How Long Does A Probate Take In Oklahoma?
If you find yourself about to go through a probate, You're probably wondering just how long the process will take. Let's back up for a second though - what exactly is a probate? A probate is the legal procedure and process in which a deceased person’s estate passes to their heirs and/or beneficiaries.
A probate is triggered when a person passes away while owning property solely in their name with no transfer on death mechanisms in place prior to their passing. It's important to remember that although a will is extremely useful in this process, a will does not avoid a probate. It is important to know that having a will is not the same thing as a transfer on death mechanism.
How Does A Probate Work?
There are three* main steps when filing a probate. First is contacting a lawyer and setting an initial hearing date with the court. The second step is called the creditor claim period. The third and final step is called Final Accounting.
* Depending on the situation, you might have one additional step - the sale of real property. This isn't always needed, but can delay the probate.
The absolute fastest timeline for the probate process is four to six months, only for probates with no heir and/or creditor disputes, no property to be sold and no delays in setting court hearings.
More than likely, a probate will take longer than six months. Here's a breakdown of why it takes so long.
Starting a Probate
Timeline: Variable
Anybody who thinks a probate is needed for a deceased person will need to contact an estate lawyer. This, however, begs the question – how do you know if a probate is needed?
If someone in your life has passed away and you believe you are supposed to get some of their possessions, monetary assets or physical assets (such as property or a house) after their passing, then you have answered the question – yes you need a probate. For example, you cannot transfer funds out of a deceased person’s bank account or transfer a real estate title unless there is an order from a probate court.
Individual possessions (like a grandfather clock, for example) will not solely trigger a probate, but those items could be a part of the probate estate, should a probate need to be opened.
Once you have met with your lawyer, they will help you determine if a probate is necessary. Should the lawyer determine that a probate will be needed, you need to determine if there is a valid will. You will also need to provide information about the deceased person, yourself and all other legal heirs and/or beneficiaries named under a will (if there is a will).
The information you should be prepared to provide includes:
- names of heirs
- mailing addresses of heirs and whether or not the individual is an adult or a minor
- the full legal name of the decedent (person who died)
- County of residence at the time of their passing,
- date of death and information as to the assets of the person who has passed and liabilities of the decedent (such as a creditor or debt – this could be credit card bills, medical bills, mortgages, car notes, etc.)
Once the lawyer has all the above-listed information, they’ll need time to draft the initial filings for the probate. After these documents are completed, reviewed and signed by you (the client), the probate will be filed, and an initial hearing date will be set. This is where the timeline differs from county to county in Oklahoma. Some counties will give a hearing date as little as two weeks out from the initial filing, whereas some counties will set a hearing four to five weeks out.
At the initial hearing, which takes place in a courtroom in front of a judge, the case will be presented to the court. The sole purpose of this hearing is to appoint the personal representative (most likely, you – the client) and, if there is a will, to admit the will to probate.
Within two months of the initial hearing, the estate has to file an inventory outlining all assets of the state and their actual or estimated value – this is any cash assets, estimated value of real estate, vehicles and a global estimation of personal property value if that’s warranted; for example, if the decedent wore only designer clothing and owned expensive jewelry, you will need to estimate the value of these; however if items did not have significant monetary value, then it wouldn’t be applicable.
Following the initial hearing and inventory of assets, we enter the next step of the process, known as the Creditor Claim Period.
What Is The Creditor Claim Period And What Is A Creditor Claim?
Timeline: two months
A creditor claim is a formal presentation of a legitimate claim (e.g. a debt) that a person or entity has against the decedent, presented to either the personal representative or the probate lawyer. A creditor claim must specify the nature and source of the claim, the exact amount claimed, whether the claim is secured by a security interest (like a mortgage or a filed lien) and must be signed by the creditor or creditor’s authorized representative.
