Sarah Stewart Legal Group, PLLC

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Month: November 2016

What If I Don’t Want My Family to Get Anything When I Die?

By: Sarah Stewart Legal Group

Sometimes families don’t get along.  Sometimes there are people you just don’t like who are your family members.  Since we don’t get to pick our family, it’s not all that uncommon. So, what do you do when you don’t want your family to inherit your hard-earned money and assets?

Lately, more and more people are asking how to disinherit those family members they don’t like very much.  The answer:  make an estate plan.

If you do not have a Will or Trust in place, your assets will pass according to Oklahoma law.  That law may include giving assets to family members you don’t want to get them. Who wants the government deciding who gets their assets when they die?

So, in Oklahoma, how can you disinherit family in your estate plan?

(1) Children

If you want to disinherit your children in Oklahoma, you have to make it clear in your estate plan that disinheritance is your intention.  You will usually state your family history (marriage, children, etc) and if you are looking to disinherit a child, you will want to state that directly.

(2) Spouse

Under Oklahoma law, the spouse has the right to take a marital share of the property upon the other spouse’s death.  So, to disinherit your spouse in any way, your spouse must agree to the disinheritance.  Keep in mind that your spouse will still have the right to the marital property as long as he or she is living, and can always ask for the marital share of property in Court.  If the spouse has agreed to the disinheritance, it is less likely he or she will succeed, but it is still possible the Court would rule in his or her favor.

(3) Other Family

If you have a Will or Trust in place, no other family members are automatically entitled to inherit from you.  If you do not have a Will or Trust in place, your property will pass under the Oklahoma laws of intestacy.  Generally speaking, these laws allow those who are your closest relatives to split your assets.

For example, if you die with a spouse, but no children, your spouse would split your assets with your parents and/or siblings. If you do not have a spouse and children, your parents are first in line to inherit your assets, then your siblings, then grandparents, aunts, uncles, etc.

The only way to truly control who receives assets from your estate when you die is to plan for your death.  There is a common myth that if we have a Will or Trust, we will die.  The truth is, you will die anyway, so you might as well have a plan for the people you care most about.

How to Probate an Estate in Oklahoma

By: Sarah Stewart Legal Group

As the old adage goes, there are few things in life that are certain.  Mostly just death and taxes. So, what do you do in Oklahoma when a loved one dies?

(1) Plan the Funeral. Go to the Funeral. Grieve.

The benefit of the probate process in Oklahoma is that there is no expiration date on when you have to begin.  Take your time to get through the hardest part of your grieving process. When you get your head above water, start focusing on taking care of the legal matters of the estate.

(2) Determine what, if anything, was owned jointly with someone else.

In Oklahoma, people can own many assets jointly with another person.  These assets can include real estate, vehicles, and bank accounts.  Though there can be exceptions, it is safe to assume items owned jointly will pass to the surviving owner, outside of the Oklahoma probate process. If your situation is different, an attorney can let you know.

(3) Find out if there are living beneficiaries listed.

Many assets will have beneficiaries listed, such as stocks, bonds, insurance, and retirement accounts.  As long as the beneficiary has been kept up to date and the beneficiary listed is still alive, the assets with listed beneficiaries will go to those named, outside of the Oklahoma probate process.

If there is no listed beneficiary, or the beneficiaries died before the deceased, you will have to probate the asset.

(4) Calculate the value of assets not owned jointly, with named beneficiaries, or owned by a Trust.

You need to have a rough idea of the value of any property not owned jointly, with named beneficiaries, or owned through a Trust.  If these assets include real estate, or are over $20,000, you will need to file a probate in the County where the property is held, or if the deceased is an Oklahoma resident, where the deceased died. If the property is worth less than $20,000 and not real estate, you can usually use an Affidavit of Tangible Personal Property, signed by all heirs, to get the company holding the funds to release them to you.

(5) We have to go through probate.  Now what?

There are a few different options for probate in the State of Oklahoma.  There are shortened versions for estates less than $200,000, estates where decedents passed away more than 5 years ago, and estates where someone died and had their assets probated in another state, but they own property in Oklahoma.  The value of the estate includes all of the assets that have to go through probate, even real estate.

