Most of us have heard that it's wise to avoid probate court, but we don't really know why. We don’t know what is involved in probate – what is the process, why does it take so long, why does it cost so much, what does it do for me. The fact is, we know very little about probate. “Why can’t I give my money, my property, my personal possessions and assets to whomever I want without hiring an attorney and going to court”?
Why Might I need to Probate My Estate?
We spend our lifetime working hard, purchasing necessities of life as well as luxury items, saving for retirement, all without giving much thought as to how this will be passed on to our family, friends, or favorite charities. For some of the items we acquired, we obtained a title signifying our ownership. In other instances, there was some other document or certificate that signified our ownership. When we sell or transfer this item to someone else we will sign a document indicating that we have transferred ownership to another person; your car has a title, your home has a deed, your bank accounts have signature cards indicating your ownership of the funds in the bank account. Many items that we acquire over our lifetime have a document that signifies our ownership.
Some of us may have accumulated debt; we may have creditors that need to be paid upon our passing. We may have unresolved contractual issues. There may be other loose ends that someone with the appropriate “authority” needs to address upon our passing.
Probate is a specialized, court-directed process for the purpose of determining ownership of assets after a person has died. The basic role of the probate court judge is to assure that the deceased individual’s creditors are paid to the extent possible from the assets of the decedent and transferring the decedent’s property to the heirs. This is the case whether the individual died with a valid will or not.
Does the Process Change if I Have a Will?
Some elements of the probate process do change depending on whether or not there is a will. Remember, if you have a trust it is unlikely your estate will need to go to probate. Our knowledgeable and experienced professionals at DBL will be pleased to discuss your situation with you.
Testate: A person dies "testate" when he or she passes leaving a will that directs the disposition of his or her estate. Under the probate process for a decedent who dies testate, the first step in the process is to determine the validity of the will. A personal representative is then appointed and is responsible for managing the estate throughout the probate process and carrying out the terms of the will.
Intestate: When a person dies without leaving a will, the person is said to have died "intestate." In such cases, a person's assets are distributed according to the laws of intestate succession as dictated by state statute. The law sets forth specific guidelines for the distribution of assets to a decedent's heirs. Distribution of assets is usually made to the surviving spouse and children. If there is no spouse or descendants, the distribution may be made to parents, siblings, or other extended family members. It could be said that if you do not have a will or a trust your estate will be distributed according to “the will of the state.”
Each state has its own detailed rules about the probate process: the documents it requires, what the documents must contain, and when they must be filed. Most states, including Oklahoma, have enacted some portion of the Uniform Probate Code. Bearing in mind that no estate is perfectly typical, below is a general outline of the probate process.
The probate process is a highly clerical process and begins with you working with your probate attorney asking the court to officially make you the personal representative or executor. If you end up acting as executor, you and your attorney will need to:
- File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. You will also need to file the death certificate and the original will (if there is one) with the court.
- Publish a notice of the probate in a local newspaper according to court rules. Mail notices to creditors you know about.
- Mail the notice to beneficiaries and heirs, as required by the court.
- File proof that you properly published and mailed the notice.
- Post a bond (if required by the court) which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate.
- Prove the will's validity by providing statements from one or more witnesses to the will. This is often done by submitting the "self-proving affidavit" that was signed by the witness in front of a notary at the time the will was signed.
- Prepare an inventory and appraisal of the deceased person's assets.
- Keep all estate property safe during the probate.
- Properly distribute the property.
- File other documents required by the court.
When one of your loved ones passes, probate procedures will probably be the last thing on your mind. That’s when you need to contact DBL to get the help of an experienced Tulsa probate attorney who knows the ins and outs of the probate process and can expedite the complicated endeavor. If you neglect the complex transitional tasks associated with probate, your loved one’s final wishes may be neglected while strangers decide what will be done with their estate. With the assistance of DBL you can be assured the disposition of their estate is in trustworthy hands.
How can I avoid Probate?
It is possible you may be able to avoid probate! Contact DBL - talk to our experienced and knowledgeable professional attorneys. We will evaluate your situation and if necessary assist you in developing a comprehensive Estate Plan that will address the many issues involved in assuring your estate is passed to your heirs according to your wishes in an effective and efficient manner.