Distribution of the estate is just that, distributing the assets of the decedent. Prior to the distribution of an estate, if the deceased person dies with a will or intestate, the opening of the probate must be advertised so that creditors to the estate have a chance to respond. One of the things that a will provides for is that the estate expenses will be paid through the estate. In most cases, the governing law is the law of the state where the assets reside. For example, if the decedent and the assets were in Oklahoma, then Oklahoma law would govern. Just as when a person dies intestate, if the decedent owned real property in another state, then a secondary (ancillary) probate may need to be opened in that state to deal with the transfer of the real estate.
Avoiding Probate
There are ways to altogether avoid probate proceedings. Naming beneficiaries to accounts is the easiest way for an asset to transfer without going through probate. And the most common method for sizeable estates to avoid probate is to establish trust agreements. For smaller estates, there are transfer on death methods for bank accounts and real estate that transfer ownership upon the death of the owner to a person or entity of their choosing. Another tool to avoid probate is to own an asset jointly with right of survivorship. You usually see this with married couples. Property owned jointly with a right of survivorship goes to the surviving owner without going through probate.
While beneficiaries can usually take the property without going through probate, certain beneficiaries deemed legally incompetent, such as minors or individuals that are not able to manage their own affairs, may require court proceedings to establish guardianships. In short, there may be a need to set up a guardianship to manage the asset on behalf of the beneficiary
A Note About Spousal Interests
Another important care is regarding married couples. Spouses have a claim to a marital share in the estate of their deceased spouse. This is commonly known as a forced share or an elective share. This is the percentage of the spouse’s estate set by statute that the surviving spouse may choose to receive their elective share instead of taking under a will or in the event of being unjustifiably disinherited. The general rule is to ensure a spouse receives what they are entitled.
Unless there is some sort of legally recognized prenuptial or premarital agreement that allows it a spouse cannot be alienated from their statutory share in the estate of the deceased spouse. These types of agreements are made before marriage and work to resolve issues of property division and support if the marriage ends in divorce or the death of one spouse. Lacking this form of an agreement the estate of the deceased spouse consists of both separate and marital property. Marital property is property acquired during the marriage. In contrast, property acquired before the marriage, money from an inheritance, or personal injury judgment is generally considered separate property. If the separate property is combined (or as we commonly refer to it as “co-mingled”) with any marital property it may transform that portion of separate property to marital property. It gets pretty complicated, and you can read about it under Title 84 Okla. Stat. Sec. 213
Personal Representative And Executor Liability
A personal representative is a person who manages the legal affairs of another because of incapacity or death, like in a death. An executor is a personal representative named in a will. An estate administrator is a personal representative not named in a will. A personal representative is considered a fiduciary. A fiduciary has a duty of good faith, trust, confidence, and act with a high standard of care when managing the affairs of another person. The will should list the powers being granted to the executor. For example, a person might want the executor to have control over the entire estate, and authority to receive rents and profits from any real or personal property, pay taxes, insure the property, hold securities, vote or give proxies on shares of stock, make elections permitted under any pension or profit-sharing plan, invest, and/or distribute the cash in the estate to satisfy gift requirements.
The liability of the executor can be limited in the will. There can be loosened rules to require executor liability only for acts of willful or gross negligence. This protects the executor from being sued because of making an honest mistake. Executors statutorily have the right to charge a fee though many often serve with no fee at all. This makes for an even more compelling reason to limit their liability to protect them from punishment when they only seek to do a good deed. If the executor wishes to decline the appointment and there is not another executor available or willing to act, it may be helpful to give the executor the power to nominate someone to take their place.
In Oklahoma, if the estate is appraised at less than $150,000 the personal representative can petition the estate forego appraisement and inventory. The net effect is that it will be managed, distributed, or settled without court supervision to the maximum extent permitted by law.
For more information on Distribution Of The Estate in Oklahoma, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (918) 565-0070 today.