Depending on your situation, you may qualify for one of these fast-track options.  They can be faster than other probates, and cost less. Regardless of your probate process, you will need the names and addresses of all the closest surviving relatives and the names and addresses of all creditors. You will need to determine if there is a Will.  You will also need to decide who will manage the assets of the estate and make sure the assets are distributed properly.

Then, you will have to prepare your documents and have a hearing with the Judge for the County where you are filing.  Though you can file on your own, without an attorney, keep in mind probate is a very complex, time-sensitive process.

It is worth it to at least speak with a few attorneys and see what they have to offer.  We can usually provide you peace of mind and take the worry of the process off your shoulders.

What Happens When a Child Inherits Assets in Oklahoma?

By:  Sarah Stewart Legal Group

Sadly, not many parents have thought about what happens to their children when they pass away.  Understandably, most of us don’t like to think about death and think we have all the time in the world to plan.  We can’t imagine a tragedy that takes us from our children before they’re adults.  But, unfortunately, it can, and does happen. We’re only a freak accident away from our own mortality.

So, if you’re a parent, it is important that you prepare for the worst and hope for the best.  If you do not have an estate plan in place, your assets will pass by what is called the law of “intestacy.”  Intestacy is a law where the state determines who gets your assets and how they are split. Under this law, the spouse gets a portion, and the children get a portion and so on.

So, what happens to the children’s portion if they are under the age of 18?

Children Inherit Outright

If the children are receiving assets outright, the other parent, or a Guardian appointed by the Court will care for the property. Though the Court will have some oversight of the assets, Guardians will manage the property and can receive money for costs they have for their duties.  Also, the Court oversight itself can be costly.  These costs usually come from the child’s assets.

Though the assets will pass to the child when he or she turns 18, depending on his or her age, many assets can be eaten up by court and guardianship costs alone before the child receives the assets. When the 18 year old receives the assets, there is no longer oversight of how they are used. You, and the Guardian, have no say over their actions.

For additional oversight on the assets and a chance to ensure your children use the funds properly, families should consider starting a trust.

Children Inherit Through a Trust

The best way to protect your children’s inheritance is with a trust.  In the trust, you will name a Trustee to manage the children’s assets until they reach an age you choose.    Trustees are required to act in the best interests of the children.

This is an especially good option for blended families because the parent from the previous relationship will not have full management of the assets, the Trustee will. You can be as broad or detailed as you would like in restricting the assets.  You can give them all to the child at a certain age, or require the funds only be used for certain reasons.  You have total flexibility.

You will also name who you would like to act as Guardian and care for your children if you and the other parent are gone. This lessens the chances your family members will fight over your child in Court, or your child will wind up in custody with the Oklahoma Department of Human Services if both parents die.

As parents, it is our duty to protect our children and their interests.  Take some time today to sit down and decide what that looks like for you and your family.

Requirements in Oklahoma to Get Medicaid Nursing Facility Assistance

By:  Sarah Stewart Legal Group

In our line of work, we run across a lot of families searching for ways to help fund the care of their elderly loved ones.  Most of these elderly individuals are at a point where they aren’t able to take care of themselves anymore.  Many of the families were lucky, and have a Durable Power of Attorney in place; or weren’t so lucky, and had to file for Guardianship. Now, they need to figure out how to pay for care for the elderly loved one.

In Oklahoma, Medicaid is a government-funded option to help pay for nursing facility care.  To qualify for nursing facility care, an unmarried individual must meet the following criteria:

(1) Income must be less than $2,199 per month. There is an exception to this amount with a certain, special, trust in place, but even then, income cannot exceed $4,400.

(2) Assets must be less than or equal to $2,000.

Assets include all checking accounts, savings accounts, net cash surrender of life insurance policies over $1,500, burial funds over $1,500, value of all but one automobile, stocks, bonds, debts owed to the applicant, annuities, retirement accounts accessible by the applicant, and real estate owned by the applicant.

Home property (the home and property where the home is located) may be excluded from the asset amount if the elderly loved one intends to return to the home within 12 months of receiving care. After the 12 month period, the house must be sold to remain eligible for Medicaid.

