Detailed Answer
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney in Oregon for guidance on your specific situation.
Under Oregon law, a will typically requires the testator’s signature and the attestation of two competent witnesses (ORS 112.315). Notarization is optional; Oregon does not require it for validity. If a will was neither witnessed nor notarized, you may still probate it by relying on one of two doctrines:
- Holographic Will: If the entire document—including the signature, date, and all material provisions—is in the testator’s own handwriting, Oregon treats it as a valid holographic will. See ORS 112.235. No witnesses are required.
- Harmless Error Doctrine: For unwitnessed, typed, or otherwise non-compliant wills, Oregon allows probate if the court finds by clear and convincing evidence that the decedent intended the document as their last will. This is known as the “harmless error” exception. See ORS 112.278.
Once you establish that the un-witnessed will meets either requirement, follow the standard probate process under Oregon’s Estates and Personal Representatives Code (ORS Chapter 116):
- File a petition for probate with the circuit court in the county where the decedent resided (ORS 116.005).
- Attach the original will, a certified death certificate, and a list of heirs and beneficiaries.
- Provide notice of the petition to all heirs, devisees, and creditors as required by ORS 116.055.
- Attend the probate hearing. Present evidence of the will’s validity—handwriting samples for a holographic will or testimony and documents for the harmless error exception.
- Upon approval, the court will appoint a personal representative to administer the estate (ORS 116.117).
Helpful Hints
- Locate and secure the original will immediately. Courts require the original for admission.
- Gather any handwriting samples—letters or journals—to support a holographic will claim.
- Collect witness statements or other evidence demonstrating the decedent’s intent for the harmless error route.
- Prepare a complete list of beneficiaries and known creditors to meet notice requirements.
- Consider hiring a probate attorney to navigate court procedures and deadlines.
- File your petition within four years of the testator’s death to avoid statute-of-limitations issues (ORS 115.005).