Probate and Estate Administration
PROBATE AND ESTAE ADMINISTRATION IN OKLAHOMA
Oklahoma City, Norman and Tulsa Probate Lawyer
There are two separate processes in Oklahoma for administering the estate of a decedent, and the process to be used depends on whether the decedent died with, or without, a valid will.
PROBATE – This is the legal process of administering a deceased person's estate who had a valid will at the time of death. The probate process involves validating the will, appointing an executor, identifying the heirs, providing notices to creditors, inventory and appraisal of all property, resolving all claims and debts against the estate, preparing and filing all tax returns and distributing the decedent's property according to his/her will.
ESTATE ADMINISTRATION – When a person dies without a will, they are considered "intestate." In the case of an intestate person, the legal process is called "estate administration." Estate administration involves the same processes set forth above for probate, except that validation of the will is not necessary because there is no will. Because there is no will setting forth how the decedent wants his/her property distributed, the property is distributed to the decedent's heirs at law. The decedent's heirs at law are determined by Oklahoma statute. Even though the separate processes are known by different names, they follow some very similar procedures.
When there is a will, the first thing the court does is review and determine the validity of the will. After the will is determined to be legally valid, the court appoints an executor or personal representative, who is responsible for ensuring that the will is administered correctly. The executor or personal representative has the duty to oversee and dispose of the decedent's assets in the manner that is set forth in the will, and in accordance with the law.
Probate and estate administration is a complex process including, but not limited to:
- Validation of the will by the court
- Appointment of the executor or personal representative
- Notification of creditors and publication of notices
- Notification to beneficiaries and publication of legal notices
- Resolution of creditor's claims, debts, pending lawsuits, claims in favor of or against the decedent
- Executors/personal representatives must inventory, appraise and apply to the court approval prior to distribution of property to beneficiaries
- Real estate may need to be sold to pay debts or correct the distribution of assets.
- Payment of estate taxes and filing tax returns as applicable (estate taxes, gift taxes and inheritance taxes)
- Transfer of non-probate items such as life insurance or financial accounts with "pay on death" designations
Litigation and Will Contests
When someone dies, a probate court will determine that a will is valid, it will appoint an executor or personal representative, the court will identify the assets of the deceased, determine how taxes and other incidental expenses are to be paid, and distribute the property among the legal heirs named in the will.
A will may be contested through the process of probate litigation. A will may be contested for many different reasons, such as:
- Claims of undue influence by a person who stands to benefit from the will
- Claims of improper witnessing, execution or notarization of the will
- Claims that the decedent was incompetent at the time the will was prepared
- Contesting the decedent's preference for guardianship of minor children
- The executor or personal representative breaching his/her fiduciary duty to the estate
- The executor or personal representative's failure to properly handle creditor's claims
- The executor or personal representative's failure to provide the heirs/beneficiaries with an inventory of the property
- Disputes over who should be appointed as personal representative
- Disputes over assets and property distribution
Wills and probate are considered important because they help avoid disputes among family members, they help beneficiaries arrive at an amicable solution, they ensure that all heirs benefit, they safeguard the decedent's wealth, they maximize the benefit of the property, and they resolve debts and tax liabilities of the deceased.
It's important to remember that it's not easy to deal with probate administration or probate litigation. There are a number of issues involved and if handled incorrectly, it can have a negative impact on family relationships. However, when all efforts of diplomacy have failed, probate litigation becomes inevitable and the situation demands the assistance of a qualified Oklahoma City probate litigation attorney.
Have you been named in a will or appointed by a court as an Executor of Personal Representative
The person appointment as an executor or personal representative owes fiduciary duties to the estate. There are many complex processes involved in administering an estate. Attempting to undertake this responsibility without the advice and counsel of an attorney could subject you to legal liability. Don't do this alone. Seek a competent attorney to guide you through the process.
Laws of Descent and Distribution
Under Oklahoma law, the statutes on decent and distribution determine who inherits property from an intestate decedent (person who dies without a will). In most cases, the surviving spouse receives all of the decedent's estate. However, if the decedent has children from another relationship (not the current spouse), then the surviving spouse takes one-half, and the surviving children divide the remaining one-half in equal shares. If a child has died before the decedent, and the deceased child is survived by a child or children, those grandchildren will receive equal shares of the portion of the estate that their parent would have received if living.