Probate is a process that can seem overwhelming in theory, but when managed correctly can make a difficult time much less stressful.
WHAT IS PROBATE?
Probate is the method by which your estate is administered after your death.
DOES MY ESTATE GO THROUGH PROBATE ONLY IF I HAVE A WILL?
Whether you have a will or you don’t, your estate will be probated. If you have a valid will, your will specifies how your estate is to be handled and who you’ve designated as your beneficiaries. If you don’t have a valid will, under probate law, Oklahoma will determine how your estate is divided.
HOW CAN I ENSURE THAT MY WILL IS VALID? WITH A PROBATE ATTORNEY, OF COURSE!
While you can draft your own will and have it notarized, personally drafted wills are often incomplete and not state-specific. An incomplete or non-state-specific will is not a valid document and will cause additional delays and complications during probate. Only a probate attorney can legally draft a will on your behalf. A probate attorney will ensure that your will is complete and specifies all necessary details to enable your estate to be processed without additional complications.
HOW DOES PROBATE WORK?
The probate process can be broken down into two basic steps:
- Debts owed are paid
- Assets are transferred
The probate court oversees the entire process. Because probate courts are state courts (not federal), the processes may vary from one state to another, but the basic format is the same.
- Your personal representative is sworn in
- Heirs, creditors, and the public are notified of your death
- Your property is inventoried
- Your estate is distributed
WHY MUST MY ESTATE GO THROUGH THE COURT SYSTEM?
Your estate will need to go through the necessary legal steps in order to conclude all of your affairs completely and legally. This process allows your representative access to accounts (financial, utility, and others) in order to close them properly.
WHO IS MY REPRESENTATIVE AND WHAT DO THEY DO?
Your representative is the adult named in your will as your executor (or executrix). The court will appoint a representative if:
- You don’t have a will
- Your will doesn’t specify a representative
- The person you selected cannot fulfill the necessary responsibilities
This representative is sworn in and then must file a document called a Petition for Probate of Will and Appointment of Personal Representative with the court. After filing, the representative typically:
- Publishes a death notice
- Takes inventory of your personal property
- Receives all payments due to the estate
- Pays all outstanding debt
- Determines details regarding all possible heirs
- Distributes the property of the estate to the appropriate people
- Carries out the court’s orders in all matters
Your representative is protected against any direct claims as long as all communications are properly handled and probate plans are followed.
HOW ARE MY ASSETS DISTRIBUTED?
Creditors with valid claims are typically paid in the following order:
- Estate administrative costs (appraisal fees, legal fees, etc.)
- Family allowances
- Funeral expenses
- Taxes and debt
- Any remaining claims
Whatever remains after all debts are settled is distributed among your heirs or beneficiaries named in your will.
WHAT IF I HAVE PROPERTY IN DIFFERENT STATES?
Any tangible and intangible personal property (such as collections and investments) are probated in your state of residence. Real estate in other states will be probated in the state in which it’s located.
WHAT HAPPENS TO MY LIFE INSURANCE POLICY, PENSION, OR JOINTLY OWNED ASSETS?
Life insurance policies or pensions with a named beneficiary or assets that you co-own are considered non-probate assets. Since these assets are passed on automatically when you die, they do not need to be handled by probate. However, if your life insurance beneficiary is invalid, the policy becomes probate.
HOW LONG WILL THE PROCESS TAKE?
Typically there is a minimum of 10 days before a hearing can be held. The total length of time needed to complete a simple estate is six to twelve months. Large estates may take longer.
The team at Foshee & Yaffe have been practicing in Oklahoma for more than 35 years. We have the expertise and experience to assist with your estate planning and probate details. Contact us today to learn how we can help.