Archives For Shawn Roberts

 

You are dealing with the death of a love-one or friend, which is very sad.

During the process, you find out that your relative left their home to you (maybe using a transfer-on-death deed, explained here).

You are going to inherit a house, that is good.  Then you find out you are also inheriting a mortgage on the house.   Why?

Well, the easy answer is because there is a mortgage on the house and the bank wants to be paid.  The more legalized answer is that Oklahoma law makes you responsible for the mortgage as well:

When real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage shall be otherwise paid.

Okla. Stat. Ann. tit. 46, § 5 (West)

So, if you inherit the mortgage, you must pay for it from your own money unless your relative left a last will and testament.  And, that last will and testament must provide that the relative’s estate pay for the mortgage.

Potentially, a good news/not-so-good news scenario:  It is good you are the owner of a home, it is not as good you are the owner of a mortgage as well and a new monthly payment to the bank.

What happens to a person’s property when they die in Oklahoma?

There is a detailed answer in this post, What happens to a person’s property when they die?

The shorter answer is that it goes to your relatives, the people you chose in your last will and testament or Oklahoma revocable trust. If you own real property outright and pass away you will need a court order in an Oklahoma probate case to change the title from the person who passed away to his heirs.  There are several ways to avoid this results.  One way is the Oklahoma transfer-on-death deed.

Oklahoma Transfer-on-Death Deed

The Oklahoma TOD allows you to set up your real property to pass to another person after you die.  You sign and record the Deed with the Oklahoma county clerk in the county where the property is located. The person you giving the property to does not become the owner until you pass.  But, when you pass away, . . .

Transfer of the Property after death

The property passes almost automatically, with the person inheriting the property only need to file an affidavit stating that person died, whether the person was married and a legal description of the property.

 

If this is something that interests you or you like to talk about Oklahoma estate planning, please contact me.

 

Defamation is the umbrella term that covers both libel (the written word) and slander (verbal communication).

Generally, defamation is publishing a false statement about an individual that causes damage to the individual’s reputation or standing in the community or exposes the individual to public hatred, contempt, ridicule or injures him in his business.

There are some statements that are so incendiary by nature that the court will assume there was damage without the defendant having to prove specifically that there was damage (e.g., false statements that charge person with crime, impute in subject present existence of infectious, contagious, or loathsome disease, tend to injure subject directly in his business or profession, or impute to subject impotence or want of chastity; these examples are from Oklahoma case, albeit some very old case . . .).

The Oklahoma Uniform Jury Instructions provide that a Plaintiff has to prove the following to win a defamation claim:

In order to recover for defamation, [Plaintiff] has the burden of proving the following five elements by the greater weight of the evidence:

1. The statement exposed [Plaintiff] to public hatred, contempt, ridicule or disgrace;
2. [Defendant] communicated the statement to (a person)/ persons) other than [Plaintiff];
3. ( That person)/(Those persons ) reasonably understood the statement to be about [Plaintiff];
4. The statement was false; however, minor inaccuracies do not amount to falsity if the statement is substantially true; and,
5. [Defendant] did not exercise the care which a reasonably careful person would use under the circumstances to determine whether the statement was true or false; and,
6. The statement caused [Plaintiff] to suffer ( a financial loss)/(damage to Plaintiff’s reputation and/or emotional injury).

Truth is a defense; element four of the jury instruction requires the Plaintiff to prove that the statement was false. Generally, a person can share an opinion without worrying about defamation because an opinion isn’t capable of being proven “true” or “false”. However, one thing to keep in mind is that expressing something as an “opinion” doesn’t automatically eliminate a defamation claim. A statement that is couched as an “opinion” but to most people sounds like a fact, may be subject to being proved false. Whether a statement is an opinion depends on the context of the statement and knowledge of the person publishing the statement.

 

No.  This is not a choice that is made by either the worker or the employer.

Whether a worker is considered an “employee” or an “independent contractor” (often and imprecisely referred to as a “1099 employee”) is dictated by numerous factors including the circumstances of the work.  You can find some of the factors that determine employee or independent contractor status in this post and you can find guidance on avoiding what I call the “independent contractor traphere.

This question has come up in my law practice when I hear that a person has chosen to be 1099’d rather then w-2’d, as if the person was making making an ordering decision at McDonald’s and choosing the #3 Extra Value Meal instead of the #4 Extra Value Meal.  Like with many things in the law, it isn’t that easy, even for people who spend a lot of time working with the issue.

Unfortunately, there is no easy answer to this question.  It is based on a range of factors and determined by different sources depending on what you are doing and who is raising the question.  For example, the Internal Revenue Service has a list of factors it considers which you can find here.  If you are Oklahoma, it is important to know what Oklahoma authorities say matters.

According to the Oklahoma Worker’s Compensation Commission, these are the relevant factors to consider in determining whether a worker is an independent contractor:

  • The nature of the contract shows that the worker is independent from the contractor. For example, the contract may contain an agreement that the contracting party is an independent contractor.

 

  • The degree of control exercised by the principal (employer) over the work. The greater the degree of control exercised by the principal, the greater the likelihood is that the worker is an employee, rather than an independent contractor.

 

  • Whether the worker is engaged in a distinct occupation or business for others. For example, the worker is a painter who paints houses for multiple employers.

 

  • The kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

 

  • Whether the occupation requires special skills, license, education, or training; which tends to indicate that the worker is a contractor.

 

  • The worker supplies all or most of the materials that he or she needs to perform the job. If this is the case, it tends to indicate that the worker is an independent contractor.

 

  • The length of the job, i.e., whether the job is a one-time job or a job that will be performed on a regular basis.

