In the Matter of the Estate of Leonard P. Clark, Deceased

Dalton Hobbs, as personal representative for his

mother Thelma’s estate (Dalton), appeals from a judgment

of final distribution of the estate of his step-father, Leonard

Clark (the decedent).1 Respondents Downie and Evans are

the decedent’s daughters, and respondent Harrington is the

personal representative of the decedent’s estate. Dalton contends

that the probate court erred in declining to address

a request for partial distribution that had been filed by

Thelma during her lifetime, before entering the judgment

of final distribution. In reviewing the probate court’s judgment,

we are bound by the court’s factual findings in the

record if there is evidence to support them, and we review

legal questions for errors of law. ORS 111.105(2) (“Appeals

from a circuit court sitting in probate shall be taken to the

Court of Appeals in the manner provided by law for appeals

from the circuit court.”); Bigsby v. Vogel, 248 Or App 423,

425, 273 P3d 284 (2012).2 We conclude that the court did not

err and therefore affirm.

The facts on which the probate court based its judgment

are primarily procedural and are not disputed. The

decedent’s will created two revocable trusts upon his death.

The first trust, Thelma’s Trust, was exclusively for the benefit

of Thelma, his surviving spouse. Thelma’s Trust was to

be funded after the decedent’s death. The will directed the

greater portion of the decedent’s estate to Thelma’s Trust. All

of the income from Thelma’s Trust was to be paid to Thelma

at least annually. The trust permitted Thelma to appoint

the trust’s remainder beneficiaries. Thelma appointed her

sons, Dalton and Mitchell, as the remainder beneficiaries of

Thelma’s Trust.

The decedent’s will also created the Decedent’s

Trust, which was to be funded after the decedent’s death

1 Dalton and Mitchell Hobbs are also named as appellants in their individual

capacities, but the only arguments on appeal are made by Dalton in his capacity

as personal representative of Thelma’s estate.

2 Formerly, this court reviewed probate court proceedings de novo. Adams v.

West Coast Trust, 266 Or App 83, 338 P3d 171 (2014), rev den, 356 Or 689 (2015).

Now, de novo review is discretionary in most equitable cases, like this one. ORS

19.415(3)(b).

128 Hobbs v. Harrington

with the maximum amount of the remainder of the decedent’s

estate that could pass free of federal estate tax. The

Decedent’s Trust was to be managed by a trustee who would

have the discretion to distribute income from the Decedent’s

Trust to Thelma for her proper care and support. The decedent’s

daughters were the remainder beneficiaries of the

Decedent’s Trust.

After the decedent’s death in June 2010, the decedent’s

will was admitted into probate, and Harrington was

appointed as personal representative. Thelma requested

that all documents relating to the estate be served on her

attorney. In May 2012, the estate made a partial distribution

to Thelma’s Trust of estate assets totaling $5.9 million.

In July 2013, Thelma’s attorney filed a petition for a second

partial distribution on Thelma’s behalf. The petition sought

to have the estate distribute to Thelma all of the estate’s

accumulated income, and distribute to Thelma’s Trust

shares of stock that the estate had acquired in “Rainier

Distribution, Inc.” Harrington requested that the court not

act on Thelma’s petition for partial distribution without first

holding a hearing. Thelma’s attorney did not request a hearing,

and the court did not take any action on the petition for

partial distribution.

In November 2013, Harrington filed a final accounting

and a petition for general judgment and final distribution,

and served all parties entitled to notice, including

Thelma and her attorney. The proposed final distribution

distributed to the Decedent’s Trust the shares of stock from

Rainier Distribution and accumulated income of the estate,

contrary to Thelma’s petition for partial distribution.

Harrington, as personal representative for the

decedent’s estate, required that any objections to the final

accounting be filed no later than November 26, 2013. Neither

Thelma nor her attorney objected to the final accounting.

But Dalton and Mitchell did object, explaining that they

were interested in the disposition as the children of the

decedent’s surviving spouse and the remainder beneficiaries

of Thelma’s Trust.

At a hearing to consider the final accounting and

distribution, the probate court declined to consider Dalton’s

Cite as 284 Or App 125 (2017) 129

and Mitchell’s objections brought in their individual capacities,

ruling that the brothers lacked standing.3 In light of

the court’s refusal to consider their objections, their attorney

asked the court to resolve Thelma’s petition for partial

distribution, which had sought a distribution of the disputed

shares of stock and the accumulated income. It is undisputed

that Thelma had died on January 2, 2014, after the deadline

for filing objections to the final accounting but before the

hearing, and that Dalton had been appointed as personal

representative of her estate. Dalton’s attorney sought to substitute

Dalton, as personal representative, for Thelma, and

contended that the court was required to resolve the issues

raised by Thelma’s petition for partial distribution before

addressing the final accounting and distribution. The court

concluded that the final distribution superseded and obviated

the need to address the petition for partial distribution,

and entered the judgment of final distribution.

On appeal, Dalton, as personal representative of

Thelma’s estate, argues that the probate court erred in

declining to address the merits of Thelma’s petition for partial

distribution before considering the final distribution. We

begin our analysis with the relevant statutes. ORS 116.013

relates to petitions for partial distribution and provides:

“Upon petition by the personal representative or other

interested person, and after such notice and hearing as

the court may prescribe, the court may order the personal

representative to distribute, prior to final settlement and

distribution, property of the estate to the person or persons

who would be entitled to the property under the will

or under intestate succession on final distribution[.]”

