Oklahoma Probate

What is the difference between the Personal Representative and Power of Attorney?

Can you explain the difference in duties required by the person who is the Personal Representative and the person who has the Power of Attorney?  

The primary difference between the Personal Representative (“PR”) and the person appointed under a power of attorney the attorney in fact (the “POA”) is that the PR is administering the estate after the person has passed away and the POA is caring for the person while they are incapacitated, but still living.  POA powers terminate upon death.

Personal Representative

  •  The PR is responsible for securing the Last Will and Testament of the decedent (if there is one) and distributing the decedent’s property according to the terms of the Will. There are usually bills to pay, a tax return to file, personal belongings to gather and other items that need to be addressed. In some cases, a probate proceeding may be necessary.  The PR would be responsible for getting this proceeding filed and completed (with the assistance of an attorney).

Attorney in Fact

  •  The POA receives power to act on behalf of the incapacitated person when the person is determined to be incapacitated under the terms of the power of attorney document.  Typically, this is when a determination is made by at least one medical professional that person can no longer care for themselves.
  • The POA is charged with taking care of the incapacitated person’s financial needs, health and welfare needs and other day-to-day to issues.  For example, a POA may pay bills, communicate with the doctors and make decisions about the incapacitated person is going to be cared for.
  •  Legally, it probably makes no difference whether it is the same person who is POA and PR.  However, practically, many times the other spouse is the person chosen to be both the POA and then the PR.  A person who has acted as the POA and then acts as the PR has a bit of an advantage because they already have experience with the decedent’s estate.

 Is it best that whoever is appointed to act following the death of both spouses be the same person?

Whether it is best to have the same person as POA and PR for both spouses if you are both either incapacitated or pass way simultaneously depends on several things.

  • Is the person you appoint to act as POA capable of caring for two incapacitated people at the same time?
  • Will or could that person also have duties to care for minor children as well as the new guardian? Again, if the same person is PR and there is a simultaneous death of both spouses, the person must be capable of administering both estates.  It can be done, it is simply a question of the competency of the person who is appointed.
  • Practically, where there is one person who both husband and wife are comfortable with, that person is often appointed successor PR of both estates.

 

Posted by Shawn Roberts in Oklahoma Estate Planning, Oklahoma Probate

When you might need to do an Oklahoma probate

Jane Austen's Will

Have you ever wondered when an Oklahoma probate is actually necessary?

Although a lot of effort is put into avoiding Oklahoma probate, there are times when it is simply the only option to change the title to a piece of property or free up funds held in a bank account.

The result of a probate proceeding is usually a Judge signing an order that transfers title to property. Below are some scenarios in which you might need Oklahoma probate:

1. Real Property.  An unmarried person dies owning a house and title to the house is solely in the deceased person’s name;

2. Life insurance.  A person dies leaving a life insurance policy with beneficiaries who are no longer living;

3. Not transferred to Trust.  A person who has a living trust dies, but has property that was never transferred to the trust such as real property or investment accounts; and

4. Accounts with no beneficiary.  Typically, with retirement accounts, investment accounts and many times on bank accounts, there is the opportunity to name a beneficiary,  This is the person or people who automatically receive the proceeds of the account (with proof of death of the owner and proof of beneficiary identify of course).  If a person does not name at least one beneficiary on an account such as this, that usually means the account is going to probate.  Without probate, the company holding the account will not release it (here are two small exceptions to the general rule: Oklahoma small estate affidavit and Oklahoma affidavit of delivery of personal property).

5. Mineral Interests.  A person dies owning an Oklahoma mineral interest but the interest is not held in a trust and the title is solely in the name of person who dies.  Many times the operator of the Well will not continue to pay royalties without an order from the Oklahoma probate court specifying who the heirs are.

These are general examples but there may be ways in the specific situation to secure the funds without probate.

Another resource for figuring out when an Oklahoma probate may be required is the Oklahoma Bar Association’s article Is a Probate needed?

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Oklahoma Probate

Oklahoma probate: Deliver the Will or be responsible for damages

Have you ever wondered what happens if someone dies and you are the person who is keeping their Last Will and Testament for them?

If not, consider this material.

An Oklahoma law that many people may not be aware can have a big impact on a person who holds an Oklahoma Last Will and Testament after the person who made it dies.

