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What if the decedent owned property in other states?
Each state has specific laws that must be followed in order to transfer property situated in that state. Many states have an accelerated probate procedure that allows one to conduct a speedy proceeding to transfer those land or minerals by utilizing the Oklahoma Decree. However, the Oklahoma probate alone will not suffice and some legal proceeding in that state must be held.
What are common challenges to a will?
It is typically very difficult to challenge a will. Wills are seen by the court as the voice of the testator, the person who wrote the will. Since that person is no longer here to speak about his or her wishes, the courts stick pretty stringently to the will. Anyone who may have an interest to gain from the will can challenge a will. The most successful challengers are usually the spouses, and the most successful grounds are that the person lacked testamentary capacity or that the person was unduly influenced or persuaded to write the will a certain way. Adults are presumed to have testamentary capacity and in order to challenge a will based on mental capacity, you must show that the testator did not understand the consequences of making the will at the time of the will's creation.
What if specific property mentioned in the will has been sold or cannot be found?
If the will or trust identifies property that was sold prior to death, then that property shall be disregarded and treated as though it did not exist. Exceptions do apply if the property was sold while the decedent was alive but was incapacitated. Normally, estates that are probated will have a final document "Decree" that provides for the distribution of unknown but later discovered assets.
What if the decedent’s heirs or devisees or beneficiaries are minors?
In Oklahoma, the standard law is that any money or property distributed to a minor (under the age of 21) shall be held in a trust. This means that an adult would be appointed to oversee and manage the assets. The decedent may have nominated a specific person in the will or trust, if not, a judge will appoint someone. That person may then distribute funds to the minor which are reasonable and necessary.
What is the best way to handle personal property of the decedent? (ex: bank accounts, vehicles, household items)
The administrator should promptly make a detailed inventory of the decedent's personal property items. It is also important that the personal property items are secured from damage, loss, and/or theft. This would include maintaining an existing security system, placed the items in a locked storage unit, or otherwise maintaining the items under lock and key. Next, the administrator should determine whether any of the items have a lien or loan against them and then notify the specific creditor. Certain personal property items that are in joint ownership or Joint Tenancy can then be distributed over to the joint owner.
The decedent owned real estate and/or minerals, how do we sell it or distribute it to the decedent’s heirs or devisees?
If the decedent owned real estate or minerals, some legal process must be had in order to transfer ownership title to the heirs. Normally this includes filing a Petition to Sell real property and obtaining court approval. If the decedent dies with or without a will, the estate must conduct a probate proceeding. If the decedent died with a properly drafted and funded trust, there is a chance the Trustee can simply execute a deed transferring the property to the heirs/beneficiaries.
May costs of administration and legal fees be paid out of the estate? What liabilities or debts will the estate be responsible for?
Any cost and legal fees that are beneficial to the estate can be paid with estate funds. However, laws specifically dictate the order and priority of payment. The administrator of the Estate is required perform a diligent search and discover all of the creditors and liabilities and give them due notice. It is very important that the Administrator use extreme caution when making certain payments to creditors prior to a court order because the court may require the Administrator to personally pay back any improper payments. As such, Compton Law’s advice is to obtain court approval or speak to an attorney prior to making any payments or dispersing any estate assets.
What happens in an Oklahoma probate?
Oklahoma Probate Attorney
In Oklahoma, there are several types of probates, but all involve the same general process:
A probate action begins with filing a Petition for Probate. If the decedent was a resident of Oklahoma, the court action should be filed in the county where the decedent resided. If they were not a resident of Oklahoma, the court action should be filed in the county where any part of the estate is located. The petition will set out certain facts such as date of death, residence, whether or not there was a will, who is to act as personal representative, names, ages and residences of heirs, legatees and devisees, and probable value of the estate.
The court then sets a date for the hearing. Depending on the type of probate proceeding, several hearings may be required. A personal representative will be appointed at the time of filing the petition or at a separate hearing. Letters testamentary, letters of administration, or letters of special administration will be issued to the personal representative, as discussed in Question #2.
Notice of the probate proceedings must be given to all heirs and persons named in the will and should be published in a newspaper in the county where proceedings are to be held. Notice must also be given to all known creditors. The creditors have a certain amount of time within which to file their claims, or else the claim will be forever barred.
The personal representative must prepare an inventory listing the probate property owned by the decedent and its value. The personal representative must prepare a final account which contains the information regarding the assets in the estate available for distribution after all debts and taxes have been paid. The estate is then closed by the court entering a Final Order to distribute the assets and discharge the duties of the personal representative. A certified copy of the Final Order should be recorded in any county in which the decedent owned real property or mineral interests.
Depending on the type of probate procedure used, a probate may be wrapped up between 2 - 9 months, or longer. The costs to probate include the filing fee for the petition, notice publication fee, personal representative's fee, and any attorney's fees that may be incurred. Although there is a cost to hiring an attorney, an experienced attorney will assist you in navigating the probate process and will help avoid costly mistakes.
What are commonly found assets of a decedent?
- Cash and/or bank accounts
- Savings accounts
- Securities and annuities
- Government bonds
- Employee or retirement benefits, including IRAs
- Real estate whether it is in state or out of state, although another probate may be required for out of state assets
- Mineral interests
- Life insurance
- Motor vehicles or recreational vehicles such as RVs, boats, airplanes, golf carts
- Personal property, which means household furnishings, jewelry, art work, collectibles
- Business interests in a partnership, limited liability company, closely held corporate interests
- Safety deposit box
- Any trusts in which the decedent is a beneficiary
- Unclaimed property
What information or documents need to be located?
- Last Will and Testament: Oklahoma law requires the original will be offered for probate. It may be located where the decedent kept important documents, with family, or with the attorney who drafted the estate plan.
- Copies of Trust, if any (and any amendments thereto)
- Legal descriptions or copies of deeds to real property
- Any recent tax returns of the decedent
- Public benefits information such as Medicaid or Social Security
- Family history information