This is the first article in our series dedicated to probate laws and procedures in Oklahoma.  This series is dedicated to answering some of the most frequently asked questions regarding probate.  In this post, we will discuss whether your loved one’s estate must go through probate.  The answer: it depends, on a multitude of factors.

How do you know if probate is required?

To find out whether probate is required, you must first take inventory of the assets, then inquire into ownership structure, and lastly estimate the value of the remaining estate.  If probate is required, then you must check whether the decedent left a last will or died intestate (without a will).

Take inventory of the assets

Let’s take John Smith, for example.  John, who is a widower from Edmond, passed away.  He is survived by his brother Rob Smith, and two daughters Emily and Jessica.

The daughters want to know whether a probate of their father’s estate is required.  They start by making a list of properties owned by their father.  It turns out that John left behind a home in Edmond, two bank accounts, mineral rights in Oklahoma County, and a life insurance policy.

Inquiry of ownership structure

After gathering information about the assets owned by John at the time of his death, the sisters inquire into the ownership structure.

Why the ownership structure inquiry?  Because, only the probate assets go through the probate process – and the ownership structure determines whether a property is a probate asset.

For example, Emily and Jessica found out that John’s home was held in joint tenancy by him and his brother Rob.   A property held in joint tenancy is a non-probate asset and thus avoids probate.  This is called a transfer of property interest by the operation of law.  The surviving tenant acquires the interest of the decedent tenant.  All Rob now has to do is file an affidavit of a surviving tenant with the county where the property is located.  Rob is the new owner without the need for probate.

Similarly, the sisters uncovered that both of John’s bank accounts were owned by him individually.  An individually owned bank account under a person’s name is a probate asset.  However, John had executed a payable on death (POD) designation listing Emily and Jessica as beneficiaries.  Because of this designation, the balance of his bank accounts is transferred to the sisters after his death.  The process bypasses the probate court entirely.

As for the mineral rights, he owned them individually.  And his life insurance policy has no beneficiary.  Since these properties have no designated person they can flow to, they are the assets of the estate and therefore must go through probate.

Estimate the value of the remainder estate

If the total value of John’s estate is less than $50,000 and consists only of personal property with no real estate, then such property can be passed on to his heirs via a small estate affidavit. 58 O.S. §393.  No probate is required in this situation.  For example, if John had passed away leaving only his car, a baseball card collection, and some furniture the total value of which is less than $50,000, then his estate isn’t required to be probated.  This is true regardless of whether he died with or without a will.

Similarly, if the total value of John’s remainder estate (including real and personal) including the life insurance policy and the mineral rights is worth less than $200,000, then his estate qualifies for summary probate.  58 O.S. §245(A).  A summary administration is a much quicker process compared to a full-blown probate proceeding.

Is there a will?

If probate is indeed required, then who is entitled to the decedent’s probate assets?  If there is a will, then the will instructs how to dispose of the estate.  Without a will, State Descent and Distribution laws dictate the disposition of the estate. 84 O.S. §213.  Let’s look at John’s situation.

As we know, John passed away leaving behind a home in Edmond, two bank accounts, mineral rights in Oklahoma County, and a life insurance policy.  His home and the two bank accounts are transferred outside the probate process through a joint tenancy and payment on death (POD) designation.

However, the life insurance policy doesn’t list any beneficiaries and the mineral interest is owned by him individually.  This means that after his passing both of them become the property of his estate.  Since they are probate assets, they must go through the probate process.

But, how are they going to be transferred?  Well, the answer depends on whether he left a will.  If there is a will, then the instructions in the document outline the disposition of his probate estate.  In the case he died intestate (without a will), the State law dictates the disposition of the remaining estate.

Is probate needed?

Whether you need to probate a loved one’s estate depends on various factors such as the size of the estate, type of assets, ownership structure, debts and creditors, etc.  This article is intended to give you a general overview of the steps one can take to determine whether a probate may be needed.  However, no two situations are identical.  If you have questions specific to your situation, please consult with an Oklahoma probate attorney.

OKC probate lawyer

Dealing with the loss of a loved one is emotionally challenging.  On top of that, having to manage the decedent’s estate can be overwhelming.  Regardless of whether you are dealing with a simple probate proceeding or a contested one, Niroula Law is here to help.  We will give the attention your case deserves and help you navigate through the complexities of probate.  Contact us online or by telephone to get in touch with a probate law firm and to speak to an OKC probate lawyer.