Skillern Law Firm, PLLC

Home » Posts tagged 'intestacy'

Tag Archives: intestacy

Oklahoma’s Simplified Probate

probateIf you do not have a Revocable Living Trust, your estate will  need to be probated or be small enough for a simple affidavit. Probate is the legal process required for estate administration and asset distribution.  To read more specifically about what probate is, read our previous post “what is probate.”

One important thing about about probate is that is is time-consuming and typically expensive. There are court costs, publishing fees, and of course attorney fees. For this reason many people are able to shrink their probate estate using simple ways to avoid probate like beneficiary designations or a revocable living trust. A trust allows you to put all your assets into a trust, you then name a successor trustee to take over when you are incapacitated or pass, and your named beneficiaries who would receive distributions without having to go through court. It’s usually very simple and clean.

Simplified Probate

Regular probate is most likely going to be necessary for most people with a normal sized estate. However,  those who have a smaller amount of assets may be able to pass along property outside of probate altogether or through the utilization of a simplified probate procedure. In Oklahoma,  if the estate is worth less than $20,000,  a simple affidavit can be used to claim the estate after a ten day waiting period.

For estates larger than $20,000 and smaller than $150,000, Oklahoma allows for a “Simplified  Probate.” The executor or executrix can contact the probate court to request simplified probate if the estate that he or she is administering is valued at less than $150,000 ($175,000 beginning November 1, 2013). This includes all personal property as well as other assets. The benefits are that it is quicker than normal probate and the attorney fees will be less.

Whether your estate is too large for simplified probate or small enough, the best way to make sure your affairs are in order is to contact a qualified estate planning attorney. The attorney of the Skillern Law Firm can help you plan out your estate so your heirs are taken care of in the best and efficient manner possible. Call our office today!

Beneficiary Designations

One of the most common questions I receive from clients is the question of beneficiary designations and how they relate to their Will or Trust.

One important thing that must be said is that beneficiary designations, including IRA’s, life insurance, annuities, bank accounts, etc., go outside probate and the trust. What is said in the Will does not effect what is said in a beneficiary designation.

For instance, if you want to leave your two children 50/50 of your estate, and you put that in your Will or Trust, but leave only one as a beneficiary or joint owner of an account, that one child will receive the entire amount of the account, and the other child has no legal right to the other half. Beneficiary designations  trump whatever your Will says about the other assets.

This can also play a role in Guardianship designations in a Will or Trust. Some people believe that if they designate a guardian for their child in their Will or Trust, and then leave that Guardian as a beneficiary on an account, that the guardian will be obligated to use that money for the child’s use once they become legal guardian. This is not true. If the named beneficiary is left as a beneficiary on an account, then it is legally their money, not the child’s. You can leave the child as the beneficiary, and once the legal guardian is approved by the Court, they can access the account for the child’s use.

That being said, it is great to have beneficiaries on accounts, because it makes a lot of sense and allows the executor or trustee to focus on fewer assets to disburse. However, always keep in mind the distinction between beneficiary in a Will or Trust, and a beneficiary on an account.

If you do not have a Will or Trust set up, please contact our office today to set up an appointment!

Why Does My Will Need To Be Probated?

A lot of clients seem to be under the misconception that, if your will is valid, self-explanatory, and clear as to your intent, then it does not need to be probated. However, your Last Will and Testament is not effective until it goes through probate. It does not matter if it is clear and unambiguous! The deceased persons’ assets and liabilities cannot legally pass to the beneficiaries named in the will until after the Probate Court enters an Order that shows that the assets pass to the beneficiaries.

For example,many people that own a home in their name and may leave it to their children in a will. During the life of the owner, in order to be able to sell the home, they would need to sign a deed over to the new buyer in the closing process. After they pass away, a buyer will not accept a signed deed from the deceased children since there has been no legal determination or court order granting them the legal right to sign over the deed, since it is still in the deceased person’s name. It will not work to simply provide the buyer  with a copy of the will, since it does not solve ownership problem and they cannot be assured that the will is valid until the probate court has reviewed it. Therefore, only until an Oklahoma Probate Court has reviewed and decreed the will to be a valid Last Will and Testament of the deceased, and that the will legally passes the home onto the children, the children have no legal authority to sign a deed, sell the house, or have any ownership to the house. As a result, there is no will that is effective until it has been probated and through the probate process.

