Do I Need Probate?
When is Probate Necessary?
Not all estates or Wills have to be probated. Whether probate is required depends on the type and value of the assets the deceased person owned at death, not on whether he or she died with a Will. To oversimplify a bit, there are two main factors in determining whether you have to go through probate: (1) whether the deceased person died owning assets independently (in his or her name only) or with others as a tenant in common and (2) whether the assets so owned can be transferred by affidavit instead of by a probate court order. Let’s explore these factors.
Independently Owned Assets
A deceased person owned assets independently if his or her name is the only name on the title of the asset. For example, a home that has only John Doe’s name the deed is independently owned by John Doe. Similarly, a bank account or brokerage account held in John Doe’s name alone is independently owned by John. All such independently owned assets will need to be probated unless they fit into one of the categories of assets that can be transferred by affidavit, which are discussed below.
Assets Owned as Tenants in Common vs. Assets Owned as Joint Tenants
Generally, an asset is owned as a tenant in common if there are multiple people listed on the title of the asset and there is no language declaring them to be joint tenants or declaring them to have rights of survivorship. For example, a deed transferring a home to “John Doe and Jane Doe” results in John and Jane both owning the home as tenants in common. Likewise, a bank account held in the name of “John Doe and Jane Doe” creates an asset owned as tenants in common. When John or Jane die, such assets will need to be probated unless they fit into one of the categories of assets that can be transferred by affidavit, discussed below.
On the other hand, assets held in joint tenancy do not need to be probated because they pass automatically at death to the surviving joint tenant(s). For example, had the deed transferred the home to “John Doe and Jane Doe as joint tenants with rights of survivorship,” neither John nor Jane would own the asset as a tenant in common. They would both own as joint tenants and the survivor would automatically inherit the property. A word of caution about joint tenancies: the last surviving joint tenant becomes the independent owner of the asset and the asset will have to be probated after his or her death unless some additional action is taken to avoid probate, like placing the asset in a trust, placing it in a new joint tenancy, etc.
Other Assets That Don’t Need to be Probated
Before we explore the types of assets that qualify for transfer by affidavit, I want to mention the other common types of assets, in addition to those held in joint tenancy, that don’t need to be probated. There are five:
Trusts: Assets owned by a deceased person’s trust do not need to be probated. Upon death, instead of a family member having to petition the court to distribute the deceased person’s assets via probate, the trustee begins doing so immediately, without court supervision and according to the terms of the trust.
Life Estates: When a life tenant dies, the property passes automatically to the remaindermen, sans probate.
Pay-on-Death Accounts: Many bank accounts can be converted into POD accounts by filling out a simple form in which you identify a beneficiary who automatically receives the account’s funds when you die—no probate necessary.
Beneficiary Designations: Beneficiary designations on retirement accounts and life insurance policies function just like pay-on-death bank accounts. When you die, the assets pass directly to the named beneficiaries without the need for probate, assuming beneficiaries have been designated.
Transfer-on-Death Deeds: Oklahoma allows for real property and motor vehicle owners to execute deeds that identify beneficiaries who will automatically receive the asset upon their death, without probate.
If a deceased person died owning assets in these categories, those assets do not need to be probated. For more information on these types of assets and a more comprehensive list of ways to avoid probate through estate planning before death, check out our article How to Avoid Probate.
Assets That Qualify for Transfer by Affidavit
Even if the deceased person died owning assets independently (in his or her name only) or with others as a tenant in common, those assets may not need to be probated. Under certain circumstances, Oklahoma allows for such assets to be transferred by affidavit instead. There are four primary scenarios where affidavits can be used in place of probate:
Bank Accounts and Safe Deposit Boxes (No Will): If a bank account held solely in the name of a deceased person who did not have a Will contains less than $50,000, the bank may transfer the funds to the known heirs upon receipt of an affidavit from the heirs. Similarly, if the sole renter of a safe deposit box dies without a Will and the contents of the safe deposit box are his or her only known assets, the bank may release the contents to the heirs upon receipt of an affidavit from them. Note that the bank is not required to release the funds or contents to the heirs. It may.
Delivery of Personal Property and Payment of Debts: Anytime ten days after death, any person in possession of tangible personal property owned by the deceased person or owing money to him or her must deliver said property or pay the indebtedness to the person claiming to be the deceased person’s successor upon receipt of an affidavit from the successor stating all of the following: (a) the value of the deceased person’s property located in Oklahoma and passing by Will or intestacy, less liens and encumbrances, is less than $50,000; (b) no petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; (c) each claiming successor is entitled to payment or delivery of the property in the respective proportions set forth in the affidavit; and (d) all of the estate’s taxes and debts have been paid, otherwise provided for, or are barred by limitations.
Motor Vehicle (Will): The Oklahoma Tax Commission’s Motor Vehicle Division allows a vehicle beneficiary named in a Will to obtain title to the vehicle by filing out an affidavit that states all of the following: (a) the fair market value of property owned by the decedent in Oklahoma and subject to disposition by Will, less liens and encumbrances, is less than $50,000; (b) no petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; (c) the affiant is successor in interest to said vehicle and is entitled to delivery of it; and (d) all taxes and debts of the estate have been paid, otherwise provided for, or are barred by limitations. The affiant will also have to provide a copy of the death certificate and the unprobated Will that names him or her as the beneficiary of the vehicle.
Motor Vehicle (No Will): The Oklahoma Tax Commission’s Motor Vehicle Division also allows an heir who, according to Oklahoma’s intestacy laws, has a right to inherit the vehicle of a person dying without a Will to obtain legal title to the vehicle by filing an affidavit that states all of the following: (a) the decedent left no estate that needs to be probated; (b) no person has been appointed as personal representative; (c) the vehicle has not been bequeathed by Will to anyone; and (d) no living person has a prior right to the vehicle.
For more information on the types of assets that qualify for transfer by affidavit, check out our article How to Avoid Probate After Death: Utilizing Small Estate Affidavits.
So When Do You Have to Probate?
Generally speaking, a deceased person’s estate has to go through probate if he or she died owning assets independently (in his or her name only) or with others as a tenant in common, unless the asset was a motor vehicle or the estate was comprised of personal property valued at less than $50,000. If the deceased person died owning any other property—like real property—in his or her name only or with others as tenants in common, the estate will need to be probated.
Disclaimer: You should not make the determination of whether an estate or Will needs to be probated by yourself. You should always consult an attorney. If you’ve been named as an executor in a Will, you may have certain legal obligations to the estate. And if you are the custodian of a Will, you must deliver it to the executor named therein or to the district court having jurisdiction of the estate within 30 days after learning that the maker of the Will is dead. A failure to do so makes the custodian responsible for all damages sustained by any one injured thereby.
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