Oklahoma Bar Journal
Basic Probate Procedures
By Sheila Southard

Vitalii Vodolazskyi | #428768186 | stock.adobe.com
A client has come to you because a family member, a resident of Oklahoma, has recently passed away owning real or personal property in Oklahoma that will require a probate proceeding to change ownership. What do you file, and when do you file it? To answer those questions, the following is a basic framework of a regular probate proceeding (“regular” meaning not an ancillary probate or special or summary administration), assuming the estate is solvent and there are no contests or other litigation involved.
PETITION
A probate proceeding begins with the filing of a petition that, generally, will:
- State the jurisdictional facts, including the identity of the decedent, the date of death and the residence of the decedent prior to death;
- State whether the decedent died testate (with a will) or intestate (without a will) and if intestate will state facts regarding the diligent search conducted for a will;
- State the probable value and character of the property of the estate;
- Identify the person asking to be named as the personal representative[1] (PR) of the estate and, if there is a will that names a PR, state whether that person consents or renounces his or her right to be appointed as PR;[2] and
- Provide the names, ages and addresses of the decedent’s heirs, legatees and devisees[3] as far as known to the petitioner.
The determination of heirs, legatees and devisees at this point in the proceeding is only for the purpose of providing waivers and consents and does not establish the share of the estate to which any person may be entitled.[4] If the petition does not ask the court to determine the identity of heirs, legatees and devisees at the first hearing, the PR can file a petition to do so at a later date, which can be heard following at least 10 days’ notice to the heirs, devisees and legatees.[5]
If the decedent died testate, the original will may be attached to the petition or filed separately.[6] The petition contains factual allegations usually only known to the petitioner rather than his or her attorney, such as the petitioner’s diligent search for a will and addresses of heirs as known to the petitioner. For this reason, although not required,[7] the petition should be verified by the petitioner. There is no statute of limitation for filing a probate.
ORDER AND NOTICE OF HEARING
The court must set a petition to admit a will to probate for hearing not less than 10 and not more than 30 days from the date of filing the petition.[8] If there is no will, a hearing on a petition to administer the estate does not have this same minimum/maximum time frame, but notice of the hearing must be given to the heirs of the intestate decedent at least 10 days prior to the hearing.[9] The notice should contain the name of the decedent, the name of the person who is asking to be appointed as the PR of the estate, the date and time of the hearing and the location of the court.[10] An order setting hearing and notice of hearing may be combined into a single document or filed as separate documents.[11] The order and notice must be signed by the judge.[12]
Notice must be given by mail to all heirs, legatees and devisees known to the petitioner, as set out in the petition, at their last-known place of residence not less than 10 days prior to the date of hearing.[13] An affidavit of mailing must be filed prior to the hearing, showing to whom notice was mailed and the date notice was mailed.[14]
If the address of any heir, legatee or devisee is not known to the petitioner, in addition to mailing to those whose addresses are known, the notice must also be published one time in a legal newspaper circulated within the county[15] at least 10 days before the day of the hearing.[16] Proof of the publication must be filed with the court prior to the hearing.[17] Although publication is not required if the petitioner knows who all of the heirs, legatees and devisees are and their addresses, it is often a good idea to publish anyway. Failure to provide proper notice in a probate proceeding is especially problematic when real property is involved, as it will cause title issues later.
ORDER ADMITTING WILL TO PROBATE OR ORDER OF ADMINISTRATION
At the hearing on the petition, the following must be established to the court’s satisfaction and reflected in the court’s order:
- Death of the decedent, including date and place;
- Residence of decedent at the time of death;
- Estate left by decedent;
- No other probate of the decedent’s estate has been filed;[18]
- The identity of the heirs, devisees and legatees of the decedent, if requested in the initial petition;[19]
- The petitioner’s right to appointment and competence to serve as personal representative or administrator;[20]
- Necessity or waiver of bond;[21]
- Notice of the hearing has been provided as required by law, whether by mail or publication or both;
- If the decedent died intestate, a diligent search was conducted by the petitioner for a will and none was found;[22] and
- If the decedent died testate, the will was executed as required by law, and the testator was of sound mind at the time of its execution.[23]
Most often, the decedent’s will contains statutory language that makes it “self-proving,” meaning that testimony of witnesses is not required to prove up the will.[24] However, if the will is not self-proving, the testimony or affidavit of at least one subscribing witness will be needed.[25] A holographic will is one that is entirely written, dated and signed by the testator’s own hand; is subject to no other form; can be made in or out of this state; and does not require witnesses.[26]
The court’s order will reflect that the above facts have been established and will admit the will to probate or, if intestate, will order the administration of the estate, identify the heirs, legatees and devisees of the decedent, issue letters testamentary or letters of administration to the person found to be entitled to same upon that person executing the oath of office[27] and set or waive bond. A person who is not a resident of Oklahoma may serve as the PR of an estate in Oklahoma but must first appoint an agent for service of process who resides in the county of the probate proceeding.[28] Such appointment must be filed with the court before letters can be issued to the PR.[29]
LETTERS
Upon entering its order admitting a will to probate, the court will issue letters testamentary to the person(s) named in the will to serve.[30] If no one is named in the will to serve as PR or if the person named fails to apply for letters, declines to serve or is incompetent, letters of administration with will annexed will be issued.[31] If the decedent died without a will, letters of administration will be issued. The statutes provide forms for each of these letters.[32] The PR is required to execute an oath, which may be signed in front of a notary public prior to the issuance of the letters or by the judge at the time the letters are issued.[33] Most often, the letters and oath are combined in one document.
