An Affidavit of Heirship is a sworn statement that can be used by heirs as an alternative way to transfer property and establish ownership when the original owner dies intestate or without a will. Affidavit of Heirships allow for heirs to take possession of the estate without going through probate. The Affidavit of Heirship outlines the deceased person’s family history and the identity of heirs. It is then filed in the public records in the county where the decedent’s real property is located. An Affidavit of Heirship can be useful to establish ownership of mineral interests; however, it is important to note that an Affidavit of Heirship is not a formal adjudication of who inherits the decedent’s property upon death. An Affidavit of Heirship only creates a rebuttable presumption that the facts in the Affidavit are correct versus a judicial determination which conclusively determines heirs of an estate.
When do you use an Affidavit of Heirship?
An affidavit of heirship can be used when someone dies without a will, and the estate consists mostly of real property titled in the deceased’s name. An Affidavit of Heirship can be an appropriate alternative for some, but a probate proceeding is usually the safer alternative to establish a link in the chain of title when dealing with real property. However, when establishing ownership of a mineral interest, Affidavits of Heirships can be very useful. Title to mineral interests can be established with an Affidavit of Heirship and will usually be sufficient for a company to sign a lease with you or to release payments. However, this will not vest you with ownership of the property for up to ten years.
What is included in an Affidavit of Heirship?
An Affidavit of Heirship outlines the deceased person’s family history and the identity of the heirs. The Affidavit should be signed by two disinterested witnesses who are knowledgeable about the deceased and his or her family history, but cannot benefit from the estate financially. Each disinterested witness must swear under oath as to specific information about the deceased including the following:
- They knew the decedent.
- The decedent did not owe any debts.
- The true identity of the family members and heirs.
- The person died on a certain date in a certain place.
- The witness will not gain financially from the estate.
The affidavit must state whether or not a decedent has died testate or intestate (with or without a will). If the decedent died testate, the affidavit must state whether the will has been probated in Oklahoma. If the will has not been probated, a copy of the will must be recorded with the affidavit. If the will has been probated, but the severed mineral interest was omitted from the final decree, a copy of the final decree and the will must be filed with the affidavit of heirship. After being filed of record for at least ten years, an affidavit of heirship may pass marketable title, so long as the affidavit meets the statutory requirements and no other document was filed which contradicts the heirship provided in the affidavit.
Limitations and risks associated with Affidavits of Heirship
Because an Affidavit of Heirship is not a formal adjudication of who inherits the decedent’s property upon death, there are risks with establishing property ownership using an Affidavit of Heirship. An Affidavit of Heirship does not transfer title to real property. Once it has been on file for ten years though, the filed an Affidavit of Heirship becomes evidence of the facts contained in it about the property. The legal effect of the affidavit of heirship is that it creates a clean chain of title transfer to the decedent’s heirs.
This means an Affidavit of Heirship cannot permanently establish the heirs of the individual who died without a will until the expiration of the ten year period. Upon the ten year mark, there is a clean transfer of title. Until then, a risk exists that ownership by the heirs will not be recognized by third parties such as purchasers, banks and title companies. It is also important to remember that an omitted heir or creditor of the decedent can challenge the ownership claim and claim an interest in the property owned by the decedent at any time.
An Affidavit of Heirship can be an appropriate alternative for some, but a probate proceeding is usually the safer alternative to establish a link in the chain of title when dealing with real property. However, when establishing ownership of a mineral interest, Affidavits of Heirships can be very useful.
Establishing Mineral Interest Ownership
Title to mineral interests can be established with an Affidavit of Heirship and will usually be sufficient for a company to sign a lease with you or to release payments. However, this will not vest you with ownership of the property for up to ten years. After being filed of record for at least ten years, an affidavit of heirship may pass marketable title, so long as the affidavit meets the statutory requirements and no other document was filed which contradicts the heirship provided in the affidavit.
A party relying on an affidavit of heirship should do so with an awareness that the claim to ownership could be challenged at any time during the ten year period before title completely vest. Most likely, large mineral estates should never be distributed via affidavits of heirship. There are several situations where an an Affidavit of Heirship could fail, even if it goes unchallenged ten-year statutory period. For example, scenarios that involve property rights which cannot be taken without proper statutory notice and parties who were not given a fair opportunity to claim their property interest could present issues for situations in which an Affidavit of Heirship was used. Until properly accomplished notice happens, the period for challenging distribution of an estate via affidavit of heirship will theoretically never expire.
