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What does promissory estoppel mean under Oklahoma law?
The law is full of terms of art, legal ease, Latin and a variety of other terms that make it hard for anyone other than lawyers (and hard even for some lawyers) to comprehend.
One such term is promissory estoppel. This is a term that comes up an Oklahoma lawsuit when a person is trying to enforce an agreement but the agreement doesn’t quite meet the legal definition of an enforceable “contract.”
Recently, in a court case in Okmulgee County, Oklahoma, the attorneys representing one of the parties provided an excellent definition and explanation of the term promissory estoppel:
Jedson's MPSJ Against CP Kelco 3.11
Here is a link that will take you to the full document (it is a large document, give it some time to load) and to the court case from which the document came.
The two primary uses of an Oklahoma Revocable Trust Trust
The Oklahoma revocable living trust is a fairly common estate planning tool.
I have written about using a trust to protect and plan for your family several times such as here, here and over there. The more I have worked with Oklahoma trusts and seen how my clients use them, I have come to see primarily used to accomplish two things:
The Probate avoidance Trust
The goal of the probate avoidance trust is to get all your property into it, then when you pass away, the trust passes all of your property to your heirs with no strings attached, without your heirs being required to file a probate case in court. Instead, the trust distributes your property to the people you choose. When all the property has been distributed by the trust, the trust reaches the end of its life and is terminated. The Oklahoma probate-avoidance trust functions similar to an Oklahoma last will and testament, except with the trust, your heirs avoid the court-supervised probate case.
The Legacy Trust
The goal of what I call the legacy trust is to get all your property into your trust and when you pass away distribute all of your property to your heirs, over an extended period of time and possibly with some qualifying instructions (Note: If this type of trust is properly created and managed, it to should help your heirs avoid probate). The legacy trust typically continues on for a lengthy period of time after you pass away doing things such as:
- Providing for your children’s education
- Protecting your children’s inheritance from their creditors
- Gradually providing financial assistance on terms you design
The right trust for you and indeed even IF a trust is right for you is something I am happy to talk with you about.
What is the difference between an Oklahoma revocable trust and an irrevocable trust?
Below is a list of qualities that explain and distinguish an Oklahoma revocable trust (also known as a “revocable living trust”) and an Oklahoma irrevocable trust.
- A revocable trust can be changed or modified by the people who make it.
- An irrevocable trust cannot be changed or modified except in very limited circumstances
- Property placed in a revocable trust remains under the control of the people who made the trust.
- Property placed in an irrevocable trust is no longer considered belonging to the people who made the trust.
- Property placed in a revocable trust remains part of the estate for tax purposes
- Property placed in an irrevocable trust usually is no longer part of your estate.
- Assets placed in a revocable trust are still subject to creditor’s claims
- Assets placed in an irrevocable trust are no longer part of the estate of the person who made the trust so they are usually out of the reach of creditors.
How an Oklahoma Limited Liability Company is taxed
One of the factors to consider when choosing whether to do business as an Oklahoma corporation or Oklahoma limited liability company is how the new entity will be taxed. There are several options for both corporations and limited liability companies. Below is a diagram explaining how an Oklahoma limited liability company is taxed.
The source for this information is the Internal Revenue Service website, specifically this page.
Consider the cost/benefit analysis in determining whether to do an Oklahoma probate
One of the primary questions that needs to be answered is whether a probate case is necessary? As we discussed, my goal is always to try to find a way to avoid doing a probate case if possible and still allow my client to access the assets.
Whether you do an Oklahoma probate is a cost/benefit analysis: The cost of doing the probate (attorney fees, court costs, etc.. .) versus the benefit you hope to receive from the process (control over property, inheritance of property you would not otherwise get). To be able to perform a reliable cost/benefit analysis, you need to understand why probate happens. The answer is that while probate happens for many reasons, the primary reason is when there is property to inherit, but it can’t be inherited unless you do probate.
Although a lot of effort is put into avoiding Oklahoma probate, there are times when it is simply the only option to change the title to a piece of property or free up funds held in a bank account. The result of a probate proceeding is usually a Judge signing an order that transfers title to the property.
