Sarah Stewart Legal Group, PLLC

Caring, Honest, Solutions to Your Legal Needs at Affordable Rates.

Month: January 2017

Can a Personal Representative of an Oklahoma Estate Take a Fee?

By: Sarah Stewart Legal Group

When someone has to probate a loved one’s estate, it can be a very difficult and emotional time.  The family is not only dealing with trauma and grief, but the legal process and asset management as well.  It is a very daunting task.  Many times, those in charge of the probate wonder if the tremendous amount of time they put into  their work can be compensated.

The answer is yes. However, the amount a personal representative can receive for the work he or she does for the probate estate, without direct instruction from a Last Will and Testament, is limited by Oklahoma law.

Personal Representative Fees and Compensation

Personal Representatives are entitled to receive reimbursements and attorney fees.  In addition, they can receive fees from the estate.  The calculation is a bit complicated and is as follows:

5 % of the first $1,000 + 4% of the next $5,000 + 2 1/2% for the rest of the estate value

If there is more than one Personal Representative of the estate, the fee will be split among them.

A Personal Representative is not required to take a fee from the estate.  He or she can choose to waive the fee if he or she so desires.  Many Personal Representatives who inherit from the estate choose not to take a fee.  However, if you are a Personal Representative, you are within your rights to do so, regardless of whether you inherit or not.

Being appointed as a Personal Representative can be stressful and time consuming, especially when there are many assets and/or large assets in the estate you are probating.  If you are taking on the task of becoming a Personal Representative and managing estate assets and debts, you will want to consider taking a fee for the services you have provided the other heirs.  It won’t make the situation any easier for you and your family to deal with, but it can compensate you for lost time and effort in your case.

5 Things To Do Before You Retire

By: Sarah Stewart Legal Group

Are you or someone you love looking to retire soon?  If so, you should review this list and make sure you have done these 5 things.

(1) Determine The Age You Will Retire

Though retiring early seems like a good option, keep in mind that some benefits you receive are increased if you retire later.  For instance, Social Security pays more if you retire later and some 401ks will increase distributions if you wait until later to withdraw the money.  Of course, keep in mind 401ks usually also have a minimum distribution age that you must consider.  They will require a certain amount of the 401k be accessed each year after the owner hits a certain age.  Research your options and plan for your retirement now.

(2) Determine The Costs of Your Desired Lifestyle

This step is very important for determining when you retire and how much money you need to retire.  Are you wanting to keep the status quo and live much like you have lived until now?  Or are you wanting to travel?  Do you want to fully retire?  Or are you looking to stay active with a part time job?  You must decide what your goals are to properly plan for your retirement.

(3) Retirement Withdrawal Rules

I mentioned this one briefly above.  Most retirement accounts will require a minimum distribution be taken each year once you reach a certain age. For most accounts, that age is 70 1/2.  If you do not begin to withdraw retirement at that age, your retirement funds will be taxed heavily, usually around 50%. Be sure to research this information for your accounts and plan accordingly.

(4) Health

How is your health these days?  Do you have any chronic conditions that you will need to plan for, such as diabetes or heart disease?  Once you reach retirement age, most people qualify for Medicare.  However, if you have health conditions, you will want to consider supplements and the costs of the supplemental insurance into your plan.

And, what about long-term care?  Do you have a plan for long-term care?  Most nursing facilities run anywhere from $4,000 to $8,000 a month for care.  You must factor the possibility of long-term care into your retirement plan.

(5) Estate Planning

Estate planning is not only planning for your death, but your incapacity as well.  Though most of us do not like to think about it, as we get older our health and mental state can deteriorate.  Do you know someone you trust to help you in that situation?  If so, it is much easier to nominate them now through a Durable Power of Attorney, Advance Directive, and/or trust than it will be for them to go to Court to have you judged incapacitated.

Also, you will want to think about your legacy.  Who do you want to provide for when you die?  How do you want your assets distributed?  Who do you not like in your family?  Without a proper Last Will and Testament and/or irrevocable or revocable trust, your wishes may not be followed.  The law of the state will determine who receives what, when, and how.  Most of us don’t like that option.

If you are close to retirement, congratulations!  You definitely deserve it!  But, be sure to properly plan so that your retirement transition is as smooth as possible.

Do I Need Parental Consent for a Private Oklahoma Adoption?

By: Sarah Stewart Legal Group

By far the biggest question I get about adoption is whether consent by the biological family is necessary.  All too often, one or more parents have vanished and are not easy for the adopting family, or stepparent, to track down.  Absent parents are good at hiding when they do not want to be found.

So, do you need the consent of a biological parent to adopt a child?  The short answer is no, if certain criteria are met.  We discuss those criteria below.

(1) Parent Has Not Contributed to the Support of the Child

Under Oklahoma law, a parent who has not contributed to the support of the minor, either under an Order that determines child support, or within his or her financial ability to contribute, for 12 of the last 14 months, does not have to consent to the child’s adoption.

(2) Parent Does Not Have a Substantial and Positive Relationship with the Child

If the parent has not maintained a substantial and positive relationship with the child for 12 of the prior 14 months, the parent does not have to consent to the adoption. The parent must maintain frequent and regular communication and/or visitation with the child to have a substantial positive relationship.

(3) Parent Caused the Chronic Neglect, Physical or Sexual Abuse of the Child or a Sibling, or the Death of a Sibling of the Child

(4) Parent Sentenced to Prison for Not Less Than 10 Years and Continuation of the Relationship Would Harm the Minor

The Court will determine if the relationship will cause harm to the minor by considering the following: 1) length of incarceration and effect on parent/child relationship; 2) previous convictions and imprisonment; 3) criminal history; 4) child’s age; 5) evidence of abuse or neglect of the child and/or siblings by the parent; 6) current parent/child relationship and how parent has exercised parental duties and rights in the past.

(5) Parent Has a Mental Illness or Deficiency

The parent must be unable, due to the illness or deficiency, to exercise his or her parental duties and rights.  A relationship with the parent must threaten the safety of the child, and the illness or deficiency must not respond to treatment or medication and will not improve.

(6) Parent’s Rights Have Been Terminated or Parent Has Waived Notice of Adoption, or Relinquished Parental Rights pursuant to Oklahoma Law.

(7) Parent Receives Notice of Hearing

For an adoption without consent, the nonconsenting parents must receive notice of the hearing to allow the adoption and/or terminate his or her rights at least 15 days before the hearing.  Service is best if the parent can be personally served.  However, if the adopting parents have searched for the biological parents and can prove they cannot be located, publication notice may be an option.  If a biological parent receives notice by publication, the order on the adoption will not be final for 15 days after the hearing.

There are some additional exceptions that may apply to unknown or unconfirmed biological fathers of children that are not listed here.  If you are interested in adoption, it is best to consult professionals to know your legal rights and responsibilities in the process.

Powered by WordPress & Theme by Anders Norén