Highlights of Probate and Non-Probate Transfers

A few Highlights of Probate and Probate Alternatives

 

Property held in joint tenancy

Land – Terminating Joint Tenancy

Real estate in Oklahoma is often held in “joint tenancy, with the right of survivorship” in Oklahoma.  Look for that language on the face of the deed and remember that “and/or” will not be sufficient to form a joint tenancy in real estate. If joint tenancy with the right of survivorship exists, the land belonging in part to a deceased person can be easily transferred into ownership of the surviving joint tenant by use of an “affidavit of surviving joint tenant” filed with the county clerk in the county where the land is located.  To complete that affidavit, you will probably need to have a copy of the deed that placed the land into joint tenancy as you must describe several aspects of that deed on the affidavit that terminates the joint tenancy.  If you do not have a copy of the joint tenancy deed, you should be able to purchase a copy from the county clerk.  You should ask your county clerk if the deed that put the property into joint tenancy is the most recent deed to that property.  There are occasions where property has been mistakenly removed from joint tenancy during a refinancing or other land transaction.  If there is any doubt about the existence of joint tenancy, an attorney or title company should be able to assist you in making that determination.  You will also need to attach a certified copy of a legal description.  Many County Clerks in Oklahoma will provide you a form that can be used to terminate a joint tenancy.  It can be a bit confusing, but if you take your time and read carefully, you can complete this task without hiring an attorney.

 

 

  • Vehicles

 

Vehicles with titles which designate two owners with “and/or” between their names will almost always be found to be held in joint tenancy and will be owned full by the survivor of the two owners.  In this event, the vehicle will usually not be subject to probate, and the surviving owner can generally expect to be determined to the the only owner of the vehicle.
The Oklahoma Tax Commission also allows vehicles to be taken out of the name of a deceased person by use of an affidavit in certain circumstances (thereby avoiding probate of that vehicle).  Your local tag office can provide the affidavit form and help you determine whether your situation qualifies for a title transfer without a probate.

 

Bank Accounts
Financial accounts may be held in joint tenancy with the right of survivorship, and thereby transferring ownership fully to the surviving joint tenant without the necessity of the account being subject to the probate court process.  Do not rely on the names written on the statement – look at the signature card and read it carefully.  The account may be held in joint tenancy or one of you may be thereon as “signer only” or as Power of Attorney (which is no longer in force once the one who granted the power has passed away).  You can often get an officer of the bank to help you interpret the signature card and explain the ownership of the account, if you were somehow listed on the account.  If you were not listed on the signature card, the bank is unlikely to give you any information concerning the account.

 

Life Insurance

Most life insurance policies have a “beneficiary designation”and the proceeds of the policy are usually not subject to probate; but if the beneficiary predeceased the policyholder, this money may be subject to probate.  Bank accounts and investment accounts may also have beneficiary designations and thereby avoid probate.

 

What is Probate?

Probate is the court process whereby someone is appointed to take control of the decedent’s estate and administer it in accord with the state statutes.  Given that the owner is deceased, no one has authority to control the property of the decedent until the Court grants authority.
(A) Why do we need a probate?
The Court-appointed personal representative will have authority to gather the assets belonging to the deceased person.  Issue Notice to creditors and require the creditors to file their claims quickly or be barred from later collection efforts. The PR may bring lawsuits on behalf of the deceased person.

(B) What is a Personal Representative or Executor?  This is the person whom the Court appoints to hold the power over estate assets.  Must gather the property, gather the bills, file tax returns, and prepare the estate to be distributed by the Court.  This person should be trustworthy, must keep records of the income and expenses of the estate.
Advantages of Probate

Probate, although feared by some, has some important advantages.
(A) You will be able to drastically limit the creditor’s time to make claims, thereby avoiding the chance of a successful lawsuit years after the date of death.
(B) The probate may be necessary in order to pursue lawsuits on behalf of the deceased person. Only the Personal Representative of the Estate can bring certain claims.
(C) There will be court supervision to assure that everyone gets a chance to point out possible problems.  The heirs will get notice of the important court actions and will be able to come to court and file their objections when that is necessary. The Personal Representative will create and file written accountings that will help the heirs know what is happening and what, if anything, they should do.
(D) Even insolvent estates can benefit in probate.  Some creditors will not file claims and will not have to be paid. The creditors who do file claims will be paid in accord with the state law of priorities among creditors and the family will be spared the harassing telephone calls.

Need a Cheap Web Design?