Sarah Stewart Legal Group, PLLC

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4 Ways to Avoid Probate Without a Trust

By: Sarah Stewart Legal Group

Many people we talk to are interested in making life as easy as possible for the loved ones they leave behind once they die.

One important way to help your family as much as possible is to provide an estate plan that avoids probate.  A great tool to avoid probate is a trust.  Sometimes, though, people are not comfortable with a trust.

There are still some ways to avoid probate if you do not want to use a trust.

(1) Transfer on Death Deed

In Oklahoma, real property can be transferred with a Transfer on Death Deed filed in the County where the property is held.  A benefit of the Transfer on Death Deed is that the property does not change ownership until the owner’s death. So, it is not subject to the creditor claims of beneficiaries and the owner can sell, lease, etc. at any time without agreement by the beneficiaries.

One con of the TOD Deed is if your heirs want to claim their interests in the property, they have to file an Affidavit and a death certificate within 9 months of the death of the owner. Otherwise, the property will become property of the deceased owner’s estate and have to go through probate.

(2) Payable on Death Accounts

Many banking institutions will allow you to name a payable on death beneficiary for your accounts.  Once you die, your beneficiary simply has to take your death certificate to the bank to access your accounts.  Of course, if the beneficiary dies before you do, you must be sure to update your information, or the money will go to your estate and have to go through probate.

(3) Beneficiaries

Life insurance, retirement accounts, stocks and bonds, and other assets will allow you to name a beneficiary, or several beneficiaries, to the account.  The beneficiary can access the accounts on your death without having to go through probate.  You will need to remember to keep your beneficiaries updated if you decide to go this route without any other estate plan.  If a beneficiary has died before you, your family will usually have to go through probate to clear up title for the company holding the assets.

(4) Joint Tenant with Rights of Survivorship

Real and personal property can be held as joint tenants with right of survivorship.  Think of when you own a bank account jointly with your spouse, or when you and your spouse purchase property together.  These are properties held as joint tenants with right of surviorship.  That means when one of you dies, the other gets full ownership of the property.

If you have a joint tenant on your property, that property is subject to the debts and liens of the other owner.  And, you must remember to make some sort of plan for after the survivor dies.  Otherwise, the property will have to go through probate.

If probate avoidance is your greatest estate planning goal, there are several ways you can accomplish your goal.  Be sure to reach out to professionals in order to help you find the most effective plan for you. And please remember, these options may not be the best for you if you are also concerned about planning for your incapacity.

Making a Plan for Leaving Your Business

By Sarah Stewart Legal Group

Entrepreneurs spend all day every day working in and thinking about their businesses.  More often than not, entrepreneurs, and especially small business owners are the human resources, customer service, IT, and every other department of their businesses.  So, understandably, it can be difficult to plan for the time you may need to leave your business.

Leaving a business is inevitable, whether it be through a buy-out, incapacity, or death, all business owners will eventually give up their businesses.  So, there’s no better time than now to plan for your exit.  Today, we address the items you need to consider to plan your exit.

(1) Succession Planning

Every business needs a succession plan. When making a succession plan, you need to consider the following:

  • Who is your Successor?

You want to review every employee and decide who has the skills necessary to take your place. You may want to speak to your Board of Directors or other professionals to help you. Experts suggest choosing your Successor at least 15 years before you plan to retire so you can properly train and groom them.

  • How will you train your Successor?

First, you need to know what makes your company work.  What departments are the most important?  What functions are crucial?  Once you know, you will want to train your Successor in these areas.

  • How long will the transition take?

You need to make a timetable.  Decide how and when to shift control of your company.  The timetable helps keep your Successor on track in training and helps managers and employees know what roles you and your Successor will handle every day.

  • Are you prepared to retire?

Make a retirement plan.  What do you want to do when you retire?  Then, initiate those plans by saving the right way and the right amount.

(2) Disability and Incapacity Planning

You may not always be able to choose when you leave your business.  Life happens to all of us. Be sure you have enough insurance to cover you and your business if something happens to you. Disability and life insurance can protect you, your family, and your business from your worst case scenarios.

