What is Probate?
Probate is a court-supervised process involved in the settling of a decedent’s estate. The process determines the validity of a will (if one exists), determines heirs, collects and distributes assets, allows creditors an opportunity to present their claims, and wraps up the final matters of the estate. A personal representative is also appointed to handle matters involving the estate.
If the assets are subject to probate, the estate must go through probate whether or not the decedent died with or without a last will and testament. If the decedent died with a will, or "testate", then the estate is administered and distributed pursuant to the will's contents. If the decedent died without a will, or "intestate", Oklahoma law governs the administration and distribution of the decedent's estate.
Probate is required for many different types of assets that are owned solely by the decedent such as real property, bank accounts, interest in a business, and personal property. It is most commonly used to vest title to real estate or minerals in the decedent's heirs or beneficiaries. Some assets, however, are exempt such as joint property, property titled in the name of a trust, life insurance, and retirement accounts.
Even though a decedent set up a trust, it only avoids the need for probate if it has been properly funded. For example, if the decedent owned minerals in his or her name as an individual, the minerals will need to go through probate in order to be properly transferred to the heirs or the trust. Often times a trust estate plan will also contain a will leaving everything to the trust. This is called a "pour-over" will. The purpose of a pour-over will is to ensure all non-trust property flow through the trust, even if the estate must go through probate. If you have any questions about whether the asset goes through probate, please contact us at 405-542-2529.