In our last series of articles, we gave a basic overview of estate planning for families in Oklahoma, and explained why every family needs an estate plan, and how many attorneys design estate plans that are destined to fail.
Now, we are going to talk about the probate process that occurs after a person dies. The entire reason for designing your own estate plan is to take control of what happens during the probate process. Stated another way, you can determine how painful or painless this process is on your family after you die.
Individuals who fail to create an estate plan leave behind a wake of problems and inconveniences for their family to deal with, and these articles will really show you what I mean by that.
What is the probate process?
Probate is a court process for distributing the assets of a deceased person. Why is this necessary? Because if a person dies with assets still titled in their name, the heirs will need a judge to authorize them to re-title those assets into the name of the heirs. Think about it for minute. Person X owns a house, titled in their name. Person X creates a last will and testament that says upon his death he wants his house to go to his son, Y.
Well, after Person X dies, the house is still in the name of Person X. Person Y has a copy of the will that says he is supposed to receive the house. But if Person Y goes to the county clerk to change the deed, he will be unable to change the deed from X to Y.
A deed has to be signed and notarized by the seller/grantor. If the seller/grantor is dead, how can they sign a deed? They cannot.
But Person Y has a copy of the will, you might say. Why can’t the County Clerk just read the will and change the deed? Because the county clerk is not the seller/grantor and cannot sign a deed on the seller/grantor’s behalf. Only a Judge can make a legal ruling that changes ownership of an asset, such as real estate, from one owner to another. Therefore, Person Y must go to court to initiate a legal process where the judge can review the will and distribute assets.
How long does probate take?
The length of a probate can really vary. The big factors are how many assets the deceased person left behind, whether the deceased person had a will, and how many family members are involved.
Typically, a very simple probate case will take about at least a year, more or less. Some probates might not take more than six months, but these are usually cases with very few people and very few assets. Other cases might take much longer, because of the amount of assets that must be accounted for, and then other cases can have disputes among family members that significantly prolong the case.
Some probate cases will involve disputes among family members over who gets what, or even disagreements as to should be in charge of administering the estate during the probate case. In some cases, family members will contest a will as being fake or forged. When this happens, these cases can go on for year.
All of these disagreements will not only delay the process, but will also increase the legal expenses to each family member involved, as well as to the estate itself. In fact, in some cases, all of the fighting actually depletes the value of the estate so that once the fighting is over, there is significantly less wealth to be distributed.
For these reasons, we highly recommend avoiding probate altogether by designing a thorough estate plan that circumvents the probate process. If you want to learn more, contact us to schedule a 15-minute discovery call.
Is probate necessary if a person had a will before they died?
Whether a person died with a Will, or without a Will, the family of the deceased will still have to go to probate court to distribute the assets. The benefit of having a will is that the judge will have clear instructions on how to distribute the assets. However, if a person did not have a will, then the judge will follow a set of default rules (called the laws of intestacy).
When a person dies with or without a will, all of their assets will remain titled in their name until a judge authorizes the personal representative to change the title. Therefore, probate is always required, even when a person hired a lawyer to prepare a valid last will and testament. However, probate can be avoided, and we highly recommend taking such an approach.
But before we explain how to avoid probate, we first want to break it down step by step what exactly happens in a probate. We believe that the more you understand about what goes on in a probate case, the more likely you will want to do everything in your power to not put your spouse, children, or loved ones through it.
Therefore, please continue on to our next article, which explains the Oklahoma probate process step-by-step.