Ask the Lawyer: Probate Q&A

Senator1947

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As promised, a separate thread to discuss general matters relating to probate. It's never pleasant to think about the need for such things, but it's something that inevitably faces all of us, so a little information and understanding now can prevent a lot of stress in an already stressful moment. I'll start with some common questions and topics, and anybody is free to chime in with other questions, either from what I've posted or new questions.

This is not legal advice; this is a general informational forum, and your specific circumstances may cause the answers to be different. If you have specific questions regarding an actual situation, contact me privately and I'll arrange to get in touch with you by phone for a personal discussion.

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First of all, let's start with some definitions

  • Decedent: the person who has shuffled off this mortal coil
  • Testate: died with a (valid) will
  • Intestate: died without a valid will
  • Executor: the person who disposes of the estate of a testate decedent after the probate process is completed; the term comes from the fact that he executes the will
  • Administrator: the person who administers the estate while probate is in process; also, the person who oversees disposal of the estate of an intestate decedent after the probate court issues its final orders. This distinction may seem pedantic, but its relevance will become clear shortly.
  • Heirs, devisees, legatees, etc.: different terms for the same people, depending upon whether they're taking through testate or intestate succession, whether their receiving money or property, etc. This one is largely pedantic.
  • Estate: not just land, it's the whole of everything owned by the decedent, including real property (land), personal property (everything else tangible), financial assets, intellectual property (patents, trademarks, etc.; not an issue for most people), businesses, the whole shootin' match.

What is probate?
So, the most basic question is simply "what is probate?" Probate comes from the Latin "to prove;" it is the process by which a will is proven to the satisfaction of the court, and its instructions carried out. Probate also extends to the case where there is no will; when there's no will, we have a set of default rules ("intestate succession") that determine who gets what, and the probate process establishes who has valid claims. The probate process also formally names people to act on behalf of the estate to perform the necessary actions to take care of the estate as provided by law.​

Why probate?
As mentioned above, probate is about process: it's about establishing claims that the law will recognize, and it's about giving the administrator and/or executor the legitimacy to act. In many ways, probate is about protection: it protects the person handling the estate from claims that he has no right to do so, and it protects others from claims that they improperly gave the assets of the estate to somebody who shouldn't have them. Put yourself in the position of a bank: you have a large account belonging to a person now deceased. Somebody comes up to you and says "yeah, my dad died, and I need to pass out his money." Are you going to take that at face value? Of course not. The probate process appoints an administrator and gives him court-issued Letters of Administration authorizing him to take control of those funds. If you give him control after receiving such Letters, you're legally protected; you're following the order of the court. Any malfeasance is on his part, not yours.​
Similarly, it protects you as the Administrator: say your dad has three kids. You go to the bank and take control of the account, and your sister suddenly decides she should be in charge, not you. Ugly fight (and yes, it happens frequently). Having a court-issued Letter of Administration makes you the official Administrator; if she has a problem with that, she can take it to the probate judge and make her case, but you at least have protection from claims that you acted without proper authorization.​
The same principles apply to the Executor (or final Administrator) after the final order is entered.​

Do I have to go through probate?
To do it right, yes. Probate puts the official seal of approval on the actions of the Administrator/Executor. It also "closes" the estate; once probate is completed, it is very difficult to bring future claims against the estate (it's still possible to bring claims that the execution was bungled, but that's different). As part of the process, all potential heirs and creditors are notified of the death and given a chance to register their claims for adjudication. This includes final bills like utilities, medical bills, etc., as well as all known relatives who might be in the chain of succession. If they fail to register their claims with the court, their claims become forever barred, protecting the estate (and the Administrator/Executor) from claims down the road that "I should have had a cut of that!"​

Is probate expensive?
The next most common question. The answer, of course, is "it depends." If probate is uncontested, it doesn't have to be expensive at all, particularly for smaller estates (see next question). If it turns into a fight, well, any time you have a fight, it can get pricey, fast. That said, see above about how the process offers protection; oftentimes, the fight can be avoided by following the process in a transparent manner so all can see what's going on. Summary probate (see next question) is often handled for a fixed fee. In any event, be sure to get a clear understanding of the costs and reduce it to writing before hiring anybody.​

What do you mean by "smaller estates?" Why does that matter?
I'm glad you asked! In order to keep costs and complexity down, Oklahoma has a process called "summary probate" for smaller estates (and a few other matters that are less likely to be complicated) with relaxed requirements. The requirements are found at 58 O.S. 245; at the time of this writing, estates valued up to $200,000 are eligible for summary probate. The process is streamlined somewhat, and can be completed in as little as 45 days (statutory minimum; ~60 is more common as a minimum for most counties, though rural counties that don't have a daily probate docket may take longer just due to scheduling requirements).​

