How does an Oklahoma living trust help you *avoid* probate?

Judge Cullen (LOC)

Most people I come in contact with expect that in Oklahoma estate planning having an Oklahoma living trust will help their heirs avoid probate.

What most people don’t know is how the living trust accomplishes the avoidance of probate.  The answer is below.

The answer to the question depends on how the property is owned.  Let me go over some of the basics.

When is probate necessary?
To understand how a living trust helps avoid probate, you need to understand when probate is likely required. People most often end up in probate when someone dies and leaves that title only in the dead person’s name. For example, say a single person dies leaving title to their home only in their name. The heirs want to sell the home. No problem, except that the heirs must show that they are now legally the owners of the home. If the title is only in the name of person who died, the heirs are likely headed to probate where a judge will change title to the property, unless . . .

Where the Trust helps
But imagine this scenario: the single person dies leaving a home, but instead of title to the home being in the single person’s name, it is in the name of living trust. That is, the county land records reflect that the XYZ Living Trust is the owner of the home. Is probate necessary at this point? Probably not. Why? Because the heirs can deal with the house and even sell it, based on the terms of the Trust. The person’s death has no impact on ownership of the house. The ownership of the home was in the trust both before and after death.

Assuming that the Trust allows the house to be sold, when the time to pass title to the new owners comes, the Trustee will simply sign over title from the Trust. No court-order required. Oklahoma estate planning wins again.

Any questions? Consider checking out this Post on how property is owned in Oklahoma for more information.

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Posted by Shawn Roberts

On this blog, I write about and try to answer practical Oklahoma legal questions. My focus and most experience is in estate planning and business issues including Oklahoma non-compete law. I make a living as an attorney in the law firm I founded, Shawn J. Roberts, P.C. in Oklahoma City. I live in Edmond with my wife Amy and my two children, Sam (19) and David (11). We live precisely in the path of where the "wind comes sweeping down the plains."