Shawn Roberts

On this blog, I write about and try to answer practical Oklahoma legal questions. My focus and most experience is in estate planning and business issues including Oklahoma non-compete law. I make a living as an attorney in the law firm I founded, Cazes Roberts, PLLC in Oklahoma City. I live in Edmond with wife Amy and my two children, Sam (17) and David (9). We live precisely in the path of where the "wind comes sweeping down the plains."
On this blog, I write about and try to answer practical Oklahoma legal questions. My focus and most experience is in estate planning and business issues including Oklahoma non-compete law. I make a living as an attorney in the law firm I founded, Cazes Roberts, PLLC in Oklahoma City. I live in Edmond with wife Amy and my two children, Sam (17) and David (9). We live precisely in the path of where the "wind comes sweeping down the plains."

In which county will your Oklahoma probate case be filed?

If you end up needing to do an Oklahoma probate case after a loved one passes away, where will that case be filed?

Oklahoma has a system of county courts, with one court in each of Oklahoma’s 77 counties.  The question of where a case is filed comes down to something called “venue”, a fancy French word that simply means “the place where something happens.” 

Oklahoma has a statute that determines the place where probate happens (i.e., the venue) and the statute provides these places that could be the county court where your probate case is filed:

1. County where the decedent was a resident.

2. County where the decedent died if the decedent was not a Oklahoma resident

3. Any county in which the decedent left property, if the decedent was not a resident of Oklahoma.

4. The county where the decedent left property, if the decedent died in a different county and was not a resident of Oklahoma.

5. Outside of the cases listed above, in the county where a probate case is first filed

 

An Oklahoma probate case can be filed in any county that fits into one of those 5 options.

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

The basic elements of an Oklahoma contract

 A contract is an agreement to do or to not do a certain thing

The Oklahoma contract is a fundamental piece of our lives and our legal system.  People make contracts with other people or businesses routinely and regularly, often without even thinking about it (e.g., hiring someone to mow your lawn; engaging a CPA to do your taxes, sending clothes to the dry cleaners, and many many more).

Since the contract plays such an important role in our lives, it seems wise to know the basics of a contract.  Below are the basic and essential elements of an Oklahoma contract:

(1) Parties capable of contracting.

Everyone 18 or older is generally capable of making a contract in Oklahoma with exceptions for people of “unsound mind”, some people in prison depending on the type of contract.  Unless you believe that a person lacks mental capacity you can assume the person is capable of entering into a contract.

(2) The parties consent to the contract

The parties to a contract must be entering into the contract freely, mutually and they must communicate this free consent to the other party.  Many times consent to the contract is implied by when there is an offer to make a contract and an acceptance of such offer to contract.  Consent to enter into a contract may be questioned if the person giving the consent was under duress, menace and/or a victim of fraud.

(3) A lawful object

According to Oklahoma law “The object of a contract is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do.”  This one plays out kind of like you might expect: contracting to purchase illegal drugs would not be a lawful object of a contract while contracting to purchase widgets would be a lawful object

(4) Sufficient cause or consideration

Consideration is any benefit one party to a contract either gives or promises to give to the other party to a contract.  A simple example would be a contract to construct a new home – the homeowner is agreeing to pay a sum of money and the home builder is agreeing to build a home.  The consideration is money flowing to the builder and a new home being provided by the builder to the homeowner.

 

Posted by Shawn Roberts in Blogposts

Super Easy Business Search on the OK Secretary of State’s Website

Have you ever wanted to know whether you dealing with a legitimate entity?  That is, a real corporation or real LLC?

For companies based in Oklahoma, finding out the legitimacy is snap, by doing a free search on the Oklahoma Secretary of State’s Website.  You can get to the site here and below I recorded a short screencast to walk you through the search process step by step.

 

Posted by Shawn Roberts in Blogposts, Business Law

What is an Oklahoma corporate veil and why does it matter?

Pierre Bonnard – Woman in a Veil

You may have heard the term “corporate veil”.

But do you understand what it is?  It sounds as if it could be a magic force field that encases companies housed in large buildings.

