We get this question a lot from people calling in and not wanting to pay the expense and cost of a probate attorney okc. They always ask, do I really need to hire a lawyer to get this done?
Honestly, the short answer is no. Like any DIY project a layperson can fix a shower or fix a fence, but there is usually a limit to how far they can go before they run into trouble and need to hire a professional to fix it.
We have several clients every single year, who attempt to do probate by themselves and end up getting themselves into trouble. Their loved one's probate usually ends up costing more money because we have to fix, or undo, what they did and then proceed with the probate as normal.
A Probate is just like any other civil lawsuit, except there usually is not an adverse party. I say usually because many times brothers and sisters end up fighting about either how much money they’re going to get, who gets to live in the house, or as I like to say who gets the toaster.
Probate starts out like any other civil lawsuit with a petition for probate. Once the petition has been filed with the county court clerk, then it is usually set for hearing, in most states, at some point into the future. This can be 30 or more days depending on the court's schedule.
Along with a petition for probate, a notice of hearing the petition for probate needs to be filed. This notice in most states must also be published in a local newspaper. However it is not just any newspaper, it is usually a newspaper that has been certified for publication of legal notices. In addition to publication, most states require that all heirs receive notice of hearing by U.S. mail.
A Probate is a public hearing. That means at the initial hearing on the petition for probate anybody can show up and contest the proceedings. If there is going to be a fight over a loved one's assets, then this is usually where the parties involved will become known.
In other words, if a son or daughter of the decedent does not believe their brother or sister should be the personal representative, then they will usually show up at this initial hearing and argue why their brother or sister should not be the personal representative, and why they would be a much better choice.
When this happens it usually delays the probate process by at least a month. This is because the judges only have so much time to hear an initial hearing. If there’s going to be a contest, then it needs to be set for a later date to give all parties time to prepare.
Whoever is appointed as the personal representative, or executor in some states, will need to file an inventory of all of the decedent's assets and debts with the court. Depending on your jurisdiction this could be required within a couple of months of filing the petition for probate.
The general inventory is very important because it discloses to the court and to all heirs what assets are actually in the probate. Again, a Probate is a public process, so everything that was owned by the decedent must be disclosed to the court.
The general inventory really protects both the executor and the heirs. It protects the executor because if they faithfully and truly disclose everything as required by law, then it becomes their proof to the heirs of everything inside of the decedent’s estate. The general inventory protects the heirs by giving them an assurance of what is actually in the estate.
After the initial hearing and during the time period in which the general inventory is drafted, notice to creditors must be given. Depending on the state that you live in, creditors have a certain amount of time to come forward and make a claim against the assets in the estate. That means if your loved one owed Visa $2000, then Visa most likely will make a creditor claim against the estate for payment.
An entire article could be written on creditor claims. However, the bottom line is if it is a legitimate claim, then it must be paid out of the estate’s assets.
After the inventory and all creditors have been settled, then it is time to file the final account. Again once this is filed with the court it must be set for hearing. There must be the publication of notice of hearing. Further, all heirs must be given notice of the hearing and an opportunity to appear and contest the final account.
At the final hearing, the judge will usually order distribution to heirs and finally close the Estate. This entire process can last between 6 to 9 months if everybody gets along. As you can imagine, many times the family does not get along and probate ends up costing thousands of dollars and takes more time than necessary.
So, just like any DIY project anyone can try and go it alone. However, having a probate attorney on your side to guide you through the probate process will usually make things quicker and easier.
THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY. IF YOU HAVE A LEGAL MATTER, THEN CONSULT WITH AN ATTORNEY IN YOUR JURISDICTION. THIS IS NOT LEGAL ADVISE