Title 58 of the Oklahoma Statutes, Section 21 provides that within 30 days of the date the holder of a Last Will and Testament finds out the person who made the Will has died, the holder has to either (a) deliver the Will to the District Court in the county in which the person who died lived or (b) deliver the Will to the person named as executor in the Will.

If you are the holder of the Will and you do not do this, it makes you “responsible for all damages sustained by any one injured thereby.”

This law applies whether or not you believe there needs to be an Oklahoma probate.

Don’t forget to deliver!

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Oklahoma Probate

What is Oklahoma probate?

Do you hear the phrase Oklahoma probate and wonder what it actually is?  And wonder what happens in an Oklahoma probate proceeding?  Read on to find out. Continue reading →

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Oklahoma Probate

What is the Oklahoma summary probate process?

hero
It is kinda like Apple’s iPad Mini: Smaller, but every inch a probate.

Oklahoma’s summary probate process eliminates a couple of the steps that a full probate requires but it gets you to same point in the end.

The Differences
For one, there is only one hearing in front of Judge. That is the final hearing at which the judge signs off on the order give you the relief you requested, if you have done what you are supposed to have done. Instead of a hearing in which the Last Will and Testament is admitted to probate, that happens at the end. The first step after the case is filed, is the judge appointing a person to act as the executor.

The other major difference is that the require waiting periods and deadlines are shorter in Oklahoma’s summary probate process.

What qualifies for summary probate
To qualify for the Oklahoma summary probate process, your estate must fall into one of three categories:

(1) estates with a value of $175,000 or less,
(2) any ancillary proceeding whether or not a will has been admitted to probate in another
jurisdiction, or
(3) any estate in which the decedent has been deceased for more than five years.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Oklahoma Probate

Five Questions and Answers about Oklahoma probate

 

What is Oklahoma probate?
Oklahoma probate is the process of a court administering the estate of someone who dies to determine:

1. What property the person owned.
2. What debts the person had.
3. Who is entitled to receive the property.

Probate can happen even if you have a Last Will and Testament or a Living Trust. One of the most important elements in determining whether an estate will need to be probated is property: is there property that can’t be transferred without an order from a court? Typically, this is real property, although it may also be mineral interests, bank accounts or investment accounts as well. There are some ways to avoid probate even after a person dies, I listed some of them in this post.

 

When would you need to use Oklahoma probate?
It most often happens when a person dies as the sole owner of real property or with an insurance policy with the beneficiary designated as the “estate”.  There is no way to transfer title to property without a court order.  When the heirs try to sell the property, they will discover that a probate is necessary.  BUT you might also consider my series “Six Ways to Avoid Probate after Someone Passes Away“.

 

How long does Oklahoma probate take?
It varies by how complicated it is and what you are trying to accomplish, but generally anywhere from five months to one year.

 

What is Oklahoma summary probate? Summary Probate
Summary probate is a shorter, quicker version of a full-blown probate. Rather than there being two hearings in front of the Judge, there is only one hearing, at the end of the process. To give you an idea of what to expect, below is a visualization of the Oklahoma summary probate process.  You can read a more detailed article about Oklahoma summary probate here.

 

How much does Oklahoma probate cost?
It varies based on the attorney and level of complication of the case but typically you can expect $3,000.00 to $4,000.00 in attorney fees and costs.

If you are looking for an attorney to handle your Oklahoma probate, consider this post about finding a probate attorney.

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

How do I find an attorney to do an Oklahoma probate?

If you can find a way to avoid doing an Oklahoma probate after someone passes away, do it. I provided some tips on this in my blog series “6 ways to avoid Oklahoma probate after death

If you must do an Oklahoma probate, then finding a good attorney is essential. Often, finding a good attorney to do anything is a challenge, including doing an Oklahoma probate.

Click to find out about probate

I provided some general guidance on finding an attorney in this post. The other things to look for are:

Experience. You need an attorney who has done at least a few probates. There is no reason to pay someone with no experience to learn the process on your time. For example, you can figure out how much experience I have by searching the Oklahoma State Courts Network records for probate cases in which I have been involved. This type of search (using my name, Oklahoma County only) yields 22 results.

The Oklahoma State Courts Network is available to anyone and you can search cases and attorneys by following this link.

Fees. While shopping for a probate attorney is not like shopping for a toaster or a new bathing suit, it is nice to know approximately how much it is going to cost. For example, an attorney should be able to give you a range of costs, say $2,500.00-$3,000.00 for a standard probate and what any additional expenses will be (such as filing fees).

