Oklahoma probate laws can be complicated. At Ball Morse Lowe, we understand that knowing more about the probate process in Oklahoma can go a long way in relieving your stress. The probate procedure often causes a lot of questions. That’s why we’ve put together this page of Oklahoma probate law questions and answers.
Ball Morse Lowe’s probate attorneys in Oklahoma City provide free initial consultations. After reading these frequently asked Oklahoma probate law questions, schedule your free consultation with Ball Morse Lowe.
How Does Probate Work in Oklahoma?
Probate in Oklahoma is a legal process that determines if the claims made for assets are valid. How probate works in Oklahoma depends on several factors, including whether there is a valid will and the type of probate that is required for the estate. We will discuss more about the types of probate in Oklahoma in another section.
To answer this question, we will focus on two general situations: probate in Oklahoma when there is a valid will and when no will is located.
The probate process in Oklahoma when there is a valid will is very different than when there is no will located. This is because a valid will allows the decedent (the person who passed away) the ability to tell the Oklahoma County Probate Court how they wanted their assets distributed.
They could also use their will to name a guardian for their
minor child. It could also be used to establish a trust or
provide information about a trust.
The will must be filed in the Oklahoma county district court where the decedent resided at the time of death. For our purposes, we will presume it is Oklahoma County. Along with the will, a Petition for Probate must be filed. If the will names an Executor or Administrator, this person is named in the Petition for Probate.
We will stop here for just a moment to explain the difference between what happens when there is and isn’t a will because while the steps and court documents are similar, there are a few vital differences. If there is no will, this is referred to as dying intestate. Oklahoma intestacy law determines how the assets will be distributed since there is no valid will. Probate must still take place.
A Petition for Probate must still be filed in the county where the decedent was a resident at the time of their death. An Executor or Administrator must be appointed.
The Oklahoma County Probate Court either determines if the will is valid and names the Executor or Administrator or, if there is no will, appoints an Executor or Administrator to oversee the administration of the estate. The appointed individual is commonly referred to as the Personal Representative of the estate.
Letters Testamentary are provided by the Oklahoma County Probate Court so that the Personal Representative can begin to act on behalf of the estate. A Notice of Probate must be published so that the Oklahoma probate creditor claim statute of limitations can begin running. Nothing can be given to the heirs until creditor claims are filed, examined, and paid. Creditors have two months from the date of publication to file their claims.
An estate inventory must be performed generally within two months of the Personal Representative taking on their role. Sometimes there are assets that must be appraised. The Personal Representative is also responsible for filing the final income taxes on behalf of the decedent and, if necessary, for the estate. Although Oklahoma does not have a death tax, there is a federal estate tax for estates worth at least $11,700,000 in 2021.
After the creditors are paid and tax obligations are fulfilled, the Oklahoma County Probate Court will provide the Personal Representative with an order to distribute any remaining assets to the beneficiaries.
If there was no will, this would be done under Oklahoma
intestacy laws. Otherwise, distribution occurs according to the
Do I Need Probate in Oklahoma If I Have a Will?
Yes, you still need the probate in Oklahoma even if you have a will. One purpose of probate is to determine if the will is valid. Another purpose is to begin the Oklahoma probate creditor statute of limitations.
However, depending on the circumstances, you may qualify for another type of probate. The full probate procedure in Oklahoma is used if an estate is worth over $200,000. The simplified probate procedure may be available for estates worth less than $200,000.
The probate process officially appoints the named Executor and allows them to take on the fiduciary duties legally required by Oklahoma probate laws. The will only outlines how the assets should be distributed after those fiduciary duties are fulfilled.
What Happens If I Don’t Probate the Will in Oklahoma?
Oklahoma probate law states that if there is a will, either a simplified probate procedure, full probate, or ancillary probate should be filed. Remember that probating the will is a legal process that takes care of creditors, taxes, and the estate’s heirs and beneficiaries. If you don’t probate the will when there are assets and accounts that make doing so necessary, the estate could get sued by a beneficiary or heir. As the Executor or Administrator of the estate, you have certain legal obligations under Oklahoma probate law that must be met. If you aren’t sure how to probate the will or which type of probate should be filed, schedule your free consultation with Ball Morse Lowe’s Oklahoma City probate attorneys today.
Do I need a Trust or Will?
Do You Need a Lawyer to Probate a Will in the Oklahoma County Probate Court?
There is no legal requirement to have a lawyer represent you to probate a will in Oklahoma County Probate Court. However, there are benefits to doing so. For example, a lawyer can help you:
With creditor claims filed against the estate
Understand the probate procedure in Oklahoma
Provide you with assistance if the will or trust is challenged
Help you determine which type of probate matter to open
Hirirng a probate attorney in Oklahoma City can help you
avoid unnecessary stress during a challenging time.
