Probate is the legal process of\nvalidating a person\u2019s will and settling his or her estate after death. This\nincludes distributing the deceased\u2019s property to those entitled to receive it. Probate\nprocedures are codified at Title 58 of the Oklahoma Statutes.<\/p>\n\n\n\n\n\n\n\n
Also called estate administration, the\nprobate process takes place under the supervision of the Oklahoma district\ncourt of the county where decedent lived at the time of his or her death. Property\nsubject to probate (referred to as probate property) includes any real estate\nthe decedent held solely, and any property held without a beneficiary\ndesignation. Non-probate assets include realty held in joint tenancy, assets\nheld in trust, and any property with a beneficiary designation.<\/p>\n\n\n\n
Under Oklahoma law, a decedent\u2019s heirs\nor devisees (persons named in the decedent\u2019s will to inherit property)\nautomatically succeed to an interest in the probate estate, including the\ndecedent\u2019s real property, subject to possession by the personal representative\nas needed to administer of the estate (58 O.S. 251). Probate is still necessary,\nhowever, because it provides a legal means of securing a valid transfer of\nownership of real property, \u201cand thereby\u2026a clear chain of title to the\nproperty\u201d [1]. <\/p>\n\n\n\n
In other words, a decedent\u2019s will must\nbe probated to legally transfer probate property [1]. When a decedent dies\nwithout a will, his or her estate is said to be intestate. The estate is still\nsubject to probate, but any distributions are made according to the relevant\nlaws of intestate succession. <\/p>\n\n\n\n
Initial steps of the probate process include\ndelivering the will and\/or submitting the appropriate petition for probate with\nthe district court. The appropriate petition depends on factors such as the\nsize of the estate and whether the decedent died testate or intestate.<\/p>\n\n\n\n
The petition for probate and\nappointment of a personal representative (PR) \u2013 the fiduciary who will\npersonally administer the estate \u2013 must indicate whether the person named as an\nexecutor in the decedent\u2019s will, if applicable, consents to perform the duties\nof the PR or renounces his right to letters. A lawful petition also lists the\nnames, ages, and addresses of each heir and devisee and the petitioner;\ndescribes the nature of the estate and its estimated value; and identifies the\nperson requesting letters (58 O.S. 23). The Court schedules a hearing on the\npetition, and statutes require notice of the petition for probate to be given\nto heirs and devisees. <\/p>\n\n\n\n
Letters are signed by the judge of the\ndistrict court as evidence the PR\u2019s authority to administer the estate, and are\ngranted after the executor or administrator gives oath and bond (unless bond is\nwaived by the decedent\u2019s will). The letters are recorded as part of official\nprobate records. The court grants letters testamentary to an executor named by\nthe decedent\u2019s will, or letters of administration with the will annexed when\nthere is no will or the executor is unwilling or unable to serve (58 O.S. 103).<\/p>\n\n\n\n
When the decedent dies intestate, 58\nO.S. 122 establishes the order in which persons are entitled to letters of\nadministration, beginning with the surviving spouse. Before letters of\nadministration can be granted, the decedent\u2019s death must be proved intestate\n(58 O.S. 133). <\/p>\n\n\n\n
During\nadministration, the PR gathers and inventories probate property, pays the debts\nof the estate, identifies heirs, and executes orders of the district court. Miscellaneous\nduties of the PR include filing necessary paperwork, including all appropriate\ntax returns; holding required court hearings; arranging property appraisals; and\nsubmitting required accountings throughout [1]. <\/p>\n\n\n\n
The PR may\nalso need to execute deeds to convey real property, whether to effect\ndistribution of the estate or pursuant to an order for sale. A sale of real\nproperty may be necessary if the decedent\u2019s will directs such, or when the\ndebts of the estate require the sale of convert assets to cash. <\/p>\n\n\n\n
