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- CAVEAT - The Answers and Opinions expressed on this page are general in nature, and the Answers and Opinions that our office would most likely give you.
Probate Laws in different states may vary. Since we practice in Oklahoma the views in this segment reflect Oklahoma Law, and the law applicable in your state may be different.
You should also be aware that many of the Answers and Opinions expressed on this page represent our opinion and do not necessarily reflect the views of the entire legal community!You should not consider these Answers and Opinions as legal advice applicable to your particular case and circumstances.
In planning your affairs you should consult directly with an attorney of your choosing, acquainting him / her with all of the facts and circumstances which apply to you.
In planning your affairs you should always get a second opinion.
Q. - What Happens to My Property When I Die?
A. - Whatever you choose to happen to it!!
You make that choice by:
- Doing Nothing!
- If you do nothing then the State has, by statute, determined exactly who will get your property when you no longer have a need for it!
- Doing Something!
- When appropriate, place title to property in Joint Tenancy.
- You may place title to property in a Trust or Trustee, giving directions as to what should be done with your property on your death.
- You may enter into a contract with a life insurance company, directing payment of proceeds to a designated beneficiary.
Q. - What is Probate?
A. - Probate is the Judicial Process whereby the Court Appoints a 'Personal Representative' to take charge of, and be responsible for all of the assets of your estate, subject to Court Supervision.
In Probate the Court will:
- Determine all of your assets subject to administration by the Personal Representive.
- Determine all the Creditors having claims against the estate.
- Determine all of the persons entitled to share in the assets of the Esate.
- Order payment of all legitimate debts,
- Order Distribution of the Assets to those entitled to share in the estate.
Q. - What Property is Subject to Probate?
Generally speaking, all property in which you have an interest at the time of your death, which you have not otherwise disposed of in a legal manner during your life time, makes up your probate estate.
Property not subject to Administration in Probate includes:
- Gifts you have made during your lifetime. Gifts of Personal Property must have been actually delivered to the recipient, prior to your death.
- Property Held in Joint Tenancy
- Proceeds of Insurance Policies payable directly to a named beneficiary.
- In some States, you may by contract, direct that funds in accounts be payable directly to a named person upon your death. i.e. Payable on Death
- In some States a portion of the estate may be homestead set aside directly to the surviving spouse and / or minor children.
- Property in a Trust, distributed according to your directions upon death.
Q. - Who Are My Heirs?
A. - Generally speaking your heirs are those persons who have a kinship with you by blood, marriage or adoption.
Your heirs who are entitled to share in your estate, and the portion to which they may be entitled, if you die intestate ( without a will ), are determined by Statute in the State where you reside.
In Oklahoma these are set forth in Title 84 Okla. Stats, Sec. 213.
It is possible that persons you don't know, and never heard of can inherit your property!
Q. - What Does Probate Cost?
A. - Several factors determine the costs of probate.
- The laws of the State where the proceedings are brought determine some of the costs, filing costs, publication costs, appraisal costs, number of court appearances required, and total attorney time.
- Whether or not there is a contest among the heirs.
- Whether or not sales of property are required.
- The charges made by your attorney.
You may want to contact several attorneys for an estimate of the total costs in your area. For our estimate see our
Schedule of Fees & Services
Q. - How Long Does Probate Take?
A. - Several factors determine the time it takes to complete probate.
- The laws of the State where the proceedings are brought determine some of the time periods required to give proper notices of the filing of the probate proceedings - the notices to creditors - the notices of any sales - notices of any court hearings - and notices of hearings on the final accounting.
- The docketing schedule of the Court where the proceedings have been brought.
- When estate tax returns are required, the response time of the State Tax Commission or Internal Revenue Service affect the time required.
- Whether or not there is a contest among the heirs.
- Whether or not sales of property are required.
- Your attorney's schedule.
In many states a 'Summary Administration' is provided for smaller estates.
In Oklahoma a 'Summary Administration' is provided in Title 58 Okla. Stats., Section 245, for estates having a total value of less than $175,000.00.
In our office we generally estimate that an uncontested probate of any size, subject only to the time it takes to obtain tax releases, may be completed in 3 to 4 months.
Q. - Will A Trust Help Me Avoid Probate?
A. - In Some, but not all Cases.
Placing Title to property in Trust for many good reasons is not new.
Trusts - more Popularly known as 'Living Trusts' have gained wide acceptance in recent years.
Many people may have a Trust prepared, toss it in a drawer, and assume that their affairs are all taken care of.
These are generally revocable, and in some cases may be used to avoid probate. In order to be effective they must be periodically checked and property to be included in the trust must be identified - either in the trust, or titled property must be held in the name of the Trust.
- Caveat: - Many times this instrument is meant to be used to avoid probate, but sometimes valuable items, i.e., jewelry, stamp and coin collections, antiques, etc., are not properly transferred to the Trust, and a probate may be necessary to distribute those items.
