The loss of a loved one is a very difficult time for all involved. Probate only compounds the stress. As a result, long-held feelings of disappointment, distrust and resentment between family members may surface. In every probate, my goal is to efficiently administer the estate while following Oklahoma probate laws. At the same time, I seek to promote and maintain family harmony. As a probate attorney, I typically represent the executor or personal representative of the estate. Here are a few things I recommend to my clients when it comes to dealing with family.

The first thing I tell my clients might seem simple: they should let family members know that a probate is happening. Let’s face it: almost nobody likes getting letters from an attorney. If family members discover the probate only upon receiving notice of a hearing in the mail, they will likely be taken aback. Moreover, the personal representative should explain to the family why a probate is necessary (for instance, “We cannot legally sell mom’s house unless we probate her estate in court”). This reassures everyone that the personal representative is not needlessly spending money and delaying inheritances.

Next, I advise my clients to consult with other family members about the major decisions to be made, namely selling the deceased’s residence. Although Oklahoma probate laws authorize the personal representative to make many decisions on his or her own, it is usually a good idea to involve others in the process if at all possible.

Lastly, and I cannot stress this enough to my probate clients: be transparent. Go above and beyond the basic notice requirements of Oklahoma probate law. I have seen many cases where the personal representative did everything legally and had nothing to hide, yet found themselves in a contested probate because the other family members were not kept apprised of the case.

Family is one of the most important things in life. Unfortunately, whenever a loved one passes away, probate is sometimes a necessary evil. The last thing you want is to jeopardize your relationships with those whom you need most at a difficult time. So, remember: disclosure can get you a long way in probate.

Revocable living trusts are a wonderful estate planning tool. A fully funded revocable living trust avoids probate, thus enhancing privacy as well as saving your loved ones significant legal fees and court costs. Importantly, revocable living trusts can also offer asset protection to beneficiaries. Here’s how.

If someone receives money outright under a will or payable-on-death designation, that money is potentially subject to their creditors, the holders of lawsuit judgments against them and divorcing spouses. By contrast, one can structure a revocable living trust so that, upon the death of the trust’s creator, the money and property continue to be held in trust for the named beneficiaries. There is flexibility in terms of how much access beneficiaries have to the trust. However, for the greatest asset protection, the trust should be managed by a disinterested trustee (i.e. not related to the beneficiaries or employed by them) who makes distributions to the beneficiaries in his or her sole discretion (or perhaps for very specific purposes such health and education).

Life is unpredictable. You have spent a lifetime working hard to provide for your family. Give yourself the peace of mind in knowing that your estate will be protected with a revocable living trust long after you are gone.

In grieving the loss of a loved one, many are surprised to learn that wrapping up the deceased’s affairs is not as simple as they had assumed. If the deceased owned property in his or her name alone, a probate is necessary to pass the property legally to the heirs and beneficiaries under any last will and testatment. Oftentimes, disputes take place within the family over who should serve as personal representative, i.e. the individual responsible for managing the estate through the probate court. The question then becomes whether to file a formal objection with the probate court. Here a few key considerations:

1. Is there a Will? If the deceased had a last will and testament, the probate court gives preference to the individual named therein as personal representative.  Unless the contestant can show good cause, the court is going to follow the deceased’s wishes regarding who should serve as personal representative of the estate.
2. Are there grounds for an objection? Merely distrusting or not liking the proposed personal representative is insufficient to block their appointment. The contestant must show good cause why the court should not appoint the personal representative named in the will or the individual with priority under the law to serve as personal representative. What is good cause? Under Oklahoma law, no one who is under the age of majority or who has been convicted of an infamous crime can serve as personal representative of a probate estate. Other grounds for objecting to the appointment of a personal representative include want of understanding, lack of integrity and drunkenness.
3. Is objecting worth the time and cost? Even simple probate matters can take anywhere from 4 to 6 months. A contested probate lasts much, much longer. The result is significant attorneys’ fees and a delay in the heirs and beneficiaries receiving their inheritances.

The probate process is hard enough. Objecting to appointment of the personal representative only makes matters worse. However, in some instances, that is the only option to protect the assets of the estate and carry out the deceased’s wishes. If you are an heir or beneficiary of an estate, then the law provides that you are entitled to notice of the probate proceedings. In the event you feel something is wrong, consult with a knowledgeable Oklahoma probate attorney about the correct course of action.

