Real estate has deeds and vehicles have titles. Typically the way these types of property are transferred to a new owner is by the present owner signing a deed, title, or bill of sale to the new owner. What do you do if the present owner is deceased? The present owner can not sign the deed or title so who can? The short answer is no one can sign for the deceased owner, but a Judge can enter an order to transfer the property. The process of obtaining the Judge’s order transferring the property is commonly referred to as probate. (There are legal tools that can transfer title after one person dies, so check out other articles on our website to learn more about these legal documents that avoid probate.)
Technically probate is the process when the deceased person left a Last Will and Testament, or commonly called a Will. If the deceased person had no Will then the process is called administration. Both processes take place through the same court in Oklahoma and are both commonly referred to as probate. The only real difference is that in a probate the will of the decedent controls who gets the net estate, and in an administration Oklahoma law determines who gets the property.
The probate/administration process is not as simple as asking a Judge to write an order transferring the property from the deceased person’s estate. (Instead of writing probate/administration each time, from here on out the process will be referred to as probate whether it is an administration or a probate.) The law wants to be sure everything is handled above board and fair. This process attempts to make sure the rightful person or persons receive the property they are entitled after payment of creditors.
The process begins when someone files a petition with the probate court. The hearing will take place no sooner than 10 days and no later than 30 days from the filing of the beginning document (called a petition). The reason for the delay is so that all the heirs and all the people named in a will can be notified of the first hearing. If an heir is not named in the will, or an heir thinks the will is not legitimate, then they will have an opportunity to contest the will at the first hearing under Oklahoma Probate law.
At the first hearing the Judge will usually decide two important issues, first did the decedent leave a valid will and second who should be put in charge of the estate? The person placed in charge of handling the decedent’s estate is called the Personal Representative. If there is a will that person is also known as the executor (if male) or executrix (if female). If the decedent did not leave a valid will then the person in charge of the estate is called the administrator or can be referred to as an administratrix if the person is female. For simplicity and inclusiveness whether there is a will or not and regardless of the sex of the person, the term Personal Representative covers all the options.
In order to be the Personal Representative the Judge considers who is named in the will or if no will then who the law presumes is the first choice. The Judge also considers if the person wants to server and if there are any circumstances that might disqualify them. Some disqualifying events are found at 85 OS §102, such as if the person is a minor, incompetent, or “Convicted of an infamous crime”. When the Judge appoints a person as personal representative, they take an oath to faithfully carry out the duties of the position and the Judge issues them documents showing their authority for the estate called either Letters Testamentary (for an estate with a valid will) or Letters of Administration (when no valid will exists). With this document the personal representative can prove they have authority to work with the property left in the decedent’s name.
The first two important issues the personal representative has to decide is what property was left in the name of the deceased, and who did the deceased owe money? Typically notice to creditors will be published in the local newspaper and mailed to all the known creditors. The creditors will then have a deadline to submit their claims for payment or potentially lose their right to be paid. Sometimes a probate may be filed even when there are not assets to transfer, just to establish the deadline for creditors to file a claim. (Typically this happens when the deceased person left assets that passed outside of probate. Those assets can still be liable for amounts owed creditors under 84 OS §230.)
A personal representative will prepare an inventory of all the assets left in the name of the deceased and file the document with the court unless other procedures are followed to waive the requirement of filing an inventory. Once the inventory is completed and the creditor deadline has passed, the Judge can see what is present and what is owed. If the estate has real or personal property, but does not have enough cash to pay the legitimate creditor claims, then something may need to be sold to raise the cash to pay the creditors before the estate can be finalized. There are processes that need to be followed to correctly sell an asset in a probate.
When all the assets have been discovered and all the creditors paid, then the estate is ready to be distributed. A final hearing is scheduled and proper notice is given. At the final hearing the Judge will review the facts of the probate, the assets, and determine who is lawfully entitled to receive each item of the estate. Finally the order distributing the assets (or transferring the assets) of the deceased to the new rightful owners is signed and filed. This is the end of the probate, well almost. The Personal Representative will need to get receipts signed by everyone who was awarded property showing they actually received what they were supposed to get. Once the personal representative submits all the receipts to the Judge, then the Judge will sign an order discharging the personal representative and relieving them of all responsibility as personal representative.
This process can in theory take place as quickly as 3 months. Realistically if there are no disputes among the people involved it will more likely take between 6 to 9 months. If there are disputes among people involved, then the process can take years.
If the value of the property left in the decedent’s name does not exceed $50,000 then there are shortcuts that may allow a probate to be avoided altogether. Of course with estate planning prior to the person’s death, there are several options to avoid probate.
If you have more questions or need specific advice for your situation regarding Oklahoma Probate law, call our office to schedule an appointment.