If you are dealing with a loved one’s legal and financial affairs after they have passed away, you may have to participate in probate. This is the legal process of validating someone’s will and administering their estate. It’s a complicated process, so don’t feel bad if you have a ton of questions about what’s going on, why, and how it all works.

Review the answers to questions we commonly hear from clients below. If your question isn’t answered, or you require an attorney’s assistance, please get in touch with our attorney at Bundren Law Firm and ask about our legal services.

Why Does an Estate Have to Go through Probate?

While ensuring that someone’s legal heirs receive their inheritance is one reason for probate, the process serves a more important purpose. Because someone likely died with creditors (mortgage lender, credit card bills, medical debt, etc.), probate helps to ensure these entities and individuals see a return on their investments. Paying off the deceased’s debts is so important that it must come before any inheritance distributions are made.

Do All States Have to Go through Probate?

No. Some people die with an estate valued at less than $50,000, and in this situation, it is not necessary to probate their estate. Sometimes legal arrangements can preclude an asset from probate, such as something that the deceased held in joint tenancy with a spouse or funded into a trust. These are just two ways people can prevent certain assets – or their entire estate – from ending up in probate court, which is the main objective for most.

Where Must Probate Occur?

If the deceased was a resident of Oklahoma, probate must occur in the county where they had a primary residence. If the deceased primarily resided in another state but owned property in Oklahoma, then probate must occur in the county where that property is located.

This means that any out-of-state relatives of the deceased may have to travel to Oklahoma if it is necessary to appear in court during probate.

How Long Does Probate Take?

The duration of probate depends upon several factors, including how organized someone left their affairs, the size of the estate, the types of assets in the estate, how many interested parties are involved, if litigation is likely to occur, etc. Under ideal circumstances, probate may take as long as six months to a year, but can be shorter or longer depending upon the aforementioned factors.

What Is the Difference Between an Executor and a Personal Representative?

Sometimes, there isn’t a difference. An executor is someone the deceased names in their will to carry out the administration of their estate, and the personal representative is the person who the court actually assigns to fulfill this role. They can be the same person, and the terms are often used interchangeably, although “personal representative” is more generally applicable.

If the executor named in a will isn’t appointed as the personal representative, it’s often the case that this individual is incapacitated, has died, or a convincing objection to the appointment was raised by an interested party.

Is Probate Necessary If My Relative Died without a Will?

Yes. When someone has died without a will, their estate (provided they didn’t fund it into a trust) goes through probate. In lieu of a will to direct inheritances, a certain set of laws – known as intestacy laws – outline who the legal heirs of the deceased’s estate are and how much of the estate they’re entitled to.

Is Probate All about Someone’s Money & Property?

No, far from it. While a lot of the focus of probate is on the deceased’s property, other issues such as the guardianship of minor children or the succession of a conservatorship must be addressed. Instructions left in a will typically guide these matters, although the court may invite testimony and come to its own decision on such matters if there is no will or a contest is raised.

What Do I Do If I Think There’s a Problem with the Will?

If you believe the deceased’s will is a product of fraud, forgery, or undue influence, then you can contest the will. Understand that this is a legal challenge that will involve litigation and is a very serious matter. Provisions of a will or even the entire will can be thrown out as a result of a will contest.

What Happens If a Will Gets Thrown out of Court?

If a will is successfully contested and gets thrown out of court, then one of two things can occur. The first option is that a previous will may be revived and used to direct probate. This is the result of a legal doctrine known as “dependent relative revocation.” The doctrine may be applied if the court believes the intent of the deceased would have been to revive an older will instead of treating their estate as if it was intestate, which is the second option.

Probate Seems Complicated. What Do I Do If I Need Help?

Even if you think you can handle probate on your own, you should always seek legal counsel to walk you through this delicate process. An experienced probate attorney has the knowledge and skill it takes to address probate matters efficiently and in a timely matter. Having a legal advocate on your side also helps if you have to assert or defend your interests in litigation, should any become necessary.

If you would like to learn more about the services we at Bundren Law Firm can offer you during probate, please contact us online or call (918) 992-3300 today to learn more.