In a probate case, one of the primary responsibilities of the personal representative is to collect, maintain and manage the assets of the estate. This includes filing with the probate court an inventory of the estate’s assets. Here are three things every personal representative should know about preparing the inventory in a probate case:

1. What is probate property? Not all assets of the deceased are subject to jurisdiction of the probate court. Only assets owned in the deceased’s name alone go through probate. Consequently, joint tenancy property, bank accounts with payable-on-death beneficiaries designated and property owned by a revocable living trust need not be included in the inventory filed with the probate court.
2. An inventory is not always required. The Oklahoma probate laws allow the court to waive the filing of an inventory. The personal representative can request an order waiving the filing of an inventory in either the initial petition or a subsequent application.
3. Valuation is important. In addition to listing the assets of the probate estate, the personal representative must assign values to such assets. While the personal representative can simply state his or her opinion as to the value of the estate’s assets, it often makes sense to hire professional appraisers, particularly for the deceased’s primary residence and any oil and gas rights.

As with other probate issues, a personal representative would be best served by retaining a knowledgeable attorney. Doing so can ensure that the personal representative fulfills their statutory duties, avoids legal liability and minimizes disputes among family members.

You’ve found your soulmate, your one and only. The wedding went great. The honeymoon was pure bliss. What now? For newly married couples, there is much to ponder. As you settle into your new life together, you might want to think about estate planning. Here are three reasons why:

1. The In-Laws: Ah, the in-laws. Cue the jokes (and yes, the exasperation). Love ’em or hate ’em, in-laws are part of your life. And without proper estate planning, they might become more than just the people who cause you to drink copious amounts of eggnog on Christmas Eve. Did you know that under Oklahoma law, in the event someone dies without a last will and testament the surviving spouse does not receive the entire estate? In fact, depending on the circumstances, the deceased’s parents could be entitled to a substantial portion of the estate. Some would find such an outcome acceptable. For others, however, this is a less than thrilling prospect. That’s why you should plan ahead and make your wishes known in a last will and testament or a living trust.
2. End-of-Life Decisions: People of a certain age remember Terry Schiavo. At just 27 years of age, this young Florida woman went into severe cardiac arrest. The resulting brain damage left her in a permanent vegetative state in which she was technically alive but unable to communicate and with no thought or awareness. Ms. Schiavo’s husband sought to remove his wife from life support, claiming that is what she told him to do if such a situation ever occurred. Ms. Schiavo’s parents, on the other hand, fought to keep her alive, arguing their daughter was still conscious. The ensuing legal battled dragged on, during which time Ms. Schiavo remained in a coma. Finally, after nearly 15 years, doctors disconnected Ms. Schiavo’s feeding tube. This horrible situation garnered national headlines, dividing the country. In response, Oklahoma and many other states updated their laws concerning living wills. You can now execute an Advance Directive for Health Care specifying your wishes regarding end-of-life treatment. If you are unable to give informed consent, doctors must follow your Advance Directive. Whatever your personal beliefs about artificially extending life, it is important to have an Advance Directive. You will spare your wife or husband and other family members a significant burden and ensure that your dignity is maintained.
3. Your Kids: Nobody wants to think about it, but what happens if both you and your spouse are gone and your children are still minors? Who will raise them? In the absence of proper estate planning, a court will settle the issue. A better route is to name guardians for your minor children in a last will and testament.

So, there you go: three reasons for newlyweds to engage in estate planning. While you are just starting out your life together

During estate planning consultations, people often ask me: “What will happen to my pets?” It is a very good question. For many of us, our dogs, cats and other animals are an integral part of the family. In the past, one had to rely on informal promises or non-binding language in a last will and testament or letter. Fortunately, in 2010, the Oklahoma legislature created another option: pet trusts.

Today, Oklahoma law recognizes the validity of a trust established for the care of a designated animal. Like a revocable living trust, one can name a trustee to manage the pet trust. The trustee is required to provide care for the animal in accordance with the trust’s terms. What’s more, Oklahoma law permits the appointment of a “trust enforcer”, a named individual who ensures that the trustee carries out his or her duties. Finally, one lists a remainder beneficiary for any assets left over after caring for the animal.

There are many things to think about in planning your estate. But do not forget your furry friends. While Fido may not realize he has his own trust, you will have peace of mind knowing he will be taken care of should something happen to you.

A loved one has named you as personal representative in their last will and testament. Now what? In the immediate future, the answer is…nothing. That’s right: a last will and testament determines what happens to a person’s estate AFTER they pass away. While that person is alive and has capacity, he or she continues to manage their estate in the same manner as before execution of the last will and testament. It is only post-death when the duties of the personal representative begin.

The duties of a personal representative consist of, among other things, identifying the assets of the deceased which are subject to probate, notifying family members and creditors, ensuring the filing of all appropriate tax returns and complying with orders of the probate court. Upon the death of the deceased, the first thing that the personal representative should do is locate the original last will and testament of the deceased. Next, the personal representative should secure the deceased’s home and belongings (which should NOT be distributed at this point). Once this has been done, it is prudent for the personal representative to retain counsel (while a personal representative may act as his or her own lawyer in probate, I strongly discourage it). An experienced probate attorney will be able to counsel the personal representative on the probate process and make court appearances on the personal representative’s behalf.