Though it can be difficult to think about, planning properly for leaving your business is important. Your plans affect your family, your employees, business structure, and taxes. Always reach out to professionals to reach your planning goals for your family and business.

3 Important Rights of Incapacitated Adults (Wards) in a Guardianship

By Sarah Stewart Legal Group

Those who have suffered the an injury or illness that leaves a loved one unable to care for his or herself know how difficult of a time it can be.  There are countless, thankless, nights of caregiving and a long list of things to be done for the loved one that never seems to end.  Taking on the responsibility of being a Guardian of a loved one who is incapacitated is a great task. There are many responsibilities, and many requirements of which caregivers are often unaware.

If you have a Limited Guardianship, you can only restrict the actions of the Ward in the ways the Court has specifically ordered.  So, you must review the Court’s order to know what rights the Ward has.

With a General Guardianship, there is more to worry about.

If you find yourself in the position of becoming Guardian of a loved one who cannot care for his or herself anymore, here are the 3 most important rights a Ward (incapacitated person) retains that you need to know about:

(1) To Participate As Much As Possible in Decision-making

This is the sweeping, overall purpose of the Guardianship statutes.  The legislature intended that all Wards be able to participate in making decisions that affect them as much as the Wards are able.  So, Guardians are encouraged to speak with the Wards and attempt to come to an agreement on decisions such as where to live, what to do with the Ward’s money, and who will provide medical care.  Of course, this is not always possible, but if the Ward is alert and can speak and communicate, the Guardian is expected to communicate with them.

(2) To Have Visitation (Or Not) with Whom They Please

Unless the Guardian can prove potential harm in Court, and get an Order from the Court denying visitation, a Guardian cannot stop a Ward from visiting with others.  Maybe you don’t like Uncle Joe and he stirs Mom up every time he visits, but you can’t stop him from visiting her just because you don’t like him or his actions.  You must have a good enough reason to get a Court order to deny visitation.

On the other hand, a Guardian also cannot force a Ward to visit those the Ward does not want to see.

(3) To Live in the Least Restrictive, Most Normal Setting Possible

A Ward who can care for his or herself, afford home care, and wants to stay at home, should be able to do so.  The law requires Guardians to provide the most normal home-life possible for a Ward, based on health, safety, and financial ability.

Being a Guardian and taking on all the financial and medical responsibilities of someone who can no longer do so his or herself can be a difficult and frustrating task.  There are professionals and support groups available to help.  Please be sure, if you are in this position, to research and reach out to those who can help you.

Caregiver Checklist for the Elderly

By Sarah Stewart Legal Group

Caring for an elderly loved one can be a time-consuming, thankless task.  There are so many situations to think about and so little time.  The checklist below will help simplify your legal and other resource concerns if you are a caregiver of an elderly loved one.

(1) Estate Planning Documents

Depending on the level of capacity of your loved one, you will want to ensure a Durable Power of Attorney is in place, if possible.  You will also want to consider encouraging your loved one to make an estate plan- a Will or trust.  I do not recommend encouraging their opinions on who inherits what, but simply urging them to start thinking about their options and finalizing their wishes in writing.  Without a Durable Power of Attorney and estate planning documents, you and your family will face an expensive, stressful battle going to Court to get guardianship and divide the estate when the time comes.

(2) Set up Access to Medical Information

Though a DPOA can help with this, you will also need to consider HIPAA laws and authorizations.  HIPAA laws make access to medical records difficult without the patient’s authorization.  Encourage your loved one to allow you access now, before it’s too late.

(3) Government Benefits

If your loved one or his or her spouse served in the military, your loved one may be eligible for Veteran’s Benefits.  Check with your local Veteran’s Associations to confirm requirements.

Also, depending on you loved one’s income level, he or she may be eligible for Medicaid and other income-based benefits.  Reach out to your local agencies for more information on eligibility requirements.

(4) Find a Doctor Who Specializes in Geriatric Care

Many doctors are unfamiliar with the unique needs of the elderly.  Be sure to reach out to a doctor with appropriate experience and a stellar reputation to help you and your loved one through these transitional years.