A creditor cannot make a claim against the estate until a notice to creditors has been filed (which happens after step one in the probate process). Creditors also must provide evidence of the claim (such as an invoice, mortgage statement, lien, etc.). Should a creditor (also called a claimant) be unable to provide evidence of a valid claim, this could be grounds for rejecting a claim. A claim should only be rejected upon advice from the lawyer and only for a claim that is not believed to be valid. Claims cannot be rejected merely because you don’t want the estate to pay it. If a claim is rejected, a creditor may bring an action in the probate court to pursue their claim.
We mentioned a notice to creditors above – this is the trigger for the second step in this process. A notice to creditors must be published in a legal newspaper once a week for two consecutive weeks. Direct notice also must be mailed to all known creditors.However, if you aren’t sure if there are any creditors to the estate, you must take steps to try and find what is called reasonably ascertainable creditors. The easiest way to do this is to check the mail of the deceased person for any bills (like credit card statements, etc.).
Although the notice to creditors must be published for two weeks, the creditor claim period runs for a full two months.The two month creditor claim period is standard, written in law and non-negotiable. Any claim presented within the creditor claim period must be approved or rejected by the personal representative. After the two month creditor claim period ends, any claim presented after that period is forever barred and cannot be asserted against the estate.
If there is any contention or litigation between the estate and a creditor, this will extend the time needed to close the probate.
Optional Step: Selling Assets During Probate
Timeline: Variable
Items in the estate that don’t need to be sold don’t need to be a trigger for this step. The easiest way of dealing with personal property is to have all heirs and/or beneficiaries come in and take the nominal and sentimental items they want and then have an estate sale for the rest. However, DO NOT have an estate sale without talking to your lawyer and making sure that you have court permission to sell assets of the estate.
If the estate includes items such as real estate, vehicles, and/or personal property that need to be sold and converted to cash for ease of probate administration and distribution, then court authorization is required. You need to have court permission to sell any assets of the estate during the time period of the probate.
All heirs and/or beneficiaries will need to agree that a piece of property should be sold. They will need to sign a consent, and then the personal representative can file an application for court authorization to sell the property.
This process can be started at any time after the initial hearing. It is then up to the personal representative to determine if all or only some of the property needs to be sold before the probate can be completed. This process and decision will have a direct influence on how long the remainder of the probate will take, primarily because it is difficult to predict how long an asset could take to sell (such as a house). The probate will remain open until the assets are sold.
Of course, if there is any dissension amongst heirs and/or beneficiaries, this will extend the timeline and delay closing the probate.
Final Accounting
Timeline: Variable
After the creditor claim period closes (remember, this is a standard two months), the estate may then begin the procedure of closing out the probate itself.
Should it be determined that the estate is ready to be closed, there is a first and final accounting that has to be filed.T. his informs the court that the estate is ready for closing, and also lists the ultimate estate assets and outlines the distribution to the heirs and/or beneficiaries as either provided by Oklahoma law (if there is no will) or by the terms of the will (if there is a will).
Once the first and final accounting is filed, a hearing date will need to be set. The final hearing date differs from county to county in Oklahoma, but generally is set one to two months out from the filing of the first and final account. Similarly to the Notice to Creditors, notice of the final hearing must be published in a legal newspaper once a week for two consecutive weeks.
At the final hearing, which also will take place in a courtroom in front of a judge just like the initial hearing, the court will enter an order for distributing the estate. The personal representative may then distribute the assets per the court order. Upon receiving their respective share of the estate, each heir or beneficiary must sign a receipt.
Once the personal representative has all the receipts, they will then sign a final report. The final report informs the court that the personal representative has distributed all assets pursuant to the order of the court. The court is then able to discharge the personal representative of all further duties in the probate, thus finalizing the probate process.
Final Thoughts
Probates are complex, but, make more sense when you break them down into the steps and stages that comprise them. If you think a probate is needed for a friend or loved one, you're night need an estate lawyer. Contact our office for a consultation.