GENERAL INVENTORY AND APPRAISEMENT
Within two months of the date of the order appointing the PR, the PR must file an inventory of the probate estate that has come into the PR’s possession or knowledge, unless an inventory has been waived.[34] The PR may fulfill the appraisement requirement by stating his or her opinion of the value of the estate described in the inventory.[35] Although the valuation is not required to be supported by an official appraisement unless ordered by the court, because the values of estate assets, such as real property, stocks, etc., stated in the inventory, or later in the final accounting or order of distribution, may be used to establish a stepped-up tax basis in that asset (to the fair market value at date of death, rather than the value when the decedent purchased it) in order to eliminate or minimize capital gains taxes when that asset is later sold by the heir(s), it may be beneficial to have a reliable source and documentation of the valuation. Any probate estate property not mentioned in the inventory that later comes into the possession or knowledge of the PR must be reported to the court within two months of its discovery.[36] Assets that are owned by a decedent’s trust or in joint tenancy with a surviving joint tenant, or which designate a transfer on death or payable on death beneficiary (that has not lapsed) are not part of the probate estate and should not be included in the inventory of the estate.
NOTICE TO CREDITORS AND ALLOWANCE OR REJECTION OF CLAIMS
Within two months after the issuance of letters, the PR must file notice to the creditors of the decedent stating that claims against the estate will be forever barred unless presented to the PR by the date stated in the notice.[37] A form for such notice is provided in Section 331 of the probate code. The presentment date must be a “date certain,” meaning that it must be a specific date (e.g., “Oct. 31, 2024,” not “60 days from receipt of notice”), that is at least two months from the date said notice is filed.[38]

New Africa | #447851358 | stock.adobe.com
Within 10 days of filing the notice, a file-stamped copy of the notice must be mailed by first-class mail or personally delivered to “all known creditors” of the decedent at their last-known addresses.[39] This means notice must be mailed to those creditors who are “actually known” and “reasonably ascertainable” to the PR as of the date notice to creditors is filed.[40] “Reasonably ascertainable” means the PR must use “reasonably diligent efforts,” including searching the decedent’s personal effects after the decedent’s death and prior to the filing of the notice to determine the identity of creditors and their addresses.[41] An affidavit of mailing must be filed stating that the PR, or the PR by and through the PR’s attorney, mailed notice by first-class mail to all creditors of the decedent known to the PR as of the date the notice was filed, identifying said creditors and their last-known mailing addresses, and the date the notice was mailed or delivered.[42] Such an affidavit should be signed by the PR, rather than the attorney, because it contains affirmations of the PR’s diligent effort to determine and identify creditors.[43] If notice to creditors was not mailed because the decedent had no known creditors or because one or more creditor’s address was not known, an affidavit of nonmailing stating the reasons for not mailing must be filed.[44] Notice to creditors must also be published in a newspaper in the county where the probate is filed, once a week for two consecutive weeks,[45] with the first publication appearing within 10 days of filing the notice, and proof of such publication must be filed with the court.[46]
There is no prescribed form for a creditor’s claim against an estate, but the claim must be signed by the claimant or the claimant’s authorized representative; state the exact amount claimed; state the nature and source of the claim with reasonable particularity; describe the security interest, mortgage or lien, if any, that has been filed of record and the collateral covered; and, if the claim is not due when it is presented or is contingent, it must state the particulars of such claim.[47] The PR must allow or reject each claim within 30 days of the claim being presented to the PR. The PR must “endorse thereon” and date his or her allowance or rejection. If the PR allows a claim, it must be presented to the judge for allowance or rejection with the date of the presentment noted.[48] Every claim allowed by the PR and approved by the judge must be filed with the court within 30 days after approval by the judge and “ranked among acknowledged debts” to be paid.[49]
Failure of either the PR or the judge to endorse an allowance or rejection of a claim within their respective 30 days results in the claim being “deemed” rejected after the 30th day from presentment to the PR or the judge, respectively.[50] If a claim is rejected, the PR must mail a notice of rejection by first-class mail to the claimant within five days of the rejection.[51] The claimant has 45 days from the date of rejection to bring suit on the claim if it is then due, or within two months after it becomes due, or the claim will be barred.[52] No suit can be brought on a claim unless the claim was first presented to the PR.[53]
APPLICATION TO SELL PROPERTY, IF NEEDED
