Probate - ALSO INSIDE: Legislative Monitoring Committee Report - Oklahoma Bar Association
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
ALSO INSIDE: Legislative Monitoring Committee Report
Volume 92 — No. 2 — February 2021
Probate
contents
February 2021 • Vol. 92 • No. 2
THEME: Probate
Editor: Patricia A. Flanagan
FEATURES PLUS
6 Access to a Deceased’s Digital Accounts 34 Legislative Monitoring Committee Kicks
By Christin Mugg and Brody Gustafson Off the New Session
12 Creditors, Claims and Costs of Administering By Miles Pringle
or Probating an Estate
By Shanika Chapman and H. Terrell Monks
16 How to Know When You Need to File a Probate
By Sarah Stewart and Hiba Jameel
20 Good Grief! Why Choose a Summary Probate?
By Frank Hinton
26 When and How to Use Oklahoma’s Affidavits
Instead of Probate
By Sarah Stewart and Hiba Jameel
28 The New Public Handbooks for Oklahoma
Minor and Adult Guardianships
By A. Daniel Woska
PAGE 34 – Legislative Monitoring Committee
DEPARTMENTS
4 From the President
36 From the Executive Director
38 Law Practice Tips
42 Ethics & Professional Responsibility
44 Board of Governors Actions
49 Oklahoma Bar Foundation News
50 Young Lawyers Division
52 For Your Information
54 Bench and Bar Briefs
56 In Memoriam
59 Editorial Calendar
PAGES 36 – From the Executive Director
64 The Back Page
From The President
Inspired by a Short Story, Classic
Movie Shares Important Messages
By Mike Mordy
E VERY CHRISTMAS SEASON MY WIFE, Christy, is
excited for me to watch with her the 1946 Christmas
classic, It’s a Wonderful Life. It is the movie starring Jimmy
guy, great lawyer and very compassionate
person, but who unfortunately took his
life in 1997. Another attorney friend of
Stewart as George Bailey, Donna Reed as his wife and mine took his life a couple of months ago.
Lionel Barrymore as Mr. Potter. You will remember it is the He too was a very compassionate, fun
story about George Bailey, who thought he was a failure and witty guy and a great attorney who
and who was given the zealously represented
opportunity to come his clients. Both of
back and see the world these attorneys had
as it would have been The Greatest Gift is a short, a profound effect
had he not been born, upon many people’s
which is made possible wonderful story and a reminder lives before their
through his guard- deaths and would
ian angel, Clarence. that we all have a purpose in life. have continued to do
George Bailey is a so had their lives not
good man with young abruptly ended.
ambitions, but he has been so busy helping others that he I mention all of this because we need
believes he is a failure and that life has passed him by. to remember that we as attorneys do
I was given a book this Christmas called The Greatest more than just represent businesses
Gift, which is the original short story by Philip Van and banks and oil companies, but we
Doren Stern, self-published in 1943, help people steer through situations
from which the movie It’s a Wonderful that may seem small to us but are
Life came. The story was originally desperate situations to them. We often
issued as a privately printed booklet times offer our legal services to people
the author sent out as Christmas not just on a pro bono basis but are
cards in 1943. The producer of the unwittingly helping people through
movie told Jimmy Stewart that the situations that appear insurmountable
two main ideas for the story were to them and consequently make a dif-
that no one is born to be a failure ference in their lives.
and no one is poor who has friends. We need to be vigilant in checking
The Greatest Gift is a short, wonderful on our attorney brothers and sisters,
story and a reminder that we all have and ourselves, especially during this
a purpose in life. odd season of our life. We need to
I ran upon a small, golden ring make sure we all know we have a
this Christmas, at about the same purpose in life, especially as attorneys,
time I received The Greatest Gift. and that the legal services we have
President Mordy practices The ring was given to my newborn provided have helped people in the
in Ardmore.
mmordy@mordylaw.com
daughter 40 years ago by an attor- past and will continue to help people
580-223-4384 ney friend of mine. He was a great in the future.
4 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNAL
THE OKLAHOMA BAR JOURNAL is a
publication of the Oklahoma Bar Association.
All rights reserved. Copyright© 2021 Oklahoma
Bar Association. Statements or opinions
expressed herein are those of the authors and
do not necessarily reflect those of the Oklahoma
Bar Association, its officers, Board of Governors, Volume 92 — No. 2 — February 2021
Board of Editors or staff. Although advertising
copy is reviewed, no endorsement of any
product or service offered by any advertisement
is intended or implied by publication. JOURNAL STAFF BOARD OF EDITORS
Advertisers are solely responsible for the
content of their ads, and the OBA reserves JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair
Editor-in-Chief
the right to edit or reject any advertising copy johnw@okbar.org LUKE ADAMS, Clinton
for any reason. Legal articles carried in THE
OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor AARON BUNDY, Tulsa
by the Board of Editors. Information about carolm@okbar.org
submissions can be found at www.okbar.org. CASSANDRA L. COATS, Vinita
LAUREN RIMMER
BAR CENTER STAFF Advertising Manager PATRICIA A. FLANAGAN, Yukon
John Morris Williams, Executive Director; advertising@okbar.org
VIRGINIA D. HENSON, Norman
Gina L. Hendryx, General Counsel; Jim
Calloway, Director of Management Assistance C. SCOTT JONES, Oklahoma City
Program; Craig D. Combs, Director of
Administration; Janet K. Johnson, Director of TONY MORALES, Shawnee
Educational Programs; Beverly Petry Lewis,
Administrator MCLE Commission; Carol A. ROY TUCKER, Muskogee
Manning, Director of Communications; Dawn
DAVID E. YOUNGBLOOD, Atoka
Shelton, Director of Strategic Communications
and Marketing; Richard Stevens, Ethics Counsel;
Robbin Watson, Director of Information
Technology; Loraine Dillinder Farabow, Peter
Haddock, Tracy Pierce Nester, Katherine
Ogden, Steve Sullins, Assistant General Counsels OFFICERS &
Les Arnold, Julie A. Bays, Gary Berger, BOARD OF GOVERNORS
Debbie Brink, Jennifer Brumage, Melody
Claridge, Cheryl Corey, Ben Douglas, MICHAEL C. MORDY, President, Ardmore;
Johnny Marie Floyd, Matt Gayle, Suzi CHARLES E. GEISTER III, Vice President, Oklahoma City; JAMES R.
Hendrix, Debra Jenkins, Rhonda Langley, HICKS, President-Elect, Tulsa; SUSAN B. SHIELDS, Immediate
Jamie Lane, Durrel Lattimore, Edward Past President, Oklahoma City; MICHAEL J. DAVIS, Durant; TIM E.
