If I Have A Will, Does It Still Go Through Probate?

Probate is the court-supervised process of either (a) carrying out the instructions laid out in a deceased person’s will, or (b) applying state law to distribute the assets and property of someone who died without a will. Not all wills, and not all accounts and property, need to go through probate court. Littleton Legal’s Broken Arrow Probate Attorneys can help determine the best estate plan that meets your needs.

Estates, wills, and probate are distinct, yet interrelated, estate planning concepts.

• An estate consists of everything that a person owns—including their personal possessions, real estate, financial accounts, and insurance policies. Almost everyone leaves an estate when they die, even if it is very small.
• A will is the legally valid written instructions that a person creates describing how they want their money and property distributed upon their death. Wills are highly recommended, but there is no legal requirement to have one. To make a will legally valid, it must be properly executed in accordance with state law.
• Probate is the legal process that formally distributes the accounts and property that are in the decedent’s sole name, do not have a beneficiary designated, and have not been placed into a living trust prior to the decedent’s death. During probate, a decedent’s probate assets are identified and gathered, their debts are paid, and the probate assets are distributed to beneficiaries named in the will or their heirs as determined by state law there was no will.

Probate with a Will

When a probate is required for a person that died with a will-based estate plan, here is what typically happens:

• The person nominated in the will to act as executor (sometimes called the personal representative) files a copy of the death certificate, the original will, and any required documents or pleadings with the probate court.
• The court examines the will and other documents filed to confirm their validity and gives the named executor the legal authority to carry out the decedent’s wishes, as specified in their will.
• The individual appointed as executor inventories and values the decedent’s estate assets and identifies any outstanding debts of the estate, such as loans and credit card debt.
• Once estate debts are paid, assets are liquidated, and final taxes are paid, the remaining accounts and property are distributed to named beneficiaries and the estate is closed, ending the probate process.

The length of a probate can vary depending on many factors, including the size of the estate, state laws, and whether the will is deemed invalid or contested, but in Oklahoma typically takes at least a year.

Avoiding Probate

Most people want to avoid probate all together. The process itself is time-consuming and expensive, and your assets, debts, and personal family information become public record. You also lose the opportunity to pass down assets to your intended beneficiaries with asset protection and tax planning goals in mind.

Beneficiary designations, joint ownership, trusts, and affidavits are common ways to avoid probate, but only if they are done correctly. Here are some examples of these probate-avoidance tools in action:

• Financial accounts that allow for designated beneficiaries upon your death may not need to be probated. Transfer-on-death (TOD) and payable-on-death (POD) accounts are generally treated the same as accounts that have a beneficiary designation. However, you should never name a person who receives Medicaid or SSI, or a minor child, as a beneficiary or TOD/POD designee.
• Accounts and property that are jointly owned and have a right of survivorship can bypass probate.
• Accounts or property held in a trust may also bypass probate, and give you the opportunity to pass assets down to your beneficiaries with added protections like asset protection and tax planning.
• Oklahoma has a “small estate” law that allows probate to be skipped if the value of the total estate is less than $50,000 and specific facts that must be alleged in a sworn affidavit are true.

Avoid Probate Issues When Drafting a Will

Probate avoidance may be one of your goals when creating an estate plan. You should also consider implementing tools in your estate plan to minimize issues that may arise if your estate does require probate. An outdated or unclear will can spell trouble when it is time to probate your estate, making it important to identify and address issues that could lead to problems, including will contests and family disputes.

It is recommended that you update and review your estate plan every three to five years or whenever there is a significant life change or a change in federal or state law. You also want to periodically review how you own your assets to determine if it aligns with your estate planning goals.

Contact Littleton Legal today at (918) 608-1836. Our experienced Tulsa County Probate Attorneys will determine what type of estate plan is best for you, and if your current plan meets your needs.