It may be necessary for the PR to sell estate property to pay attorney fees and costs, allowed creditor claims or other estate expenses.[54] Personal property can be sold without notice if it is perishable, likely to depreciate in value or will incur loss or expense by being kept.[55] If property is sold under the authority of a will containing a power of sale, the sale must be confirmed by the court unless confirmation has been waived by all heirs, devisees and legatees.[56]
If there is no will or the will does not grant the PR authority to sell property, the PR can still sell property but must first obtain court permission. The PR can file a petition or application to sell property, accompanied by the written consents of all heirs, devisees and legatees as determined by court pursuant to 58 O.S. §240, including the PR’s written consent if he or she is an heir, devisee or legatee.[57] The court may then enter an order authorizing the PR “to sell, grant, lease, mortgage or encumber any real or personal property including mineral interests, and to execute and issue deeds, leases, bills of sale, notes, mortgages, easements and other documents of conveyance, without further judicial authorization or a return of sale or confirmation of such sale or transaction.”[58] The court may also, if consented to by all the heirs, devisees and legatees, waive the filing and necessity of court approval of any accountings.[59] If the PR is unable to obtain the consents of all heirs, devisees and legatees, the PR must follow the full sales procedure outlined in 58 O.S. §380 et seq., which requires, among other things, appraisal, notices by mail and publication, account of sale(s), and confirmation of the sale(s) by the court.
FINAL ACCOUNT AND PETITION FOR DISTRIBUTION
In the final account and petition for distribution of the estate, the PR explains what he/she has done during the administration of the estate and asks the court to approve the accounting and distribute the remaining estate to those entitled. One of the main purposes of administering an estate is the payment of the decedent’s debts, therefore the PR must show that notice to creditors was given, by mail and publication, and that all claims and expenses of administration have been paid, or provisions for payment have been made, before the final account is filed.[60] The PR, under oath, must account for all the money received and expended by him/her, state that the time to present claims has expired and the amount of all claims presented against the estate, by whom, and whether such claims have been paid or rejected (and if rejected that the time to litigate the claim has passed), and any other matters to show that the estate is ready to be distributed and closed.[61] If all persons entitled to a distribution have waived a final accounting or if the PR is the sole person entitled to distribution, no itemized account of income and expenses is required, and it is sufficient for the PR to file an affidavit stating that all income has been properly received and expenses lawfully made, all allowed and approved claims have been paid, all funeral expenses, taxes and costs of administrator have been paid, and the estate is ready for closing.[62] The petition should also set out and request that attorney fees and costs be approved and paid,[63] as well as any commission to which the PR may be entitled if same has not been waived.[64]
ORDER AND NOTICE OF HEARING
As with the order and notice of hearing on the initial petition, the date and time of the hearing upon the final account and petition must be set by the court. Hearing on the final account and petition must be set at least 20 days after filing.[65] Notice of the hearing, if not previously waived, must be mailed to all heirs, legatees and devisees whose addresses are known at least 10 days prior to the hearing. Notice must also be published in a newspaper published in the county, once per week for two consecutive weeks.[66] The notice must state the name of the decedent and of the PR, the date and time of the hearing and that the account is for the final settlement and distribution of the estate.[67] Proof of mailing and of publication must be filed with the court.[68]
ORDER ALLOWING FINAL ACCOUNT, DISTRIBUTION AND DISCHARGE OF PR
The court’s final decree must include a finding that notice to creditors was given as required and that all claims not filed within the time permitted for presentment are nonsuited, void and forever barred.[69] The court must also specifically find that notice of the settlement of the final account and petition for distribution was given as required by law.[70] The court must name the persons entitled to share in the estate and the proportion or part of the estate to which each is entitled.[71] The order should also authorize the payment of any allowed claims that have not already been paid, attorney fees and costs, and PR commission, if any. If requested in the petition, the court may order the PR to be discharged upon such final distributions being made. However, if the PR has several duties left to be performed, it may often be better to file a petition for discharge separately, once all distributions and other duties have been completed, and report to the court that such activities have been finished and ask to be discharged.[72] The PR should obtain receipts and releases from the heirs, devisees and legatees showing that the PR has delivered all the money or property to each beneficiary as ordered by the court. If real property is distributed by the estate, a certified copy of the final decree, providing the legal description and its distribution, must be recorded with the appropriate county clerk’s office(s).
