Oklahoma Probate: Per Capita vs. Per Stirpes

Contrary to what it sounds like, stirpes is NOT something one visits the doctor to have treated.  

However, there are enough questions about the probate terms “per capita” and “per stirpes” to merit this blog post containing an explanation.  These terms describe different methods of sharing a deceased person’s estate when someone below the deceased person in the family tree has died before the decedent.  So, for example, Per Stirpes might be involved if a person, who had three children, passes away, leaving two living children and one child who died before the person who passed away. 

Per Stirpes 

Per Stirpes is a method of dividing an intestate estate where a class or group of distributees take the share which their deceased parent would have been entitled to, had he or she lived, taking thus by their right of representing such ancestor, and not as so many individuals.”** Essentially, Per Stirpes means that the relatives of the deceased person take the share their deceased parent would have taken.

Per Capita

Per Capita is a method of dividing an intestate estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree to the decedent, without reference to their stocks or the right of representation.”**  Essentially, Per Capita means relatives in the same generation each receive the same share of the estate.

**Both definitions are from the Oklahoma Court of Civil Appeals case Matter of Estate of Kinnamon, 1992 OK CIV APP 92, 837 P.2d 927, 928.

Per Capita with Representation

Per Capita with Representation is the method that Oklahoma uses for distribution when a person passed away without leaving a last will and testament.  With this version of per capita distribution, the number of shares is determined by reference to the generation nearest the testator which has at least one surviving person.  The image below shows a per capita with representation distribution, with the number of shares being determined at the grandchild level, since that is the first level where there is a surviving person.

This table summarizes the different distribution methods including per capita with representation, the method use in Oklahoma probate.


Posted by Shawn Roberts in Oklahoma Estate Planning

Closing down an Oklahoma business with the IRS

When you are closing your Oklahoma business (corporation, limited liability company or other), the one party you want to be certain to square up with is the Internal Revenue Service. Fortunately, your friends at the IRS provide a checklist to guide you through the process of closing down your Oklahoma business.

The meat of the IRS Checklist is included below for your viewing convenience:

Posted by Shawn Roberts in Blogposts

The Oklahoma series LLC is not only for real estate but also for . . .

Bernard Spragg. NZ

You probably know that an Oklahoma series limited liability company provides excellent protection for owning multiple tracts of real properties (think rental homes).

But did you know that the Oklahoma series limited liability company may very well work with other non-real property assets and forms of doing business such as:

◊High value medical & business equipment.

For example, a doctor or dentist who owns medical imaging equipment valued six figures, where such equipment can (in remote scenarios) generate substantial liability. Think diagnostic imaging where the machine doesn’t deliver a reliable image . . .

◊Separate divisions of a company

A business owner might use an Oklahoma series LLC to segment a large business in separate departments or divisions. In this context, the terms “department” or “division” don’t have a particular legal meaning but rather describe business segments.

◊Separate product lines offered by a company

You can create a department (or a division – they mean similar things and are sometimes used interchangeably) without filing or drafting any legal agreement at all. However, some companies appreciate the formal separation that accompanies separate series. You can do the same thing for product lines, employee teams, projects, business locations and for other business components.”

◊Equity Compensation Program within a business

As a spinoff of the separate product lines topic about, this use might work in a business with multiple divisions. With each division segregated into a separate series, the LLC can give the key employees of each series some sort of equity interest tied to that series only rather than equity interests in the entity as a whole. This rewards employees in productive divisions and protects them from the potential downside of other divisions.

The Oklahoma law series LLC law allows real property and other assets to be owned by a series. This means that the possible series LLC uses listed above are but a few items. I touched on this topic briefly in this post on the practical uses of an Oklahoma series limited liability company.

By the way, in listing these items I am not endorsing them as the correct use for you or your property. Before you implement a series LLC, take the time to talk with an attorney to discuss the plusses and minuses based on your specific set of circumstances.

Posted by Shawn Roberts in Blogposts, Oklahoma limited liability company

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