SUMMARY ADMINISTRATION IN OKLAHOMA

FASTER AND MORE ECONOMICAL PROBATE:

“How to Avoid Probate” is a very popular seminar topic. Our society emphasizes the importance of taking charge of your life, and the thought that a person might eliminate a court procedure is, of course, very appealing. Though Oklahoma has not abolished its probate procedures, the legislature has adopted an improved summary administration process, which will not eliminate probate entirely, but will reduce both time and expense. Perhaps someone will do a seminar on “how to avoid part of the probate process.” This article will hopefully introduce that topic.

The nature of probate is explained in another article (see Probate in Oklahoma). The purpose of this month’s column is to give a thumbnail sketch of the new legislation. A more exhaustive article on the subject has been written in the Oklahoma Bar Journal, Volume 7 No.30, “Oklahoma’s New Summary Probate Act; Reducing the Time and Expense of Probate”, by Donald F. Heath, Jr. If you have access to that publication, I would certainly recommend that you read it.

There were several purposes in passing this new legislation, not the least of which was to give Oklahoma a tool similar to those used in other states – the new law basically reduces the paper work involved in a probate procedure, and some of the time delays associated with probate. By having this new procedure, hopefully lawyers will reduce their fees, since less work is involved on their parts. If the estate qualifies, legal fees should be reduced to $900 to $1200, plus court costs (which ought to be less than $150).

Let me first state what the new procedure offers: First, from a time factor, the probate process ought to be concluded within 60 days of the filing of the initial pleadings. Second, there is only one probate hearing held, which is advantageous to all parties.

To qualify for the new procedure, the size of the estate must be less than $175,000. In addition, all heirs must consent to the procedure. As in a normal probate procedure, the Oklahoma Tax Commission must issue its Tax Release by the time of the Final Account is heard (which will be the first and only court hearing held). Finally, there must be lots of coordination between the probate judge, the court clerk, and the attorney handling the estate – for the timing on filing the pleadings, publication notices, and so forth, is somewhat critical.

Lets look at it backwards: In Oklahoma, a probate case cannot be closed until a tax release has been granted by the Oklahoma Tax Commission. It normally takes 5 to 8 weeks to get a tax release from the Oklahoma Tax Commission, for non-taxable estates. Thus, the Court cannot approve the Final Account until the tax release has been granted. To avoid attending a final account hearing, which must be continued because the tax release is in hand, the hearing should be scheduled at least 9 weeks after the probate has been started.

Although the initial pleadings will be filed and dates for the final account set at that time, there are additional matters to be dealt with by the lawyer preparing the pleadings. Obviously, a Final Account will be filed, but it cannot be filed until at least five days after the last date creditors have to present claims (the time within which creditors can make a claim is reduced from 60 days to 30 days). The Final Account itself must be filed at least 20 days before the hearing on the Final Account is held. When the initial pleadings are filed, the Court will order that the Notice to Creditors be combined with Notice of the Petition for Summary Administration.

If everything is timed to perfection (which we know will not happen), the probate of the estate will be concluded within 55 days, under the new statutory scheme. However, if the tax release has not been issued by the Oklahoma Tax Commission, then the final account cannot be approved. Furthermore, if there are objections to the procedure, the court will have to determine whether summary administration can be granted. In addition, when the case is filed with the Court Clerk, a Notice of Combined Hearing will be published – should the publication be done in an untimely manner, then the Court cannot proceed with summary administration, and the whole schedule will have to be revised and the “final” hearing will be postponed. To add to the list of potential timing problems, most probate courts usually only convene once a week, so there will have to be some juggling of schedules, to insure that at the “final” hearing, summary administration may be granted and a final decree entered at that time. I have reproduced the new statutes, should you want to read them – and you will quickly see the problems that might occur, if the timing is thrown off schedule by delays in receipt of the tax release, delays in publication, and the like.

No one likes probate, especially in a small estate. Though Oklahoma’s new procedure gives us a major step forward to what we had before, we still do not have the streamlined procedures permitted in Texas, nor the summary administration procedures available in Missouri. I’m certain if I were familiar with other states, I would find other places that would give a more streamlined procedure than Oklahoma’s. Having said that, however, I am nonetheless thankful that we have a better procedure than before. Progress is being made.

