Everything you need to know about ancillary probate in Oklahoma, including answers to the most frequently asked questions.
What is ancillary probate?
Ancillary probate is the probate process applied to property owned by a resident of another state. When a resident of State A dies owning property in State B, ancillary probate is the procedure used by State B to distribute the non-resident’s property to his or her heirs. Oklahoma ancillary probate, then, is the probate process used by Oklahoma’s courts to distribute the Oklahoma property of non-Oklahomans.
Ancillary probate is called “ancillary” probate to distinguish it from “domiciliary” probate, which is the probate that is commenced in the county where the deceased person resided at the time of death. In other words, domiciliary probate is the primary probate of a person’s estate and occurs in his home state, whereas ancillary probate is a secondary probate that occurs in all other states where he owned property at death.
Why is ancillary probate necessary?
Real estate and mineral rights are subject to the laws and jurisdiction of the state where they are located. Therefore, non-Oklahoma courts are essentially powerless to transfer title to such property in Oklahoma. An Oklahoma court order is required to do so. Hence Oklahoma ancillary probate.
Where must ancillary probate occur?
Ancillary probate must be conducted in the county where the property is located. If the deceased person owned property in more than one Oklahoma county, only one ancillary probate proceeding is necessary and it can be filed in any county where he or she owned property.
What is the ancillary probate procedure in Oklahoma?
The procedure for transferring title to Oklahoma property owned by a nonresident is relatively simple and usually requires only one court hearing. Here is an overview of the five main steps:
1. File a petition that includes (a) a duly certified copy of the last will and testament, (b) an order admitting the will to probate, and (c) an order distributing the estate from the domiciliary probate proceeding. If the decedent died intestate (i.e., without a will), the petition must include (a) a duly certified copy of the order appointing the personal representative and (b) an order distributing estate from the domiciliary estate.
2. When the petition is filed, the court issues an order setting the matter for hearing not less than 20 days thereafter.
3. Notice is published and mailed to all interested parties, which must be done at least 20 days before the hearing.
4. If no one party or creditor objects to the distribution of the property before or on the hearing date, the court will issue an order distributing the Oklahoma property according to the terms of the will or, if no will exists, according to the intestate succession laws of Oklahoma.
5. Record the court order in all Oklahoma counties where the probated property is located.
Does the executor or personal representative have to travel to Oklahoma?
Unless the ancillary probate is contested, the foreign executor or administrator typically does not have to appear in court in Oklahoma. The proceedings can be handled by the probate attorney alone.
How long does ancillary probate take?
Unlike standard probate, which typically takes 6 months or more, Oklahoma ancillary probate typically takes between 6-8 weeks. Depending on the court’s availability to hear the matter, it can sometimes be done in as little as 5 weeks.
How much does ancillary probate cost?
The total cost of ancillary probate in Oklahoma—including court costs, publication/mailing expenses, and attorney’s fees—is generally between $3,000 and $4,000. If the probate is contested or involves other atypical issues, the cost can run much higher.
If ancillary probate isn’t available, what are my other options?
If the estate doesn’t qualify for ancillary probate because there’s been no domiciliary probate, there’s still the possibility of qualifying for “summary administration,” which is a shorter and simpler process than standard probate, just not as streamlined as ancillary probate.
How can I avoid ancillary probate?
Ancillary probate in Oklahoma can be avoided by employing the same methods used to avoid probate in general. For real estate or mineral rights, probate can be avoided by (1) placing the property in a trust or in joint tenancy or (2) by executing a transfer on death deed.
Additional resources provided by the author
For additional information about ancillary probate in Oklahoma, see the statute that governs it: Title 58, Section 677.
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