Contact the attorney at Skillern Law Firm, PLLC today at (918) 805-2511 or email@example.com to discuss if an Affidavit of Heirship is the right avenue for your to pursue to establish ownership to property or minerals.
Tenants in Common (TIC) and Joint Tenancy (JT) represent different ways to own property. It is important to determine how you wish to own your property, either as Joint Tenants or Tenants in Common, because the ownership approaches provide different methods for transferring the property when and if the co-owner dies.
While there are several common characteristics that each ownership designation shares, Tenants in Common and Joint Tenants vary in important ways specifically with the probate process. Probate is the legal process of transferring ownership of assets from a deceased individual’s name into the names of beneficiaries. Owning property as Joint Tenants avoids probate automatically while owning as Tenants in Common does not avoid probate unless additional steps are taken. Joint Tenants carry the right of survivorship meaning that when one tenant or owner dies, that owner’s share automatically passes to the surviving tenant by law thus making probate unnecessary.
Important attributes of Tenants in Common include:
- TIC can be created at any time.
- TIC allows two or more people to have an ownership interest in property.
- TIC allows for individuals to own or control equal or different percentages of the total property.
- TIC can give their share of property to anyone after their death.
- TIC do not have right of survivorship and do not avoid probate automatically.
Important attributes of Joint Tenants include:
- Joint Tenants must be created at the same time.
- Joint Tenants must obtain equal shares of a property with the same deed.
- The deceased owner’s interest is automatically transferred to the surviving owner.
- Joint Tenants avoid probate automatically.
How does Tenancy in Common effect property ownership rights?
Tenancy in common is an arrangement in which two or more people have ownership interests in a property, commercial or residential. Tenants in common can own different percentages of the property; however, all of the property is owned equally by the tenants in common group. For example Ann, Bob, and Callie own property as tenants in common. Ann owns 50% of the property and Bob and Callie each own 25% of the property. While they each own a different percentage of the property, they all own the property equally and none of them can individually claim ownership to the property entirely. An individuals ownership percentage is typically correlated with the person’s contributions.
TIC can be created at any time. Considering the example above with Ann, Bob, and Callie. If Ann decides to later split her 50% portion equally with David, all four individuals, Ann, Bob, David, and Callie would own 25% of the property as Tenants in Common.
TIC can also sell or borrow their portion of the property independently, without the consent of the other TIC. Returning to the example above, if Bob decides he no longer wishes to own the property and wishes to sell his portion to Ethan, he can do so without the consent of Ann, Bob, or Callie.
When a tenant in common dies, the property passes to that tenant’s estate. The tenancy in common partner has the right to leave their share of the property to any beneficiary as a portion of their estate. Each independent owner may control an equal or different percentage of the total property. Tenants in Common have no automatic rights of survivorship. Unless the deceased member’s last will specifies that their interest in the property is to be divided among the surviving owners, a deceased tenant in common’s interest belongs to their estate. This type of ownership is popular with owners who do not necessarily want their share to automatically go to the other owners. Owning property as Tenants in Common does not avoid probate, the legal process of transferring ownership of assets from a deceased individual’s name into the names of beneficiaries, unless additional steps are taken.
Dissolving a TIC
To dissolve a Tenancy in Common, one or more co-tenants may buy out the other members. If the co-tenants should develop opposing interests or directions for the property’s use, improvement, or want to sell the property, they must come to a joint agreement to move forward. In cases where an understanding cannot be reached, a partition action may take place. The partition action can be voluntary or court-ordered, depending on how well the co-tenants work together.
If the co-tenants are not adversarial, the court will divide the property via a partition in kind. This is a legal partition proceeding where the court divides the property among the tenancy in common members allowing each member to move forward separately from other members. A partition in kind is the most direct way to divide the property.
Should the co-tenants refuse to work together, they may consider entering into a partition of the property by sale. Here, the property is sold and the proceeds are divided among the co-tenants according to their respective interests in the property.
How does Joint Tenancy effect property ownership rights?
Joint Tenancy must be created at the same time and requires that Joint Tenants obtain equal shares of a property with the same deed. Owning property as Joint Tenants avoids probate automatically because Joint Tenancy carries the right of survivorship. This means that when one tenant or owner dies, that owner’s share automatically passes to the surviving tenant by law thus making probate unnecessary. For example, if A and B own a property as joint tenants, and owner A passes first, owner B will receive ownership of the entire property automatically. Accordingly, owner B will not have to sell the property if they do not wish to. Some states set joint tenancy as the default property ownership for married couples, while others use the tenancy in common ownership model.
