You have a relative who has passed away, and you wonder if you need to go through probate.
Probate is the process where, after a person dies, the deceased person (the decedent)’s heirs go to court and ask a judge to place the property in the legal ownership of the heirs. Even the simplest probate can take up to six months and cost over a thousand dollars. For this reason, many people try to find substitutes for probate.
Probate is necessary for some estates, but not for others. I’ll give a quick review of when probate may be necessary.
Real Property
If the person died owning real property, look at the deed and see in whose name the property is titled. (To find the deed, you may need to go to the county clerk’s office in the county where the land is located. The law requires that a deed to land be filed with the county clerk.)
If the deed is in the name of only the decedent
If the deed is in the name of only the decedent, you’ll need to probate the property. If the owner had a will, then the heirs will be those the owner named in his will. If the owner did not have a will, the Oklahoma Intestate Succession Law. Will determine who the heirs are. For more information on the Oklahoma Intestate Succession Law, click here.
(However, if the decedent executed a transfer on death deed before he died, then you won’t need probate. All you’ll need to do is take an affidavit, along with the decedent’s death certificate, to the county clerk’s office. For more information on Transfer on Death Deeds, read my earlier blog post here.)
If there is another co-owner of the property
If the property is not solely in the name of the decedent, but is co-owned by the decedent and another person, ask the question: Do the parties own the property as joint tenants, or do they own the property as tenants in common?
The way to find this out is to look at the deed. If the deed says the words, “joint tenants” or “joint tenancy” or “right or survivorship” then the property is probably in joint tenancy. If the deed does not contain this language, then the property is probably in tenancy in common.
The difference here is critical. If the property is in joint tenancy, no probate is necessary. The surviving owner needs to take an affidavit, along with the decedent’s death certificate, to the county clerk’s office. Once the county clerk records the affidavit and death certificate, the surviving owner owns the entire estate. For more information on joint tenancy, read my earlier posts here and here.
But if the property is in tenancy in common, probate will be necessary. If two or more people own property as tenants in common, then, when one owner dies, the surviving owner(s) will own only a partial interest in the property. The other partial interest in the property will be in the name of the estate, and the deceased owner’s heirs will have to probate the property to get the remaining interest in the property.
If the owner had a will, then the heirs will be those the owner named in his will. If the owner did not have a will, the Oklahoma Intestate Succession Law will determine who the heirs are. For more information on the Oklahoma Intestate Succession Law, click here.
If the property is in the name of corporation or a trust
Look at the deed. If the named owner of the property is a corporation, the new owner will be the successors in interest in the corporation. If the named owner of the property is a trust, the new owner will be the successor trustee(s).
To find out who are the successors in interest of a corporation, or the successors in interest of a trust, you will need to find the corporate documents or the trust documents. It may be difficult to find these documents, because no law requires anyone to file these documents in any public office, and people generally don’t file corporate documents or trust documents with a public office. If you can’t locate corporate documents or trust documents, it may be necessary to file a lawsuit against the corporation or trust. Publish notice of the lawsuit in a local newspaper, and if no one comes forward to claim an interest in the property, ask a judge to transfer the property into your name. Such a lawsuit can be as difficult as, or more difficult than, a probate case.
Motor vehicles
If the decedent owned a motor vehicle, you likely won’t have to go through probate. Service Oklahoma (the state agency that handles car titles) has created forms where you can go to the local tag agency, fill out the forms, and transfer the title to the motor vehicle. For more information on how to do this, read my post, “When a Motor Vehicle Owner Has Died, What Happens to the Vehicle?”
Personal property or money worth less than $50,000
If the decedent owned personal property or money worth less than $50,000, you don’t generally need to go through probate. Oklahoma has created a “small estate affidavit” to transfer property of estates worth less than $50,000. Fill out the small estate affidavit and give the affidavit to the person holding the property. The person holding the property will be required to transfer the property to the heirs. For information about a small estate affidavit, click here.
Personal property or money worth more than $50,000
If the value of the estate was worth more than $50,000, you’ll probably need to go through probate. In some cases, though, there may be another way to transfer the property. Ask the custodian of the property (the bank, for example) if they’ll require probate.
Want to know whether you need to go through probate? The Persaud Law Office can help.
The Persaud Law Office has handled many estate cases, and we can help you find out whether you need to go through probate. We can also help you fill out the forms used to bypass probate. If you have questions about whether you need probate, contact us today.