Dewbre & Dewbre P.C.

What is Probate?

A deceased person’s “estate” is all of the property owned by that person at the time of death.  Essentially, probate is the process of gathering all of the property together and distributing it to the persons named in the deceased person’s will or, if there was no will, then distributing it to the persons and in the order set out by law. Usually, the probate procedure must be supervised by the Court; a lawsuit is filed by the executor or administrator of the deceased person’s estate in which it is claimed that the person died and the surviving heirs are identified.  If there is one, the will is admitted to probate by the Court.  Other parties may contest the will, meaning that they do not believe the will was properly executed according to law, in which case, a trial is held to determine whether the will shall be “admited”, or accepted in the probate.

The Court appoints the personal representative of the estate (formerly called the executor or administrator) who must report to the Court all of the property owned by the Decedent.  The personal representative must also give notice to creditors of the passing of the decedent and collect all claims by creditors against deceased person. After all property is gathered and identified, and all claims of creditors resolved, the personal representative reports of his/activities and requests that the Court order the distribution of the remaining estate to the persons identified by will or by law.  The Court then may enter its order distributing the property and releasing the personal representative from any further responsibility to the Court.

The necessity of filing a probate action is not determined by the value of the deceased person’s estate, but rather by the type of property owned.  For example, if the deceased owned a house, bank account or other asset in his/her name only, then because the deceased can no longer sign any documents, there is no one alive authorized to sign a deed, withdraw the money, etc.; a probate must be started so that the Court may appoint a personal representative which will have the authority (with permission of the Court) to sign deeds, give withdrawl instructions to banks, etc.  However, in some cases, there may be alternatives to probate; for example, if all property is owned in joint tenancy, then all interest of the decedent passes “by operation of law.” This means that no probate is necessary, although an estate tax return must be prepared and submitted to the Oklahoma tax commission; also, affidavits of the surviving joint tenant may be necessary to clear title to any land or other titled.

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