Maguire, Renee Montgomery, Whitney DECLERCK, Enid; JOSHUA A. EDWARDS, Ada; AMBER PECKIO
Mosby, Lauren Rimmer, Tracy Sanders, GARRETT, Tulsa; BENJAMIN R. HILFIGER, Muskogee; ANDREW E.
Mark Schneidewent, Kurt Stoner, Krystal HUTTER, Norman; DAVID T. MCKENZIE, Oklahoma City; MILES T.
Willis, Laura Willis & Roberta Yarbrough
PRINGLE, Oklahoma City; ROBIN L. ROCHELLE, Lawton; KARA I.
SMITH, Oklahoma City; MICHAEL R. VANDERBURG, Ponca City;
Oklahoma Bar Association 405-416-7000 RICHARD D. WHITE JR., Tulsa; APRIL J. MOANING, Chairperson,
Toll Free 800-522-8065 OBA Young Lawyers Division, Oklahoma City
FAX 405-416-7001
Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly,
Ethics Counsel 405-416-7055 except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln
General Counsel 405-416-7007 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage
Lawyers Helping Lawyers 800-364-7886 paid at Oklahoma City, Okla. and at additional mailing offices.
Mgmt. Assistance Program 405-416-7008
Mandatory CLE 405-416-7009 Subscriptions $60 per year. Law students registered with the OBA and
Board of Bar Examiners 405-416-7075 senior members may subscribe for $30; all active members included in
Oklahoma Bar Foundation 405-416-7070 dues. Single copies: $3
www.okbar.org Postmaster Send address changes to the Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152-3036.
THE OKLAHOMA BAR JOURNAL FEBRUARY 2021 | 5
Probate
Access to a Deceased’s
Digital Accounts
By Christin Mugg and Brody Gustafson
D O YOU REMEMBER A TIME when you first encountered the cultural relevancy of
digital technology? For me, an avid movie watcher, that time was in 1998 when I
watched You’ve Got Mail. There were other movies that exhibited the growth of digital tech-
nology,1 but You’ve Got Mail demonstrated how personal digital technology could be.
That movie proved two things: Nora Ephron was an amazing director, and our culture places
great personal value on digital accounts. Our emails, social media accounts, subscriptions
and every other digital account reflect who we are. They can be an extension of ourselves.
What is surprising then is that 20 years after You’ve Got Mail, Oklahoma and other states are
just now asking the important question of what happens to those emails when you die?
Stories that received national of a decedent to obtain access to Revised Uniform Fiduciary Access
attention answered this question, that decedent’s digital accounts. to Digital Assets Act (RUFADAA).11
but not how many people hoped. Maureen Henry said it best, “There This article provides insight into the
For instance, Ricky and Diane needs to be an actual process for RUFADAA and explains the steps
Rash turned to Facebook for clo- families, in my situation, to access involved for a personal representa-
sure after their son, Eric, died by their relatives’ digital accounts.”8 tive gaining access to a decedent’s
suicide in 2013.2 Eric was a bright In Oklahoma, there is only one digital accounts. Lastly, the article
15-year-old who aspired to go to statute that addresses this issue.9 concludes with a brief discussion
Harvard Law School.3 Facebook “The executor or administrator of the positives and negatives of
denied their request to access of an estate shall have the power, enacting RUFADAA.
their son’s Facebook account due where otherwise authorized, to
to privacy laws.4 Or Dovi Henry take control of, conduct, continue, BACKGROUND
who was a 23-year-old who passed or terminate any accounts of a Currently introduced as HB
away in 2014.5 His mother, Maureen deceased person on any social 3711 in Oklahoma, RUFADAA is
Henry, has been in a constant legal networking website, any microb- another brainchild of the Uniform
battle with the custodians of Dovi’s logging or short message service Law Commission.12 Its purpose is
email and social media accounts website or any e-mail service web- to give fiduciaries legal authority
in an effort to find some clues sites.”10 It is yet to be determined to manage digital assets and give
about his death.6 Canadian courts if this statute carries the necessary custodians a method to disclose
have ordered those custodians to weight to force a custodian of digital information to a fiduciary while
produce Dovi’s digital content and assets to set aside federal privacy protecting the user’s privacy.13 The
communications but that has been laws and give a fiduciary access RUFADAA is not just for people
met with limited success.7 to all of a decedent’s accounts. who talk about Bitcoin all day.
These tragic stories exemplify That question might be irrelevant The RUFADAA has universal
the risk of not having a structure in though because Oklahoma may applicability because of its broad
place for a personal representative become the 46th state to enact the definitions. For example, a digital
THE OKLAHOMA BAR JOURNAL FEBRUARY 2021 | 7
If the personal representative does not have
the decedent’s consent, then the personal
representative must get a court order that finds
the disclosure is reasonably necessary for the
estate. This is a high bar.
