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

Making the rules while playing the game: Check out the new guidance from the SBA on the Paycheck Protection Program program

The United States Government rode to the economy’s rescue in March when it enacted the Paycheck Protection Program (PPP), established by Section 1102 of the Coronavirus Aid, Relief, and Economic Security Act (the “Act”). 

The PPP provided funding for businesses and nearly everyone connected to the economy including Oklahoma small businesses, employees, and independent contractors.  The PPP is administered by the United States Small Business Administration (the “SBA”), meaning the SBA makes up the rules for the PPP loan program. 

In what was certainly a path leading to confusion and difficulty but perhaps a path required by the severity of Coronavirus National Emergency, the SBA made the rules for the PPP during, after, and while it was distributing the funds from the PPP.  That means Oklahoma small businesses and businesses around the United States received PPP loan funds and since then have had to address new rules.

In a bid to try to ease the confusion, yesterday, May 6, 2020, the SBA issue these PAYCHECK PROTECTION PROGRAM LOANS Frequently Asked Questions (FAQs):

Paycheck-Protection-Program-Frequently-Asked-Questions
Posted by Shawn Roberts in Blogposts, Business Law

Why does the Oklahoma Secretary of State show my LLC as terminated or expired?

The Summer Solstice Seen from GOES East from NOAA Satellites

The Oklahoma Secretary of State is the record keeper for Oklahoma limited liability companies. 

You start with the OK SOS to form an Oklahoma limited liability company and the OK SOS tracks your entity through its.  One piece of data you can find when searching for a limited liability company on the OK SOS website is the entity’s status.  Status is usually expressed as either:

Active

Termination

Suspended

As you might guess, you want your company to be active and you need to fix your LLC’s status if it is terminated or suspended. 

Why does an Oklahoma LLC’s status show terminated or suspended? 
Here is what the Oklahoma Secretary of State says:

It means the LLC or LP is not in good standing with the State of Oklahoma due to a late Annual Certificate. Annual Certificates are due on the formation date of the entity each year, and a 60 days grace period is given to file them. After 60 days if there has been no Annual Certificate filed, the entity becomes inactive and not in good standing.

https://www.sos.ok.gov/business/faq.aspx

How do you get your LLC back in good standing?
I provide the steps to back to good standing with the Oklahoma Secretary of State in this Blog Post.

Posted by Shawn Roberts in Blogposts, Oklahoma limited liability company

What are the consequences when an Oklahoma corporation is suspended by the Oklahoma Secretary of State?


In a previous Blog Post, I talked about why a corporation ends up being suspended by the Oklahoma Secretary of State.  This Post discusses some of the consequences for a suspended corporation.

The Oklahoma Tax Code provides for multiple penalties if a corporation’s charter is suspended:

  • The directors and officers become liable for any and all debts of the corporation incurred or created with their knowledge, approval, and consent as if the directors and officers were partners;
  • Any contract entered into by the corporation during the suspension is voidable;
  • A court cannot grant to the corporation any legal relief in a lawsuit until the corporation is “reinstated” (meaning back in good standing); and
  • The corporation loses its right to sue or defend in any court of this state, except in a suit for forfeiture of its charter.
    MONCRIEFF-YEATES v. KANE 

 

The upshot of these penalties is that you may lose the protection from the Wall of Separation I mentioned in this Blog Post. Needless to say, if you do business through a suspended corporation, you lose a lot of the protection the corporation normally provides and subject yourself to substantial but unnecessary legal risk.

Posted by Shawn Roberts in Blogposts, Business Law

Why did the Oklahoma Secretary of State suspend my corporation?

View along Adelaide Street from George Street with the buildings decorated for the Royal Visit, 1954 https://www.flickr.com/photos/statelibraryqueensland/

The Oklahoma Secretary of State is the record keeper for among other things Oklahoma corporations and Oklahoma limited liability companies.  To form a corporation, you submit paperwork to the Oklahoma Secretary of State.  To form and maintain a limited liability company, you also submit paperwork to the Oklahoma Secretary of State.  So, as you might expect, the Oklahoma Secretary of State keeps records about whether a corporation is in good standing, suspended, or terminated.

Reasons an Oklahoma corporation is suspended
You may have searched the Oklahoma Secretary of State’s records and found a corporation you own and discovered that the corporation was “suspended.” The suspension is usually connected to the Oklahoma Tax Commission.  Corporations are usually suspended because either the owners have failed to file an annual Oklahoma Franchise Tax Return and/or failed to pay the franchise tax. Sometimes corporations are suspended for failure to file an Oklahoma corporation income tax return:

–> Failure to file Oklahoma Income Tax Return
According to the Oklahoma Tax Commission, any corporation doing business within or deriving income from sources within Oklahoma is required to file an Oklahoma Corporation Income Tax Return, whether or not a tax is due.

–> Failure to file a franchise tax return
The Oklahoma Tax Commission says:
Oklahoma Franchise Tax is due and payable July 1 of each year unless a Franchise Election Form (Form 200-F) has been filed. The report and tax are delinquent if it not paid on or before September 15. 

How is a corporation’s charter suspended?
If a corporation fails to pay the required franchise tax, the Oklahoma Tax Commission enters an order suspending the corporation’s charter and then send the order to the Oklahoma Secretary of State directing that the corporation be suspended.

Posted by Shawn Roberts in Blogposts, Business Law

How does forming an Oklahoma corporation help protect you from liability?

STS-114 Thermal Protection System from NASA on The Commons

I advise people to form an entity, such as a corporation, to provide protection for them from the liability their business can create.  You can read more about individual liability and why you need to protect yourself from individual liability in this Blog Post.

The protection from individual liability for the people who own the company is one of the essential benefits of having a corporation. 

Example
Think in terms of a landscaping business that accidentally hits a gas line leading to people being injured and the property being destroyed.  The landscaping business is going to be responsible for huge damages.  But, if the landscaping business was working through a corporation, there is a good chance that the liability will stop with the corporation and not bleed into the corporation’s owners’ assets.  If the owners were operating the business without a corporation or Oklahoma limited liability company, as sole proprietors, the owners’ assets would be at risk of being taken to pay the damages from the accident (liability insurance coverage might limit the owners’ risk in this scenario). 

The Wall of Separation
I refer to this protection as the “wall of separation.” The corporation (or in many cases the Oklahoma LLC) is the “wall” between the individuals who own the company and the liability created by the company.  On one side of the wall rest the owners’ assets and on the other side of the wall sit all the unknown liabilities that come from operating a business. 

When is the wall’s protection lost?
One way the wall breaks is when a corporation’s charter is suspended.  

 

Posted by Shawn Roberts in Blogposts, Business Law