Many people are flustered and upset that their estate has to go through probate when they have a valid will, but they can solve this problem by establishing and funding a Revocable Living Trust. Let Skillern Law Firm help you in this process by calling the law office today.

Simple Ways to Avoid Probate

Most people know that Revocable Living Trusts are a great way to avoid probate. And if you don’t, please read a previous blog about probate and how a trust can help here. On today’s blog post, Skillern Law Firm is going to discuss other ways to avoid probate if you already have a trust, or simple solutions if you have a small estate.

First of all, we’ll say it one more time for emphasis – Get A Revocable Living Trust. I know that you’ve already been told this by our attorneys, and possibly other attorneys, but it is a very simple way to avoid probate (and probate is generally much more expensive than a trust!). If you do not have a trust, and you own anything when you die, your estate will be probated, and your estate will have to hire a probate attorney. This includes if you die with a will or not. A will is a good idea if you absolutely cannot afford a trust, since it helps move the probate process move faster. However, if you want your family to avoid probate altogether, you need to set up a living trust.

After you get a trust, you will need to fund it. The offices of Skillern Law Firm help you fund your trust, so that you are not wasting your money.  A trust is only good if it is funded, otherwise a trust is just a pile of documents without any meaning. However, if you do not follow our instructions, or you get a trust done from an attorney who does not fund his/her client’s trust, then you will need to find your trust. Funding includes transferring all your real and personal property into the trust’s estate, or “corpus.” Essentially, it is making sure your bank accounts, financial accounts, home and land, and any other property is transferred into the trust. You can opt to transfer your property into the trust on your own, but our clients often rely on the services of our attorneys to be confident that all probate-able property is properly titled in the name of your trust.

Next, you will need to make sure that all your retirement accounts, life insurance, annuities, and any other assets have beneficiaries named. This can help you whether you have a trust or not. One thing to make sure, if you do not have a trust, is that you do not have your estate as your beneficiary. If you place your estate as your beneficiary, without a trust, that property will need to be probated, and if you just named  a person, the money would have passed outside of probate. Another thing to make sure that you have multiple contingent beneficiaries in case one of your beneficiaries dies before you do, and you forget to change it or are incapable of changing it. If you have your estate, no beneficiary, or a deceased beneficiary on any of these accounts, then your heirs will have to go through probate court (and all that’s involved with that) to gain access to these assets. One more small note is to make sure none of your beneficiaries are under the age of eighteen. Otherwise, the bank or institution will hold that account until they reach this age, or you will have to get a conservatorship over the minor to gain access to those funds before they reach 18.

Another thing you can do is to make sure nothing is payable to your “Estate,” as referenced above. Many families have to go through probate because the nursing home refused to write a refund check (after death of a resident) to anyone other than the “Estate of Resident.” Like said above, this would require this refund check get probated through the courts to get received by the heirs. To avoid probate, make sure the nursing or assisted living facility will make any refund check payable to a surviving heir or your trust account, if you have one.

One really important step that clients often forget is that they need to put the later acquired property into their trust. If you purchase a home or other asset later in life, you have to put it in the name of your trust. Or if you open a new bank account, open the account in the name of your trust . It’s steps like these that will make your estate get probated, even if you have a trust.

Some of these steps above can be done if you have a trust or not. For example, putting beneficiaries on accounts can be done by someone who does not have a trust, and can make their probate process move much quicker. Getting a will is also a good idea if you cannot afford a trust, since it will also speed up the probate process. Contact the offices of Skillern Law Firm to discuss your estate planning needs today.

What is Probate and Why Should I Avoid It?

When Skillern Law Firm P.L.L.C. discusses the benefits of a will or a trust, inevitably probate comes up. We advise clients to avoid probate, since it is costly and a complicated process that can easily be avoided by a trust. Still, many clients ask us: “What is probate”? Our answer is: it depends. Basically, probate is simply a court proceeding(s) in which a court administers and concludes the legal and financial matters of the deceased. Essentially, probate court is when a court distributes, decides, and delivers the deceased person’s goods to his heirs and beneficiaries.

The Probate Court is a neutral forum where beneficiaries, heirs, and creditors are able to settle disputes or other issues related to the deceased person’s estate. Probate is simple another legal court where things get settled. It is similar to a civil lawsuit or bankruptcy court in that it is the way the United States legal system has found to deal with a legal problem. In the case of probate court, it is a way to distributing estates.