(5) Reach out to Community Resources

There are many resources available in the community to help caregivers of the elderly.  There are Adult Day Centers where caregivers can drop their loved ones off for a day of play and socializing while the caregiver works or rests.  There are community respite services, and even home care services available.  Reach out to your DHS Aging Services department, Areawide Aging services organizations, Alzheimer’s Association, and local senior centers for more information on what is available in your community.  Availability of services varies in different communities.

Though it can be difficult to care for your elderly loved ones, there are organizations and people who want to help.  Be sure to reach out and get help for your situation.

8 Most Famous Wills Requests and Probate Battles of the Rich and Famous

By Sarah Stewart Legal Group

Though rich and famous people should be more aware of their need for estate planning, they are not immune to forgetting to plan for their estates after their deaths.  Today, we will discuss some of their most interesting requests and probate battles.  Let these be a lesson for us all.

(1) Prince

One of the most recent and public battles over an estate comes from the unexpected April 2016 death of pop music icon Prince.  Prince was not married, had no children, and no direct next-of-kin.  He also had no estate plan, not even a Will.  According to the law of the state where Prince lived, his closest family members are set to inherit his $300 million fortune.  Many unknown “family members” have made an appearance in the legal proceedings. The Judge has been forced to require DNA tests to prove the claimants relationships to the late legend.

(2) Joan Crawford

In 1977, Joan Crawford left a Will that disinherited her 2 oldest children from her $2 million estate.  The two oldest children sued the estate for their portions, claiming Crawford was unduly influenced by her youngest child and husband to disinherit the children.  After a lengthy legal battle, the children were able to recover a meager inheritance.

(3) Harry Houdini

Houdini died in 1926 and left a strange request in his Will.  Houdini was interested in the paranormal and believed he could communicate with his wife outside the grave.  He asked, in his Will, that she hold an annual seance.  His wife followed his instructions, but Houdini never showed.

(4) Marilyn Monroe

Monroe left a Will giving all of her belongings to her mentor.  She stated in her Will that her belongings should be shared among her friends and loved ones.  Her mentor did not follow her wishes.  Instead, he held on to her items until their value increased. When he died in 1982, his wife inherited the items and sold them.  She profited nearly $14 million off Monroe’s estate.

(5) J. Howard Marshall II

Most of us know the infamous court battle between Anna Nicole Smith and her husband’s children over his estate.  The oil tycoon died just over a year after his marriage.  He left a Will, disinheriting Anna Nicole and his oldest son. Anna Nicole and the eldest son launched years of legal battles against the estate.  In the end, both lost their battles.

(6) Leona Helmsley

At her death in 2007, Helmsley left $8 billion to her family charitable trust.  The trust donates to education, conservation, and health projects. She also left her beloved dog $12 million in a trust (a Court later reduced this to $2 million).

(7) Janis Joplin

In her Will, Joplin left $2,500 ($15,500 today) for her friends to have a large party and celebrate her life. The party took place 3 weeks after her death at her favorite club.  About 200 of her friends reportedly attended the festivities and, by all accounts, had a wonderful time.

(8) William Shakespeare

The famous writer was wealthy when he died in 1616.  His Will gave generously to all of his children and many other family members, but he left little to his wife.  Nevertheless, his wife was entitled to 1/3 of her husband’s estate under English law at the time of his death.

 

My Child with Special Needs is an Adult. Now What?

By Sarah Stewart Legal Group

Each family with a child with Special Needs has specific and unique circumstances and concerns.  Their legal issues are also unique.  This makes finding a trustworthy professional who can help them navigate those problems challenging.

If you are a family with a loved one with Special Needs who will soon be over the age of 18, here are some legal issues to consider:

(1) Estate Planning

When a child with Special Needs becomes an adult with Special Needs, there are more options available for government benefits.  What is available to whom depends on the specific needs and circumstances of each family.   Some children will be able to live mostly independently from their parents and manage their own assets, others will not. Some will be able to work part time, others will not.

Be sure to research all the options available for your family. Think about how your child will react and his or her ability to manage assets they may inherit when you’re gone. Will he or she need help managing their day-to-day lives?  If so, you may want to consider a Special Needs Trust.

