Our Tulsa Probate Lawyers will tell you that probate doesn’t have to be hard. Probate is the legal process by which the court, oversees and directs the distribution of assets and liabilities to beneficiaries. Thus, the probate process is the means by which legal title to real or personal property transfers to heirs or beneficiaries. The distribution of one’s property, whether they had a will or not, must occur through a personal representative (or executor / administrator) under the supervision of the probate court. The Tulsa probate lawyers at our office are here to help you through every step of the process.
Where Probate Takes Place:
In Oklahoma a probate of a person’s estate should file in one or more of the following counties:
1. In the county of which the decedent was a resident at the time of death, regardless of where he died.
2. In the county in which the decedent died, leaving an estate in that County, and the deceased is not 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.
A un-contested probate in Tulsa County can take 7-12 months. A contested probate could take much longer and thus may require Tulsa probate lawyers to defend you.
Cost of Probate:
There are many factors in determining a probate lawyers fees together with other costs in a probate matter. Generally, the attorney fee is a flat retainer fee or a percentage of the estate’s total value. Depending on the complexity of the estate, other fees may also accrue for accounting, filing of tax returns and the sale of real and personal property.
Who Can Be the Executor or Administrator:
If the decedent died with a valid will, then 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.
This bond, if required, must post by the administrator or executor for the Estate. Further, the bond ensures the administrator performs his duties faithfully. Otherwise, the bond is foreited and the administrator does not receive their money back.
If the deceased party died with a valid will, then the will it self will determine if the bond waives. In the event there is no will, the Court will look at the facts and make that determination.
Determining 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 an accounting and therefore must file with the Court. Although requiring no special skills, the accounting itself requires that the administrator posses the ability to keep records and other details relevant to the probate estate.
Once the case files and before it can close notice of the probate action must go to all reasonably ascertainable creditors. In Oklahoma the notice requirement is in Okla. Stat. tit. 58, § 331 and is as follows:
Every personal representative must, 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 survivor-ship. 3. Checking accounts should always have a POD provision. 4. Consider gifting away property you no longer need while you are still living. For help call us 918.743.2233