Q: What is probate?

A: When a person dies, there is a process to determine the deceased person’s assets, to determine their value, and to distribute them to creditors and to heirs. This process is called Probate. This process takes place in a District Court, usually in the county where the deceased person lived. If the deceased person lived in another state, but owned property in Oklahoma, then the process is called Ancillary Probate. If the person lived in Oklahoma, but also left property in another state, then there would need to be a probate in Oklahoma as well as a probate in the other State. A probate attorney specializes in helping the heirs of a deceased person navigate the probate process and claim their inheritance.

Q: When do you need a probate?

A: There are many reasons that a probate needs to be opened in a District Court for a deceased person. A Probate Attorney can advise you as to whether you need to open a probate for a deceased person. However, the following are common situations where a probate would need to be opened for a deceased person:

1. You need to open a probate if the deceased person left a Will.
2. You need to open a probate if the deceased person owned a home or other real property such as land or mineral interests.
3. You need to open a probate if the deceased person left more than $50,000 in a bank or investment account and did not name any payable on death persons on the account.
4. You need to open a probate if the value of all the deceased person’s property (car, personal property, house, bank accounts) adds to over $50,000.

Q: Can a small estate avoid probate?

A: Yes, if the deceased person did not own any real estate it may be possible for the heirs to claim the assets using a Small Estate Affidavit if the total value of all the property of a deceased person is less than $50,000. The procedure for a Small Estate Affidavit can be found at 58 Okla. Stat. Ann § 393 and 6 Okla. Stat. Ann. § 906.  For motor vehicles, you can fill out Oklahoma Tax Commission Form 405. In some cases, it may also be possible to claim a mineral interest using an Affidavit. The procedure for claiming a mineral interest through an Affidavit is found at 16 Okla. Stat. Ann.  § 67. In either of these instances, consulting with a Probate Attorney will ensure that you are completing the Affidavit procedure correctly. If you are attempting to claim a mineral interest using an Affidavit, you should consult with a Probate Attorney that is also well versed in the law of mineral interest in Oklahoma. Fortunately, the attorneys at our firm are very experienced with not only mineral interests, but also probate procedure.

Q: What does a probate involve?

A: First a probate must be opened in the correct District Court in Oklahoma. A Probate Attorney will know which county to file the probate in, and how to open the probate. Then the Court will appoint a Personal Representative. After a Personal Representative is appointed, the Personal Representative works with the Probate Attorney to complete the probate of the Estate. There are numerous steps in the probate of the Estate. These steps and duties in probate require preparing and filing numerous legal documents, publishing notices in the local newspaper, appearing for hearings at the District Court, preparing tax returns, accounting for funds, and making a distribution of the property to the heirs of the deceased person.

Q: What is a Personal Representative?

1. A Personal Representative is the person appointed by the Court to be in charge of managing the property and money in a deceased person’s Estate during probate. The Personal Representative is a fiduciary that owes a duty to the Estate to act in the best interests of the Estate and the heirs, legatees and devisees. Depending on if the deceased person left a Will or not, the Personal Representative may also be referred to as an Executor or Executrix or an Administrator or Administratrix.

Q: Who has the right to be personal representative?

A: A Personal Representative is often named in the Will of a deceased person. If there is not a Will, or all the persons named in the Will cannot serve as Personal Representative, then the Court will appoint a person in order of priority as determined by Oklahoma law. The Personal Representative can be anyone named by the deceased person in their Will. The Personal Representative is often a family member of the deceased person, or a close friend or business associate.

Q: What if someone else does not want to be a personal representative and I do?

A: The person named as the Personal Representative may decline to serve as Personal Representative, and another person may be appointed by the Court.

Q: What does a personal representative do?

A: The Personal Representative will have many duties during the probate procedure, some of them are as follows:

1. To help the probate attorney determine the names, ages, residence, and degree of relationship of all possible heirs of the deceased person.
2. To identify and take possession and protect all of the real and personal property of the deceased person, and hold it for the benefit of the heirs of the Estate during the probate process.
3. To identify and pay all debts of the deceased person.
4. To distribute the property to the appropriate parties as determined by the District Court.