How Long Do You Have to Probate a Will in Oklahoma?
According to OSCN 58 § 21, you have 30 days after learning of the death to begin the probate process. The probate matter should be filed in the county where the decedent lived at the time of their death.
What Types of Probate in Oklahoma Are There?
The types of probate in Oklahoma generally include:
Full or formal probate process. The full or formal probate procedure is the probate process for estates with assets worth more than $200,000.
Simplified procedure (sometimes referred to as summary probate). The simplified probate procedure in Oklahoma is used for smaller estates. These estates are worth less than $200,000. The process is often faster than formal probate.
Ancillary probate. Ancillary probate in Oklahoma is used when the decedent owned property here, but they did not reside here. Ancillary probate is filed in the county where the real property is located.
Ball Morse Lowe understands that it can be challenging to determine which type of probate is correct for your situation. Our Oklahoma City probate attorneys provide free initial consultations.
How Long Does the Oklahoma Probate Process Take?
The length of time of any Oklahoma probate matter depends on several factors:
If there is a valid will
The size of the estate
If heirs are located
If creditors object
If any probate litigation occurs
The overall difficulty of managing the estate
The Oklahoma County Probate Court’s schedule
Generally, it could take as little as four to six months to close out a formal probate matter. However, some probate cases can be quite complex and take much longer. Simplified probate proceedings in Oklahoma generally take less time.
Do Mobile Homes Go Through Probate in Oklahoma?
Whether a mobile home will go through probate in Oklahoma will depend on how the mobile home is titled. The State of Oklahoma states that a mobile home may be treated as a vehicle or real property based on whether it is on land that the person owned or on land owned by another person.
If the mobile home is on land owned by another person, only
the mobile home would be inherited, not the land. Therefore,
the heir(s) or beneficiary may need to move it.
Why are we bringing up the State of Oklahoma and how they classify mobile homes? Because whether a mobile home goes through probate may also depend on how it is titled. If the mobile home is paid off, then much like a vehicle or home that is also paid off, probate can be avoided by using a Transfer-on-Death title for the mobile home. If the decedent is married and their spouse is on the title, the mobile home becomes the spouse's property.
If the decedent was not married and there was no estate planning tool such as a Transfer-on-Death title used, the mobile home is treated as real property, and it becomes part of the estate during the probate process. Hopefully, the decedent had a will and listed the mobile home in their will.
Does a Surviving Spouse Need Probate in Oklahoma?
In many cases, yes, the surviving spouse must open a probate case in Oklahoma even if their spouse left everything to them. Keep in mind that Oklahoma probate law does allow for simplified probate procedures for estates worth less than $200,000.
The key to determining whether you need to file is to determine if you have probatable assets. Any property owned by you as the surviving spouse and the deceased does not go through probate. For those assets, you would file an Affidavit of Surviving Joint Tenant along with a copy of the death certificate. Trust assets, life insurance proceeds, certain retirement accounts, certain pension accounts, payable on death accounts, and Transfer-on-Death accounts are non-probate assets.
If you’re unsure which Oklahoma probate procedure you should file, schedule a free initial consultation with Ball Morse Lowe.
Are Joint Accounts Subject to Probate in Oklahoma?
No, joint accounts are not subject to probate in Oklahoma. This includes joint bank accounts, joint savings accounts, and even co-owning property together, such as real estate and vehicles. To know whether something was a joint account, check the account name.
Do I need a Trust or Will?
How Do You Avoid Probate in Oklahoma?
Several estate planning tools can be used to help you avoid probate in Oklahoma. The most common one being establishing a trust. For larger estates that may be subject to federal estate tax, tax strategies are essential. Parents have other concerns, such as caring for their children or continuing their education. Protecting your assets while avoiding probate is an important job.
Yet, developing a plan to avoid probate in Oklahoma is based on your circumstances. Your goals and circumstances should be reviewed from time to time, too. To begin the estate planning process now, schedule your free initial consultation with Ball Morse Lowe now. We pride ourselves on providing individualized solutions to meet the needs of our clients.
How Much Does It Cost to Probate a Will?
The cost to probate a will depends on several factors, in addition to the filing fees of the Oklahoma Probate Court and publication fees.
The complexity of managing the estate
Whether you must hire an accountant or tax professional
Whether you must hire an appraiser for any of the assets
Whether probate litigation occurs
The fee for the Executor
Legal fees, if hired
Free Consultation: Probate Attorney in Oklahoma
If you have questions about the probate procedure in Oklahoma, Ball Morse Lowe is here to help. We want to educate our clients and ensure that they have the best possible probate experience. To schedule your free initial consultation, click here.