What happens at Probate?

[1stTimeCaller]

A friend of mine's dad died a while back and the probate is coming up. His dad had a will so why do they have to do the probate thing?

Is this where a person contests a will? How does the Court know where all of the deceased's assets are? What are some reasons to contest a will?

TIA

[Petro-Sooner]

Good question. I forget the term but isnt there a way for parents to leave their kids property in such a way that the government doesnt get its greedy little hands on it? Seems mom mentioned something about doing that.

[Okla-homey]

Good question. I forget the term but isnt there a way for parents to leave their kids property in such a way that the government doesnt get its greedy little hands on it? Seems mom mentioned something about doing that.

It's called a trust. Anyone who has more than a pot to p1ss in he/she plans to leave to others should consider creating one.

[Okla-homey]

Enjoy these fun factoids.:D


A friend of mine's dad died a while back and the probate is coming up. His dad had a will so why do they have to do the probate thing? All estates have to go thru Probate. Will or not. However, you can generally avoid probate by establishing a trust before you kick.

Is this where a person contests a will? Can be. Probate Court is the original forum for will contests.

How does the Court know where all of the deceased's assets are? They all have to be accounted for by the executor/personal representative of the estate. Ditto debts.

What are some reasons to contest a will? Tons. However, some biggies are the testators lack of capacity to make a will (delusional, senile, lack of sound mind, etc.) improper execution of the will (boofed formalities), and the classics: fraud, undue influence, tortious interference, duress committed by someone who stands to take under the will which influenced the testator to make the will in that way. Its also a problem in Oklahoma if the testator leaves his surviving spouse less than she would take under our law if he died without a will (a/k/a intestate)

also, we have a "slayer statute" that states you can't inherit or take by devise/bequeath if you are convicted of murdering the decedent. Which is nice.:D TIA

[Mjcpr]

You have to have quite a sizeable (at least I think it's quite sizeable) inheritance for it to be subject to state or federal tax.

[Hamhock]

You have to have quite a sizeable (at least I think it's quite sizeable) inheritance for it to be subject to state or federal tax.


i think it's a million bucks for state estate tax.

trusts are used just as much for privacy and ease of transistion as for tax avoidance.

[Hamhock]

You have to have quite a sizeable (at least I think it's quite sizeable) inheritance for it to be subject to state or federal tax.


while I agree that a million bucks is sizeable, think how many acres the old farmer has to have that was "out in the boonies" farm land when he bought it, but is now next to forest ridge or bixby.

the family is faced with a tax bill and no liquid assets with which to pay it.

[1stTimeCaller]

in this case one sibling is to receive $X,XXX. The other is to receive $XXX,XXX plus any/all life insurance policy proceeds.

The deceased was a bad alcoholic the last few years.

[Chuck Bao]

The probate hearing for my dad's estate is this week. I don't fully understand it, but I assume, after reading the letter from the lawyer, that anyone having claims on the estate should go and state their claims or objections. I think my mom had to run an ad in the local weekly newspaper already for three weeks.

I can't answer your question, ITC. Even with a will, surely there is needs to be a legal process of verifying the will.

Maybe a will just helps clarify and shorten the process.

In my dad's case, the old will was very old and not what he wanted. He had me draft a new will the night before he checked in the hospital the last time. The new will was invalid because we had no witnesses and I didn't take it seriously because dad was just going into the hospital for a routine test. Besides, it wasn't what he really wanted anyway - actually it was more of a last minute attempt to change the mistakes in the old will.

We decided to ignore the old will and let my mom, as surviving spouse, take the entire estate and then she can later divide it up as my dad had wanted. I think I typed all that up to just say: we didn't use the will, but we are lucky in that everyone knows what my dad actually wanted even if he kept changing his mind each time there was a new grandchild.

Okay, I'll hang up and listen to the lawyers talk now.

[Mjcpr]

Probate is also supposed to flush out all of the debts owed by the deceased and to pay them off before their final assets are distributed.

[M]

If the probate is in Oklahoma, the Oklahoma Bar Association has a basic Q&A on "Is Probate Needed?" (http://www.okbar.org/public/brochures/probbroc.htm)

[Okla-homey]

The probate hearing for my dad's estate is this week. I don't fully understand it, but I assume, after reading the letter from the lawyer, that anyone having claims on the estate should go and state their claims or objections. I think my mom had to run an ad in the local weekly newspaper already for three weeks.

I can't answer your question, ITC. Even with a will, surely there is needs to be a legal process of verifying the will.

Maybe a will just helps clarify and shorten the process.

In my dad's case, the old will was very old and not what he wanted. He had me draft a new will the night before he checked in the hospital the last time. The new will was invalid because we had no witnesses and I didn't take it seriously because dad was just going into the hospital for a routine test. Besides, it wasn't what he really wanted anyway - actually it was more of a last minute attempt to change the mistakes in the old will.

