«ESTATE PLANNING A Simplified Guide for Oklahoma Farm and Ranch Families Circular E-726 Oklahoma Cooperative Extension Service Division of Agriculture ...»
At the hearing on the petition to probate a will, evidence is offered to prove the above mentioned statements. The executor testifies at the hearing and at least one witness who attested the execution of the will must testify unless the will is self-proving. If no will was left by the decedent, then in addition to the above-mentioned facts, the testimony must show that the applicant for Letters of Administration is eligible to serve.
After an executor or administrator is appointed, a Notice to Creditors is published in a newspaper within the county twice a week for two consecutive weeks. The notice directs the creditors of the decedent to submit their claims against the estate within two months from first publication of the notice or the claims will be barred from collection.
While the Notice to Creditors is being published, the executor or administrator prepares an inventory of the real and personal property in the decedent’s estate under the direction of his attorney. Three appraisers (usually nominated by the executor) are appointed by the court. The appraisers are directed to determine the value of property shown on the inventory. Their report is then filed with the court. The executor must prepare and file an estate tax return with the Oklahoma Tax Commission and if the gross estate exceeds the allowable exemptions and deductions a return must also be prepared and filed with the Federal Government. These returns must be submitted by the executor and if any tax is due, it must be paid by the executor from the estate of the decedent.
After the estate taxes have been paid, the executor files his final account with the court showing all income and disbursements of the estate and the property under his control available for distribution; he asks the court to fix a time for hearing his accounting and report. A notice of the hearing is published two times by a newspaper at least 20 days before the hearing. It is mailed to all of the heirs, legatees, and devisees of decedent prior to the hearing on the final account.
The notice must also state that the court will make a determination of the heirs and devisees of the decedent. At the time of the hearing on the final account, evidence is offered in support of the final accounting and to prove the identity and eligibility of those persons who by law or by the will are entitled to receive property remaining in the estate. When proof of distribution can be shown by the executor, he asks the court for discharge from his office as executor.
Terminating Life and Joint Tenancies The regular procedure for terminating a joint or life tenancy prescribes the filing of a petition in the District Court.
The Court fixes a time and place for hearing on the petition and enters an order accordingly. Notice to all persons deemed by law to be interested in the hearing is given pursuant to the court’s order that directs the mailing of notice to interested persons and the publishing of notice in a legal newspaper. The notice informs all persons having an interest in the estate of decedent that they may attend the hearing and file their objections.
At the hearing, evidence is adduced to show that the real property involved was owned by decedent in joint tenancy and that the co-owner(s) survive(s) and is entitled to have the property decreed to the surviving joint tenant(s) upon death of decedent. Upon finding sufficient evidence in support of the petition and that the notices were properly given is ordered, the Court enters its decree terminating the joint tenancy and ordering title to the real property to be vested in the surviving joint tenant(s) upon death of decedent. Refer to the section entitled “Transfer by Co-ownership” (page 19) for a list of the documents required for termination of joint tenancy.
Some Duties of an Executor The choice of an executor is important, because the administration of the estate during probate is placed within his power. His familiarity with the nature of decedent’s family affairs, business, and investments together with his qualifications and experience should be considered. Normally, the courts permit the surviving spouse to be the administrator of the decedent who dies without a will. Both an “executor” and an “administrator” may be generally identified as the personal representative of the decedent.
In small estates, the spouse of the decedent usually can perform satisfactorily the duties of the personal representative. Supervision by a lawyer guides and assists the performance of duties normally carried out by the personal representative.
In large estates, or in estates where there is an ongoing business in which many management decisions must be made, serious consideration should be given to naming an executor with more seasoned managerial experience.
It is legally proper to name a natural person who is a nonresident to serve as executor (or executrix). After receiving Letters Testamentary from the Court, which certifies the authority to proceed, the executor must appoint a resident agent, who could be the lawyer for the executor. There may be greater inconvenience to the lawyer and accountants in working with a nonresident executor and there will be more extended travel by the executor, but such nonresident is eligible to serve as executor.
The executor employs the attorney to conduct the legal activities required in probating the estate of the decedent.
The lawyer is the executor’s lawyer. Even if the will named a lawyer to handle the legal responsibilities of probate, the executor is not bound by such nomination.
The testator (one who signs the will) may want to provide in his will that the executor shall have the power to buy, sell, and carry out any of the duties necessary to manage the business while the estate is being probated. Naming a corporate executor or perhaps a successor executor (in case the executor becomes ill or for some reason is unable to serve) should be considered.
Some of the specific duties of an executor are listed below. As previously mentioned, in actual practice the lawyer usually supervises and coordinates the performance of these jobs by the executor.
• Select lawyer and assist in gathering evidence to prove the will and obtain Letters Testamentary, sign the oath of the executor, and help identify the legal heirs entitled to notices of court proceedings.
• Transfer bank deposits to executor’s account.
• Collect debts, interest, royalties and dividends due to estate, and if necessary, file suits for their collection.
• Pay taxes and debts owing against property of the estate. Usually debts are paid after formal claims of creditors have been approved by the court.
• Take charge of real estate and other personal property subject to rights belonging to third parties, such as lessee or easement owners.
• Provide for management of property during probate. Arrange for proper insurance coverage for property.
• Notify life insurance companies of decedent’s death, submit proof of death and the policies, and collect insurance benefits.
