How Is Probate Started?

 

Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will with the court and filing a Petition with the probate court.

 

If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.

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How Is The Executor Chosen?

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If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.

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How Does The Executor Get Paid?

The Executor gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.

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Could I Be Held Personally Liable For Making a Mistake as an Executor?

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Being an Executor is a big responsibility.  Oklahoma’s probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate.

 

There are also certain deadlines that an Executor must meet in filing papers with the Court.

 

If an Executor violates any of these rules, they can be held personally liable for losses to the estate.

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My loved one had a trust...will we need to go through probate?

In most cases, no.  If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.

 

Unfortunately, many people who have a Trust think they have it all taken care of.  But time and again, family members’ of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.

 

Why is that?

 

Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust.  That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.

It’s why we do things so much differently than most other lawyers and law firms.

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What Assets are Subject to Probate?

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Assets owned solely in the name of the deceased person are subject to probate.

 

Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process.

 

Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate.

 

In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process.  Please call us if you have questions about your specific situation.

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How is Distribution of the Estate Handled if there is no Will?

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If there is no will or trust, the estate will be distributed according to Oklahoma probate and intestate laws, which state that a person’s estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).

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How long does Probate take?

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The length of time of a probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases.

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How much does Probate Cost?

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The Personal Representative (i.e. Executor or Administrator) is entitled to the statutory fee for their services (Oklahoma Statutes, Title 58 section 527). The Probate court can order additional fees for more complicated cases or extraordinary services. There are also court costs and filing fees, document certification and recording fees, and property appraisal fees.

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Attorney's fees are set by the attorney and usually coincide with the size of the estate. 

 

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Getting Help: Choosing the Right Attorney For Your Probate Case

 

The best way to ensure your probate is done right is to choose your attorney wisely.

 

Do not assume that all attorneys are the same!  Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.

 

You don’t have to use the attorney who prepared the Will either!

 

Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.

 

Choosing your probate or trust lawyer is one of the most important decisions you will make.

 

If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.

 

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Contact Us For A Post-Death Estate Review

If you’re ready to get started with the probate process after the passing of a loved one, please contact us at 405.654.1390 or use this link to schedule a 60-minute consultation to help determine your next best steps. We are here in service to making this all as easy as possible on you.

 

During this appointment, we will answer all of your questions about probate and guide you and your family through the next best steps. 

 

We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.