Owning property as joint tenants can be useful if you feel there is a risk that someone may apply to the court for further provision from the estate and if you have specific wishes that your family home be protected. If you as the will maker pass before the other owner, the property will not form part of your estate which may be the subject of a claim.
If you have any questions regarding the meaning and effect of holding property as joint tenants or tenants in common, or if you are considering gifting a property to a beneficiary under your will, please do not hesitate to reach out. The attorney at the Skillern Law Firm, PLLC can help. For more information, contact us today at (918) 805-2511 or firstname.lastname@example.org.
Each time a piece of property changes ownership, defects or errors in the title may occur. A cloud, or any potential claim on the title may also arise. It is important if you are establishing ownership that you receive a good and marketable title. A quiet title action, also known as an action of quiet title, is a legal proceeding that is intended to clarify and ownership of a given property. Quiet title actions are typically used in cases where title ownership is in question such as following mortgage lender disputes, the death of title owners, cases of adverse possession, and long periods of time where the property is unoccupied. A party with a claim of ownership to land can file an action to quiet title, which serves as a sort of lawsuit against anyone and everyone else who has a claim to the land.
A quiet title action occurs when one property claimant challenges one or more other people in a court of law for the purpose of determining who is the rightful legal owner of the property in question. It is intended to remove, or “quiet,” the conflicting claims on the property by clarifying the question of legal ownership and eliminating any discrepancies in the title. If the owner prevails in the quiet title action, no further challenges to the title can be brought and the plaintiff will be in full possession of the property, as will be his or her heirs. As the established owner of the property, the plaintiff will also be protected from any further claims of ownership made against the property by other outside entities.
Title defects can have a negative impact on your property:
You may need to file a quiet title action if a link in the chain of title, or list of people who have owned a property before the current owner, of a property is either broken or incorrect. If an ownership link is broken, for any reason, a person can begin the process of quiet title action. Even if the parties involved in the action know who the property should belong to, a quiet title action can and should still be initiated. A quiet title lawsuit would allow you, as property owner, to establish and confirm ownership of a piece of property. Many times, the process is complicated by the fact that the land has changed possession several times over the years, requiring a thorough review of all documentation. It is important to cure title defects because title defects and other potential claims can have a negative impact on your property. Title defects can:
- Prevent an owner from transferring the property free and clear
- Decrease value of the land or property
- Challenge an owner’s ability to exercise rights
When to initiate a quiet title action?
A quiet title action might be used to clear up claims on the ownership of real property, or other property that is titled, following the death of the owner, particularly when there is a question regarding whether all of the heirs have been notified of the sale of the estate. It can also be used to resolve issues with a mortgage lender whose interest in the property was not properly dealt with after the loan was paid off. Quiet title actions can also be used to clear the title to a property that has been unoccupied for some time, allowing for outside parties to make bids for its purchase.
Other grounds for a quiet title action include the conveyance of an interest in the property via a quitclaim deed in which the previous owner disclaims interest, but does not promise that the title is clear. Additionally, quiet title actions could be used to convey title to a property in the case of adverse possession, in which a party occupies property that is legally not theirs for purposes of laying claim to it. It can be used to settle tax issues with a property; boundary disputes; errors in surveying; fraudulent conveyance of the property by coercion or forged deed; or competing claims by lien holders or missing heirs.
The best course of action in this scenario is to hire an attorney with experience in this area that will know the correct steps to take in order to repair the chain of property ownership.
A quiet title action attorney will:
- Describe the title defects to the court;
- Ask the judge to fix the defects with an order by declaring the true owner of the property; and
- File the order in the county property records.
Through these legal actions, you could effectively fix the chain of title. If, however, there is a dispute over the property, the issue may become a legal dispute where a judge will determine who the rightful owner is before filing a declaration order in the county records.
Contact Skillern Law Firm, PLLC
If you are having trouble establishing ownership of a property, get in touch with Skillern Law Firm, PLLC today. Our law firm is dedicated to providing our clients with strong legal representation. The attorney at Skillern Law Firm can help you seek the results you deserve. Whether you are a landowner seeking to confirm your ownership or another party with a viable claim to the property, the attorney at Skillern Law Frim is committed to achieving the best outcome possible.
