We’ve all likely heard of probate. However, most of us probably aren’t aware of the intricacies involved in the court-supervised process for distributing the property of a deceased person. Keeping that in mind, here are five little-known facts about probate.
- It is avoidable. You can prevent your estate from ending up in probate court by transferring all of your property to a revocable living trust. You can also avoid probate by designating beneficiaries on your financial accounts and life insurance policies and utilizing transfer-on-death deeds for real estate.
- You typically must notify all immediate family members, even those who aren’t named in the will. The Oklahoma probate statutes require that formal notice of the proceedings be given to everyone named in the will and to all heirs-at-law, meaning those who would have been entitled to inherit had the deceased died intestate (i.e. without a will). Heirs-at-law are usually the deceased’s surviving spouse, children or grandchildren.
- The Personal Representative must publish a Notice to Creditors in the newspaper. Under Oklahoma law, the Personal Representative of the estate must search the deceased’s files and other personal effects to determine whether the deceased had loans or unpaid bills. Even if it appears that there are no creditors, the Personal Representative still must publish a Notice to Creditors in the newspaper and allow time for anybody with claims against the estate to come forward.
- Not all of the deceased’s property goes through probate. As discussed in #1 above, property titled in the name of a revocable living trust does not go through probate, nor do accounts or policies with beneficiary designations and real estate subject to a transfer-on-death deed. In addition, property owned in joint tenancy passes automatically to the surviving joint tenant without the necessity of probate.
- More than one probate could be necessary. Initially, the deceased’s estate will need to be probated in the county and state where he or she resided at the time of death. After that, additional probate cases may have to be opened and completed in other states where the deceased owned property in order to transfer that property to the people named in the will.
As you can see, probate has the potential to be an expensive and time-consuming process that diminishes privacy and opens the door to claims by creditors and disgruntled family members. If you are responsible for an estate, it’s imperative that you retain legal counsel to ensure that everything is done properly. On the other hand, those thinking about estate planning should strongly consider a revocable living trust or other options to avoid probate.