What is Probate?
What is Probate?
Probate is the legal process for distributing your possessions and real estate after death. The process provides for the payment of creditors, taxes, and distribution to the estate’s heirs and beneficiaries. This process is generally required to clear title to real estate located in Oklahoma for someone who has recently deceased. It is a long process (at least 3 months) that is full of statutory requirements. The exact length of the process can vary greatly depending on: (1) size/value of the estate, (2) whether or not there is a will (testate vs. intestate), (3) whether or not the probate/will is contested, and (4) the schedule of the court. Probate costs somewhere between $2,000 to $5,000 dollars but averages closer to the $3,000 mark. As a general matter, the process involves filing a petition, sending notices to interested parities and creditors, obtaining a final account (how you plan to distribute the property), and a final decree of disbursement (i.e. how the property is distributed).
Our attorneys never recommend probate if it can be avoided. See our article on avoiding probate to solve this risk before it becomes a burden to your loved ones. Should you have need of a probate, give us a call. We will be happy to provide you our legal expertise.
Types of Probate
Oklahoma Probate procedure is generally split into 3 main categories: (1) a full probate, (2) an ancillary (non-resident) probate, and (3) a small estate or summary probate. A full probate can delay closing upwards of 6 months. An ancillary probate can take as little as 10 weeks, but is only available for non-Oklahoma residents. A summary probate is only available to small estates (200K or less) and generally takes around 3 months.
A Full Probate is the standard procedure for estates of Oklahoma residents that are valued at more than $200,000 or if the estate is likely to be contested. The time and cost of probate can very depending on the underlying circumstances. Further, there are stringent guidelines for notice and other filing requirements. For a full probate, you are also more likely to have a series of hearings before a judge (as compared to the 1 of summary probate). Give our attorney a call for a consultation and quote.
NOTE: Named after its statute number, a 239 sale is a quick method to sale real property from the estate of a decedent. This statute and subsequent ones provides that a property can be sold by the administrator of an estate so long as (1) the heirs of the estate have been determined, (2) consent, of all of the heirs, to the sale of the property have been obtained, and (3) an application pursuant to 239 has been filed and approved by the judge. This procedure allows the property to be sold from the estate and allows closing to happen prior to a final decree. The estate must still be closed, even if the property was the only thing owned by the estate.
Ancillary Probate is used when the decedent owned property here, but did not reside within Oklahoma at the time of their death. This is a quicker process that a full fledged probate, but can only be used if the required documents can be obtained from another jurisdiction. Further, this process requires a probate to have already been completed in another jurisdiction. This is simply the process for applying that probate judgement to property located within Oklahoma. Generally, you have to obtain certified copies of the Will (if there was one) and the order approving that will and the Final Decree. Ancillary Probate is codified as 58 O.S. Section 677.
Summary Probate is perhaps the quickest method to probating an estate, but even this method takes at least 3 months. Summary Probate is an accelerated procedure to be used if (1) an estate has a value less than or equal to $200,000; (2) the decedent died more than 5 years ago; OR (3) the deceased person resided in another jurisdiction at the time of death. Essentially, this procedure is reserved for the majority of smaller estates. Summary Probate law begins at 58 O.S. Section 245.
The procedure, while simplified, is still filled with legal hurdles. The petition, affidavit of mailing, order appointing special administrator, letters of special administration, order for combined notice, and affidavit of mailing of the combined notice can all be filed on the same day. The final account & petition for the determination of heirs is then filed around a month later. After another month, you will have only one hearing before a judge and file the final order. Of course, there are requirements as to what each of the documents must contain, but all-in-all, you are talking a minimum of 3 months.
One issue that you can run into with Summary probate is that a summary probate must generally be uncontested (or at least have the contests solved before the hearing). At the hearing, all objections to the probate will be heard. If the objections are at issue, the judge may determine that summary proceedings are inappropriate and send you back to a full probate.
Conclusion and Costs
Check out our methods to avoiding probate article. Our attorneys highly recommend avoiding probate whenever possible due to the time and cost investment. A full probate can cost anywhere from $2,000 to $5,000 dollars depending on the size and complexity of the estate. A summary is ranged more towards the $2,700 to $3,000 mark. Further, probate is a time-consuming process and takes at least 3 months (but likely more).
Hohenheim Legal has provided many probates to hard-working Oklahomans. Feel free to contact us with any questions. We offer free consultations and concierge services! As a firm that focuses on real estate, we provide asset protection, affordability, and creative solutions. We would be happy to provide you top-quality service. Let us help you solve your real estate troubles.