Q & A WITH ROBERTO SEDA, PROBATE ATTORNEY: WHAT IS IT AND WHY DOES EVERYONE WANT TO AVOID IT? AND WHAT IF THE DECEASED DIDN’T EVEN LIVE IN OKLAHOMA?
Many states have adopted the Uniform Probate Code (UPC), which simplifies the probate process. However, Oklahoma is not one of those states. A regular probate can take anywhere from six months Due to the amount of time involved, that usually means it can be really expensive. The only people that benefit from the increased costs are the attorneys.
You want to have an experienced probate attorney on your side to make the process as efficient and timely as possible.
How does someone end up in a “probate” situation?
Long story short; someone dies with assets solely in their name. Even if the deceased had a Last Will or Trust, the assets must still go through probate. This is typically referred to in “legal-eze” as improperly funded assets or property not properly conveyed to the trust.
I’m in a probate situation now what?
That depends on the value of the assets left behind in the decedent’s name and if there is a will.
Let’s start with the value of the estate:
- If we’re talking about assets less than $50,000.00, which is limited to tangible personal property, then it may qualify for a Small Estate Affidavit. If the assets include real property, including surface or mineral interests then either a Summary Administration or full Probate is required.
- If the total assets are less than $200,000.00, then the estate may qualify for a Summary Administration.
- If the assets total more than $200,000.00 then a full probate process is required.
Will vs. No Will (a.k.a. Testate (Will) and Intestate (no Will.))
- A Will names who should act as the representative for the estate.
- A Will gives the probate court and your representative instructions regarding to whom and how you want the assets distributed.
- Without a Will, the court and Oklahoma state statutes determine who is eligible to be in charge and how your assets will be distributed.
Disclaimer: Any of the above can be contested in probate court. Just because there is a Will, it does not guarantee that the decedent’s wishes will be followed.
What if the decedent lived out of state and only owned assets like oil and gas mineral rights?
The estate may qualify for a Summary Administration regardless of value.
What if they died more than 5 years ago?
May also qualify for Summary Administration!
Once I get this all straightened out, how do I avoid probate in the future?
The best way to avoid probate is to make sure that all your property is titled in such a way that it would avoid probate. Examples include joint tenancy, transfer-on-death deeds, life estate, or a trust. However, there are pros and cons to each one.
With a trust, the trust itself holds title to the property. The decedent does not hold title to his property, his trust does. If the initial trustee (usually the property owner) passes away, the trust agreement should then have a provision to name a successor trustee. This is how a trust avoids probate.
A trust is part of a larger comprehensive estate plan. Estate planning with an experienced probate attorney is vital. If your estate assets include real property such as a home or mineral rights, having an experienced firm like the Seda Law Firm create an estate plan for you is invaluable!
There are many options to explore. Joint tenancy and a trust are two options to consider. Ensuring that the assets are properly titled and recorded is essential to keeping these assets out of probate court.
Check out our post on the basics of Estate planning for more information on which avenue is best for you.
Is it really that important to avoid probate?
Often this answer is so dependent on family dynamics. Anytime probates become contested, the time and cost of the probate increases substantially. I have seen probates go on for over ten years! Especially in situations that involve family discord or blended families.
These situations are nightmares that can be avoided with a properly executed estate plan. If you are in a current situation that may involve a contested probate, we can help. Know your rights and options for the fastest, most cost effective resolution to your probate case.
If you would like more information, fill out our contact form or call us at 405.759.0678.
Your OKC Metro Probate Attorney,