asset is defined as “an electronic custodians from disclosing the personal representative will need
record in which an individual has content of a user’s electronic to mail or email the custodian the
a right or interest.”14 An account communications without that user’s following: a request for disclosure,
is defined as an “arrangement consent.17 Feeling the pressure, a certified death certificate, certified
under a terms-of-service agree- the Uniform Law Commission letters testamentary (or equiva-
ment in which a custodian carries, relented and revised the UFADAA lent) and a copy of the document
maintains, processes, receives, or to require user consent for a custo- purporting to give the personal
stores a digital asset of the user or dian to disclose the content of an representative authority to access
provides goods or services to the electronic communication.18 This the content of electronic commu-
user.”15 Combine these two defi- point cannot be overstated because nications.21 The custodian, how-
nitions, and RUFADAA applies many provisions of the RUFADAA ever, may respond to the personal
to your Facebook and Google depend on whether the user gave representative’s request and require
accounts, your Netflix account, consent. A user can consent in three an account identifier (username)
your airline rewards account, even ways: 1) through an online tool, and evidence linking the decedent
your Chick-fil-A account. All per- 2) contained in a will, trust or power with that account before it discloses
sonal, digital accounts are subject of attorney or 3) under a terms-of- anything.22 Or the custodian can
to this law. service agreement.19 Any contra- go a step further and require the
RUFADAA is not just about diction between the user’s consent personal representative get a court
digital accounts, it also protects a is resolved by giving preference order that finds the following: 1) the
decedent’s privacy. When the first first to the online tool, followed by account was the decedent’s, 2) the
iteration was introduced in 2014, a will, trust or power of attorney disclosure does not violate the SCA
the Uniform Fiduciary Access to and concluding with the terms-of- and 3) the decedent consented to the
Digital Assets Act (UFADAA), the service agreement.20 disclosure of electronic communica-
proposed language gave a fidu- tion or that the disclosure is reason-
ciary broad access to the dece- PROBATE PROCEDURE ably necessary for the estate.23
dent’s digital accounts, including In a probate, the personal The key takeaway from this
the content of electronic commu- representative who wants access procedure is the importance of the
nications. Tech companies and to a decedent’s digital accounts decedent’s consent for the disclo-
privacy rights groups immediately must determine if that access will sure of the content of electronic
claimed that UFADAA gave unau- reveal the content of an electronic communication. With that consent
thorized access to the content of a communication. This would include in writing, a personal represen-
decedent’s electronic communica- the body of emails and text mes- tative should have little trouble
tions in direct violation of the Stored sages. If a decedent consented to the getting access to all a decedent’s
Communications Act (SCA).16 disclosure of the content of elec- digital accounts. If the personal
The SCA generally prevents tronic communications, then their representative does not have
8 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNALthe decedent’s consent, then the an electronic communication) is date the custodian received the
personal representative must get similar to the one described above. request for disclosure, the user
a court order that finds the disclo- It involves a written request for could have accessed if the user
sure is reasonably necessary for the disclosure, certified death were alive and had full capac-
the estate. This is a high bar. Early certificate and certified letters ity and access to the account.”33
cases have generally held that the testamentary.27 The custodian can Additionally, the custodian does
content of electronic communica- once again request more informa- not have to disclose any material
tions is not reasonably necessary tion (like a username) or even a that was deleted by the decedent
for the estate.24 Instead, the court court order.28 But since the disclo- during their life and may require
will give the personal represen- sure of a catalogue of electronic a reasonable administrative fee for
tative access to a catalogue of communication does not violate providing the personal represen-
electronic communications. SCA,29 the court order only needs tative access.34 Finally, if the per-
A catalogue of electronic com- to find the decedent in fact had sonal representative requests just
munications is “information that an account with the custodian or a subset of the decedent’s digital
identifies each person with which a it is reasonably necessary for the accounts, the custodian may claim
user has had an electronic commu- administration of the estate.30 Since that separating out that data is an
nication, the time and date of the collecting and preserving the dece- undue burden.35 If that is the case,
communication and the electronic dent’s assets are part of the probate then the custodian can petition the
address of the person.”25 This does process, this should be met.31 court to limit the subset by a date,
not reveal the content of the elec- RUFADAA also graciously provide for full access, provide for
tronic communication. It basically gives custodians a choice in how no access or have the court sepa-
rate it on camera.36
ANALYSIS
There is much to like about the
RUFADAA. Major endorsements
from Facebook, Google and the
AARP show the broad range of
support, from custodians and
users.37 The RUFADAA provides
a framework for grieving fami-
lies like the Rash’s and Henry’s
for closure in difficult times.
This structure helps the personal
representatives succeed in obtain-
REDPIXEL - stock.adobe.com
ing access to a decedent’s digital
accounts because it is based on a
system that was approved by the
custodians holding the decedent’s
data. For practitioners who prac-
tice in multiple states, the proce-
gives the “who” and “when,” but they disclose the digital assets dure will be consistent in probates
leaves out the “what” and “why.” to the personal representative. crossing state lines, considering
Judges are willing to order the Specifically, a custodian may RUFADAA has been enacting in
custodian to provide a catalogue of either give the personal repre- almost every state. Lastly, some may
electronic communications but keep sentative full access to the digital consider the privacy protections of
open the possibility of the personal assets or partial access sufficient a decedent’s electronic commu-
representative needing more if the enough for the personal repre- nications necessary in any statu-
catalogue reveals anything.26 sentative to fulfill their fiduciary tory scheme. To understand this
The procedure for obtaining a duty.32 Of course the custodian point, just think of an email or text
catalogue of electronic communi- could also just give the personal message you have sent about your
cations or any other digital asset representative a “copy in a record family member – do you want your
(not including the content of of any digital asset that, on the personal representative seeing that?
THE OKLAHOMA BAR JOURNAL FEBRUARY 2021 | 9The RUFADAA, though, has its relationships or even their vulner- 12. Uniformlaws.org.
13. Uniform Law Commission, Prefatory Note
fair share of drawbacks. Enacting a ability.42 The RUFADAA does not to the Revised UFADAA, www.uniformlaws.org/
uniform law will never be a perfect take this nuanced approach. HigherLogic/System/DownloadDocumentFile.
ashx?DocumentFileKey=112ab648-b257-97f2-
fit for any state. For example, the So, the question from the begin- 48c2-61fe109a0b33&forceDialog=0 (accessed
RUFADAA contains references to ning of this article remains: what Sept. 29, 2020).
14. RUFADAA §2(10).
the Uniform Trust Code (UTC).38 happens to your emails when 15. RUFADAA §2(1).
Oklahoma has not enacted the you die? The RUFADAA gives an 16. 18 U.S.C. §2701.
17. Id.
UTC, so Oklahoma must adapt.39 answer. A better question then is 18. RUFADAA §7(4)
The RUFADAA will also whether Oklahoma will use that 19. RUFADAA §4(a-c).
20. RUFADAA §4(a-c).
increase probate fees. A lawyer answer. 21. RUFADAA §7(1-4).
will need to send a request to the 22. RUFADAA §7(5)(a-b).
custodian, along with the proper 23. RUFADAA §7(5)(c).
24. Matter of Coleman, 63 Misc. 3d 609, 96
documentation for access to the ABOUT THE AUTHORS N.Y.S.3d 515 (N.Y. Sur. 2019).
decedent’s digital accounts. If the Christin Mugg is a 25. RUFADAA §2(4).
26. Coleman at 615.
custodian requests a court order, founding partner for 27. RUFADAA §8(1-3).
then the probate lawyer would need Mugg Winston. She 28. RUFADAA §8(4).
29. 18 U.S.C. §2702(c).
to prepare additional pleadings to concentrates on complex 30. RUFADAA §4(D).
obtain that order. This might not be estate planning and 31. 58 O.S. §251.
32. RUFADAA §6(a).
an issue in uncontested probates, planned charitable giving. She 33. RUFADAA §6(a)(3).
but where the personal representa- received her J.D. from the OCU 34. RUFADAA §6(b-c).
35. RUFADAA §6(d).
tive is closely monitored by suspi- School of Law in 1998, an MBA 36. RUFADAA §6(d).
cious heirs looking for a reason to from OU in 1994 and is a chartered 37. See Endorsements listed for RUDAFAA,
my.uniformlaws.org/committees/community-
claim a breach of fiduciary duty, this advisor in philanthropy. home?CommunityKey=f7237fc4-74c2-4728-81c6-
could give them that ammunition, b39a91ecdf22 (accessed on Sept. 29, 2020).
