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 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.
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.