One reason most of our clients try to avoid probate is the cost. Normally, the cost of probate ranges from two to ten percent of the total estate. There are many factors that go into how much probate costs, including the size and nature of the estate, how many beneficiaries or heirs the deceased had, how many creditors, etc. When there are more assets and debts, the probate process tends to cost more since it is longer to distribute. If you really think about it, it makes sense. The more creditors there are, the more time and expense it takes to sort out which creditor or beneficiary has priority and how they should be paid. Sometimes, estates simply cannot pay all of their debts and become insolvent.

Time is also an issue when it comes to probate. The probate process can take anywhere from six months to a year to distribute the estate. Complex estates can take even longer. Did you know that New York probated Marilyn Monroe’s estate from 1962 until 2001? That is 39 years! While that is an extreme, time is still an issue for most estates. In Oklahoma, there are certain deadlines that must be met. Beneficiaries and creditors are required to be notified of their rights and they have a certain amount of time in which they can respond. Sometimes, fighting between siblings, grandchildren, or other beneficiaries can cause the estate to be open for years.

Another reason many couples and families chose to get a trust done to avoid probate is that the proceedings in probate are public. Anyone can watch and read what happens to the estate. Trust distribution is private, and only a small memorandum of trust needs to be recorded with minimal information. Most people find that the privacy of a trust instead of probate is a big selling factor.

That, essentially, is what probate is and why most people tend to avoid it. A trust is a legal instrument that can avoid probate, and a qualified estate planning attorney, including those at Skillern Law Firm, can help you get one in place. A will does not avoid probate, but it can help make the process go quicker by letting the court know what your intention with your estate is. Please contact the office today for a free consultation.

Resolutions

It is a new year, and everyone is listing things that they want to accomplish in 2012.

You might be interested in a new healthy eating regimen, or workout schedule, but why not add updating your estate planning to that list? Twenty-twelve is the year of the estate plan!

If you haven’t established a way to distribute your estate after your death, or you need a power of attorney, we can help you accomplish your New Year’s Resolution!

Stepchildren, adopted children, and half-blood relatives: No Child Left Behind.

Oklahoma has some unusual laws when it comes to step-children and half-blood relatives, especially in the intestate inheritance laws. Just as a reminder, intestate merely means that the person who passed away died without a will, and so the state’s inheritance laws are in effect. Oklahoma’s statute, Okla. Stat. tit. 84, § 213 (1994), is the state’s Intestacy law/code, if you are interested in reading the statute yourself.

Stepchildren are not able to inherit through the intestate system in Oklahoma. Only blood children are able to take from the estate. It’s as simple as that. If you want your stepchildren to inherit part of your estate, you need to get estate planning in place (a will is a good place to start), so that they are able to. Otherwise, your blood children, spouse, and other blood relatives will take from the estate.

In Oklahoma, half-blood children have their own special rules, which can be viewed as harsh. Half-blood children/relatives are not be able to inherit “ancestral property,” but are able to inherit all other property and assets. “Ancestral property” is property that the decedent (half relative who passed away) acquired by gift, devise, or inheritance. In other words, half-blood children or relations will not be able to receive any intestate property that was given to the decedent by an ancestor who is not also an ancestor of the half-blood relation. Okla. Stat. tit. 84, §222. However, half-blood relatives are able to inherit ancestral property when full-blood relatives are more remotely decended. See In Re Estate of Robbs. Therefore, a half-blood would not be able to inherit ancestral property if there is whole-blood kindred of the same or closer degree of relative. For example, if A & B were full blood relatives, and B & C were half-blood relatives, A would receive the B’s entire ancestral estate, leaving C to receive 1/2 or whatever portion he was entitled to without ancestral property included. Half-blood intestate inheritance can be a little confusing, and is a major source of probate litigation in Oklahoma. If you have any questions, feel free to call us today for any explanation of the law and to see how you can avoid this problem with a will.

Adopted children in Oklahoma have an advantage not available in many states to them: double inheritance. In Oklahoma, an adopted child can inherit from and through his/her natural parents as well as their adopted parents. The converse is not available, however. The adopted parents cannot inherit through the child they gave up for adoption. Adopted children, therefore, will be able to inherit through intestacy just as if the child was a maternal or paternal child.

Skillern Law Firm can help craft all different types of wills, trusts, and other estate planning documents that allow your children (of all sorts) inherit your property without worrying about Oklahoma Intestate Law. Please call us today for more information.

%d bloggers like this: