The Oklahoma probate process can be confusing. With so many questions regarding the probate process, Ball Morse Lowe is pleased to present this easy-to-understand guide. Our goal is to answer some of the most commonly asked questions about the probate procedure.
While the Oklahoma probate process is governed by state law, it is crucial to note that this page only serves as a guide and basic information. Each probate proceeding has its own set of facts and, therefore, may have an outcome that one may not expect because of a need to resolve disputes or other complexities.
To better understand how the Oklahoma probate process may impact your probate action, schedule a free consultation with Ball Morse Lowe now.
Oklahoma probate courts are found in the district court system. The probate process takes place in the county where the decedent was a resident at the time of their death. Each county in Oklahoma has a district court that has a probate judge. Oklahoma has 77 counties. Therefore, there are 77 probate courts.
Before we discuss how the Oklahoma probate process works, let’s quickly go over the probate processes provided for by law.
A small estate affidavit. This isn’t really a probate action because the probate court isn’t involved. This is something you will learn more about in the next section since it is prevalent in Oklahoma.
A small estate affidavit is for estates with assets worth less
than $50,000, not including real estate.
How the Oklahoma probate process works depends on whether it is the full probate action or whether it is a small estate. We will start by briefly describing how the process works for a small estate. Then, we will discuss only the basics of how the probate process works for a full probate action.
As mentioned in the previous section, the decedent’s assets within a small estate must be worth less than $50,000, excluding real estate. There may or may not be a will. The personal representative and family members can claim the decedent’s assets by using a document known as a small estate affidavit.
It is essential to note that small estates are not immune to problems. Lawsuits over the decedent’s assets can still occur. Resolving disputes can be tricky. Whether you are the personal representative, surviving spouse, or another family member eligible to receive something from the estate, it is best to get legal advice before filing a small estate affidavit with the probate court. Understanding this form, how all of the heirs may collect, and what they are eligible to collect can help with resolving disputes before they occur. Ball Morse Lowe provides free initial consultations regarding this and other types of probate. Schedule your free initial consultation now.
The whole probate process occurs in the probate court in front of a probate judge. Probate proceedings are filed in the county where the decedent was a resident at the time of their death. The probate process has several steps. If there is a will:
The personal representative must do certain things before the heirs may collect the decedent’s assets. Some of the duties of the personal representative include:
All of the debts of the estate must be paid, and the decedent’s state and federal taxes must be paid before the heirs may collect the remainder of the decedent’s assets.
If there is no will, there are additional steps that must be taken in the probate action. The probate judge must follow Oklahoma probate law to determine who will be named as the personal representative. This person will be issued the letters testamentary.
Because there is no will that explains who should receive the decedent’s assets, Oklahoma intestacy law determines how the assets are dispersed after debts and taxes are paid.
Do I need a Trust or Will?
In the last section, we mentioned beneficiaries and heirs. Let’s quickly discuss the difference between the two. A beneficiary is a person to whom the deceased individual may or may not be related and decided to leave something out of their estate. Perhaps they made them the beneficiary of their life insurance policy.
An heir is a person who was related to the deceased individual. If there was a will, the heirs may receive assets from it. However, even if there is no will, heirs may be entitled to receive a specific portion of the decedent’s assets.
When you attend probate court, what you can expect depends on the type of probate hearing you are attending in front of the probate judge. For example, a personal representative may be appointed during the initial probate hearing, and the letters testamentary may be provided.
After the notice to creditors is provided and the timeline has run, another probate hearing is scheduled. During this visit to the probate court, the creditors may attend. Beneficiaries and heirs may also attend.
During any probate hearing, the probate judge may ask questions and review documents to determine what should ultimately happen according to Oklahoma law.
Whether you need to attend the probate hearing depends on your role in the probate action. If you are the personal representative, you need to attend the probate hearings scheduled with the probate court. You have legal obligations to complete the administration of the estate and file specific reports with the probate court.
If you are a family member (an heir), the surviving spouse, or beneficiary, and you are not the personal representative, you do not have a legal obligation to attend the probate court hearing. However, you can attend the probate proceeding if you wish.
If you are the personal representative of the estate, you may have to be present in court; however, there are exceptions which may permit the attorney to present the personal representative’s testimony to the court without the personal representative being physically present.
If you are a beneficiary or an heir and you live out of state, but you are not the personal representative, you are not under any obligation to attend the probate proceedings.
The forms you need for the probate process depend on whether you have a small estate, whether you need a full probate action, and, if you have a full probate action, whether there is a will involved.
Small estate affidavits can be used with small estates where the decedent’s assets are worth $50,000 or less, not including real property such as a home. They can be used by the surviving spouse, heirs, beneficiaries, and the personal representative.
In the full probate action, the probate proceeding is started by:
The personal representative may have additional probate forms to turn into the probate court as the probate process continues. Some of these forms include an inventory form that shows the collection of personal property owned by the deceased person, a copy of the claims filed against the estate, any appraisals of real estate, and any state and federal taxes that needed to be paid.
There is never a guarantee that beneficiaries and heirs will not contest the will, even in the best circumstances. During the administration of the estate, emotions can run high. Some beneficiaries and heirs may believe that they deserve more of the decedent’s assets than what the will states. They may even believe that the deceased person was coerced into writing the will that was submitted to the probate court. In short, there are many reasons why someone might contest the will.
As the personal representative, the surviving spouse, a beneficiary, or an heir to the decedent’s assets, contesting the will during the probate action or possibly even after the matter closed. If you are the personal representative and involved in independent administration (settling the estate without an attorney), you would be representing yourself and your actions during litigation unless you chose to hire an attorney.
