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Oklahoma Revocable Living Trust: Questions & Answers

The Oklahoma revocable living trust is a great tool for a person to use to take care of their family both before and after the person has passed away.  Below is some additional information about  Oklahoma trusts.

What is an Oklahoma living trust?
The living trust is also known as a “revocable trust,” a “revocable living trust,” and an “inter vivos trust.”  What is a trust?  Simply put,

A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. With the revocable living trust, you can be the trustee of your own trust, you keep complete control over all property held in trust but get the benefits of the law treating the trust as a separate legal entity.

For more information about the Oklahoma living trust, check out this Blog Post.

What are some of the advantages of having your assets owned by a living trust when you pass away?
*Elimination of the Probate Process
*Immediate and continuous access to assets and cash flow
*Protecting your assets and providing continuous cash flow in the event you become mentally or physically disabled or incapacitated prior to your death 
*Reduces the burden on the children and other family members to search and gather assets after death.

What are five things you can do with an Oklahoma trust that you cannot do with a will?
(1) Your family can avoid probate.
(2) Protect your privacy.
(3) Plan for a special needs child.
(4) Facilitate your care during a disability.
(5) Allow your family to have immediate access to your assets at death.

For more information about the things you can do with an Oklahoma trust that you cannot do with a last will and testament, check out this post.

Why is privacy a highly underrated feature of an Oklahoma living trust?
How is privacy part of the trust process? To understand this, you must understand what happens if a person dies with no living trust. If a person passes away owning real property, investment accounts, or mineral interest, usually that person’s errors must file in a probate proceeding to access the property.

Oklahoma probate is a public process. You file a lawsuit in the County Court in which the deceased person lived, and all of the documents filed in the lawsuit are publicly available. Not only are the documents publicly available, but with current technology, most of the documents can be accessed from any Internet-enabled computer. That means anyone can view the documents that are part of the probate case, including the last will and testament, which often contains personal details and other private family matters.

You avoid probate by ensuring that all of your property is held by a living trust. If the property is held by the trust, there is no need to have a probate proceeding when someone passes away because the owner remains the same: the living trust. Your heirs have immediate and continuous access to all the property and no reason to make all of the details of the family public in an Oklahoma probate case. The process of administering a living trust is private nothing needs to be filed publicly like with probate.  To read more about the sneaky goodness of the privacy provided by an Oklahoma living trust, check out this Post.

 

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Oklahoma Estate Planning: Questions & Answers

A decent portion of this Blog is dedicated to Oklahoma Estate Planning:  wills, trusts, powers of attorney etc. . .

With that in mind, a summary post of estate planning topics seemed in order:

What is an Oklahoma Estate?
Since this Blog contains so many posts about Oklahoma “estate planning”, it makes sense to define what an “estate” is.  According to Investopedia, 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.”  You can read more about what an estate is in this Blog Post.

What are the tools used in Oklahoma estate planning?
Oklahoma Estate Planning tools: The Living Trust
Oklahoma Estate Planning tools: the Last Will and Testament
Oklahoma Estate Planning tools: The Durable Power of Attorney
Oklahoma Estate Planning tools: The Living Will

What are the critical decisions you make in an Oklahoma Will?
1. Determine who gets your property and in what proportions.
2. Choose the person who will take care of your estate and make sure everything is handled like the Will or Trust states.
3. Nominate people to be the guardians of your minor children.
4. Give specific items of personal property to very the person or people to whom you want them to go.

What are the 7 Myths of Oklahoma Estate Planning?
Oklahoma Estate Planning Myths: A will covers disposition of all your assets
Oklahoma Estate Planning Myths: Having a Will avoids Oklahoma probate
Oklahoma Estate Planning Myth: If I have a Trust, I do not need a Will.
Oklahoma Estate Planning Myths: If I die without a will, all my assets go to the government.
Oklahoma Estate Planning Myths: I can do my own estate plan
Oklahoma Estate Planning Myths: Estate Planning is only for the wealthy
Oklahoma Estate Planning Myths: I am too young for an estate plan

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Oklahoma Probate: Questions & Answers

Part of my law practice is dedicated to helping people with Oklahoma estate planning. 

One component of that estate planning is helping people set up their estate to avoid Oklahoma probate.  Sometimes, however, probate is necessary, and below is some information on Oklahoma probate.

What is Oklahoma probate?
Oklahoma probate is the process of a court administering the estate of someone who dies to determine:
1. What property the person owned.
2. What debts the person had.
3. Who is entitled to receive the property.
Ultimately, in a probate case, the court enters an order that transfers the property owned by the person who died to the people who are entitled to receive it.   You can read more about Oklahoma probate in this blog post.