Who pays for probate?
In simple cases, probate costs are typically paid by the estate; when a case becomes contested, the contesting parties usually pay their own costs. As always, this can be varied by agreement of the parties; also, if a party acts in bad faith, he can become liable for others' costs.​

You drew a distinction between Administrator and Executor, and said it mattered. Why?
Glad you caught that. An Administrator manages the estate during the pendency of the proceedings; he is generally not authorized to distribute property. Exceptions include such things as paying the bills of the estate, etc. The Administrator is often the person who will become the Executor, but need not be; I've run across a case that involved a small business owned by the decedent, and the Administrator was somebody from the business with the knowledge and experience to run the business; he was appointed to keep things running, make operational decisions, pay employees, etc. Meeting such bills is not the same as giving the heirs their inheritances.​
Contrast that with the Executor: the Executor executes the terms of the will, making final distributions to the heirs. That word "final" is the key difference between the Executor and the Administrator: the Administrator preserves the status quo, while the Executor brings things to a close. The final Administrator in an intestate case performs the same functions as the Executor of a testate case, but is still distinguishable from the temporary Administrator acting during the pendency of the proceedings. It may be the same person, but he's wearing two different hats, and it's important that he remember which one he's wearing at what time.​

Who can be the Administrator? The Executor?
Literally anybody. Traditionally, those roles fall to a family member, but they may be a business associate (see previous), a lawyer, trusted friend, even an independent appointee. An Executor is sometimes nominated in the will. Sometimes, there's a fight over who should get those roles; in the end, the court will settle the matter.​

You said something about rules for when there's no will?
Yes. Oklahoma--like all states--has rules for how to distribute an estate when the decedent's wishes are unknown. This is called "intestate succession." It's kind of complicated, but the general order of things is that the spouse (if married) gets half, then the remainder is divided among the kids. If no kids, we look next to the parents, then to the siblings, and then to more distant relatives.​
In reality, it's considerably more complicated than that, particularly with regards to the spouse--marital property gets divided differently than non-marital property. This is where you really need to talk to a lawyer regarding your specific case; it's very easy to get this wrong.​

Can I disinherit my spouse/kids (or, "waaaah, I'm not in the will! He can't do that!")?
Maybe you can, maybe you can't. In general, you can't completely disinherit your spouse; Oklahoma (like most states) has a provision called the "forced share" that entitles the spouse to a 1/2 share of all marital property notwithstanding the terms of the will (84 O.S. 44). This share can be waived by valid prenuptial agreement, but that obviously requires a prenup. The policy reasons behind that are that A) marital property is the product of joint industry, so it would be unfair to deprive the surviving spouse of the fruits of her labor, and B) historically, we didn't want do leave a widow destitute with no means of support.​
Kids, you're probably out of luck. Your parents absolutely can disinherit you (hint: this is an incentive to not act like a little ****). Exception: if you were born after the will was written, or otherwise unintentionally omitted (the latter being a question of fact for the court to determine), you can force a share equal to what you would have received had the decedent been intestate (84 O.S. 131 and 132).​

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That should get the discussion started. I'm away from my desk just now, so I don't have all of my usual FAQ materials in front of me, but feel free to ask questions and I'll answer them as best I can; when I get back, I'll chime in with more of my usual notes.
I personally tell folks that they should put aside enough money to live on and then spend the rest on an expensive cruise/trip and tell the kids to get a job (or suck an egg, their choice) and leave the remainder of their estate to their favorite charity. I also suggest they hire a good probate lawyer to do their will so the kids can not successfully contest the will.
 

dennishoddy

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I personally tell folks that they should put aside enough money to live on and then spend the rest on an expensive cruise/trip and tell the kids to get a job (or suck an egg, their choice) and leave the remainder of their estate to their favorite charity. I also suggest they hire a good probate lawyer to do their will so the kids can not successfully contest the will.
Unfortunately the OP in this thread is deceased. He was a great resource.
If one's family is convoluted and at odds with each other, your advice may be good.
Write a check for your last dollar the day before you die.
But, in my case and I'm sure many others, the family is content to put up with what has been passed on to them by their parents.
My sister and I had a seamless transfer after Mom died. As co-executors she could never handle money or finances and gave me the responsibility.
If anything needed rounded up, I made sure she got the upper hand on it. She needed the money more than we did.
Where it gets tricky is when there has been a divorce with both parties getting remarried and children involved.
There can be some major issues about property, and assets acquired during the past marriages that can cause issues because the kids on each side want what assets were gained during previous marriages. Right of survivorship covers most of this.
We have pretty much taken care of all of this with trusts for properties, along with specified items acquired in previous marriages to be dispersed after death.
Probate can be avoided in Oklahoma for homes and automobiles by filing a form at the Country Clerks office.
Don't remember the form number/name as it's been a few years, but we have filled one out for our end of life document.
 

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