No, You Don’t Have to Go Through Probate
An Oklahoma probate can be a long and expensive legal process. In addition to these complications, probate often comes on the heels of an emotionally difficult time for the heirs left behind. Court filings and court hearings are a part of the probate process that can come during the height of intense grieving. Luckily there are things you can do during your lifetime to help your grieving loved ones.
An experienced Oklahoma probate attorney can help you understand and implement tools to help you and your family avoid probate. Many of these tools can be put in place during your lifetime to help ease the process for your loved ones when you are gone. Not all tools will be right for your particular circumstances, so it is best to work with an experienced attorney to see what is right for you
Tools to Avoid Probate in Oklahoma
In Oklahoma, there are several strategies you and your attorney can employ to avoid probate. These approaches are quite technical and affect the way property title is held during your lifetime and at death. Knowing and understanding their effect is critical to an effective plan to avoid probate.
Here are some common approaches:
Living Trust: A living trust, is also known as a revocable trust or inter vivos trust. It is a legal entity created during your lifetime to manage assets and property during uour lifetime and distribute them to beneficiaries upon your death without going through probate.
Living trusts in Oklahoma are typically revocable. You can modify or revoke the trust during your lifetime. This includes making changes to the trust terms, beneficiaries, or assets held in the trust as your circumstances or wishes change. Assets held in the trust are not subject to probate and can be distributed to beneficiaries without court involvement, potentially saving time and reducing administrative expenses.
Joint Tenancy with Rights of Survivorship (JTWROS): You can hold property jointly with right of survivorship going to the family member who will inherit or take the property at your death. This is most often your spouse, but it could also be a child, or another loved one. Upon your death, the property automatically transfers to the surviving owner without going through probate.
This can be done with what is known as a joint tenancy warranty deed. This can be used with any real property and is not limited to your primary residence.
Transfer-on-Death Deed (TOD): Designate beneficiaries on real estate deeds using a Transfer-on-Death designation. The property automatically transfers to the named beneficiaries upon your death without probate. The owner of the property, known as the grantor, must execute and sign the TOD deed which must then be recorded in the county where the property is located before the grantor’s death. The TOD deed does not have any effect during the grantor’s lifetime and so it remains a revocable instrument until the grantor’s death. The transfer at death is automatic and thus avoids probate.
Life Estate with Remainder Interest: This deed creates a life estate by deeding property to someone (you as life tenant) for your lifetime while designating a remainderman who will inherit the property after your passing. This arrangement avoids probate upon the life tenant’s death.
The life tenant has the right to use and enjoy the property during their lifetime including the right to occupy the property, receive any income generated from it, and make certain decisions regarding the property. However, the life tenant typically cannot sell or mortgage the property without the consent of the remainderman. The remainderman holds a future interest in the property, which means they have a legal claim to the property upon the death of the life tenant. The remainderman’s rights become active automatically, thus avoiding probate.
Payable-on-Death (POD) and Transfer-on-Death Designations (TOD): Designate beneficiaries on financial accounts, such as bank accounts or investment accounts. The funds automatically transfer to the named beneficiaries upon your death.
Small Estate Affidavit: If the estate’s total value is below a certain threshold, Oklahoma allows a simplified probate process using a small estate affidavit, making it quicker and more straightforward.
Gifting Assets: Transfer assets to your heirs through lifetime gifts. Keep in mind that there may be gift tax implications, and it’s essential to plan carefully.
Simplified Probate Procedures: For small estates that meet certain criteria, Oklahoma provides simplified probate procedures that can expedite the process.
It’s crucial to consult with a qualified estate planning attorney in Oklahoma to determine the most suitable strategy based on your specific circumstances and the nature of your assets. Legal advice ensures that your estate plan complies with state laws and effectively achieves your goals.
Contact an Experienced Probate Attorney in Tulsa
We at Oklahoma Will & Trust take pride in being able to help you solve the estate planning problems that you and your loved ones are facing. We know that these decisions can be both important and difficult. We provide a consultation for any trust or probate matter in Oklahoma. To make an appointment for your consultation, call (918) 876-4500. A skilled and sympathetic probate lawyer can help you understand the probate process, and how best to avoid it.