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Oklahoma City Legal Blog

What Does it Mean to Probate a Will?

The word “probate” means an individual who proves or validates something. In the case of probating a will, a court of law will prove that a will is authentic and provides a true representation of a deceased individual’s intention. Even if a last will and testament represents a person’s interests, the state of Oklahoma requires it to meet several standards including proceeding through the probate process. The case will be initiated in the county where the deceased individual lived. The Reason Why Wills Must be Probated Wills must be probated to prevent fraudulent activity as well as to protect individuals who stand to gain assets through the will. Courts are concerned in some cases that a will might be a forgery, fraudulent, or written because someone unfairly exerted control over another. Additionally, in some cases courts might be uncertain whether a version of a will is the most recent form written by an individual. In some cases during the probate process, a court might decide that some provisions of the will are invalid. The Elements of the Probate Process During probate, courts appoint an administrator who makes decisions about issues that might arise regarding the administration of a person’s estate.     Read More

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SCOTUS Ready to Settle Bankruptcy Issue

The Supreme Court recently granted certiorari to review a case that will require the Court to decide the question of whether bankruptcy courts should apply federal or state law when deciding how to recharacterize a debt claim as a capital contribution. The manner in which this case is decided will have a significant influence on how bankruptcy cases proceed. The Role of Recharacterization Recharacterization presents an important role to lenders and investors in companies facing financial difficulties. Current bankruptcy law allows secured creditors to receive top priority while equity interests have a lower priority and are frequently wiped out during bankruptcy. Applicable federal law currently results in the recharacterization of debt to equity, while state law does not always result in this type of recharacterization. The Circuit Split on Recharacterization of Debt Many circuits follow the federal rule in recharacterization of debts and apply a variety of multi-factor tests when determining whether to recharacterize debt as equity. The Third, Fourth, Sixth, Tenth, and Eleventh Circuit Courts hold the perspective that debt should often be recharacterized as equity, while the Fifth and Ninth Circuit apply state law. As a result, Oklahoma is part of the Tenth Circuit Court which characterizes debt     Read More

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Supreme Court Decides Bankruptcy Case

The Supreme Court recently ruled that the Fair Debt Collection Practices Act (FDCPA) prohibits individuals who think that they are experiencing abusive debt collection practices to initiate legal actions against banks have bought defaulted loans from other lenders. The Supreme Court’s rule now states the FDCPA does not apply to a company unless that company is collecting debts. This landmark bankruptcy decision is also unique in that it is the first majority opinion written by recently elected Justice Neil Gorsuch. The Case at Hand The case of Henson v. Santander Consumer USA was heard by the Supreme Court concerns a group of debtors who defaulted on their auto loans and tried to initiate a legal action against a group of debtors who defaulted on their auto loans on the basis of predatory collection practices. The Supreme Court, however, found that because Santander owned and serviced the debt, Santander and other similar companies cannot be sued under the FDCPA. Regulations Under the FDCPA The FDCPA prohibits collection agencies from using abusive, deceptive, or unfair practices. These are several types of prohibited activities including: Harassing or using oppressive practices against debtors. Threatening that a lawsuit will be filed against a person when     Read More

Oklahoma Supreme Court Decides Portability Election Case

A “portability election” refers to the ability of a surviving spouse to claim the unused portion of the federal estate tax exemption for a deceased spouse and add this amount to the balance of the surviving spouse’s own exemption. In January of 2017, the Oklahoma Supreme Court decided a case concerning a unique aspect about the amounts in portability elections. In the case of In re Estate of Vose, the Oklahoma Supreme Court upheld a lower court’s holding that required an estate administrator to make a portability election. While this case has the potential to provide some guidance on portability elections, individuals who are engaged in the probate process should not hesitate to contact a knowledgeable estate administration attorney. The Facts of the Vose Case In the case of Vose, a woman and her second husband signed prenuptial agreements prior to marriage. While these prenuptial agreements covered many terms, the agreements did not discuss portability elections. After the woman’s death, the woman’s child was appointed administrator of the woman’s estate. Although the child did not agree with it, an Oklahoma court ordered the portability election for the deceased woman be given to her section husband. The Oklahoma Supreme Court’s Decision     Read More

Oklahoma House Rules That Abortion Is Murder

The Oklahoma House of Representatives recently passed a resolution recently that declared abortion is a form of murder and that the state should use all the power in their authority to prevent abortion. While a resolution does not grant a state the same power as a law, this resolution serves as a reflection of Oklahoma’s House of Representative’s view of abortion. This resolution has been interpreted as a warning to the Oklahoma Supreme Court not to interfere with any legislation concerning abortion.   The Argument Presented by the Resolution   The resolution framed applicable constitutional law as prohibiting abortion. The Declaration of Independence, the resolution argues, grants individuals the unalienable right to life. The resolution also argues that the Constitution prevents states of denying equal protection under the law. The Supreme Court, the resolution claims, overstepped its authority by considering abortion as a federal issue rather than an issue to be decided by the state. While many people have argued that abortion is based on constitutional law, other individuals have argued that abortion is ultimately a family law issue. Abortion intimately impacts the boundaries of a family including affecting mothering, deciding how other children are impacted by the abortion, and     Read More