Under ORS 116.013, after notice and a hearing “as the court

may prescribe,” the court “may order” the personal representative

to make a partial distribution of estate property

“prior to final settlement and distribution.” The statute

gives the probate court discretion to make a partial distribution

before the estate is closed. See State v. Summers, 277

3 The court reasoned that Dalton and Mitchell lacked standing in their individual

capacities because, as of the deadline for filing objections, their interests

in the estate were as remainder beneficiaries of Thelma’s Trust. Because Thelma

was still alive and the trust was revocable, the court concluded that the brothers’

interests had not yet vested. That ruling is not challenged on appeal.

130 Hobbs v. Harrington

Or App 412, 418, 371 P3d 1223, rev den, 384 Or 156 (2016)

(statute describing sanctions that the court “may order” for

violation of discovery statutes conferred “broad discretion”

on trial court). But any partial distribution authorized by

the court is subject to reconsideration; the court may order

that it be returned to the estate if required for payment of

claims or expenses of administration. ORS 116.043.

When the personal representative files a final

accounting and petition for a judgment of distribution, the

personal representative also fixes a time for filing objections

to the final accounting and petition, and notifies each heir,

devisee, and creditor of the time fixed for filing objections.

ORS 116.093(1). ORS 116.103 provides:

“Any person entitled to notice under ORS 116.093 may,

within the time fixed for the filing, file in the estate proceeding

objections to the final account and petition for distribution,

specifying the particulars of the objection. Upon

the filing of objections the court shall fix the time for hearing

thereon.”

As we held in Adams v. West Coast Trust, 266 Or App 83,

98-99, 338 P3d 171 (2014), rev den, 356 Or 689 (2015), the

time set by the personal representative under ORS 116.093

for filing objections to the final accounting controls. If no

objections are filed by that date and the probate court

approves of the final accounting, the court enters a judgment

of final distribution. ORS 116.113. A judgment of final distribution

is the “conclusive determination of the persons who

are the successors in interest to the estate and of the extent

and character of their interest therein.” ORS 116.113(4).

There is no contention on appeal that there were

irregularities in the procedures leading up to the hearing

on the final accounting and petition for judgment of distribution.

Dalton’s four assignments of error all derive from his

view that the court should have resolved Thelma’s petition

for partial distribution before considering the final accounting

or entering a judgment of distribution.

Respondents challenge Dalton’s standing to appeal

the probate court’s judgment. They point out that Thelma,

who had been represented by an attorney during the probate

proceedings, did not file any objection to the final accounting

Cite as 284 Or App 125 (2017) 131

and that, after Thelma’s death, there was no motion under

ORCP 34 G (describing procedures for substitution of parties)

to substitute Dalton in his capacity as personal representative.

Dalton responds that the probate court in fact

ruled from the bench that he could appear in his capacity

as personal representative of Thelma’s estate for the purpose

of asserting that the petition for partial distribution

should be addressed. It is not clear to us from the record

whether the court ruled on Dalton’s requested substitution.

The court nonetheless did address the merits of Dalton’s

contention that it should dispose of the issues raised by

Thelma’s petition for partial distribution before entering a

final judgment of distribution. In rejecting the contention,

the court concluded that the petition for partial distribution

was “trumped” by the final accounting and distribution.

Assuming that the probate court in fact allowed

Dalton to appear in his capacity as the personal representative

of Thelma’s estate and that Dalton had standing in

that capacity, we conclude that there is no support in either

the statutes or the case law for Dalton’s contention that the

probate court erred in concluding that it did not need to

address the issues raised in the petition for partial distribution.

ORS 116.013 allows a probate court to make a partial

distribution “prior to final settlement and distribution”

but, as we have explained, the probate court’s authority to

make a final distribution is discretionary. There has been no

showing that the probate court abused its discretion here in

declining to resolve the petition. Country Casualty Ins. Co.

v. Villa-Chavez, 228 Or App 677, 682, 208 P3d 1036 (2009)

(court’s application of statute “couched in permissible terms”

reviewed for abuse of discretion).

Additionally, as the probate court correctly explained,

the petition for judgment of final distribution superseded

the petition for partial distribution.4 The probate court was

correct, because the judgment of final distribution designates

“the persons in whom title to the estate available for

4 The probate court characterized the issues raised in the petition for partial

distribution as having become “moot,” and Dalton disputes the correctness of that

characterization. We understand the probate court’s use of the term “moot” to

express the court’s conclusion that the petition for final judgment of distribution

superseded the petition for partial distribution.

132 Hobbs v. Harrington

distribution is vested and the portion of the estate or property

to which each is entitled.” ORS 116.113(1). Thus, the

judgment of final distribution made the final distribution of

all of the estate assets, including the assets that were the

subject of the petition for partial distribution. After the filing

of the final accounting and petition for a final judgment

of distribution, Thelma could have raised the same issues

raised in the petition for partial distribution by objecting to

the final accounting by the deadline established by the personal

representative, and the probate court would have been

required to hear them. ORS 116.103 (“Upon the filing of

objections the court shall fix the time for hearing thereon.”).

But, in the absence of a timely filed objection by a party with

standing to object, the court was not required to consider

those issues before entering the judgment of final distribution.

Adams, 266 Or App at 98-99.

Affirmed.