Sarah Stewart Legal Group, PLLC

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

Page 2 of 5

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!

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

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

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?

Preferences

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?

Responsibilities

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.

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.

Page 2 of 5

Powered by WordPress & Theme by Anders Norén