Everyone handles the death of a family member or lovedone 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 theExecutor of the estate in the decedent’s Last Will and Testament, however,there are rules and procedures to follow when it comes to probating thedecedent’s estate. Although not legally required, retaining the services of anexperienced estate planning attorney to assist you throughout the probate of theestate is a wise choice. In the meantime, it always helps to have some ideawhere to start and what resources are available. To get you started, the estateplanning 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/herdeath must eventually be transferred to the intended beneficiaries and/or legalheirs of the estate. Probate is the name given to the legal process thatultimately results in the transfer of those assets. Probate also serves severaladditional important functions, including authenticating the Will, identifyingand valuing of assets, notifying creditors of the estate, and the paying debtsof the estate, including taxes.
The individual who oversees the probate of an estateis referred to as the Executor and is appointed by the decedent if a Last Willand Testament was executed prior to death. If the decedent died intestate, orwithout a Will, any competent adult may volunteer to be the “PersonalRepresentative (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. Forconvenience sake, the generic term “Personal Representative (PR)” is frequentlyused to refer to either an Executor appointed in a Will or a PR who hasvolunteered 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 youmay wish to read. In addition, the Oklahoma Bar Association also has a sectionentitled “Is Probate Needed?” that offers some helpful information.
Court Resources for the Pro Se Litigant
If you are charged with probating an estate, youshould get the process started as soon as possible. Generally, probate occursin the county in which the decedent was a resident at the time of death. Forexample, if the decedent was a resident of Midwest City, Oklahoma that willlikely mean probate will take place in the Oklahoma County Court. Most Personal Representatives (PRs) choose toretain the services of an experienced estate planning attorney to assist duringthe probate process because it can be time consuming and confusing for afirst-time PR. If, however, you decide to proceed pro se, or without theassistance of an attorney, you will be expected to understand the Oklahoma State Court Rules as well as the applicable laws andprocedures. Oklahoma LegalAid has a forms sectionas 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, oryou are unsure how to proceed with the probate process, retaining the servicesof an experienced estate planning attorney is your best option. Not only can anattorney guide you through the process, allowing you to focus on grieving, buthaving an attorney on your side also dramatically decreases the possibility ofmaking a costly mistake. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is anational organization of attorneys who have chosen to focus their practice onlegal issues related to wills, trusts, and estates. Membership in the AAEPAsignifies that an attorney has proven experience in the areas of estateplanning and/or elder law. In addition, the Oklahoma Bar Association’s Finding a Lawyersection of the website is always a good resource when searching for anattorney.
Personal Representative Resources
To get the probate process started, you will need tofile the appropriate petition along with the original copy of the decedent’sLast 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 LastWill and Testament along with a certified copy of the death certificate. Youmay obtain certified death certificates from the Oklahoma State Department of Health. You will also likely need toconduct a thorough search to make sure you have identified all real propertyowned by the decedent. A good place to start is the Oklahoma County Assessor’s Office where you can conduct a search ofthe county property records. As the PR you will also be responsible fornotifying all creditors of the estate that probate is underway. Known creditorsmay be notified individually; however, for unknown creditors you must publish anotice in a local newspaper. To accomplish that requirement, you may wish tocontact the Oklahoma Press Association to arrange for publication.
Paying Federal Gift and Estate Taxes
Every decedent’s estate is subject to federal gift andestate taxes. As the PR, you will be responsible for determining if the estateactually owes taxes and for preparing the requisite state and/or federal taxreturns. 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 behelpful. If it turns out that the estate does owe federal gift and estatetaxes, any tax obligation due must be paid before any assets are transferredout of the estate. Fortunately, Oklahomais 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 taxfiling requirements which can be done on the Oklahoma Tax Commission website.