What is probate? Probate is the procedure by which a court determines who is entitled to a deceased person’s assets and then transfers legal title to them. When do you have to go through probate? Generally speaking, probate is necessary anytime someone dies owning assets independently (in his or her name only) or with others as a tenant in common, unless the asset was a motor vehicle or the estate was comprised of personal property valued at less than $50,000. If the deceased person died owning any other property—like real property—in his or her name only or with others as tenants in common, the estate will likely need to be probated. For a fuller explanation of when probate is necessary, see my guide titled "Do I Need Probate?" How long do you have to probate a will or estate? There is no statute of limitations for probate. An estate, whether there is or is not a Will, can be probated years—even decades—after death. Depending on the specific circumstances, the passage of time can make probating the estate easier or harder. That being said, you should consult an attorney as soon as possible. If you’ve been named as an executor in a Will, you may have certain legal obligations to the estate.
Furthermore, under Oklahoma law, every custodian of a Will, within 30 days after receipt of information that the maker thereof is dead, must deliver the Will to the district court having jurisdiction of the estate or to the executor named therein. A failure to do so makes the custodian responsible for all damages sustained by any one injured thereby. Where must probate occur? If the decedent was a resident of Oklahoma, probate must take place in the county where he/she lived. If the decedent was a resident of another state but owned property in Oklahoma, probate must be conducted in the county where he/she owned property. How long does probate take? It varies with each estate depending upon numerous factors, including the size of the estate, the types of assets owned by the estate, the number of interested parties involved, whether anyone contests the proceedings, etc. That said, probating a simple estate under the standard probate procedure usually takes between 6 and 12 months. Summary probate can be as short as 2-3 months, and ancillary probate can be even shorter. How much does probate cost? Probating an uncontested estate of average size under the standard probate procedure usually costs around $5,000, including court costs, administrative expenses (like postage), and attorney fees. If the estate is contested, unusually large or complex, there are atypical issues (like the sale of real estate), or the executor desires for the probate lawyer to handle most executor duties, the total cost will be a few thousand dollars higher. For the shortened probate procedures (summary administration and ancillary probate), the total cost is usually around $4,000.
If you hire a probate lawyer and the estate has liquid assets, there’s usually no upfront or out-of-pocket costs for the executor or heirs. The probate lawyer’s expenses and fees will be paid out of the estate’s assets at the end of probate—and only after they’ve been approved by the court. What happens in probate? Probate consists of six general steps: (1) initiating the probate (which includes admitting the Will if one exists) and appointing a personal representative (a/k/a an executor or administrator) to act on behalf of the estate; (2) identifying and notifying the heirs; (3) collecting and managing assets; (4) identifying and notifying creditors; (5) paying the estate’s debts and taxes; and (6) distributing the remaining assets to the appropriate heirs. Do I need a probate lawyer? A personal representative (a/k/a an executor or administrator) does not have to hire an attorney. However, it’s wise to do so because personal representatives are personally liable for the mistakes they make, whether that’s failing to pay creditors, failing to properly maintain the assets during probate, or failing to ensure each heir receives his/her proper inheritance. Furthermore, getting probate right isn’t just about avoiding personal liability. It’s also about ensuring that everyone involved exits the process with their relationships intact. An attorney can provide invaluable guidance in these areas. How can I avoid probate? In Oklahoma, the most common ways of avoiding probate include placing the asset in a revocable living trust, placing it in joint tenancy with right of survivorship, placing it in a life estate, utilizing pay-on-death accounts for bank accounts, utilizing beneficiary designations for retirement accounts and life insurance, and using transfer on death deeds for real estate and motor vehicles.