Heir Rights (OK)Show Table of Contents
As an heir, you likely have questions about the inheritance process, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Oklahoma, small estates can completely bypass probate via small estate affidavit, or simplify it via summary administration.
Small Estate Affidavit
If an Oklahoma estate has a gross value <$50,000, you can use the small estate process to settle the estate with no court involvement.
To use the small estate process, the following conditions must be true:
- The entire probate estate has a gross value <$50K
- At least 10 days have passed since the death
- No petition has already been made to the court to officially appoint a personal representative
In determining the gross value of the estate, you should value assets as of the date of death, and ignore any unsecured debts (but do subtract things like liens and mortgages). Do not include any assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
To use the small estate process:
- Prepare a Small Estate Affidavit (see below)
- Pay or arrange for all estate debts and taxes to be paid (perhaps once you collect estate assets)
- Obtain possession of estate assets by presenting the affidavit to current custodians (this affidavit cannot be used to collect real estate)
- Settle the estate in the normal way (pay debts, distribute remaining assets)
- If you are transferring a vehicle, submit Form MVC-405 to the Motor Vehicle Department
- If everything goes smoothly, no court involvement will ever be required
You can use this Small Estate Affidavit Form provided by Cleveland County, or create your own.
The small estate affidavit must include:
- The name of the decedent, address, and date of death
- Statements that each of the above requirements are true
- A statement that all taxes and debts of the estate have been paid or otherwise provided for
- A description of the assets being claimed (consider attaching the EstateExec Inventory Report)
- Names and addresses of heirs claiming the assets, and their percentages
- A statement that each claiming inheritor is entitled to payment or delivery of the property in the listed percentages
It is not necessary to try to unify everything into a single affidavit, but that can sometimes be the most efficient.
It seems more impressive to have every inheritor sign the affidavit, and have each signature notarized, but in truth only the person who will actually present the affidavit needs to sign it, swearing that everything is true.
Attach a copy of the death certificate and the will (if one exists).
See OK Stat § 58-393.
Summary Administration (also known as simplified probate) can be used for somewhat larger estates, or if you simply want court involvement so that enforcement and protection are a bit more formalized.
You can use summary administration if you are named as personal representative in the will, or any such people have waived their right of appointment in your favor, and any of the following are true:
- The value of the probate estate is <$200,000
- Or, the decedent died more than 5 years ago
- Or, the decedent resided out-of-state at the time of death
In determining the value of the estate, you should value assets as of the date of death, and subtract any debts. Do not include any assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
To settle an estate via summary administration:
- Submit to the court a Petition for Summary Administration (see below)
- The court may require you to obtain a bond
- Upon approval, the court will issue you Letters of Special Administration
- Use your "Letters" to collect estate assets, and then settle the estate in the normal way (pay debts, make distributions)
The petition must:
- State the interest of the petitioner (e.g., named in the will as personal representative, heir, etc.)
- State 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
- If a will exists, attach the original or a certified copy, and include a statement that you believe the attachment is the decedent's last will, that you believe the will to have been validly executed, and that after the exercise of due diligence, that you are unaware of any instrument revoking the will. Also state whether the will has been admitted to probate in any other jurisdiction.
- If the decedent died intestate, state that you diligently searched for and failed to find a will
- List the names, ages, and last-known addresses of the administrators, executors, non-petitioning co-nominees, heirs, legatees and devisees of the decedent
- State 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 (consider attaching an EstateExec Inventory Report)
- State whether an application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction
- A statement of the request, 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
In addition to attaching any will, attach:
- A copy of the death certificate
- A signed and notarized waiver from anyone else entitled to serve as personal administrator, stating that they waive their right to appointment
- A signed and notarized waiver from everyone who will inherit, stating that they do not require you to submit to the court an official Final Accounting
See OK Stat § 58-245.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any OK Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Finally, note that as an heir, you are NOT responsible for paying the debts of the estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
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