Why probate happens
Below are some scenarios in which you might need Oklahoma probate:
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Real Property.
An unmarried person dies owning a house and title to the house is solely in the deceased person’s name; although other states provide a process where title to real property can be transferred by affidavit, I am not aware of any similar process in the state of Oklahoma. I believe that the only way to transfer title to real property, where the person who died is the sole owner of the real property, is to get an order from a judge transferring title, out of a probate case.
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Life insurance.
A person dies leaving a life insurance policy with beneficiaries who are no longer living;
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Not transferred to Trust.
A person who has a living trust dies, but has property that was never transferred to the trust such as real property or investment accounts;
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Accounts with no beneficiary.
Typically, with retirement accounts, investment accounts and many times on bank accounts, there is the opportunity to name a beneficiary. The beneficiary is the person or people who automatically receive the proceeds of the account (with proof of death of the owner and proof of beneficiary identify of course). If a person does not name at least one beneficiary on an account such as this, that usually means the account is going to probate. Without probate, the company holding the account will not release it (there are two small exceptions to the general rule: Oklahoma small estate affidavit and Oklahoma affidavit of delivery of personal property); and
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Mineral Interests.
A person dies owning an Oklahoma mineral interest, but the interest is not held in a trust, and the title is solely in the name of the person who dies. Many times, the operator of the Well will not continue to pay royalties without an order from the Oklahoma probate court specifying who the heirs are.
As you might expect, this means that sometimes the question of whether to do probate or not is difficult when the value of the assets in the estate are small because that value must be weighed against the cost of doing the probate.
Who would end up with the property in probate?
The other question is assuming the person who passed away did not have a last will and testament, who would end up owning the property? His property would pass under Oklahoma law of intestate succession, which is found at Title 84 O.S. sec. 213. Section 213 is a difficult statute to interpret, but generally, the order of inheritance would go as follows: spouse, children, grandchildren, the parents of the decedent, children of parents in equal shares (your uncle’s siblings), grandparents of the decedent; children of the decedent’s grandparents.
Summary Probate
Sometimes the question of whether to do a probate or not is difficult when the value of the assets in the estate are small because that value must be weighed against the cost of doing the probate.
The Estate may qualify for the summary probate process. This is an abbreviated version of a full probate, with the emphasis being on speed and reducing some of the cost of the normal probate process. That being said, there are still cost. In my experience, this type of probate cost 3,000.00-$3500.00, plus out-of-pocket cost. You can read more about the summary probate process here.
Should your Oklahoma series LLC have one bank account or multiple bank accounts?
One goal in using an Oklahoma series limited liability company is to separate the liabilities of different assets within one limited liability company. For example, the series LLC creates cells within it, and we call the cells “series.”
The magic of the series model
Each series has a name and is intended to be legally separate for all other series. Series “A” for example, may own a rental home and Series “B” may also own a rental home. The magic of the series model is if a water heater explodes on the Series “A” property, causing property damage and physical injury, only Series “A” is responsible for the damage, not any other Series. Liabilities from one series don’t leak into any other series (pun intended).
The need to maintain series separately
One key to securing series LLC protection is to maintain and operate each Series separately. That means you need to account for each series separately. As to bank accounts, ideally, each series would have its own bank account, into which all revenue would be deposited and out of which account all expenses would be paid. However, for people with many properties (meaning many series), it is cumbersome and difficult to maintain a separate bank account for each series. I have clients who own as many as 30 rental properties, and such clients have no interest in using 30 bank accounts.
Using one bank account
When not using separate bank accounts, you must still maintain the ability to track all revenue and expenses for each series separately. That means the accounting software (e.g., like Quickbooks) can sort and then generate reports for each series’ revenue and expenses. While not ideal (separate bank accounts would be ideal), depositing funds into one bank account with the ability to track and report funds for each series separately is an alternative.
Should your automobiles be transferred to your Oklahoma revocable living trust?
It is a good question.