Availability. The point of this factor isn’t so you can rush through the process. Rather, most people in the position of needing to probate something need to get to certain assets, sooner rather than later. Be certain the attorney you choose can start work on your Oklahoma probate project in a reasonable period of time.

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

The Oklahoma Summary Probate process explained in vibrant, colorful imagery

Court Street, Keene, NH

Sometimes, when someone passes away, Oklahoma probate is unavoidable (read about why in this post).  When you are forced to go through the Oklahoma probate process, what are the options for getting done quicker?

If your estate is small, you may be able to short-circuit the process by using Oklahoma summary probate.

Definition

Summary probate is a shorter, quicker version of a full-blown probate. Rather than there being two hearings in front of the Judge, there is only one hearing, at the end of the process. To give you an idea of what to expect, below is a visualization of the Oklahoma summary probate process.

Visualized

Summary Probate

Qualification

To qualify for summary probate (technically referred to as “summary administration”), the estate must meet one of the following criteria:

1. The value of the estate is less than or equal to $175,000.00;
2. The decedent has been deceased for more than five (5) years; or
3. The decedent resided In another jurisdiction at the time of death.

If you have any questions about whether an estate qualifies for Oklahoma summary probate even about Oklahoma probate, send me an email (sjr@shawnjroberts.com).

 


Posted by Shawn Roberts in Blogposts, Oklahoma Probate

How to change the title to a house after someone dies

Housing Photo used under Creative Commons from James Thompson

This article will show you how to change the title to a house held in joint tenancy when one of the joint tenants has passed away.

The item that most often leads people into probate following a loved ones death is real property: usually a house that was owned solely by an unmarried relative and not in a trust. The only way to change the title to a house is to get an order from a court in a probate case.

In Oklahoma, there is however, another situation where no court order is required: if the house is owned in joint tenancy between two or people, with a right of survivorship. This type of title is commonly found among married people. Upon the death of one spouse, the surviving spouse becomes the sole owner of the property based on being a joint tenant, with a right of survivorship.

Even with joint tenancy, following the death of one of the joint tenants, there are several steps you need to take for the law to recognize that you are sole owner. Below I will list and explain each step. The result of these steps is that you have recorded an Oklahoma Affidavit of Surviving Joint Tenant.
Continue reading →

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

How do you know when you need a Trust instead of a Will?

trust-482655_1280In a previous post, I wrote about the times a person needs to have an Oklahoma Last Will and Testament. The Will is the most basic of estate planning documents. There are, however, times when need and/or personal preference dictate that the revocable trust is a better choice.

How do you know when trust would be better? Consider some of these factors:

1. Privacy is important.

As I wrote a couple of months ago, this factor is often underrated in estate planning. If a Will is probated, all records of the proceeding are publicly available and, indeed, available online for anyone to view and print at any hour of the day or night.

2. Strong desire to avoid probate.

A Will does not provide any means to avoid probate. If you pass away owning real property that is not jointly titled, your heirs will be going through probate process at some point. With an Oklahoma trust however, the trust exists and owns the real property the day it is transferred into the trust. Since the Trust is the owner of the real property, the death of an individual does not impact this.  No probate case is required to transfer title to the real property.  Your family saves time and money.

3. You need to plan for a mental disability or a special needs.

If you have children, grandchildren, or other dependents with special needs a Trust can be customized to meet these needs, by specifying and limiting access or control over inherited property. A Will allows you to pass on your property to those heirs but a Will in itself does not allow you to exercise substantial control over your heirs use of the property.

4. You own real property in more than one state.

If you have a summer home in Missouri, leaving that property in a Will probably means a Missouri probate: hiring an attorney in Missouri and paying attorney fees and costs to get the property transferred. A Trust allows you to hold and pass the title on the real estate to your loved ones without the unnecessary travel and expense if doing a probate case in a foreign state.

5. You have children who are not children of your spouse.

Children from previous relationships require special consideration because each child likely has an absolute right to inherit from their parent.  However, your current relationship circumstances may call for distributing property differently. A Trust, more flexible than a Will, is a better vehicle to handle these considerations and ensure that your assets go precisely where you them to go.

If you found this post useful, below are a few other posts which you may also find useful:

Why privacy is a highly underrated feature of a living trust

When do I need to have a will?

A diagram of the documents used in Oklahoma estate planning

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Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Oklahoma Probate