This article continues our series on the probate process in Oklahoma. In the last article, we explained that the probate process is required in order to transfer title of the assets from the name of the deceased to the name of the heirs inheriting the assets.
Of course, not all assets must go through probate. It is possible to title assets in a way that avoids probate. Sometimes this can be done with joint tenancy or pay-on-death designations, and it can also be done with more thorough estate plans that utilize trusts. If you are interested in designing a plan that avoids probate, we suggest you contact us to schedule a 15-minute introductory call.
After reading this article, you will see what exactly your family would go through if you died with a typical estate plan (i.e. a standard Will) or no plan.
Table of Contents
- The first step is determining if there is a will
- Next, file the probate action and appoint a Personal Representative
- Publish notice to creditors
- Accounting and Inventorying of the Assets
- Resolve any disputes and distribute the assets of the Estate
The first step in the probate process is determining if there is a will
When you die, the first thing your surviving family members must do is figure out if you had a will or not. If you had a will, then your survivors will know who gets what. If you didn’t have a will, then the State of Oklahoma will decide who gets what.
If you die without a will, then a judge will determine how your assets are distributed according to the state’s “default” rules. However, even if you have a will at the time of your death, your heirs will still have to go to court, except now they have a set of instructions to hand to the judge.
Will or no will, your family must go to court. Even if you have a trust, a probate action will still be filed. The difference, however, is that thorough estate plans (like the ones we design) will make the probate action quick and painless, as almost everything will be distributed outside of probate, with the probate action being more of a ritual formality. You can learn more about that in our article explaining how to avoid probate.
So all estates must file a probate action. Each stage of the process is described below. Estates with properly executed and well prepared estate plans will be able to fly through these steps (and sometimes avoid them altogether). Estates that are large and with many assets will have an extended probate process if no advance planning was taken.
Next, file the probate action and appoint a Personal Representative
Next, your survivors will have to file a probate action and go through a series of initial procedures, including publishing notice of the probate in the newspaper. . Someone will have to be appointed as the Personal Representative of the estate. If you had a will, then you would have already chosen this person and any back-ups in case they didn’t want to serve. But if you die without a Will, then this is just the first of many opportunities for family conflict. One or more persons will come forward and ask to be appointed. If there is an agreement, great. But if there is disagreement, then the judge may hold multiple hearings to decide who should be the personal representative.
What exactly is the personal representative? It is the person who is put in charge of managing the administration of the estate. The P.R., sometimes called an executor, will be given authority to sell assets, withdraw money from accounts, and transfer titles. They will also have responsibility for maintaining an accurate accounting of the estate, and dividing it up according to the will or, if there is no will, according to the state’s default plan.
The personal representative will have a lot of work to do, and a lot of responsibility. Depending on the size of the estate, the administrative work could become the equivalent of a part-time or full-time job.
It is not uncommon for family members to fight with the personal representative’s decisions and choices. But an often-overlooked facet of estate administration is this: the inconvenience of it! Even if your family is not in disagreement or conflict over administration of estate, just dealing with it is a lot of work.
Remember that the next time you decide to put off your estate planning. Are you too busy? Well guess what, when you die, your children will be just as, if not more, busier than you are now, and they will have to deal with accounting, inventorying, appraising, selling, and administering your estate.
Think estate planning is too costly? Guess what. You can spend (i.e. invest) a little money now, on preventative medicine (i.e. an estate plan that avoids probate) or you can pay for it later. Because that is likely how your family will pay for the lawyers and court costs to handle the probate: out of the estate. Which means that the money you leave behind will first go toward probate lawyers and whatever is left over will go to your children, family or loved ones. Something to think about….
Moving on, let’s talk about the next step. once the P.R. is appointed, the next step is publishing notice to your creditors.
Publishing the Notice to Creditors
That’s right, we are going back to the newspaper. This time for the explicit purpose of inviting your creditors, and anyone else who thinks you owe them money, to file a claim in the probate lawsuit. Your personal representative will be responsible for determining the validity of the claim. Like everything else in litigation, these matters can be contested and drag on. Your P.R. may choose to pay claims, or contest them. But contesting them will have a cost, too. Just keep that in mind.