The short answer is “yes,“ automobiles should be transferred to a person’s Oklahoma revocable trust, to receive the full benefits of Oklahoma estate planning. Below is a bit longer explanation:
Purpose of Estate Planning with a Revocable Trust
One of the purposes of doing estate planning with a revocable living trust is allowing a person’s family to avoid Oklahoma probate when the person passes away. The trust helps a person avoid probate because assets that typically force a probate case are owned by the trust when a person passes away (more on that here).
For example, if an individual owns real property at the time of his death, titled solely in his name, with no mechanism to pass the title to the property (such as a transfer-on-death deed), the real property is going to have to be probated to change the title to the heirs.
Contrasting that scenario with the revocable trust scenario, upon a person’s death where his revocable trust owns real property, the trust can continue as the owner and eventually transfer title to the property to the beneficiaries. Since a change in title is accomplished by the trust, there is no need to do a probate case based on the real property.
Automobiles and Revocable Trust
Automobiles come up a little bit short in terms of forcing an estate to be probated. There are scenarios where one can change the title to an automobile following a person’s death, by taking the original title to a tag agent and demonstrating that they are the beneficiaries entitled to receive the automobile. This showing of beneficiary status is usually accomplished with a last will and testament. This method is inconsistent and sometimes varies from tag agent to tag agent, so I do not recommend this method to my clients.
Instead, I recommend that my clients transfer title to their automobiles to their revocable living trust by signing the back of the original title at the tag agent. It’s a relatively simple process and allows people to get the full benefit of the revocable living trust.
How does Oklahoma law protect an employee’s social media accounts?
Social media has existed long enough to become common in our lives.
Although it not the only way to use social media, public broadcasting and interaction is the norm for many people (as opposed to say protecting your Twitter account from public consumption). It is quick and simple for one to broadcast any thought, feeling, question, rant or tangent into publicly-occupied cyberspace. With the ubiquity of social media, Oklahoma employer and employees are likely to encounter “issues” from the use of social media. Recognizing this reality, in 2014 the Oklahoma legislature enacted a law to address employer actions regarding personal social media accounts. The statute is titled § 173.2. Prohibited actions regarding personal social media accounts–Exemptions–.
Below are some of the actions that an Oklahoma employer is prohibited from taking related to employees’ social media accounts:
1. Require an employee or prospective employee to disclose a user name and password or other means of authentication for accessing a personal online social media account through an electronic communications device;
2. Require an employee or prospective employee to access the employee’s or prospective employee’s personal online social media account in the presence of the employer in a manner that enables the employer to observe the contents of such accounts if the account’s contents are not available to the general public, except pursuant to an investigation as provided in subsection D of this act;3. Take retaliatory personnel action that materially and negatively affects the terms and conditions of employment against an employee solely for refusal to give the employer the user name or password to the employee’s personal online social media account; or
4. Refuse to hire a prospective employee solely as a result of the prospective employee’s refusal to give the employer the user name and password to the prospective employee’s personal online social media account.
You can find the Oklahoma Statute here. As always there are exceptions and qualifications, so if questions arise for you, please feel free to reach out to me.
When can an Oklahoma employer deduct from an employee’s paycheck?
An employee’s paycheck is semi-sacred and rightfully so because it is the sole source of income for most people in Oklahoma.
The sacrosanct nature of the paycheck means that it cannot be withheld or deducted from except in certain circumstances. Generally, an Oklahoma employer cannot deduct from or withhold out of an Oklahoma employee’s paycheck unless:
- The deduction is permitted by state or federal law (taxes, unemployment compensation, etc. . .), or
- The employer and employee have agreed in a written document that is signed by parties and only in these circumstances:
- repay a loan or advance or to recover a payroll overpayment,
- for the cost of merchandise purchased by the employee,
- uniforms,
- insurance premiums,
- retirement or other investment plans,
- for breakage or loss of merchandise, inventory shortage, or cash shortage so long as the employee was the sole party responsible for the cash shortage or item damaged or lost.
This material came out of the Oklahoma Administrative Code Section 380:30-1-7 and with the assistance of this website.
This is a general summary of allowable withholdings from paychecks of Oklahoma employees. For assistance with a specific matter, please feel free to reach out to me.
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