Tell Me About Your Experience In Handling Probate Matters?
For about 20 years I have represented families in probate matters in the state of Oklahoma. I began by representing the family of my uncle as they worked through the emotional difficulties associated with distributing the estate of a loved one who had done no estate planning at all. It is fair to say that everyone was hurting from the untimely loss of a parent, and that that there was no easy answer. That case was quite difficult for me both in learning the process and in watching my cousins’ struggle with the emotions brought to the surface by the probate process. By the end of that case I was convinced that I would never handle another probate matter, but I was so very wrong.
It became obvious to me that families who are facing the necessity of probate need someone who is both empathetic and businesslike, who will follow carefully the many rules that are associated with probate cases but will also take into account the emotions of all of the persons involved in the case. We cannot change the outcome of the case based upon emotions, but all of our decisions during the case can take into account that these are real human beings who have been deeply hurt by a great loss. Since completing my uncle’s probate, I have done hundreds more probate cases. In fact, probate is one of the two biggest parts of my practice.
Who Do You Typically Represent In Probate Cases?
Most commonly, I represent the person who will serve as personal representative of the estate. When I am representing that person, my job is to guide them through the legal process of gathering all of the assets that belong to the estate, giving notice to creditors and reviewing the creditor claims. Approving the claims as appropriate and then preparing the estate to be closed and distributed. In other cases, I am representing one of the heirs who needs guidance and assistance in assuring that the personal representative, also known as “executor,” is handling the estate correctly so that the interests of the heir are not damaged by malfeasance or mistake.
Occasionally, I will be called upon to represent a creditor in a probate, but this is relatively rare and only occurs when the estate is attempting not to pay its lawful debts.
What Is Probate?
Probate is the name given to the legal process whereby the court supervises the final affairs of the deceased person, supervises the payment of their bills and assures that their estate is distributed according to their will or according to the state’s statutes if there was no valid will. In a typical Oklahoma probate where there is no property to be sold, and where there are no contentious problems, a probate can be completed in about 6 months.
If property must be sold during the pendency of the probate, one must extend my estimation of time by the amount of time necessary to find a buyer and close the sale of the subject property.
What Factors Set The Stage For Probate To Occur?
Under Oklahoma law, all property belonging to a deceased person has to pass to the heirs and beneficiaries under the supervision of the probate court. So another way to say that is where a person dies owning property in their own name, the probate process is the method whereby the law allows the final affairs of the deceased person to be wrapped up and the estate distributed.
Occasionally my clients are surprised to learn that it will be necessary to conduct a probate where there is a valid will. My explanation or example is that a last will and testament is similar to a set of assembly instructions. The instructions themselves have no power as they are only a guide as to what should happen in order to reach a desired result. Similarly, a last will and testament has no power to convey property. It is directions to the probate court as to what the decedent wished to have happen with his or her property.
One of the ways that probate can be avoided is by holding title to one’s assets in the name of a trust. When the trustor dies, a new trustee takes their place and administers the trust as directed by the trust document. This ability to avoid probate is one of the many advantages that a trust has over a last will and testament.
What Are Some Common Misconceptions About The Probate Process?
One of the most important misconceptions that I see is that executors and personal representatives sometimes think that they have become owner of the property that is in the probate estate. That is absolutely not the case. They are only the managers under the supervision of the court and they are subject to the state law and the will of the decedent. They are not allowed to give away the property. They are not allowed to borrow the property. They are not free to use the property for their own benefit. Personal representatives of an estate have a fiduciary duty to treat the property of the estate with the highest degree of fidelity and not for their own personal benefit.
Another common misconception is that when the decedent passed away, he or she was no longer liable or responsible to pay his or her debts. The law requires, however, that the personal representative must give notice to all creditors or claimants who were known or reasonably knowable upon a good faith search for creditors. It does not matter if a creditor may have written off the debt, they are entitled to notice and may be entitled to be paid from the estate.
Another common misconception is that a last will and testament is effective on its own to convey ownership of property to the beneficiaries named in that will. That is absolutely not accurate. The provisions of a last will and testament are subject to the review and approval of probate court and some of them may not be upheld. The will has no power on its own to convey property to the beneficiaries, only the court can do that.
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