The short answer is: some wills do go through probate, but not all wills do. A will goes through probate if 1) the property named in the will is in the name of the decedent alone, and no one else, and 2) state law requires that the property be probated in order to be distributed. In this post, I’ll discuss which wills go through probate and which wills don’t.
First, a quick overview of what probate is. Probate is the process where, after a person dies, the heirs go to court and ask the judge to distribute property to the heirs. For a further explanation of what probate is like, read my earlier post, “What Happens in Probate Court in Oklahoma?”
In general, a will goes through probate if the property is only in the name of the decedent, and if there is no other way to distribute the property. To understand when property goes through probate, it’s probably easiest to look at examples of common occurrences, rather than the text of the law. So, I’ve listed some examples that many of my clients have encountered:
Example A: A house is in the name of John Jones. No one else’s name is listed on the deed. John Jones has died. In this case, the property is only in the name of John Jones.
In Oklahoma, the only way to transfer the real property of a deceased person, is through probate. So the property goes through probate.
Example B: A house is in the name of John Jones and his wife Jane Jones, as joint tenants with right of survivorship. John Jones has died, and Jane survives him.
Because Jane Jones held the property in joint tenancy with right of survivorship, the home goes to her, outside of probate.
Example C: A house is in the name of John Jones and his wife Jane Jones, as joint tenants with right of survivorship. Both John and Jane Jones are deceased. So, no living person has their name on the deed.
In Oklahoma, the only way to transfer the real property of a deceased person, is through probate. The property goes through probate.
Example D: A house is in the name of John Jones and his wife Jane Jones. But they don’t hold it as joint tenants with right of survivorship. John Jones is deceased, and his wife Jane survives him.
Because Jane Jones doesn’t have a right of survivorship, the home is still partially in the name of John Jones. Jane Jones doesn’t have to go to probate court to get her share of the house (because she already owns it). But she will have to go to probate court to get John’s share of the house. For information on the differences between owners with right of survivorship and without right of survivorship, click here.
Example E: A house is in the name of the John and Jane Jones Trust. Both John and Jane Jones are deceased. But the property is in the name of a trust, not in the name of John or Jane Jones individually.
The property will be distributed to the beneficiaries of the trust, outside of probate. For information on trusts, click here.
Example F: A house is in the name of John Jones, and no one else. John Jones is deceased. Before he died, John Jones wrote a transfer on death deed in which he named his son as the grantee.
For transfer on death deeds, there is a special rule. If the grantee files the decedent’s death certificate in the county clerk’s office within nine months after the grantor’s death, the property won’t go through probate. But, if the grantee files the decedent’s death certificate more than nine months after the grantor passed, then the filing is worthless, and the property must go through probate. For more about transfer on death deeds, click here.
Example G: John Jones is deceased. He owned property (that is not land) that’s worth less than $50,000. The property is in the name of John Jones alone, and no one else.
In Oklahoma, if a person owned property (other than real property) that is worth less than $50,000, then the heirs can present a “Small Estate Affidavit” to the person holding the property, and the person holding the property must surrender the property to the heirs named in the affidavit. The property won’t go through probate. For information on small estate affidavits, click here.
Example H: John Jones is deceased. He owned stocks, bonds, and an IRA, that are worth a total of more than $50,000. But, he’s named a payable on death beneficiary to these stocks and bonds and IRA.
The Small Estate Affidavit won’t work here, because, even though it’s not real property, it is worth more than $50,000. But, because he’s named a payable on death beneficiary, the property will go to that beneficiary without going through probate.
Example I: John Jones is deceased. He owned a car. The car was in his name alone, and no one else’s.
There are special rules for distribution of motor vehicles, which are too complex to list in this post. In some cases, the vehicle must pass through probate. To read the rules for distribution of a motor vehicle, read my post, “When a Motor Vehicle Owner Has Died, What Happens to the Vehicle?”
Does drafting a will help avoid probate?
Some clients have asked me this question. In general, whether property goes through probate depends on the nature of the property, and whether the property is in the name of the decedent alone. Drafting a will has no effect on whether property goes through probate. The only real advantage of a will is that it allows you to control who will receive your property. If you don’t have a will, your property will still go through probate, and the court will distribute your property to your relatives under the law of intestate succession. Your property may end up in the hands of relatives whom you don’t want to have it.
Another advantage of a will is that a will enables you to control property that you don’t know about. A surprisingly large number of Americans own property they don’t even know exists. Generally, to place property in joint tenancy, or in a trust, or to name a payable on death beneficiary, you have to identify the property. But you don’t have to identify property to control its disposition with a will. All you need to say is, “I leave the residue of my estate to X.”
For further information on the advantages of a will, read my post, “Why you should have a will.”
Do you have questions? Contact Persaud Law Office
Many clients, after their relatives pass away, wonder whether the will needs to be probated. We can help you determine this. Also, if you are planning your estate, we can guide you toward the best way to do so. If you need help, feel free to reach out to us today.
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