We decided to ignore the old will and let my mom, as surviving spouse, take the entire estate and then she can later divide it up as my dad had wanted. I think I typed all that up to just say: we didn't use the will, but we are lucky in that everyone knows what my dad actually wanted even if he kept changing his mind each time there was a new grandchild.

Okay, I'll hang up and listen to the lawyers talk now.

You know, if he had written that will himself, entirely by hand, signed and dated it, I bet it would have been kosher under Oklahoma law that recognizes holographic wills (which don't require witnessing). Just saying.

check out:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72958

Anyway, the thing is, they've taught me the problem comes in if there is a will contest. If all you folks agree, no biggy. Problem is, people in loving families can get really crappy over a couple hundred bucks. I've seen it happen in my extended family. Oh yeah, when people say "It's not about the money, its about the principal" it's usually about the money.:D

[Howzit]

My doctor checked my probate and my bottom still hurts.

[frankensooner]

I did a probate once. Man, that was some BORING work.

[Okla-homey]

I did a probate once. Man, that was some BORING work.

No doubt true, however, don't you get paid out of the estate?...thus less likely to get stiffed? That's a plus IMHO.

[JohnnyMack]

My doctor checked my probate and my bottom still hurts.

Psst...Dean isn't really a doctor.

[TMcGee86]

I'm a probate atty.

Actually, the term "probate" just means that you are filing the Will with the Court and proving it to be valid.

No one steps forward at the hearing, and in actuality, the probate hearing takes all of about 1 min to complete.

However, that is for a Texas Will. The rules are obviously different for other states.

If you failed to attach a self proving affidavit to your Will, then you will need the testimony of the two witnesses for the Will to be probated.

If you can't find the witnesses, or they are dead, or living out of the county, you can use anyone familiar with the decedent's handwriting to attest to the fact that he did sign the Will.

The Court then admits the Will to probate, and appoints the executor listed in the Will.

In Texas, assuming the Will called for an independent executor, the only action then required is that the executor file an inventory of the estate within 90 days.

Then its up to that person to distribute the estate in the manner provided for in the Will.

Pretty simple process.

However, you are required to post notice for the administration so that any creditors, or anyone seeking to contest the Will, have notice of the proceedings and can file any claims or contests to the same.


So to answer your question, the only thing that happens in a "probate" is that you offer the Will to the Court and testify as to its authenticity, the Court then approves the Will as authentic and assigns an Order directing who the Executor is and allowing them the powers to distribute the Estate.

[colleyvillesooner]

Enjoy these fun factoids.:D

also, we have a "slayer statute" that states you can't inherit or take by devise/bequeath if you are convicted of murdering the decedent. Which is nice. TIA



http://coldforged.org/images/headbang.jpg

[TMcGee86]

A friend of mine's dad died a while back and the probate is coming up. His dad had a will so why do they have to do the probate thing?

Is this where a person contests a will? How does the Court know where all of the deceased's assets are? What are some reasons to contest a will?

TIA

Sorry, I just realized I only answered one of your questions.

The Court knows where all the assets are because after the probate hearing (w/n 90 days in Tx), the Executor files an sworn Inventory stating what and where the assets are.


A person seeking to contest a will, should do so prior to the Will being admitted to Probate. This is important because the burden of proof shifts after the Will as been admitted to probate and so it become much harder to contest after Probate.

Reasons for contesting would be if you felt it was not a valid will, i.e. wasn't signed by the decedent, wasnt properly witnessed, wasn't the decedent's free act and deed, was obtained by fraud, or if you believed that the decedent lacked the requisit capacity to draft such a Will.

This is why, if there is any question as to the capacity of the testator (Will writer) when he or she is drafting the will, you should make sure they see a doctor before drafting the will, and you should have your atty video tape the execution of the document.

[TMcGee86]

You know, if he had written that will himself, entirely by hand, signed and dated it, I bet it would have been kosher under Oklahoma law that recognizes holographic wills (which don't require witnessing). Just saying.

check out:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72958

Anyway, the thing is, they've taught me the problem comes in if there is a will contest. If all you folks agree, no biggy. Problem is, people in loving families can get really crappy over a couple hundred bucks. I've seen it happen in my extended family. Oh yeah, when people say "It's not about the money, its about the principal" it's usually about the money.:D


Very true. Most people dont realize, (luckily for us probate attys ;) ) that a person need only draft a handwritten will to have one of the most solid Wills available.

There have actually been probates of valid wills written on such things as desks, napkins, and in one case a fender of a tractor that tipped over on the guy and trapped him underneath, ultimately killing him but not before he was able to scrawl out a will on the fender of the tractor.

