Sarah Stewart Legal Group, PLLC

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Month: February 2017

3 Blended Family Issues in Oklahoma Estate Planning and Probate

By: Sarah Stewart Legal Group

According to the Oklahoma Marriage Initiative, more than 32% of Oklahomans have been divorced.  Oklahoma has one of the highest divorce rates in the U.S.  Due to this, many families in Oklahoma are blended families. Families with children from one or more previous relationships and step-parent relationships.

Blended families have complex relationships, complex estate planning needs, and even complex Oklahoma law regarding probate, if there is no estate plan in place.

Estate Planning Issues

(1) Previous Relationships

If you have children from a previous relationship, and minor children, and don’t have an estate plan, the surviving ex will receive the assets intended for the children to manage as he or she sees fit.  There is no obligation to account to the Court or to have any oversight from, or even contact with, the prior step-parent.

If it is important to you that the assets your children inherit go to them and not your ex, you will want to consider establishing a trust that restricts how the children’s assets will be spent and/or when they will be distributed.

Also, if you are concerned about continuing a relationship between the minor step-children and surviving step-parent, a trust with the step-parent as trustee may help keep some contact as the ex will have to work with the surviving step-parent to receive assets on the children’s behalf. There’s no assurance the ex will keep contact,  but money can be a good incentive.

(2) Obligations to Step-children under Oklahoma law

Oklahoma law does not require that a step-parent leave an inheritance for his or her step-children.  Oklahoma law does not even require that a parent leave an inheritance for his or her own children. If you want to insure that some specific assets are left to your children, you will need a Will and/or trust.

Probate Issues

If one partner dies without an estate plan, things can get sticky for the kids and the surviving spouse pretty quickly, regardless of whether the children are under the age of 18.

Under Oklahoma law, if the surviving spouse is not the parent of at least one of the surviving children, the spouse will receive 1/2 of the assets acquired during the marriage and an equally divided share with the children of any other assets.

Such a division can lead to struggles and fights in even the happiest of families.  Trust me, I’ve seen it.

If you are in the position of having a blended family, you want to be extra aware and conscious of your estate plan.  Sit down with your spouse and discuss what assets you would like to be left to your children from a previous relationship.  Work out a plan.  Then, I can’t emphasize this enough, put the plan into action!

Put your plans into a Will and/or Trust so that you can ensure you are fulfilling your own wishes and protecting those you love from the determinations of the Court.


Don’t Have a Spouse or Children? You Need an Estate Plan

By: Sarah Stewart Legal Group

Despite advice from leading financial and business professionals singing the praises of sound estate plans, recent statistics show that more than 50% of Americans do not have estate plans in place. Without an estate plan, U.S. Courts will decide who receives your assets. Is that what you want?

Though the local Court rules can be concerning for people who are married with children, they can be even more concerning for those who are single and do not have children.  In Oklahoma, the Court will leave your assets, automatically, to your “closest relatives.”  The Court defines these relatives as parents, siblings, etc. in a distinct order. This may not be your personal familial relationship.  If it is not, you will need an estate plan.

Moreover, under Oklahoma law, no one is legally required to take care of you when you are unable to make decisions for yourself.  If you become incapable of making your own decisions, your family and friends will have the pleasure of fighting out among themselves who will help care for you. Or, the state will step in. If that is not what you want, you need a sound estate and incapacity plan.

What Now?

You need to determine the best estate plan for you.  Some people prefer the ease and simplicity of a Last Will and Testament.  However, this document has its drawbacks.  You can name who you would like to receive assets from you, but you cannot put restrictions on those assets (say for a minor child or loved one with Special Needs) and your loved ones will have to pay for and go to Court to transfer your assets. If that is bothersome to you, you will want to consider a trust.

Also, you will need to decide if you have a trusted person you would like to help care for you when you are unable.  If so, you should consider a Durable Power of Attorney for financial and medical reasons so that this person can step in if you are unable to care for yourself. A trust can also offer some of these protections.

