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Do You Have To File a Probate?
Maybe, But Maybe Not.
When a loved one dies, survivors are often unsure about whether or not they have to file for probate to transfer the deceased person's money and property. While probate may be necessary, it is not always required. Before hiring an attorney to file a probate, consider the following:
Joint Tenancy: Real property like a house or land may be owned by more than one person. If real property is owned in "joint tenancy with right of survivorship," it automatically passes to the surviving owner without probate. The surviving owner should file an Affidavit of Surviving Joint Tenant with the county clerk's office. It may be necessary to file a certified copy of the death certificate and a letter from the Oklahoma Tax Commission stating the deceased did not owe any estate taxes.
Joint Accounts: Like real property, bank accounts may be owned jointly. If so, the money in the account automatically passes to the surviving account holder. However, accounts may be temporarily frozen in order to allow outstanding checks to clear.
POD and TOD: Both real property and financial accounts may have designated beneficiaries. For real property, a Transfer-On-Death deed may be filed with the county clerk to designate who will inherit the property upon the death of the owner. The beneficiaries only have to file an affidavit and certified copy of the death certificate. For bank accounts and other types of financial accounts, Payable-On-Death beneficiaries may be designated. Upon receipt by the financial institution of a death certificate, the money should be released to the beneficiary.
Estates > $20,000: If a person died with no more than $20,000 (and no real estate), money and other tangible property (such as a car) may pass to the heirs without a probate. Depending on the situation, there are two different types of affidavits that can be signed. They both require that no probate procedure have been started.
Vehicles: The Department of Motor Vehicles provides an affidavit that can be used to transfer title of a vehicle after the owner dies. The No Administrator Affidavit can be used only if no probate has been filed and the vehicle wasn't left to someone else in a will.
Personal Belongings: Any possessions that don't have title of ownership, such as furniture and household items, can often be distributed among the family informally. However, this requires everyone to agree. Make sure there are no disputes before distributing the tangible property.
If all of the decedent's property can pass through these other ways, a probate is probably not needed. Some of these options are no longer available once a probate is started, so make sure probate is necessary before filing a probate petition.
For more information, contact the Senior Law Resource Center at (405) 528-0858 or info@senior-law.org.
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New Senior Citizens Handbook
Oklahoma Bar Association Published New Legal Guide for Seniors
The Oklahoma Bar Association Young Lawyers Division has updated and republished its Senior Citizens Handbook, a legal guide. The booklet covers a variety of topics, including Social Security, Medicare, age discrimination, and landlord-tenant issues. Copies of the guide are available on no charge by calling (405) 416-7000 or on-line at www.okbar.org/public/brochures.
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About the Senior Law Resource Center
The Senior Law Resource Center is a 501(c)3 non-profit organization dedicated to empowering Oklahomans to age with independence, dignity, and security by providing high-quality, affordable legal information and services.
Senior Law Resource Center
600 N.W. 23rd Street, Ste. 106
Oklahoma City, Oklahoma 73103
(405) 528-0858
FAX: (405) 601-2134 info@senior-law.org www.senior-law.org |
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Affordable Legal Services Available
Our attorneys provide free information and affordable assistance with basic estate and incapacity planning, probate, adult guardianship, and other elder law issues. We have no income or age requirements.
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Support the Senior Law Resource Center
If you value the information and services provided by the Senior Law Resource Center, please consider making a tax-deductible donation.
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Free Materials Available
The Senior Law Resource Center offers a variety of educational materials, including:
-Your Right To Decide: Oklahoma's Advance Directive & Other Health Care Planning Tools -Who Decides? Caring for Patients with Diminished Capacity -Striking a Balance: A Guide to Adult Guardianship for Guardians and Wards -Grandparenting in Oklahoma: Law & Resources for Grandparents & Other Relatives -Advance Directives & End-Of-Life Guidance in Oklahoma (video) All of our materials are free and available online at www.senior-law.org.
To order printed copies, or for more information, email info@senior-law.org or call (405) 528-0858.
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We Welcome a New Attorney To Our Staff
The Senior Law Resource Center is pleased to announce that Sarah Stewart has joined our office as Senior Managing Attorney. Sarah will provide a variety of client services, including adult guardianship, probate, and estate planning.
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In the News
Catheryn Koss, Executive Director, was recently featured in The Oklahoman business section (June 16, 2011). In the Q&A with Catheryn Koss, she discussed the new banking law allowing small bank accounts to pass to heirs without probate.
Click here to view the article.
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