From Jerry "Woody" on Flickr

From Jerry “Woody” on Flickr

One of the primary decisions a person has to make after they’ve decided they are going to do Oklahoma estate planning is whether they’re going to go the trust route or the last will and testament route. Both routes allow a person to make decisions about how their estate will be distributed and how their family will be cared for. There are however some things that a person can do with a living trust that the same person cannot do with the last will and testament. I’m going to provide a list of some of these things that will hopefully be helpful is another tool for determining whether you want to go the trust route or the last will and testament route.


 Your family can avoid probate.

As I wrote about in this post,  a Will does not provide any means to avoid probate. If you pass away owning real property that is not jointly titled, your heirs will be going through the probate process at some point. With an Oklahoma trust however, the trust exists and owns the real property the day it is transferred into the trust. Since the Trust is the owner of the real property, the death of an individual does not impact this.  No probate case is required to transfer title to the real property.  Your family saves time and money.

 Protect your privacy.

Privacy is one of the heavily underrated features of a living trust.  How is privacy part of the trust process? To understand this you must understand what happens if a person dies with no living trust. If a person passes away owning real property, investment accounts or mineral interest usually that person’s errors must file a probate proceeding to access the property.Oklahoma probate is a public process. You file a lawsuit in the County Court in which the deceased person lived and all of the documents filed in the lawsuit are publicly available. Not only are the documents publicly available, but with current technology most of the documents can be accessed from any Internet enabled computer. That means anyone can view the documents that are part of the probate case including the last will and testament which often contains personal details and other private family matters.

 Plan for a special needs child.

If you have children, grandchildren, or other dependents with special needs a Trust can be customized to meet these needs, by specifying and limiting access or control over inherited property. A Will allows you to pass on your property to those heirs but a Will in itself does not allow you to exercise substantial control over your heirs use of the property.

 Facilitate your care during disability.

Creating a revocable trust is an excellent way to ensure your property remains available to be used for your benefit if you become incapable of managing your own affairs. While continuity of management is also possible when a durable power of attorney is signed, third parties such as banks, brokers and transfer agents often have more difficulty in dealing with a power of attorney than with a trust. And, if the designated attorney-in-fact is unable to act, the power of attorney may not be usable.  If you become disabled and you have neither a revocable trust nor a power of attorney, an expensive, lengthy, and potentially embarrassing court proceeding is generally required to appoint a conservator or guardian before your property can be used to benefit either you or your family. And even after a guardian has been named, continued court supervision over the management of investments and disbursements is usually required. This can include annual bond fees, annual accounts and additional legal and accounting fees.  A Will is not helpful in this area because it does not go into effect until you pass away.

 Allow your family to have access to your assets at death.

Assets in a revocable trust at the grantor’s death are available to raise cash to pay estate taxes, administration expenses and debts immediately after death, without waiting for a probate decree or issuance of preliminary letters. If the trust is funded prior to death, the property in the trust remains in the trustee’s name before and after the death and is immediately available for liquidation should the need arise.

Why is Oklahoma estate planning important?

I have asked and answered that question hundreds of times both on this blog and in real life. My answer generally is because it protects your family when you are gone. One of the primary protections is disputes over how you would’ve wanted your property to be distributed in your family taking care of.

However, nothing makes the point better than seeing the result of the failure to plan. Let me give you a factual scenario that is rooted in real life events:

Husband and wife Mary in their late 30s. Both have children from previous relationships. They own their home, another rental property and some lake-front property in another part of the state. They live happily for 35 years until husband passes away. Neither husband nor wife has a will or a trust.

Wife, who is now a widow in her late 60s, is left to administer the estate. She is guided by what she believes her husband wanted. However, the husband’s children from his first relationship don’t see things the same way as the wife. With no Will or Trust to resolve the issues, the wife and the children are left to battle in probate court over the property. Although probate is usually a fairly routine, process, this probate is akin to a full-blown adversarial no holds barred lawsuit. Everyone involved believes they knew what husband wanted but nobody has clear enough proof to prevail quickly. Thousands of dollars in attorney fees and incalculable amounts of emotional damage occur throughout the process.

How could this have been avoided?

The Husband could have expressed his wishes on paper, in a last will and testament.

472933624_2ec2543c23_z

Have you ever wondered what the key questions are when thinking about estate planning for your family?

Generally, you decide what you want to with the things you have and how you want take care of your family after you pass on.  A few years ago I laid out some of the key questions to consider when doing estate planning in this post.

As you think about what you want to do with the things you own when you pass away and to best protect your family, here are several more important points to consider:

  • Who will you designate to act as your personal representative (the person or corporation who will see to the administration of your estate)?
  • If the creation of a trust appears possible, what person, persons, or corporation would you wish to act as trustee?
  • Are there any specific items of real or personal property you would wish to go to particular persons?
  • Who would you wish to take the responsibility for the care of your minor children, if any?
  • At what age or ages would you feel your children should receive substantial assets (not simply support for their health, education and welfare)?

After you think about these questions a bit, it might be worth checking out this post about Oklahoma Estate Planning Tools and this post about simple Oklahoma Estate Planning with a trust.

outside-254716_1920

 

I am making a bit of a departure from the normal legal material here to provide some helpful tips on getting your house ready for spring. Russell Butler is the owner of Hearth & Home Inspections, full service home inspection company located in Oklahoma City and servicing the entire state of Oklahoma.

