What is probate?
Probate is the court-supervised process of settling the affairs of a deceased person, regardless of whether they died with or without a will. The probate process involves the following:
- Determination of the validity of the decedent’s will (if one exists)
- Identification of the decedent’s heirs-at-law (those entitled to receive the decedent’s property if there is no valid will)
- Collection and distribution of the decedent’s assets
- Settlement of the decedent’s debts
Is probate always required?
Probate is required to pass clear title to a decedent’s assets unless the decedent took steps to avoid the need for probate (e.g., titling assets in joint tenancy, placing assets in a trust, or designating a “pay on death” beneficiary for assets). Probate may be required to pass title to real property, bank or investment accounts, an interest in a business, and/or personal property. It is not uncommon for some of the decedent’s assets to pass outside of the probate process (e.g., a jointly titled bank account), and for the probate process to be necessary to pass title to other assets (e.g., a house in the decedent’s name only). Under certain circumstances (e.g., estates with net value of the estate is less than $50,000), it may be a possible to obtain possession of the decedent’s personal property without the need for probate.
What happens to a decedent’s assets if they died without a will?
Assuming the assets are subject to probate (i.e., not held in a trust, not titled in joint tenancy or not with a “pay on death” beneficiary designated”), Oklahoma law determines how the assets will be distributed (See Appendix 2).
Who is responsible for a decedent’s assets and liabilities after their death?
The person responsible for the decedent’s affairs is appointed by a court and is called the estate’s personal representative. The term “personal representative” has generally replaced the gender and situation-specific terms “administrator,” “administratrix,” “executor,” and “executrix.” The personal representative is charged with administering the estate according to Oklahoma law. Their duties include, but are not necessarily limited to:
- Identifying, protecting and preserving the estate’s assets
- Accounting for all estate funds handled during the probate process
- Collecting debts owed to the decedent
- Determining the decedent’s creditors and paying the decedent’s debts (if approved by the court for payment)
- Filing the decedent’s and/or the estate’s tax returns and paying any taxes owed
- Distributing the estate’s assets to those entitled according to the decedent’s will (if any) or Oklahoma law
A will usually names the person(s) to act as personal representative for the estate. Absent exceptional circumstances, the court will appoint the person named . If the decedent did not have a valid will or the person named as personal representative in the will is unwilling or unable to serve, Oklahoma law prescribes that preference for the duty be given to the following (in order):
- Surviving spouse (or some competent person whom he or she may designate)
- Next of kin
Who is in charge until a personal representative is appointed?
No person has legal authority to act on behalf of the estate until appointed by the court . As a practical matter, the decedent’s next-of-kin often take action to secure the assets of the estate and advance certain expenses (e.g., funeral expenses) prior to being appointed personal representative by a court. A special administrator with specific limited powers can be appointed if it is necessary to protect the estate’s assets from waste or other loss. A special administrator so appointed will serve only until a personal representative (who may be the same person) is appointed by the court .
Assets that are owned by a trust that are titled in joint tenancy and assets with a designated pay-on-death beneficiary are not part of the decedent’s probate estate. The trustee, surviving joint tenant, or beneficiary, as the case may be, should generally have immediate access to such assets upon proof of the death of the decedent (e.g., a death certificate).
Is a personal representative paid for their services?
Although many do not accept payment a personal representative is entitled by law to be paid from the assets of the estate. Oklahoma law provides that the personal representative is to be paid a fee calculated as a percentage of the value of the estate’s assets (regardless of debts). The fee is based on a sliding scale but generally amounts to approximately 2 1/2% of the value of the estate’s assets (regardless of debts).
Any fee paid to the personal representative is taxable income. If the personal representative is also the primary beneficiary of the estate, it would be tax-wise for them to waive the fee and avoid converting non-taxable inheritance into taxable income. In addition, a personal representative is entitled to be reimbursed from the estate for amounts they advance for estate expenses.
What happens during probate?