Also, keep in mind that some benefits may be income-based. For those benefits, a Special Needs trust will usually be required to protect your child from losing those assets once you’re gone.  If your child lost his or her benefits, would he or she be able to navigate the system to get them back? To learn more about Special Needs Trusts, click here.

(2) Adult Guardianship

Another potential problem to consider is what happens when your child reaches the age of 18 and is considered an adult.  In Oklahoma, 18 year-olds are able to enter agreements with people and corporations and are considered capable of making business and personal decisions for themselves without parental consent.  Though, arguably, most 18 year-olds do not truly have that capacity, the law is the law and your child will be faced with making adult decisions everyday when they hit the magical age.

Most people with Special Needs are more vulnerable to bad people and bad circumstances. If you have concerns about your child’s ability to “adult” when he or she is 18, you will need to file for guardianship to protect him or her.  To file a guardianship, you will need evidence of the condition that makes your child unable to care for him or herself physically or otherwise.

You will file this information with the Court, issue notices to the closest family members and the child, set and attend a hearing and provide annual reports on the child’s condition to the Court. This is the only way to ensure your child is fully protected.

Some families choose not to seek guardianship.  Maybe the child is mostly capable of “adulting,” or maybe the network the family has built is supportive, understanding, and does not require a guardianship in order to function.  You must review your own familial situation to decide if guardianship is right for you.

If you need help navigating these complex issues, be sure to reach out to professionals you can trust. You will need to find professionals who are familiar with Special Needs issues and understanding of your situation.

4 Frequently Asked Questions About Oklahoma Adoption

By Sarah Stewart Legal Group

There are many different types and circumstances of adoption: through the state, international, step-parent, grandparent, kinship, private. With so many different choices, Oklahoma families looking to adopt can get a little confused.  Today, we will discuss the most frequently asked adoption questions.

(1) What are the requirements to be an adoptive family in Oklahoma?

-You must be at least 21 years of age.

-in reasonably good health

-your marital status is unimportant.  Married couples, single people, widows, and legally separated people can all adopt children in the state of Oklahoma

-you must have the means and space to house a child

-you must be willing to accept the child as your own and become the parent of the child

-you will need to have a background check and home study completed (this can be waived for step-parent adoptions)

-you must not have a conviction for child abuse or neglect or sexual offenses

(2) What are the costs?

This answer depends on the type of adoption you are completing.  Usually, the state offers stipends and other incentives that make adoption a free or low cost option for those children in DHS custody.

For private adoptions, you may need to pay an adoption agency, some expenses of the birth mother, home study and background check, legal expenses, and the legal expenses of the mother.

For step-parent, grandparent, kinship adoptions, you may have to pay for a home study, background check, and legal fees associated with the action.

For international adoptions, you will have to pay the agency, the adoption fees internationally, and the legal fees and expenses to re-adopt in the state of Oklahoma as well as all naturalization documents for the child.

(3) Who do I contact about adoption?

For the state contact DHS 1-800-376-9729

For private adoption, there are many options in and out of the state.  For local agencies, contact: Adoption Choices of Oklahoma, Crisis Pregnancy Outreach, Catholic Charities, Deaconess Adoption Services, Lilyfield, and Oklahoma Baptist Home for Children.

For international adoption, thoroughly check all adoption agencies as there have been reports of sham agencies and agencies closing on a moment’s notice.  It is best to get personal referrals from those you know about the agencies they have used.

For kinship and step-parent adoptions, private attorneys or Legal Aid Services of Oklahoma should be able to assist you with the process.

(4) Do I have to have the parents’ consents to adopt?

For children in state custody, usually parental rights have already been terminated and the child is immediately eligible for adoption.  For kinship placements and step-parent adoptions, and some other private adoptions, there are situations where you will not need consent to adopt a child.  There is a post related to this topic here.

For many private adoptions, especially with expectant mothers, you will have to have the mother’s consent and at least send notice to the father.

For international adoptions, the agency in charge of the adoption should be able to handle this for you, at least internationally.

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!

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