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Oklahoma Probate Laws: Myths, Facts, Pros, & Cons
Oklahoma probate laws and how probate works are confusing to many, including family members who stand to inherit when a person dies and the person named the personal representative. In fact, it is often so confusing that many myths surrounding probate in Oklahoma have emerged.
In this article, we are dispelling some of the myths regarding Oklahoma probate and shedding light on the facts. You’ll learn more about the pros and cons of what the law requires and how probate works. Some of the topics covered include:
- Some of the common misconceptions about probate in Oklahoma
- Whether you can avoid probate court in Oklahoma
- What Oklahoma probate law requires if you have a will
- What happens if someone contests the will
- The requirements to start the probate process with the probate court
- How long the probate process takes
- Determining which type of probate is right for you according to Oklahoma probate law
This article is provided for informational and educational purposes only. It is not a substitute for legal advice. If you need legal advice for matters related to Oklahoma probate, schedule a consultation with the probate attorneys of Ball Morse Lowe. The initial consultation is free.
It is essential to recognize that how probate works for one
person isn’t necessarily the same as how it works for another.
Although probate law is still law, the facts surrounding each person’s probate matter. Let’s discuss some of these issues a little more in-depth.
Common Misconceptions About Probate in Oklahoma
There are many misconceptions about probate in Oklahoma, as well as misconceptions about estate planning. Here are four common misconceptions about probate in Oklahoma and the truth you should know.
If you have a will, probate court isn’t required.
This misconception is, at best, only partially true. Depending on the worth of the assets, not including real estate, Oklahoma law requires that a deceased person’s estate go through the probate court even if there is a will.
Your surviving spouse automatically gets half of everything.
Oklahoma is not a community property state. In a community property state, any assets that are purchased during the marriage are considered community property. Thus, when one spouse passes, half of that property which belonged to the deceased would then revert to the surviving spouse. If you and your spouse own real estate, a vehicle, or any other property that is titled or deeded in both of your names, your spouse would then become the full owner of that property even without a will.
However, without a will, the law requires that a specific order be followed as to which family members receive assets and how much of the estate they will receive. Therefore, if a person dies and there is a surviving spouse, and they have children with their surviving spouse and children from one or more previous relationships, Oklahoma law requires that the estate be distributed in a certain way.
Without a will, the family member you want can raise your minor child.
A will does more than allow you to decide which family members will receive your assets. Even if you do not believe you have enough assets to create a will, you need a will if you have a minor child.
Parents use a will to name which family member or family members they want to raise their child if they pass away. Without doing so, a probate judge will make this determination.
Estate taxes will exhaust the assets of the estate.
The good news is that Oklahoma does not have an estate tax. The federal estate tax only impacts estates worth $12,060,000 in 2022, according to the IRS. However, there is a requirement to complete the deceased’s final state and federal income tax returns.
This is merely a partial list of misconceptions related to Oklahoma probate law. Many other myths impact families and make them fear the probate court. To learn more about how probate works, schedule your free consultation with Ball Morse Lowe now.
Do I need a Trust or Will?
Can You Avoid Probate Court in Oklahoma?
Probate court isn’t a place that people look forward to experiencing. One of the most common questions that we are asked is whether someone can avoid probate court. In certain circumstances, probate court can be avoided or minimized.
For example, small estates in Oklahoma which, according to Oklahoma law, is defined as an estate with assets that do not exceed more than $50,000, not including real estate.
Small estates do not need to go through probate court. How probate works with small estates is different because the probate court is not involved.
The personal representative and the family members can use small estate affidavits to claim the estate assets. Under the estates code, small estate affidavits are sworn statements. Therefore, it is vital that when it is signed, everything is truthful.
An example to minimize the time spent in the probate court would involve creating an estate plan. This would include a Last Will and Testament. One of the purposes of the probate judge is to determine the validity of the Last Will and Testament. Another crucial part of an estate plan is to create a living trust. Assets that are placed within a living trust avoid probate court.
What Oklahoma Probate Law Requires If You have a Will
If you have a will to admit to the probate court, Oklahoma probate law requires:
- Completing the initial petition
- Including the original will
- Prepare the order admitting the will to probate for the probate judge’s signature
The probate judge reviews the will to determine its validity.
Once the validity is determined, the personal representative is
appointed. The personal representative is usually named in
the will.
The personal representative plays a vital role in the administration process. They must file an inventory of the assets, ensure that the state and federal income taxes are paid, notify and pay the estate's creditors, and eventually distribute the remainder of the estate to those named in the will.
Probate in Oklahoma: What If Someone Contests the Will?
If someone contests the will, probate in Oklahoma can become more complicated. When family members contest the will, it is generally because they feel as if they’ve been treated unfairly. It does more than just take away your time. It is stressful, and it can impact you emotionally.
Oklahoma probate law can be intimidating without any additional issues. Litigation matters are exceedingly complex, whether you are the personal representative or a family member. It is crucial to seek legal advice to understand how the law works.
Starting the Probate Process with the Probate Court
To start the probate process with the probate court, there are at least two things that you will need to file with the probate court in the county where the deceased lived at the time of their death.
- A petition to open a probate matter
- A certified death certificate
If the deceased had a will, the will should also be submitted to the probate court.
How Long Does Probate Take?
The amount of time it takes to complete a probate matter depends on the size of the estate and the complexity involved in closing it out. There are certain timelines for specific activities. For example, creditors are given two months to submit claims after a notice is published in a newspaper regarding the death.
Generally speaking, a simple estate may take around a year
to complete. More complex estates can take longer.
If there is probate litigation, such as a family member contesting the will or a determination of heirship hearing, it could take years.
Which Type of Probate Is Right Under Oklahoma Probate Law?
Determining which type of probate is right for you depends on Oklahoma probate law. Many people are unaware that Oklahoma has a small estate option for probate. If an estate is worth less than $50,000, not including real estate, it can forgo the full probate process. Small estate affidavits can be used by the surviving spouse, family members, and the personal representative to settle the estate.
Traditional probate is for most estates. It involves the probate court. It may or may not involve a will. If there is no will, intestacy law is followed to determine who will inherit and how much of the estate they will inherit. Again, Oklahoma is not a community property state. If there is a will, specific requirements must be fulfilled before the assets in the estate can be distributed.
Ancillary probate handles real estate for non-residents who own real estate in Oklahoma. When this occurs, the certified death certificate and the probate documents from the state where the deceased lived must be filed in the Oklahoma county where the real estate is located.
Probate in Oklahoma: Free Consultation
Oklahoma probate law can be complex. Handling a probate case on your own can be overwhelming. The good news is that you don’t have to try to untangle Oklahoma probate law on your own. Ball Morse Lowe is here to assist you through the process. To learn more about what the law requires or how Ball Morse Lowe can help you, schedule your free consultation now.
Do I need a Trust or Will?