Do you need an attorney for probate?
Oklahoma law does not mandate that the Personal Representative be an attorney or employ the services of an attorney. However, retaining counsel is strongly recommended. The probate code is complex and technical in nature. Failure to properly follow all of the procedures can result in the probate decree being declared void, which places a cloud on the heirs’ title to the probate property. Moreover, the Personal Representative has fiduciary duty, that is, an obligation to act in the best interests of everyone involved in the estate. If the Personal Representative does not adhere to the law, whether intentionally or not, they might face legal liability.
My loved had a will. Can’t we just divide the property based on what the will says?
No. This is a common misconception. The word “probate” literally means to prove. Probate is the process of proving a will. In Oklahoma, a will cannot legally pass title to property until it has been probated in court.
Should an estate be probated in Oklahoma if the deceased lived in another state?
If the deceased owned property in Oklahoma at the time of his or her death, the estate must go through probate in an Oklahoma court. This is true even if the deceased lived in another state. Oklahoma has special procedures for probate of a non-resident’s estate. Visit our Ancillary Probate page for details.
How long does probate take?
A typical probate can be completed in around 4-6 months, but could last much longer depending on the size of the estate, creditor claims and whether there is a challenge to the will or to appointment of the Personal Representative. For small estates, Oklahoma has procedures called summary administration. This significantly shortens the probate process. For more information on summary administration and the distribution of small estates, click here.
What will I do as Personal Representative, and will I be paid?
As Personal Representative, you will be responsible for the following: giving notice to the heirs and creditors of the deceased, creating an inventory of the probate property, managing and/or selling property of the estate, paying the claims of creditors, filing estate and income tax returns for the deceased and complying with orders of the probate court. Your attorney will do most of these tasks on your behalf.
Under Oklahoma law, the Personal Representative is entitled to payment as specified in the will. If there is no will, or in the event the will does not make provision for compensation of the Personal Representative, then the Personal Representative receives a fee equal to a percentage of the estate’s assets. The Personal Representative can decide not to accept this fee if he or she so chooses.
How much does probate cost?
The cost of probate varies on a case-by-case basis. Factors that influence attorney’s fees include the time involved, the size of the estate and whether there is a challenge to the will or to appointment of the Personal Representative. Generally speaking, attorney’s fees will be less in the case of small, uncontested estates. You should discuss fees with your attorney at the initial meeting.
View the Oklahoma probate code here.
Want to avoid probate? Click here to learn about estate planning options.