In some cases, you won’t need to go to probate court at all, depending on the type of property and other factors. However, if you do go to court, here’s what to expect:
File a Petition in Court for a hearing date
Get a personal representative appointed
File an inventory (listing of all the decedent’s property)
Pay the debts of the estate
Get a hearing for final accounting
Distribute the estate to all the heirs
These will be discussed in more detail, below.
You have a relative who has passed away, and you’re going to probate court. You wonder: What can I expect?
In some cases, you won’t need to go to probate court at all – there may be other ways of legally distributing the property. Whether you have to go to probate court, depends on the type of property, and how the decedent titled his property. In my earlier posts, I discuss when you will need to go to probate court to distribute a house or an automobile.
The first step, in a probate case, is to file a petition in court. After you file the petition, the assigned judge will set a hearing date. You will then have to send notice of this hearing date to all of the decedent’s known heirs, devisees, and legatees. If you don’t know the names and addresses of all heirs, devisees, and legatees, then, you will have to publish notice of the hearing in a newspaper in the county where you filed the petition.
At the hearing, the judge will appoint a personal representative of the estate. If the decedent had a will, the personal representative is called the executor. If the decedent had no will, the personal representative is called the administrator. The executor, will, typically, be the person named in the decedent’s will, unless that person is deceased, refuses to serve as executor, or is disqualified.
If the decedent had no will, then, there is a state statute which tells whom the court should appoint as administrator. This statute provides for the following order of preference:
The surviving husband or wife, or some competent person whom he or she may request to have appointed.
The children.
The father or mother.
The brothers or sisters.
The grandchildren.
The next of kin entitled to share in the distribution of the estate.
The creditors.
Any person legally competent.
In appointing an administrator, the court must follow this order of preference; that is, the Court must appoint the first available person on the order of preference, unless that person is unable to serve as executor, refuses to serve as executor, or is disqualified.
If you are appointed personal representative
Once you are appointed personal representative, you will have the authority to transact any business and take any legal action (such as filing lawsuits) in the name of the estate. In a typical probate case, the personal representative’s main duties include:
Filing an inventory of the estate, and
Paying the debts of the estate.
Filing an inventory of the estate.
Within two months after being appointed personal representative, you must file an inventory (a listing of all the decedent’s property) in court.
Paying the debts of the estate.
Also within two months of being appointed personal representative, you must send a notice to all known creditors of the decedent. You must also publish this notice in a newspaper in the county where the petition is filed. (Even if you are unaware of any creditors of the decedent, you still must publish notice to creditors in a local newspaper.)
This notice will inform all creditors that, if the decedent owed them any money, each creditor has two months to send a creditor’s claim to you, and to file the creditor’s claim in court. If any creditor does not send a claim to you, and file the claim in court, then, that creditor is forever barred from pursuing his claim again.
If a creditor sends you a claim, then you have two options: you may either approve the claim, or reject the claim. After you approve or reject the claim, send your approval or rejection to the judge. The judge, then, will also have the choice of either approving or rejecting the claim.
If both you and the judge approve the creditor’s claim, then, you must pay this claim out of the decedent’s estate. Call the creditor and attempt to negotiate a payment plan and terms of payment.
If either you or the judge reject the claim, then, the creditor may file a suit in court. If the claim is due at the time of the rejection, then, the creditor must file suit within 45 days after the date of the rejection. If the claim is not yet due at the time of the rejection, then the creditor must file suit within two months after the date the claim becomes due.
If you receive a creditor’s claim, and you neither approve the claim nor reject the claim within 30 days after you receive it, then, the claim is deemed rejected on the thirtieth day after you receive the claim. The creditor’s time to file suit commences on the thirtieth day after you receive the claim.
If you approve or reject a claim, and then send the claim to the judge, and the judge does not approve or reject the claim within 30 days after the judge receives it, then, the claim is deemed rejected on the thirtieth day after the judge receives the claim. The creditor’s time to file suit commences on the thirtieth day after the judge receives the claim.