Every action taken by the Personal Representative is subject to the scrutiny of the Judge of the District Court. A Probate Attorney can help the Personal Representative navigate the probate process and complete all of the steps and duties required to complete the probate of the deceased person’s estate. A Personal Representative can live out of state, and, if assisted by a Probate Attorney, can typically accomplish all the duties required without having to travel to Oklahoma.

Q: What is an heir?

A: An heir is a person that would be legally entitled to inherit some interest in a deceased person’s Estate if the deceased person did not leave a Will. This is often a surviving spouse and/or children. However, an heir can be a parent, sibling or grandchild depending on the circumstances.

Q: What is a devisee?

A: A devisee is someone that receives an interest in real property (such as a house, minerals or land) through a deceased person’s Will.

Q: What is a legatee?

A: A legatee is someone that receives an interest in personal property (such as money, jewelry, furniture) through a deceased person’s Will.

Q: What determines who receives the Probate property?

A: If the deceased person had a Will, then the District Court uses that Will to determine the people that inherit the deceased person’s property. If the deceased person doesn’t have a Will, then the State of Oklahoma has statutes that determine the people that inherit the deceased person’s property. These statutes are called the laws of Descent and Distribution and can be found at 84 Okla. Stat. Ann. § 213.

Q: What happens if someone dies without a will?

A: If the deceased person doesn’t have a Will, then the State of Oklahoma has statutes that determine the people that inherit the deceased person’s property. These statutes are called the laws of Descent and Distribution and can be found at 84 Okla. Stat. Ann. § 213. Often heirs are surprised to learn that property does not always go to the people that the deceased would have wanted, or expected if left to the State to decide. This is why it is important for everyone to make a Will so their property goes to the people of their choosing.

Q: What property must be probated?

A: When a person dies, they leave several types of property such as motor vehicles, houses, land, mineral interest, bank accounts, stocks, investment accounts and life insurance among others. When gathering the assets of a deceased person, the property is put into two classes: Probate property and Non-probate property. Probate property (or property that must be probated) includes all of the property owned by a deceased person that does not have a named beneficiary, joint tenant, payable on death, or another type of named successor. Non-probate property (or property that does not have to be probated) includes property held in a Trust, held in accounts with named beneficiaries, held as a joint tenant and held in a payable on death bank account. It often can be complex and burdensome to determine which property of a deceased person is Probate property and which property of a deceased person is non-probate property. Consulting with a probate attorney to determine which property of the estate of a deceased person needs to be probated can often save both time and money for the heirs of the Estate.

Q: How long does probate take?

A: The length of time that a probate takes depends on what type of probate is opened for the Estate of the deceased person. In Oklahoma, the common types of probate are standard probate, ancillary probate (probate of a Will made in another State) and summary administration. The type of probate that can be opened for the Estate depends on the type and value of probate property and whether a probate has been done in another State already.

• Ancillary Probate: Ancillary probate is the fastest type of probate process. It can be opened if a probate has been done in another State already.

• Summary Administration: Summary Administration probate is a time saving type of probate meant to expedite the probate process for simple or smaller Estates. Summary Administration probate can be opened if certain conditions are met, such as how long ago the deceased person passed away, the value of the property (must be under $200,000) or if the deceased person resided in another state at death. It should be noted, that just because an Estate may qualify for Summary Administration, it often may not be the best choice. The decision to file for Summary Administration vs. Regular Probate is often complex, and a consultation with a Probate Attorney is often necessary to determine the best way to file the probate. Summary Administration probate can be completed in as little as 60 days after filing, but can take longer depending on Court dates and timelines.

• Standard Probate or Regular Probate: If the Estate does not qualify for Ancillary Probate or Summary Administration, or if there are benefits to filing for Regular Probate, then your Probate Attorney will recommend opening the probate as a Regular Probate or Standard Probate. This type of probate can be completed in as little as 4-6 months, but can take (much) longer depending on several factors including the size of the Estate, the number of creditors claims, or if there is a will contest or challenge to the appointment of the Personal Representative.

