What happens when you or somebody you love passes without a will or estate plan? Here's a quick rundown. If you want to avoid this lengthy (years long in many cases) and costly process ($10,000-$15,000 in legal fees and expenses, if all goes well, much more if there's a dispute, not to mention estate taxes, etc.), get in touch with me: jwells@jdwellslaw.com or call my office at 405.730.9261.

1. Account for All Assets

To prepare for probate, the first thing you need to do is to account for all the property that the decedent owned and create an itemized list of the property that will need to be probated.

This will be all the property that is not transferred by some other method based on the nature of the property. For example, the following items of property are not part of the probate estate:

Life insurance

IRAs

401(k)s

Annuities

Other payable on death (POD) accounts

Revocable living trusts

Jointly-held bank accounts

These items are automatically transferred according to the terms of the respective instruments or accounts.

2. Determine Where to File for Probate

Probate normally occurs in the county where the decedent was domiciled (where they lived) when they died.

However, if the decedent owned real property (land) in another state, you may need to initiate probate proceedings in the state where the land is located as well.

3. Obtain “Letters Testamentary”

When you are ready to file for probate, you must petition the court for “Letters Testamentary” or “Letters of Administration.”

This means that you request permission from the court to serve as the personal representative of the decedent’s estate.

Once the court issues Letters Testamentary, you are responsible for following the administrative procedures of the probate court and administering the decedent’s estate.

4. Identify Heirs

Heirs are the persons related to the decedent by blood (relatives), marriage (spouse), or adoption (treated like a biological child), who are alive at the time of the decedent’s death. Children not yet born at the time of a decedent’s death are generally treated as living for purposes of intestacy.

Every state has a statute that prioritizes classes of heirs according to how closely they are related to the decedent. A typical statute prioritizes as follows:

Spouse

Children

Parents

Grandparents

Siblings

Every state statute also has a cutoff, at which point the state determines that heirs are excluded from inheriting a decedent’s property.

These are called “laughing heirs” because they’re so far removed from the decedent that it’s said they’ll be more joyous over their inheritance than sad about the decedent’s death.

The decedent’s estate will go to the state if you cannot find a living heir in any of the classes included in the state’s intestate scheme before you reach a laughing heir. The legal term for this is that the estate will “escheat” to the state.

You’re responsible to locate and notify all living heirs who have a right to inherit under the state’s intestate distribution statute.

5. File a Request for Probate Administration

Once you have identified and notified all of the decedent’s living heirs, you are ready to file for probate. You must submit forms to the probate court and request probate administration.

You’ll submit to the court the names and addresses of all of the decedent’s living heirs. Upon approval, the court will begin probate proceedings to administer the decedent’s estate.

6. Provide Notice

In addition to notifying all of the decedent’s heirs, you are required also to notify the decedent’s creditors that the decedent has died and that the estate is being probated.

This is required to give the decedent’s creditors an opportunity to have the decedent’s debts paid before the estate is distributed to the creditor’s heirs. But creditors are not likely to be aware that a debtor has died, so notice is required.

Each state has rules about the type of notice that is required for creditors. There are two types of notice that can be required:

Actual notice means that you must “actually” or directly contact the creditor with notice sufficient to make them aware that they may have an interest in these probate proceedings.

Actual notice need not be inefficient or burdensome. Usually, normal mail service is accepted as satisfying “actual” notice to creditors. Actual notice is usually required when:

Creditors are considered to be “known or reasonably ascertainable.” For example, if the decedent spent the last three months of his or her life in a hospital, it’s likely that the decedent has hospital bills that must be paid. The hospital would be considered a “known or reasonably ascertainable” creditor and likely is entitled to actual notice, even though the decedent may have died in the hospital.

The executor (if there is a will) or the personal representative (in intestacy) is also a beneficiary or intestate heir. Under these circumstances, a personal representative with an interest in the value of the estate may be disinclined to provide notice to creditors. Actual notice increases the likelihood that the creditor is made aware of their interest.

Publication notice: Because there are likely to be creditors that are not “known or reasonably ascertainable” (for example, you may not be aware that the decedent had an outstanding balance on his bill for tire service at the local auto shop), you may be required to make publication notice.

Publication notice simply requires that a notice of the decedent’s death and the institution of probate proceedings is published in a local news medium (usually the local newspaper is sufficient) for a short period of time (for example, two times a week for three weeks).

Under either notice requirement, you are required to make “reasonably diligent efforts” to provide appropriate notice to creditors.

In relation to the requirement of notice to creditors, every state has a statute (called a “non-claims statute”) that sets a time limit by when a creditor must file its claim against the estate. Most states include two non-claim periods:

A short period (typically 2-6 months) that runs from the time probate proceedings are commenced.

A long period (typically 1-5 years) that runs from the date of the decedent’s death.

If probate proceedings are not commenced and, therefore, the shorter non-claims period is never triggered, then the longer non-claims period would apply. If a creditor, having been provided with appropriate notice, fails to file its claim within the applicable non-claims period, its claim will be barred.

7. Conduct Probate Hearing

Once creditors have been notified and the applicable non-claims period has closed, the court will conduct a hearing, at which the court will:

Receive an accounting of the decedent’s property

Identify legal heirs

Resolve any conflicts that may arise

Confirm the payment of all taxes (annual income taxes, estate taxes, etc.)

8. Transfer Titles / Distribute Property

Upon the probate hearing, the court will order the transfer of necessary titles to effectuate the appropriate distribution of property to the decedent’s legal heirs.

As the personal representative, you must then distribute all of the decedent’s property to rightful heirs.

9. Request Approval

When all debts and taxes have been paid, appropriate titles have been transferred, and all property has been distributed, you will submit to the court for approval of the completed administration of the decedent’s estate.

10. Obtain Discharge Order

The court will entertain your request for the closing of the decedent’s estate in probate.

Upon approval, the court will grant a discharge order closing the probate administration of the estate.