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lwpat
lwpat, Attorney at Law
Category: Estate Law
Satisfied Customers: 25386
Experience:  Attorney with experience in wills, estates and trusts
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We are in Oklahoma. When someone dies without a will, do we

Resolved Question:

We are in Oklahoma. When someone dies without a will, do we have to go through probate court?
Submitted: 7 years ago.
Category: Estate Law
Expert:  lwpat replied 7 years ago.
It depends. If there is real estate you have to go through the probate court. If there is only personal property you may be able to use an affidavit

The non-judicial procedure for collecting assets is that it is very broad in terms of its applicability to various types of personal property. It includes: "tangible personal property or an instrument evidencing a debt, obligation, stock, chose in action, or stock bond."7 The rightful owner of personal property as a result of the death of the decedent may deliver to the holder an affidavit setting forth the information required by 58 O.S. 2001 § 393 as follows:

1. Fair market value, less liens and encumbrances, of the property located in Oklahoma does not exceed $10,000.
2. There has been no petition for appointment of a personal representative.
3. The persons entitled to payment or delivery and in what proportion.
4. All the estate's taxes and debts have been paid or otherwise provided for or are barred by a statute of limitations.

The really wonderful part of Section 393 is that it is not left within the discretion of the holder to accept the affidavit. The statute requires the holder to make payment or deliver the personal property. This may be particularly helpful in connection with transfer agents where there is a small quantity of stock.8

As would be expected, the Legislature has provided a release from liability for holders of such items of personal property that are delivered pursuant to such an affidavit, 58 O.S. 2001 § 394. A form of Affidavit can be found on the Internet at 1) http://my.okbar.org/ or 2) www.oba-net.org, File Library, Probate, Trust & Estate Planning.

5. Title to Vehicles, Boats and Outboard Motors

One type of asset that often is left behind is an automobile. A particularly useful procedure in these cases is the "No Administrator Affidavit" made available by the Motor Vehicle Division of the Oklahoma Tax Commission through tag agencies across the state. By completing this form and supplying a certified copy of the death certificate, the affiant may obtain title to a vehicle, boat or outboard motor where there is no probate or administration proceeding and no other person would have a prior right. A form of No Administrator Affidavit can be found on the Internet at 1) http://my.okbar.org/ or 2) www.oba-net.org, File Library, Probate, Trust & Estate Planning.

Customer: replied 7 years ago.
The only thing she had was a mobile home (on a rented lot). It is is my husband's name as well as well as hers. She also had a 1985 Buick that a family member gave her. Everything else is personal property. We are needing to sell things to pay for her funeral. We also need access to her bank account. She added her daughter as a signer on the account right before she died and the bank said that since she died it cancelled it.
Expert:  lwpat replied 7 years ago.
Here you are going to have to go through the probate court since there are debts of the estate. However, it will be a small estate proceeding

§241. Dispensing with Regular Proceedings in Estates under $150,000 - Notice to Creditors and Notice of Hearing - Procedure.

A. If, upon filing a petition for probate and after the appointment of the personal representative, it appears that the value of the real and personal property in the estate does not exceed One Hundred Fifty Thousand Dollars ($150,000.00), the court shall order the personal representative to make an inventory of the estate, and the court shall appoint appraisers unless the court determines that appraisement is not necessary.

B. If, upon return of the inventory of the estate of the decedent, and appraisement of the estate if required, it appears that the value of the whole estate, both real and personal property, does not exceed One Hundred Fifty Thousand Dollars ($150,000.00), and upon application of the personal representative, the court shall dispense with the regular proceedings or any part thereof prescribed by law, and the court shall order notice to creditors, and issue order for hearing upon the final accounting and petition for determination of heirship, distribution and discharge; provided, nothing herein shall affect the lien upon any property for any estate or transfer tax which may be due upon the estate of the decedent.

C. Notice to creditors and notice of hearing upon the final accounting and petition for determination of heirship, distribution and discharge shall be published once each week for two (2) consecutive weeks in some newspaper of general circulation, published in the county where the probate is filed, or, where there is no newspaper published in the county, posted in three public places in said county, one of which shall be the county courthouse. Notice to creditors and notice of hearing upon the final accounting, determination of heirship, distribution and discharge may be combined in one notice, referred to as a "combined notice". The notice to creditors or combined notice shall be mailed to creditors of the decedent as provided in Sections 331 and 331.1 of this title. Notice of the hearing or the combined notice shall be mailed to all persons interested in the estate of said decedent at their respective last-known addresses not less than ten (10) days prior to the date of the hearing, and said notice shall set forth a date by which final account and petition for distribution will be filed. The date of said filing shall precede by at least five (5) days the order allowing final accounting, determination of heirs, and of legatees and devisees, if any, and distribution.

D. The matter shall be set for hearing not less than thirty-five (35) days following the first publication of notice to creditors or combined notice, and upon such hearing the court shall, after proof of payment of funeral expenses, expenses of last sickness and of administration and allowed claims, issue an order allowing such final accounting, determining heirship and the legatees and devisees, if any, of said decedent, distributing the property of said estate and discharging the personal representative and surety or sureties on the personal representative's bond, or defer such discharge if in the discretion of the court such deferral is necessary or desirable.

 

Make an appointment with the clerk at the probate court. The person that is going to be the executor needs to take an original of the death certificate, their birth certificate to show relationship and picture ID.

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