Oklahoma Probate Procedure Step by Step
Oklahoma Probate Procedure
A probate is just like any other civil procedure in that, at its heart, a probate is a civil lawsuit. Just like any lawsuit it is usually a bad idea to try on your own. Every state has its own probate procedures. Here is a list of just some of the things that need to be done in an Oklahoma Probate:
- Filing a Petition begin the Oklahoma Probate Procedure.
- Notice of Hearing must be given to all interested parties
- Hearing on Petition naming Personal Representative or Executor
- The Court will issue Letters of Administration appointing a Personal Representative or Executor
- Notice to Creditors
- If Creditors come forward, then an Order allowing payment of their claim
- Release of claim by the any Creditor that made a claim
- Inventory of all assets in the estate
- An Order approving the inventory
- Application and Order for final hearing and distribution to heirs
- Each of these will require Notice to heirs and all interested parties by either mailing, publication in the newspaper or both
Probate
The Oklahoma Probate Procedure can be confusing and frustrating for many people. The above is what we sometimes refer to as “regular” probate and can take 6 to 10 months on average. However, we regularly have probates that last over a year or longer when heirs fight.
It is possible to avoid the Oklahoma Probate process by distributing assets with certain tools such as Joint Tenancy with Right of Survivorship, Pay on death designations, and transfer on deaths designations. While these are important tools, they can have unintended consequences. Instead they should be used in combination with a properly executed Oklahoma estate plan.
An Oklahoma Probate is a civil court proceeding for the distribution of a person’s assets at death. The VERY important difference between dying with or without a Will is how property is distributed.
For distributions according to your wishes then you must have a valid Will and proper Oklahoma estate planning. The government makes distributions for you if there is NO Will. The consequence of dying without a Will can be disastrous and are discussed on our Will page.
The bottom line is that the government OR A COURT decides who gets what.
Every person, whether married or single should have a Will - preferably with an Estate Planner. This will be your guide in determining how you want to distribute your property when you die.
For most people, creating a Will allows them to manage their affairs through life with confidence and security. It also offers the opportunity for family members to continue caring for one another after the decedent dies. By including instructions about funeral arrangements and other final wishes in your Will, you can help ease the mental strain on loved ones at this difficult time in their lives.
What To Include In Your Oklahoma Probate Will?
· You may wish to include specific information regarding assets, including real estate, tangible personal property, investments, insurance policies and retirement plans.
· You may also wish to include specific information regarding certain people or institutions you wish to benefit from your Will.
· You may want to make provisions for the care of any minor children or provide for their education.
· There are many things that can be included in a Will to take care of your family after your death.
Your Oklahoma Probate Will is an important document that should be done by an Oklahoma attorney. There are certain rules that must be followed when making out this document. It will keep your wishes known during your lifetime as well as at time of death therefor avoiding difficulties within the family. Do not try to do it yourself!
It does not matter whether a person dies with or without a Will, the probate procedure is the same. Oklahoma provides for two types of probate procedures.
Oklahoma Summary Probate is available where the total value of the estate is less than $200,000. The Oklahoma Summary Probate only takes a few months. This probate process works effectively when all heirs are in agreement and there are no problems. The timeline is tight. So, if there are issues, then families will sometimes opt for the “regular probate” when there are disagreements or outside circumstances that would require a longer probate procedure. See our Summary Probate Procedure page for a description.
This page will go over the regular probate procedure for a deceased person.
Regular Probate.
Lets go over each of these steps individually.
The probate process really starts with us meeting in our office to discuss who are the heirs and what assets your loved one had. Once we have enough information to start then we file a petition for probate asking the court to name a personal representative.
The filing fee right now is around $214.14 that must be paid to the court clerk.
Then we set the Petition for probate at least 30 days in the future and we have to publish Notice of the hearing on our petition in a local newspaper.
After at least 30 days, we have a hearing where anyone can attend and argue against you being appointed as the personal representative. If someone does appear to contest the appointment of personal representative, then there has to be a hearing and sometimes the judge will schedule that hearing for another day further prolonging the probate.
If no one appears to contest or does not have a valid claim, then the judge will usually appoint a personal representative
This personal representative with the help of their attorney will be responsible for administering the estate, paying creditors, selling property, and distributing assets. All of these responsibilities require court approval.
So, now that we have a personal representative, we have to give Notice to all known and unknown creditors. Creditors have 60 days to come forward and make a claim against the estate. That means we have to wait 60 days before the probate can proceed to the next step.
Notice to creditors is given by filing a Notice to creditors with the Court, physically mailing a copy to known creditors and publishing a copy of the Notice in a local newspaper.
If we are lucky, then creditors will come forward right away and we can deal with them. But remember, they have 60 days and sometimes they wait until the very last day.
So, once we have a creditor claim then you have to determine if it is a valid claim. If it is a valid claim, then you must file an application with the Court to approve the claim. If the judge agrees, then you can pay the claim
But wait, we are not done with that creditor yet. Obviously we have to send them a check, but then we have to just sit and wait until they file a release of claim with the Court.
As you can imagine big credit card companies are on their own schedule, so it can be several weeks before we have that release of claim. And, until we have the release of claims we can not close out the Probate.
The next event is kind of happening all along, but at this point we need to conduct a formal inventory and appraisal of certain assets. This can be both time consuming and costly. In other videos I mentioned that it once took over 9 months to get into a safe deposit box, which is why I made this video here on where you should store your estate planning documents.
Once the inventory is completed then you need to make an application to the court to approve that inventory. Again, this is an open hearing so disgruntled heirs can attend and complicate matters.
Finally, after all of this we can make an application for a Final hearing and distribution to all heirs. Again, you must give notice of this hearing by both snail mail and publication in the newspaper. This hearing is usually at least 30 days after the application is filed with the court clerk.
Wow! That was a lot. And even after all that the personal representative will still have duties to close out the estate, pay taxes, and distribute the assets.
Ancillary probate
You might have also heard of ancillary probate. Really this just means decedent died with property in another state. Usually, there will be a probate in their home state, ancillary proceedings where there is property in another state.
For example if the deceased person passed in California and they had Oklahoma property, then that real property would need an Oklahoma order admitting the ancillary probate. This order distributing the estate in Oklahoma would be ancillary probate to the one in California.
In a recent video, we talked about the difference in the process for a last will versus a revocable living trust. So, watch that video here.
Basically, if you have a revocable living trust centered estate plan, then everything is controlled by your Trust. Your successor trustee follows the directions you have given in your customized revocable living trust centered estate, pays creditors, makes distributions and closes out your estate all without court intervention.
As you can imaging if your revocable trust is fully funded, then your successor trustee can move pretty quickly. Plus you have the added benefit of having a successor trustee to take care of you, your family and your assets during incapacity while you are still living. If you do not have a revocable trust centered estate plan, then your family might have to apply for guardianship just to take care of you. And that can also be a long and stressful process.
No two situations are alike. Oklahoma City Estate Planning Attorney Stephen Cortes has over 19 years of legal experience. Call us today for a free consultation at 405-213-0856 or self-schedule above under "Becoming a Client".
Need an oklahoma probate handbook to get started in the right direction, then please see our free handbook.
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Cortes Law Firm
5801 Broadway Extension Hwy Suite 110
Oklahoma City, OK, 73118
405-213-0856
This is for informational purposes only. Hire an attorney. This is NOT legal advice. Attorney advertising.