 

  • The worker is paid as a separate contractor, e.g., an invoice is provided to the worker for his/her services; the worker is paid by the job; the worker files a federal income tax return for his/her business; the worker is provided with an IRS Form 1099 from the principal.

 

  • Whether or not the work is a part of the regular business of the employer;

 

  • Whether or not the parties believe they are creating the relationship of master and servant;

 

  • The right of either party to terminate the relationship without liability.

The IRS occupies a place like EF Hutton used to:  When it speaks, people listen.

So it is nice to know what the IRS cares about when considering whether a worker is an independent contractor or an employee. The IRS cares a lot about the degree of control a business has over the work in determining the independent contractor vs. employee question.  Consider the following from the IRS website:
In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.

The Common Law Rules

Common law generally means there is no statute or formal rule that sets it out, it is based on the decisions of the courts. The IRS says “Facts that provide evidence of the degree of control and independence fall into three categories:
  1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
  3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
The IRS says this about what businesses should consider in making the independent contractor versus employee distinction:
The IRS provides additional guidance here.  If you are an Oklahoma employer or worker, this material is worth a look.

 

It almost sounds like the type of thing you would get when you join a health club, right?  Not so fast.

There are three components to consider to understand the Oklahoma limited liability company.

Members vs. Stockholders

An Oklahoma corporation’s owners are known as “stockholders” or “shareholders”.  A membership interest is the rough equivalent to stock in a corporation.  The owners of an Oklahoma limited liability company are known as “members.”

Membership Units

Technically, the measure of membership interest in a limited liability company is the “unit.”  A member for example might purchase 10 units in the company while an Oklahoma stockholder might purchase 10 shares of stock in a corporation.

What you get when you purchase a membership interest

 

 

Is there any good reason for you to think about planning what will happen after you pass away?

Last week I wrote generally about the benefits of doing estate planning to replace the cookie-cutter plan the State of Oklahoma has for all its citizens. This week my focus is on one aspect of the estate planning process: the appointment of guardians for minor children.

If both parents pass away at the same time or a single parent passes away, Oklahoma law requires that a guardian be appointed. A Judge is going to make this appointment and the process, depending upon the material with which the Judge has to work, can be anywhere from smooth and relatively quick to painful and protracted. There are two sources to which the Judge can look. One is Oklahoma law that provides an order of relatives who might be entitled to appointment; the other, if it exists, the written nomination by the deceased parents of the person they want to serve as the child’s guardian.

If the deceased parent has nominated a competent individual, this person is usually appointed with no issue. If, however, the deceased parent has not nominated anyone, the Judge will consider the law and the request from what frequently turns out to be competing relatives. If there are competing relatives, the child could be placed in foster care until the Judge makes a decision. It also goes without saying that the people with whom the child is placed may not be the people the deceased parents wanted.

The way to avoid this scenario is to nominate a guardian in your Last Will and Testament. While a Judge is not legally required to honor a nomination, for all practical purposes, the Judge will honor the nomination (your choice). 

In my law practice, we address the critical decision of guardianship in all Wills and Trusts we create.

From http://momoge.com

If you are buying real estate, my top recommendation is to use a licensed realtor. The kind of person who legally has the right put the big “R” by their name. I know several good ones, including Dave Moeller of Redbud Realty & Associates in Edmond. The standard principal applies: hire a professional to do the work that is outside of your area of expertise. Buying a home is one of the most important decisions we make and having solid representation in the process is critical.

If for some reason you find yourself purchasing or selling land without a Realtor, consider these basic points as a starting place to negotiating the deal:

 

  • What is the purchase price?

  • How will the purchase price be paid? (all at closing, part earnest money and the rest at closing)

  • What are the conditions on which earnest money can/is required to be refunded?

  • Who will pay for the title work on the property?

  • Who will pay the transfer fees connected to the recording of the deed?

  • Where will closing happen? (typically a title company in the county where the property is located, but you can close a real estate deal without being physically present at signing, you can sign the documents in advance)?

  • Are you transferring mineral rights to the property or keeping the rights?

 

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Sales Tag


An Oklahoma statement of judgment is the vehicle through which someone enforces their judgment. It is closely associated with a lien because that is what the statement of judgment creates.

 

What does a statement of judgment do?

The statement of judgment creates a lien on all real property owned by the judgment debtor within the county in which the statement of judgment is recorded.

What is an example of how a statement judgment works?

That typically means if I file a statement of judgment with the Oklahoma County Clerk for Joseph Smith, a lien is created from the date I record the Statement on whatever real property Mr. Smith owns in Oklahoma County. If Mr. Smith owns real property and Beckham County for example, then I have to record a statement of judgment in back in County.

What is the process for recording a statement of judgment?

Either the judgment creditor (the person you have the judgment) or sometimes an attorney for the judgment creditor files, unsurprisingly, a document known as a statement of judgment with the county clerk. The statement provides the critical details about the judgment including the county, the amount in the name of the judgment debtor (i.e. the person who owes on the judgment).

What does it cost to record a statement of judgment?

It’s $13 for the first page and $2 for each additional page, so usually approximately $15.

What happens after the statement is recorded?

Besides the lien being created, not much. That is unless somebody takes some kind of action to foreclose on the lien, the statement of judgment could sit there for a lengthy period of time. There is another way however where the statement of judgment could trigger some action: if the person who owes the money is selling

If the person who owes the money is selling property or trying to refinance property that they own, typically the lender is going to require the statement of judgment be paid off before closing. As you might expect, this type of leverage can go a long ways towards getting the judgment paid.