38. RUFADAA §12(2).
especially if the personal represen- Brody Gustafson is 39. The version introduced in Oklahoma
tative wants access to a decedent’s a practicing attorney requires the production of the full trust agreement
digital accounts for sentimental rea- with Mugg Winston instead of certificate or memorandum of trust.
40. Shelly Kreiczer-Levy & Ronit Donyets-
sons and not necessarily to increase in Edmond, where Kedar, “Better Left Forgotten: An Argument
the value of the estate, e.g., obtain- he focuses on trust Against Treating Some Social Media and Digital
Assets as Inheritance in an Era of Platform
ing family photos. administration, probate and digital Power,” 84 Brook. L. Rev. 703 (2019).
Finally, some have argued assets. He received his J.D. from 41. Id.
42. Id.
that the RUFADAA and similar the OU College of Law in 2019 and
laws put the cart before the horse. graduated with distinction.
Before a conversation can occur
about how to access a decedent’s ENDNOTES
digital accounts, specifically social 1. For instance, the cult-classic Tron (1982)
or the lesser known, Lawnmower Man (1992),
media accounts, states and legis- or even the digital technology that rendered
lators should consider the “role of Jurassic Park (1993).
2. Fredrick Kunkle, “Virginia family, seeking
platforms in shaping memory and clues to son’s suicide, wants easier access to
continuity.”40 Basically, what is the Facebook,” The Washington Post, Feb. 17, 2013,
at ¶2, www.washingtonpost.com/local/va-politics/
RUFADAA trying to preserve? Is virginia-family-seeking-clues-to-sons-suicide-wants-
that sense of self worthy of preser- easier-access-to-facebook/2013/02/17/e1fc728a-
7935-11e2-82e8-61a46c2cde3d_story.html.
vation even if it becomes distorted 3. Id.
through the corporate power that 4. Id. at ¶3.
5. “Ottawa mother’s quest for her late son’s
social media companies wield?41 passwords an uncharted legal road, say experts,”
Instead of shoehorning access CBC, Nov. 24, 2019, at ¶3, www.cbc.ca/radio/
outintheopen/diy-justice-1.5351892/ottawa-
to digital accounts into a tradi- mother-s-quest-for-her-late-son-s-passwords-
tional property framework where an-uncharted-legal-road-say-experts-1.5366292.
6. Id. at ¶10.
everything is inheritable, access 7. Id. at ¶14, 15.
to digital accounts should take 8. Id. at ¶9.
9. 58 O.S. §269.
into account the user’s personal 10. Id.
autonomy, their surrounding 11. Uniformlaws.org.
10 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNALProbate
Creditors, Claims and
Costs of Administering
or Probating an Estate
By Shanika Chapman and H. Terrell Monks
I F YOU’VE BEEN PRACTICING IN PROBATE for any amount of time, you likely have
a probate intake form for the prospective client that asks for heirs, assets and debts of
the estate and decedent, along with other basic information. Of those three topics, noth-
ing confounds a client more than the topic of debt. Clients remark, “Oh, mom didn’t have
any credit cards,” or, “Mom always paid her debts.” For these clients, debt equates to credit
cards. The practitioner’s job is to broaden that definition. Did mom have a mortgage? A car
note? Did she pass in a medical facility? Are there any property liens or judgment liens? If
the answer to any of these questions is yes, the estate now has a potential creditor entitled
to notice. Paying proper debts of the decedent is a crucial duty of the personal representa-
tive1 that cannot be taken lightly, and it is better to be overinclusive.
The Oklahoma Probate Code or creditor through the basics of not timely presented are forever
has devoted an entire chapter creditors and claims. The second barred.2 Failure to do so can result
to address what is a proper and half will cover more esoteric mat- in the revocation of the personal
valid claim or debt, what consti- ters and include case law and other representative’s letters of adminis-
tutes proper notice, when such statutes that may conflict and/or tration or letters testamentary.3
claim or debt must be paid, how to provide additional considerations. The notice to creditors must
properly reject or approve a claim be filed with the court clerk and
and the consequences of such PART I: CREDITOR published twice in a county news-
approval, rejection or failure to CLAIM BASICS paper over two consecutive weeks,
provide notice. Chapter 7, “Claims The Personal Representative’s within 10 days of filing.4 The
Against the Estate,” Sections 331-354 Responsibilities personal representative must also
of the probate code, provides a Chapter 7 of Title 58 on creditor mail such notice to any known
detailed roadmap for navigat- claims seeks to balance the rights creditors – those the personal rep-
ing the potential landmine that of creditors to be repaid with the resentative actually knows of or
is the world of creditor claims. heirs and beneficiaries’ rights to the through reasonable efforts could
Failure to follow it can have dire timely administration of an estate. have located.5 All prospective
consequences, including facing a Within two months of appoint- personal representatives should
hefty bill for a wronged creditor’s ment, every personal representative go through the decedent’s effects
attorney fees, and this could leave must give notice of the decedent’s (safe, filing cabinet, mail, etc.) in
an attorney with an extremely dis- passing to any known creditors or search of potential creditors. Note
satisfied client. The first half of this reasonably ascertainable credi- that the probate code does not
article will help guide a practitioner tors and advise them that claims require a personal representative
12 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNALto mail the notice to creditors to week, others daily – this is why representative fails to approve or
later discovered creditors.6 the presentment date should be reject the claim, it is presumed
Sometimes creditors will set about 65 days out since the first rejected on the 13th day after it was
respond by mailing statements or publication must occur within presented.13 Upon receipt of the
other documentation, arguably not 10 days of filing the notice with notice of rejection, the creditor has
constituting a claim (a discussion the court clerk. Always follow up 45 days to bring an ancillary pro-
of what constitutes a valid claim is with the publisher to confirm the ceeding or an independent action on
discussed infra) to the attorney for publication was timely published a claim currently due or two months
the personal representative subse- two times on consecutive weeks after the claim becomes due.14 If the
quent to the filing of the petition to (certain publication requirements personal representative neglects to
probate or administer the estate but elsewhere in the probate code only mail the notice of rejection, the cred-
prior to filing of the notice to credi- require a one-time publication). itor has until the date the final peti-
tors. Be sure to mail these creditors Proof of publication and mailing or tion is filed to bring suit.15 Note this
the notice to creditors once the per- nonmailing must be made via affi- is a change in the law, added in 2008,
sonal representative is appointed, as davit9 by the personal representa- that greatly expands the window of
they are now on notice of a known tive and filed with the court clerk. opportunity for a creditor who was
claimant. Note, however, a claim Once a claim is presented, deprived of the notice of rejection.
