General DefinitionAny part of a decedent's estate not effectively disposed of by will passes by intestate succession.
Order of DistributionA decedent may not leave a surviving spouse with less in value than an undivided 1/2 interest in the joint property of the spouses. Sec. 84-44(B)(1). The spouse of a decedent has a right of election to take the 1/2 interest in the property in lieu of all devises, legacies and bequests for the benefit of the spouse contained in the last will and testament of the decedent. Sec. 84-44(B)(2). The surviving spouse must make the election in writing and file it in the district court on or before the final date for hearing of the petition for final distribution of the estate. The court clerk will immediately mail a copy of the election to the personal representative. Sec. 84-44(B)(3).
If the decedent leaves a surviving spouse, the share of the estate passing to the spouse is:
- The entire estate if there is no surviving issue, parent or sibling.
- if there is no surviving issue but the decedent is survived by a parent or parents, and/or siblings, all the property acquired by the joint industry of the husband and wife and an undivided 1/3 interest in the remaining estate.
- If there are surviving issue, all of whom are also issue of the surviving spouse, an undivided 1/2 interest in all the property of the estate.
- If there are surviving issue, one or more of whom are not also issue of the surviving spouse, an undivided 1/2 interest in the property acquired by the joint industry of the husband and wife and an undivided equal part in the property of the decedent not acquired by the joint industry of the husband and wife with each of the living children of the decedent and the lawful issue of any deceased child taking by right of representation;
The share of the estate not passing to the surviving spouse or if there is no surviving spouse, the estate is to be distributed as follows:
- In undivided equal shares to the surviving children of the decedent and issue of any deceased child of the decedent by right of representation; or
- if there is no surviving issue, to the surviving parent or parents of the decedent in undivided equal shares; or
- if there is no surviving issue nor parent, the issue of parents in undivided equal shares by right of representation, or
- if there is no surviving issue, parent, nor issue of parents, but the decedent is survived by one or more grandparents or issue of any grandparent, 1/2 of the estate passes equally to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of any paternal grandparent if both paternal grandparents are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation and the other half passes to the maternal relatives in the same manner; but if the decedent is survived by one or more grandparents or issue of grandparents on only one side of the family, paternal or maternal, the entire estate shall pass to such survivors in the manner set forth in this subsection, or
- if there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to the next of kin in equal degree;
- If the decedent leaves no spouse, issue, parent, issue of parents, grandparent, issue of a grandparent, nor kindred, then the estate shall escheat to the state for the support of the common schools. Sec. 84-213(B).
Common Law or Community PropertyOklahoma is a common law, elective share state.
CapacityAny person over the age of 18 of sound mind may make a will. Sec. 84-41.
DraftingEvery will, other than a nuncupative will, must be in writing; and every will, other than a holographic will and a nuncupative will, must be executed and attested as follows:
- It must be signed at the end by the testator, or by some person in the testator's presence and direction.
- The signature must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority.
- The testator must, at the time of signing, declare to the attesting witnesses that the instrument is his/her will.
- There must be two attesting witnesses, each of whom must sign his/her name at the end of the will at the testator's request and in his presence. Sec. 84-55.
Oklahoma recognizes holographic wills. A holographic will is one that is entirely written, dated and signed by the testator. It is subject to no other form and may be made in or out of the state of Oklahoma and need not be witnessed. Sec. 84-54.
Oklahoma recognizes nuncupative wills. To be valid, the estate bequeathed must not exceed $1,000.00 in value, the will must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator at the time to bear witness that such was his will, or to that effect. Finally, the decedent must have been in actual military service in the field, or doing duty at sea and in actual contemplation, fear or peril of death, or the decedent must have been at the time in expectation of immediate death from an injury received the same day. Sec. 84-46.
HeirsAn "heir" is any person, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.
ModificationsThe execution of a codicil referring to a previous will has the effect to republish the will as modified by the codicil. Sec. 84-57.
To revoke a will, the testator must create a written will or other writing declaring the revocation or alteration. The writing must be executed with the same formalities with which a will should be executed. A revocation may also be achieved if the will is burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the will. The revocation must be done by the testator, or by some person in his presence and by his direction. Sec. 84-101.
