Oklahoma Probate

#3 Way to avoid Oklahoma probate after death – Affidavit of Delivery of Personal Property

Do you need to transfer stock or a bank account owned by a relative who has passed away in Oklahoma?

If it is Oklahoma property, this might be the solution for you.

This is the fourth article in the series 6 Ways to Avoid Oklahoma Probate after Death.  Oklahoma law has another type of small estate affidavit procedure that is focused on collecting personal property other than bank account funds.  The useful thing about this process is its broad coverage of various types of personal property.  It includes: “tangible personal property or an instrument evidencing a debt, obligation, stock, chose in action, or stock bond.”

The rightful owner of personal property as a result of the death of the decedent may deliver to the holder an affidavit setting forth the information required by 58 O.S. 2001 § 393 as follows:

  1. Fair market value, less liens and encumbrances, of the property located in Oklahoma does not exceed $50,000.00.
  2. There has been no petition for appointment of a personal representative.
  3. The persons entitled to payment or delivery and in what proportion.
  4. All the estate’s taxes and debts have been paid or otherwise provided for or are barred by a statute of limitations.

Once the rightful owner has complied with the statute, the holder of the personal property must deliver the property.

 

I provide probate and estate planning services in Edmond, Oklahoma City, and the Metro area.  If you want to discuss this article or anything about probate or transfer of assets of please feel free to email me at sjr@shawnjroberts.com.

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

#2 Way to Avoid Oklahoma Probate after death – life estate or joint tenancy

#2 Way to avoid Oklahoma probate after death: Joint Tenancy or Life Estate

This is the second article in the series 6 Ways to Avoid Oklahoma Probate after Death.  In Oklahoma, if you hold real property in joint tenancy with any person, the law allows you to change the title on the property after that person has died, without going into probate.

Following the steps laid out in 58 O.S. 2001 § 912, the surviving interest holder may file an affidavit which establishes for legal purposes a record the death of the deceased joint tenant. The document that is typically filed is the “Affidavit of Surviving Joint Tentant.”  You can see a copy of the Affidavit here.

The Affidavit of Surviving Joint is filed with the county clerk and is signed by the either (1) surviving joint tenant, (2) life tenant, (3) remainderman, or the personal representative. You also attach a certified copy of the death certificate to establish that the person has died.

 

I provide probate and estate planning services in Edmond, Oklahoma City and the Metro area.  If you want to discuss this article or anything about probate or transfer of assets of please feel free to email me at sjr@shawnjroberts.com.

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

#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.

Posted by Shawn Roberts in Blogposts, Oklahoma Probate