- If you use the Trust to avoid probate you must be sure that all of your property is placed in the Trust. - You should have this checked with your attorney, not less than annually.
Q. - If I Put my Property in my Children's Name Can I Avoid Probate?
A. Many times a person may put one child's name on a deed or bank account, trusting that the child will distribute the property or money to other children according to his / her directions, or in a fair manner.
However, once transferred it belongs to the child whose name is on the deed or bank account - and he / she can do whatever they want to with the property or money.
Call us, or any attorney of your choosing. We all have horror stories about these types of attempts to avoid probate!
- Yes. - But, our office strongly recommends against it for many reasons!
- Never - Never, ever place title to your property in a minor child!
Q. - What is 'JOINT TENANCY' ?
A. - 'Joint Tenancy' is an estate in property, title to which is held in the names of two or more persons - each of whom have an undivided interest in the property.
Upon the death of one, that person's interest passes to the 'survivor(s)'.
Property held in Joint Tenancy is not a part of the 'probate estate' of the decedent.
To create a joint tenancy estate it is necessary to make the establishment of this
estate clear on the deed, title or certificate of ownership, by the use of the words -
as 'joint tenants, and not as tenants in common,
with full rights of survivorship.
Sometimes people attempt to create a 'joint tenancy' by the use of the words - 'and or'.
- In most states this merely gives either of the persons the full title to personal property - and a tenancy in common in real property.
The most important consideration in creating a 'joint tenancy' is that both parties actually want the property to pass to the 'survivor'.
See -
FAQ - Pre-Nuptial Agreements - Ante Nuptial
A. - This is an estate in real property whereby a person has an ownership interest for his or her lifetime.
The interest terminates upon the death of the owner of the life estate and title reverts to the person or persons owning the legal title to the property.
This estate may be created by a conveyance by the owner of the property to the life tenant, or by the owner of property conveying the property to another person and 'reserving' a life estate.
The life estate may be used as a means of avoiding probate as to the particular property in which a life estate is held. It does not avoid probate of any other property owned by the life tenant.
Statutory procedures provide for different methods of proving the death of the life tenant in order to clear the title of the property in the owner of the fee simple title.
A. - Having a Will does not prevent the necessity of probate proceedings, if you own any interest in property at the time of your death!
Because your Will is your expression of your last wishes, the law protects you when you are no longer able to protect yourself.
Many States require that your be produced in the Court shortly after your death. In Oklahoma, Title 58 O.S. Sec. 21 requires the custodian of your Will deliver it to the Court or Personal Representative within 30 days of receiving information of your death.
A. - Dispose of all of your interests in all of your property before you die!
A. - First - Recognize the fact that in most cases, Probate of at least a portion of your estate is inevitable - if you are to maintain control your own property during your lifetime!
We do, however, have certain opinions based on our experiece, and have a certain basic philosophy which may guide us in advising you.
What you decide to do with it after you no longer have a need for it is nobody's business. You don't have to leave your property to anyone just because someone else may consider it 'normal' or 'fair'
If you have a question of a general nature that you feel should be included in this segment, please let us know.
We also would like to receive comments and suggestions for better Answers.
Although we cannot give specific legal advice on the phone we are willing to answer questions of a general nature.
If your question is of general interest we may include your letter and our response as a part of our website.
We recommend that the 'joint tenancy' estate, in most cases only be used - when the property is jointly acquired - the parties are husband and wife - or a single person and an adult child who is an only child. There are many exceptions to this general rule, and before making your decision discuss the options with your attorney.
- Never - Never, ever create a 'joint tenancy' with a minor child!
- Serious problems can arise when you create a 'joint tenancy' in the names of more than one person - people don't always die in the proper order! - or when the 'joint tenant ' is one of several adult children, and you expect that child to be 'fair' with the others!
- If you put one adult child's name on a bank account for 'convenience only', unless you want that child to have the whole account on your death, be sure that your bank does not create an ownership or joint tenancy interest in the account in the name of the adult child!
- Caveat: - Joint Tenancy is a good estate planning tool - but whenever you put someone else's name on title to your property, be absolutely sure you know the full legal consequences. You should consult with your attorney to determine whether whether a 'Joint Tenancy' does what you want and expect it to do.
- Creation of a 'joint tenancy' is irrevocable without the 'consent' of the other joint tenant
Q. - What is a 'LIFE ESTATE' ?
- Never - Never, ever create a 'life estate' with a minor child!
- Creation of a 'Life Estate' is irrevocable without the 'consent' of the person owning the 'Life Estate'!
Q. - I Have a Will - Does my Will Need to be Probated?
Q. - How Can I Avoid Probate?
Q. - What Should I Do?
- Most Importantly - Never depend on the internet - or friends - nor relations - for legal advice! What is good for another person may not be good for you considering your unique circumstances.
- You should contact an attorney for your choosing to help you make any decisions concerning any legal matter.
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- 2001 - Joseph E. McKimmey
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