6 Ways to Avoid Probate After Death
While there are multiple methods one may use to bypass the lengthy and convoluted probate process when the Decedent is still living, problems can arise if these steps are not in place after the Decedent has passed away. Gaining access to bank accounts, the rights to transfer real property in the Decedent’s name, and dealing with Creditors and life insurance companies can become almost impossible. Fortunately, enough people find themselves in this situation that the law has provided certain avenues that can still allow a family to avoid probate, specifically six that we will cover in this article.
First, one can employ the use of what is called a Small Estate Affidavit for bank accounts worth $50,000 or less. If there is a bank account worth less than $50,000, heirs can access the funds, without probate, by submitting an affidavit to the bank. According to Title 6 O.S. Sec. 906,
When a deposit has been made in a bank or credit union in the name of the sole individual without designation of a payable-on-death beneficiary, upon the death of the sole owner of the account if the amount of the aggregate deposits held in single ownership accounts in the name of the deceased individual is Fifty Thousand Dollars ($50,000.00) or less, the bank or credit union may transfer the funds to the known heirs of the deceased upon receipt of an affidavit sworn to by the known heirs of the deceased which establishes jurisdiction and relationship and states that the owner of the account left no will. The affidavit shall be sworn to and signed by the known heirs of the deceased and the same shall swear that the facts set forth in the affidavit establishing jurisdiction, heirship and intestacy are true and correct.
In such a way, heirs can gain access to the Decedent’s bank accounts without the need for an expensive probate process. Some considerations one must be aware of are that, (1) the bank is not required to allow the transfer, (2) heirs must sign the affidavit that tells the bank they are the only heirs entitled to receive the assets in the account and if this is not the case, the heirs will have to reimburse for the amount, and (3) this option will only be viable when there is no Last Will and Testament available.
Second, if you hold real property in joint tenancy with another person, you can acquire title to the property while avoiding probate. One simply has to follow the steps of 58 O.S. 2001 Sec. 912, where the surviving joint tenant must file an Affidavit of Surviving Joint Tenant stating that the other joint tenant is now deceased. The Affidavit must be filed with the County Clerk and must be signed by either the surviving joint tenant, life tenant, remainderman, or the Person Representative. You must also attach a copy of the death certificate as proof that the Decedent has passed away. In this way, one can get title to real property without going through probate.
Third, one can execute another type of Small Estate Affidavit that applies to “tangible personal property or an instrument evidencing a debt, obligation, stock, chose in action, or stock bond.” Thus, while the earlier discussed Small Estate Affidavit was focused on retrieving funds from bank accounts, this one focuses on personal property. Pursuant to 58 O.S. 2001 Sec. 393, the rightful owner of the Decedent’s personal property can deliver an affidavit to the current individual in possession of the personal property stating that, (1) the fair market value of the property is less than $50,000.00, (2) there has been no petition filed appointing a personal representative for the estate, (3) listing the persons entitled to payment or delivery of the property and in what proportions, and (4) that all the estate’s taxes and debts have been paid or otherwise provided for or are barred by a statute of limitations. Once the above statute has been followed fully by the rightful owner, the possessor of the personal property must deliver the property.
Fourth, one can recover benefits if the Decedent was part of a select number of professions, such as teacher, firefighter, or other government employee. Affidavits can likewise be used to recover death benefits from the Oklahoma Public Employees Retirement System, the Oklahoma Teachers Retirement System, and the Oklahoma Firefighters Pension and Retirement System. Once you have complied with the relevant statutes, including submitting the claimant’s affidavit, and a corroborating affidavit from another individual familiar with the Decedent’s affairs, the relevant Oklahoma governing agency may, in its discretion, pay the death benefit in an amount not to exceed the amount permitted. You must provide proof of payment of debts of the decedent. However, the government agency is not required to have proof of the payment of any estate tax liability. In this way, a beneficiary of a government employee, firefighter, or teacher may receive benefits without a probate.
Fifth, one can transfer title to vehicles, boats, and motors without going through probate. If the Decedent had a Last Will and Testament, one can file a Motor Vehicle Division Small Estate Affidavit with the Oklahoma Tax Commission. If the Decedent had no Last Will and Testament, one will need to file a No Administrator Affidavit, found on the Motor Vehicle Division section of the Oklahoma Tax Commission website. Once you complete the form and follow the other requirements as laid out on the website, in addition to providing a death certificate, the survivor may obtain title to a vehicle, boat, or outboard motor without going through probate or any administration proceeding and no other person would have a prior right to the property.
Sixth, this is somewhat of a less legal route and more of a roundabout way of obtaining property from an estate after the death of the owner and includes using the Unclaimed Property site of the Oklahoma State Treasurer. The Oklahoma State Treasurer is tasked with collecting and distributing property that is unclaimed. They are authorized to distribute property of up to $10,000.00 in value, after receiving an affidavit signed by the claimant stating that the claimant is entitled to receive such property, the reason claimant is entitled, that no probate has been initiated, that no probate is contemplated to be initiated, and that claimant will indemnify the State for any loss, including attorneys fees, should another claimant assert a prior right. In such a way, a claimant could potentially avoid the probate process by keeping a sharp eye on the Oklahoma State Treasurer’s website for a deceased relative’s estate to appear.
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In sum, probate can be an expensive and lengthy process to go through if your relative did not have adequate estate planning in place before their death. Please call today to meet with our experienced team at South County Law Firm to evaluate your case and offer you the most efficient way to make sure you can get your loved one’s estate distributed as stress free as possible!