#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

A probate proceeding is a court-administered collection and distribution of a person’s property after they die. Probate can be with an Oklahoma last will and testament or without a last will and testament (intestate, through the laws of the State of Oklahoma). Most people want to avoid probate due to time and expense, some people set up revocable living trusts that help work around the probate process.

Probate is most often required when title to real property has to be changed or a bank account is not set up to automatically transfer to someone on death. For bank accounts, credit unions and savings and loan associations, Oklahoma law provides an opportunity to work around probate.  This applies if the person who passed away did not have a last will and testament.

If the amount in the account is $50,000.00, heirs can access the funds, without probate, by providing affidavits to the bank. (Title 6 O.S. sec. 906).  This statute says:

When a deposit has been made in a bank or credit union in the name of a sole individual without designation of a payable-on-death beneficiary, upon the death of the sole owner of the account if the amount of the aggregate deposits held in single ownership accounts in the name of the deceased individual is Fifty Thousand Dollars ($50,000.00) or less, the bank or credit union may transfer the funds to the known heirs of the deceased upon receipt of an affidavit sworn to by the known heirs of the deceased which establishes jurisdiction and relationship and states that the owner of the account left no will. The affidavit shall be sworn to and signed by the known heirs of the deceased and the same shall swear that the facts set forth in the affidavit establishing jurisdiction, heirship and intestacy are true and correct.

A couple of items to remember from the statute:

1. The bank is not required to allow the transfer;
2. The heirs must sign an affidavit that tells the bank that they are the people entitled to receive the funds ( if it turns out the people who sign the affidavit are not the one entitled to receive the funds, then they will be required to pay the bank back the money);
3. Generally, this option works only when the decedent left no last Will and Testament.