The attorney at the Skillern Law Firm, PLLC can help. For more information, reach out to us today at (918) 805-2511 or email@example.com.
The Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) was signed into law on December 20, 2019 and became effective on January 1, 2020. The SECURE Act makes over two dozen changes to the law affecting retirement benefits and inherited IRAs (Individual Retirement Accounts). The revisions also apply to other defined contribution retirement plans, including 401(k) accounts. As a result, the changes impact estate plans that include assets in an IRA or 401(k) account.
When there are changes to the legal infrastructure of estate planning, such as this, some estate plans will require modification to accommodate the new rules. Whether that is the case for a particular estate plan depends on a number of factors that must be evaluated on an individual basis. If you have an IRA or 401(k), you should consult with a knowledgeable estate planning lawyer about how the SECURE Act affects your estate plan provisions for inheritance of those assets.
Lifetime Payout Period Replaced by Mandatory Full Distribution Within 10 Years for Inherited IRAs and 401(k) Plans
IRAs that have been inherited from a participant who died before January 1, 2020, should be grandfathered and thus free from the new SECURE Act requirements; however, Section 401(b) includes a provision that would apply the SECURE Act payout requirements to a successor designated beneficiary when a designated beneficiary dies before life expectancy.
For example, Father died in 2018, and daughter (age 50) was the designated beneficiary. Daughter dies in 2021, with her son as successor designated beneficiary. Under the old law, because original designated beneficiary died before her life expectancy, the successor designated beneficiary could have continued the stretch-out using the life expectancy of the original designated beneficiary. However, the language of the SECURE Act suggests that the successor designated beneficiary would now be subject to the 10-Year Rule and would not be able to continue the stretch-out even through the original account holder died prior to January 1, 2020.
Elimination of the “Stretch” IRA
The ability to stretch certain inherited IRAs over a designated beneficiary’s life expectancy has been eliminated. An IRA now must be distributed by December 31st of the tenth year following the year in which the retirement account owner dies (herein referred to as the “10-Year Rule”). As a result, designated beneficiaries—the definition of which is unchanged—can no longer stretch an inherited IRA over their lifetime.
Exceptions to the 10-Year Distribution Requirement for an Eligible Designated Beneficiary (EDB)
Though the definition of designated beneficiary has not changed, a new category of five beneficiaries has been created, each known as an eligible designated beneficiary (EDB). An EDB is an exception to the 10-Year Rule. The five EDBs are:
- A surviving spouse;
- A surviving spouse still benefits from life-expectancy withdraw from an IRA or 401(k) account, as an exception under the new law. In addition, RMDs for a surviving spouse who inherits in 2020 or later must begin in the year the deceased spouse would have turned 72 (rather than the previous age of 70½).
- The child of the decedent who is a minor (note that this exception is narrowly drawn; for example, it does not apply to grandchildren even if the child predeceased the participant—so, no “predeceased child step-up” rule as exists);
- A minor child of the account owner is also an EDB. However, when the minor reaches the age of majority, the exception ceases to apply, and the account assets must be distributed within 10 years of the child reaching the age of majority.
- A disabled person;
- A “disabled” beneficiary is eligible for life-expectancy distributions, but the law provides a very limiting definition for a “disabled” beneficiary, as follows:
- “[A]n individual shall be considered to be disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration. An individual shall not be considered to be disabled unless he furnishes proof of the existence thereof in such form and manner as the Secretary may require.”
- In order to qualify as an EDB under this provision, if a beneficiary is able to engage in “any substantial gainful activity,” the exception does not apply.
- A chronically ill person; A “chronically ill” beneficiary also is eligible for lifetime distributions, but the law includes a specific and complex definition for this category that is restrictive and limiting.
- An individual who is not more than 10 years younger than the decedent. If the account owner names a beneficiary who is not more than 10 years younger than the owner, the beneficiary is exempted from the 10-year requirement.
Some of the Changes to Retirement Plans Are Taxpayer- Friendly
Under the old rules, once an individual attained age 70 ½, or would do so by the end of the year, no additional contributions could be made. This has been repealed and contributions can continue to be made so long as the participant is employed.
The age at which required minimum distributions (RMDs) must begin has been extended from the year the taxpayer attains age 70 ½ to 72.