Actually, the concept is simpler than that, although it may have a bit of magic to it. 

Let start with the term “veil”. One of Merriam Webster’s definitions of “veil” is  to cover, provide, obscure, or conceal with or as if with a veil.

When a person forms a corporation or a limited liability company the entity has a legal existence that is distinct from the person.  One way to think of it is that usually the entity and the person file separate tax returns.  This means the company is legally different from the person.  The company can enter into contracts, make purchases, hire employees all on its own.  These activities, while guided by the owner of the company, are legally considered the actions of the company.

The corporate veil is the protection the owner of the company receives by forming a company.  The company assumes liability for actions rather than the owner being liable (usually).

The owner is veiled from liability by the company.  That is, the corporate veil is an intangible force field surrounding the owners of the corporation. It prevents the owners of the corporation from being liable for the misdeeds of the Corporation. Despite that, it may be the owners of the corporation who perpetrated the misdeeds through the Corporation.

There are some circumstances where the Oklahoma corporate veil may not hold up as expected and you can read about those situations in this blog post on “What does it mean to have your corporate veil pierced?”

Posted by Shawn Roberts in Blogposts

A diagram helping Oklahoma businesses navigate the Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) is a federal employment law focused on preventing hiring and workplace discrimination against employees with disabilities.  

The ADA applies to businesses with 15 or more employees.  That means any Oklahoma employer with 15 or employees needs to be aware of and in compliance with the ADA.

While a well-intended and often effective law, the ADA can be difficult for employers to navigate.  The definition of a “disability” is broad and working with a disabled individual to allow them to do their job often taxes business resources.  Nonetheless, businesses must comply with the ADA, and for this reason, I put together the diagram below to assist Oklahoma employers in understanding the ADA and complying with it.

This diagram is not intended to be used as a checklist for either complying with the ADA or determining that an employee with a disability can be terminated.  Instead, this diagram is intended to be a general guide for employers dealing with disability issues.  If you have specific questions about an employee or need assistance, do not rely on this diagram to make a decision, contact an attorney.

 

Posted by Shawn Roberts in Blogposts

Definition of Oklahoma Probate and Estate Planning Terms

The key for me to understanding a concept, idea, directions etc. . . is to understand the terms used in the description.  Without knowing what the words mean, I have little chance to understand the big picture ideas.  So, to see it all fit together, I learn the keywords.

It is no different in probate and estate planning in Oklahoma.  We need to understand what the keywords mean.

Below is a table containing many key terms in Oklahoma probate and Oklahoma estate planning followed by the definition of the term.  If you want to check my sources or read more about the term click on the link below each definition.

Enjoy.

 

Term Definition
Advancements All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73041
Beneficiary means and includes any person entitled, but for his disclaimer, to take an interest, by intestate succession; by devise; by legacy or bequest; by succession of a disclaimed interest by will, intestate succession or through the exercise or nonexercise of a testamentary power of appointment; by virtue of a renunciation and election to take against a will; as beneficiary of a testamentary trust; pursuant to the exercise or nonexercise of a testamentary power of appointment; as donee of a power of appointment created by testamentary instrument; or otherwise under a testamentary instrument;
https://www.oscn.net/applications/oscn/deliverdocument.asp?id=72940&hits=294+280+265+
by right of representation means the estate is to be divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one equal share and the equal share of each deceased person in the same degree being divided among his issue in the same manner.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73029
Condition Precedent A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73020
Condition Subsequent A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73023
Disclaimer means a written instrument which declines, refuses, releases, renounces or disclaims an interest which would otherwise be succeeded to by a beneficiary, which instrument defines the nature and extent of the interest disclaimed thereby and which must be signed, witnessed and acknowledged by the disclaimant in the manner provided for deeds of real estate.
Holographic Will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this State, and need not be witnessed.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72958
Interest means and includes the whole of any property, real or personal, legal or equitable, or any fractional part, share or particular portion or specific assets thereof or any estate in any such property or power to appoint, consume, apply or expend property or any other right, power, privilege or immunity relating thereto
https://www.oscn.net/applications/oscn/deliverdocument.asp?id=72940&hits=294+280+265+
International Will means a will executed in conformity with the Uniform International Wills Act
https://www.oscn.net/applications/oscn/deliverdocument.asp?id=461008&hits=12+
Issue lineal descendants
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73029
Legacy, annuity bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72919
Legacy, demonstrative demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails in whole or in part, resort may be had to the general assets as in case of a general legacy.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72919
Legacy, general All other legacies than those specifically defined
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72919
Legacy, residual embraces only that which remains after all the bequests of the will are discharged.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72919
Legacy, specific A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator is specific
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=72919
Succession is the coming in of another to take the property of one who dies without disposing of it by will.
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=73027