I have known Russell for many years and he does excellent work. Russell ‘s company has the indicia of quality: It is always busy doing home inspections.  Russell is hired and then hired again by buyers, sellers and realtors who appreciate the high-quality work he does.

Recently, Russell provided a list of tips for sprucing up the home as we head in the springtime. You can check out the list below and if you want to find out more about Russell you can go to his website here.

 

Oklahoma Estate Planning

Oklahoma Estate Planning

 

Have you ever wondered what tangible benefit do you get when you do Oklahoma estate planning?

Have you seen one to many pitches for estate planning that simply isn’t clear about what you get out of it?

If the answer is “yes” that is completely understandable.  We (us attorneys) tend to talk in broad, generalized legalese that provides little clue as to the benefits of of the services we are selling.  The goal of this post is to bring it down to a specific set of benefits you can expect if you take the time to do Oklahoma estate planning.  Read on to find out if I succeeded.

Guardian

You can nominate the person or people you desire to be guardian of your minor children.  Although a court is not required to the appoint the person you nominate as guardian, practically, unless the person is disqualified based on a criminal history, the court will nominate who you appoint in writing.  This means you choose who cares for and raises your children.

Protect Assets

You can structure your assets to benefit your children.  If you have minor children and you pass away, the children cannot own your assets directly.  However, through using a trust you can create a structure plan for the assets to be used for the benefit of your children both now and as they grow up.  If you choose to do so, you can eventually direct that your assets go outright and free of any type of trust when your children become adults..

Avoid Probate         

If you create a revocable trust and ensure that all of your large assets are owned by the trust, your family can avoid going through the probate process when you pass away.  The probate process is public and it may cause some delay in how soon your family has access to your assets.

Privacy 

With probate, you file a lawsuit in the County Court in which the deceased person lived and all of the documents filed in the lawsuit are publicly available. Not only are the documents publicly available, but with current technology most of the documents can be accessed from any Internet enabled computer. That means anyone can view the documents that are part of the probate case including the last will and testament which often contains personal details and other private family matters.  The revocable trust is a private document that is not required to be filed with any court or government.  Contrasted with the public probate process, using a revocable trust means that there will be no public access to your private family information and decisions.

Inventory of Assets

In the process of creating the revocable trust and related documents, we will create of an inventory of your assets, broken down by category.  This list reduces the burden on children and other family members to search and gather assets after death.  It also provides the opportunity to gather and index all your financial documents together; that way your family will know what accounts you have and where.

I was at my weekly meeting of the Metro Business Alliance and received this list which lists the Top Ten Traits of a Master Markerter:

IMG_0291

 

What are some of the tops traits on your list?

Can you vizualize.me?

January 1, 2015

I’m continually amazed by the creative things people do on the Web.  The melding of software, voluminous amounts of easily accessible data on the world’s largest network produces eye-popping results.

Need an example?  Consider visualize.me.

This service takes your basis stats and pulls in information from social networks including Linkedin to display a graphical resume.  Here is what it did for me:

vizualize.me - Shawn J. Roberts

Image courtesy of Garfield Anderssen via Flickr

The making of a contract

Have you ever wondered what “consideration” means when people talk about it in Oklahoma contract law?

Attorneys occasionally throw around big words that end up sounding like gibberish to everyone else. I don’t think most of us do it intentionally it’s just that we are immersed in legal staff and a lot of times don’t and stopped to think how it’s can the sound of people who don’t spend all day working on legal stuff.

One word that is used quite a bit is consideration. Consideration is one of the elements of a binding legal contract in the state of Oklahoma. But what does it mean in plain English terms and why is it important?

The Legal Definition of Consideration

Let’s start with the formal legal definition from Oklahoma law:

Any benefit conferred, or agreed to be conferred upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.

The Simple Definition

In simple terms, consideration is anything you give to the other person in the contract in exchange for what they give you.  Sometimes its money, sometimes it a promise to do something, sometimes it a promise to not do something.

An example

Consider this example:

I make an agreement with my next-door neighbor in which I agree to mow his lawn every month for one year and he agrees to pay me $45.00 each time I mow it.  The consideration I am giving to my neighbor is my promise to mow each month.  The consideration my neighbor is giving to me is the promise to pay me when I mow.

Key points to remember about consideration

Finally, a couple of things to remember about consideration:

  • Consideration must be something new or different above what a person was already obligated to do. For example, I cannot give someone as consideration in a contract my promise to deliver them a product if I am already obligated to deliver the product.
  • Courts are not typically concerned with the amount or type of consideration. Courts are concerned with whether there is any consideration. That is, a very small amount of money or a very small promise could be sufficient consideration to create a binding contract.

 

 

 

April 15

April 15

Have you thought about ways you may be able to save money on your taxes?  Would like to see a list that provides a few ideas?  Check out the list below.

I think I have mentioned Metro Business Alliance in previous posts.  It is a business networking group I have been in since June 2002.  It has been a huge part of building and growing my law practice.  On top of that, I have many wonderful relationships with people I have met in the group.  The group is also a great information resource.  One example of that is the document below, provided by Galen Taylor of Platinum Accounting Group.  Galen is a CPA and is very experienced and knowledgeable on tax issues.

While this document is not tax advice, it is a good list of issues to think about as we close out 2014.

 

Judge Bernard M. Jones denied Douglass High School’s request for a temporary injunction. The OSSAA’s decision will stand. Apparently, Locust Grove will be able to move forward in the Oklahoma high school football playoffs.

You can read the Order from Judge Jones’ below.