presented prior to the filing of the personal representative must Note also that if the creditor prevails
the notice to creditors is deemed to approve or reject it, either in part or on its action, the estate is liable for
have been validly presented, and in whole.10 Allowed claims must be the creditor’s attorney fees.16
the personal representative need not approved by the judge, who must A personal representative can
give notice by mail unless the claim likewise allow or reject the claim. pay what they believe to be a justly
is rejected in whole or in part.7 If the judge approves the claim, the due debt at any time, even without
Section 331 of Title 58 provides personal representative must file the the presentment of the claim, where
the format for the notice, which claim with the court clerk within the estate is solvent.17 Keep in mind,
typically must include a present- 30 days.11 Rejected claims, however, however, a debt that is otherwise
ment date at least two months do not require approval by the barred by the statute of limita-
out.8 Publication schedules vary judge, but notice of rejection must tions is not a debt “justly due.”18
drastically by county. Some county be mailed to the creditor within five Further, an attorney should caution
newspapers only publish once a days of the rejection.12 If the personal against authorizing the personal
THE OKLAHOMA BAR JOURNAL FEBRUARY 2021 | 13representative to pay debts until personal representative may elect to PART II: ISSUES RELATED TO
after they have a complete picture of pay it. Even if the creditor presented COSTS OF ADMINISTRATION
the entirety of the decedent’s finan- a timely, valid claim, it may not be AND CREDITOR CLAIMS
cial situation, as the code imposes entitled to payment, for example, Debts Versus Claims and
a priority of payments of debts, if the estate is insolvent or the only Priority of Payments
discussed in greater detail infra. assets in the estate are exempt. Not all creditors are treated
Generally, creditors cannot equally under the Oklahoma
The Creditor’s Responsibilities bring suit against an estate without probate code. Certain debts are
There may be a conflict within first presenting a claim.22 Certain entitled to priority payment and
the creditor statutes and case law creditors, however, are not required should be paid as soon as funds are
regarding the creditor’s obligation to file a claim in order to secure available in a solvent estate. There is,
vis a vis certain types of debt, which their debt. Judgment creditors who however, a conflict between the pro-
will be discussed in greater detail have placed a lien on the decedent’s real bate code and case law on this topic.
below. However, generally, for the property and mortgage holders are The code and Oklahoma case law
majority of debts, upon receipt of two such examples.23 However, if make numerous references to a trio
the notice to creditors, a creditor such creditor does not file a claim, of debts that hold the important sta-
must present a valid claim to the the creditor cannot pursue any tus of receiving priority of payment:
personal representative. To be valid, deficiency from the estate. Note that funeral costs, expenses of the last ill-
the claim must be signed by the creditors holding a judgment for ness and costs of administration. The
creditor’s authorized representative, money must first present the claim Oklahoma Supreme Court has long
include the amount owed, state to the personal representative.24 held that expenses of administra-
the nature and source of the claim If the only assets in the estate are tion, including attorneys’ fees, have
and, if secured, include a descrip- exempt personal property, exempt priority over every other obligation.27
tion of the security interest.19 cash and the homestead, and the Thereafter, funeral costs and expenses
Fortunately for the personal decedent left a surviving spouse of the last illness rank first and second
representative, with few exceptions, or minor child, such assets cannot for payment under the order of pay-
the claim of a creditor who received be forced to satisfy the decedent’s ment statute,28 and funeral costs and
notice but did not present the claim debts. However, the exempt personal expenses of administration are to be
by the presentment date is for- property and cash may be liable for paid prior to any family allowance.29
ever barred.20 This is an important expenses of the last illness, funeral This trio of debts is also an exception
point of discussion to have with a costs and costs of administration.25 to the exempt property statute, “No
personal representative, particu- If the personal representative such property shall be liable for any
larly where the estate at issue has has a claim against the estate, prior debts or claims against the
multiple creditors. It is not unusual they must present their claim like decedent, except, when there are no
for some creditors to neglect to file any other creditor, but they can- assets thereunto available, for the
a claim at all, a source of great relief not approve their own claim – it payment of the necessary expenses
for some clients handling an estate must be presented to the judge.26 of his last illness, funeral charges and
with a lot of debt. Note that an out- Sometimes, the personal repre- expenses of administration.”30
of-state creditor who did not receive sentative might pay certain estate Further, Section 594 provides that
notice has until the final decree is debts out of pocket if the estate a personal representative “as soon as
entered to present a claim.21 does not yet have funds, such as he has sufficient funds in his hands,
Further, creditors who fail to utilities, lawn care or a mortgage must pay the funeral expenses, and the
present a valid claim (one that meets payment. These expenses do not expenses of the last sickness, and the
the particulars of 58 O.S. §334 constitute a claim but are instead allowance made to the family of the
discussed above) by the present- expenses of administration for decedent. He may retain in his hands
ment date are also out of luck. which the personal representa- the necessary expenses of administration,
For example, some creditors will tive should be repaid, possibly at but he is not obliged to pay any other
simply mail a bill. Generally, this the time of the final distribution. debt or any legacy until, as pre-
unsigned document will not suffice Nonetheless, where there is more scribed in this chapter, the payment
to meet the statutory requirements than one heir, it is a good idea to has been ordered by the court.”
of a claim. However, if the estate get approval from other heirs, or an Finally, the statutes on small estate
is solvent and the personal rep- order of the court, for the repay- and summary probates likewise
resentative knows it to be a valid ment of those expenses prior to the distinguish this trio from other
debt, pursuant to 58 O.S. §335, the conclusion of the probate. debts and claims, requiring “proof of
14 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNALpayment of funeral expenses, expenses within that class, each creditor from in the areas of estate planning,
of last sickness and of administration such class receives a pro-rata share.37 Medicaid and probate in Edmond
and allowed claims.”31 Collectively, One final point of discussion is and Midwest City. He is an adjunct
these statutes demonstrate that that attorneys’ fees sit comfortably professor at Rose State College,
expenses of the last illness, funeral within the costs of administration municipal judge for the city of
costs and expenses of administra- of an estate.38 When such fees will Piedmont, associate judge for the
tion are a unique set of debts that come from estate assets, they must be city of Bethany and a 1997 graduate
receive priority of payment under approved by the court.39 Sometimes, of the OCU School of Law.
