS 114.505 to 114.560. Various claims were
made against the estate, including (1) a claim by the
Department of Human Services (DHS) in the amount of $49, 004
for repayment of public assistance; (2) a claim by Nelson
that included funeral expenses in the amount of $7, 640, in
which LaRiviere has an interest; and (3) a claim by Givan in
the amount of $32, 503 for "health care
representative" services provided to the decedent.
early 2013, Nelson and another claimant, Wilson, each
petitioned for summary review of the administration of the
estate, as provided in ORS 114.550. Wilson challenged
Nelson's and Givan's claims. In June 2013, the
probate court entered a limited judgment allowing the funeral
expenses in full as an administrative expense. It also
allowed Givan's [289 Or.App. 128] claim in full as an
administrative expense. Administrative expenses receive
priority in the distribution of estate proceeds. ORS
further occurred in the small estate
proceeding. Instead, on November 4, 2013, Nelson filed
a petition under ORS 113.035 to admit the decedent's will
to probate and to appoint himself as the personal
representative. That step appears to have been spurred by an
issue related to selling the decedent's real property. In
any event, the court granted the petition, stating,
"This proceeding shall incorporate, supersede and
replace the Small Estate Proceedings, Columbia County Circuit
Court Case No. 12-104SE. All allowed, adjudicated, pending
and disputed claims and claim determinations made in that
proceeding are incorporated into this proceeding." The
court later described this as "converting" the
small estate proceeding to "full
details of the full probate proceeding are not relevant
except as follows. In March 2014, Nelson filed a statement in
lieu of final account, which included a proposed distribution
that gave Nelson's and Givan's claims priority over
DHS's claim, such that DHS would not be paid in full on
its claim. Both DHS, which had previously expected to be paid
in full, and Wilson filed objections to Nelson's
statement. That triggered the first of several filings by
Givan (the last of which would be joined by LaRiviere) to try
to persuade the probate court to abide by the claims rulings
in the earlier small estate proceeding. The court ultimately
granted DHS's objections, disallowing Givan's claim
in its entirety and ruling that only $3, 500 of funeral
expenses were entitled to priority.
Or.App. 129] Givan later filed a motion for new trial on her
claim, based on newly discovered evidence, which the court
denied. Viewing the motion as frivolous, the court awarded
approximately $6, 000 in attorney fees and costs to DHS,
against Givan, in a "limited supplemental judgment"
entered on April 1, 2015. Givan appeals that judgment.
April 28, 2015, the court entered its general judgment, which
both Givan and LaRiviere appeal.
their first assignment of error, Givan and LaRiviere assert
that the probate court erred in allowing and not dismissing
DHS's and Wilson's objections to Nelson's
statement in lieu of final account as it pertained to their
claims. They argue that, under ORS 114.555, once Nelson filed
a small estate affidavit and the court did not appoint a
personal representative within four months, the court lacked
jurisdiction to resolve claims and distribute estate property
in a manner other than that provided in ORS 114.555. DHS
concedes that ...