An inherited IRA with no designated beneficiary is ineligible for stretch treatment (both lifetime and 10-Year Rule). Such an inherited IRA remains subject to an accelerated withdrawal period. The length of that period depends on whether the participant had died before or after the change to age 72 as the required beginning date (RBD):
- If the death was before the RBD, then the entire account must be withdrawn before five years after the death (more precisely, by December 31 of the year that includes the fifth anniversary of the participant’s death).
- If the death was after the participant’s RBD, then the account must be distributed in annual installments over what would have been the remaining life expectancy of the participant had he not died (some practitioners euphemistically refer to this as the ghost life).
In 2010 a tax law eliminated this adjusted income cap of $100,00 for conversions from traditional IRA to a Roth IRA. This resulted in many conversions, especially given the safety net of recharacterization (tax-free conversion back to a traditional IRA if done before the tax return due date for the year of the conversion). However, the 2017 Tax Act diminished the safety of conversion by eliminating the ability to recharacterize.
Conversion triggers current income taxation of the IRA, so the typical analysis was whether the participant or the beneficiary would be in a lower income tax bracket. With an accelerated payout under the 10-Year Rule, it now may be more likely that the beneficiary will be in a higher bracket.
Rarely does it make sense to convert if withdrawals would need to be made to pay the income tax. Plus, as an offset, however, we know that if the participant were in a taxable estate, the dollars used to pay the income tax are in a sense discounted by the avoided estate tax. For example, a client has a taxable estate that includes a $1 million traditional IRA and $1.5 million in cash. If, for simplification, we assume her assets are subject to a 40 percent estate tax, her other assets pay the tax on them, and her cash is used to pay the estate tax on the IRA and the cash, her heirs will receive:
Modifications to Your Current Estate Plan
The SECURE Act will be disruptive for many estate plans and the acceleration of payout may be concerning. When there are changes such as this, some estate plans will require modification to accommodate the new rules. Whether that is the case for your particular estate plan depends on a number of factors that must be evaluated on an individual basis. If you have an IRA or 401(k), you should consult with a knowledgeable estate planning lawyer about how the SECURE Act affects your estate plan provisions for inheritance of those assets.
The attorney at the Skillern Law Firm, PLLC can help. For more information, reach out to us today at (918) 805-2511 or firstname.lastname@example.org.
A healthcare power of attorney (HCPA) refers to both a legal document and the person named in the legal document which empowers the named individual to speak with others and make decisions about your medical condition, treatment, and care. When you, the patient or creator of the HCPA, become to ill to communicate your wishes about your medical care to others, the HCPA is activated and the person named in the document has the power to make life and death decisions. A HCPA allows the proxy to communicate with the doctors, prevent unwanted treatments, avoid making wrong decisions, and make medical decisions in the event you are incapacitated.
A HCPA can outline specific directives, such as your wish to have or not have life-saving measures in the event you are unable to breathe on your own, or more general insights into your beliefs, morals, and ethical values.
Why you need a HCPA?
Appointing a HCPA provides peace of mind to yourself as well as your loved ones. By naming a HCPA you can be confident that in the event you are unable to communicate with a medical provider, a trusted individual with your best interest in mind will be in place to communicate with others for the sake of your wellbeing. Having a HCPA lets everyone, including your doctors, know your exact wishes regarding big medical decisions if you are unable to communicate.
Additionally, naming a HCPA removes the burden from your loved ones of having to make difficult medical decisions because they no longer have to try and guess what your wishes are. Creating a HCPA provides you peace of mind and is a gift to your loved ones.
Who should you choose?
When choosing a HCPA is is important to appoint an individual whom you trust. The person you list as your HCPA becomes your agent or healthcare proxy and may be charged with making life-and-death decisions on your behalf in the event you are unable to communicate your wishes regarding your medical care and treatment.
Anyone may serve as a HCPA. For example, a friend, partner, relative, or colleague may act as your HCPA as long as you feel the individual is capable of making important decisions regarding your medical care in the event you are unable to communicate your wishes. Additionally, the law allows you to appoint co-agents (two people who will serve together as equals) or successive agents (a second person who will serve in case the first agent is unable to do so). However, confusion or conflict may result if you appoint more than one agent.
In the event you no longer want your named HCPA to serve as your proxy, you have the freedom to change your mind and reverse your decision at any time. If you wish to assign a new HCPA, all that is needed is a new document designating the new HCPA.
When should you appoint your HCPA?
