Image provided by Flickr user Keith Ellwood

Image provided by Flickr user Keith Ellwood

Would you like to know two ways you can change title to a car owned by a person who died, without going through an Oklahoma probate?

If your answer is “yes”, you have found the right post. :)

I have written volumes on this blog about Oklahoma estate planning and a lesser amount about addressing the situation where someone died without doing estate planning.  I would like to provide a few cleanup tools that can used to avoid probate even after someone didn’t do Oklahoma estate planning.

There are two options that may apply for changing title to a car owned by someone who died with going through Oklahoma probate.

  1. Oklahoma No Administrator Affidavit.

My experience has been that most tag agents will transfer title to vehicle following a person’s death when the No Administrator Affidavit is provided.  I wrote about this Affidavit on this blog post.  This document will generally allow title to a car to be transferred if:

  • A properly completed No Administrator Affidavit is provided;
  • A certified copy of the death certificate is provided; and
  • The facts are such where the person asking for the change in title (ostensibly to themselves) has a clear right to receive the vehicle.
  1. Oklahoma Small Estate Affidavit.

The other option is the Oklahoma Tax Commission’s Small Estate Affidavit.  This document is used to transfer the ownership of a vehicle when:

  • The car is given to someone in a last will and testament,
  • The total value of the estate is not greater than $20,000.00, and
  • The person who is given the car in the last will and testament must sign the Oklahoma Small Estate Affidavit.

 

There are no guaranties of course; even when you think you have done everything correctly, the transfer of title still doesn’t happen.  If you run into this type of issue, give me a call or an email.

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A dicey situation by Wonderlane from Flickr.

Everyone knows that for a well-balanced and fruitful life, one needs to maintain proper boundaries in relationships, work, play, etc. . .
The other major boundary you may need to consider is between and your neighbor; that is the line that divides your property from your neighbors.  That line is often marked by a fence.  Sounds fairly simple, right?  
Sound is deceptive here because Oklahoma land boundary issues are often complex and vexing.  Imagine being in a boundary dispute or a battle over who will maintain the shared fence that separates the two properties.
 
Consider some of the questions I answer below about Oklahoma land boundaries and fences.
 
 
What is a boundary fence?
A boundary fence is one that sets out the legally-described line, set out either in a deed or survey, separating to two tracts of land.  Normally, a boundary fence runs on the true boundary line between property owners where the boundary line is known and not disputed.  Obviously, it important when considering any fence on a shared boundary to know what the actual boundary is.  If it isn’t clear, then it makes sense to have a survey done.
 
What is a partition fence?
A partition fence is generally one that memorializes the division of a parcel of real property into small parts.
 
What is the difference between a boundary fence and a partition fence?
The Oklahoma Supreme Court considers the “term ‘boundary’ to mean the legally-described line, set out either in a deed or by survey, separating two parcels of real property. While the term “partition” describes the subdivision of a parcel o3896922807_36aa591b91_qf real property into smaller parts. Fences are often erected to memorialize a boundary line or partition line. In some instances, but not all, the fence may serve a dual role. It may mark both a partition and a boundary. In short, every boundary fence is also a partition fence, but not every partition fence is a boundary fence.”  
 
What does Oklahoma statutory law say about the obligation to maintain a boundary fence?  
Adjoining landowners are mutually bound equally to maintain [t]he fences between them unless one of the landowners chooses to let his land lie open as a public common. 
 
What does Oklahoma statutory law say about the obligation to maintain a partition fence?
Adjoining landowners are required to keep partition fences in good repair throughout the year, unless the owners agree otherwise in writing.  However, the caveat here is when one landowner is only using his land as commons.  In this case, the landowner cannot be compelled to pay for the erection or maintenance of the fence.
 
What are circumstances in which owners are mutually bound to maintain a boundary fence?
Generally, a property owner cannot be forced to erect or maintain a fence on a shared boundary.  When one owner chooses to let his land lie open as a public common, in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.
 
When can a real property owner not be forced to maintain a boundary fence?
A landowner generally cannot be forced to pay to maintain a boundary fence unless the fence is necessary to keep his livestock from leaving his property. One Oklahoma statute that addresses fencing where animals are involved provides:
 
Any person not wishing his land enclosed, and not occupying or using it otherwise than as commons shall not be compelled to contribute to erect or maintain any fence between him and an adjacent owner; but when he encloses or uses his land otherwise than as a commons, he shall contribute to the partition fences as in this article provided.
Okla. Stat. Ann. tit. 4, § 143.
 
All partition fences shall be kept in good repair throughout the year, unless the owners on both sides otherwise agree in writing.
Okla. Stat. Ann. tit. 4, § 142.
 
What are the limitations on the removal or replacement of boundary fence when owner will not agree?
It appears that Oklahoma law allows one owner of a boundary fence to erect a fence without the permission of the other owner and with fence on both properties:
 
A person building a fence may erect the same upon the line between him and the adjacent owners, so that the fence may be partly on one side and partly on the other, and the owner of such fence shall have the same right to remove it as if it were wholly on his land: Provided, that such fence is not more than five (5) feet from such line.
 
Okla. Stat. Ann. tit. 4, § 152.
 
However, if removal of a boundary fence is done for malicious reasons or in a way that causes unnecessary harm to the other owner, the owner removing the fence run into legal issues.
 
What is the process for resolving disputes between owners over whether a boundary fence needs to be put or maintained?
In Oklahoma, when a controversy arises between boundary owners,  either party may apply to the fence viewers, who, after due notice to each party, may inquire into the matter and assign to each his share thereof, and direct the time in which each shall erect or repair his share in the manner provided above.  The purpose of this process is the recognition by the Oklahoma Legislature that many boundary fence disputes might resolved while young through full disclosure and open communication between the adjoining landowners.
 
whitewashing fences, and building communities online from Flickr

whitewashing fences, and building communities online from Flickr

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.

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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.

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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:

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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.