ORS 114.395¹
Improper exercise of power
  • • breach of fiduciary duty

If the exercise of power by a personal representative in the administration of an estate is improper, the personal representative is liable for breach of fiduciary duty to interested persons for resulting damage or loss to the same extent as a trustee of an express trust. Exercise of power in violation of a court order is a breach of duty. Exercise of power contrary to the provisions of the will may be a breach of duty. [1969 c.591 §136]

Notes of Decisions

Coper­sonal representative violated his fiduciary duty by making remarks that resulted in investiga­tion that depleted estate assets and delayed distribu­tion so respondents are entitled to costs and attorney fees. Moser v. Van Winkle, 103 Or App 398, 797 P2d 1063 (1990)

Court had authority to order per­sonal representative to pay costs and attorney fees under this sec­tion. Moser v. Van Winkle, 103 Or App 398, 797 P2d 1063 (1990)

§§ 114.255 (Commencement of duties and powers of personal representative) to 114.435 (Power to avoid transfers)

Notes of Decisions

Where ORS 30.070 (Settlement) grants per­sonal representative “full power” to settle wrongful death claim with approval of probate court and does not require notice to beneficiaries or grant them right to intervene in pro­ceed­ing to approve settle­ment but only to be heard as matter of right re­gard­ing alloca­tion of proceeds, if per­sonal representative breached fiduciary duty, beneficiaries have remedy under ORS 114.395 (Improper exercise of power) and 114.405 (Personal liability of personal representative). Hughes v. White, 41 Or App 439, 599 P2d 1147 (1979), aff’d 289 Or 13, 609 P2d 365 (1980)

1 Legislative Counsel Committee, CHAPTER 114—Administration of Estates Generally, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors114.­html (2019) (last ac­cessed May 16, 2020).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 114, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano114.­html (2019) (last ac­cessed May 16, 2020).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information