If the creditor does not file suit within the allotted time, then, the creditor will be forever barred from pursuing his claim.
Also, during this time, you are also required to pay certain other debts of the decedent. You must pay these debts in the following order:
Funeral expenses.
The expenses of the last sickness.
Funds necessary for the support of the family and allowed by the court pursuant to the provisions of this chapter.
Taxes to the United States or the state, county, or city.
Debts having preference under the laws of the United States and of this state.
Judgments rendered against the decedent in his lifetime, which are liens upon his property and mortgages in the order of their date.
Interest resulting from the extension of time for payment of federal estate or transfer taxes.
As personal representative, you will be allowed to ask the court for permission to sell some of the estate property to pay the debts.
Final accounting
After you have paid all of the debts of the estate, then, the estate is ready for a final accounting. A final accounting is where the judge signs an order ending the probate case, and distributing all property to the heirs.
To schedule the final accounting, file a petition in court. After you file the petition, the judge should set a date for a hearing. You will then have to send all of the heirs, devisees, and legatees notice of the hearing. You also have to publish notice of the hearing in a local newspaper in the county where the petition is filed. (If the estate is worth less than $150,000, then you may ask the court to allow a “summary administration.” In a summary administration, you may combine the notice to creditors with the notice of final hearing, and, creditors only have thirty days to respond and send you a claim. For further information on summary administration, see my blog post on the topic.)
At the final accounting, you will appear before the judge, and ask the judge to sign a decree of distribution. Oklahoma law provides that property of a decedent is to be distributed as follows:
If the decedent had a will
If the decedent had a will and the will is valid, then, state law requires that the property be distributed as the will provided.
If the decedent had no will
If the decedent had no will (or, if the decedent had a will and the will is not valid) then, the decedent will be deemed to have died intestate. The Oklahoma intestate succession law requires that the property of an intestate be distributed in specified proportions to certain relatives. To see which relatives have the right to inherit, click on the Oklahoma intestate succession law here. Also, if the decedent had a will, and he owned property that is not provided for in the will, the property not mentioned in the will is intestate property, and is to be distributed as per the Oklahoma intestate succession law.
If there is a Settlement Agreement
Even if the decedent had a will, the heirs may enter into a settlement agreement, and agree to distribute the property differently than the decedent provided for in his will. If the decedent had no will, the heirs may enter into a settlement agreement, and agree to distribute the property differently than is provided for in the Oklahoma intestate succession law. If the heirs enter a settlement agreement, and the judge approves the settlement agreement, then, the judge will order that the property be distributed as provided for in the settlement agreement.
How long will a probate case take?
A simple, uncontested probate case usually takes six months to a year, from the filing of the case, until final distribution. If the case is more complex, or is contested, the case may take much longer (even several years). On this blog post, I discuss, in further detail, the length of time it will take to complete a probate case. I also have posted a chart that shows the length of time if took for each probate case filed between January 1 and March 31, 2017. The average length of time it took to complete all of the probate cases during this time period, is 334 days.
How much will probate cost?
A simple, uncontested probate case will probably cost between $3,000 and $10,000. If the case is more complex, or is contested, there is no limit on how much the case could cost.
For further information on the costs of probate, click here.
Contested probate cases
A contested probate case, is a case where one party (usually an heir or someone who claims they have the right to inherit) disagrees with some part of what the personal representative is claiming. The contestant may challenge the validity of the will, the identity of the heirs, the amount of money or property in the estate, how the property is to be distributed, how the estate is being administered, or who should be personal representative. The contestant will have the right to present his arguments in court, the court may set the matter for trial.
A contested probate case is one of the most contentious, emotionally difficult, types of legal proceedings. You almost always want to avoid a contested probate case. If you are in a probate case, and it appears that someone is about to contest it, it is advisable to try to work out a settlement out of court. You may want to try mediation.
Additional considerations
This blog post only scratches the surface of probate law. In every probate case, there are innumerable additional events that could spring up. Probate is complex, and, if you go to probate court, you will most likely need a lawyer to represent you.