Most people hear the word "probate" and start to clam up. Probate is often associated with all the worst parts of the legal system: a slow, lengthy process where nobody wins except the lawyers. The hate of probate is so widespread that Charles Dickens even dedicated most of the plot of Bleak House to describing an endless and fruitless probate.
But is it really that bad?
No, of course not, and probate serves some very important purposes. Probate is the court process by which your assets are transferred to your heirs after your death. If you own real estate, such as a home, the deed to that property may be in your name alone. Legally, then, only you can sign a deed to transfer title to that property. But who has the authority to convey that property after you die? Although you may assume your spouse or children do, they have no legal authority unless and until the court gives it to them. That is where probate comes in.
So what does probate actually look like? There are four main parts: (1) admitting a Will and appointing an executor, (2) addressing creditors, (3) marshaling assets, and (4) distributing the estate.
Part 1: Admitting Will/Appointing Executor
If you have a Last Will and Testament, that instrument will be filed with the court along with a legal document, known as a Petition, requesting that the instrument be accepted as your Last Will and Testament. After filing, notice must be given to your Heirs-at-Law — the individuals who would be entitled to receive your estate if you died without a Will. These individuals are determined by state statute but generally include your spouse and children or grandchildren.
Once the Will is accepted as your Last Will and Testament, the Court appoints an executor, also known as a Personal Representative. Most Wills name a person or entity to serve as Personal Representative; if no one is named or available, the Court can choose someone. If an individual dies without a Last Will and Testament, then the Petition simply asks the Court to appoint someone (usually the Petitioner) as the Personal Representative.
Part 2: Addressing Creditors
After the Personal Representative is appointed, they publish a Notice to Creditors. This notice serves one of the other purposes of probate — protection of creditors, that is, people you owe money at the time of your death. Creditors with proper claims against your estate must be paid before any distribution can be made to your heirs, and must be notified either by mail or, at the very least, by publication. The notice gives creditors a certain period of time (usually 60 days) in which to file claims against the estate; if they don't file, then their claims are forever barred. That is another beneficial reason to file probate: it can resolve certain debts you owed at death.
Not all assets, however, are subject to creditors' claims. Many states have homestead laws that exempt certain assets from creditors if there is a surviving spouse or minor child. In Oklahoma, the homestead generally includes the marital home and can also include an allowance to the surviving spouse or minor children to support them during the estate administration period.
Part 3: Marshaling Assets
During the creditors' period, the Personal Representative must also figure out what "stuff" is in the estate. Bank accounts, real property, minerals, vehicles, jewelry, stocks — all of it must be reported to the Court in a document called a General Inventory and Appraisement. Once filed, heirs can see what they may be entitled to as beneficiaries of the Estate; it provides a level of transparency to hold the Personal Representative accountable.
After the creditors' period ends and all debts, claims, and other issues are addressed, the Personal Representative has to file a document called a Final Account. The Final Account shows the Court and the heirs at law what the Personal Representative has done during the probate: income received, expenditures made, creditors paid, assets sold, etc. Where the Inventory shows the assets and value in the estate at the beginning of probate, the Final Account shows the assets and value remaining in the estate at the end of probate.
Part 4: Distributing the Estate
Once all creditors' claims have been addressed, taxes paid (always important!), and other necessary legal documents filed, the estate is ready for distribution. If no objections are filed, the Court will authorize the Personal Representative to distribute the estate, and the case is closed. Simple, right?
As you might guess, this process is both time-consuming and expensive. The shortest probate takes approximately six weeks, but it can take as long as a year or more. Contested cases can take even longer. Court costs and publication expenses cost $350 or more, and attorney's fees can be anywhere from $4,000 to much, much more. Additionally, the Personal Representative is entitled to a fee based on the value of the entire estate. What's more, probate is a public process. Probate records at the courthouse are available to anyone who wishes to see them, including what you owned, how much it was worth, and who it went to.
Taken together, the probate process is pretty straightforward, but it can be very complicated to those who have not navigated its murky waters. Dealing with family conflicts, aggressive creditors, and complex assets can make probate even more difficult. But with an experienced probate attorney by your side, the process can be almost painless.
To discuss whether probate is necessary for a recently deceased loved one, or how you can potentially avoid probate through estate planning, contact the experienced Oklahoma City probate attorneys at Postic & Bates today for a free, no-obligation consultation.
[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]