Oklahoma Estate Planning Myths: Having a Will avoids Oklahoma probate

From the series Oklahoma Planning Myths . . .

MYTH: Having a will avoids probate.

FACT:  A Last Will and Testament does not do anything to avoid a probate case when the property at issue is real property.  A Will is the written expression of a person’s desires for how their property will be passed on following the person’s death.  A Will cannot however change title to real property.  Here is an example.

Mr. Tronald Dump passes away, without a spouse and as the owner of his home.  The real property records show that Mr. Dump is the sole owner of the home.  For legal title that Mr. Dump’s home to change to his heirs, a probate court will have enter an order changing title.

But, you say “Mr. Dump left a valid Lat Will and Testament that directs the home to his nephew?  Why isn’t that enough?”  The answer is that Mr. Trump’s Will directs the probate court on who to transfer title to the property to but Will itself doesn’t change title to the property.  For that reason, Mr. Dump’s nephew will have to file a probate case and ask the probate court to issue an order changing title from Mr. Dump to the nephew.

Probate proceedings must take place to transfer ownership of real estate, to appoint a guardian for minor children, and to appoint an administrator. If the Will is valid and uncontested, the court monitors administration of the will to ensure the decedent’s wishes are followed accurately and in a timely fashion. There is some cost involved, but not a tremendous amount.

A living trust, if properly executed and funded, is the Oklahoma estate planning tool that could help you avoid probate.

For other information on estate planning, including a podcast called “Estate Planning Demystified” check out my Oklahoma Estate Planning page.


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."