What Does the Probate Process Look Like?

+ What is the probate process?

Probate is the legal process that takes place when someone passes away. An Oklahoma court administers and distributes the estate of the deceased individual, also known as the decedent, pursuant to whether the decedent had a Last Will and Testament. If the decedent did have a Will, then their estate is distributed pursuant to the instructions provided therein. If the decedent had no Will, distribution is governed by Oklahoma’s intestacy statutes. These statutes govern to whom the decedent’s estate will be distributed, dependent upon whether the decedent had living children, parents, or other close relatives when they passed away. These statutes are strictly enforced and precisely followed by the court.

+ What does the probate process look like in detail?

Click HERE to read about the probate process in our News and Notes section.

+ How long does probate take?

The length of time it takes to complete the probate process varies by the complexity of each individual estate and the type of probate you file. Typically, the probate process can take anywhere from six months to a year. The process can take even longer if the Last Will and Testament is contested. Anyone entitled to a share of the probate estate may contest a Will by raising a formal objection against its validity.

+ Where does probate occur?

The district court oversees the probate process, so it's important to determine in which court the probate will occur. As a rule of thumb, probate generally occurs where the decedent resided. If the decedent owned property in Oklahoma but passed away in another state, the probate in Oklahoma would occur in the county where the property is located.

+ Are there any estate taxes owed?

No estate taxes are owned to the State of Oklahoma for any decedent who passed after January 1, 2010. While estates are still taxed at the federal level, most estates will not be subject to these taxes as the federal exemption is very high and is calculated on a yearly basis. If you are still concerned about estate taxes, please contact us for a much more detailed discussion.

+ Are there different types of probates?

Yes. In the alternative to a “regular” probate and if the circumstances allow, you can do one of the other two types of probates in Oklahoma.

Summary Administration: You can think of this option as a probate that has been condensed into a much shorter timeframe. Summary Administration can only be used if the value of the estate does not exceed $200,000, if the decedent has been deceased for at least 5 years, or if the decedent resided in another state at the time of their passing.

Ancillary Probate: This option may be used if the decedent owned property in Oklahoma but resided in another state, so long as the decedent’s probate has been completely finalized in the other state. This type of probate allows the court in Oklahoma to rely upon the probate from the another state to distribute the property located in Oklahoma in the same manner. There are some additional limitations to this type of probate.

+ Do all assets have to be probated?

No. Any asset or property with a named beneficiary, assets held in trust or held in joint tenancy, and property subject to transfer-on-death or pay-on-death designation will not pass through probate. This type of property may also include life insurance or retirement accounts. These types of designations will automatically pass to the named individuals without the probate process.

Although these assets pass outside of probate, they should not be your estate plan. There are pitfalls relying upon these assets to transfer automatically. It doesn’t account for incapacity, minor beneficiaries, or possible tax consequences for transferring certain types of property.

+ Can you avoid probate?

There are a few limited alternatives to the standard probate process.

Small Estate Affidavit: This option is available to transfer personal property of the decedent valued under $50,000. A Small Estate Affidavit can only be used for personal property, like a car or bank account. It cannot be used to transfer real property, like a home or mineral interest.

Affidavit of Death and Heirship: If you own mineral interest in Oklahoma, this option may sometimes be used in lieu of a probate. It can be especially helpful if you are concerned about receiving royalty or bonus payments from an oil and gas company if a probate has yet to be filed. For an Affidavit of Death and Heirship to pass title, Oklahoma laws requires it to be filed in the county where the mineral interest is located for 10 years. Oklahoma law also requires numerous other facts be stated in the Affidavit it to be considered valid.

The above two options are great in an emergency, but should not be a substitute for a well thought out estate plan.

Trust: To bypass the requirement for a probate, you can create a trust. One of the most important parts of setting up a trust is putting your assets into the trust, which is called funding. You can also choose to be the trustee or appoint a third party. A trustee is in charge of managing the trust. Upon your passing, the assets in the trust would automatically be distributed by the terms of the trust. The terms of a trust and the options inside your trust are plentiful. You can also set up various types of distributions based on the needs of minor children, children with special needs, or that third cousin that can’t manage their money correctly.