18Nov 2015

The Roles are Flipped, You Need Information:

When you were young your parents found ways to protect and provide for you.  As your parents age they increasingly need your care.  You need answers including legal realities.  This article and the audio content describes the type of information you need to receive.  It also provides practical tips to create open communication.

Dynamics of Communicating with the “Silent Generation”

People born before 1946 are known as the “Silent Generation”.  Their world was shaped by the Great Depression, WWII, The Cold War and the Civil Rights Movement.  They are often described as less open with personal issues including health and finances.  They value simple concepts and rarely view themselves of wealthy regardless of their net worth.  “Waste not want not” means much to them.  Listen Here


15Mar 2018

Mom or Dad Signed a Transfer on Death Deed, How Does This Work?

Start your claim form here.

First Question:  If all the persons signing the Transfer on Deed are now deceased keep reading.  If not Click Here

You have only 9 months after the last signor died to file an acceptance affidavit.  If you don’t complete the affidavit and file it within that time, then the normal probate rules apply.  Luckily, the form is fairly easy to complete and you will need just three things:

Do I pay taxes to make the transfer?

  Oklahoma does not have an Estate or Inheritance Tax. Federal Estate taxes for someone who died in 2018 don’t apply unless the total estate was more than $11 Million.  This does not trigger income tax if you are inheriting from a family member.  There are not filing taxes just a small filing fee.  Real estate does have an annual property tax.

What if there is a lien or mortgage, will I become liable for that?

  An existing lien or mortgage will continue on the property but you will not become personally responsible for it.  If you sell the property the lien holder will get paid from the proceeds.  You can also pay off the lien.


Things you need to claim property under a Transfer on Death Deed:

  1. A copy of the Transfer on Death Deed.  You do not have to have the original because you only need it to obtain the following information:

    1. The date it was signed;

    2. The date it was filed with the county clerk;

    3. The Book and Page number that the county clerk assigned to it; and

    4. The legal description of the property.

  2.  certified copy of the Death Certificate.  State of Oklahoma Death Certificate request.

  3. An Affidavit of Grantee Beneficiary Obtain form Here   Price $149

  4. A check to County Clerk for Filing.  (usually $17-$21)


After the Affidavit of Grantee Beneficiary is completed it must be filed in the county where the property is located with a certified copy of the death certificate.


