What is arbitration?

When you have a legal dispute with someone, there are at least two procedures for resolving the dispute:  File a lawsuit in the tax-payer funded court system or submit to binding arbitration.

My sense with the term “arbitration” is that people who don’t spend time working with the law, probably hear the term often but do not have a clear understanding of what it means and how it is different from a lawsuit in a court.  The American Arbitration Association, one of the largest administrators of arbitration proceedings, defines arbitration as “the out-of-court resolution of a dispute between parties to a contract, decided by an impartial third party (the arbitrator)—is faster and more cost effective than litigation.”

Below is a table that highlights some of the basic differences between a “court case” and an “arbitration.”  Both processes are used to resolve legal disputes between individuals and businesses.

  Court Case Arbitration
Who can find out about it Public Private
Who decides the winner Jury or Judge 1 or 3 arbitrators (usually attorneys) from a roster of neutral arbitrators
Selection of decision-maker Jury selected or elected judge makes decision parties select the arbitrator(s)
Where the case happens County Courthouse Private location arranged by the parties to the dispute
Length of the case 8 months to 2 years 5 months to 1 year
Punitive Damages Maybe Usually not available
Evidence allowed Relevant evidence per evidence code  Limited evidence
How it gets started File a Petition with the court File demand for arbitration
Winner entitled to attorney fees? Sometimes Usually
Costs court fees, attorney fees fees for arbitrator(s), attorney fees
Posted by Shawn Roberts in Blogposts, Business Law

What is an Oklahoma employer required to tell its employees about the Family and Medical Leave Act?

If you are an Oklahoma business with 50 or more employees, you have probably heard of the Family and Medical Leave Act (“FMLA”). IMG_0407

If you have not heard of it, it is probably a good idea to learn a little bit about the FMLA.  Employers have obligations to tell employee certain details about the FMLA and the document below provides an outline of the details an employer (who is, of course, a covered employer under the FMLA) is required to provide to its employees:

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Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

How does an Oklahoma employer protect its private property when an employee leaves?

Hoodoos Of Bryce Canyon

While Oklahoma is broadly opposed to non-compete agreements, it provides several devices for Oklahoma employers to protect their private property that gives the business its competitive edge, when employees leave.  

Movement is positive

Employee movement from job to job or from job to business start-up is natural and healthy.  The owners of many Oklahoma businesses were once employees of an Oklahoma business, who left to start their own business. What is not natural or healthy, is employees who leave a business to work for a competitor and take the former employer’s private property.  The property, for our purposes, is data, handbooks, formulas, strategies, pricing and, perhaps a bit surprising, customers.

Continue reading →

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law, Oklahoma non-compete

The tools an Oklahoma Employer can use to protect itself when employees leave

When an employee moves onto another job with a competitor, an employer is often justified in being concerned about whether the employee is competing fairly under Oklahoma’s non-compete law. Consider this post which discusses the tools an employer can use under Oklahoma law to protect the employer’s business when an employee joins a business competitor.

Posted by Shawn Roberts in Blogposts, Oklahoma non-compete

What does the IRS say about Oklahoma limited liability companies?

From my recent experience I can tell you that when people are considering what type of entity to create, Oklahoma limited liability companies are vastly outpacing Oklahoma corporations.  With the limited liability companies the most common form of entity I see, it seems like a prudent idea to provide some additional material about the limited liability company.  The Internal Revenue Service is helpful with this idea in that the IRS provides a basic description of how it classifies entities. 

Below is a diagram I created summarizing the IRS’s characterization of a limited liability company:

 

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

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.

Posted by Shawn Roberts in Blogposts, Oklahoma Contract Law

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.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

What tax returns are you required to file when someone dies in Oklahoma?

This is a question that comes up from time to time when I am talking with someone who has had a parent or loved one pass away. While the specifics of this question are better answered by a CPA or tax advisor, I can provide some general direction on this question in this post.

The automatic estate

When a person passes away, a new taxpaying entity – the person’s estate – is automatically created to ensure all taxable income is accounted for. Income is taxed either on the taxpayer’s final return, on the return of the beneficiary who acquires the right to receive the income, or if the estate receives $600 or more of income, on the estate’s income tax return.

