Do You Need An Attorney For Probate?
It is at least theoretically possible for a non-attorney to complete an Oklahoma probate successfully. Unfortunately, it is not particularly easy, nor is it particularly quick. Further, the risk of creating a title problem for any real estate that belonged to the diseased person is very high. If that should occur, the cost to repair that problem would be greater than the cost to do the probate correctly with the attorney’s assistance from the very beginning. Therefore, since most attorneys who do not practice probate should not, and mostly will not, handle a probate on their own, I would suggest that non-attorneys should also not attempt to handle a probate without the guidance of a well-qualified probate attorney.
My Loved One Had A Will, Can We Just Divide The Property Based On What The Will Says?
The Oklahoma statutes state that the will is only made effective through the action of the probate court and that the property only passes from the deceased person to the recipient under the supervision of the probate court. Therefore it is incorrect to attempt to distribute without going through probate. If, however, the deceased person owned only modest value tangible personal property such as clothing and used household furniture, it is highly likely that if you follow the terms of the will and no heirs, beneficiaries nor creditors are unpaid, that there would not be a penalty for a distribution of this method. This method is not available if there is real estate, when the estate needs to pass title to intangible personal property, or when there are creditors to be paid from the estate.
Should An Estate Be Probated In Oklahoma If The Deceased Person Lived In Another State?
With some regularity, our office is called on to complete probate for people who died as residents of another state but who held real estate in Oklahoma. This is caused by the law that says each state’s courts have jurisdiction over the real estate belonging or situated in that state. Therefore, where a resident of Texas holds mineral rights or other real estate in Oklahoma and where the heirs desire to inherit those properties the estate can and should be probated in Oklahoma. Depending on the state of residence and the probate procedure of that state, we may be able to use a substantially shorter and cheaper probate process that we often refer to as an ancillary probate.
What Is Ancillary Probate?
Ancillary probate is a term that is not actually found in the Oklahoma statutes but generally, it refers to a shorter version of probate that can be used where the decedent’s estate was appropriately probated in his or her home state. Unfortunately, the probate procedures of some states do not generate the particular documents required to qualify for an ancillary probate in Oklahoma. For example, Texas probates generally will not generate an order of distribution that would be required for the short probate. Therefore, Texas decedents whose estates also must be probated in Oklahoma, are usually subject to complete Oklahoma probate instead of an ancillary probate.
Who Has Jurisdiction Over Oklahoma Probate Proceedings?
The District Court of each county has jurisdiction over the probate proceedings of the residents of that county. In certain circumstances and in certain counties there are particular judges assigned to handle the probate. These judges may be referred to as the probate division of the District Court. In other counties, a district judge who handles other civil and even criminal matters may also handle the probate proceedings.
What Is A Personal Representative In a Probate Case?
A personal representative is a person or persons appointed by the court to serve in the position roughly akin to general manager of the probate. The personal representative is not the owner of the estate’s assets, only the manager. He or she has the obligation to provide an inventory and appraisement of the estate assets; has the responsibility to issue a notice to creditors and send that notice to all of the known and reasonably determined creditors and to decide what assets should be sold and for what price they should be listed. The personal representative of the estate has a fiduciary duty to the estate. This includes the duty to make reasonable efforts to maximize the value of the estate and to provide an orderly and timely resolution of the estate business affairs.
If you would like to contact my office for a copy of our book which is entitled Probate: A Personal Representative’s Handbook, we would be happy to send you this book so that you may better understand in little more detail about the duties and the obligations of the personal representative. Our clients receive a free copy of the book and others pay $5.00 plus shipping.
Are Personal Representatives Paid a Fee?
Yes. Oklahoma statutes do call for a payment to personal representatives in Oklahoma. Typically, this payment is about 2.5% of the gross estate. By statute, a judge can increase this percentage up to 5% if the personal representative has had to do extraordinary work in the administration of the estate. In certain cases, the personal representative may decline to accept this payment because the money paid to the personal representative will be taxable to him where that same money received as an inheritance would generally not be taxed as income.
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