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THE PROBATE PROCESS

"Probate" is the name given to a portion of the judicial process which deals with determining the ownership of assets owned by a decedent at the time of their death. The word is derived from a Latin word meaning proof, since proving whether a decedent had a will, and whether that will is the most recent will, is a significant part of the process of determining the ownership of assets owned by the decedent.

In Oklahoma, the probate process includes filing a petition with the District Court to determine whether the decedent had a will and that the will is his last will and is valid. The personal representative is appointed, then proceeds to take inventory of the estate of the decedent. Appraisers are appointed to determine the value of the estate.

The process makes sure that the creditors of the decedent are paid, that the assets and income of the estate are accounted for, and that the proceeds are distributed to those entitled to receive them. The probate process also ensures that federal, state and local taxes are paid, and that income and estate and gift tax returns are filed, if appropriate.

The probate process may take from three months to a year and a half or longer, depending upon the provisions of the will, if any, the nature of the assets in the estate, the quality of title to the assets, and whether matters involved in the probate process are contested by any of the claimants. The focal point of the process is the personal representative. The personal representative is charged with the obligation of determining, assembling, describing, valuing, safeguarding, accounting for, and distributing the assets of the estate.

There are several special provisions which relate to a surviving spouse. Those provisions include a specific statute relating to disposition of certain property, an allowance to a surviving spouse during the probate process, and homestead rights.
Section 311 of Title 58 of the Oklahoma Statutes provides, in part, that:
. . .the following property must be immediately delivered by the executor or administrator to such surviving wife or husband, and child or children, and is not to be deemed assets, namely:

  • 1. All family pictures. . . .
  • 3. A lot or lots in any burial ground. . . .
  • 5. All wearing apparel and clothing of the decedent and his family. . . .
  • 7. All household and kitchen furniture, including stoves, beds, bedsteads and bedding. . . .

No such property shall be liable for any prior debts or claims whatever.

Section 311 applies to situations where there is a will and to situations where there is not a will; and this provision overrides any provision that may be contained in a will.

Section 314 of Title 58 of the Oklahoma Statutes provides for a widow's (or widower's) allowance to be provided to a surviving spouse and children. This allowance is available as a matter of right, but is permitted only at the discretion of the probate judge. The purpose is to provide for the surviving spouse during the time of the probate process when assets may be unavailable until the completion of the probate.

Section 311 of Title 58 of the Oklahoma Statutes specifically provides for homestead rights in the surviving spouse. This is a right, for the life of the surviving spouse, to use and occupy the real estate owned by the decedent and occupied as a homestead. This homestead right is available in all events, but is subject to the claims of any mortgage creditor. It generally comes into play when the title to the real estate is given by will or by operation of law to someone other than the surviving spouse. In such case, the title passes at the conclusion of the probate proceeding, but remains subject to the homestead right in the surviving spouse until the death of the surviving spouse, or until such time as the homestead right is abandoned.

The surviving spouse has a right of election under Title 84 Oklahoma Statutes, Section 44, by which the surviving spouse may choose to disclaim the provisions of the will, and take instead the share provided by statute. The statute provides that in such event, the surviving spouse is entitled to receive one-half of the property owned by the decedent that was jointly acquired during coverture, that is, acquired while the decedent and the surviving spouse were married.

Title 84 Oklahoma Statutes, Section 211, et seq. contains the rules relating to intestate succession. If there is no will or trust that fully disposes of a person's estate, the laws of intestate succession apply to determine the disposition of property. In such a case a person is said to have died intestate (without a will), or partially intestate (if a decedent disposes of part, but not all, of the property by will). The laws of intestate succession specify to whom property should pass, absent a contrary instruction by a decedent. Any specific instruction by a person must meet the statutory requirements in order to be given effect. Oral statements and informal writings are normally not sufficient.

Under Oklahoma law, for example, if the decedent is survived only by a spouse, then all of the estate goes to the spouse. If the decedent is survived by a spouse and issue of that spouse, then the spouse receives 2 of the entire estate, and the children, whether one or more, received 2 of the entire estate, to be shared by right of representation. The statute makes specific provision for other circumstances not described here.

The personal representative has a fiduciary obligation to the estate and to all its beneficiaries. This means that the personal representative must act always in the best interest of the estate and its beneficiaries, and may not act solely in the best interests of the personal representative. If the personal representative should fail to so act, the personal representative may be personally liable for such acts.

The personal representative should take great care to account for the assets, liabilities, income, and expense of the estate. Upon appointment, the personal representative should make sure that all assets are accounted for and, where appropriate, transferred to the name of the personal representative. Contact should be made with the creditors of the estate so that they may be notified of the death of the decedent and advised of arrangements for the payment of the decedent's obligations. All income of the estate, whether earned before or after the appointment of the personal representative, should be located, controlled, and placed in a separate bank account held in the name of the personal representative. Only proper expenses of the estate should be paid, and no distribution should be made to beneficiaries or to the personal representative without the specific order of the court.

A variety of tax returns must be prepared and filed by the personal representative. These include the income tax return for the year of decedent's death, and, if not yet filed, for the year preceding decedent's death (and all previous years). In addition, estate and gift tax returns may be due to the federal government or to the State of Oklahoma, depending upon the value of the estate of the decedent.

The personal representative will need to appear before the judge on at least two occasions. The first will be on hearing the petition admitting the will to probate or for the appointment of a personal representative. The second will be at the time of the final decree. Other appearances may be appropriate depending upon the circumstances of each estate.

Notice must be given to all known creditors of the estate. Known creditors include those of which the personal representative may have knowledge, and also includes those creditors who the personal representative can discover with reasonable diligence. Thus, the personal representative has an obligation to make sure that all the creditors are determined and notified of the death of the decedent.

You will receive additional information concerning the responsibilities of a personal representative, and regarding the information which you should furnish to the counsel for the personal representative in order that appropriate determinations can be made, documents prepared, and filings made.

If a decedent dies before April 15th of a year, then the decedent's income tax return for the preceding year must be prepared and filed. An estate tax return is due nine months after the date of death of decedent. The assets in the estate may be valued either at the date of death or to a date which is six months after the date of death. Either date may be selected, but the date selected must be used for all practically all assets of the estate.

Minimum Time to Complete a Regular Probate

10 days Obtain preliminary information, prepare petition and notices, file, obtain hearing date

10-30 days Hearing date, issue letters testamentary, Gather information for notice to creditors, file notice to creditors, mail notices, prepare and file inventory, appoint appraisers, file appraisal, prepare final account

60 days Time for creditors to file claims; file final account and petition for final decree

20-30 days Hearing on Petition to approve final account and for final decree of distribution

15 days Complete final distribution, obtain receipts prepare supplemental accounting, file request for discharge

20-30 days Hearing of request for discharge, final discharge of personal representative.

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135-175 days*

*This estimate assumes that there will be no delays in obtaining necessary information, or delays in filing federal and state income and estate tax returns or obtaining a release of the estate tax liens, and that there will be no extraordinary procedures such as contested hearings, or sales of assets, etc.