FAQ | Estate/Probate
Frequently Asked Questions
What if the decedent owned property in other states?
Each state has specific laws that must be followed in order to transfer property situated in that state. Many states have an accelerated probate procedure that allows one to conduct a speedy proceeding to transfer those land or minerals by utilizing the Oklahoma Decree. However, the Oklahoma probate alone will not suffice and some legal proceeding in that state must be held.
What are common challenges to a will?
It is typically very difficult to challenge a will. Wills are seen by the court as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way. Adults are presumed to have testamentary capacity and in order to challenge a will based on mental capacity, you must show that the testator did not understand the consequences of making the will at the time of the will’s creation.
What if specific property mentioned in the will has been sold or cannot be found?
If the will or trust identifies property that was sold prior to death, then that property shall be disregarded and treated as though it did not exist. Exceptions do apply if the property was sold while the decedent was alive but was incapacitated. Normally, estates that are probated will have a final document “Decree” that provides for the distribution of unknown but later discovered assets.
What is the best way to handle personal property of the decedent? (ex: bank accounts, vehicles, household items)
The administrator should promptly make a detailed inventory of the decedent’s personal property items. It is also important that the personal property items are secured from damage, loss, and/or theft. This would include maintaining an existing security system, placed the items in a locked storage unit, or otherwise maintaining the items under lock and key. Next, the administrator should determine whether any of the items have a lien or loan against them and then notify the specific creditor. Certain personal property items that are in joint ownership or Joint Tenancy can then be distributed over to the joint owner.
The decedent owned real estate and/or minerals, how do we sell it or distribute it to the decedent’s heirs or devisees?
If the decedent owned real estate or minerals, some legal process must be had in order to transfer ownership title to the heirs. Normally this includes filing a Petition to Sell real property and obtaining court approval. If the decedent dies with or without a will, the estate must conduct a probate proceeding. If the decedent died with a properly drafted and funded trust, there is a chance the Trustee can simply execute a deed transferring the property to the heirs/beneficiaries.
May costs of administration and legal fees be paid out of the estate? What liabilities or debts will the estate be responsible for?
Any cost and legal fees that are beneficial to the estate can be paid with estate funds. However, laws specifically dictate the order and priority of payment. The administrator of the Estate is required perform a diligent search and discover all of the creditors and liabilities and give them due notice. It is very important that the Administrator use extreme caution when making certain payments to creditors prior to a court order because the court may require the Administrator to personally pay back any improper payments. As such, Compton Law’s advice is to obtain court approval or speak to an attorney prior to making any payments or dispersing any estate assets.
What happens in an Oklahoma probate?
In Oklahoma, there are several types of probates, but all involve the same general process:
A probate action begins with filing a Petition for Probate. If the decedent was a resident of Oklahoma, the court action should be filed in the county where the decedent resided. If they were not a resident of Oklahoma, the court action should be filed in the county where any part of the estate is located. The petition will set out certain facts such as date of death, residence, whether or not there was a will, who is to act as personal representative, names, ages and residences of heirs, legatees and devisees, and probable value of the estate.
The court then sets a date for the hearing. Depending on the type of probate proceeding, several hearings may be required. A personal representative will be appointed at the time of filing the petition or at a separate hearing. Letters testamentary, letters of administration, or letters of special administration will be issued to the personal representative, as discussed in Question #2.
Notice of the probate proceedings must be given to all heirs and persons named in the will and should be published in a newspaper in the county where proceedings are to be held. Notice must also be given to all known creditors. The creditors have a certain amount of time within which to file their claims, or else the claim will be forever barred.
The personal representative must prepare an inventory listing the probate property owned by the decedent and its value. The personal representative must prepare a final account which contains the information regarding the assets in the estate available for distribution after all debts and taxes have been paid. The estate is then closed by the court entering a Final Order to distribute the assets and discharge the duties of the personal representative. A certified copy of the Final Order should be recorded in any county in which the decedent owned real property or mineral interests.
