Questions Frequently Asked About Probate And Estate Planning In Oklahoma
I am attorney Cody Allen Thomas, and I have been helping individuals and families throughout northeastern Oklahoma and northwestern Arkansas with their estate planning and probate matters since 2011. Here are brief answers to questions I frequently hear at my law firm.
What Is Probate?
Probate is the legal process of distributing a person’s property, or “estate,” and paying their final taxes and certain debts when they die. There are many steps involved in probating an estate. The process starts with determining whether the deceased had a will or established a trust. The court appoints a personal representative and provides a timeline for locating possible heirs, sending notices to family members and other interested parties – such as creditors – inventorying assets and paying taxes and outstanding debts. If a person has a valid will, distribution of their property upon their death will be according to their will’s instructions.
If there was no will, and no named beneficiaries, the probate property is subject to distribution according to Oklahoma’s laws of descent and distribution.
Do We Need A Personal Representative For The Probate Process?
Yes. A personal representative performs an essential role in the probate process. If the deceased did not have a will, the court appoints a personal representative who is sometimes, but not always, a family member. The personal representative is responsible for completing critical legal duties, some of which include notifications, asset and debt inventory, before distributing the deceased’s property.
Does All Property Go Through Probate?
No. When a person names a beneficiary for their property, such as through a trust, it becomes nonprobate property. Examples of other nonprobate property include:
- Life insurance
- 401(k) retirement accounts
- POD (pay on death) bank accounts
- TOD (transfer on death) securities
- Joint tenancy real estate holdings
Nonprobate property is not subject to the probate court.
Can We Speed Up The Probate Process If There Is No Will?
The district court’s timeline for probate will vary from person to person. Generally, probate can run anywhere between six and 12 months; however, it is often longer. Working with an experienced probate attorney can facilitate meeting the court’s timelines.
What About Filing A Small Estates Affidavit?
Probate may be avoided by filing a Small Estates Affidavit. This process helps those who are contending with an estate comprising personal property valued less than $50,000.
Should I Create An Estate Plan?
Yes, and the sooner, the better. Some mistakenly think that only older retired couples with multiple real estate holdings should create estate plans.
What Documents Are Part Of An Estate Plan?
Comprehensive estate planning includes important legal instruments such as:
- Wills – Express your choice of the personal representative and beneficiaries for your legacy.
- Trusts – Safeguard your legacy by appointing a trustee to handle transferring your probate and nonprobate property outside of probate court.
- Advanced directives for health care – Also known as a living will, you can name someone you trust to ensure your preferences for end of life medical care and treatment are followed in the event you are unable to do so while you are alive.
- Durable powers of attorney – Assign someone you trust the legal authority to sign documents and otherwise act on your behalf if you cannot do so on your own while alive.
Can I Update My Estate Plan Once It Is Established?
Yes. It is a good idea to review your estate plan from time to time. Estate plan updates may be necessary following significant life events such as divorce, death of a family member or the purchase or sale of a home.
Do We Have To Hire A Lawyer?
With so many legal forms available on the internet many people ask whether they actually need to hire a lawyer for probate or estate planning. Working with an experienced estate planning and probate lawyer can alleviate the frustration of missing a step in the probate process or wondering if your estate planning documents will stand up to the test of time and court scrutiny when the time comes. Some estates will involve the transfer or sale of real property. The services of an experienced title opinion attorney will be necessary to ensure a clear title.
Call Cody Allen Thomas, Esq., Attorney at Law, at 918-771-7028 for legal counsel about estate planning or if you are seeking a probate attorney. You can also reach out to me online to schedule a consultation.