4.04.25 Decedent's Estates

Does your state use terminology different from that provided in Section 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Terminology used in the State of Oklahoma with regard to decedent's estates is generally similar to the underwriting manual-most terms are not defined by statute.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

Any executor, devisee or legatee names in a will, or any other person interested in the estate, may at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in writing or in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the state or a noncupative will. (Title 58, Oklahoma Statutes Annotated ("O.S.A.) Section 22).

Statutes regarding limitations on actions have been held inapplicable to probate proceedings-the doctrine of laches, however, may apply. Hayes v. Simmons, Okla., 277 P.2d. 213 (1928)-15 years.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

The Constitution and Statutes of the State of Oklahoma provide for "homestead" rights in the surviving spouse and children of a decedent. Homestead is a possessory interest for the life of the spouse or minority of any child, pending voluntary abandonment. 58 O.S.A. §§ 311-318.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Oklahoma recognizes joint tenancies. Title is deemed merchantable upon recording any judicial determination of death or by recording an affidavit in compliance with Oklahoma Statute. Title 58 O.S.A. §§ 911 and 912c.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

A surviving spouse may elect to take his or her interest in the estate as provided for by intestate succession contrary to the provisions of the will. Title 84 O.S.A. § 44.

Summarize the steps required for a testate administration. Provide statutory citations.

Testate Proceedings

Petition to Probate Will

Order setting hearing on petition

Notice of Hearing

Order admitting will, appointing personal representation and determining heirs and devisees

Letters Testamentary

Order appointing appraisers

Valuation of Estate

Notice to Creditors

Petition for hearing on final account and distribution of estate

Notice of Hearing

Final Accounting

Final Decree

Title 58 O.S.A.

Summarize the steps required for an intestate administration. Provide statutory citations.

Intestate Proceeding

Petition for Letters of Administration

Order setting hearing on petition

Notice of Hearing

Order determining administrator and heirs

Letters of Administration

Order appointing appraisers

Valuation of Estate

Notice to Creditors

Petition for hearing on final account and distribution of estate

Notice of Hearing

Final Accounting

Final Decree (review Title 58 O.S.A.)

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

No procedural documentation short of probate proceedings is recognized by the bar in the State of Oklahoma.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Summary Administrative Proceedings are available where the value of the estate does not exceed $60,000.00. The procedure combines the notice to creditors and notice of hearing on final account and distribution. Title 58 O.S.A. § 241.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

None.

Does your state provide for an "inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Oklahoma's inheritance tax is based on the total value of the estate. All estate and inheritance taxes must be paid prior to filing the final account. Title 68 O.S.A. §§ 807 and 885.

Does your state provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

An inheritance tax lien is provided for by statute attaching upon the death of the decedent and expiring 10 years thereafter. Title 68 O.S.A. § 811.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Two procedures are authorized, both require the prior appointment of the Personal Presentation (Administrator) of the Estate.

Normal Sales Proceedings

Petition for Sale, 58 O.S.A. § 412

Order for Hearing, 58 O.S.A. § 413

Mailing and Publication Notice, 58 O.S.A. § 414

Order of Sale, 58 O.S.A. § 418

Mailing and Publication Notice, 58 O.S.A. §§ 421 & 423

Return of Sale, 58 O.S.A. §426

Mailing and Publication Notice, 58 O.S.A. § 426

Order Confirming Sale, 58 O.S.A. § 428

Personal Representative's Deed, 58 O.S.A. § 429

Section 239 Sale-58 O.S.A. § 239

Available only after appointment of Personal Representative and determination of all heirs.

Petition for sale (accompanied by consent of all heirs)

Order authorizing sale without further judicial authorization

Personal Representatives Deed

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Sale without judicial authorization is not authorized in Oklahoma.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

Each of the procedures outlined for a sale during the pendency of an intestate administration (see above) is available for sales in a testate administration.

In addition, where the sale of realty is authorized by will, the following abbreviated procedure is available under 58 O.S.A. § 426.

Return of Sale

Mailing of Publication Notice

Order Confirming Sale

Personal Representative's Deed

Does your state provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Probate Procedure, Foreign Wills

Petition to Probate Foreign Will-must include certified copy of will and order of foreign court admitting same to probate.

Order Setting Hearing on Petition

Mailing and Publication Notice

Order Admitting Will to Probate

From that point, probate procedure is as shown above for Testate Administrations (see the 6th bulleted item). 58 O.S.A. §§ 51-53