Most people hear the word "probate" and start to clam up.
Probate is often associated with all the worst parts of the legal system: a slow, lengthy process where nobody wins except the lawyers.
The hate of probate is so widespread that Charles Dickens even dedicated most of the plot of Bleak House to describing an endless and fruitless probate.
But is it really that bad?
What is Probate?
Probate is the court process by which your assets are transferred to your heirs after your death.
If you own real estate, such as a home, the deed to that property may be in your name alone. Legally, then, only you can sign a deed to transfer title to that property.
But who has the authority to convey that property after you die?
Although you may assume your spouse or children do, they have no legal authority unless and until the court gives it to them. That is where probate comes in.
Related post: 5 Ways to Avoid Probate
So, what does probate actually look like? There are four main parts: (1) admitting a Will and appointing a Personal Representative, (2) addressing creditors, (3) collecting or “marshaling” the decedent’s assets, and (4) distributing the remaining estate.
Step 1: Admitting Will/Appointing Personal Representative
If you have a Last Will and Testament, that instrument must be filed with the court along with a Petition requesting that the instrument be accepted as your Last Will and Testament.
After the Petition is filed, notice must be given to your heirs-at-law — the individuals who would be entitled to receive your estate if you died without a Will. These individuals are determined by statute but generally include your spouse and children or grandchildren.
Once the Will is accepted, the Court appoints an executor, also known as a Personal Representative. Most Wills name someone to serve as Personal Representative; or, if no one is named or available, the Court can appoint someone else.
Step 2: Addressing Creditors
After the Personal Representative is appointed, they send notice of the probate to creditors, that is, people you owe money at the time of your death.
Creditors with proper claims against an estate must be paid before any distribution can be made to heirs, and they must be notified either by mail or, at the very least, by publication.
The notice gives creditors a certain period of time (usually 60 days) in which to file claims against the estate. If they don't file, then their claims are forever barred. That is another beneficial reason to file probate: it can resolve certain debts of the decedent.
Not all assets, however, are subject to creditors' claims.
Many states have homestead laws that exempt certain assets from creditors if there is a surviving spouse or minor child. In Oklahoma, the homestead generally includes the marital home and can also include an allowance to the surviving spouse or minor children to support them during the estate administration period.
Step 3: Collecting Assets
The Personal Representative must also figure out what "stuff" is in the estate. Bank accounts, real property, minerals, vehicles, jewelry, stocks — all property must be reported to the Court in a General Inventory and Appraisement.
This allows heirs to see what they may be entitled to as beneficiaries of the Estate and holds the Personal Representative accountable.
After all debts, claims, and other issues are resolved, the Personal Representative files a Final Account which shows the Court what the Personal Representative has done during the probate. It accounts for income received, expenditures made, creditors paid, assets sold, etc.
While the Inventory shows the assets and value in the estate at the beginning of probate, the Final Account shows the assets and value remaining in the estate at the end of probate.
Part 4: Distributing the Estate
Once all of these and any other issues are resolved, the Court will authorize the Personal Representative to distribute the estate, and the probate is closed. Simple, right?
As you might guess, this process is both time-consuming and expensive. The shortest probate takes approximately six weeks, but it can take as long as a year or more. Contested cases can take even longer.
Attorney’s fees for uncontested probates are usually at least $4,000-5,000, and court costs and other expenses run an additional $400 or more. If any aspect of the probate is contested, expect the attorney’s fees to increase substantially.
The Personal Representative is also entitled to a fee based on the value of the entire estate.
What's more, probate is a public process. Probate records at the courthouse are available to anyone who wishes to see them, including what you owned, how much it was worth, and who it went to.
Get Help from a Probate Attorney
The probate process is can get very complicated. Dealing with family conflicts, aggressive creditors, complex assets, or the sale of property can make probate even more difficult. But with an experienced probate attorney by your side, the process can be much less stressful.
To discuss whether probate is necessary for a recently deceased loved one, or to learn how you can avoid probate through estate planning, contact the experienced Oklahoma City probate attorneys at Postic & Bates today for a free, no-obligation consultation appointment.
David M. Postic is an attorney at Postic & Bates, P.C. His practice focuses on estate planning, probate, real estate, trust administration, business planning, and adoption.
You can email David through our Contact Us page or by calling our office at (405) 691-5080.
[As with all our blog posts and other publications and resources, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]