A probate action begins with the filing of a petition for probate with the appropriate court. If the decedent was an Oklahoma resident, the district court in the county where the decedent was a resident, otherwise, in any county where any part of the decedent’s estate is located. The petition will set out the following facts:
- Date of death
- Decedent’s last address
- Date of decedent’s last will (if any) *original will to be attached to the petition
- Name of the person (or people) asking to be named personal representative(s)
- Names, ages and addresses of the decedent’s heirs-at-law
- Names, ages and addresses of anyone else named in the will (if any)
Although the process differs somewhat depending on the specific type of probate procedure being used, the most typical procedure is that the court will set a date and time to hear the petition and determine if the will (if any) will be admitted to probate and who will be appointed as the estate’s personal representative(s). Notice of the filing of the petition and the date and time for the hearing must be given by mail to all heirs-at-law of the decedent and to anyone else named in the will (if any). The notice must also be published in a newspaper in the county where the proceedings are being held.
After appointment by the court, the personal representative is responsible for giving written notice to all known creditors of the decedent of the deadline to file a claim with the estate. The amount of time given to creditors to file a claim with the estate is set by statute and varies depending on the particular probate proceeding being used. The notice to creditors must also be published in a newspaper in the county where the proceedings are being held. Creditors failing to file a timely claim (or failing to timely file suit if their claim is denied) are prohibited, with some exceptions, from ever collecting on the claimed debt. Some creditors of the decedent are entitled to be paid regardless of whether or not they file a claim. For example: taxing authorities, providers of funeral services, mortgage holders (to the extent of their secured claim), etc.
It may be necessary during the administration of the estate to sell some or all of the decedent’s assets in order to pay creditors and/or costs of administration. The process of selling assets is court-supervised and subject to court approval in most cases. Towards the end of the probate process, the personal representative will file with the court a final accounting of all activity that has occurred during the administration of the estate. In addition, the personal representative will file a petition setting forth the proposed distribution of the estate’s remaining assets. The final step in the probate process is the entry by the court of an order approving the personal representative’s final accounting and directing the distribution of the estate’s remaining assets. It may be prudent to have the estate’s real property appraised in order to establish the cost basis of the property at the time it is distributed from the estate.
How long does probate take?
Depending on the particular probate procedure being used, most probates take between three and nine months to administer. There are many factors (e.g, the nature and extent of the decedent’s assets, disputes over the validity of the decedent’s will, disputes between the decedent’s heirs-at-law over the handling of the estate) that can cause a probate to last much longer.
Who pays the costs of probate?
All necessary costs of probate, including legal fees, are payable from the assets of the estate. However, all expenditures of estate funds are subject to court approval and no payments should be made without consulting a competent probate attorney. In addition, Oklahoma law specifies which debts of the decedent and the estate receive priority for payment if the estate is insolvent. The personal representative could be personally liable for any improper payments from the estate’s assets. Consultation of a competent probate attorney can prevent the mishandling of estate funds and ensure proper procedures are followed.
Will the decedent’s assets (e.g, real property, minerals, household goods) be sold during probate?
As a general rule, an estate’s assets are only sold during probate if doing so is necessary to raise sufficient cash to pay the decedent’s debts and the costs of probate administration or if the decedent’s will specifically directs a sale. Assets that are not sold will be distributed pursuant to the decedent’s will (if any) or pursuant to Oklahoma law.
What happens if those receiving property from an estate are minors?
A decedent’s will, if they had one, may direct that any assets distributed from the estate to someone under a specific age (e.g., 25 years) are to be held in trust for the benefit of that person until they reach the specified age. A trust created in a will is called a testamentary trust and the provisions will normally include naming a trustee(s). In addition, a will may direct that assets be distributed to a custodian for the benefit of a minor under the Oklahoma Uniform Transfers to Minors Act. The Uniform Transfers to Minors Act establishes the way in which the custodian must manage and account for the minor’s property until it is distributed when the minor attains 18 (or in some cases 21) years of age.
