Oklahoma Bar Journal
How to Know When You Need to File a Probate
By Sarah Stewart and Hiba Jameel
Oklahoma law generally allows for three different probate procedures. First, is the traditional probate procedure under Oklahoma Statutes Title 58, generally. Second, is summary administration under 58 O.S. §246. Third, is an ancillary proceeding under 58 O.S. §677. Probate procedures include intestate probates, where the decedent does not have a last will and testament and testate probates, where the decedent does have a last will and testament. Intestate probates follow the intestacy rules in the Oklahoma Statutes.1
Though Oklahoma law provides direction for probate procedures in certain situations, Oklahoma also allows for circumstances where a probate does not need to be filed. If any of the following situations apply to your case, you do not need to file a probate.
WHEN ALL ASSETS ARE OWNED JOINTLY WITH RIGHTS OF SURVIVORSHIP, AND THERE IS A SURVIVING OWNER
Many assets can be owned by more than one person as joint tenants with rights of survivorship. That includes bank accounts, automobiles and even real property. Under Oklahoma law, an account held jointly in the names of more than one person is presumed to pass to the surviving owner, outside of the decedent’s estate.2
Additionally, real estate can be owned by more than one person as joint owners with rights of survivorship and pass outside the decedent’s estate. However, if the surviving joint owner seeks to claim the real estate outside the estate, the joint owner will need to file an affidavit of surviving joint tenant and certified death certificate in the county where the property is located.3
If the property owned by the decedent is held jointly with rights of survivorship, the property will pass to the surviving owner entirely at the death of the joint owner. However, if the joint owner died without transferring the property in one of the ways described herein, the property will have to go through probate.
WHEN ALL ASSETS ARE OWNED BY A TRUST
One estate planning tool used often to avoid probate is a trust. A trust avoids the probate process because all the assets titled into the trust are owned by the trust at the owner’s death. So, there is no need for the court process of probate to transfer the assets.
Trustees can usually manage personal and real property with the powers granted to them under the trust. When the trustee conveys or acquires real property in the trust’s name, the trustee must file a memorandum of trust with the county clerk in the county where the real estate is located.4
A trust is only as good as what you put in it. If a piece of property is not properly titled into the trust and does not meet one of the other circumstances discussed herein, the property will need to go through one of Oklahoma’s probate processes.
WHEN BENEFICIARIES ARE NAMED
When you set up securities and security accounts,5 the issuing company often asks the owner to name beneficiaries for the accounts. Oklahoma law recognizes those beneficiaries as the rightful owners of the asset after the owner dies, and property named with beneficiaries will pass outside the probate estate.6 Similarly, some kinds of insurance policies allow owners to name beneficiaries for the funds. In order to retrieve the assets, the beneficiaries must provide proof of death of the last surviving owner.
In Oklahoma, account holders can also name payable on death beneficiaries to their bank accounts through each individual bank’s process. A payable on death beneficiary will inherit the asset directly upon proof of death, without the need for probate, just as other beneficiaries would.7 If there is no surviving beneficiary or payable on death beneficiary named, the assets will become part of the estate. That means a probate must be opened to transfer the property to the decedent’s heirs.
A similar option exists for real estate; however, the process for claiming the property is more stringent. Transfer on death deeds are deeds that allow a real property owner to name a beneficiary for the owner’s property at the owner’s death. The deed must be filed in the county clerk’s office in the county where the property is located in order to claim the property upon the owner’s death. For owners who die after Nov. 1, 2011, the beneficiaries must file an affidavit to claim their interest in the property and proof of death at the county clerk’s office in the county where the property is located within nine months of the owner’s death. Otherwise, the property will revert back to the estate and require probate.8
Also, similar to other beneficiary designations, if the beneficiary of a transfer on death deed predeceases the decedent, the property becomes part of the decedent’s estate.9 As such, it will have to go through the probate process to transfer title from the decedent to the decedent’s heirs.
WHEN THE PROPERTY IS PERSONAL PROPERTY WITH A VALUE LESS THAN $50,000
Severed mineral interests can be transferred with an affidavit of death and heirship in the county clerk’s office where the property is located.10 However, in order for the affidavit to transfer marketable title, it must state the decedent had no last will and testament, or if there was a will, the will was never probated, or if the will was probated, the mineral interests were left out of the probate. If there is a will, it must be attached to the affidavit, and if there was a final decree in a probate, it must be attached to the affidavit. The affidavit must be on file in the county clerk’s office in the county where the property is located for 10 years with no documents inconsistent with the affidavit filed with the clerk before the title becomes marketable.11
Personal property is different than real estate. Personal property generally includes bank accounts, certificates of deposit, stocks, bonds and most other property that is not real estate. As long as the decedent’s personal property within the state of Oklahoma, minus liens and encumbrances, is $50,000 or less, the heirs can transfer the property with an affidavit.
Under Oklahoma law, heirs can use an affidavit of tangible personal property12 or an affidavit of known heirs13 and provide the affidavit and proof of death of the owner to the company or person holding the property to transfer the property to them. An affidavit of tangible personal property can be used whether the decedent had a last will and testament or not, as long as no one has filed a petition for the appointment of a personal representative.
An affidavit of known heirs can only be used when the decedent did not have a last will and testament.14 There is no requirement in the statute as to the disposition of a petition for the appointment of personal representative.
An exception to the $50,000 value applies to property held by the state treasurer as unclaimed property. Under the treasurer’s rules, the state treasurer can only accept an affidavit on property with a value of less than $10,000.15 In 2006, the state treasurer submitted a question to the attorney general to clarify if 58 O.S. §393 applied to unclaimed property held by the treasurer’s office. The attorney general found the new statute did not override 60 O.S. §674.2.16 Therefore, any claims for unclaimed property through the Oklahoma State Treasurer’s Office over $10,000 require a probate or proof of a trust or quiet title action.17
Probate can be a costly and stressful process for families who are already grieving the death of a loved one. Luckily, Oklahoma law provides families with other options. When the previous four circumstances are present, a decedent’s loved one will not have to go to court and start a probate.
ABOUT THE AUTHORS
Sarah C. Stewart graduated from the OCU School of Law and practices in Edmond. She focuses her estate planning practice on helping families understand and plan for their specific goals throughout their lifetimes. She has helped Oklahoma families with guardianship, estate planning and probates since 2009.
Hiba Jameel is a third-year law student at the OCU School of Law. She holds a bachelor’s degree in translation from her native country, Iraq, and a master’s in international relations from the University of Central Oklahoma as a Fulbright scholar. Her diverse career ranges from nonprofit to legal support.
- 84 O.S. §213.
- Romine v. Pense (In re Estate of Metz), 2011 OK 26, ¶6, 256 P.3d 45, 48-49.
- 58 O.S. §912.
- 60 O.S. §175.6a.
- 71 O.S. §902.
- 71 O.S. §908.
- 6 O.S. §901, 18 O.S. §381.39a.
- 58 O.S. §§1251 – 1258.
- 58 O.S. §1255.
- 58 O.S. §393 (d).
- 16 O.S. §67.
- 58 O.S. §393.
- 6 O.S. §906.
- 6 O.S. §906.
- 60 O.S. §674.2.
- Question submitted by Scott Meacham, Oklahoma state treasurer, 2006 OK AG 21.
- 60 O.S. §674.2 (1) – (3).
Originally published in the Oklahoma Bar Journal – OBJ 92 (February 2021)