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Probate

What is Probate?

Most people aren't even aware of the term "probate" until they experience the death of a family member. It can be overwhelming, especially in the midst of the emotional pain of losing a loved one. It is our goal to relieve as much stress as possible during one of the most painful times in our clients' lives.
Probate is a legal process that takes place after someone dies. It involves identifying and gathering the deceased person's assets, paying off any debts or taxes they owed, and distributing their remaining property to their heirs or beneficiaries according to their will or the laws of the state. The purpose of probate is to ensure that the deceased person's property is handled and distributed correctly and fairly. The process is typically overseen by a court, which can help resolve any disputes that arise during the process.
 

Probate process with a will

If the person who passed away had a will, this document will guide the probate process.

In Oklahoma, the probate process typically follows these steps:

1. Filing the Petition for Probate

The first step is to file the will with the probate court in the county where the deceased person resided. This is usually done by the executor named in the will, or by a family member if there is no named executor. Once filed, the court will begin validating the will.

2. Appointment of a Personal Representative

Assuming the court finds the will valid, the court typically appoints the executor named in the will as the personal representative, and that person will manage the probate process and ensure that the deceased person's assets are distributed according to their wishes as outlined in the will.

3. Inventory of Assets

The personal representative will gather an inventory of the deceased person's assets, which may include real estate, bank accounts, investments, personal property, and any other property of value.

4. Notice to Creditors

The personal representative must notify all known creditors of the deceased person's passing and provide them with an opportunity to file claims against the estate.

5. Payment of Debts

The personal representative must pay any outstanding debts of the deceased person using funds from the estate. If there are not enough funds to cover all debts, the assets will be distributed according to the priority set by Oklahoma law.

6. Distribution of Assets

Once all debts are paid, the personal representative will distribute the remaining assets to the beneficiaries named in the will.

7. Closing of the Estate

Once all assets have been distributed and any necessary taxes have been paid, the personal representative will file a final accounting with the court and request that the estate be closed.

It's important to note that the probate process can be time-consuming and expensive, and in some cases, it may be possible to avoid probate through careful estate planning.

Probate process without a will: 

The probate process is essentially the same when someone dies without a will. However, there are some important differences:

1. The executor/personal representative is not named by the deceased, so the person appointed by the court to manage the estate may not be the person the deceased (or their loved ones) would have chosen.

2) The court assumes more of a role in the valuation and disbursement of assets and payments to creditors. 

3) The disbursement of assets is dictated by statute instead of the wishes of the deceased. This is the most important difference. Instead of the deceased choosing who gets what, the state statute specifies how the estate is distributed, regardless of the status of the relationship between the deceased and his/her respective heirs -- if they qualify as an heir under the intestacy statute, they will receive their share of the estate. 

When there is no will, the probate process can be complex. Many executors/personal representatives choose to work with a probate attorney to help them navigate the probate process and complete the required paperwork, notify creditors, file taxes, and distribute assets. 

Avoiding probate:

There are steps you can take before death to avoid probate. Here are a few examples:

Payable-on-death accounts

Bank accounts can be converted into payable-on-death accounts with a designated beneficiary. Any funds remaining in your account upon death are automatically transferred to the beneficiary, as long as they are alive.

IRAs, HSAs, 401k or trusts

It's important to have your trust documents include joint survivorship, which means the property is instantly transferred to a surviving spouse upon death.

Do I need a probate attorney? 

The death of a loved one is difficult enough to process, without taking into account all the stress and anxiety that accompanies dealing with the court system, taxes, accounting, and more. While you're not required by law to hire an attorney for probate in Oklahoma, the benefits of doing so far outweigh the costs; and the opposite is true -- the mental, emotional, and financial costs of not doing so may far outweigh the price of an experienced attorney. 

If you're looking for help through the probate process, contact Worden & Carbitcher today at 405-360-8036 to schedule your consultation with one of our probate attorneys. 

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