The most important tool in your estate planning arsenal will be the Advance Directive.  This document is the only legal document in Oklahoma that allows someone to withdraw life-sustaining treatment on your behalf.  Under Oklahoma law, no relative or loved one has that legal right without this document.  If there are any situations where you are certain you would not want life-sustaining treatment, get an Advance Directive.

Decide Who You Want to Get What

You will need to decide what assets you would like to pass to whom.  Make a detailed list of what you own and who you want to have those things when die.  This will be the basis of your Will or Trust so be as thorough as you would like.  Also, think about who you can trust to manage your assets and follow your instructions when you are gone.

It is never too early to plan. These documents can always be updated and changed as life and circumstances require.  Start today, in case the unexpected happens to you and your family.


5 Results of Ignoring Your Estate Plan

By: Sarah Stewart Legal Group

Estate planning is a difficult subject for many of us.  We don’t like to face our own mortality.  But, the truth is, death is one of life’s greatest certainties and we will all have to face it eventually.  The longer you wait, the more likely it is you will face the following 5 consequences for your delay:

(1) Your Heirs will Have to go to Court

Whether they are seeking to help you manage your finances and health when you are no longer able to do so, or trying to sort through your assets and debts after your death, without an estate plan, your heirs will go to Court to deal with your issues.  Preparation can make a huge difference in the lives of your loved ones when the unexpected happens to you.

(2) Your Family will Lose Money

When people go to Court, it costs money.  There are filing fees the Court takes, and, unless your family has a probate and guardianship attorney in it (and many times even then), there are attorney fees required to go to Court.

You can try to go it alone, but that can be frustrating and take a lot more time and money because the family member has to research what documents to file, prepare them, take off to go to Court, and usually, come back and do it all over again because they missed something the first time, or second time, or third time…I think you get the picture.

Judges allow people to represent themselves in Court, but they are held to the same legal standards as attorneys because, well, the law is the law and you and the Judge have to follow it. Save your family the hassle and money and make a plan today!

(3) Losing Time

Not only does going to Court in itself take time and preparation, but leaving your estate open to the possibility of going to Court opens the door to fights in the family.  Even if they have no valid reason to fight, family members can tie up your assets for months just because they want to fight.  Maybe they don’t like your son Billy.  Maybe they blame you for their divorce.  Who knows?  Family dynamics are complex.  An estate plan is the best way to guard your loved ones from messy family interests.

(4) You Will Lose Your Choices

If you do not have a proper plan in place, the Court will decide for you, based on local law. The Court’s decision may not always be what you want.  For instance, did you know that if you don’t have an estate plan, your spouse may only get 1/2 or less of your assets when you die?  No?  Most people don’t.

Or, if you have minor children and are divorced, did you know your ex will get the privilege of “managing” your money for your children after you die? Does that make you uncomfortable?  It probably should.

(5) Struggles with Property in Other States

If you own property in more than one state, you can take everything we’ve discussed here and magnify it by the number of states you own property in.  Every property will have to go through probate in the state where the property is owned.  Does that make your head spin?  Imagine what it will do to your family.

It is never too soon to start thinking about what will happen if you are unable to make decisions for yourself or if you pass away.  Start planning now!

Oklahoma’s Options for Custody of a Child When You’re Not the Parent

By: Sarah Stewart Legal Group

In 2016, it is estimated that 2.7 million grandparents, nationwide, are raising their grandchildren (US Census). If you take into account other family members who foster children that are not their biological children, that number is even higher.

Oklahoma is one of the top states for kinship foster placement (children living with family members other than their parents).  So, if you find yourself in this situation, you are far from alone.

What options do family members have to legally take custody of a child that is not their biological child?  That depends on the family’s situation and the goal of the foster parents.

