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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.
One of the most prominent cases of Living Wills or Advance Directives was the Terri Schaivo case in the early 2000s. It is prominent for Living Wills, in that Terri Schaivo did not have one, and her situation caused a legal battle that lasted years and costed thousands of dollars for her family.
In this case, there was a emotional and nationally-known legal battle in Florida over whether a woman, Terri Schaivo, would be kept alive through treatment of artificial food and water, or would pass away from the disuse of the treatment. If you remember, her husband, who was still legally married to her but estranged from her family, wanted her to pass away, but her family wanted her to remain alive through the artificial means. Since Terri Schaivo did not have a Living Will that told her family and husband what her wishes were, her family and spouse went through ten years of litigation, one-hundred thousand ($100,000) of dollars in legal fees, and endless pain and frustration for everyone involved. A Florida court ultimately decided Ms. Schaivo should be allowed to pass away.
Terri Schaivo and her family could have avoided the entire situation if she had a Living Will or Advance Directive in place. Our attorney highly recommends this document since it takes the heart-breaking and agonizing decision away from your family members, and allows you to get your end-of-life wishes. In Oklahoma, there are three situations that the state allows you to make your end-of-life wishes known. See our previous post about those specific situations here. This document is inexpensive, easy to execute, and could save you and your family money, emotional stress, and it grants you all peace of mind.
If you already have a Living Will in place, see if you need to update it by reading a previous post here.
Call the office of The Skillern Law Firm, PLLC today to schedule a meeting to discuss this document as well as other your other estate planning needs today!
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.
It is important to periodically review your will and estate plan. Life changes often require that you reassess your estate plan.
Most parents are concerned about how their children will be cared for in the event that one or both parents suffer an accident or are incapacitated. It is important to name a guardian for your minor children in your will. Also, parents should consider a trust if they wish to stagger financial inheritance distributions for their children, instead of having the kids receive the whole of the estate at the age of majority.
In Oklahoma, a divorce makes any trust that you had with a former spouse void. You should also consider any power of attorney documents or health power of attorney documents so that the contents reflect your current intent.
You may consider signing a ante-nuptial agreement in the event of a remarriage so as to legally separate your estates during marriage. A trust may be helpful in addressing any inheritance issues to children that a second marriage can create.
As people age, their assets tend to increase. Make sure that your money is working for you by talking to a financial planner. In addition, you should make sure that any assets that you acquire are included in any will or trust that you have already created.
Death of Spouse
When a spouse dies, you probably will need to get new health care and financial power of attorney documents.
The offices of Skillern Law can assist you in making changes to any and all of your estate planning needs. Call our office today!
The Supreme Court of the United States’ (SCOTUS) October session started yesterday, October 3rd. I was looking forward to this term, since there are a lot of interesting and important cases coming up on the Court’s docket. There are 48 cases on the Court’s docket thus far. There are, however, plenty of important cases being petitioned to be taken by the court. One of the most newsworthy is the ObamaCare lawsuits that are petitioning to be heard in front of the SCOTUS. So far, the case has not said whether or not it would be willing to take that case.
I have to say, I love listening to oral arguments. Last year, the Supreme Court started posting their oral arguments of the week each Friday on their website. I would suggest you check them out, if you are so interested, here: http://www.supremecourt.gov. This was a big deal for the Supreme Court. The (mostly conservative) Justices have always disliked media in courtrooms, even disallowing cameras in lower courts (re: the Prop 8 California gay-marriage case). So, when the Court started releasing oral arguments the week they were argued, I was estatic! In the past, they have released important cases’ oral arguments the day they were released, but the rest of the lesser-known cases’ arguments were not released until after the term was up. It’s nice to be able to listen to them the week they are argued.
Anyways, for more information on the Court’s new term, read updates, and get analysis on the Court’s case, check out my favorite Supreme Court blog, http://www.scotusblog.com.
Also, if you are interested to read oral arguments from past Supreme Court terms, check out http://www.oyez.org.
Check out other posts at Tulsa Estate Planning Blog!