If you are the personal representative of an estate and someone has contested the will, you should seek legal advice. Ball Morse Lowe provides free consultations for probate litigation, probate proceedings, and estate planning. Schedule your free consultation now.
To probate a will in Oklahoma, it must first be submitted to the probate court in the county where the deceased person was a resident where they were a resident at the time of their death. The original will must be submitted along with the application for probate.
The filing fee must also be paid. The filing fee is published every year. The
publication fee must also be paid. That is a separate fee.
If you have a will and you’re worried about whether it will be located at the time of your death, the State of Oklahoma does allow you to file your will for safekeeping with the county clerk.
If there is no will, the probate process can take longer than if there is a will. Intestacy laws apply. With a will, the deceased person explained how the assets should be distributed to beneficiaries and heirs. They could also appoint a personal representative.
Without a will, the state law is used to determine which heirs receive the decedent’s assets after the debts and the taxes are paid. The issue to consider is that most will not be pleased because they may not receive what they believe they are entitled to receive from the estate.
The rules of probate proceedings are different if the estate is small. Small estates in Oklahoma are defined as when a deceased person’s assets, not including real estate, are worth $50,000 or less. When this occurs with or without a will, the personal representative, surviving spouse, beneficiaries, and heirs can complete and file small estate affidavits with the county clerk of the probate court to claim the decedent’s assets. This takes the place of filing a full probate action. It is less time-consuming and less expensive.
However, it is essential to consider legal advice before filing the small estate affidavits. Simply because it is a small estate does not mean that someone won’t get upset and file a lawsuit or that another issue won’t arise. Ball Morse Lowe provides free initial consultations. Schedule your free initial consultation now.
The Oklahoma probate process can be complicated, especially when there is no will or when probate litigation is involved. If there is no will, there are additional steps that must be followed because there is nothing that explains how the deceased person wished to have their assets. This can cause complications within the family unit which often boils over into the probate action, regardless of whether you are the personal representative, surviving spouse, or heir.
Technically, no law requires you to hire an attorney to assist you with a probate proceeding, whether it is the administration of the estate or the contest of the will. However, it is imperative to consider that probate actions of any kind can become complicated or, at the very least, time-consuming.
Whether you should handle the probate proceedings on your own depends on your needs and your desires. For small estates, it may not be necessary to hire an attorney. Of course, it is still a good idea to get legal advice to determine if any risk factors could mean that you could benefit from having a lawyer help you with a small estate.
For complete probate actions, they can quickly become complicated. With or without a will, beneficiaries and heirs, creditors, and the probate court can become a lot to deal with if no complications arise. If objections or a contest arises, handling probate proceedings becomes even more complicated. A probate attorney can be a beneficial guide and ally during this time.
If you don’t live in Oklahoma and you’re the personal representative involved in the probate action, it can be challenging to handle the matter on your own. It may be a good idea to seek legal advice to determine whether hiring an Oklahoma probate attorney is the best option if you need assistance resolving disputes and help you throughout the entirety of the probate action.
The Oklahoma probate process with a will depends on if there are any complications. Let’s start with the best-case scenario of no complications. After the probate action begins, it generally takes between six months to one year.
If it is a large estate or complications, the Oklahoma probate process can take much longer to conclude.
Probate proceedings take time because each step of the probate action has its own timeline. For example, when the notice to creditors is published, the creditors receive a certain amount of time to file claims against the estate.
In addition to this, the county clerk sets a date for the probate hearing. The probate judge may also decide to reset a hearing date to allow beneficiaries and heirs more time or for the personal representative to finish a specific report.
Complexities of the estate or probate litigation may also cause
the probate proceedings to take more time.
The probate cost in Oklahoma depends on three main factors. The first factor is the filing fee with the probate court. The second factor is whether you hire a probate attorney to represent you for the probate action. The third factor is how long the probate action takes. For example, does the probate proceeding have any complications involved?
Lawyers are paid by the person who hired them. If the personal representative hired the lawyer to assist with the administration of the estate or to help them defend against someone contesting the will or resolving disputes with beneficiaries and heirs, the personal representative would be responsible for paying the attorney. If the surviving spouse, an heir, or beneficiary hired an attorney to represent them during the probate proceeding, this person is responsible for paying the attorney’s fees.
An attorney can be paid from the decedent’s assets if the personal representative files a proper application with the probate court and the judge enters an order to approve payment of attorney fees out of the estate.
Probate court validates the will and helps ensure that the decedent’s assets are appropriately distributed to the beneficiaries and heirs (even if there is no will). However, estate planning tools can help you protect your real property and other assets from going through probate proceedings.
One example is a living trust. Any assets placed into a living trust avoid probate. For example, if real estate is placed in the ownership of a living trust, the real estate would not go through a probate action. If bank accounts, other real property, vehicles, or other assets were placed in the ownership of the living trust, it would forgo the probate proceeding. Any of the decedent’s assets that were not in the living trust at the time of their death will go through the probate proceeding.
Life insurance proceeds that have a beneficiary named also do not go through probate. If the deceased person and their surviving spouse co-owned real property together (i.e., their name was on the title or deed together), the deceased person’s ownership transfers over to their surviving spouse.
The Oklahoma probate process can be complex. Many questions may arise from the very beginning. To learn more about the Oklahoma probate process, schedule a free consultation with the Oklahoma probate attorneys of Ball Morse Lowe now.
Do I need a Trust or Will?