58 Oklahoma Statutes §245.

A. A petition for summary administration may be filed by any person interested in an estate that meets one of the following conditions:

1. The value of the estate is less than or equal to One Hundred Seventy-five Thousand Dollars ($175,000.00);

2. The decedent has been deceased for more than five (5) years; or

3. The decedent resided in another jurisdiction at the time of death.

B. The petition shall set forth the following:

1. A statement of the interest of the petitioner;

2. The name, age and date of death of the decedent, and the county and state of the decedent's domicile at the time of death;

3. If the decedent died testate, the original or certified copy of the will of the decedent shall be attached to the petition, together with a statement that:

a. the petitioner, to the best of the knowledge of the petitioner, believes the will to have been validly executed, and

b. after the exercise of due diligence, the petitioner is unaware of any instrument revoking the will, and that the petitioner believes that the instrument attached to the application is the decedent's last will;

4. Whether the will attached to the petition has been admitted to probate in any other jurisdiction;

5. If the decedent died intestate, the petitioner shall state that the petitioner has diligently searched for and failed to find a will;

6. The names, ages and last-known addresses of the administrators, executors, nonpetitioning conominees, heirs, legatees and devisees of the decedent, so far as known to the petitioner;

7. The names and last-known addresses of all known creditors of the decedent. The petitioner shall state that the petitioner has exercised due diligence in determining the identities, last-known addresses and claims of the decedent's creditors;

8. The probable value and character of the property of the estate and the legal description of all real property owned by the decedent in Oklahoma;

9. Whether an application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and

10. A statement of the relief requested, which may include a prayer for the court to admit the will, if any, to probate, to appoint the person requested in the petition as personal representative, to determine the heirs, devisees and legatees of the decedent, to approve the final account, to distribute the property of the estate and to discharge the personal representative.

C. The petition shall be verified by the petitioner or signed by the attorney for the petitioner.

D. The court, without a hearing, shall issue letters of special administration to the person requested in the petition if the petition is in proper form and:

1. The proposed personal representative is named as personal representative in the will;

2. The proposed personal representative has prior right to appointment; or

3. The petition is accompanied by a waiver of all persons entitled to letters testamentary and all persons with a prior right of appointment.

The special administrator shall have the powers set forth in subsection A of Section 215 of Title 58 of the Oklahoma Statutes. The court, in its discretion, may require a bond.

§58-246.

A. Upon the filing of the petition, the court shall dispense with the regular estate proceedings prescribed by law and the court shall order notice to creditors and issue an order for hearing upon the petition for admission of the will, if any, to probate, the petition for summary administration, the final accounting, and the petition for determination of heirship, distribution and discharge. However, nothing in this section shall affect the lien upon any property for any estate or transfer tax which may be due upon the estate of the decedent.

B. Notice of the petition, notice to creditors, and notice of final accounting, determination of heirship, distribution and discharge shall be published once each week for two (2) consecutive weeks in a newspaper that is authorized by law to publish legal notices and that is published in the county where the petition is filed. If no newspaper authorized by law to publish legal notices is published in the county, the notice shall be posted in three public places in the county, one of which shall be the county courthouse. Notice to creditors and notice of hearing upon the petition for summary administration and the final accounting, determination of heirship, and distribution and discharge shall be combined into one notice, referred to as a "combined notice". The combined notice shall be mailed to creditors of the decedent as provided in Section 331 and 331.1 of Title 58 of the Oklahoma Statutes. The combined notice shall be mailed to all persons interested in the estate of the decedent at their respective last-known addresses not less than thirty (30) days prior to the date of the hearing. The notice shall set forth a date by which the final account and petition for distribution will be filed. The date of the filing shall follow the presentment date by at least five (5) days and shall precede by at least twenty (20) days the hearing on the order allowing final accounting, determination of heirs, legatees and devisees, if any, distribution and discharge.

C. The combined notice shall set forth the following:

1. The name, address, and date of death of the decedent;

2. The name and address of the petitioner;

3. The total value of the estate of the decedent as set forth in the petition;

4. The time and place of the hearing;

5. That the person receiving the notice must file objections to the petition at least ten (10) days before the hearing and send a copy to the petitioner or that person will be deemed to have waived any objections to the petition;

6. That if an objection is filed at least ten (10) days before the hearing, the court will determine at the hearing whether the will attached to the petition shall be admitted to probate, whether summary proceedings are appropriate and, if so, whether the estate will be distributed and to whom the estate will be distributed; and

7. The claim of any creditor not shown in the petition will be barred unless the claim is presented to the personal representative on or before a date certain at least thirty (30) days following the filing of the combined notice.

D. The matter shall be set for hearing not less than forty-five (45) days following the first publication of notice to creditors or combined notice.

E. If there is a defect in notice or in the form of the petition or if objections are filed, or for other good cause shown, the hearing may be postponed to a date certain.

§58-247.

A. At the hearing, the court shall hear objections from all persons who timely filed objections. If the court determines that summary proceedings are appropriate, the court may, after proof of payment of funeral expenses, expenses of last sickness and of administration and allowed claims, issue an order approving the petition for summary administration, finding that the will has been proved as required by law, admitting the will attached to the petition to probate, allowing the final accounting, determining heirship and the legatees and devisees, if any, of the decedent, distributing the property of the 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.

B. The order of the court shall have the same force and effect as a final decree or order rendered in any other proceeding provided in this title for distribution of the estate of a decedent. A certified copy of the order or a notice of the order as set forth in Section 711 of Title 58 of the Oklahoma Statutes shall be filed and recorded in the records of the county clerk in any county where real property in which the decedent had any right, title, or interest is located.