If the decedent had no will or if their will does not contain a testamentary trust or Uniform Transfers to Minors Act provisions, Oklahoma law provides that the assets are to be distributed to the legally appointed guardian for the minor (note that the guardian must be court-appointed, not simply the minor’s parent). Even in the absence of a will that references the Uniform Transfers to Minors Act, it may be possible in some cases for the personal representative to distribute the assets to a custodian under the Uniform Transfers to Minors Act instead of requiring that a legal guardian be appointed to accept the distribution on the minor’s behalf.
What if the decedent owned property in other states?
The answer depends on whether the property is personal property (e.g., cash, household goods, stocks) or real property (e.g., house, minerals, rental property). As a general rule, personal property is subject to the control and disposition of the personal representative appointed in a probate proceeding in the state where the decedent was a resident, regardless of where the personal property is located. With respect to real property, the general rule is that only a probate proceeding held in the state where the real property is located can affect the ownership of that property. As a result, if a decedent died owning real property in a state other than the state of their residence it is likely that probate proceedings will be required in more than one state to administer the decedent’s estate. Many states have an accelerated probate procedure when probate has already been conducted in the state where the decedent was a resident .
What happens if the decedent’s will is challenged?
The most common challenges to a decedent’s will include:
- The will is not an original
- The will was not drafted or executed according to the formalities required by law
- The decedent was unduly influenced
- The decedent lacked capacity at the time he or she signed the will
If a will is challenged by a person with standing to bring the challenge (e.g., someone who stands to benefit from a successful challenge to the will), the probate court will place the matter on its contested probate docket and the case will proceed on a similar procedural track as other civil litigation (e.g., discovery may be conducted, motions may be filed). The court will likely appoint a special administrator to manage the affairs of the estate until the challenge to the will is resolved.
What if an heir is left out of a decedent’s will?
Under Oklahoma law, a testator (the person making a will) may, with an important exception, disinherit one or more of their heirs. The exception is the testator’s surviving spouse, who may not be effectively disinherited with respect to the surviving spouse’s one-half (1/2) interest in the couple’s marital assets (so long as the spouse takes action to enforce his or her rights during the probate proceeding). In addition, a surviving spouse will have certain rights with respect to the couple’s homestead and other assets of the estate regardless of the provisions of the decedent’s will. It is important to note that when a testator simply fails to mention a child (or grandchild if child predeceased the testator) in their will (as opposed to at least acknowledging them by name), Oklahoma law assumes that the testator failed to provide for that child or grandchild by mistake. Under these circumstances, the unmentioned child or grandchild will be entitled to the same share of the estate as if the decedent had died without a will.
Do the decedent’s spouse and descendants have a right to support during probate?
The surviving spouse and/or minor children may continue to possess and occupy the descendant’s homestead during and after probate. In addition, certain assets of the decedent must be delivered to the surviving spouse and child or children outside of the probate process (e.g., family pictures, burial lots, clothing, one year of fuel and supplies, household goods, all assets exempt from creditors under Oklahoma law). During probate the court may also require that the personal representative pay a monthly allowance out of the estate if necessary for the maintenance of the family.
What about a decedent’s tax returns?
The person in charge of the decedent’s assets is referred to by the IRS as the personal representative, whether court-appointed or just the person in actual or constructive possession of any assets of the decedent. The personal representative is personally responsible (and liable) for filing the decedent’s final tax return and paying any taxes due on behalf of the decedent. The personal representative should:
- Apply for an employer identification number (EIN) for the decedent’s estate
- File all tax returns, including income, estate and gift tax returns, when due
- Pay the tax owed up to the date they are discharged from their duties
There are two basic types of tax returns that a personal representative may be responsible for filing:
- Income tax returns
- Estate tax returns
Income tax returns are for reporting income received by a decedent prior to his or her death (individual regular and final income tax returns) and for reporting income received by the estate after death (an estate income tax return). An estate tax return (as distinguished from an estate income tax return) is for reporting taxes due on the value of the property owned by a person at the time of his or her death.
The personal representative must file the final income tax return (federal Form 1040 and corresponding state form) of the decedent for the year of death (and any returns not filed in preceding years). If an individual died after the close of the tax year, but before the return for that tax year was filed, the return will not be the decedent’s final return and the personal representative must file that return as a regular return. For example, if the decedent died on March 15, 2022 and prior to filing his or her 2021 tax return, the personal representative will file the 2021 tax return as a regular return by its regular due date (April 15, 2022). The time period for the decedent’s final return would then be from January 1, 2022 to March 15, 2022 (date of death), and would be due on April 15, 2023.
An estate is a separate taxable entity from the decedent. For tax purposes, the estate comes into being at the time of the death of the decedent. The estate exists as a taxable entity until the final distribution of the estate’s assets. Every estate with gross income of $600 (as of 2022) or more during a tax year must file federal Form 1041 and the corresponding state form. The personal representative must obtain the taxpayer identification number (e.g., social security number) of each beneficiary of the estate and issue a separate Schedule K-1 to each beneficiary for their share of the income (or loss) of the estate. The income tax liability of an estate attaches to the assets of the estate. The income of the estate is taxed to either the estate or the beneficiary, but not both. If the income is distributed during the current tax year, the income is reportable by each beneficiary on his or her individual income tax return (the beneficiary’s Schedule K-1 from the estate’s Form 1041 will show what is reportable by the beneficiary on their individual income tax return). If the income is not distributed but is retained by the estate, the income tax is payable by the estate. If the estate does not pay the taxes and later distributes the income, the beneficiary can be liable for the tax due (up to the value of the estate assets received by that beneficiary).
Generally, if a decedent’s estate is insufficient to pay all the decedent’s debts, the debts due to the United States (taxes owed at the time of death and the estate’s income tax liability) must be paid first. The personal representative is personally liable for any tax liability of the decedent or of the estate if he or she had notice of the tax obligation or failed to exercise due care in determining if such obligation existed before distribution of the estate’s assets. The IRS normally has three years from the date an income tax return is filed, or its due date, whichever is later, to charge any additional tax due. However, a personal representative may request prompt assessment of tax after the return has been filed (use Form 4810). This reduces the time for making the assessment to 18 months from the date of the request for prompt assessment. This may permit a quicker settlement of the tax liability of the estate and an earlier distribution of the assets to the beneficiaries. In addition, an appointed personal representative may request a discharge from personal liability for a decedent’s income, gift, and estate taxes (use Form 5495). Within nine months after the receipt of this request, the IRS must notify the personal representative of the amount of taxes due or the personal representative will be discharged from personal liability.
Tax matters for an estate can be complex and those responsible for handling them should consult a qualified tax professional for help. The information in this publication is general in nature and should not be relied upon as tax advice.
Will the decedent owe estate taxes?
In addition to income tax liability, an estate may owe taxes on the property owned by the decedent at the time of his or her death. Oklahoma has eliminated its estate tax for estates of decedents dying in 2010 or later. With respect to federal estate taxes, the following table lists the exclusion amount (the amount that may pass free of federal estate tax) for estates of decedents dying after 2001. If an estate tax return is due, it must be filed within nine months of the decedent’s death.
Year of Death Estate Tax Exemption
2002 and 2003 $1,000,000
2004 and 2005 $1,500,000
2006, 2007, and 2008 $2,000,000
2010 and 2011 $5,000,000
Some gifts given during the decedent’s lifetime (if they exceed the annual exclusion amount for the year given) may be included in the estate’s value for purposes of determining the filing requirement. In other words, gifts given that exceed the annual exclusion amount in the year given could count against the estate tax exemption amounts shown above. However, there are usually no estate tax implications for gifts given to a spouse or charity. The following table lists the annual exclusion amount for gifts. Keep in mind that the exclusion amount is per donor/per donee.