What types of property require an Oklahoma probate?
Typically, the following types of real and personal property require probate when they are not set up upon a person’s death: (a) mineral interest, (b) life insurance (c) accounts with no beneficiary, and (d) real property.  You can read more about the types of property that often lead to an Oklahoma probate in this blog post.

Does having a last will and testament help you avoid Oklahoma probate?
No. A Last Will and Testament does not do anything to avoid a probate case when the property at issue is real property.  A Will is the written expression of a person’s desires for how their property will be passed on following the person’s death.  A Will cannot, however, change the title to real property.  For an example of this issue, check out his blog post.

What is the Oklahoma Summary Probate process?
Summary probate is a shorter, quicker version of full-blown probate. Rather than there being two hearings in front of the Judge, there is only one hearing at the end of the process. To give you an idea of what to expect, below is a diagram of how the Oklahoma summary probate process usually flows through the court:

Summary Probate

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

Turning 18 in Oklahoma: The legal issues for parents to consider

Part of a young woman or young man’s journey into adulthood is turning 18, becoming legal so to speak. 

A young adult inherits many new rights and also corresponding obligations, including the right to vote, enter the military, play the lottery, and get married.  Conversely, newly-minted 18-year-old males must register with the Selective Service System and be called to serve on a jury. 

The change in legal status brought on by turning 18 also means that parents should consider getting several legal documents in place that will allow them to continue to care for their children:

Healthcare Power of Attorney
When your child turns 18, you as parents don’t necessarily have the right to make all healthcare decisions for the child.  Reaching the age of majority means your child has an accident and is incapacitated or temporarily disabled; unless you have an Oklahoma power of attorney, you might have to seek guardianship from the court.  Under an Oklahoma power of attorney, your child is authorizing you to act for them if they are incapacitated and there are medical decisions to make.  This type of power of attorney may be made effective immediately as an alternative to becoming effective when your child becomes incapacitated.

Financial Power of Attorney
Similar to the Healthcare Power of Attorney, the Oklahoma Financial Power of Attorney allows your child to appoint to make financial decisions, access bank accounts, pay bills, and the like for them.  This power of attorney can be effective immediately or only to become effective when your child becomes incapacitated.

HIPPA Authorization
This document, short of a power of attorney, is still helpful in that it will allow you to communicate with your child’s healthcare providers, even while your child is not incapacitated.  This may be particularly useful if you are still paying your child’s healthcare expenses and need to communicate with healthcare professionals.

 

The inspiration for this blog post came from a post written by Helene Wingens on the site Grown & Flown.  If you like what you read here, check out the full post on Grown & Flown.

 

If you have questions about this post or the document discussed here, please feel free to reach out to me anytime (sjr@shawnjroberts.com).

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

The magical, nearly mystical return of the Oklahoma Health Care Power of Attorney

Almost as quickly as it exited Oklahoma law, the Oklahoma health care power of attorney recently reappeared, albeit under a different statute number.  Below is the backstory about this elusive document which provides a valuable right.

The old law
Until November 1, 2021, Oklahoma law allowed people to make a power of attorney to address health care issues (e.g., talking to a doctor, agreeing to treatment, dealing with medications etc. . .). In the halcyon days of the Oklahoma Uniform Durable Power of Attorney Act, a person could give another person or people the ability to make a variety of health care decisions (Follow this link for a view of the previous POA statute).  The Health Care POA was useful and necessary because it covered a range of health care and medical decisions up to the end-of-life decisions that are instead made in an Oklahoma Advance Directive.  While a general power of attorney does cover primarily financial and personal decisions, it does not cover health care decisions.

The new law not covering health care
In 2021, the Oklahoma Legislature enacted a new Uniform Power of Attorney Act under Title 58 O.S. sec. 3001 et. seq.  This Act allows a person to make a power of attorney covering a wide range of decisions but stops short of health care decisions.  At the same time, the Oklahoma Legislature repealed the Uniform Durable Power of Attorney Act (Note: If you did a power of attorney under the Act prior to November 1, 2021, it remains valid under Oklahoma law).  So, following the flurry of power of attorney-related legislation, Oklahomans could do a power of attorney covering most personal decisions but not health care.

This was a problem.  Health care powers of attorney have been around for years and people routinely relied on the document to cover medical and health care decisions.  In the absence of the ability to do a health care power of attorney, there was a substantial void.  From my perspective, the Oklahoma Legislature tried to improve how powers of attorney were handled but somewhere in the process it forgot about health care.

The solution
Fear not, however, because it wasn’t long until the void was mostly filled:  The 2022 Oklahoma Legislature enacted a new Act that covered health care powers of attorney, known as the “Oklahoma Health Care Agent Act”, Title 63 O.S> sec. 3111.1 et seq.  The Health Care Agent Act, effective April 29, 2022, restored most of the options and rights Oklahomans need to do a health care power of attorney.

So, with the dust having settled, Oklahomans can once again make both a power of attorney for general matters and a health care power of attorney. 

Schedule an appointment with us today to create or update your Power of Attorney documents (405-562-7371). 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

The legal building blocks of a successful Oklahoma business

When building a house, at least a well-built house, you need a solid foundation, good materials, and someone who knows what they are doing to assemble all the pieces.

A similar principle applies when building an Oklahoma business: You need to have solid component parts and you need to know how the parts fit together.

This post is intended to discuss the items that an Oklahoma business needs to address to build a foundation for success.  Of course, as part of building your new business, you need to assemble a support team, a concept I talk about in this blog post.

The beginning: Organizational Structure
This means fundamental formation:  for a corporation, it means filing your certificate of incorporation with the Oklahoma Secretary of State and for a limited liability company it means filing your articles of organization with the Oklahoma Secretary of State.

Your business’s constitution
 Similar to how a country might have a constitution or a city might have a charter, Oklahoma corporations and limited liability companies have a central governing document: for limited liability companies it is an operating agreement and for a corporation it is bylaws.

Ensuring your business standing is “good”
Once you form your company and enact your constitution, you need to ensure you are taking the very simple steps necessary to remain in good standing with the State of Oklahoma:

If you are a corporation, you need to file a franchise tax return each year (see more about that —> here);

If you are a limited liability company you need to file an annual report (see more about that —> here)

The people running the business
For a corporation, it goes, from the top down, shareholders, members of the board of directors, and officers run the corporation on a day-to-day basis.

For a limited liability company, members (the owners) choose the manager(s) who run the day-to-day operations of the company (unless the LLC is “member-managed).

Note: If you are starting a business with at least one other person, it would be a good idea to consider my blog post The questions you need to ask when starting an Oklahoma business with another person

Contracts
At the core of a successful business are the relationships it has with its employees, customers, and products and services.  For those relationships to be clear and operate efficiently, you need written contracts.  Among other things, a written contract defines the terms of your relationship, the money, and how the relationship ends.

Intellectual Property
Your business’s intellectual property is an asset that is often overlooked or disregarded.  What is intellectual property?  In practical terms, intellectual property is things like your business’s name, its logo, its marketing slogan as well as private and proprietary information that provides your business with an edge over its competitors.  How do you protect your intellectual property? You use the items listed below:

Intellectual property has value just like more tangible assets such as inventory, furniture and fixture and buildings.

Finance
As a means of addressing finances and simply making a wise decision, get a CPA involved with your business.  Not just for doing your taxes, but also for advising you on tax strategy and ensuring you have a sound accounting structure in place.  And if you need financing, consider reading my article I started an Oklahoma business, I need more money . . . what do I do?

Taxes
This category is simple yet eminently important.  Obviously, you need to calculate your taxes, file your returns and pay any tax due (unless you are an Oklahoma limited liability company). The CPA I referenced above should be helpful in all things tax, both Oklahoma tax and the IRS.

 

There will probably be other legal-related issues, both that unfortunately, you can anticipate and those legal issues that you cannot anticipate.  This post is a great start, and  I am available to help with all of your Oklahoma business’s legal issues.  Feel free to email me: sjr@shawnjroberts.com

 

 

Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma limited liability company

Okay, I want to start an Oklahoma business, what do I need to do?

So you decided you are going to start your own business?

Going to be your own boss?

I am sure you are excited and pumped up with the energy that flows from seeing how you can make a positive change in your life.

At some point, you will need to start putting the ideas into execution and that point is where I can help.  I help small business owners get from the conception stage to the operation phase.  Birth through adulthood and independence so to speak.

But where do I start, you are probably asking yourself?

Surprisingly, there are very few legal requirements controlling the start of a business. Sometimes it may be as simple as starting advertising and then providing your service or product when you have customers.  While legally the steps could be few, practically it is wise to plan and prepare to pave the way for success.
 
Below is a post from the Oklahoma Secretary of State that seems helpful to me. I would be telling you similar things so rather than do that, here is a link to the post (https://www.sos.ok.gov/business/infoSB.aspx).
 