The personal\nrepresentative\u2019s deed is a type of fiduciary instrument, a class of conveyances\nnamed for the capacity of the executing grantor, who is responsible for acting\nin the estate\u2019s best interest. When signed by the PR, acknowledged in\ncompliance with 16 O.S. 33, and recorded in the appropriate county register of\ndeeds\u2019 office, a PR deed titles the subject property in the grantee\u2019s name and\nprovides constructive notice of the grantee\u2019s interest. A PR\ndeed made in substantial compliance with the Conveyances title of the Oklahoma\nStatutes (Title 16) conveys all the right, title, interest, and estate of said\ndecedent at the time of his death.<\/p>\n\n\n\n
Before a deed can be recorded, the sale\nand conveyance must be authorized by the district court. The PR must apply to\nthe court for an Order Authorizing Sale of Real Property Pursuant to 58 O.S. 239.\nThe form of the PR deed pursuant to sale varies depending on the circumstances\nsurrounding the sale. <\/p>\n\n\n\n
In addition to meeting all state and\nlocal standards for recorded documents, components of a properly executed PR\ndeed pursuant to an order of sale include recitals of probate details,\nincluding the decedent\u2019s name, the date of the order of sale, the case number\nassigned to the estate, and a reference to the source of the PR\u2019s authorization\nto sell.<\/p>\n\n\n\n
In some cases, the decedent\u2019s will may\nhave authorized sale of realty by granting the executor a power of sale, in\nwhich case the deed will cite the Last Will and Testament of the decedent, in\naddition to the order for sale, as the authorization for the transfer. When the\ndecedent\u2019s will contains a power of sale, the court may enter an Order\nAuthorizing Conveyances and Waiving Accountings, meaning that a confirmation of\nthe sale by the court is not required.<\/p>\n\n\n\n
Without a power of sale in the\ndecedent\u2019s will (or for sales of real property from an intestate estate), the\nPR submits the same application for and order of sale pursuant to 58 O.S. 239,\nand cites the order of sale in the deed as authorization for the transfer. <\/p>\n\n\n\n
Both PR deeds of sale require the\ncomplete legal description of the subject parcel, and should reflect the\nconsideration made for the transfer. In Oklahoma, deeds commonly recite a\ngeneric consideration of \u201cTen and No\/100ths Dollars,\u201d with the true purchase\nprice reflected on an Affidavit of Purchase Price. This affidavit is not\nrecorded, and is used by the register\u2019s office to calculate the documentary\nstamp tax levied on all transfers of real estate in Oklahoma. Confirm the\nappropriate consideration statement for the situation with a lawyer. <\/p>\n\n\n\n
Finally, once the debts of the estate\nare paid, the PR may apply to the court for an Order Allowing Final Account;\nDetermining Heirship; and Final Decree of Distribution. Distributions are made\naccording to the provisions of the decedent\u2019s will, or pursuant to Oklahoma\u2019s\nstatute of descent and distribution, which establishes the priority and shares\nof distributees for intestate estates.<\/p>\n\n\n\n
A personal representative\u2019s deed\npursuant to a decree of distribution contains the same components of any other\npersonal representative\u2019s deed, but cites the Order Allowing Final Account;\nDetermining Heirship; and Final Decree of Distribution as the authorization for\nthe transfer, and may be made in furtherance of a bequest of the decedent\u2019s\nwill. Oklahoma statutes allow that when a will devises realty, the will, along\nwith a certified copy of the probate, may be recorded in the register of deeds\u2019\noffice \u201cwith like effect as a deed duly executed and acknowledged\u201d (16 O.S. 30).<\/p>\n\n\n\n
For any class of personal\nrepresentative deed, if an exemption to the documentary stamp tax under 68 O.S.\n3202 applies, the reason must be noted on the face of the deed. Deeds of\ndistribution are exempt from the documentary stamp tax pursuant to Oklahoma\nAdministrative <\/p>\n\n\n\n
Code 710:30(2). Review 19 O.S. 261 for recording requirements prior to submitting the deed at the appropriate county\u2019s register of deeds office. Include all appropriate attachments, dependent on scenario; these may include a copy of the relevant court order authorizing sale or distribution.<\/p>\n\n\n\n
Related Oklahoma Probate Forms:<\/p>\n\n\n\n
The\ninformation provided here is not a substitute for legal advice. Consult an\nattorney licensed in the State of Oklahoma with questions regarding fiduciary\ndeeds and probate procedures in that state, as each situation is unique.<\/p>\n\n\n\n