We are often asked if a probate attorney is necessary to handle legal processes after a person dies. While it may be possible to handle probate without the help of a lawyer, it is highly recommended to hire a probate attorney to make the process as seamless as possible.
It’s tough enough dealing with the emotional stress of losing a loved one, but the burden of managing probate only exacerbates what is already a difficult time. A probate attorney may certainly help to minimize stress and ensure that the deceased’s estate is fairly distributed and fully protected throughout the probate process.
What is probate?
Probate is the process of managing the estate of a person who has passed away. It involves dividing up both real estate and personal property to rightful heirs and arranging for full payment of any debts or taxes owed by the deceased.
If the deceased had a will drawn up before their passing, probate includes the authentication of this will. The court will verify that the will is legitimate before overseeing the division of assets to ensure that the directions of the will are obeyed. If the person died without a will, the probate process becomes more complex as the court must establish the most appropriate way to divide the deceased’s assets between heirs.
When is probate necessary?
Probate is almost always necessary, but there are some exceptions. If the total value of the person’s estate – excluding real estate – is less than $50,000, it is possible to avoid probate and instead use a Small Estates Affidavit to process the distribution of the property to rightful heirs. However, real estate owned by the deceased person, if it is in their name alone, must still go through probate.
There are other types of property that do not need to go through probate courts, such as property in trusts, retirement accounts, life insurance, and joint tenancy real estate. However, it can be tricky to establish which aspects of the deceased’s estate is probate property and which is non-probate property. In instances, there will be a combination of probate and non-probate property types to deal with. It is therefore highly recommended that you seek the advice of probate lawyers as soon as possible to avoid complications down the line.
Is probate necessary when there is a will?
Probate can often be more straightforward when there is a will, but the existence of a will does not mean that probate is not required. Essentially, probate is the process of the court supervising the distribution of an estate. The court will check in regularly with the executor of the will to ensure that the directions of the will are being honored.
Sometimes a will may exist, but it may not make it completely clear how the estate is set to be distributed. In other cases, heirs may contest the directions of the will. In either of these instances, the probate court will be responsible for determining how to divide the estate. Oklahoma has a series of laws of descent and distribution which help probate court judges to determine how to distribute property in a range of circumstances.
What happens during probate if there is not a will?
The first step in probate court when a person died without a will is to appoint a personal representative, and in most cases, this is the person who is the closest relative to the deceased. The personal representative acts in much the same way that an executor would if a will did exist; they temporarily take possession and responsibility of the deceased’s property until the probate process is complete, and they will carry out the court’s orders regarding distributing the property once heirs have been determined.
Once the personal representative has been named, the deceased’s estate is then valued, and creditors and beneficiaries are established. The probate judge will then determine the fairest way to distribute property to rightful heirs.
How long does probate take?
If a will exists and it is not contested, it can take on average up to six months for the entire probate process to complete. If a will is not clear or is contested, or if a will does not exist, probate will likely take much longer. With very complex estates or in circumstances where documentation relating to the estate is missing, probate can take several years.
During probate, the executor of the will of the personal representative is responsible for protecting the deceased’s property. They must keep up with bills related to the property, including utilities and mortgages, and they’re also responsible for collecting payments and debts due to the property such as interest, rents, and dividends.
It can be incredibly overwhelming for an executor or personal representative to handle probate without the advice and support of an Oklahoma probate attorney. The experienced probate lawyers here at Giles Law, P.C., can help you to navigate the complex probate process with less stress and worry. If you need advice, give us a call to arrange a free no-obligation consultation.