Here is the problem. Title in many assets does not automatically pass to the relatives without a court order.
Troublesome assets include:
- Real Estate
- Oil, Gas, Royalty and Mineral Interests
- Vehicles
- Bank Accounts
Often children or even a spouse may find that they are unable to sell, mortgage or transfer the property because “title” is in the name of the deceased person. There may be royalties for oil and gas placed in “suspense”. This means that the company responsible for paying the royalties won’t do so until it is satisfied that you are entitled to receive it.
What if there isn’t a Will?
If there is not Will, property passes according to the state “intestacy” statute. A Will is not needed for a probate.
The solution:
Oklahoma has many probate procedures that can be used:
Small Estate Affidavit:
If an estate consists of personal property (bank accounts, insurance proceeds, etc) a small estate affidavit may be a method to gain access to cash or title to vehicles.
Summary probate:
Summary probates are often available and a good choice when:
- small estates under $200,000; or
- estates for those who died more than 5 years ago; or
- estates for someone who died while living outside of Oklahoma
A summary probate can be completed in a few months assuming that there are no major issues. It usually works best when there is no need to sell assets and creditors claims do not exceed cash on hand.
Ancillary Probate:
An ancillary probate is available if there has already been a probate in the decedent’s home state. This can be effective if the parties are just looking to get assets into the names of the heirs. This can be completed in a few months.
Heirship Quiet Title:
Often there are several generations of un-probated estates. Rather than completing several probates, title to real estate or minerals can be cleaned up with a heirship quite title action.
Standard Probate:
Sometimes and estate not eligible for is too complex for the above mentioned procedures. A standard probate may be the only way.
The Summary Administration is designed to quickly resolve title problems for these estates.
These issues often arise in the following situations:
- Oil and Gas Title Problems
- Real Estate Title Problems
- Stocks, bonds, IRAs or other retirement accounts without beneficiary designations
- Bank accounts
- Other property issues.
The Court appoints a Special Administrator is appointed by the court. Notices are sent to creditors, heirs and legatees. A hearing is set at least 45 days later. If there are no objections or contested creditors’ claims, the Special Administrator files a final account. If the court, is satisfied a final account is entered that conveys property according to the Will or if there was no will according to the Descent and Distribution (Intestacy)[3] statute.
This procedure can be used whether or not the decedent had a Will or Trust.[4]
This procedure, while not without cost, can provide a relatively quick way to resolve various title problems.
Feel free to contact me about this or similar problems.
[1] Probate is a court proceeding overseen by a judge to insure that creditors, heirs and legatees are receive their rightful share of a decedent’s estate.
[2] Title 12 Okla. Stat. Section 245 (12 O.S. § 245).
[3] Intestacy is a statutory plan of inheritance for property subject to probate. (Property without a beneficiary designation, joint tenancy, transfer on death or provided for in a Trust.) 84 O.S. § 213.
[4] If property was not titled in a trust a probate is necessary.