How to make my Aunt probate my Mom’s Will

Dear Ms. Allison: My mother passed away in 2003. Her sister, my aunt was living with her. Mom has three other siblings–there were 5 of them all together. At any rate, after all this time, my mother’s estate has still not been distributed; at least not to anyone’s knowledge. My aunt has not shown the Will to anyone. No one has received the things we were told we would receive. For instance, I was to receive my grandmother’s cedar chest. There were bank accounts (savings, checking, etc.) as well. I am just trying to make sure everything is done the right way–or done at all, which it seems like is not happening. When does a Will have to be probated and how long before we receive our inheritances? LeeLee in Southeastern Oklahoma.

Dear LeeLee:

In the state of Oklahoma, the law says that a Will must be presented for probate within 30 days. This rarely happens, but it should be done within the early few first weeks after the death.

You are an heir-at-law of your mother. As such, and by law, you have to be notified of the probate.

Please note that there must be probate assets to require a probate. This means assets that are titled only in your mother’s name and no one else’s. Generally, nothing that is owned Joint with Rights of Survivorship or designated as Payable or Transferable on Death is probated. A Will rarely controls properties owned in those ways.

Therefore, if your mother titled her bank accounts as Joint with Rights of Survivorship with your aunt, those accounts belong to your aunt; and do not have to be probated. This form of joint ownership means that when one joint owner dies, the other becomes the full owner.

Many estate plan options totally escape probate. Your mother may have used one of them. Your mother’s assets may be in a trust. Alternatively, you could have been disinherited in a number of different ways. (If that happens to you, you should consider seeing a lawyer who can tell you if it was done correctly or inadvertently, because it is a complicated subject.)

However, if I were in your shoes, the first thing I would do is check your mother’s deed to her home at the county clerk’s office. If it is in her name alone, you then will know there is at least one asset to probate and you can open the probate yourself. Neither your aunt, nor any of your mother’s siblings are heirs at law like you are. Unless a Will is found that names any of them as beneficiaries, they do not inherit anything that is in your mother’s name alone.

You also don’t mention whether your aunt may have provided for you in her estate plan. You should consider whether the value of what you might inherit would be worth more than the legal fees should you decide to pursue this in court. Sometimes, chasing sentimental or heirloom items in a public court battle is not worth the heartache.

A far more economical and much less time-consuming alternative is available for estate disputes. You might consider hiring a private estate mediator to assist you in having a discussion with your family to clarify these issues, if necessary. Then you can all arrive at a settlement.

That’s your question, Asked and Answered. My best to you,

Gale Allison

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