This is another unpleasant reality of probate: inviting creditors to make claims and having to share with them the amount of wealth inside the estate. This is yet another reason to avoid probate.
The Personal Representative must file an Accounting and Inventory of Assets
After the P.R. has published the notice to creditors, they must then start taking an inventory of the estate. They will eventually have to file a full accounting and inventory of every item with the court prior to the final distribution, (though this requirement can be waived if all heirs agree and sign off).
Now, this is actually the part where you need to really pay attention. The State of Oklahoma has over $1 billion in the unclaimed property fund. What is unclaimed property? It’s basically money belonging to dead people, but neither the bank nor the government know how to contact the remaining family members. Therefore, the bank turns the money over to the state, and the state waits for the family members to file a claim.
Do you think that fund gets larger or smaller each year?
Unfortunately, the funds is always growing, because people who die without estate plans will seemingly always have bank accounts unknown to their surviving family. And those bank accounts will get lost and will eventually go to the State. Even people with traditional estate plans will lose property to the state. Why? Because the traditional estate plan offered by most attorneys does not include an inventory and most attorneys do not regularly meet with their clients to update the plan. Therefore, the effectiveness of most estate plans tend to erode with the passage of time.
In a probate case, the personal representative will be responsible for digging through your records and compiling a list of all of your assets. That means all of your vehicle titles, bank accounts, retirement accounts, stocks bonds, LLC’s, contracts, leases, accounts receivable, and all real estate in whatever county or state or international location it may be.
If you left behind an up-to-date inventory, like the ones we include in our estate plans, this is not a difficult task. But if you didn’t, just think about how hard of a job this could be. Many spouses don’t even know all of the bank accounts of the other spouse. And the digital era has made this task even more difficult.
Once upon a time, a personal representative could simply wait 60 days for all mail to arrive. Bank statements, mortgage statements, letters, tax notices, etc. But these days, so much of our financial data is stored in the cloud or in our email inbox. And if you didn’t leave clear instructions on how to access those digital platforms, well, let’s just say your personal representative will have a heck of a time getting access, even with a court order.
Resolve any disputes and distribute the estate
If the accounting and the inventory weren’t enough, now your personal representative must resolve any disputes that may remain. These could be disputes over the administrative work, criticism’s of the P.R.’s handling of the estate, or contests to the will itself. Regardless, the estate cannot be distributed until all outstanding motions and disputes are resolved.
Once all issues have been resolved and the inventory has been filed, the P.R. must ask the court to distribute the estate. And that is where the judge rules on what percentages each heir shall take, whether according the directions of the will or according the state’s default rules.
In order to distribute the estate, the P.R. will likely sell everything, put it into one bank account, and then cut checks out of that account to each of the heirs. Unless, of course, you have an estate plan that covers this and provides an alternative means of distribution.
Schedule a consultation with Oklahoma City probate lawyer Travis Charles Smith
Hopefully this article was informative. You now should have a better understanding of what a probate lawsuit is, and how it works. If you would like to find out more about what steps you can take to keep your family out of court, out of conflict, then contact us to schedule a 15-minute discovery call. On this call, we will ask some basic intake questions, and you will then realize whether you want to schedule an estate planning consultation or not.
If you are the spouse or heir of a deceased person, and you need to file a probate, then you contact us to schedule a consultation. In our initial consultation, we will discuss the estate, your relation to it, the heirs and individuals involved and what will need to be done to administer the estate.
How to Keep Your Family Out of Probate — Starting Now!
If you’re working through this probate guide, you already know the truth: the process is slow, public, and often brutally stressful for families. The good news? With the right estate-planning choices, most—or all—of it can be avoided. My newsletter breaks down practical strategies Oklahomans can use to keep their estates out of court and in their family’s control. Clear explanations, real examples, and no legal jargon meant to confuse you. Contact us to learn more.