While a HCPA may not seem necessary if you are young and healthy, it is important to appoint someone in the event of an unforeseen accident. You have a right to decide what kind of medical treatment you do and do not want. If you have specific wishes about your health care, a HCPA will ensure that those wishes are honored even if you are physically or mentally unable to tell your doctors what you want.
Even if you do not have specific wishes about your health care, a HCPA will ensure that someone you trust will make your medical decisions if you cannot do so. If you do not have a HCPA and are physically or mentally unable to tell your doctors what you want, the following people, in order of priority, are legally authorized to make your health care decisions for you:
- Your court-appointed guardian or conservator;
- Your spouse or domestic partner;
- Your adult child;
- Your adult sibling;
- A close friend; or
- Your nearest living relative.
How do you appoint your HCPA?
If you’re are interested in appointing a healthcare power of attorney, make sure to guarantee its validity with the help of an attorney. Attempting to create your own HCPA without qualified legal representation can leave you in the in a much worse position. Plus, you’ll enjoy peace of mind knowing you’ll have ongoing support during the process, and after. We are just one phone call away for all of our clients.
An attorney will listen to your goals and concerns and provide counsel based on your specific situation making sure to correctly document your intent. We will make sure your HCPA is explained, detailed, and done correctly to reflect your wishes.
If you’re ready to craft a health care power of attorney, the attorney at the Skillern Law Firm, PLLC can help. For more information, reach out to us today at (918) 805-2511 or email@example.com.
Like we have discussed before on a previous post, every adult needs a Last Will & Testament or a Revocable Trust in place. However, more than half of all Americans have no planning in place! For simple estates, or at least the bare minimum for everyone, a Last Will & Testament is a good start. A Will is a legal document that tells the probate court your wishes about where and whom your property should be distributed to after death. To skip the probate process all together, one should get a Revocable Trust. A trust has two purposes. First, it is to take care of the creator (Also known as a Grantor or Trustor) while they are alive, and then distribute similar to a will after the Grantor passes away. Another difference is that the distribution part of the Trust skips the court process altogether, which makes the distribution faster, easier, smoother and may help avoid unnecessary taxes and creditors and keeps your wishes private.
It’s easy for people to feel overwhelmed about getting their estate plan done, especially right now during the pandemic. However, at the most basic, it is essential to plan what will happen to your assets after death. it is unavoidable and easily planned, with the help of a qualified attorney. While a lot of people would like to avoid the subject matter altogether, it’s the best way to take care of your loved ones financially (and save them the stress of end-of-life planning) after you’re gone. Also, people do not realize that it’s mostly the attorney doing the work!
Since these are the most important documents you’ll ever get done, it’s important to plan ahead, and hire an attorney to get it done correctly.
Attorney-made vs. Do-It-Yourself Estate Planning
Our attorney sees a lot of online and “DIY” estate planning, and all the simple mistakes that are made via those instruments (read our previous post about why online wills are harmful). A single drafting mistake could make the whole trust invalid, or change the make the distribution different than what you desire. Most of these “DIY” platforms use laws from California, New York, and Texas (none of which follow the type of Trust law that Oklahoma has). These products are unlikely to meet your needs. You do not want to risk your property going to the wrong people, showing up in court to be fought over, or the trust being ambiguous and requiring a court’s interpretation just to save a dollar. All of these things are avoidable with an attorney who know what they are doing.
More complex estate distributions, like ones that include minors, special needs beneficiaries, unequal distributions, and more, absolutely need to have an attorney drafting them.
Four Reasons to Hire a Lawyer to Review Your Estate Plan
- Estate planning varies by state.
State laws can be very particular on what may or may not be included in Will, Power of Attorney, or Trust. It can even get as localized as the county judge and his/her requirements for a Will to be valid. Location may affect who may serve as personal representative; be a witness, where and how they need to sign the estate planning documents. Like referenced above, Oklahoma does not follow a unified Trust code like most states, so it’s important to recognize that we do things differently here than you see on most online blogs and sites.
- Online estate planning programs are limited and not specialized.
Online wills and trust drafting don’t support common complexities you find in Wills and especially Trusts like minor children, unequal distributions, complex real estate planning, and graduated distributions. They also cannot account for your personal situation in the family, like family dynamics (including infighting, drugs, and spendthrift family members). With simple software and templates, if you make an error, the document can become invalid or misleading. Additionally, these options don’t always update or upgrade to account for new changes in estate planning laws.