Depending on the type of probate procedure used, a probate may be wrapped up between 2 – 9 months, or longer. The costs to probate include the filing fee for the petition, notice publication fee, personal representative’s fee, and any attorney’s fees that may be incurred. Although there is a cost to hiring an attorney, an experienced attorney will assist you in navigating the probate process and will help avoid costly mistakes.
What are commonly found assets of a decedent?
- Cash and/or bank accounts
- Savings accounts
- Securities and annuities
- Government bonds
- Employee or retirement benefits, including IRAs
- Real estate whether it is in state or out of state, although another probate may be required for out of state assets
- Mineral interests
- Life insurance
- Motor vehicles or recreational vehicles such as RVs, boats, airplanes, golf carts
- Personal property, which means household furnishings, jewelry, art work, collectibles
- Business interests in a partnership, limited liability company, closely held corporate interests
- Safety deposit box
- Any trusts in which the decedent is a beneficiary
- Unclaimed property
What information or documents need to be located?
- Last Will and Testament: Oklahoma law requires the original will be offered for probate. It may be located where the decedent kept important documents, with family, or with the attorney who drafted the estate plan.
- Copies of Trust, if any (and any amendments thereto)
- Legal descriptions or copies of deeds to real property
- Any recent tax returns of the decedent
- Public benefits information such as Medicaid or Social Security
- Family history information
Who should be in charge? What duties are expected of a Personal Representative? Are they entitled to payment?
A personal representative is charged with the responsibility of administering the estate in accordance with Oklahoma law. They will be responsible for protecting and distributing the assets of the estate, receiving any payments due to the estate, determining and paying all outstanding debts and taxes. As a part of the probate process, the court will issue letters testamentary, letters of administration, or letters of special administration. This document is often used to show banks or financial institutions that the personal representative has the authority to act on behalf of the estate.
If there is a will, it likely names who should act as a personal representative (or executor) in the administration of the estate. If there is no will, Oklahoma law prescribes preference, in order, is given to the following: The surviving spouse or some competent person whom he or she may request, children, parents, siblings, grandchildren, next of kin, creditors, any person legally competent, or surviving member of a partnership.
Although many do not accept payment for their duties, a personal representative may be entitled to payment for their services in that capacity. When no compensation is provided by the will or the personal representative waives it, Oklahoma law allows the personal representative to recover a certain percentage of the estate, based on its value. Additionally, a personal representative could be entitled to be reimbursed from the estate for costs they advance in estate administration. For example, funeral costs, costs of probate, and attorney’s fees are usually able to be paid out of the estate if there is ample money available. However, not all costs are subject to reimbursement or there may not be enough money to do so after other necessary costs are paid. For example, the decedent may have a car payment or mortgage payment. The personal representative must proceed at their own risk when making these types of payments, because reimbursement may not be possible It is recommended you contact an attorney before proceeding to make any payments.
What is Probate?
Probate is a court-supervised process involved in the settling of a decedent’s estate. The process determines the validity of a will (if one exists), determines heirs, collects and distributes assets, allows creditors an opportunity to present their claims, and wraps up the final matters of the estate. A personal representative is also appointed to handle matters involving the estate.
If the assets are subject to probate, the estate must go through probate whether or not the decedent died with or without a last will and testament. If the decedent died with a will, or “testate”, then the estate is administered and distributed pursuant to the will’s contents. If the decedent died without a will, or “intestate”, Oklahoma law governs the administration and distribution of the decedent’s estate.
Probate is required for many different types of assets that are owned solely by the decedent such as real property, bank accounts, interest in a business, and personal property. It is most commonly used to vest title to real estate or minerals in the decedent’s heirs or beneficiaries. Some assets, however, are exempt such as joint property, property titled in the name of a trust, life insurance, and retirement accounts.
Even though a decedent set up a trust, it only avoids the need for probate if it has been properly funded. For example, if the decedent owned minerals in his or her name as an individual, the minerals will need to go through probate in order to be properly transferred to the heirs or the trust. Often times a trust estate plan will also contain a will leaving everything to the trust. This is called a “pour-over” will. The purpose of a pour-over will is to ensure all non-trust property flow through the trust, even if the estate must go through probate. If you have any questions about whether the asset goes through probate, please contact us at 405-542-2529.