Q: How much does Probate cost?

A: The fees for probate include court costs, publication fees, mailing fees, probate attorney fees, tax preparation fees, taxes, and personal representative fees. The Personal Representative is allowed a fee based on the value of the Probate Property. However, the Personal Representative fee may also be waived. Typically, the cost of the probate can be paid out of the probate property left by the deceased person, and the costs are paid by the Personal Representative. However, the cost of probate can also be paid by private arrangement with a Probate Attorney if there is not cash in the probate property to pay for probate.

Q: We already probated in another State, why would we need to probate in Oklahoma?

A: If the deceased person left any property in the State of Oklahoma, such as a house, land, or mineral interests, then Oklahoma law requires that a probate be opened to distribute that property to the correct persons. If there has already been a probate in another State, it may be possible to open the Oklahoma probate as an Ancillary Probate, and expedite the time and save on the expense of the probate of the Oklahoma property.

Q: What do I do if I was left property through a Transfer on Death Deed?

A: If you were left interest under a Transfer on Death Deed you have nine (9) months from the date of death of the deceased person to file a Beneficiary Affidavit to claim your interest in the property. The Beneficiary Affidavit must contain specific information and must be recorded in the Office of the County Clerk where the property was located. It is particularly important to file the Beneficiary Affidavit within the nine (9) month time period. Failure to file the Beneficiary Affidavit can mean you forfeit your interest in the property.

If you do not record the Beneficiary Affidavit within nine (9) months of the date of death of the deceased person, then the property must be probated to be distributed. If the property is probated, then it will pass to the heirs at law or the heirs set out in the Will which may not be the same persons as on the Transfer on Death Deed. If you were left interest under a Transfer on Death Deed you may wish to consult with an Attorney to help prepare the Beneficiary Affidavit according to the requirements and record it within the time limits, so you can ensure that you don’t forfeit your interest in the property.

Q: How do I know what assets my family member had?

A: If you are lucky, the deceased person prepared an inventory of assets before they passed and left it with a copy of their Will or in some other place where it can be easily found. If they did not do this, then often assets can be discovered by researching property records, checking mail and email for account statements, looking at prior year taxes, contacting employers about retirement accounts, contacting insurance advisors to find life insurance policies, and contacting banks and financial advisors. Often, places will require some proof of authority to answer any questions about a deceased person’s assets. Your Probate Attorney can help get a Personal Representative appointed, and obtain Letters Testamentary which will grant the Personal Representative the authority to obtain information about the deceased person’s assets.

Q: My family members passed away and I need to see if they had money in their bank accounts. What do I do?

A: It depends on the bank and the value and type of account held by the deceased person. If you know your family member held an account at a certain bank, you should ask the bank what they require to find out information about the bank account. The bank may require Letters Testamentary to release information about the bank account. A Probate Attorney can help you provide the correct documentation to a bank, including helping to have a Personal Representative appointed, and obtain Letters Testamentary.

Q: My family member died and “didn’t have much.” Do we need to probate?

A: A consultation with a Probate Attorney can answer this question the best. However, in general, you need to probate if the deceased family member owned a house or other real property. Additionally, if the deceased family member didn’t own a house, but owned assets valued at over $50,000 you will need to open a probate.

Q: My family member died and did not have a will. Do we need to probate?

A: A consultation with a Probate Attorney can answer this question the best. However, in general, you need to probate if the deceased family member owned a house or other real property. Additionally, if the deceased family member didn’t own a house, but owned assets valued at over $50,000 you will need to open a probate.

Q: A family member just died. What do I do?

A: When you are ready to begin the process of settling the Estate, the family should determine the best person to search the deceased person’s belongings to try to locate a Will. If a Will is found, the person named as the Personal Representative in the Will should contact a Probate Attorney to begin the probate process. If a Will is not found, then the closest living relative or person that wants to serve as the Personal Representative should contact a Probate Attorney to begin the probate process.

If you have any more questions about the probate process, contact us at (405) 285-6858 to Schedule a Consultation or fill out the form on this site.