At some point in your life you will likely find yourself involved in the probate of an estate for one of several possible reasons. You might be a legal heir, a named beneficiary, or even a creditor of the estate of a decedent. You could also find yourself appointed by a decedent in a Last Will and Testament to be the Executor of an estate or you could volunteer to be the Personal Representative of an intestate estate. Regardless of why you are involved in the probate of an estate, a better understanding of the probate process will be invaluable. In addition, a clear understanding of the probate process helps with your own estate planning efforts. At Parman & Easterday, our experienced probate attorneys can help you navigate the often complex probate process as well as assist you in the development of an estate plan that minimizes your own estate’s exposure to probate.
What Is Probate?
Probate is the legal process that is typically required after an individual’s death to settle the decedent’s estate. Although the probate process is unique for each estate, there are some common steps that typically occur during the probate of an estate, including:
- Identifying, locating, securing, and valuing the estate assets.
- Initiating the probate process by submitting the decedent’s Last Will and Testament (if applicable), a certified death certificate, and a petition to open probate to the appropriate court.
- Identifying and locating the legal heirs if the decedent died intestate (without a Will).
- Notifying creditors of the estate and allowing them to file claims against the estate.
- Reviewing claims filed by creditors and approving or denying each claim.
- Paying approved claims with available estate assets.
- Arranging for the liquidation of estate assets if necessary to pay debts of the estate.
- Defending the estate against claims or disputes.
- Calculating and paying any federal and/or state gift and estate taxes due.
- Transferring any remaining assets to the intended beneficiaries and/or heirs of the estate.
Who Oversees the Probate Process?
If the decedent left behind a Last Will and Testament, the individual named as the Executor in the Will is responsible for overseeing the probate of the estate. If the decedent left behind an intestate estate, meaning without a Will, a family member or loved one will likely volunteer to be the Personal Representative of the estate, subject to court approval.
Is Probate Always Required?
Although some type of probate is typically required, an estate may be able to avoid formal probate if the the estate does not include valuable and/or complex assets. In addition, some assets are not required to go through probate. Instead, these non-probate assets bypass the probate process altogether and are distributed to the intended beneficiaries right away. Some common examples of non-probate assets include:
- Trust assets
- Proceeds of a life insurance policy
- Certain types of jointly held property
- Assets held in a “Payable on Death (POD)” or “Transfer on Death (TOD)” account
- Certain retirement and pension accounts
Can My Estate Avoid Probate?
Probate avoidance is often a primary estate planning goal for several reasons, starting with the desire for privacy. When a Will is submitted for probate, the terms of the Will become public record, meaning anyone can find out how the estate was distributed. A trust, on the other hand, bypasses probate, meaning the terms of the trust agreement remain private.
The time it takes for an estate to go through probate provides another incentive for avoiding probate when possible. Even a relatively uncomplicated estate will typically take at least six months to probate in Oklahoma because creditors must be given time to file claims against the estate and then those claims must be reviewed. The more complex and/or valuable the estate assets are, the longer it generally takes to get through the probate process. Moreover, if the estate becomes embroiled in litigation, the probate process effectively comes to a halt until the litigation is resolved.
Finally, the cost of probate provides a powerful incentive to include probate avoidance strategies in a comprehensive estate plan. Everyone involved in the probate of an estate is entitled to a fee for services rendered. Those expenses, which are paid out of estate assets, can significantly deplete the estate assets, ultimately diminishing the value of the estate that is passed down to loved ones.
How We Can Help
Navigating the probate process can be challenging, particularly if you are grieving the loss of a loved one. At the same time, a minor mistake made during the probate of an estate can have a profound, and lasting, impact on everyone involved. Having an experienced probate attorney on your side throughout the probate process is the key to successfully navigating roadblocks and obstacles that could lead to a costly mistake. Likewise, consulting with a knowledgeable probate attorney during the creation of your estate plan is the best way to limit your own estate’s exposure to formal probate.
Contact the Oklahoma City Probate Attorneys at Parman & Easterday Today!
At Parman & Easterday our experienced probate attorneys are committed to helping you navigate your role in the Oklahoma probate process. We can also help you incorporate much needed probate avoidance tools and strategies into your own estate plan. Contact the experienced Oklahoma City probate attorneys at Parman & Easterday by calling (405) 843-6100 or (913) 385-9400 to schedule your appointment today.