[Okla-homey]

one case a fender of a tractor that tipped over on the guy and trapped him underneath, ultimately killing him but not before he was able to scrawl out a will on the fender of the tractor.

By sheer coincidence, I read that case about two weeks ago. At the time, it occured to me, had he had a cell phone, as most farmers do now, he probably wouldn't have gone to the trouble of scratching out that will on the fender. Instead, he would have called for help and would not have been trapped out there all day. Anyway, I guess its in all the DET casebooks.

My favorite so far is the valid codicil executed on an invalid will which operated to republish the will and make it valid, even though the will was never witnessed. :eek:

[TMcGee86]

By sheer coincidence, I read that case about two weeks ago. At the time, it occured to me, had he had a cell phone, as most farmers do now, he probably wouldn't have gone to the trouble of scratching out that will on the fender. Instead, he would have called for help and would not have been trapped out there all day. Anyway, I guess its in all the DET casebooks.

My favorite so far is the valid codicil executed on an invalid will which operated to republish the will and make it valid, even though the will was never witnessed. :eek:


Ha. Yeah, that is a good one. Kinda like the one where the wits forget to sign the Will but sign the self proving affidavit, which operates to make the Will valid by using those sigs but ultimately causes the will not to be self proved anymore.

[Hamhock]

My favorite so far is the valid codicil executed on an invalid will which operated to republish the will and make it valid, even though the will was never witnessed.



Ha. Yeah, that is a good one. Kinda like the one where the wits forget to sign the Will but sign the self proving affidavit, which operates to make the Will valid by using those sigs but ultimately causes the will not to be self proved anymore.

Know how I know you're a nerd? ;)

[Okla-homey]

Know how I know you're a nerd? ;)

That's okay. Call nerd. But when your Aunt Margaret dies and someone cleaning up her house in Tishomingo finds a note, handwritten on a piece of her Holly Hobby stationary, signed and dated by her, bequeathing you the bajillion dollars no one even knew she had, you betchera$$ you want a nerd to be on the job for you.;)

[TMcGee86]

Know how I know you're a nerd? ;)

:P yeah, I know, but hey, on the whole, this stuff is pretty boring so you have to find excitement in some aspect of it. No matter how lame. :D

[Hamhock]

I'm just giving you guys a hard time. i did a few years hard time doing 706's.

[StoopTroup]

When COPS decides to do a show at your Family's reading of the will...you'll be thankful you hired a nerd.

[Chuck Bao]

My father's probate thingy somehow didn't go as I thought it should.

The lawyer went with the old will, and I guess they had to go by something. Maybe that was the plan all along. But, if that was the case I thought my brother, sister and I were to voluntarily give up our inheritance and let my mom have all of it. Can't you just waive your claim?

Anyway I want to ask the lawyers here, how does that happen? One spouse can give everything to his/her children and the remaining spouse has to abide by that?

When I spoke with my mom this evening, I asked her: "why did you do that?"

She was like: "I don't know. We can fix it later."

My dad really wanted to bypass his children and give his land directly to his grandchildren, as sort of a reminder that this came from grandpa and sort of a tradition started by his parents.

I didn't and most likely won't produce the necessary grandchildren. And, since the land should stay in family, I'm okay with that.

Except now I have an extra 400 acres I didn't have last week. So, why can't I just give it back to my mom and she can do with it what she wants without tax issues.

[Hamhock]

Except now I have an extra 400 acres I didn't have last week. So, why can't I just give it back to my mom and she can do with it what she wants without tax issues.


that depends.

are there any deer on it?

[Vaevictis]

Man, I'm glad I've got the kind of family I've got.

We had the matriarch of the family on one side die a few years ago with several conflicting wills, partially completed wills, etc. Just in a terrible state.

Every heir quit claimed their interest in the estate to a single trusted party, who then distributed the estate.

No trouble at all.

[TMcGee86]

My father's probate thingy somehow didn't go as I thought it should.

The lawyer went with the old will, and I guess they had to go by something. Maybe that was the plan all along.

The lawyer is bound by the properly drafted "old will" because in the eyes of the Court, that is all they have to go by to determine the wishes of the decedent.

However, you probably could have done an agreement not to probate the will assuming you had all the beneficiaries of the Will on board. That would have allowed his estate to pass to his spouse as though he died without a will. The lawyer may not have done this on account of the state you are in and the availabilty of an independent administration. Because I know that Oklahoma does not have such a creature and therefore a probate of a will that calls for an independent executor would probably be cheaper than a dependent administration.

(Executor = Will; Administrator = no Will).

In Texas, we have code provisions for an indenpendent administration so there is really no need to probate the Will if everyone is in agreement to avoid such a probate.


