2017 ORS 115.004¹
Recovery for failure to make search or give notice
  • indemnification
  • time for commencing action

If, as a result of breach of a duty imposed by ORS 115.003 (Personal representative to make diligent search for claimants), a claim or any part of a claim is not paid from the estate during administration, the amount of the claim may be recovered as follows:

(1) The claimant shall have a cause of action against the personal representative and the surety for the personal representative for the amount the claimant would have been paid from the estate had all claims not barred from payment been presented within the time required by ORS 115.005 (Presentation of claims) (2) and allowed by the personal representative, provided that any payment on account of a judgment entered under subsection (2) of this section shall also satisfy a judgment entered under this subsection in the amount of the payment.

(2) The claimant shall have a cause of action against each interested person who received a distribution or other payment from the estate for the amount by which the payment received would have been reduced by payment of the claim from the estate had all claims not barred from payment been presented within the time required by ORS 115.005 (Presentation of claims) (2) and allowed by the personal representative, provided that any payment on account of a judgment entered under subsection (1) of this section shall also satisfy a pro rata portion of each judgment entered under this subsection.

(3) Each interested person who received a distribution or other payment from the estate shall indemnify the personal representative and the surety for the personal representative against liability on the claim in the amount by which the payment received would have been reduced by payment of the claim from the estate had all claims not barred from payment been presented within the time required by ORS 115.005 (Presentation of claims) (2) and allowed by the personal representative.

(4) Each interested person who received a distribution or other payment from the estate shall indemnify the personal representative and the surety for the personal representative against the reasonable costs, including attorney fees, of defense of the action in the same proportion and to the same extent as such distributee would be required to indemnify against the claim under subsection (3) of this section:

(a) If the personal representative prevails against the claimant, in such proportion of the full amount of such costs; or

(b) If the claimant prevails against the personal representative, in such proportion of the amount of any such costs which could have been reasonably incurred by the estate upon disallowance of the claim had it been presented within the time required by ORS 115.005 (Presentation of claims) (2).

(5) Except as provided in subsection (6) of this section, an action under this section against a personal representative, the surety for a personal representative or an interested person shall be commenced within two years after the death of the decedent or within the statute of limitations applicable to the claim, whichever is earlier.

(6) An action for indemnity under subsection (3) or (4) of this section shall be commenced within the time required by subsection (5) of this section, unless:

(a) Notice of the action giving rise to the claim for indemnity is given to each party from whom indemnity is sought personally or by mail to the party’s last-known address within 180 days after the complaint in the action is served on the party seeking indemnity; and

(b) The action is commenced within one year after a judgment in the action giving rise to the claim for indemnity becomes final and not subject to further appeal. [1989 c.229 §3]

Law Review Cita­tions

26 WLR 278 (1990)

1 Legislative Counsel Committee, CHAPTER 115—Claims; Actions and Suits, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors115.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 115, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano115.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.