CONCLUSION
As stated at the outset, the foregoing is only a basic framework of the filings in a probate proceeding; therefore, it does not cover every aspect of probate or the potential issues that could arise. The Oklahoma Rules of Professional Conduct require an attorney to provide competent representation, which “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”[73] Thus, before handling a probate matter, the practitioner should become familiar with the probate procedures set forth in Title 58 of the Oklahoma Statutes and the legal requirements of a will and intestate succession found in Title 84. Practitioners new to this area of practice may also benefit from reviewing pleadings in probate cases available on OSCN that have been filed by attorneys in their area whose practices are known to be heavily focused in probate matters. The OBA Estate Planning, Probate and Trust Section is another useful resource that requires only a minimal annual membership fee. A lot can be learned, basics and beyond, by looking at what others have already done and asking questions of more experienced practitioners.
ABOUT THE AUTHOR
Sheila Southard is an associate attorney at Braly, Braly, Speed & Morris PLLC in Ada. She is a 2007 graduate of the OU College of Law, where she served as the editor-in-chief of the American Indian Law Review. Ms. Southard is currently a member of the Oklahoma Bar Journal Board of Editors.
ENDNOTES
[1] The general term “personal representative” used in this article encompasses the more specific terms of “executor” (the legal representative of the estate of a testate decedent) and “administrator” (the legal representative of the estate of an intestate decedent). See 58 O.S. §11.
[2] Id. §§23, 127.
[3] Generally, as defined by Black’s Law Dictionary (11th ed. 2019), “heir” or “heir at law” refers to someone entitled under the laws of intestacy to receive a share of the estate, “legatee” is a person named in a will to receive personal property, and “devisee” is one named to receive real property.
[4] 58 O.S. §240.
[5] Id. §240(B).
[6] See id. §21. If a third party has possession of the will, the court can order that person to produce the will to the court under penalty of confinement for failure to do so. Id. §24. Special procedures exist for the probate of a lost or destroyed will. See id. §81, et seq.
[7] See id. §§23, 127.
[8] Id. §25.
[9] Id. §128.
[10] Id. §25.
[11] Id. §716.
[12] Id.
[13] Id. §25.
[14] Id. §§26, 34, 128(B).
[15] Id. §33.
[16] Id. §§25, 128(C).
[17] Id. §§28, 130.
[18] The first four facts establish jurisdiction and venue. See id. §§5, 6, 7, 23, and 127.
[19] Id. §240; See also 84 O.S. §213(B).
[20] 58 O.S. §§101, 102, 122, 126.
[21] Id. §171.
[22] See id. §133.
[23] 58 O.S. §30; 84 O.S. § 55(7).
[24] 84 O.S. §55.
[25] 58 O.S. §30.
[26] 84 O.S. §54. Proving a holographic may require evidence of the decedent’s handwriting by comparison to acknowledged writings of the same person, by testimony of someone familiar with the decedent’s handwriting or by testimony of a handwriting expert. See Estate of Wilder, 1976 OK 113, 554 P.2d 788; 58 O.S §31.
[27] 58 O.S. §161.
[28] Id. §162.
[29] Id.
[30] Id. §101.
[31] Id. §103.
[32] Id. §§110, 111, 121.
[33] Id. §161.
[34] Id. §281(A).
[35] Id. §281(B).
[36] Id. §289.
[37] Id. §331.
[38] Id.
[39] Id. §§331, 331.2.
[40] Id. §331.1.
[41] Id.
[42] Id. §332.
[43] Id. §331.1.
[44] Id.
[45] Id. §32.
[46] Id. §§331, 332.
[47] Id. §334.
[48] Id. §337(A).
[49] Id. §338. See also id. §591 (priority of payment of debts) and §594 (expenses to be paid immediately).
[50] Id. §337(C).
[51] Id. §337(B).
[52] Id. §339.
[53] Id. §341.
[54] See id. §411.
[55] Id. §387.
[56] Id. §462.
[57] Id. §239 (consents of contingent devisees and legatees are not required).
[58] Id. §239(A)(1).
[59] Id. §239(A)(2).
[60] 1 Okla. Prob. Law & Prac. § 25.14 (3d ed.); 58 O.S.§632.3.
[61] 58 O.S. §§541, 612.
[62] Id. §541.
[63] See Burk v. City of Oklahoma City, 1979 OK 115, ¶¶20-22, 598 P.2d 659; Fleig v. Landmark Construction Group, 2024 OK 25, ¶¶4-23, 549 P.3d 1208, 1210-12.
[64] 58 O.S. §§525, 527; Matter of Estate of Bartlett, 680 P.2d 369, 380-81, 1984 OK 9, ¶29-30.
[65] 58 O.S. §553.
[66] Id.
[67] Id.
[68] Id. §§553, 557.
[69] Id. §632.3.
[70] Id. §557.
[71] Id. §632.
[72] Id. §691.
[73] 5 O.S. §Rule 1.1.
Originally published in the Oklahoma Bar Journal – OBJ 95 No. 9 (November 2024)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.