Probate and Avoiding Probate

Probate and Avoiding Probate

Probate is an often misunderstood topic, but simply stated, it is the court process of overseeing the distribution of assets and payment of debts after someone dies. Probate is required when the deceased person owned assets solely in their name. When there is a Last Will and Testament, that Will is taken to court to prove the authenticity and validity of it, and then to have the personal representative named and assets distributed according to the Will. When a person dies without a Will (or a Trust or other options I’ll discuss below), then the State of Oklahoma has a statutory formula for who may be appointed as the personal representative, and also how assets are to be distributed. That plan may not fit with your intentions! That is why it is important to consider at least a Will as an estate planning option. 

But there are other options besides a Will, that can be beneficial to avoid the time and expense of probate court. A Trust is the most comprehensive solution, and can allow the Grantor/Settlor (maker of the Trust) flexibility in how and when their assets are distributed. Trusts are intended to allow your loved ones the ability to make sure your debts are paid and your estate is distributed according to the Trust directions, without needing to go to a probate court to get approval or permissions. Trusts are meant to afford privacy as well, and typically are less expensive than a probate.

Depending on your specific situation, other options may also be available to avoid probate, such as designating “Payable on death” beneficiaries for financial accounts, or a “transfer on death” deed for a home or other real estate.  It’s important to make sure your beneficiaries are current on all your accounts.

In some cases, a family is able to transfer personal property or funds in an account using a Small Estate Affidavit, but the total estate must be less than $50,000.00.

Probate isn’t the end of the world, but most people would prefer that after their death, the process of handling their estate is made as simple as possible for their loved ones. In order to do that, it’s wise to get advice from an estate planning and probate attorney on how best to accomplish your goals.

We would be happy to help you start those conversations and create a plan to meet your needs.