United States Supreme Court to Hear Bankruptcy Case

The Supreme Court of the United States is poised to hear a bankruptcy case in Merit Management Group LP v. FTI Consulting Inc. This case has the potential to resolve a current circuit split about a section in the Bankruptcy code that protects certain types of payments made to a financial institution. In accordance with this law, individuals are unable to avoid payments made in connection with a securities contract, settlement payments, or other payments that are made to commodity brokers, financial institutions, financial participants, forward contract merchants, or securities clearing agencies. The way in which this case is decided has the potential to clarify the parties that a person who declares bankruptcy is obligated to pay. History Leading up to the Case Prior to the Merit Management case, the Eleventh Circuit was the only circuit court to hold that a financial institution must be more than an intermediary for a person who declares bankruptcy to be forced to pay. Five other courts including the Second Circuit, the Third Circuit, the Sixth Circuit, the Eighth Circuit, and the Tenth Circuit have held that a person who declares bankruptcy must pay financial institutions that are intermediaries. The Merit Management case was     Read More

The Role of Gift and Estate Taxes in Oklahoma

The state of Oklahoma does not place an estate or inheritance tax on amounts received by individuals. Even though Oklahoma does not require these taxes, however, some individuals in the state are still required to pay inheritance taxes by another state. In some cases, however, there are still taxes that can be placed on a person’s estate. Two of the best ways for a person to anticipate the taxes that might be placed on an inheritance are to understand some of the essential laws involving inheritance as well as to speak with an experienced probate attorney.   Federal and Other State Taxes on Estates   While many states do not place inheritance taxes on amounts, some of these states that due include Iowa, Kentucky, Nebraska, New Jersey, and Pennsylvania. The exact amount that these states will tax depends on several factors including the value of someone’s estate and the beneficiary’s relationship to the deceased person. In addition to state taxes, there is also a federal estate tax that might come into consideration if a significant amount of money is involved. The current amount that requires federal taxes is any inheritance equal to or greater than $5,490,000. As a result, if     Read More

New Type of Court in Oklahoma Proposed for Domestic Violence Cases

Final approval was recently given for the creation of a specialized court in the state of Oklahoma to exclusively handle domestic violence cases. The bill in question, House Bill 1121, grants district courts as well as some municipal courts in Oklahoma the power to establish a domestic violence program to increase the efficiency with which domestic violence cases are heard. The bill, however, must now be signed by Governor Mary Fallin.but would significantly change how domestic violence cases in Oklahoma are heard.   The Advantages Offered by this Legislation   There are some unique advantages to the creation of this new court system including the following:   Cases Heard by Only One Court. Courts could hear all issues related to one domestic violence case, which would greatly speed up these issues and allow courts to make much more informed decisions. As a result, a judge would have an intricate understanding of all relevant divorce orders, maintenance orders, and protective orders. Less Require Hearing. Individuals facing a domestic violence case would be required to attend fewer court hearings if these events are scheduled together. Having less required hearings would also make domestic violence cases much simpler for victims who are already     Read More

What Happens to Pets in Divorce

The National Pet Owners Survey reports that sixty-three percent of households in the United States own pets. Pets play an important role in the lives of many individuals in the state of Oklahoma. It is common for couples to argue about the ownership of a pet during the separation. In a divorce, however, the issue of who has ownership of pets can be particularly complicated. In many cases, former spouses must decide ownership of a pet because courts in Oklahoma will not grant visitation schedules for pets. As a result, for individuals who would like to retain rights to a pet after a divorce, it is a wise idea to retain the assistance of a skilled attorney.   Applicable Law Regarding Ownership of Pets While many couples view pets as family members, courts analyze ownership of pets using traditional property law. A court will determine when a pet was acquired and this time period will influence who owns the pet. If the pet was acquired before the marriage, courts often rule that the pet should remain with the original owner. If a pet was acquired during a marriage, the court will be more uncertain in its ruling. One fact that     Read More

The Role of Bankruptcy Trustee

A bankruptcy trustee is assigned to every Chapter 7 and Chapter 13 bankruptcy case. A trustee has a significant impact on a debtor’s case, but the exact role that a trustee plays in a bankruptcy proceeding is often uncertain. The Justice Department appoints a trustee for each bankruptcy who will often be a lawyer with significant experience in handling bankruptcy.   Chapter 7 and Chapter 13 Bankruptcy   The role of a trustee changes on the type of bankruptcy involved.   Chapter 7 Bankruptcy. In these types of bankruptcy filings, the trustee administers the bankruptcy estate and distributes any non-exempt property to creditors. The trustee is paid through a percentage of any funds that are given to creditors. As a result, in situations where the debtor has no non-exempt assets, the trustee is paid a small amount. Chapter 13 Bankruptcy. The trustee in Chapter 13 bankruptcies is tasked with reviewing and following the Chapter 13 payment plan and distributing any payments made by an individual to creditors. A Chapter 13 trustee collects a percentage of funds paid through the payment plan.   The Role of Trustees in a Bankruptcy Case   A trustee often has several responsibilities in a bankruptcy.     Read More