THE TRUTH ABOUT PROBATE IN OKLAHOMA

Probate is the court process that involves the distribution of a person’s assets after their death. Probate can be a time-consuming and expensive process. This blog is meant to provide some insight into the probate process as well as some tips on how you can avoid probate for your own estate.

What is Probate?

The word probate means “to prove.” Probate is the court process of proving a person’s heirs and will, if they had one. Typically, probate is only required for assets titled in the deceased person’s individual name (i.e. no joint owner and no beneficiary). If a person died with a will, referred to as dying “testate,” the will must be admitted to probate in order to have any effect. The Court will determine whether the will is valid or not. If the person died without having a will in place, referred to as dying “intestate,” or if the Court determines that the will is not valid, our state statutes contain provisions that dictate how the person’s assets will be distributed.

Who can serve as the personal representative of an estate?

If a person died testate, the person’s will typically nominates an individual(s) to serve as personal representative of the estate. If a person died intestate, the statutes provide an order of priority for who may serve as the personal representative, starting with the spouse, then adult children, then parents, then siblings and so on. In order to serve as the personal representative, the person must not be a convicted felon, minor or incapacitated person or adjudged incompetent to serve. It’s important that whoever serves as personal representative is responsible, detail-oriented and organized.

What are the steps of the probate process?

A general outline of the steps in the probate process is as follows: 

1. Petition filed with Court and a hearing date is set.
2. At the hearing, the Court will determine the validity of the will, if there is one, determine the heirs and appoint the personal representative. 
3. Following the appointment, the personal representative is required to take several steps:
   • Locate and safeguard the deceased person’s assets. 
   • File an inventory of the estate with the Court.
   • File Notice to Creditors. The notice must be mailed to all of the decedent’s known creditors and published in the newspaper for any potential unknown creditors. The statutes outline the procedure for acceptance and rejection of claims.
   • File an application for sale of real and personal property if there is any property owned by the estate that will need to be sold. A hearing may be required unless the heirs and beneficiaries sign waivers.
   • File and pay taxes for the decedent and the estate. 
   • Pay all valid creditor claims and obtain releases to be filed with the Court.
4. File a Final Accounting and Petition for Distribution and set a hearing date. Notice must be provided to all parties and published in the newspaper. The Petition should also include requests for approval of attorney’s fees, personal representative’s fee and reimbursement of any administrative expenses paid by the personal representative or others. 
5. At the final hearing, the Court will enter an Order ordering the personal representative distribute the estate to the beneficiaries in the will or, if there is no will, to the deceased person’s heirs-at-law in the proportions set forth in the statutes. 
6. After distribution of all of the assets, the personal representative should file receipts with the Court and obtain a final discharge. 

The statutes provide specific deadlines, timeframes and notice requirements for all of the above-listed steps. 

How long does the process take?

The probate process typically takes approximately a minimum of six months and up to one year or longer to complete. There are multiple factors that can affect how long the probate process takes including, the number of heirs and beneficiaries, whether anyone contests the probate, the number of creditors, whether there is property that will need to be sold and the Court’s schedule. 

Can probate be avoided?

Yes. Planning for your estate in advance by implementing a comprehensive estate plan that includes a revocable trust can avoid the probate process. Transferring your assets into a revocable trust can avoid probate because if there are no assets in your individual name at your death, there would be no assets subject to the probate process. Instead, the person you designate as your successor trustee would be able to step in at your death and administer and distribute the trust assets according to your specifications as detailed in the trust document without the need for any court involvement.

Whether you are looking to do your own estate planning in order to avoid probate or you are seeking assistance in probating the estate of a loved one, our office can serve as your trusted guide. Contact us today.