If the elderly loved one does not intend to return home, the home will be counted as an asset and will likely need to be sold for the actual value of the home.  Any sales for less than the true value are considered a gift.  The full value of the home will be counted against the elderly loved one.

Any transfers of property that are not purchases for the value of the asset will be considered gifts.  The full value of the asset will be counted against the elderly loved one.  So, this means, don’t go around giving all of the elderly loved one’s stuff to family members.  This is a very bad idea.

Assets can be “spent down” on items that will benefit the applicant. They do not have to go solely to the facility.  For instance, someone with mobility issues may purchase new medical equipment like a cane or wheelchair, or a wheelchair accessible van.  They could even buy a nice, bigger television for their room.  However, these items must be reasonably linked to the applicant’s needs.  So, something like a high-end watch, jewelry, or furs will likely not be acceptable uses of the money.  Items cannot be purchased for the use of family members.

For married couples, the rules change slightly.  The assets will be considered 1/2 the spouse of the elderly loved one’s and 1/2 owned by the elderly loved one.  So, only 1/2 will have to be spent down.  Those spend downs can also benefit the spouse.  And, the rules on the housing exemption change to accommodate the spouse.  Otherwise, the basic principals are the same.

Medicaid is not the ideal way to fund an elderly loved one’s care.   Your options are limited as to where the loved one can live and how the loved one can live.  Though many people believe it is beneficial to rely on Medicaid, the reality is there are far better options for those who have the money to pay for their care.  Medicaid should be a last resort.  But, if you need Medicaid, be sure to understand the eligibility requirements.

Getting a Driver’s License for a Teen Driver in Oklahoma

By: Sarah Stewart Legal Group

Today’s post is a little unusual for us.  Prompted by the change in the licensing requirements in recent years, and the number of people we know who will soon have (gasp!) teen drivers, we did a little research with the Oklahoma Department of Public Safety (DPS) to see what we could find out about Oklahoma’s teen driver’s licensing procedures. These procedures apply to those under the age of 18.

Learner’s Permit

First, if your teen is 15 1/2, he or she can apply for a Learner’s Permit.  Those with a Learner’s Permit can drive with a licensed driver over the age of 21 in the car. The teen must hold the Learner’s Permit for 6 months before he or she can graduate to the next level of licensing. To get the permit, the teen must first pass a vision and written exam with DPS. To take their exams, teens will need the following:

(1) 2 forms of government issued ID (birth certificate, social security card, passport, etc.)

(2) Social Security number

(3) Documents showing the teen meets current enrollment or attendance requirements for the school he or she is enrolled in (there are alternative documents listed on www.ok.gov/dps)

(4) Proof of passing the 8th grade reading test (there are alternative documents listed on www.ok.gov/dps)

(5) The teen’s parent or guardian

(6) If the teen is under the age of 16, proof of completion of or enrollment in a driver’s education course or the form for parent instructed driver’s education

(7) If the teen has had a name change, documents showing this name change

Intermediate Licensing

For those who have held their Learner’s Permit for at least 6 months, the next level of licensing is the Intermediate license.  This license allows teens to drive between the hours of 5 a.m. and 10 p.m. only (unless for school, church, or work) without supervision, or at anytime with a licensed driver over the age of 21.  Drivers are limited to 1 passenger other than those living in the household with them, or licensed drivers over the age of 21.

To get this license, the teen must have 50 hours drive time, 10 during the night, with a driver who has been licensed for at least 2 years and is over the age of 21.  The teen must not have any traffic citations from the last 6 months (while holding the Learner’s Permit), and must pass a physical driving test. Once the teen has held the Intermediate License for 6 months, he or she can receive the unrestricted license.

Unrestricted License

The teen must have held an Intermediate License for 6 months to qualify for the Unrestricted License.  The teen cannot get any traffic citations in those 6 months to get his or her Unrestricted License. As the name suggests, an Unrestricted License allows the teen driver to drive without restriction, other than our traffic laws, of course.

Having a teen driver in the family is a scary experience.  I hope our tutorial can make the process a little easier for you, your teen, and the rest of your family.  Please drive safely!

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