Everyone handles the death of a family member or loved one in their own unique way. There simply is no rule book for processing loss. If you recently lost someone close to you, and you were also named as the Executor of the estate in the decedent’s Last Will and Testament, however, there are rules and procedures to follow when it comes to probating the decedent’s estate. Although not legally required, retaining the services of an experienced estate planning attorney to assist you throughout the probate of the estate is a wise choice. In the meantime, it always helps to have some idea where to start and what resources are available. To get you started, the estate planning attorneys at Parman & Easterday have compiled some commonly used probate resources for the Midwest City, Oklahoma area.
Probate Basics for the Beginner
The assets owned by a decedent at the time of his/her death must eventually be transferred to the intended beneficiaries and/or legal heirs of the estate. Probate is the name given to the legal process that ultimately results in the transfer of those assets. Probate also serves several additional important functions, including authenticating the Will, identifying and valuing of assets, notifying creditors of the estate, and the paying debts of the estate, including taxes.
The individual who oversees the probate of an estate is referred to as the Executor and is appointed by the decedent if a Last Will and Testament was executed prior to death. If the decedent died intestate, or without a Will, any competent adult may volunteer to be the “Personal Representative (PR) and oversee the probate of the estate. For the most part, the duties and responsibilities of an Executor and a PR are the same. For convenience sake, the generic term “Personal Representative (PR)” is frequently used to refer to either an Executor appointed in a Will or a PR who has volunteered for the position.
For more general information on the probate process, the American Bar Association has a section entitled “The Probate Process” within its Estate Planning FAQs that you may wish to read. In addition, the Oklahoma Bar Association also has a section entitled “Is Probate Needed?” that offers some helpful information.
Court Resources for the Pro Se Litigant
If you are charged with probating an estate, you should get the process started as soon as possible. Generally, probate occurs in the county in which the decedent was a resident at the time of death. For example, if the decedent was a resident of Midwest City, Oklahoma that will likely mean probate will take place in the Oklahoma County Court. Most Personal Representatives (PRs) choose to retain the services of an experienced estate planning attorney to assist during the probate process because it can be time consuming and confusing for a first-time PR. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the Oklahoma State Court Rules as well as the applicable laws and procedures. Oklahoma LegalAid has a forms section as well as some basic information related to probate that you may find helpful.
Choosing an Attorney
If your loved one’s estate requires formal probate, or you are unsure how to proceed with the probate process, retaining the services of an experienced estate planning attorney is your best option. Not only can an attorney guide you through the process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. In addition, the Oklahoma Bar Association’s Finding a Lawyer section of the website is always a good resource when searching for an attorney.
Personal Representative Resources
To get the probate process started, you will need to file the appropriate petition along with the original copy of the decedent’s Last Will and Testament and a certified copy of the death certificate with the Oklahoma County Court. When you file the petition you will need the original signed copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You may obtain certified death certificates from the Oklahoma State Department of Health. You will also likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. A good place to start is the Oklahoma County Assessor’s Office where you can conduct a search of the county property records. As the PR you will also be responsible for notifying all creditors of the estate that probate is underway. Known creditors may be notified individually; however, for unknown creditors you must publish a notice in a local newspaper. To accomplish that requirement, you may wish to contact the Oklahoma Press Association to arrange for publication.
Paying Federal Gift and Estate Taxes
Every decedent’s estate is subject to federal gift and estate taxes. As the PR, you will be responsible for determining if the estate actually owes taxes and for preparing the requisite state and/or federal tax returns. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turns out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate. Fortunately, Oklahoma is not one of the handful of states that also imposes a state estate tax. Nevertheless, you should check to ensure that you are complying with any tax filing requirements which can be done on the Oklahoma Tax Commission website.