If you recently lost your spouse, you are undoubtedly still grieving that loss. You may not even have considered the legal and practical ramifications of your spouse’s death yet. You may need to do so very soon. Your spouse may have owned assets individually or possibly jointly with you. These assets may need to be probated. You may be asking yourself whether probate is necessary when a spouse dies in Oklahoma and under what circumstances. The answer is not a simple one.
Probate Basics
Most people leave behind an estate when they die. The size and complexity of the estates left behind can vary greatly. All assets that make up the estate of a decedent must eventually be distributed to the intended beneficiaries or heirs of the estate.
Probate is the legal court procedure that oversees the distribution of estate assets. Probate ensures that creditors of the estate are notifed so they can file claims. It makes sure that any gift, estate and other taxes due from the estate are paid. Finally, any challenges to the decedent’s Last Will and Testament can be litigated and resolved during probate.
Why Might Avoiding Probate Be Advisable?
One reason people prefer to avoid probate if possible is the excessive amount of time it takes to go through the process. In the State of Oklahoma, creditors have two months after being notified of a probate in which to file claims against the estate. Consequently, you can expect it to take a minimum of seven to twelve months to probate even a modest estate. A complex estate, or one that becomes embroiled in litigation, can easily take much longer, even years, to probate.
The cost of probate is another incentive that causes people to want to avoid formal probate. Everyone involved in the probate is entitled to receive a fee for their services. This includes the Executor, attorney, accountants, and possibly an appraiser. After adding in court costs and related expenses, probating an estate can be quite costly. These costs are paid by the estate, which can significantly diminish the value of the estate left to be distributed by the end of the process.
Is Probate Necessary When a Spouse Dies?
A common misconception is that when a spouse dies and leaves all assets to the surviving spouse probate is not necessary. That is not always the case. Probate and related matters are largely governed by state law. As such, each individual state decides when probate is required and when an alternative to formal probate might be available. Most states, including Oklahoma, offer an alternative for smaller estates that meet their requirements. Before deciding whether your spouse’s estate qualifies for small estate administration, you need to take a closer look at the assets left behind. Many assets are non-probate assets, meaning they bypass the probate process altogether. Property owned as joint tenants does not go through probate. When one owner dies, the other files the death certificate and an Affidavit of Surviving Joint Tenant in the county of record and becomes the sole owner. If there are more than two joint owners, the same procedure applies and the surviving owners continue as joint tenant owners of the property. For example, you may own your home as joint tenants and this is the procedure you would follow.
Life insurance proceeds are also non-probate assets because the proceeds are distributed in accordance with the beneficiary designations on the policies. Other common non-probate assets include:
- Assets held by a trust
- Certain retirement or pension accounts
- Funds held in an account designated as a “Payable on Death (POD)” or “Transfer on Death (TOD)” account.
Once you remove all the non-probate assets your spouse left behind, the value of the remaining assets, if any, may be low enough to qualify for an alternative to formal probate. Although there is a good chance your spouse’s estate will not need to be probated, it is a good idea to consult with an experienced probate attorney first who can tell you if probate will be required.
Contact an Oklahoma Probate Attorney
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about probating your spouse’s estate, contact the experienced Oklahoma probate attorneys at Parman & Easterday by calling 405-843-6100 or 913-385-9400 to schedule your appointment today.
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