Year Annual Gift Exclusion
1997 to 2001 $10,000
2002 to 2005 $11,000
2006 to 2008 $12,000
2009 to 2012 $13,000
2014 to 2017 $14,000
2018 to 2021 $15,000
The estate tax does not apply to the value of any property that goes to a spouse or charity at death. Generally, the person who receives a gift or inheritance from an estate will not have to pay any tax based on the value of the property (the tax liability, if any, is on the donor and/or estate, not the recipient of the property). In addition, beginning in 2011, a predeceased spouse’s unused estate tax exemption amount (the difference between the value of the taxable estate and the amount of the exemption in the table above) may be added to the exemption amount of the surviving spouse. This is known as “portability” of the estate tax exemption and with the proper planning allows a married couple to get the full benefit of both spouse’s estate tax exemption amount. It is necessary to timely file an election with the IRS for the surviving spouse to claim the unused exemption of the deceased spouse.
Tax matters for an estate can be complex and those responsible for handling them should consult a qualified tax professional for help. The information in this publication is general in nature and should not be relied upon as tax advice.
Appendix 1- Definitions
Administrator: A male individual appointed by a court to administer the estate of a person who dies without a valid will. Also referred to as a “personal representative.”
Administrator (Administratrix) with Will Annexed: An individual appointed by a court to administer the estate of a person who dies with a valid will, but the individual so appointed is not the person named in the will to serve. Also referred to as a “personal representative.”
Administratrix: A female individual appointed by a court to administer the estate of a person who dies without a valid will. Also referred to as a “personal representative.”
Ancillary Probate: A probate proceedings held in a state other than the state of the decedent’s domicile, usually to clear title to real property owned by the decedent in the non-domiciliary state.
Devisee: A person designated in a will to receive real property (e.g., a house).
Domiciliary Probate: A probate proceedings held in the state of the decedent’s domicile.
Estate: Everything that a person owns or owes at the time of their death. May include “probate assets” (i.e., those assets subject to the probate process) and “non-probate assets” (i.e., those assets not subject to the probate process) depending on the context in which the term is used.
Executor: A male individual appointed by a court to administer the estate of a person who dies with a valid will. Also referred to as a “personal representative.”
Executrix: A female individual appointed by a court to administer the estate of a person who dies with a valid will. Also referred to as a “personal representative.”
Heir: A person entitled by law to receive the assets of a decedent who dies without a valid will. Also referred to as an “heir-at-law.” See Appendix 2 below to identify heirs under Oklahoma law.
Intestate: The status of a decedent that dies without a valid will.
Legatee: A person designated in a will to receive personal property (e.g., money or household goods).
Letters of Administration: Letters signed by the court and given to the person appointed by the court as the personal representative over the estate of a person that dies without a valid will. The Letters serve as evidence of the personal representative’s authority to act on behalf of the estate.
Letters of Special Administration: Letters signed by the court and given to the person appointed by the court as the estate’s special administrator. The Letters will normally include certain limitations on the powers of the special administrator to act on behalf of the estate.
Letters Testamentary: Letters signed by the court and given to the person appointed by the court as the personal representative over the estate of a person that dies with a valid will. The Letters serve as evidence of the personal representative’s authority to act on behalf of the estate.
Living Trust: A trust established during a person’s lifetime.
Personal Property: Any asset that is not considered Real Property.
Personal Representative: The person (there may be more than one) appointed by the court to be responsible for administering a decedent’s estate.
Pour Over Will: A will used in conjunction with a trust-based estate plan that leaves all of the decedent’s property to his/her trust. This type of will is only admitted to probate if the decedent died owning property that was not placed in his/her trust (usually due to an oversight on the part of the decedent or his/her advisors).
Real Property: Property that requires a deed to be filed in the county clerk’s office to transfer ownership. For example, houses, farms, minerals, etc.
Special Administrator: The person (there may be more than one) appointed by the court to be responsible for administering a decedent’s estate until a regular administrator can be appointed. A special administrator is usually appointed on an emergency, interim basis and given limited powers until the person with the right to serve as the regular administrator is identified and appointed.
Testamentary Trust: A trust created by the terms of a will.
Testator: The maker of a will.