If, after making a will, the testator is divorced, all provisions in the will in favor of the testator's ex-spouse are revoked. Annulment of the testator's marriage has the same effect as a divorce. Sec. 84-114.
Naming of Personal RepresentativeThe court admitting a will to probate must issue letters to the person(s) named in the will as the executor(s). Sec. 58-101.
Persons who are not disqualified have priority for appointment in the following order:
- The surviving spouse or someone competent whom he or she may request to have appointed.
- The children.
- The father or mother.
- The siblings.
- The grandchildren.
- The next of kin entitled to share in the distribution of the estate.
- The creditors.
- Any person legally competent. Sec. 58-122.
To serve as an executor, the person must be at least 18 years of age, not convicted of an infamous crime and not adjudged by the court incompetent to execute the duties. Sec. 58-102.
Submission of WillThe custodian of a will must deliver it to the district court or to the executor of the estate within 30 days of the custodian's knowledge of the decedent's death. Failure to deliver the will may result in the custodian's liability for all damages sustained by any one injured by the failure. Sec. 58-21.
If no one contests the probate of a will, the court will admit it to probate on the testimony or affidavit given by one of the subscribing witnesses. Sec. 58-30.
NotificationsWhen a petition for probate of a will is filed, the court will set a date for a hearing. The date hearing will take place not less than ten and no more than thirty days from the date of filing the petition. If the names and addresses of all heirs, legatees, and devisees of the testator are known to the petitioner and are set out in the petition, the court will provide notice of the hearing to those listed by mailing a copy of the notice to all. However, if the name or address of one or more heirs, legatees, or devisees of the testator is not known or if one or more survived the decedent but died prior to the filing of the petition, the notice will be published in a newspaper. Sec. 58-25.
When a petition for letters of administration is filed, the court must set a day for a hearing and provide notice to all heirs and descendants. The notice will contain the name of the decedent, the name of the applicant for letters and the day on which the application will be heard. If the names and addresses of all heirs of the decedent are known to the petitioner and are set out in the petition, the notice must be given at least ten days before the day set for the hearing. If the name or address of one or more heirs is not known, notice of the hearing of the petition must be given by mailing and by publishing the notice a single time in a newspaper in the county at least ten days before the day set for the hearing. Sec. 58-128.
The personal representative must, within two months after the issuance of letters, file notice to the creditors stating that claims will be forever barred unless presented to the personal representative. Claims must be submitted on a date selected by the personal representative but must be at least two months after the date on which the notice is filed. Publication of the notice must appear on or before the tenth day after the filing of the notice. Notice to creditors must be given by publication in a newspaper in the county in which the probate is filed once each week for two consecutive weeks and by mail to all known creditors. Sec. 58-331.
InventoryThe personal representative must make and return to the court an inventory of the estate within two months from the date of his/her appointment. Sec. 58-281. The inventory must also contain an account of all monies belonging to the decedent and if none, the fact must be so stated in the inventory. Sec. 58-284.
Homestead, Exempt Property and the Family AllowanceThe surviving spouse is entitled to exercise a claim of homestead over the home. The claim protects the property from forced sale. Sec. 31-1(A)(1). Upon the death of both husband and wife, the children may continue to possess and occupy the whole homestead until the youngest child becomes of age.
In addition, the following property must be immediately delivered by the executor or administrator to the surviving spouse and children:
- All family pictures.
- A pew or other sitting in any house of worship.
- A lot or lots in any burial ground.
- The family Bible and all other books used as part of the family library, not exceeding $100.00 in value.
- All clothing of the decedent and the family.
- The provisions for the family necessary for one year's supply and fuel necessary for one year.
- All household and kitchen furniture. No such property shall be liable for any prior debts or claims whatever. Sec. 58-311.
There is also an allowance for the surviving spouse and/or minor children of all of the decedent's personal property or money (exempt property). No such property is liable for any prior debts or claims against the decedent, except, when there are no other assets available for the payment of the expenses of the last illness, estate administration costs and funeral charges. Sec. 58-312.
