When [and why] you might need to do an Oklahoma probate

Jane Austen's Will

Have you ever wondered when an Oklahoma probate is actually necessary?

Although a lot of effort is put into avoiding Oklahoma probate, there are times when it is simply the only option to change the title to a piece of property or free up funds held in a bank account.

The result of a probate proceeding is usually a Judge signing an order that transfers title to property. Below are some scenarios in which you might need Oklahoma probate:

1. Real Property.  An unmarried person dies owning a house and title to the house is solely in the deceased person’s name;

2. Life insurance.  A person dies leaving a life insurance policy with beneficiaries who are no longer living;

3. Not transferred to Trust.  A person who has a living trust dies, but has property that was never transferred to the trust such as real property or investment accounts; and

4. Accounts with no beneficiary.  Typically, with retirement accounts, investment accounts and many times on bank accounts, there is the opportunity to name a beneficiary,  This is the person or people who automatically receive the proceeds of the account (with proof of death of the owner and proof of beneficiary identify of course).  If a person does not name at least one beneficiary on an account such as this, that usually means the account is going to probate.  Without probate, the company holding the account will not release it (here are two small exceptions to the general rule: Oklahoma small estate affidavit and Oklahoma affidavit of delivery of personal property).

5. Mineral Interests.  A person dies owning an Oklahoma mineral interest but the interest is not held in a trust and the title is solely in the name of person who dies.  Many times the operator of the Well will not continue to pay royalties without an order from the Oklahoma probate court specifying who the heirs are.

These are general examples but there may be ways in the specific situation to secure the funds without probate.

Another resource for figuring out when an Oklahoma probate may be required is the Oklahoma Bar Association’s article Is a Probate needed?

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."