blog

Oklahoma City Legal Blog

Selecting an Executor for Oklahoma Estate Administration

Probate is the court supervised process in which a judge determines how a will applies to the distribution of assets and debts belonging to a deceased person. The amount of time involved in the probate process changes based on whether family members can agree on how the process should occur. Overseeing this process will be an executor, who can be selected in a will or appointed by a court of law. To make sure that a strong executor is appointed in estate planning documents, many people find it essential to contact a skilled attorney. Tips on Selecting an Executor Executors are named in a legal document which must meet certain requirements. In addition to contacting a skilled estate planning attorney, it is also often beneficial for individuals who are about to be engaged in this process to understand some important advice that will make the whole process easier. Name a Second Executor. It is important for individuals to locate not just one but two potential executors in case the first executor is unable to perform the function for whatever reason. Finding more than two potential executors, however, is frequently difficult to manage. Potential Limitations in Selecting an Executor. There are     Read More

Tags: , |

How Long Will Probate Take?

OKC Probate Attorney Jim A. Lyon provides legal services for probates and estates. There are alot of common questions regarding probate law. One of the most common questions is 'How long will probate take?'. There is, unfortunately, no universal answer to how long the probate process in Oklahoma will be. There are a variety of elements that influence exactly how long each probate will take. One of the best ways to limit the length of the probate process is to retain the assistance of skilled legal counsel. Another way to anticipate the length of probate is to understand the various factors that can affect the length of the process. Factors that Influence the Length of Probate There are numerous factors that can influence how long the probate process takes, but some of the most common factors that influence this process include the following: The Location of the Personal Representative: When personal representatives live close to the attorney, it can be easier for individuals to quickly visit legal counsel at a moment’s notice resulting in a quicker process. The Number of Beneficiaries: The more beneficiaries that are involved in the case, the longer the probate process will often take. The reason for     Read More

Tags: , |

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

Tags: , |

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

Tags: , , , |

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