The chore of filing the taxpayer’s final return usually falls to the executor or administrator of the estate, but if neither is named, a survivor must do it. The return is filed on the same form that would have been used if the taxpayer were still alive, but “deceased” is written after the taxpayer’s name. The filing deadline is April 15 of the year following the taxpayer’s death.

Death tax vs. Income tax

There are three taxes to consider:  Estate (death) taxes and estate income taxes are two different types of tax.  It is very important to understand the distinction between the two types of taxes. Often, there may be no estate tax due while there very well could be some income tax due.  The third type of tax to be considered is the standard income tax that everyone is subject to.

1.  Estate death tax is a tax paid on the transfer of property from the deceased person to the people who receive the deceased person’s property.  As the IRS puts it “[t]he Estate Tax is a tax on your right to transfer property at your death. It consists of an accounting of everything you own or have certain interests in at the date of death.”  To be liable for the federal estate tax, a person passing away in 2014 must have left an estate valued at 5.3 Million or more (and the person had not used up any of this amount during their lifetime). Oklahoma abolished its estate death tax in 2010.  A person passing away in Oklahoma in 2014 would not owe any estate tax under Oklahoma law.

2.  Estate income tax is a tax on the income received by the estate after a person has died (the “estate” is what I referred to above as the “automatic estate” that is created when the person passes away.) Note that this is different than the final individual income tax return which is described below.  Some examples of estate income would be interest, dividends, gains from sales of stock or real estate.  This tax might be paid by the estate or beneficiaries.  Most estates have to pay or file an estate income tax return(s) with the federal and state government.  For the federal government, the executor of the estate (sometimes also referred to as the “fiduciary”) uses the IRS form 1041 to file what is known as a fiduciary income tax return.

3.  Individual Income Tax.  The executor of the estate is required to file a final income tax return for the person who is passed away.   Income earned or received by the deceased person between January 1 and the date of the person’s death is reportable under the person’s Social Security Number.

Are tax returns required?

1.  Final Individual Income Tax Return.     The executor of the estate is required to file a final income tax return for the person who is passed away. Income earned or received by the deceased person between January 1 and the date of the person’s death is reportable under the person’s Social Security Number. If that amount is sufficient to meet the minimum filing requirements (which change each year), you will need to file a return for the person. Also, if the person had any taxes withheld (e.g. from a pension, or from estimated payments), you will certainly want to file to claim a refund. However, if the person’s income was low and she had not been filing returns, you won’t have to unless she had some special circumstance such as selling stock or a house, cashing in an IRA, or winning the lottery.  This is the same return that the person would’ve filed had they not passed away. The final individual income tax return is due on the same day as if the taxpayer had that died. For example, if someone passes away on January 1, 2015, then the final IRS form 1040 will be due on April 15, 2016.

What to do: You can go this page on the IRS website to determine if the person had enough income to require a tax return.

2.  Estate Income Tax.     An estate income tax return is typically required to be filed if the decedent had an income of $600.00 a year or more or had a beneficiary who is a nonresident alien.  In addition to income received while the decedent was living during the tax year, the estate may end up with income through rents on real property received, interest on bank accounts, unpaid salary or dividends.

However, there are some circumstances where if the property is distributed relatively quickly to the people who are to inherit it the estate may not have income and there may not be a need to file an income tax return for the estate. For example, if the person who passed away owned a house in joint tenancy, had transfer on death designations for bank accounts, those assets pass immediately at the time that the person passed away. With the property no longer being owned by the estate, there is no chance for the estate to end up with and come in the form of things like rent received, interest received and things like that. For that reason, those assets very well may not generate income for the estate.

What to do: Determine if the deceased taxpayer’s estate value exceeds the minimum threshold for filing by the IRS and the state taxing authority.

3.  Estate Death Tax.  If you live in Oklahoma and the person passed away in 2014 or later then no Oklahoma state tax return is required because the estate tax was abolished.  For federal tax purposes, if the person passed away in 2014 and the value of their gross estate was less than $5.3 million, no federal estate tax return is required. However, you will want to consult your CPA or tax advisor about this type of issue because there are circumstances where a federal estate and the gift tax return is filed even when no taxes due following a person’s death. Those circumstances are typically when a person is close to the federal exemption number of 5.3 million.

Posted by Shawn Roberts in Oklahoma Estate Planning

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.
Posted by Shawn Roberts in Blogposts