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What is a Probate and Should it be Avoided?

Probate is the legal process through which a will (if any) is proved, an estate is settled, and property owned by a deceased at death is transferred to the rightful recipients. Below is an overview of the Oklahoma probate process, and thoughts about whether avoiding a probate should be an estate planning client’s number one goal (hint: it shouldn’t!).

How long does a probate take to complete?

Although only an estimate, the short answer is 4-6 months. The timeline depends upon the complexity of the estate and the type of probate that is used.

Must a person’s estate be probated if they left a will?

Yes. In order for property to be distributed from the deceased to the parties named in the will, the will must be proved within the confines of the probate proceeding. At the conclusion of the probate, the property in the estate will be distributed.

When someone dies without a will, they are considered to have died intestate. While the probate proceeding is still utilized, Oklahoma law (rather than a will) dictates how the estate is to be distributed, which may or may not align with the intent of the deceased.

Why do some people hate probates?

Probates can be messy and unpleasant on occasion, depending upon family dynamics and the circumstances of the case. More often than not, however, frustration stems from the proceeding taking far longer than anticipated. Our probate attorneys are averse to stagnant probates and work diligently, with the assistance and cooperation of the client, to move probates to their conclusion.

Can a probate be avoided?

There are a number of tools that can be utilized to mitigate the risk of a probate, including (but not limited to!) establishing revocable living trusts. The issue, however, is that an improperly funded or executed estate plan, while intending to avoid probate, may result in a probate being necessitated nonetheless. An experienced estate planning attorney can counsel on the best method(s) of probate avoidance, depending on the client’s unique needs and goals, and can work with the client to ensure that the estate plan it is properly funded.

That said, the probate process doesn’t have to be all bad and probate avoidance doesn’t always need to be an estate planning client’s number one goal. In fact, establishing an estate plan that will, at some juncture, require a probate is often a great fit for clients. While trusts are commonly recommended as a means to avoid a probate, we find that the cost and hassle of establishing and maintaining a trust are oftentimes not worth the prospect of avoiding a probate.

Our probate lawyers regularly handle domiciliary and ancillary probate proceedings throughout the state of Oklahoma, including Beckham County, Blaine County, Custer County, Dewey County, Major County, Oklahoma County and Washita County.

About the Author

Carissa King, J.D. is an associate attorney at Christensen Law Group, PLLC. She is an expert in estate planning, trust and probate administration, real property, and business transactions. You can read more about her and her legal experience here.

POSTED Jan. 1, 2020 | SHARE NEWS