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Checklist of documents to secure upon someone’s death in Oklahoma

In the process taking care of things after the death of a friend or loved one in Oklahoma, there are certain documents which you, the person likely to help administer the estate, will need to have.  Below is a list of some of the documents you need to collect and secure following a person’s death:
  • Copies of the death certificate
  • Insurance policies
  • Investment account statements such as IRAs, 401(k)s, mutual funds, pensions
  • The last checking and savings account statements
  •  Last mortgage statement
  • Last two years tax returns
  • Automobile titles
  • Marriage and birth certificates
  • An up-to-date credit report of the decedent.
Posted by Shawn Roberts in Blogposts

What is a default judgment in an Oklahoma lawsuit?

To answer that question, we need to start by understanding what a “judgment” is and what it means to be “in default” in an Oklahoma lawsuit.

A judgment is a formal decision by the court that tells who won the case and what the winner gets.  To the judgment phase in a lawsuit . . .

The party that files the lawsuit, the Plaintiff, file a Petition to kick off the process.  In the Petition, the Plaintiff lays out it claims and what it wants to get paid based on its claim.  The Plaintiff is required to “serve” the Petition on you.  This means either you will receive a visit from a licensed Oklahoma process server or a certified mail envelope that you need to sign for.

You have 20 days from the date the Plaintiff can prove you were served to file an answer to the Petition with the court where the case is filed and send a copy to the Plaintiff.  If you do not file an answer within 20 days, you are in default.

So, default means you didn’t answer within the required time period and the court decided you lose because of your failure to answer.  The Plaintiff wins without finishing out the game.  The Plaintiff can take its default judgment and begin to try to collect on it.  An example of what a default judgment looks like is below:

Default judgment
Posted by Shawn Roberts in Blogposts

Sports respite: 30 years ago today . . .

As a brief respite from my musings about Oklahoma law, I share this slice of disappointment from childhood . . .

 

30 years ago today I watched live as Kirk Gibson break my heart and the hearts of thousands of A’s fans by doing this off the best reliever in baseball . . .Kirk Gibson’s game winning home run 1988 World Series

Posted by Shawn Roberts in Blogposts

Can you sell property that is in an Oklahoma probate case?

Most people have either heard stories about your experience firsthand and estate going through the probate process. Often those experiences are not positive ones.

One of the questions that often comes up is “can I sell this item that is part of the probate case? “

The answer is yes but the process is different depending on what type of item it is. Below is a brief overview of how property can be sold out of probate depending on what type of property it is.

1.  Real property

Real property includes items such as houses, land with nothing build on it and mineral interest. For items such as these, you almost always have to get the written approval of the judge and the probate case before making a sale.

2.  High-value personal property

High-value personal property includes things such as automobiles, jewelry, it’s in recreational vehicles and usually any item that has a paper title issued by the government.  As with real property, and written approval is typically required from the court prior to selling this type of property. However, there may be a few exceptions that fall into the category for below.

3.  Lower value personal property

This category includes items that have no paper title issued by the government such as household furnishings, tools, any other odds and ends that a person may have collected throughout their life.

4.  Personal property that must be sold quickly to protect its value

As with most things in the law, there are a few more details and I can share in a blog list. For that reason, if you encounter the issue of selling something out of probate be certain to talk to an attorney about it before you take any kind of action.

 

If you want to know more about the Oklahoma probate, consider checking out these posts:

Will the Oklahoma summary probate process help you?        When you might need to do an Oklahoma probate             

Five Questions and Answers about Oklahoma probate

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

Oklahoma Estate Administration: The Mortgage follows the Property

 

You are dealing with the death of a love-one or friend, which is very sad.

During the process, you find out that your relative left their home to you (maybe using a transfer-on-death deed, explained here).

You are going to inherit a house, that is good.  Then you find out you are also inheriting a mortgage on the house.   Why?

Well, the easy answer is because there is a mortgage on the house and the bank wants to be paid.  The more legalized answer is that Oklahoma law makes you responsible for the mortgage as well:

When real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage shall be otherwise paid.

Okla. Stat. Ann. tit. 46, § 5 (West)

So, if you inherit the mortgage, you must pay for it from your own money unless your relative left a last will and testament.  And, that last will and testament must provide that the relative’s estate pay for the mortgage.

Potentially, a good news/not-so-good news scenario:  It is good you are the owner of a home, it is not as good you are the owner of a mortgage as well and a new monthly payment to the bank.

Posted by Shawn Roberts in Blogposts

The Oklahoma transfer-on-death deed: Smart Probate Avoidance

What happens to a person’s property when they die in Oklahoma?

There is a detailed answer in this post, What happens to a person’s property when they die?

The shorter answer is that it goes to your relatives, the people you chose in your last will and testament or Oklahoma revocable trust. If you own real property outright and pass away you will need a court order in an Oklahoma probate case to change the title from the person who passed away to his heirs.  There are several ways to avoid this results.  One way is the Oklahoma transfer-on-death deed.

Oklahoma Transfer-on-Death Deed

The Oklahoma TOD allows you to set up your real property to pass to another person after you die.  You sign and record the Deed with the Oklahoma county clerk in the county where the property is located. The person you giving the property to does not become the owner until you pass.  But, when you pass away, . . .

Transfer of the Property after death

The property passes almost automatically, with the person inheriting the property only need to file an affidavit stating that person died, whether the person was married and a legal description of the property.