Anyway I want to ask the lawyers here, how does that happen? One spouse can give everything to his/her children and the remaining spouse has to abide by that?

Yes, a person can leave their estate to whomever they please, bypassing anyone in the process including spouses.



But, if that was the case I thought my brother, sister and I were to voluntarily give up our inheritance and let my mom have all of it. Can't you just waive your claim?

Yes, you can waive your claim. It's called a Disclaimer. If you file written memorandum with the Court that states that you irrevocably disclaim your portion of the estate, it will pass as though you predeceased the testator. So unless the Will reads differently, if all the beneficiaries disclaim their portions of the estate, it should pass to his spouse as though he died intestate.

However, in Texas there is a 9 month time limit on filing such a disclaimer so if you are interested in doing that, you should make sure that you are not up against a time limit and get it filed before the deadline.

[Chuck Bao]

Thank you TMcGee. I normally get a great headache when talking with lawyers. You've made it simple and understandable.

[Okla-homey]

Yes, a person can leave their estate to whomever they please, bypassing anyone in the process including spouses.


Not completely accurate in Okrahoma. My prof explained the below to mean a person can't completely cut his/her spouse out in a will:


Title 84. Wills and Succession
Chapter 2 - Execution and Revocation of Wills
Capacity and Power to Make Will
Section 44 - Property Acquired by Joint Industry
Cite as: O.S. §, __ __


A. Every estate in property may be disposed of by will; provided however, that a will shall be subservient to any antenuptial marriage contract in writing; but no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than would be obtained through succession by law; provided, however, that of the property not acquired by joint industry during coverture the testator be not required to devise or bequeath more than one-half (1/2) thereof in value to the surviving spouse; provided further, that no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other. This subsection shall not apply to the estate of a decedent who dies on or after July 1, 1985.

B. This subsection shall apply to the estate of a decedent who dies on or after July 1, 1985.

1. Every estate in property may be disposed of by will except that a will shall be subservient to any antenuptial marriage contract in writing. In addition, no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than an undivided one-half (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture. No person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.

2. The spouse of a decedent has a right of election to take the one-half (1/2) interest in the property as provided in paragraph 1 of this subsection in lieu of all devises, legacies and bequests for the benefit of the spouse contained in the last will and testament of the decedent.

[TMcGee86]

Yeah that's a good point I should have noted in that part as well that everything I say is based on Texas law solely.


In Texas, as a community property state, the presumption is that everything you acquire during the marriage is community property, meaning you own half and your spouse owns half.

What that also means is that at the husband's death, he can devise his entire community property to whomever he choses, however that portion is only going to be half of the total community estate. So if a guy in Texas bought a house during his marriage, then dies and leaves everything to his kid, the kid is actually only getting a 1/2 interest in the house.

There are also provisions to protect the spouse such as if the home happened to be husbands separate property and he devised it to someone other than his wife, she would have a homestead right of occupancy for her life. So she has the right to live there as long as she chooses and cannot be forced out by the new owner. That new owner takes the property subject to her right to live there.


Oklahoma is obviously not a community property state, so it looks like they have apparently worked the same type of idea into the statutes to basically give the surviving spouse her 1/2 of the estate. Which I think is good.

It appears that before 1985 you couldn't give away more than your wife would get if you died without a will (i.e. "succession of law").

But now it appears that the statue reads like the Texas law in that you now can't give away more than 1/2 of everything you accquired during the marriage, (i.e. "acquired by the joint industry of the husband and wife during coverture"). That's basically just saying that if you bought something while you were married, it's half hers unless you can prove otherwise, like someone gave it only to you as a gift.

[Okla-homey]

Yeah that's a good point I should have noted in that part as well that everything I say is based on Texas law solely.




I'm told the public policy consideration behind these "rights of the surviving spouse" stautes is to ensure no widow/widower goes on the public dole if the estate consists of property which would make that unecessary. IOW, the folks in the OK capitol didn't want rich d00ds leaving all their stuff to the kids (even if they are his kids from his previous marriage,) leaving the woman to whom he was married broke when he croaks.

This is also the sort of thing same-sex marriage proponents cite when they agitate for the right to marry. As you know, these statutes are not available to protect the rights of same-sex partners because they aren't "surviving spouses" here in Oklahoma b/c we don't have same-sex marriage.

This is also precisely the sort of equal-protection argument which will ultimately win the day for same-sex marriage IMHO. Personally, I don't think it's too compelling because homerseckshuals are not denied the right to marry and avail themselves of these rights under the law. They're merely denied the right to marry a person of their gender. Nevertheless, if the right case gets to SCOTUS, which focuses on these sort of unequal rights under the law, they'll win and the ghey marriage wedding bells will toll all across the fruited plain.