This post starts out with the conclusion that you are going to create a corporation or a limited liability company, both being referred to as an “entity.” However, it also touches on other items that are important. Also, here is a link to a post from the Oklahoma Department of Commerce that is helpful in understanding the items to consider when starting your business.
 
One place where I come into the process is to help you set up an entity: either an Oklahoma corporation or Oklahoma limited liability company.  There are several reasons why you want to have an entity own and operate your business.  The most important of which is you want to avoid being individually (i.e,, personally) liable for issues created by your business.  To understand Oklahoma individual liability, check out this blog post.
Posted by Shawn Roberts in Blogposts, Business Law

The Team you need when you start your new Oklahoma Business

People put together teams for purpose of winning football games, building automobiles, and traveling into space, among other things. 

One value of the team is that all team members have different roles, which when brought together provides the organization with a sum greater than its parts.

As an Oklahoma business owner, you need a team as well.  The team brings skills and experience that you likely do not have.  Who are the critical team members for the Oklahoma small business that wants to maximize its efficiency and effectiveness?

Accountant
For a business to be a long-term success, it must properly manage its money and ensure that it complies with all tax laws from the Oklahoma Tax Commission and Internal Revenue Service.  An accountant (a/k/a “CPA”) brings tax knowledge and experience helping businesses comply with all tax laws.

Insurance Agent
No business expects things to go wrong.  However, a prudent business owner knows that things sometimes go wrong anyway, often through no fault of the business owner.  For these situations, insurance is critical.  Not just any “insurance” but insurance coverage that meets your specific business’s liability needs.  This is where an insurance agent comes in:  You can draw on the experience of the insurance agent as to what type of insurance you need and how much coverage you need.

Attorney
Considering who authored this Blog Post, you are probably not surprised that an attorney made the team.  Nonetheless, an Oklahoma attorney is a valuable team member because the attorney brings legal knowledge combined with experience.  The attorney has seen many of the issues small businesses run into, knows the type of documents the business needs and can counsel the business on best practices to avoid legal issues.  The attorney has answers to questions like: What type of legal organization should I be?  How do I protect my business when employees leave?

 

Have you assembled your team?  If not, why not?

Posted by Shawn Roberts in Blogposts, Business Law

The questions you need to ask when starting an Oklahoma business with another person

There is nothing like the excitement of starting a new business.  Even more so when you have a partner, someone to share the experience with. 

Things are probably never as good as when you are infused with the pure adrenaline of seeing your dreams become reality. 

–BUT–

things happen, businesses fail, and even worse sometimes businesses succeed.  When these events happen often the business is closing, an owner wants to leave, or an owner dies.  The time to sort out these situations and to plan for these situations is while things are good and calm, which means at the businesses’ inception.

Consider these questions when you are starting a business with another person:

  • Are you, as an owner, protected from having the liability of the business seep into your personal assets?
  • What if the business gets sued?
  • What if someone quits or is fired?
  • Do you have the proper type and amount of insurance?
  • How do you buy out the person who has left?
  • How much do you pay the heirs of an owner who has died?
  • How do you determine the value of their interest in the entity?

I help people answer these questions and put processes in place to make these circumstances happen as smoothly as possible.  If you would like to talk about these things, please feel free to reach out to me.

Posted by Shawn Roberts in Blogposts, Business Law

Do you know the elements of an enforceable Oklahoma contract?

It’s one thing to make an Oklahoma “contract” but it is an entirely different and more valuable thing to make an “enforceable Oklahoma contract.”  

So what are the elements of an enforceable Oklahoma contract?  See below:

The Definition

An enforceable Oklahoma contract is . . .

“an agreement to do or not to do a certain thing.”

This is a simple statement but critical if you want to make contracts that are enforceable. Without all the required elements, you can still make contract . . . you just can’t enforce them!

The Elements

The elements of an enforceable Oklahoma contract are:

CAPACITY

Parties capable of contracting.

OFFER

An offer by one party;

ACCEPTANCE

An acceptance by the other party; and

CONSIDERATION

Each party must voluntarily give something of value or promise to give something of value in exchange for what the other gives or promises.

 

That is it. Sounds simple doesn’t it? Yet thousands of court cases in Oklahoma alone has grappled with seemingly simple elements for over 100 years.

 An example

I can promise to pay you $1,000,000.00 in 90 days. You can whole-heartedly accept my promise. When 90 days comes and goes and I don’t pay you the money, do you think you can win a lawsuit against me to recover the money?

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Posted by Shawn Roberts in Blogposts, Oklahoma Contract Law