Oklahoma law. the source of payment isn’t always
Given the clear edict by the clear. In such case, disclosure to the
ENDNOTES
Legislature that the personal repre- court of the attorney fee is the better 1. The term “personal representative” shall
sentative must pay these debts, it is route. For example, if the sole heir also encompass “executor,” “executrix” and
“administrator.”
not unreasonable for a practitioner pays the attorney fee upfront at the 2. 58 O.S. §§331, 331.1., 352.
to presume such payments must be initial consultation, at that moment, 3. 58 O.S. §352.
4. 58 O.S. §331.
made regardless of if the creditor also the heir has presumably paid from 5. 58 O.S. §331.1.
filed a claim. However, the Oklahoma their own assets. However, if they 6. 58 O.S. §331.2.
7. 58 O.S. §337(E); See also In re: the Estate of
Supreme Court has called such think- will inherit cash from the estate, an Villines, 2005 OK 63, 122 P.3d 466.
ing into question in the Estate of Pope.32 argument could be made that since 8. If the decedent died at least five years
prior to the filing of the probate, or if the personal
In Pope, the creditor for the cash is fungible, they essentially representative elects to file a summary administration,
expenses of the decedent’s last ill- paid your fee from estate assets. the presentment date is shortened to one month. 58
O.S. §331.
ness failed to present its claim to the Requesting approval of such fee from 9. 58 O.S. §332.
personal representative within the the court is the much better option 10. 58 O.S. §337.
11. 58 O.S. §338.
statutory period outlined in 58 O.S. here, especially in light of our duty of 12. Id. §337.
§331.33 Four years later, the credi- candor to the tribunal and Mansfield.40 13. Id.
14. Id. §339.
tor’s assignee filed an application 15. Id. §337(F)(2).
for an order compelling payment CONCLUSION 16. Id. §350.
17. Id. §335.
of expenses of last illness. The trial The personal representative 18. See In re: Estate of Carlin, 1977 OK CIV
court held the creditor’s failure to file has an obligation to appropriately APP 55, ¶7, 572 P.2d 606.
19. 58 O.S. §334.
a timely claim barred its assertion of address creditor claims. The probate 20. Id. §333.
the claim.34 After a lengthy analysis practitioner’s familiarity with the 21. Id.
22. Id. §341.
of the claim presentation statutes probate code’s roadmap regarding 23. Id. §333; Stewart Drugs, INC. v. Estate of
and 58 O.S. §594, the Oklahoma the treatment, priority and payment Funnell, 2001 OK CIV APP 7, 16 P.3d 1134.
Supreme Court agreed, holding that of creditor claims, coupled with 24. 58 O.S. §346.
25. Id. §312.
a creditor for the expenses of the detailed instructions to their client, 26. Id. §351.
last illness must also present a valid will assure the personal repre- 27. See Tims Funeral Home v. Phillips, 1972
OK 121, ¶¶8-14, 501 P.2d 493.
claim.35 However, not all the justices sentative can efficiently meet this 28. 58 O.S. §591.
agreed with the holding, and one obligation, and they have been com- 29. Id. §315.
30. Id. §312.
dissenting judge offered reasons petently represented and counseled. 31. Id. §§241, 247.
as to why he believed the court got 32. In re: the Estate of Pope, 1986 OK 72, 733
P.2d 396.
it wrong, including its failure to 33. Id. at ¶8, 399.
recognize the Legislature intended ABOUT THE AUTHORS 34. Id. at ¶2, 397.
35. Id. at ¶8, 399.
to treat certain debts, such as those Shanika Chapman is an 36. Id. at
of the last illness, differently than attorney with Oklahoma 37. 58 O.S. §§591, 593.
38. See Tims Funeral Home v. Phillips, 1972
other claims.36 It will be interesting Estate Attorneys PLLC OK 121, ¶¶8-14, 501 P.2d 493.
to see how this apparent conflict in in Oklahoma City and 39. State ex rel. Oklahoma Bar Association v.
Mansfield, 2015 OK 22, 350 P.3d 108, states in
the law may develop in the future. practices in the areas of probate and pertinent part as follows:
Once the personal representa- estate planning. She received her J.D. Oklahoma law clearly requires prior court
approval for the payment of any and all fees
tive has received all the debts of from the OCU School of Law in 2013. for such services regardless of whether an
the estate, Sections 591 and 593 attorney acts as special administrator, personal
collectively delineate the order of H. Terrell Monks is representative, executor, or attorney for an
estate. Probate judges and the practicing bar
payment, organizing each group of the senior attorney must exercise diligence to ensure fees are not
debts by “classes” and instructing of Oklahoma Estate removed from an estate without court approval.
40. Id.
that where the estate lacks the funds Attorneys PLLC, where
to pay the entirety of the claims he practices primarily
THE OKLAHOMA BAR JOURNAL FEBRUARY 2021 | 15Probate
How to Know When You
Need to File a Probate
By Sarah Stewart and Hiba Jameel
O KLAHOMA LAW GENERALLY ALLOWS for three different probate procedures.
First, is the traditional probate procedure under Oklahoma Statutes Title 58, generally.
Second, is summary administration under 58 O.S. §246. Third, is an ancillary proceeding
under 58 O.S. §677. Probate procedures include intestate probates, where the decedent does
not have a last will and testament and testate probates, where the decedent does have a last
will and testament. Intestate probates follow the intestacy rules in the Oklahoma Statutes.1
Though Oklahoma law provides estate, the joint owner will need conveys or acquires real property
direction for probate procedures in to file an affidavit of surviving in the trust’s name, the trustee
certain situations, Oklahoma also joint tenant and certified death must file a memorandum of
allows for circumstances where a certificate in the county where trust with the county clerk in
probate does not need to be filed. the property is located.3 the county where the real estate
If any of the following situations If the property owned by the is located.4
apply to your case, you do not need decedent is held jointly with A trust is only as good as what
to file a probate. rights of survivorship, the prop- you put in it. If a piece of prop-
erty will pass to the surviving erty is not properly titled into the
WHEN ALL ASSETS ARE owner entirely at the death of the trust and does not meet one of the
OWNED JOINTLY WITH RIGHTS joint owner. However, if the joint other circumstances discussed
OF SURVIVORSHIP, AND THERE owner died without transferring herein, the property will need to
IS A SURVIVING OWNER the property in one of the ways go through one of Oklahoma’s
Many assets can be owned by described herein, the property probate processes.
more than one person as joint ten- will have to go through probate.
