Probate Frequently Asked Questions

Oklahoma probate law affects you in many ways if you are anticipating an inheritance.Probate laws determine what steps must be taken before an inheritance transfersto the beneficiaries.  During the probateprocess, creditors can make claims against the estate.  This can reduce the value of an inheritanceand result in you inheriting less money than you had expected. The will couldbe contested during probate.  If the willis successfully contested, you could potentially lose the inheritance youthought you would receive.   

Even if everything goes correctly during the probateprocess, you could also find yourself struggling financially as you wait forall of the technical legal requirements of probate to be fulfilled. The lawdoes protect heirs or beneficiaries by making sure that an executorappropriately manages estate assets during the probate process, but it is stilla burden for many people to wait for probate to be completed. This is onereason why many people will work with an estate planning lawyer to try to passassets to heirs or beneficiaries outside of the probate process.

The executor of an estate is responsible for taking care of estate assets during the probate process. The executor has a fiduciary duty to manage estate assets with due care and not to act to enrich himself at the expense of heirs or beneficiaries. A probate attorney can provide assistance on the management of assets during the probate process.

When you probate a will, the process can take a long time. There are also some things which could make probate taken even longer than necessary. Probate could be delayed by an incorrect filing of paperwork. It could also be delayed if there are multiple wills and a determination must be made as to which is the correct one; if the will is contested; if the executor is unable to fulfill his or her obligations during the probate process, or if the estate is an especially large and contains assets that are complicated to probate.  Parman & Easterday can help to avoid delays or to ensure that there are as few days as possible so the probate process moves along as quickly as it can.

During the probate process, an interested party canchallenge a will, or contest the validity of a will. In order for someone to successfully challenge a willand have the will declared invalid, they must prove that there was a problemwhen the will was created. There are specific legal formalities and requirementsfor a will to be valid.  If theseformalities are not present, the will likely be challenged, further delayingthe probate. 

A will may also be declared invalid if it was made underconditions of duress, undue influence, or fraud. This would mean that theperson who made the will had been somehow coerced or tricked into creating thelegal document. Sometimes, as people get older, a caregiver or a new spouse mayimpose a lot of pressure on that person to alter a will. This could be a casewhere other family members argue the will shouldn't be valid because the personwho created it did not decide freely and of his own accord to make the will. Ifthe person who made the will was not of sound mind at the time when the willwas created, this is another example of a situation where the will could bedeclared invalid.

It is the obligation of the person who is contesting a willto prove why it should be declared invalid. Parman & Easterday can help to prepare solid legal arguments for whya will shouldn't be probated because there was a problem in its creation.

A Oklahoma City probate attorney can provide assistance tothose who are involved in the probate process. One of the things that a probateattorney can do is to help an inheritance proceed as fast as possible. An attorney can facilitate the timely transfer of estate assetsto new owners by providing advice during the probate process. With help from anattorney, executors can ensure they file the correct paperwork, fulfill theirobligations, and move the probate process forward in as timely a manner asallowed by law. 

To find out more about the ways in which a probate attorneycan help with the probate process in Oklahoma City and surrounding areas, join us for a free seminar. Youcan also give us a call today at (405) 843-6100 or contact us online to getpersonalized advice with all aspects of the probate process.

Probate is the legal process that follows the death of an individual. Probate serves several functions, including:

• Authenticating the decedent’s Last Will and Testament (if applicable)
• Identifying, valuing, and transferring estate assets
• Allowing creditors of the estate to file claims
• Settling any legal disputes related to the estate
• Ensuring that all taxes owed by the decedent and/or the estate are paid

Some type of probate is almost always required; however, formal probate may not be necessary. The State of Oklahoma has alternatives to formal probate for small estates without complex assets. A Small Estate Affidavit may be used if estate assets are less than $50,000 and the estate meets some additional requirements. A simplified court process is available if the estate’s assets do not exceed $200,000.

Some assets are considered non-probate assets. One of the first things that must be done following the death of an individual is to determine which property is probate property and which property is non-probate property. Non-probate property bypasses probate and may be distributed right away. Common examples of non-probate property include:

• Assets held in a trust
• Proceeds of a life insurance policy
• Certain annuities
• Funds held in accounts designated as “payable on death (POD)” or “transfer on death(TOD)”
• Certain jointly held property
• Funds held in certain retirement type accounts

If the decedent executed a Last Will and Testament prior to death, the person named as the Executor in it will oversee the probate of the estate. If the decedent died intestate, or without a Will, any competent adult can volunteer to be the Personal Representative of the estate and oversee the probate process. If no one volunteers, the court will appoint someone, usually a local attorney, to be the Personal Representative.

If the decedent left behind a valid Will, the terms of the Will dictate how the estate assets are distributed. If the decedent died without a Will, referred to as dying “intestate,” the Oklahoma intestate succession laws will decide what happens to the estate assets. In that case, only a spouse and/or close relatives will likely inherit from the estate.

There is no legal requirement that you hire an attorney to assist you in the probate of an estate. Probate involves a number of complicated legal concepts that require at least a basic knowledge of the applicable laws. As a general rule, if the estate requires formal probate, it is in your best interest as the Executor to consult with an experienced estate planning attorney to ensure you do not make costly mistakes.  A probate court judge cannot advise you and if everything is not done correctly, the judge will have no choice but to dismiss the probate action.

Although every probate is unique, there are some common steps, including:

• Locating the original copy of the decedent’s Last Will and Testament and obtaining certified copies of the decedent’s death certificate.
• Submitting the Will with a petition to open probate with the appropriate court.
• Inventorying and valuing estate assets.
• Notifying creditors that probate is underway and claims may be submitted
• Evaluating any claims submitted by creditors
• Paying valid claims
• Litigating any disputes
• Paying any state and/or federal taxes due
• Transferring the remaining assets to the intended beneficiaries and/or heirs of the estate.

The amount of time it takes to probate an estate will depend on a number of factors, including the size and complexity of the estate, the abilities and dedication of the Executor/PR, and whether or not any challenges are filed against the estate. Furthermore, creditors have two months within which to file a claim against an estate in Oklahoma and then those claims must be evaluated and paid or denied. In any case, probate cannot be concluded until the appropriate statute of limitations on creditor claims has expired. As a general rule, probates normally take 12-24 months to complete.