Probate is the legal process of validating a person's will and settling his or her estate after death. This includes distributing the deceased's property to those entitled to receive it. Probate procedures are codified at Title 58 of the Oklahoma Statutes.
Also called estate administration, the probate process takes place under the supervision of the Oklahoma district court of the county where decedent lived at the time of his or her death. Property subject to probate (referred to as probate property) includes any real estate the decedent held solely, and any property held without a beneficiary designation. Non-probate assets include realty held in joint tenancy, assets held in trust, and any property with a beneficiary designation.
Under Oklahoma law, a decedent's heirs or devisees (persons named in the decedent's will to inherit property) automatically succeed to an interest in the probate estate, including the decedent's real property, subject to possession by the personal representative as needed to administer of the estate (58 O.S. 251). Probate is still necessary, however, because it provides a legal means of securing a valid transfer of ownership of real property, "and thereby...a clear chain of title to the property" .
In other words, a decedent's will must be probated to legally transfer probate property . When a decedent dies without a will, his or her estate is said to be intestate. The estate is still subject to probate, but any distributions are made according to the relevant laws of intestate succession.
Initial steps of the probate process include delivering the will and/or submitting the appropriate petition for probate with the district court. The appropriate petition depends on factors such as the size of the estate and whether the decedent died testate or intestate.
The petition for probate and appointment of a personal representative (PR) -- the fiduciary who will personally administer the estate -- must indicate whether the person named as an executor in the decedent's will, if applicable, consents to perform the duties of the PR or renounces his right to letters. A lawful petition also lists the names, ages, and addresses of each heir and devisee and the petitioner; describes the nature of the estate and its estimated value; and identifies the person requesting letters (58 O.S. 23). The Court schedules a hearing on the petition, and statutes require notice of the petition for probate to be given to heirs and devisees.
Letters are signed by the judge of the district court as evidence the PR's authority to administer the estate, and are granted after the executor or administrator gives oath and bond (unless bond is waived by the decedent's will). The letters are recorded as part of official probate records. The court grants letters testamentary to an executor named by the decedent's will, or letters of administration with the will annexed when there is no will or the executor is unwilling or unable to serve (58 O.S. 103).
When the decedent dies intestate, 58 O.S. 122 establishes the order in which persons are entitled to letters of administration, beginning with the surviving spouse. Before letters of administration can be granted, the decedent's death must be proved intestate (58 O.S. 133).
During administration, the PR gathers and inventories probate property, pays the debts of the estate, identifies heirs, and executes orders of the district court. Miscellaneous duties of the PR include filing necessary paperwork, including all appropriate tax returns; holding required court hearings; arranging property appraisals; and submitting required accountings throughout .
The PR may also need to execute deeds to convey real property, whether to effect distribution of the estate or pursuant to an order for sale. A sale of real property may be necessary if the decedent's will directs such, or when the debts of the estate require the sale of convert assets to cash.
The personal representative's deed is a type of fiduciary instrument, a class of conveyances named for the capacity of the executing grantor, who is responsible for acting in the estate's best interest. When signed by the PR, acknowledged in compliance with 16 O.S. 33, and recorded in the appropriate county register of deeds' office, a PR deed titles the subject property in the grantee's name and provides constructive notice of the grantee's interest. A PR deed made in substantial compliance with the Conveyances title of the Oklahoma Statutes (Title 16) conveys all the right, title, interest, and estate of said decedent at the time of his death.
Before a deed can be recorded, the sale and conveyance must be authorized by the district court. The PR must apply to the court for an Order Authorizing Sale of Real Property Pursuant to 58 O.S. 239. The form of the PR deed pursuant to sale varies depending on the circumstances surrounding the sale.
In addition to meeting all state and local standards for recorded documents, components of a properly executed PR deed pursuant to an order of sale include recitals of probate details, including the decedent's name, the date of the order of sale, the case number assigned to the estate, and a reference to the source of the PR's authorization to sell.
In some cases, the decedent's will may have authorized sale of realty by granting the executor a power of sale, in which case the deed will cite the Last Will and Testament of the decedent, in addition to the order for sale, as the authorization for the transfer. When the decedent's will contains a power of sale, the court may enter an Order Authorizing Conveyances and Waiving Accountings, meaning that a confirmation of the sale by the court is not required.
Without a power of sale in the decedent's will (or for sales of real property from an intestate estate), the PR submits the same application for and order of sale pursuant to 58 O.S. 239, and cites the order of sale in the deed as authorization for the transfer.
Both PR deeds of sale require the complete legal description of the subject parcel, and should reflect the consideration made for the transfer. In Oklahoma, deeds commonly recite a generic consideration of "Ten and No/100ths Dollars," with the true purchase price reflected on an Affidavit of Purchase Price. This affidavit is not recorded, and is used by the register's office to calculate the documentary stamp tax levied on all transfers of real estate in Oklahoma. Confirm the appropriate consideration statement for the situation with a lawyer.
Finally, once the debts of the estate are paid, the PR may apply to the court for an Order Allowing Final Account; Determining Heirship; and Final Decree of Distribution. Distributions are made according to the provisions of the decedent's will, or pursuant to Oklahoma's statute of descent and distribution, which establishes the priority and shares of distributees for intestate estates.
A personal representative's deed pursuant to a decree of distribution contains the same components of any other personal representative's deed, but cites the Order Allowing Final Account; Determining Heirship; and Final Decree of Distribution as the authorization for the transfer, and may be made in furtherance of a bequest of the decedent's will. Oklahoma statutes allow that when a will devises realty, the will, along with a certified copy of the probate, may be recorded in the register of deeds' office "with like effect as a deed duly executed and acknowledged" (16 O.S. 30).
For any class of personal representative deed, if an exemption to the documentary stamp tax under 68 O.S. 3202 applies, the reason must be noted on the face of the deed. Deeds of distribution are exempt from the documentary stamp tax pursuant to Oklahoma Administrative Code 710:30(2). Review 19 O.S. 261 for recording requirements prior to submitting the deed at the appropriate county's 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.
The information provided here is not a substitute for legal advice. Consult an attorney licensed in the State of Oklahoma with questions regarding fiduciary deeds and probate procedures in that state, as each situation is unique.
April 10, 2018, Deeds.com - Information deemed reliable but not guaranteed, you should always confirm this information with the proper agency prior to acting. The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date.