Probate is a four-letter word to many. Granted, probate is often time-consuming and expensive. However, by knowing the first steps and employing a knowledgeable probate attorney, the personal representative can minimize delays and protect themselves from potential legal liability for improper handling of the deceased’s estate.

Clients sometimes ask me, “Aren’t living trusts just for rich people?” Granted, a living trust is the foundation of many wealthy families’ estate plans. However, living trusts have numerous benefits — whether your net worth is $500,000 or $20 million. Here are three reasons why:

1. Probate Avoidance – If a deceased person left property and assets titled in his or her name alone, then probate is necessary to transfer such property and assets to the deceased’s heirs or beneficiaries under a will. Probate is costly and time-consuming. Furthermore, details of the deceased’s estate and who’s receiving it must be filed with the probate court and thus becomes public knowledge. By establishing a fully-funded living trust, one can avoid probate.
2. Income and Capital Gains Tax Planning – While Oklahoma eliminated its estate tax in 2010 and the federal estate tax exemption is currently $5.45 million, there are other tax issues to consider. Retirement accounts potentially carry significant income tax consequences for the beneficiaries, which one can minimize utilizing proper planning through a living trust. In addition, a living trust may help limit capital gains taxes to your heirs and beneficiaries on the sale of property after you pass away.
3. Control of Distributions – If any of your beneficiaries are in an unstable marriage, have creditor problems or work in profession with a high risk for malpractice lawsuits such as doctors and lawyers, it probably does not make sense to leave them money outright. With a living trust, one can instruct their trustee to make distributions to beneficiaries in the trustee’s sole discretion or only for certain purposes like health care or education. This not only provides a level of asset protection but also ensures that your hard-earned money is spent how you would have wished it to be spent.

I cannot emphasize enough the importance of estate planning, particularly a Living Trust – which can save your loved ones significant time and expense, maintain financial privacy, allow you to control how and when beneficiaries get their inheritance and protect your assets from creditors. However, the fact remains: most people do not have a Living Trust. As a result, their estate ends up in probate court – where there is a potential for disputes among family members, especially those who face the prospect of receiving a lesser share of the deceased’s estate. Enter the Family Settlement Agreement.

A Family Settlement Agreement is a legal agreement between the deceased’s heirs regarding distribution of the deceased’s estate. Attorneys for the Personal Representative in a probate case frequently utilize the Family Settlement Agreement whenever someone has challenged the deceased’s Last Will and Testament. In exchange for payment of money and/or property, the challenger of the Last Will and Testament drops their claim. The Family Settlement Agreement is also a great tool whenever the deceased died intestate, meaning the deceased did not have a Last Will and Testament. If you pass away without a Last Will and Testament, then the laws of the State of Oklahoma dictate how your estate is to be divided; often, this is not in accordance with your wishes. Recognizing this, the heirs can sign a Family Settlement Agreement to get around Oklahoma’s laws of intestate succession. A common example would be a situation in which the deceased wanted everything to go to their husband or wife, not the kids, but failed to make a will. The kids could enter into a Family Settlement Agreement with their mom or dad.

No one wants to see family members suing each other over an estate. After all, a primary goal of mine in doing estate planning for clients is to promote family harmony. Nevertheless, in the event disagreements do arise, a Family Settlement Agreement could be the solution.

In addition to navigating the court system, marshaling the deceased’s assets and dealing with creditors, the personal representative must contend with various tax issues in probate. While Oklahoma abolished its estate tax beginning in 2010 and most people are no longer subject to federal estate taxes, income and capital gains taxes still come into play.

The personal representative is responsible for filing the deceased’s final state and Federal personal income tax returns with the Oklahoma Tax Commission and the Internal Revenue Service, respectively. What’s more, the estate itself might be liable for income taxes if it generates income (from rents, profits, dividends and interest) in excess of $600 while the probate case is open. In such event, the personal representative is required to file Form 1041 with the Internal Revenue Service. The deceased’s probate estate may also incur capital gains taxes assuming certain property sales. Distributions from the probate estate to the deceased’s heirs and to beneficiaries under a last will and testament are generally taxed to and reported by the heirs and beneficiaries on the heirs’ and beneficiaries’ tax returns.

Ensuring that all taxes are properly paid and reported is paramount for the personal representative in a probate case. Along with an attorney, it is prudent for the personal representative to consult an accountant (preferably, the deceased’s accountant).