Testate: The status of a decedent that dies with a valid will.
Appendix 2 – Title 83 O.S. Section 213 (“Law of Intestate Succession”)
B. Beginning July 1, 1985, if any person having title to any estate not otherwise limited by any antenuptial marriage contract dies without disposing of the estate by will, such estate descends and shall be distributed in the following manner:
- If the decedent leaves a surviving spouse, the share of the estate passing to said spouse is:
- if there is no surviving issue, parent, brother or sister, the entire estate, or
- if there is no surviving issue but the decedent is survived by a parent or parents, brother or sister:
- all the property acquired by the joint industry of the husband and wife during coverture, and
- an undivided one-third (1/3) interest in the remaining estate, or
- if there are surviving issue, all of whom are also issue of the surviving spouse: an undivided one-half (1/2) interest in all the property of the estate whether acquired by the joint industry of the husband and wife during coverture or otherwise, or
- if there are surviving issue, one or more of whom are not also issue of the surviving spouse:
- an undivided one-half (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture, and
- an undivided equal part in the property of the decedent not acquired by the joint industry of the husband and wife during coverture with each of the living children of the decedent and the lawful issue of any deceased child by right of representation;
- The share of the estate not passing to the surviving spouse or if there is no surviving spouse, the estate is to be distributed as follows:
- in undivided equal shares to the surviving children of the decedent and issue of any deceased child of the decedent by right of representation, or
- if there is no surviving issue, to the surviving parent or parents of the decedent in undivided equal shares, or
- if there is no surviving issue nor parent, in undivided equal shares to the issue of parents by right of representation, or
- if there is no surviving issue, parent, nor issue of parents, but the decedent is survived by one or more grandparents or issue of any grandparent, half of the estate passes equally to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of any paternal grandparent if both paternal grandparents are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation and the other half passes to the maternal relatives in the same manner; but if the decedent is survived by one or more grandparents or issue of grandparents on only one side of the family, paternal or maternal, the entire estate shall pass to such survivors in the manner set forth in this subsection, or
- if there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to the next of kin in equal degree;
- If the decedent leaves no spouse, issue, parent, issue of parents, grandparent, issue of a grandparent, nor kindred, then the estate shall escheat to the state for the support of the common schools; and
- For the purpose of this section, the phrase “by right of representation” means the estate is to be divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one equal share and the equal share of each deceased person in the same degree being divided among his issue in the same manner. The word “issue” means lineal descendants.
Appendix 3 – Items Your Probate Attorney Will Need
- Last Will and Testament: Oklahoma law requires the original will to be offered for probate. The original will may be located where the decedent kept important documents, with a family, or with the attorney who drafted the will.
- Copies of decedent’s trust, if any (and any amendments thereto)
- Legal descriptions or copies of deeds to real property owned by the decedent
- Recent tax returns of the decedent
- Names and last known addresses for all of the decedent’s heirs-at-law and any others mentioned in the decedent’s will
- Initial inventory of decedent’s assets (will be supplemented as other assets are discovered during probate administration)
- Initial listing of decedent’s creditors (will be supplemented as other creditors are discovered during probate administration)
Appendix 4 – Possible Probate Assets
The personal representative of the decedent’s estate will be responsible for identifying and safeguarding all of the decedent’s assets. These assets could include the following:
- Bank accounts
- Securities and annuities
- Employee or retirement benefits, including IRAs
- Real estate
- Mineral interests
- Life insurance policies
- Recreational vehicles (RVs, boats, airplanes, golf carts)
- Personal property (household goods, jewelry, art work, collectibles)
- Business interests (partnership, limited liability company, corporations)
- Safety deposit box
- Notes (debts owed to the decedent)
Appendix 5 – Additional Resources
Social Security Administration
Veteran’s Administration – Benefits
Oklahoma Department of Public Safety
Oklahoma Department of Human Services
Credit reporting agencies
Oklahoma Tax Commission
Oklahoma State Department of Health
Phone: 405-271-5600; Toll Free: 1-800-522-0203
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