ants with rights of survivorship. WHEN BENEFICIARIES
That includes bank accounts, auto- WHEN ALL ASSETS ARE ARE NAMED
mobiles and even real property. OWNED BY A TRUST When you set up securities and
Under Oklahoma law, an account One estate planning tool used security accounts, 5 the issuing
held jointly in the names of more often to avoid probate is a trust. A company often asks the owner to
than one person is presumed to trust avoids the probate process name beneficiaries for the accounts.
pass to the surviving owner, out- because all the assets titled into Oklahoma law recognizes those
side of the decedent’s estate.2 the trust are owned by the trust beneficiaries as the rightful owners
Additionally, real estate can be at the owner’s death. So, there is of the asset after the owner dies,
owned by more than one person no need for the court process of and property named with ben-
as joint owners with rights of probate to transfer the assets. eficiaries will pass outside the
survivorship and pass outside the Trustees can usually man- probate estate.6 Similarly, some
decedent’s estate. However, if the age personal and real property kinds of insurance policies allow
surviving joint owner seeks to with the powers granted to them owners to name beneficiaries for
claim the real estate outside the under the trust. When the trustee the funds. In order to retrieve
16 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNALthe assets, the beneficiaries must
provide proof of death of the last
surviving owner.
In Oklahoma, account hold-
ers can also name payable on
death beneficiaries to their bank
accounts through each individual
bank’s process. A payable on death
beneficiary will inherit the asset
directly upon proof of death, with-
out the need for probate, just as
other beneficiaries would.7 If there
is no surviving beneficiary or pay-
able on death beneficiary named,
the assets will become part of the
estate. That means a probate must
be opened to transfer the property
to the decedent’s heirs.
A similar option exists for real
estate; however, the process for
claiming the property is more
stringent. Transfer on death deeds
are deeds that allow a real property
owner to name a beneficiary for
the owner’s property at the owner’s
death. The deed must be filed in the
county clerk’s office in the county
where the property is located in
order to claim the property upon
the owner’s death. For owners who
die after Nov. 1, 2011, the beneficia-
ries must file an affidavit to claim
their interest in the property and
proof of death at the county clerk’s
office in the county where the prop-
erty is located within nine months
of the owner’s death. Otherwise,
the property will revert back to the
estate and require probate.8
THE OKLAHOMA BAR JOURNALAlso, similar to other beneficiary testament or not, as long as no one Hiba Jameel is a third-
designations, if the beneficiary of a has filed a petition for the appoint- year law student at the
transfer on death deed predeceases ment of a personal representative. OCU School of Law. She
the decedent, the property becomes An affidavit of known heirs can holds a bachelor’s degree
part of the decedent’s estate.9 As only be used when the decedent in translation from her
such, it will have to go through the did not have a last will and testa- native country, Iraq, and a master’s
probate process to transfer title from ment.14 There is no requirement in in international relations from the
the decedent to the decedent’s heirs. the statute as to the disposition of University of Central Oklahoma as a
a petition for the appointment of Fulbright scholar. Her diverse career
WHEN THE PROPERTY IS personal representative. ranges from nonprofit to legal support.
PERSONAL PROPERTY WITH An exception to the $50,000 value
A VALUE LESS THAN $50,000 applies to property held by the state ENDNOTES
Severed mineral interests can treasurer as unclaimed property. 1. 84 O.S. §213.
2. Romine v. Pense (In re Estate of Metz), 2011
be transferred with an affidavit of Under the treasurer’s rules, the OK 26, ¶6, 256 P.3d 45, 48-49.
death and heirship in the county state treasurer can only accept an 3. 58 O.S. §912.
4. 60 O.S. §175.6a.
clerk’s office where the property is affidavit on property with a value 5. 71 O.S. §902.
located.10 However, in order for the of less than $10,000.15 In 2006, the 6. 71 O.S. §908.
affidavit to transfer marketable title, state treasurer submitted a question 7. 6 O.S. §901, 18 O.S. §381.39a.
8. 58 O.S. §§1251 – 1258.
it must state the decedent had no last to the attorney general to clarify if 9. 58 O.S. §1255.
will and testament, or if there was a 58 O.S. §393 applied to unclaimed 10. 58 O.S. §393 (d).
11. 16 O.S. §67.
will, the will was never probated, or property held by the treasurer’s 12. 58 O.S. §393.
if the will was probated, the mineral office. The attorney general found 13. 6 O.S. §906.
14. 6 O.S. §906.
interests were left out of the probate. the new statute did not override 60 15. 60 O.S. §674.2.
If there is a will, it must be attached O.S. §674.2.16 Therefore, any claims 16. Question submitted by Scott Meacham,
Oklahoma state treasurer, 2006 OK AG 21.
to the affidavit, and if there was a for unclaimed property through the 17. 60 O.S. §674.2 (1) – (3).
final decree in a probate, it must be Oklahoma State Treasurer’s Office
attached to the affidavit. The affi- over $10,000 require a probate or
davit must be on file in the county proof of a trust or quiet title action.17
clerk’s office in the county where the
property is located for 10 years with CONCLUSION
no documents inconsistent with the Probate can be a costly and
affidavit filed with the clerk before stressful process for families who
the title becomes marketable.11 are already grieving the death of
Personal property is different a loved one. Luckily, Oklahoma
than real estate. Personal property law provides families with other
generally includes bank accounts, options. When the previous four
certificates of deposit, stocks, circumstances are present, a dece-
bonds and most other property dent’s loved one will not have to
that is not real estate. As long as go to court and start a probate.
the decedent’s personal property
within the state of Oklahoma,
minus liens and encumbrances, is ABOUT THE AUTHORS
$50,000 or less, the heirs can trans- Sarah C. Stewart
fer the property with an affidavit. graduated from the
Under Oklahoma law, heirs can OCU School of Law and
use an affidavit of tangible personal practices in Edmond.
property12 or an affidavit of known She focuses her estate
heirs13 and provide the affidavit planning practice on helping
and proof of death of the owner to families understand and plan for
the company or person holding the their specific goals throughout their
property to transfer the property to lifetimes. She has helped Oklahoma
them. An affidavit of tangible per- families with guardianship, estate
sonal property can be used whether planning and probates since 2009.
the decedent had a last will and
18 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNALProbate Good Grief! Why Choose a Summary Probate? By Frank Hinton 20 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNAL
A TTORNEYS LOVE A CLIENT who has everything together – the estate plan was put together,
the will is clear and unambiguous and there are organized records for all real and personal
property, and maybe there is even a detailed trust agreement. Your client has done everything right.
No wonder the client feels angry and betrayed when you let them know probate proceedings are
necessary. Maybe some piece of real property was never conveyed to the trust. Maybe the client
believes an out-of-state probate in the decedent’s domiciliary jurisdiction should be sufficient. Or
maybe the client just misunderstands that a will does not avoid probate. Cue the five stages of grief.
