Consider the cost/benefit analysis in determining whether to do an Oklahoma probate

One of the primary questions that needs to be answered is whether a probate case is necessary? As we discussed, my goal is always to try to find a way to avoid doing a probate case if possible and still allow my client to access the assets.

Whether you do an Oklahoma probate is a cost/benefit analysis:  The cost of doing the probate (attorney fees, court costs, etc.. .) versus the benefit you hope to receive from the process (control over property, inheritance of property you would not otherwise get).  To be able to perform a reliable cost/benefit analysis, you need to understand why probate happens.  The answer is that while probate happens for many reasons, the primary reason is when there is property to inherit, but it can’t be inherited unless you do probate.

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 the property.

Why probate happens

Below are some scenarios in which you might need Oklahoma probate:
  • Real Property.

An unmarried person dies owning a house and title to the house is solely in the deceased person’s name; although other states provide a process where title to real property can be transferred by affidavit, I am not aware of any similar process in the state of Oklahoma. I believe that the only way to transfer title to real property, where the person who died is the sole owner of the real property, is to get an order from a judge transferring title, out of a probate case.
  • Life insurance.

A person dies leaving a life insurance policy with beneficiaries who are no longer living;
  • 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;
  • Accounts with no beneficiary.

Typically, with retirement accounts, investment accounts and many times on bank accounts, there is the opportunity to name a beneficiary.  The beneficiary 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 (there are two small exceptions to the general rule: Oklahoma small estate affidavit and Oklahoma affidavit of delivery of personal property); and
  • 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 the 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.
As you might expect, this means that sometimes the question of whether to do probate or not is difficult when the value of the assets in the estate are small because that value must be weighed against the cost of doing the probate.

Who would end up with the property in probate?

The other question is assuming the person who passed away did not have a last will and testament, who would end up owning the property?  His property would pass under Oklahoma law of intestate succession, which is found at Title 84 O.S. sec. 213.  Section 213 is a difficult statute to interpret, but generally, the order of inheritance would go as follows:  spouse, children, grandchildren, the parents of the decedent, children of parents in equal shares (your uncle’s siblings), grandparents of the decedent; children of the decedent’s grandparents.

Summary Probate

Sometimes the question of whether to do a probate or not is difficult when the value of the assets in the estate are small because that value must be weighed against the cost of doing the probate.
The Estate may qualify for the summary probate process. This is an abbreviated version of a full probate, with the emphasis being on speed and reducing some of the cost of the normal probate process. That being said, there are still cost. In my experience, this type of probate cost 3,000.00-$3500.00, plus out-of-pocket cost.  You can read more about the summary probate process here.

Posted by Shawn Roberts

I write about and try to answer practical Oklahoma legal questions. I tend to focus on estate planning and business issues. I make a living as an attorney working for Resolution Legal Group in Oklahoma City. I am husband to Amy and the father of Sam and David. We live exactly in the path where the "wind comes sweeping down the plains."