This is the next article in our series on property inheritance and probate procedure in Oklahoma.  In the last article, we talked about the inheritance laws and their implication on a decedent’s estate with and without a valid will.  In this article, we will discuss a brief history of the probate process, its’ surrounding issues, the administration of an Oklahoma estate, and the major steps involved.

Probate laws are statute driven and the rules are pretty straightforward.  However, handling a loved one’s estate while grieving can be emotionally challenging, thereby leaving you vulnerable to simple oversights.  If you seek to hire legal counsel, we can help ensure that you navigate the process correctly and in compliance with the law.  Contact us online or by telephone to get in touch with an estate planning firm and to speak to an OKC probate attorney.

Probate process rooted in early English law

The tradition of leaving one’s belongings to loved ones has ancient origins, dating back thousands of years to ancient civilizations.  However, the modern-day probate process has a relatively recent origin.  In early England, disputed wills and probate matters were initially overseen by religious courts.  It wasn’t until legislation was introduced to address intestate estates that a distinct role for administrators was established.  This development led to the creation of a specialized court dedicated to probate matters in 1857 England.  Modern American probate courts, including those in Oklahoma, are the result of the fusion of the early English religious courts and the court of equity.  This gave rise to the framework for today’s probate legal system.

What is a probate proceeding in Oklahoma?

A probate proceeding is a court-supervised process that involves the inventorying of a decedent’s assets, paying death taxes and creditors, and ensuring the distribution of the balance to rightful heirs.  Not all properties must go through this process.  For example, a property held in a joint tenancy with the right of survivorship is an asset that is automatically conveyed to the surviving tenant without going through probate and is called a non-probate asset.  While, a real-property for example, that is held solely in the decedent’s name must go through probate and is called a probate asset.

Is there a time limit to initiating probate proceedings in Oklahoma?

There is no statute of limitation to initiate a probate proceeding in Oklahoma.  This is true regardless of whether the decedent died with or without a will.  However, a delay of fifteen (15) years or longer may constitute laches – a legal doctrine that prevents a party from bringing a claim due to unreasonable delay.

What is the purpose of probate proceedings in Oklahoma?

An easy way to understand the purpose of the probate process is by comparing it to the closure of a business.  When someone passes away, it is as though their life “business” has come to an end.  The probate functions as the liquidation manager, ensuring all the business’s assets and liabilities are properly accounted for, and that the remaining value is distributed to the rightful “shareholders” (heirs and beneficiaries).  Akin to business liquidation, the probate aims to wrap up the decedent’s estate fairly and according to established rules.

Does having a will avoid probate in Oklahoma?

No, having a will does not avoid the probate process.  All wills must go through a probate process to give the decedent’s wishes the force of the law.  Regardless of whether a person dies with (testate) or without a valid will (intestate), all probate assets must go through the probate process.  We will discuss the various probate and non-probate assets in detail in the upcoming articles.

Does having a living trust avoid probate in Oklahoma?

The answer to this question is both yes and no.  Yes, to the properties that are titled and held under the living trust; because a trustee and not a probate proceeding distributes the assets to beneficiaries.  On the same token, no, to properties that are not held under or titled in the name of the trust.  Practically speaking, there may be properties inadvertently left out of the trust or subsequently acquired after its creation but never conveyed to the trust.  So, there is no such thing as totally avoiding probate, because a simple “pour over” will is needed to transfer to the trust any property that has not been transferred during the lifetime of the decedent.

Are all estates required to go through probate in Oklahoma?

All properties in the decedent’s estate must go through probate unless they are qualified to avoid the process – for example, properties that are held in a joint tenancy, or the ones that have a designated beneficiary (ex. life insurance proceeds) or are held in a living trust do not go through probate.

The probate process can be expensive and lengthy, thereby discouraging many family members from administering the decedent’s estate.  To address this issue, many states including Oklahoma have enacted laws that allow the family of a decedent to avoid the cost of full probate if the probate estate is under a certain amount.

  • Small estate affidavit: A probate estate smaller than $50K qualifies for a small estate affidavit instead of probate. Such an affidavit can be created for the disposition of personal property under 58 O.S. §393, §394 and to access funds from a bank account under 6 O.S. §906.
  • Summary probate: If a probate estate is equal to or smaller than $200K, or the decedent has been dead for five years or more, or the decedent resided in another state at the time of death, then the estate qualifies for summary probate under 58 O.S. §245.

What is an Oklahoma summary probate and what are the steps involved?

If a decedent’s probate estate is equal to or less than $200K, or the decedent has been dead for five years or more, or the decedent resided in another state at the time of death, then a full probate is not required.  These types of proceedings are typically shorter in duration, less expensive, and require fewer court appearances.  A summary probate may take as little as two to three months whereas a full probate typically takes six to ten months.  Here is a bird’s eye view of the steps involved in a summary probate:

  • Initiation of probate proceeding
  • Notice and publication
  • Handling of tax matters
  • Final hearing and distribution

What is an Oklahoma full probate and what are the steps involved?

If a decedent’s estate is too large for a small estate affidavit or a summary probate, it must go through a full probate proceeding.  A full probate in Oklahoma typically takes around six to ten months and involves multiple court appearances.  Here is a birds-eye view of the steps involved in an Oklahoma probate:

  • Initiation of probate and hearing
  • Notice of hearing to all interested parties
  • Personal representative appointment
  • Handling of debts and creditors
  • Handling of tax matters
  • Asset inventory and valuation
  • Final hearing and estate distribution

OKC Probate Lawyer: Oklahoma Estate Planning Attorney

At Niroula Law we empathize with the emotional challenges of handling probate matters during a period of grief.  Our dedication is to assist you in navigating the legal aspects of the entire probate process, from start to finish.  We are here to help you every step of the way.  If you are seeking legal guidance in a probate matter for your loved one, contact us online or by telephone.  We proudly serve Oklahoma County, Cleveland County, Logan County, and Grady County.