Power of Attorney

A Power of Attorney will only work if at least one of the parents is available, and willing, to sign the document to allow a family member to care for the child.  A Power of Attorney allows the family member to take a child to medical appointments, enroll them in school, and step in for the parent to help the child in any way in which the parent agrees.  A Power of Attorney does not take any parental power from the parent and the parent can revoke or overrule the Power of Attorney at any time.


Guardianship is a court process where someone files pleadings and appears in court to take custody of a minor child. Parents must be informed by sending notice to their last known addresses.  Parents do not have to consent.  However, if they do not consent, there can be a fight in Court.

Guardianship is stronger than a Power of Attorney because the person receiving guardianship of the child steps into the parent’s shoes until the parent can prove he or she is capable of caring for the child or has cured the circumstances surrounding the guardianship.  The Guardian is the child’s custodian.  The parent cannot revoke the guardianship or take the child out of school, or make other parental decisions without going through the Court process.

This option works well when Mom and/or Dad have disappeared and cannot be found.


Adoption is a custody option wherein the foster parents take full parental responsibility for the child.  Adoption requires terminating the rights of the biological parents.  The biological parents must receive notice of the adoption proceedings.  If a child is adopted, the biological parents will have no further rights to the child.  The adoptive parents are the parents of the child.  The name and birth certificate of the child can be changed.

In order to adopt a child in Oklahoma, you will usually need a home study, medical and social history, and background check on all adults in the home.  Adoption is  the most complicated and lengthy procedure.

If you are caring for a child who is not your biological child you have several different legal options to ensure you can meet the child’s needs.  Consider what option works best for you and your family.  Then, be sure to implement one of the options so that you and the child are protected.

Who Can Be a Representative of an Oklahoma Estate and What Are Their Responsibilities?

By: Sarah Stewart Legal Group

When your loved one dies, he or she may leave a Last Will and Testament naming a family member as an Executor, or he or she may have no estate planning documents at all, leaving the family members to wade through the jungle of the Deceased’s assets and creditors.

Often, those family members find themselves in an unusual situation, where they do not know what to do or where to turn.  They know they need to go to Court and become Personal Representatives of the estate, but then, who can do that? And then what?  What are your responsibilities if you’re named Representative in Oklahoma?


Under Oklahoma law, the following people can be named Personal Representatives of the estate, in order of preference:

  1. If a Last Will and Testament is left, the person named as Executor in the Will. If no Will, or the named Executor is not living,
  2. Spouse or someone the spouse appoints
  3. Children
  4. A parent
  5. Siblings
  6. Grandchildren
  7. Next of kin who are heirs of the estate
  8. Creditors
  9. Anyone legally competent
  10. Surviving business partners of a partnership cannot be named as Representatives of the estate

So, now you know who can be appointed.  Once you are appointed, what do you do?


Personal Representatives are more or less in charge of managing the estate.  They take in the assets of the estate and keep them safe. This includes all accounts, personal property, and real estate.  They must be sure that real estate is safe and will not be damaged, to the best of their abilities.  They also reach out to creditors to inform them of the death of the Deceased and respond to any creditor claims they receive. They are not personally responsible for estate debts.

Representatives can sell property through the estate, with the right consents and/or Court-approval.  They are responsible for making sure the estate is distributed according to law and the Court’s orders.  Representatives owe the heirs the duty of performing within the law.  They cannot plunder or hide estate assets from heirs and creditors.

Though anyone is able to file a probate in Oklahoma without the assistance of an attorney, there are a lot of deadlines and nuances that must be followed.  If you are considering probating an estate, you should reach out to an attorney to help you.

Keep in mind, the attorney fees can be paid by the estate, under Oklahoma law.  So, if the estate is big enough, it is definitely worth your time and effort to search for a reasonable and trustworthy attorney to advise you and make sure you are doing what you need to do under Oklahoma law.

Also, if you file and your case does not follow proper procedure, the Court will send you back to try again, repeatedly.  This can cause you valuable time and money simply because you are not experienced and do not understand the process.  Professionals are here to help you find your way and allow you the room to grieve your loved one.  Do not be afraid to reach out.

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