Probate is the legal process of proving the will and determining heirs. An estate executor or attorney representing the estate will initiate the process. From there, the court will validate the will, authorizing the executor to distribute assets to beneficiaries as instructed in the will as well as pay any creditors or taxes the estate may owe.
If there isn’t a will, property will be distributed according to the statues. In other words, the court will name an administrator of the estate and follow the probate judge’s instructions on how to divide the property.
Probate laws differ by location, so it’s important to familiarize yourself with your state’s mandates so your wishes can be administered effectively. In today’s blog, we’ll be explaining how the probate process works in Oklahoma.
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An Overview of Probate
The purpose of probate is to prevent fraud after someone’s death by freezing the estate until a judge can determine the will is valid. During this process, they ensure all the relevant people have been notified, the property of the estate has been properly identified and appraised as well as any creditors and taxes have been paid. Once that has been done, the court issues an order distributing the property then the estate is closed.
If there isn’t a will, the Oklahoma laws of interstate succession will determine the beneficiaries of your estate. And in most cases, a surviving spouse or adult child will be appointed as administrator. The process as a whole can take anywhere from six months to years (if contested) to complete. Until then, assets of the estate cannot be distributed until the court allows it.
Not all estate must go through probate.
Oklahoma has two probate shortcuts depending on the type of estate. For estates less than $50k, an affidavit may be sufficient. Whereas for estates less than $200k, an abbreviated probate procedure may be possible just as long as the estate meets statutory requirements.
Not all assets are subject to probate.
Some assets transfer automatically at the death of owner with no probate required. Examples of these assets include accounts or property held in joint tenancy with the right of survivorship, beneficiary designations on accounts, and payable or transfer on death accounts.
If assets are held in a living trust, the estate won’t go through probate.
This is one of the reasons why living trusts are created – to avoid probate after the death of the trust’s creator. If a decedent created a living trust, holding their assets, the estate won’t go through probate.
UPC vs. Non-UPC States
As mentioned, the process of probate can vary by location. For estates in Oklahoma exceeding the small estate threshold, if there’s either no will or a will (but not a living trust), probate will be required before an estate can be transferred to the heirs or beneficiaries.
For other states, probate will largely depend on whether your state has adopted the Uniform Probate Code (UPC). This is a set of probate laws created to make the probate process simpler – especially for small estates. This gives executors more flexibility in how they proceed.
Every probate court has its own rules about the documents it requires, what they must contain and when they must be filed so it’s important to enlist the help of an attorney. Because Oklahoma has not adopted the UPC, the process of probate can be particularly complex to navigate.
The Probate Process in Oklahoma
This is a broad overview of the probate process in Oklahoma and is not intended to be a step-by-step guide.
Request to become personal representative or administrator of the estate.
- A petition for probate is filed with the Court and a hearing date is set.
- Notice must be given to all heirs and may need to be published in the newspaper. These notices must be made within certain time frames.
- At the hearing, the Court will appoint the administrator or personal representative. If there is a will, the Court will determine whether the will is valid and if so, admit the will to probate.
- The personal representative or administrator may be required to post a bond to protect the estate from any losses caused up to a certain amount. The amount of the bond depends on the size of the estate.
Administrator of the estate.
- The personal representative or administrator will be in charge of keeping the estate safe during probate. An inventory or list of the deceased person’s assets will need to be filed with the Court. If necessary, assets may need to be appraised.
- Creditors of the estate must be notified and a notice to creditors must be published in the newspaper. Any creditors of the estate must submit claims to the personal representative or administrator within a certain time frame.
- If the estate is solvent, approved claims should be paid.
- If required, a federal estate tax return should be filed within nine months of the date of death.
File and close the estate.
- When the time has expired for creditors to file claims, and any approved claims have been paid, all necessary tax returns have been filed and any disputes settled; a petition or final account will be filed with the court to close out the estate and distribute all remaining property to beneficiaries.
- All heirs and beneficiaries must be notified of the final hearing and a notice must be published two times in the newspaper.
- Once the Court approves the final account, the remaining property can be distributed to the beneficiaries. The beneficiaries should sign receipts when they receive the property.
- After the assets have been distributed and all matters are concluded, the receipts should be filed with the Court and a final discharge obtained releasing the personal representative or administrator from his or her duties.
An estate is probated in order to identify and collect the property of an estate, to pay debts and taxes, and to determine who is entitled to a share of it. In the case of real estate, mineral rights and other record ownership property, probate provides a secure method to transfer ownership and maintain a clear chain of title to the property.
When it comes down to it, someone is required to step into the shoes of the deceased and carry out the business of the estate. Because Oklahoma has not adopted the UPC, probate can be a long and complicated process without the assistance of an attorney. To learn more about probate, we invite you to reach out to us today at (405) 701-6376.
Getting Started: Mapping Out an Estate Plan
Many people think estate plans are just for the wealthy. But in reality, just about everyone should have one. An estate plan combined with a trust can help avoid any delays that may put financial strain on your family. In this simple 10-step guide, we walk you through an overview of the process so you can begin outlining yours today.