 

If this is something that interests you or you like to talk about Oklahoma estate planning, please contact me.

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Oklahoma Probate

The basics of libel and slander under Oklahoma law

Defamation is the umbrella term that covers both libel (the written word) and slander (verbal communication).

Generally, defamation is publishing a false statement about an individual that causes damage to the individual’s reputation or standing in the community or exposes the individual to public hatred, contempt, ridicule or injures him in his business.

There are some statements that are so incendiary by nature that the court will assume there was damage without the defendant having to prove specifically that there was damage (e.g., false statements that charge person with crime, impute in subject present existence of infectious, contagious, or loathsome disease, tend to injure subject directly in his business or profession, or impute to subject impotence or want of chastity; these examples are from Oklahoma case, albeit some very old case . . .).

The Oklahoma Uniform Jury Instructions provide that a Plaintiff has to prove the following to win a defamation claim:

In order to recover for defamation, [Plaintiff] has the burden of proving the following five elements by the greater weight of the evidence:

1. The statement exposed [Plaintiff] to public hatred, contempt, ridicule or disgrace;
2. [Defendant] communicated the statement to (a person)/ persons) other than [Plaintiff];
3. ( That person)/(Those persons ) reasonably understood the statement to be about [Plaintiff];
4. The statement was false; however, minor inaccuracies do not amount to falsity if the statement is substantially true; and,
5. [Defendant] did not exercise the care which a reasonably careful person would use under the circumstances to determine whether the statement was true or false; and,
6. The statement caused [Plaintiff] to suffer ( a financial loss)/(damage to Plaintiff’s reputation and/or emotional injury).

Truth is a defense; element four of the jury instruction requires the Plaintiff to prove that the statement was false. Generally, a person can share an opinion without worrying about defamation because an opinion isn’t capable of being proven “true” or “false”. However, one thing to keep in mind is that expressing something as an “opinion” doesn’t automatically eliminate a defamation claim. A statement that is couched as an “opinion” but to most people sounds like a fact, may be subject to being proved false. Whether a statement is an opinion depends on the context of the statement and knowledge of the person publishing the statement.

 

Posted by Shawn Roberts in Blogposts

Can a worker dictate whether they are treated as an “employee” or “independent contractor”?

No.  This is not a choice that is made by either the worker or the employer.

Whether a worker is considered an “employee” or an “independent contractor” (often and imprecisely referred to as a “1099 employee”) is dictated by numerous factors including the circumstances of the work.  You can find some of the factors that determine employee or independent contractor status in this post and you can find guidance on avoiding what I call the “independent contractor traphere.

This question has come up in my law practice when I hear that a person has chosen to be 1099’d rather then w-2’d, as if the person was making making an ordering decision at McDonald’s and choosing the #3 Extra Value Meal instead of the #4 Extra Value Meal.  Like with many things in the law, it isn’t that easy, even for people who spend a lot of time working with the issue.

Posted by Shawn Roberts in Blogposts

What is an independent contractor under Oklahoma law?

Unfortunately, there is no easy answer to this question.  It is based on a range of factors and determined by different sources depending on what you are doing and who is raising the question.  For example, the Internal Revenue Service has a list of factors it considers which you can find here.  If you are in Oklahoma, it is important to know what Oklahoma authorities say matters.

According to the Oklahoma Worker’s Compensation Commission, these are the relevant factors to consider in determining whether a worker is an independent contractor:

  • The nature of the contract shows that the worker is independent from the contractor. For example, the contract may contain an agreement that the contracting party is an independent contractor.
  • The degree of control exercised by the principal (employer) over the work. The greater the degree of control exercised by the principal, the greater the likelihood is that the worker is an employee, rather than an independent contractor.
  • Whether the worker is engaged in a distinct occupation or business for others. For example, the worker is a painter who paints houses for multiple employers.
  • The kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
  • Whether the occupation requires special skills, license, education, or training; which tends to indicate that the worker is a contractor.
  • The worker supplies all or most of the materials that he or she needs to perform the job. If this is the case, it tends to indicate that the worker is an independent contractor.
  • The length of the job, i.e., whether the job is a one-time job or a job that will be performed on a regular basis.
  • The worker is paid as a separate contractor, e.g., an invoice is provided to the worker for his/her services; the worker is paid by the job; the worker files a federal income tax return for his/her business; the worker is provided with an IRS Form 1099 from the principal.
  • Whether or not the work is a part of the regular business of the employer;
  • Whether or not the parties believe they are creating the relationship of master and servant;
  • The right of either party to terminate the relationship without liability.
Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

What does the IRS consider in determining whether a worker is an employee or an independent contractor?

The IRS occupies a place like EF Hutton used to:  When it speaks, people listen.

So it is nice to know what the IRS cares about when considering whether a worker is an independent contractor or an employee. The IRS cares a lot about the degree of control a business has over the work in determining the independent contractor vs. employee question.  Consider the following from the IRS website:
In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.

The Common Law Rules

Common law generally means there is no statute or formal rule that sets it out, it is based on the decisions of the courts. The IRS says “Facts that provide evidence of the degree of control and independence fall into three categories:
  1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
  3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
The IRS says this about what businesses should consider in making the independent contractor versus employee distinction:
The IRS provides additional guidance here.  If you are an Oklahoma employer or worker, this material is worth a look.
Posted by Shawn Roberts in Blogposts