- Most people have certain complications that can affect your estate plan.
Unlike what most people think estate planners do, we do not just pop in names on our forms and call it a day. Every plan at the Skillern Law Firm is specialized, and created specifically for the client at hand. Not only do we not just go off of one form for all clients, but we do specialized planning outside the documents – like making sure our client’s beneficiary designations and business planning are done as well. Various circumstances can affect how you’ll draft your plan. As mentioned before, any mistakes can cause additional complications, expenses or make it invalid altogether. Some of these scenarios include:
- Multiple marriages
- Business ownership
- Mineral Rights
- Minor Beneficiaries
- Real estate in multiple states
- Incapacity or disability needs
- Bequests to charity
- Substantial investments
- You don’t see the whole picture – and that’s okay!
Here’s the thing: you’re not an attorney, and that’s okay! You probably don’t know which questions or scenarios to be ask or think about. You don’t know how to find the big problem areas (and sometimes the smaller issues that creep up on you in the estate plan). An attorney will also make sure to document your intent and state of mind, which is important if a dispute arises after death. An attorney will also listen to your goals and concerns and provide counsel based on your specific situation. We will make sure your estate plan is explained, detailed, and done correctly to reflect your wishes.
Have an Attorney That is There to Work for You
If you’re are interested in getting your estate plan done (and done correctly), make sure to guarantee its validity with the help of an attorney. Although educating yourself is wise, you’re hardly expected to be an expert in this complex area of law. Attempting to create your own estate plan without qualified legal representation can leave you in the in a much worse position. Plus, you’ll enjoy peace of mind knowing you’ll have ongoing support during the process, and after. We are just one phone call away for all of our clients.
If you’re ready to craft an individualized estate plan, the attorney at the Skillern Law Firm, PLLC can help. For more information, reach out to us today at (918) 805-2511 or firstname.lastname@example.org.
Today, let us tell you a cautionary tale:
Recently, our attorney was hired to represent an heir in a probate here in Tulsa County, Oklahoma. The person who passed away was an 87 year old male who passed away unexpectedly. He was unmarried, had no children, no living parents, siblings, etc. His living heirs are his great niece and nephews (who do not really get along).
When he passed away, none of his heirs knew if he had a Last Will & Testament, and if he did have one, where they were. No one knew what assets he owned, where his money was invested, or anything else. He had managed all of his assets by himself, and he lived by himself, so there was not a caretaker who would have more information. The heirs were left with no information, no plan, and no way to access any of the assets. The heirs do not get along, which means multiple attorneys got involved, which is very costly.
For three months now, our attorney has been working with another attorney and their clients trying to go through the home and see if there was an estate plan in place, and to secure the assets. No Will has been located, and it looked like the deceased male met with roughly 4-7 estate planning attorneys in the last year, but never got an estate plan in place. Due to that, this probate is now going to be a lot more costly and long. The heirs are going to get their share, but this may not have been what he wanted. Everything would have been a lot easier had he gotten an estate plan done. Even a simple Will could help tremendously.
Use this cautionary tale as a way for you to know that you should not wait to get an estate plan. You do not know when the worst could happen. Call us today to set up a free consultation to see what kind of estate plan you should get in place!
Skillern Law Firm is moving locations starting in May of 2020! We are moving just a few miles west to 16th and Cincinnati, located near downtown. We will have a designated parking lot in front of the new building that is also handicap accessible. This building is a one-story renovated home that is perfect for document signings!
Our new office location is:
1613 S. Cincinnati Ave.
Tulsa, OK 74119
Hope to see you there!
Before 2008, there was no way in Oklahoma for real property or mineral rights to skip probate except for a revocable trust. In 2008, the Oklahoma legislature passed 58 O.S. Section 1251-1258. This statute codified Oklahoma’s Transfer on Death Deed (“TODD”), otherwise known as a “beneficiary deed.” This allows the owners of real property, including surface owner or mineral rights, to deed the property to beneficiary(ies), which skips the need for probate to transfer legal title. These have been a very effective and cost-efficient way for real property to skip the probate process and the title to real property to be easily transferred after the passing of the owners.
However, Transfer on Death Deeds are not a good instrument to use in a variety of situations, and usually a revocable trust is recommended to skip probate in these situations. These are generally situations where a Transfer on Death Deed are not advisable:
- Complex distributions: Transfer on Death Deeds are very good for very simple distributions, like you want to transfer your home to your children, split equal. When you want distributions to be gradual, over time, with strings attached, creditor protected, or any other complication to a distribution, then a TODD is not a good idea.
