This is the second post in our blog series on property inheritance and probate process in Oklahoma.  The previous article gave an overview of the issues that will be discussed throughout the series.  Not knowing what happens to one’s property after one passes away can be overwhelming, particularly if you are expected to settle the estate of a loved one.  Regardless of whether you are grieving after losing a family member or are just interested in understanding the law of inheritance, this article is for you.

Probate and non-probate property in Oklahoma

Before we go any further, it’s important to understand the difference between probate and non-probate properties.  We will discuss the probate process in detail in the next post, but for now just know that it’s a court-supervised proceeding over a dead person’s estate where the entire assets are inventoried, creditors and taxes paid, and the remainder distributed to rightful heirs.

Properties that pass through a will or intestate law (no-will) must go through this process and are called probate properties.  However, some properties including the ones that are held in a joint tenancy, for example, with the right of survivorship pass directly to the surviving joint tenant; avoiding probate and are called non-probate properties.

To be clear, a will does not avoid probate, and the decedent’s property must go through probate regardless of whether there is a valid will or not, except for non-probate assets.  Some of these non-probate assets include assets held in joint tenancy with a right of survivorship, pay-on-death bank accounts, transfer-on-death designated properties, and living trusts.

Difference between dying testate and intestate in Oklahoma

If a decedent leaves behind a valid will, then they have said to die testate.  The property of the decedent’s estate is then distributed as instructed in his or her will.  You have the right to determine how your assets are to be distributed and to whom after you pass away.  This is achieved by executing a legal document called a last will and testament while you are alive.

But if a person dies without a valid will, then they are said to have died intestate.  In such a situation, the government steps in and distributes the decedent’s probate assets according to Oklahoma laws of descent and distribution.  Even if a person dies without a will, it’s essential to note that only probate properties are subject to Oklahoma descent and distribution laws.

Oklahoma inheritance laws: Spouse’s share

If a person dies with a valid last will, then their probate assets are distributed according to the descendant’s wishes as outlined in the will.  But if there is no valid will, then Oklahoma law of descent and distribution takes over and probate properties are disposed of accordingly.

Under the Oklahoma laws of descent and distribution if a person dies without a will, then the surviving spouse’s share depends on whether the decedent has any other surviving family members.

If a married person dies without a will and has no living descendants (child or grandchild), siblings, or parents, then their entire estate goes to the surviving spouse.

If there are no surviving descendants but a decedent is survived by a parent, brother, or sister, then the surviving spouse gets all the property acquired during the marriage, plus one-third (1/3) of the remaining estate.

But if the decedent leaves behind children all of whom are from the surviving spouse, then the surviving spouse gets half (1/2) of your estate; regardless of whether acquired during marriage or not.  The other half is divided among the decedent’s children in equal share.

However, if the decedent has children from a previous marriage or with another person (other than the surviving spouse), then the spouse gets half (1/2) of the decedent’s estate acquired during the marriage plus one share of the estate not acquired during marriage shared equally with the decedent’s children.

Oklahoma inheritance laws: Children’s share

If a person dies without a will and has no surviving spouse, the estate is to be distributed among their children in equal share.  A predeceased child’s share goes to their children, the grandchildren of the decedent, to be distributed equally.

But if one of your parents passes away and is survived by another parent, then you and your siblings are to receive half (1/2) of your deceased parent’s estate to share amongst yourself in equal share.  The other half goes to the surviving parent.

In case your deceased parent has children from another person who is not also your parent, then the surviving parent takes half (1/2) of the estate that the deceased parent and the surviving parent acquired during marriage.  The other half (1/2) is to be shared amongst all the children of the deceased parent.  The estate that was not acquired during the marriage of the decedent and the surviving spouse is to be distributed in equal share amongst the children of the decedent and the surviving spouse.

For a person who has no surviving spouse and no children, the estate goes to their parents in equal share.  In case there are no living parents, it goes to the siblings in equal share.

Oklahoma inheritance laws: no surviving relatives

If a person dies without a will and there are no surviving descendants, parents, siblings, grandparents, uncle, aunt, or other close relatives, the estate will pass on to the closest relative.  In rare situations where no eligible relatives are found, the decedent’s estate may escheat to the state, where the assets are used to support the school system.

Oklahoma inheritance laws: with or without will

There seems to be much confusion as to the interaction between the law of descent and distribution (inheritance laws) and the presence of a valid will.  The first thing to note is that if there is a valid last will, then the state law doesn’t even come into play.  Only if a person dies without a valid will, then these laws come into play.  Second, even if this is the case, only probate properties are subject to these laws.  Because non-probate properties avoid probate and are passed to a designated beneficiary or a joint tenant outside the proceeding.

OKC Probate and Estate Planning Attorney

Dealing with a loved one’s estate can be emotionally challenging.  If you’ve lost a family member and are now faced with managing their estate, or if you are looking to safeguard your loved ones’ future through proper estate planning, we are here to help.  Our passion is to guide people like you through estate planning and probate law, providing support every step of the way.  If you are in need contact us online or by telephone to get in touch with an estate planning law firm and to speak to a probate lawyer.  We proudly serve Oklahoma County, Cleveland County, and Logan County.