As an estate planning attorney, most of my clients are meeting with me to help avoid probate as much as possible. I have written previous posts all about how to avoid probate. However, sometimes, probate can be beneficial in certain circumstances.
A lot of estates go through probate, which is the court process to distribute assets and pay off debts when someone has passed. Unless there was planning ahead, when most people die where they leave behind real property and assets, their estate will typically go through the probate process. A Personal Representative will be appointed, and the Will will be filed with the court. If there is no will, the assets will be distributed through the state’s “will” – which is called intestate.
If you are a beneficiary of the estate, you may be surprised by the long, drawn-out court procedure which you are at the mercy of. In Oklahoma, a typical probate now lasts around 4-6 months unless it is contested or if selling real estate is involved (which can prolong the process). However, the probate proceeding serves several purposes and once you understand them, it can make it easier to accept the waiting period.
Once the will is validated, the next step in the probate process is to appoint an executor whose responsibility will be to collect the estate’s assets, appraise the assets value, pay creditors, file taxes (if necessary) and finally, distribute the property to the beneficiaries or heirs according to the Will or the state statutes. What is beneficial about Probate is that is a court-monitored proceeding in which the Personal Representative is not only supervised, but he or she must comply with specific procedures and legal requirements. For estates where there may not be a trustworthy person to take control, this is a huge benefit. Even for estates where everyone is honest, having a court oversee everything makes it to where there cannot even be the appearance of impropriety. The court won’t allow dishonorable or unethical conduct by personal representatives/executors.
There are more benefits to probate, though. Personal Representatives are required to provide accountings, unless waived by all the beneficiaries/heirs. The court requires all of the beneficaries’ names, ages and residences, and all the beneficiaries are legally required notice of the court proceedings and any and all court dates. Probate also allows any person interested in the estate to contest the Will.
One note about contesting a Will should be made, however. A beneficiary or heir can contest a Will for reasons which include: 1) mental incapacity of the decedent to make a will, 2) duress, 3) fraud, 4) undue influence, and 5) any other reasons questioning the validity of the will. Beneficiaries and heirs cannot contest based solely on that they do not like what the Will says, because will-makers are allowed to make a will that includes their wishes, but they can be contested based on that the will-maker was not in the right mind to make a Will.
For more information regarding the probate process and how it can protect the rights of beneficiaries, contact our attorney at the Skillern Law Firm, PLLC.