 

 

Posted by Shawn Roberts in Blogposts

Don’t miss the Oklahoma Transfer on Death Deed Deadline Filing Date

I have written about the Oklahoma transfer-on-death deed is a probate-avoidance tool. 

The TOD Deed allows a person to set up their property to transfer to another person after the owner of the property dies.  The person receiving the property only need file an affidavit with the county clerk stating that the person died, whether the person was married, and a legal description of the property.

However, there is an important requirement that you must not miss: 

The person receiving the property has only nine months following the death of the property owner to file the required affidavit.  If the person fails to file the affidavit within 9 months, the property becomes part of the deceased person’s estate.  If the property becomes part of the deceased person’s estate, there almost certainly will need to be a probate.

So, if you are in position of receiving property under an Oklahoma transfer-on-death deed, be certain to track the 9-month date.

 

Posted by Shawn Roberts in Blogposts

Announcement: New Year New Contact Information


If you have followed my blog for a while you know that about 8 years ago I had a law firm under my own name, Shawn J. Roberts, P.C.  Since that time, I have practiced law, the same as always, but under other names.  Now, the old has become new again:

I want to let you know about a small change in the structure of my law practice which I do not think will impact you much.  As of January 1, 2021, my law firm is called Shawn J. Roberts, P.C..  

With the shift in name, I have a new email and telephone number, nothing else changes. My physical location stays the same; indeed, I recently signed a new 5-year lease for my office at the Waterford.  I really enjoy working at the Waterford, and feedback from clients suggests most appreciate this location as well.

Please update your records to show the following contact information, where you can easily reach me:

Telephone Number: 405.562.7371

Email Address: sjr@shawnjroberts.com.

Thank you, and feel free to reach out to me anytime if you have questions. As always, I am here to serve you.

 

Posted by Shawn Roberts in Blogposts

Practical Differences: Oklahoma Last Will and Testament vs. Revocable Trust

People are curious about the differences between and Oklahoma last will and testament and an Oklahoma revocable living trust.  In particular, people want to know how each document will impact them and their family.

On this Blog, I have written quite a bit about each of the Will and Trust and some of the differences.  You can check out this PAGE as a solid resource for finding a substantial amount of my written materials.  Below is a simple info graphic highlighting some of the differences between an Oklahoma last will and testament and an Oklahoma revocable living trust.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Do you know what an Oklahoma estate is?

You would be correct if you pointed to Investopedia’s definition of an estate:

An estate is everything comprising the net worth of an individual, including all land and real estate, possessions, financial securities, cash, and other assets that the individual owns or has a controlling interest in.

Each person has an estate during their life and following their death.  The difference between a person’s estate during life and death is that after death the estate technically becomes a separate legal entity.  Consider the Internal Revenue Service’s definition of an estate:

  • An estate (or decedent estate) is a legal entity created as a result of
    a person’s death.
  • The estate consists of the real and/or personal property of the deceased person.
  • The estate pays any debts owed by the decedent and distributes the
    balance of the estate’s assets to the beneficiaries of the estate.
  • An estate arises on a person’s death whether the person died with or without a will.

It is also worth pointing out that since you have an “estate” you need to make an “estate plan”, a topic that is discussed several places on this Blog: Here, Here and Here to mention a few.

 

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