• Make a general inventory showing all the property belonging to decedent at time of death, also sign and submit it to the three appraisers appointed by the court to value all property identified in the General Inventory.
• Determine the immediate financial needs of the surviving dependents in decedent’s family, such as support money, and apply to the court for an order authorizing him to use money or to liquidate property of the estate to provide for such needs.
• Take over any ongoing business belonging to the decedent and arrange for its management, sale, or liquidation and distribution as may be authorized under the will.
• Review and analyze securities, stocks, and bonds to decide whether they should be kept or sold, as may be directed and authorized under the will.
• File estate tax returns and participate in the settlement negotiation of all tax liabilities.
• Set up records and maintain itemized accounting of all incomes and disbursements of money belonging to the estate. This information is vital to assist the lawyer in preparation of the Annual Account and/or Final Account that must be filed with the court for approval.
• Pay legacies and deliver specific bequests as directed by the will and as authorized by the court.
• Attend court hearings as required during the probate proceedings, and otherwise assist the attorney as requested from time to time.
The executor pays the debts of the estate, usually after claims for them have been approved by the Court. The executor may pay the expenses for the funeral and of last sickness, taxes, and undisputed debts without awaiting approval of creditor’s claims by the Court. He does assume the risk, however, that some legatees or devisees of the estate may challenge payments contending that such debts and claim were inaccurate, unfounded, or exorbitant. For this reason, the executor usually prefers the safer policy of securing the Court’s approval of such claims before paying them if he suspects any such discord or his acts might be contested.
One of the major responsibilities of executor is to see that all taxes of decedent and the estate have been paid to the extent that the estate has the capacity to pay. An Estate Tax Return, together with the estate tax, must be filed with the Internal Revenue Service and Oklahoma Tax Commission within nine months after death of decedent. Failure to pay taxes due may impose the liability upon the executor personally.
The executor being the legal owner of all personal property of the estate is charged with the duty to pay and distribute such property to the persons entitled to receive it as ordered in the Court’s Final Decree of Distribution, and, thereupon, the executor is entitled to his discharge by the Court. The executor should always obtain receipts from the distributees (legatees) of the estate as proof that he has performed his duties of distribution and payment.
Executors and administrators may be interested in writing to the District Office of the Internal Revenue Service and obtaining a copy of Publication 559, “Federal Tax Guide for Survivors, Executors, and Administrators.” Surviving Spouse as Executor As a result of 1984 legislative changes, the surviving spouse may have access to a safe deposit box held in joint tenancy with the decedent and may remove any or all of the contents of the box even before an executor is appointed.
Individuals other than the surviving spouse may remove wills, insurance policies, and burial instructions or burial plot deeds but may not remove other contents until an executor or administrator is appointed and claims the contents.13 Title 58 OSA§1104 provides special probate procedures where an Oklahoma resident leaves a will that gives all of the estate to his or her surviving spouse and that names the surviving spouse as executor. In such a situation, the court in its discretion, unless the will provides otherwise, may waive bond by the spouse regardless of the known or estimated value of the estate.
After being appointed executor, the surviving spouse shall: (1) give notice to creditors by publication one time in a newspaper published in the county of the probate proceedings and creditors shall be required to file their claims within one month after the date of the publication; (2) the surviving spouse alone may appraise the estate of the decedent at fair market values and no appraisers need be appointed; (3) prepare all returns and reports relative to income and other taxes of the decedent and obtain an order from the District Court releasing the estate from tax liability; and (4) carry out all other duties of an executor as in other estate proceedings.
Estate Settlement Costs An adequate job of estate planning must include consideration of estate settlement costs. Failure to anticipate costs and to plan accordingly may prevent the deceased owner’s wishes from being carried out.
The probate of an estate under Oklahoma law commences in the District Court of the county where the deceased died or in which the deceased owned property. Probate appeals from the District Court are made to the Oklahoma Supreme Court.
The length of time for probating small, uncontested estates is generally about four to six months, allowing for reasonable continuances in court hearings to accommodate lawyers, parties, and the court.
The costs of probating an estate vary. Of course, such costs of probating an estate will increase with each additional estate matter. The number of heirs, length of notices, contests among heirs and devisees, sale of real estate necessary to cover costs, and the nature and valuation of the estate may considerably influence the total costs.
Probating an estate wherein the property is owned in joint tenancy ordinarily costs less and requires less time, but a probate proceeding must be conducted as in the case of general procedure to clear the title to the real estate.
Attorney Fees Formerly, the legal profession followed approved minimum fee schedules in fixing fees for various legal services.
Such fee schedules reflected the lower range of fees conventionally charged by most lawyers across the state. Minimum fee schedules have been abolished, and therefore, the nature, complexity, and magnitude of the service rendered and the benefit conferred upon the client are all considered in fixing the fees that may be charged. Fees charged by lawyers in probate matters are subject to the approval of the court at the time of the hearing on the final account of the personal representative. Fees for legal services will run at least as much as those fees authorized by statute to be paid to the personal representative and in most cases they run higher.
Since probate costs depend upon varying factors, any references herein as to fees charged by lawyers are only general approximations. In each case, problems may differ, thus creating more than the usual and normal professional work and thus increasing the cost of legal services. Lawyers are willing to discuss their fees with the personal representative at the time of being employed.