Oklahoma Probate Lawyers
What is an Oklahoma Probate?
Probate is the legal process by which the court, in the applicable jurisdiction, oversees and directs the distribution of assets and liabilities of the deceased to his or her heirs. The probate process is the means by which legal title to real or personal property is transferred from the deceased estate to heirs or beneficiaries. The distribution of one’s property, whether they had a will or not, must be managed by a personal representative (or executor / administrator) under the supervision of the probate court.
Where is Venue proper in an Oklahoma Probate case?
In Oklahoma a probate of a person’s estate should be filed in one or more of the following counties:
1. In the county of which the decedent was a resident at the time of his death, regardless of where he died.
2. In the county in which the decedent died, leaving an estate therein, the deceased not being a resident of this state.
3. In the county in which any part of the estate of the deceased may be, where the decedent died out of this state, and the decedent was not a resident of this state at the time of his death.
4. In the county in which any part of the estate may be and the decedent was not a resident of this state, but died within it, and did not leave an estate in the county in which he died.
5. In all other cases, in the county where application for letters is first made.
How long does it take?
A un-contested probate in Tulsa County can take 7-12 months.
What is the cost of probate?
There are many factors in determining attorney’s fees together with other fees in an Oklahoma probate matter. Generally, the attorney fee is based on a flat retainer fee or a percentage of the total value of the estate. Depending on the complexity of the estate, other fees may accrue for accounting, filing of tax returns and the sale of real and personal property.
Who is entitled to act as Administrator or Executor of the Estate?
If the decedent died with a valid will, the will itself should set out whom the decedent wishes to act as the Executor. In the event the decedent dies without a will or intestate, the Court will appoint a personal representative (or Administrator) pursuant to Okla Stat. tit. 58, § 122, which provides the following hierarchy:
1. The surviving husband or wife, or some competent person whom he or she may request to have appointed.
2. The children.
3. The father or mother.
4. The brothers or sisters.
5. The grandchildren.
6. The next of kin entitled to share in the distribution of the estate.
7. The creditors.
8. Any person legally competent.
If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate
What is an administrators bond?
This bond, if required, is posted by the administrator or executor for the Estate. The bond secures the fiduciary duty of the administrator in the event his actions are not performed faithfully and in the best interest of the probate estate.
Can the bond be waived?
If the deceased party died with a valid will the will it self will determine if the bond is waived. In the event there is no will, the Court will look at the facts of the probate estate and make that determination.
How do we determine the assets and liability of the Estate?
One of the duties owed to the Estate by the Executor is to fully account for all the assets and liabilities. This is called an accounting and said accounting must be filed with the Court. Although no special skills are required to perform the accounting, the accounting itself requires that the administrator posses the ability to keep records and other details relevant to the probate estate.
Do the creditors of the Decedent get paid?
Depends; once the case is filed and before it can be closed notice of the probate action must be given to all reasonably ascertainable creditors. In Oklahoma the notice requirement is set out in Okla. Stat. tit. 58, § 331 and is as follows:
Every personal representative must, unless the notice has been given by a special administrator as provided in Section 215 of this title, within two (2) months after the issuance of his letters, file notice to the creditors of the decedent stating that claims against said deceased will be forever barred unless presented to such personal representative, at the personal representative’s place of residence or business, or at the place of business of the attorney for the personal representative, as specified in the notice, by the presentment date stated in the notice. The presentment date shall be a date certain which is at least two (2) months following the date said notice is filed, and the first publication of said notice shall appear on or before the tenth day after the filing of said notice. If the presentment date stated is a Saturday, Sunday, or legal holiday, the presentment date shall be deemed to be the next succeeding day which is not a Saturday, Sunday, or legal holiday. The notice to creditors shall be given by publication in some newspaper in the county in which the probate is filed once each week for two (2) consecutive weeks, and by mail to all known creditors of the decedent at their respective last-known available addresses, in accordance with Section 6 of this act. The notice shall be substantially in the following form: Tips for Avoiding Probate Contests and Estate Disputes 1. Set up a Living Trust 2. Hold title to real property with a right of survivorship. 3. Checking accounts should always have a POD provision. 4. Consider gifting away property you no longer need while you are still living.