Oklahoma statutes provide four of Division Order Analysts, Oklahoma valued at less than $50,000 but is inef-
different procedures for probate or Division of the Mid-Continent Oil & fective to transfer any real property.4
administration of a decedent’s estate. A Gas Association and the Oklahoma
full probate provides the most flexibil- Independent Petroleum Association ANGER
ity for contingencies, such as the sale of to address fractionalization of oil and We get it. Your out-of-state client
estate property or complicated heir- gas mineral interests. The result of this suspects that requiring a second
ship disputes. Section 58 O.S. §241 is collaboration was House Bill 2141, passed probate is a scam to keep Oklahoma
specifically designed for estates under in the 1998 session of the Oklahoma lawyers gainfully employed, but there
$150,000. Section 58 O.S. §677 pro- Legislature.2 Thus, summary adminis- is good reason for a separate Oklahoma
vides for ancillary proceedings if the tration is particularly suited to oil and probate. Oklahoma is not a commu-
decedent was domiciled in a different gas mineral interests but may be used nity property state and has different
state. However, attorneys frequently in a variety of situations. A §245 probate statutes with regard to what happens
run into the problem that 58 O.S. §677 can significantly lessen the grief typical to property when a person dies with-
requires an order distributing estate probate proceedings can engender. out a will. Those are the obvious cases,
from the domiciliary estate. Good luck but everything from creditors' rights to
getting one of those out of Texas where DENIAL statutes of limitations is going to be at
independent administration does Your client yearns to explain to you least slightly different in Oklahoma. For
not require an order distributing the why probate should not be necessary. example, there is no statute of limitations
estate.1 The subject of this article is 58 Perhaps the client has properly probated on probating a will in Oklahoma. Maybe
O.S. §245, which can shorten the time- the decedent’s estate in the domiciliary your client lost out on an inheritance
frame by more than half compared to a state and believes no probate is required. because a will was located only after it
full probate and has broader uses than Unfortunately, only Oklahoma district could no longer be legally probated in
either a 58 O.S. §241 summary probate courts have jurisdiction over administra- the domiciliary state. Guess what? The
or a 58 O.S. §677 ancillary probate. tion of decedents’ estates with regard to will can still be probated in Oklahoma,
The summary administration real property in Oklahoma.3 Marketable and your client may be able to inherit
proceedings described in 58 O.S. §245- title to real property will likely require real property in Oklahoma while real
47 were initiated by an industry group an Oklahoma probate. A small estate property in another state was forfeited
formed by the National Association of affidavit may be used in situations where by failure to timely probate the will
Royalty Owners, National Association the estate consists of personal property in that other jurisdiction.5 So, for every
THE OKLAHOMA BAR JOURNAL FEBRUARY 2021 | 21case where a summary probate is is valued at $200,000 or less, 2) the legal descriptions of all real property.
just another headache, there is also decedent has been dead for more than With this information, you can begin to
the possibility for a second chance to five years or 3) the decedent resided prepare pleadings. Forms are available
assert your client’s rights and achieve in another state at the time of death.8 in a 1999 bar journal article on the same
a more positive outcome. Compare this to an ancillary proceed- topic.10 Prior to using these forms, please
ing (which requires an out-of-state be aware 58 O.S. §246 was amended such
BARGAINING decedent and an order distributing the that objections may now be filed any
Can your client get away with an estate in the domiciliary proceeding) time before the final hearing. Previously,
affidavit of death and heirship or a or a 58 O.S. §241 summary proceed- objections were required to be filed at
small estate affidavit? Maybe, for a time. ing (which requires assets less than least 10 days before the final hearing.11
Affidavits of death and heirship have a $150,000). This
narrow statutory use for severed oil and makes a §245
gas interests after the affidavit has been summary pro-
recorded for 10 years.6 One problem bate a great one-
with affidavits of death and heirship is stop-shop for a
if the decedent died with a will, the stat- variety of cases.
ute does not say whether to credit those Summary pro-
who would have inherited under the bate can be a
will or those who would have inherited great option for
had the decedent died without a will. It mineral own-
appears there was legislation introduced ers because
to clarify this, but such legislation has they usually
not yet passed the Oklahoma Senate.7 fall into one of
It may be worth the trouble to these three cat-
bargain in this phase. As to severed egories and fre-
mineral interests, it might be that your quently fall into all three. Summary Venue is jurisdictional12 and fixed
client can get by with an affidavit of probate can also be useful where the by statute in 58 O.S. §5, which requires
heirship, but it may be an opportunity major asset passing through probate that probate or administration proceed-
to remind your client that ultimately is the decedent’s home, given the ings are to be held (in order of priority):13
a probate will probably be necessary median price for homes in Oklahoma
and as with most legal problems, is around $128,934.9 The option to use 1) In the county of which the
could become more complicated and summary probate in cases where the decedent was a resident at the
more costly as time goes on. decedent has been dead for more than time of their death, regardless
five years creates a use case for fam- of where they died.
DEPRESSION ilies that may be living in a parent or 2) In the county in which the
So far, this article has discussed grandparent’s home but never needed decedent died, leaving an
alternatives to a summary probate. At clear title until five years passed. estate therein, the deceased not
the end of the day, if the decedent died being a resident of this state.
owning an interest in real property ACCEPTANCE 3) In the county in which any
in Oklahoma or personal property Now that you have walked your cli- part of the estate of the
valued at more than $50,000, a probate ent through the five stages of grieving, deceased may be, where the
is going to be necessary. Perhaps your assuaged some fears about probate and decedent died out of this
client is still grieving the loss of a loved established the available uses for sum- state, and the decedent was
one. Probate is complicated, expensive mary administration, it is important not a resident of this state at
and stressful, right? Explaining the to understand the procedure. the time of his death.
basics of Oklahoma summary probate Initially, it will be important to 4) In the county in which any
can alleviate that frustration at the collect the relevant information from part of the estate may be, and
necessity of a probate. While a full the client, including the decedent’s the decedent was not a resident
probate will typically take at least six date and residence at death, whether of this state but died within it
months and at least two hearings, a the decedent died testate, whether any and did not leave an estate in
summary probate can take as little as administration or probate proceedings the county in which he died.
two months and only a single hearing. have been conducted elsewhere, names 5) In all other cases, in the
A summary probate in Oklahoma and addresses of any heirs, devisees county where an application
is available if 1) the decedent’s estate or named executors of the decedent and for letters is first made.
22 | FEBRUARY 2021 THE OKLAHOMA BAR JOURNALYou can also read
