#1 Way to avoid Oklahoma probate after death – Small Estate Affidavit

This is the first in series of 6 short articles on 6 Ways to avoid Oklahoma probate after death.

#1 Way to avoid Oklahoma probate after death: The Small Estate Affidavit for bank accounts

This is the first in a series of six short articles on ways to avoid Oklahoma probate after death.

#1 Way to Avoid Oklahoma Probate After Death: Small Estate Affidavits

Probate is the court-supervised process for collecting a deceased person’s property, paying proper debts and expenses, and distributing the remaining property to the people entitled to receive it. Probate may be necessary whether a person dies with an Oklahoma Last Will and Testament or without a Will.

Fortunately, not every asset requires a probate proceeding. Oklahoma law provides several procedures that may allow relatively small amounts of property to be collected after death without opening a probate case.

Two Oklahoma statutes are particularly useful.

1. The Oklahoma Small Estate Affidavit — 58 O.S. § 393

Oklahoma’s broader small estate affidavit statute is found at 58 O.S. § 393.

Generally, after at least ten days have passed following a person’s death, a successor may use an affidavit to collect certain property belonging to the deceased person if:

1. The net value of the deceased person’s property located in Oklahoma that is subject to disposition by Will or intestate succession does not exceed $50,000;

2. No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and

3. The person presenting the affidavit is entitled to receive the property as a successor of the deceased person.

The statute can apply to more than just bank accounts. Depending upon the circumstances, it may be used to collect money owed to the deceased person, tangible personal property, stocks, certain contractual rights, or other personal property.

For example, assume an insurance company owes money to a person who dies before receiving the payment. If the requirements of § 393 are satisfied, the deceased person’s successor may be able to use a small estate affidavit to collect those proceeds without opening a probate proceeding.

An important point is that the $50,000 limit generally refers to the value of the deceased person’s Oklahoma probate estate, not merely the particular check or account being collected.

Property that passes outside probate—such as property passing by joint tenancy, a properly designated payable-on-death account, or an asset with a valid beneficiary designation—will often be treated differently because it is not being distributed under the person’s Will or Oklahoma’s intestacy laws.

2. Bank and Credit Union Accounts — 6 O.S. § 906

Oklahoma also has a separate statute specifically addressing certain bank and credit union accounts.

Under 6 O.S. § 906, when a person dies owning a single-owner bank or credit union account with no payable-on-death beneficiary, and the aggregate amount held in qualifying single-ownership accounts is $50,000 or less, the financial institution may transfer the funds to the deceased person’s known heirs upon receipt of the required affidavit.

This procedure is more limited than § 393. Among other requirements, § 906 generally applies when the account owner left no Will, and the affidavit must establish the heirs’ relationship to the deceased person and the person’s intestacy.

Also, the statute provides that the bank or credit union may transfer the funds. In other words, the statute gives the financial institution authority to do so, but it does not necessarily require the institution to use that procedure.

Which Affidavit Applies?

The answer depends upon the asset and the circumstances.

For a qualifying bank or credit union account where the deceased person left no Will, 6 O.S. § 906 may provide a simple solution.

For other types of personal property—or where the deceased person left a Will—58 O.S. § 393 may provide a broader method of collecting the property without probate.

Neither statute is a substitute for proper estate planning, and neither will work in every situation. But when the estate is relatively small and consists primarily of personal property, these affidavit procedures can sometimes save the family the time and expense of opening a full Oklahoma probate proceeding.