- Per Stirpes distribution: When you want your children to inherit, but if one of them passes away, you want their children to receive their share of the real estate. Essentially, if you want your grandchildren to inherit if their parent does not survive you, then a Transfer on Death Deeds are not good for this type of distribution.
- Unequal distributions: When you want beneficiaries to receive unequal shares of the home. TODDs are great for equal distributions, but nothing more complex than that.
- Minors as beneficiaries: Minors cannot own real estate in Oklahoma, so you cannot leave a piece of property to a minor through a TODD. It would need to be held in trust for the minor until he/she reaches the age of 18.
If you have a piece of land or mineral rights that you want to leave to one or more people, split equal with no strings attached, then a Transfer on Death Deed is a great option.
There is a catch to Transfer on Death Deeds that must be said: First, the Transfer on Death Deed MUST be filed before the passing of the Grantor, or owner of the real estate. If the deed is filed after, it is not effective. Second, after the passing of the owner of the deed, the beneficiar(ies) must file a Transfer on Death Deed affidavit within nine (9) months of the passing of the Grantor. If this affidavit is not recorded within this time frame, the deed is voided and it would pass via the probate process. This is an easy thing to accomplish, but it is a time-sensitive action that is widely overlooked.
If you are interested in getting a Transfer on Death Deed done in Oklahoma, please call or contact the Skillern Law Firm today! They are inexpensive and easy to accomplish with the help of an attorney.
As most of you will be aware, the virus called COVID-19 or “coronavirus” has changed our everyday lives during this time. As of this post, more than 340,000 people in the United States have tested positive for the virus, and it has cause around 9500 deaths. Around the country, including in Oklahoma, courts are shut down due to the quarantine initiative of the governments. In Tulsa County, the courts are shut down, including court personnel, until May 15th, 2020 (which will likely be extended). Only emergency orders and hearings are being held, and usually via an electronic video stream.
In Oklahoma, all estate planning documents need to be signed “wet ink to paper.” This means that no electronic signatures are valid, and no video-stream witnessing is allowed. There is a new law in Oklahoma that allows for electronic notaries, but a Will is exempt from this new notary allowance. In Oklahoma, estate planning documents need to be signed in person, with the testator, witnesses, and notaries all together while the signing commences. This can be a problem in the time of COVID-19, but most estate planning attorneys are taking safety precautions during this time, including us at the Skillern Law Firm.
What does this all mean for you? This means, if you do not have some basic estate planning documents in place, you should do it sooner rather than later. If the government continues to become more restrictive about gatherings and work, the chances to get your estate plan done becomes harder and harder. You should also review your beneficiary designations, and make sure they are all up-to-date.
What documents should you have done is a very common questions we receive. There are four basic documents, regardless of ones wealth or health, that everyone should have:
- You should have a Last Will & Testament that tells the probate court what you want to do with your estate should you pass away.
- You should have a power of attorney for finances. This would allow your agent to pay your bills, talk to your insurance, and make other time-sensitive decisions during a period of your incapacity.
- You should have a healthcare power of attorney. This would allow your attorney-in-fact to make medical decisions for you, and also consult with your physicians, if you were unable to make those decisions for yourself.
- You should also have an Advanced Directive in case you become so ill that end-of-life decisions need to be made.
One of the biggest reasons to get your estate plan done ASAP is the fact that the court systems are shut down in Oklahoma. If you do not have a power of attorney for finances or health, the usual way for people to be granted the authority to act would be through the guardianship process. However, since courts are shut down except for emergency situations, these guardianship proceedings are not being held. Also, if this is an emergency situation and it does qualify to have a hearing, these hearings are hard to have and can be time consuming to set up (and very stressful). This means that if you are in a situation where you need to be taken care of, and you do not have documents in place, the changes of setting up a guardianship is unlikely.
Also, since hospitals and nursing homes are not allowing outside visitors due to safety precautions, the changes of you getting emergency documents done by your attorney is extremely improbable. You cannot wait til you are on your death bed to have your documents executed during this time. You can save a lot of hassle, heartbreak, and stress by being proactive and getting your documents in place immediately.
If you want to set a free consultation (right now being held via the phone), please call the Skillern Law Firm today!