This is the next article in our series on the inheritance laws and probate process in Oklahoma. In our previous article, we discussed the implications of inheriting a home with a mortgage. This article has a narrow focus: differences between probate and non-probate assets.

Navigating through probate proceedings or handling a decedent’s estate while grieving is emotionally challenging. If you are in the midst of this whirlwind and are seeking legal counsel, we are here to help.  Contact us online or by telephone to get in touch with an estate planning firm and to speak to a probate lawyer.

Oklahoma probate and non-probate assets: what are the differences?

There seems to be a great deal of confusion as to what a probate property is and what isn’t. Let’s break it down. Estate assets are properties owned by the person at the time of their death, the ownership of which is then transferred to heirs or beneficiaries. Some of these assets must go through a probate proceeding while others may pass outside probate.

Assets that pass on to an heir or a beneficiary through a will or intestacy laws must go through probate and therefore are called probate assets. For instance, the conveyance of a home by a mother to her son through a will must be probated; the house is a probate asset. Similarly, if a single mother survived by an only son dies without a will (or any testamentary instrument), then her estate will be disposed of according to Oklahoma intestacy laws. Her estate must be probated, hence the assets passing to the heirs are probate assets.

Conversely, the assets that are passed on to heirs or beneficiaries outside the probate proceedings, through the operation of law or contract, are called non-probate assets. The assets do not pass through a will or intestacy laws. For instance, a life insurance policy doesn’t go through probate, and the proceeds are directly transferred to the beneficiary.

Impact of probate vs. non-probate assets on inheritance and probate proceeding in Oklahoma

Now, let’s discuss some of the probate and non-probate assets in more depth:

Probate assets:

  • Distribution through a will: All assets that pass through a will must go through the probate process. It involves a court-supervised proceeding that confirms the validity of the will and ensures property distribution according to its instructions.  For example, if your uncle leaves you a piece of land in his will, then the will must go through probate. You may inherit the title to the land after the process, which can take months or in some instances, years.
  • Distribution through intestacy laws: If a person dies without a will, then state law dictates who gets what. This is a vulnerable position because, without a will, the decedent’s real wish may never be known. For this reason, every state has intestacy laws that attempt to resemble the deceased wishes as closely as possible. For example, under Oklahoma laws of descent and distribution, a married person’s entire estate goes to the surviving spouse if the decedent has no living descendants, siblings, or parents. The properties passing through the intestacy laws are probate property and they must go through the probate process. 

Non-probate assets:

  • Joint ownership: Title to the properties held in joint tenancies pass through the operation of law and are not a part of the probate estate. Since they pass outside the probate process, the intestacy laws or the will terms do not control their disposition. For example, the title to the house jointly owned by a single mother and her son with a right of survivorship will automatically pass to the son after the mother’s death.
  • Designated beneficiaries:  Assets with properly designated beneficiaries pass directly to the beneficiary and avoid probate. For example, assets such as life insurance policies, retirement accounts, and payable-on-death (POD) or transfer-on-death (TOD) accounts fall under this category.
  • Trust beneficiaries:  Properties placed in a revocable and irrevocable trust during the creator’s lifetime avoid the probate process and therefore pass directly to the beneficiaries through a designated trustee. A revocable living trust is a popular estate planning tool used by many to bypass the probate proceeding.

OKC estate planning and probate attorney

We understand that dealing with the loved one’s estate while grieving is emotionally challenging. Niroula Law is here to help you navigate the probate proceeding and assist you through the entire process. We will give your case the attention it deserves. Contact us online or through telephone to get in touch with an estate planning firm and to speak to a probate lawyer. We proudly serve Oklahoma County, Logan County, and Cleveland County.