Debts and DistributionsIf the testator makes provisions by will or designates the estate to be appropriated for the payment of debts, the expenses of administration or family expenses, they must be paid according to those provisions. Sec. 58-461.
The debts of the estate must be paid in the following order:
- Funeral expenses.
- The expenses of the last sickness.
- Funds necessary for the support of the family and allowed by the court.
- Taxes to the United States or the state, county, or city.
- Debts having preference under the laws of the United States and of Oklahoma.
- Judgments rendered against the decedent in his lifetime
- Demands or claims which are presented to the executor or administrator within two months after the first publication of notice to creditors.
- All other demands against the estate.
- Interest resulting from the extension of time for payment of federal estate or transfer taxes. Sec. 58-591.
Before any decree of distribution of an estate is made, the district court must be satisfied that all state, county, school and municipal taxes and all income taxes due have been fully paid or arrangements satisfactory to the court have been made to secure the payment. Sec. 58-635.
Upon the final settlement of the accounts, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the court must distribute the residue of the estate among the persons who are entitled to it. A statement of any receipts and disbursements must be filed at the time of distribution together with an estimate of the expenses of closing the estate, must be made by the court and included in the order or decree, or the court or judge may order notice of the settlement of the account. Sec. 58-631.
In 2006, Oklahoma repealed its estate tax, effective January 01, 2010.
Income Tax Charitable Deductions and/or Credits
Oklahoma allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Sec. 2358.
Gift Annuity Requirements
Oklahoma, a "notification" state, regulates the issuance of charitable gift annuities under the Oklahoma Charitable Gift Annuity Act as provided in Secs. 36-110, 36-4071 through 36-4082 and 71-401. Charitable gift annuities are exempt from insurance regulation in Oklahoma and charities may issue annuities provided the charity satisfied certain conditions and notifies the Oklahoma Insurance Department.
To qualify, charities must be an organization described in Sec. 501(c)(3) or Sec. 170(c)(3), have been in continuous operation for three years (or be a successor/affiliate of a charitable organization satisfied this condition) and hold a minimum of $100,000 in unrestricted assets that already (exclusive of the assets comprising its gift annuities) at the time of entering into the first Oklahoma gift annuity agreement. Failure to comply and notify may result in censure by the Insurance Commissioner and/or a civil penalty fine between $1,000 and $10,000 if the charity does not comply within 30 days of the Commissioner's demand. Furthermore, the Commissioner may file an action in district court to prevent, restrain or enjoin willful violations.
Notification ProcessWritten notification must be provided to the Oklahoma Insurance Department within 90 days of issuing its first qualified gift annuity agreement in order to comply with state law. The notice must certify that it meets the above-mentioned qualifications and provide: (i) a copy of the IRS letter granting the charity tax-exempt status; and (ii) a copy of the charity's most recent independent annual audit prepared by an independent CPA, accounting form or individual holding a permit to practice public accounting in accordance with generally accepted accounting principles. Typically, the Department will send an approval letter upon reviewing the notification package if the charity is compliant.
Disclosure LanguageThe gift annuity must meet Sec. 501(m)(5) requirements and all gift annuity applications, agreements and promotional literature must contain the following state-required disclosure language:
"A charitable gift annuity is not regulated by the Oklahoma Insurance Department and is not protected by a guaranty association affiliated with Oklahoma Insurance Department."
Reserve RequirementsOklahoma does not require an issuing charity to hold any amount in reserve. However, charities are permitted to use a portion of the property funding the gift annuity to reinsure the contract with a company qualified to transact insurance in the state.
Annual Filing RequirementsEach year thereafter, a copy of the charity's audited financial statements is due within 90 days of receipt of the final audit report. The report must be prepared by an independent CPA, accounting form or individual holding a permit to practice public accounting in accordance with generally accepted accounting principles.
State Contact InformationLauren Lynch
Department of Insurance
3625 NW 56th St., Suite 100
Oklahoma City, Oklahoma 73112
Phone: (405) 522-4611