August 15

How Small Estate Affidavit Might Be Used to Avoid Probate

Cortes Law Firm Oklahoma City Estate Planning Attorney

How Small Estate Affidavit Might Be Used to Avoid Probate

Today we're going to talk about the Oklahoma small estate affidavit.

Welcome to Two Minute Tuesday, where I attempt to discuss an estate planning topic in two minutes or less.

 As you know, we talk a lot about how important estate planning is not only for your family, but for you. With recent changes to the tax laws regarding estate taxes, really only like 0.05% of the United States needs to worry about estate taxes any more. Estate planning is now about protecting you during your lifetime and distributing your stuff to who you want and when you want it distributed.

Now, I'm an absolute believer that whether you have $10,000 or $500,000 in the bank, you have to have certain documents in place to protect you during your lifetime. Everyone, I mean everyone should still have, at the very least, a power of attorney, health care power of attorney, advanced directive, and HIPAA authorizations that are up-to-date and in place.

In our last video, we went over the cost comparison of having a last will versus the cost of having a revocable living trust centered estate plan over your entire lifetime. So, please watch that video for more information on the costs.

Because of the costs, I completely understand that the economics for some just don't make sense, and that is where an Oklahoma small estate affidavit can be a partial solution.

One alternative to the probate process that many people don't know exists is the Oklahoma small estate affidavit. It should really not be looked at as an alternative to the probate process as much as it is an option available where your total assets are under $50,000.

Prior to 2017, where the Oklahoma Legislature increased to the threshold from $20,000, the increase should help people avoid the cost of an Oklahoma probate where their assets are under $50,000. Now, there are actually two separate Oklahoma statutes that address this issue. The first is titled 58 Section 393 in the Oklahoma Probate Code, and the second is titled Six Section 906 in the Oklahoma Banking Code.

Now, as you can imagine, if someone has a valid last will and testament in place, then least statutes cannot be applied, and they cannot be used, and this is simply because even if the state is less than $50,000, the decedent left specific, presumably legally valid instructions on how to distribute their estate, and because they left specific instructions, the small estate affidavit cannot be used to invalidate their wishes.

So, let's talk about the Oklahoma small estate planning affidavit requirements. The Oklahoma small estate affidavit must be signed and sworn to by all the heirs to the decedent's estate. It must be attached to a certified copy of the death certificate, and the affidavit must contain the following information: the date of death, the county and state at the time of death, a statement that there is no probate proceeding or pending, the value of the estate, heirs that the money or assets should be distributed to, and a list of all heirs, and finally, a sworn statement that no one else has a superior right than the heirs do. The Oklahoma small estate affidavit must be sworn to by all heirs and their signatures must be individually witnessed by a qualified notary public.

So, when would you use this small estate affidavit here in Oklahoma? Well, let's say a relative passes away with $15,000 in their bank account. They rented their own house, so they didn't own one, and they don't have any other assets that would need to be probated. In this situation the financial institution, the bank, would have all the heirs fill out a small estate affidavit before the bank released the money to them. It should be remembered that this does not apply to all situations, but a small estate affidavit is an important tool in certain circumstances, like the one we just described.

If this information today provided you value then please hit the like button below, and if you're not certain whether to take advantage of the Oklahoma small estate affidavit, then please give me a call and we would be more than happy to review your specific situation and let you know the probate procedures that are available to you and to your family. To help you get started, I invite you to download our estate planning strategies guide. I'll put the link in the description and in the comment sections below.

Well, that's all for today. I hope you have a great day, and as always, I hope you have an awesome week. Thanks for watching.


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