Why Do We Hear So Many Horror Stories About Probate?
There are a few reasons for the horror stories in probate. First, many decedents have not done any preparations for their death and their affairs are difficult to manage. The personal representative will often have great difficulty in determining what the decedent owns because there are no records that are easily accessible that describe for the personal representative what is owned and where it is located. Sometimes these cases last for years as finding and administering the assets is extremely difficult.
Sometimes the horror stories of probate occur because of greed. Heirs, and sometimes personal representatives, misbehave and are even known to steal from the probate estate because they are so desperately greedy. These actions are often criminal in nature and they are further complicated because of the deep emotional wounds that the crime creates. Often, the perpetrator feels justified in his crime. He or she believes that Mom expected him/her to receive that item and so they just go and take it even if the law does not support them.
Sometimes the horror stories of probate arise out of honest disagreements between the heirs. For example, one heir might wish to inherit the homestead believing that it will increase substantially in value over the years but another heir may wish the property to be sold so that they may receive a portion of the proceeds and invest that money as she sees fit. Disputes of this nature must be resolved by probate court and often the resolution of these disputes raises past hurts and difficulties that were long forgotten by some of the parties affected.
Some of the horror stories of probate arise because people try to handle probate on their own and they are not qualified to do so and they end up with a mess. Other probate horror stories arise because the family chose the cheapest attorney they could find and that attorney was not qualified.
What Are My Options For Avoiding Probate?
There are several options for avoiding probate. By far, the very best option is a coordinated estate plan that takes into the consideration the needs and desires of the family along with the needs and the desires of the owner of the property. A good estate plan should also take into account known problems such as financial fitness, disability, marriages, divorces, lawsuits, bankruptcy, spendthrift heirs, and the like. A good estate plan would also take into account the possibility of future difficulties such as an heir becoming disabled or incapacitated, taking Medicaid assistance nursing home care. But a comprehensive estate plan is not the only way that probate can be avoided, it is, however the best way that it can be avoided.
Another way of avoiding probate is through the use of transfer on death deeds and payable on death bank account contracts. Both of these provisions can often avoid probate, but they are not 100% successful. Still, they can be worth your consideration especially when combined with an excellent estate plan.
Life insurance policies that have a valid beneficiary designation may also avoid probate. The disposition of the funds will be controlled by the life insurance contract and beneficiary designation. Unfortunately, such designations, rarely, if ever, are able to take into account that the beneficiary may become insolvent, subject to lawsuit, in a nursing home, or other such problems. Therefore, despite the fact that probate has been avoided, the outcome is much less than perfect.
What Is The Standard Timeline For A Probate Case?
A typical probate case will operate somewhat as follows:
First, once the initial information has been gathered, the attorney will need several days to prepare the probate petition, the order for hearing and notice of hearing.
When the probate petition is filed with the district court, the judge or her clerk will enter an order setting a hearing on that petition. That hearing is typically 10 days to 4 weeks away from the date that the petition is filed (4 weeks is common in Oklahoma County).
At the time of the first hearing, it is likely that the judge will appoint a personal representative of the estate and the personal representative can then begin working on the inventory of the estate. She will also start the notice to creditors which has to run for more than 60 days. She will gather the assets of the estate, review claims that come into the estate, and generally manage the affairs of the decedent.
The personal representative may learn that he or she needs to sell real estate belonging to the decedent. If so, it will take some weeks, perhaps even a few months, to get permission of the court and to sell the real estate. The actual time to complete the sale of real estate can vary drastically from a couple of weeks to several months. Once a contract is signed by a prospective buyer and the personal representative, it will generally need to be submitted back to the probate court for approval. That process generally takes another 4 or 5 weeks.
Once all of the bills are paid, the property sold, and the estate ready to be distributed, a final account and petition to distribute should be filed with the court. This document will describe the actions of the personal representative, describe what remains to be distributed, and to whom it is expected to be distributed. This document has to be on file with the court a minimum of 20 days before it can be approved by the court. As a practical matter, it often takes more than 21 days to get a hearing on that petition. Therefore allow about 4 or 5 weeks for that petition to be approved.
Generally, an uncontested probate can be accomplished in 5 to 6 months if there are no contests or unusual issues.
Can Someone Realistically Navigate The Probate Process On Their Own?
It is not likely that a non-attorney can successfully complete a probate involving real estate. In my experience, most attorneys do not know how to complete a probate successfully. Therefore it is much more likely that a non-attorney will create more work and cause more expenses if he or she attempts the probate process on their own. You should no more attempt your own probate than you should be doing kidney surgery when you are not trained for it.
What Is The Outcome Once The Probate Process Is Complete?
At the end of the probate process there will be a court order directing the distribution of the estate according to the will or where there is no will, according to the state statutes in Oklahoma. That court order can be filed in the land records to transfer ownership of real estate into the name of beneficiaries. Any cash in the estate can be distributed by the personal representative or by their attorney according to the court order. Receipts should be filed with the court. The personal property should be delivered up by the personal representative to the beneficiary approved by the court. Some attorneys will require written receipts for personal property, others do not.
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