Adair County County Clerk Cathy Harrison (918) 696-7198 — Search

Alfalfa County County Clerk Laneta Unruh (580) 596-3158 — Search
Atoka County County Clerk Christie Henry (580) 889-5157 — Search
Beaver County County Clerk Lisa Bennett (580) 625-3141 — Search
Beckham County County Clerk Leasa Hartman (580) 928-3383 — Search
Blaine County County Clerk Jennifer Haigler (580) 623-5890 — Search
Bryan County County Clerk Tammy Reynolds (580) 924-2202 — Search
Caddo County — (405) 247 – 6609
Canadian County– Search
Carter County County Clerk Kayelyn Clubb (580)223-8162 — Search
Cherokee County County Clerk Cheryl Trammel (918) 456-3171 — Search
Choctaw County County Clerk Emily VanWorth (580) 326-3778 — Search
Cimarron County County Clerk Gina Richardson (580) 544-2251 — Search
Cleveland County Clerk — Search
Coal County County Clerk Eugina Loudermilk (580) 927-4015 — Search
Coal County County Clerk Eugina Loudermilk (580) 927-4015 — Search
Comanche County County Clerk Carrie Tubbs (580) 355-5214 — Search
Craig County County Clerk Tammy Malone (918) 256-2507 — Search
Creek County– Search
Custer County County Clerk Melissa Parker (580) 323-1221 — Search
Delaware County County Clerk Barbara Barnes (918) 253-4520 — Search
Dewey County County Clerk Misty Moore (580) 328-5361 — Search
Ellis County County Clerk Lynn Smith (580) 885-7301 — Search
Delaware County County Clerk Barbara Barnes (918) 253-4520 — Search
Dewey County County Clerk Misty Moore (580) 328-5361 — Search
Ellis County County Clerk Lynn Smith (580) 885-7301 — Search
Garfield County–(580) 237-0225 or 237-0226
Garvin County County Clerk Lori Fulks (405) 238-2772 — Search
Garvin County County Clerk Lori Fulks (405) 238-2772 — Search
Grady County  (405) 224-7388 Search  
Grant County County Clerk Cindy Pratt (580) 395-2274 — Search
Greer County County Clerk Leanne Coffman (580) 782-3664 — Search
Harmon County County Clerk Kara Gollihare (580) 688-3658 — Search
Harper County County Clerk Karen Hickman (580) 735-2012 — Search
Haskell County County Clerk Karen McClary (918) 967-2884 — Search
Hughes County County Clerk Carolyn Preble (405) 379-5487 — Search
Jackson County County Clerk Robin Booker (580) 482-4070 — Search
Jefferson County County Clerk Traci Smith (580) 228-2029 — Search
Johnston County County Clerk Kathy Ross (580) 371-3184 — Search
Kay County County Clerk Tammy Reese (580) 362-2537 — Search
Kingfisher County County Clerk Jeannie Boevers (405) 375-3887 — Search
Kiowa County County Clerk Nikki Dodd (580) 726-5286 — Search
Latimer County County Clerk Erin Adams (918) 465-4002 — Search
LeFlore County County Clerk Kelli Ford (918) 647-5738 — Search
Lincoln County County Clerk Alicia Wagnon (405) 258-1264 — Search
Logan County County Clerk Troy Cole (405) 282-0266 — Search
Love County County Clerk Shelly Russell (580) 276-3059 — Search
Major County County Clerk Kathy McClure (580) 227-4732 — Search
Marshall County County Clerk Ann Hartin (580) 795-3220 — Search
Mayes County County Clerk Brittany True-Howard (918) 825-2426 — Search
McClain County County Clerk Pam Beller (405) 527-3360 — Search
McCurtain County County Clerk Karen Bryan (580) 286-2370 — Search
McIntosh County County Clerk Ronda Prince (918) 689-2741 — Search
Murray County County Clerk Jill Hall (580) 622-3920 — Search
Muskogee County County Clerk Dianna Cope (918) 682-7781 — Search
Noble County County Clerk Sandra Richardson (580) 336-2141 — Search
Nowata County County Clerk Chris Freeman (918) 273-2480 — Search
Okfuskee County County Clerk Dianne Flanders (918) 623-1724 — Search
Oklahoma County —Search
Okmulgee County County Clerk Becky Thomas (918) 756-0788 — Search
Osage County County Clerk Shelia Bellamy (918) 287-3136 — Search
Ottawa County County Clerk Robyn Mitchell (918) 542-3332 — Search
Pawnee County County Clerk Kristie Moles (918) 762-2732 — Search
Pawnee County County Clerk Kristie Moles (918) 762-2732 — Search
Payne County —Search
Pittsburg County County Clerk Hope Trammell (918) 423-6865 — Search
Pontotoc County County Clerk Tammy Brown (580) 332-1425 — Search
Pottawatomie County– Search
Pushmataha County County Clerk Jane Dunlap (580) 298-3626 — Search
Roger Mills County County Clerk Jimmy Beavin (580) 497-3395 — Search
Rogers County County Clerk Jeanne M. Heidlage (918) 923-4796 — Search
Seminole County County Clerk Tahasha Wilcots (405) 257-2501 — Search
Sequoyah County County Clerk Julie Haywood (918) 775-4516 — Search
Stephens County County Clerk Jenny Moore (580) 255-0977 — Search
Texas County County Clerk Wendy Johnson (580) 338-3233 — Search
Tillman County County Clerk Cacy Caldwell (580) 335-3421 — Search
Wagoner County —Search
Washington County County Clerk Marjorie Parrish (918) 337-2840 — Search
Washita County County Clerk Kristen Dowell (580) 832-3548 — Search
Woods County–(580) 327-0942
Woodward County County Clerk Wendy Dunlap (580) 256-3625 — Search






18Dec 2017

Advanced Health Care Directive (Living Will Form)

24Oct 2017

Estate Planning Building Blocks

No matter how simple or sophisticated, every Estate Plan  should have these 3 Essential Building Blocks:

Last Will and Testament:

This Document’s job is to tell the Probate Court

  • Who is to receive property from your estate (Probate Property)
  • Who is in charge of your estate (Executor or Personal Representative)
  • What powers or oversight the Court should Require (bond waiver or power to sell)

A Will can also create a testamentary Trust. If you do not have Will, then your property is subject to intestacy rules.  While you are generally free to dispose of your property as you desire, a spouse cannot be disinherited.

Power of Attorney:

Generally it is a good idea to have two; one for financial and the other for medical decisions.  A Power of Attorney designates a person who can make decisions on your behalf without a court order.  Some examples include:

Financial:  The ability to sell real estate; file taxes, write checks.

Medical: Make medical decisions for treatment, assisted or skilled nursing placement.

You do not lose your ability to make decisions for yourself by signing a Power of Attorney.  It can be revoked.  If you don’t have one and become incapacitated, your family may need an expensive guardianship in order to manage your property or make decisions about your care.

Advanced Healthcare Directives or Living Will:

This is a document that informs medical providers and your family about what type of care you want, or don’t want, at the end of your life.  For example, you may want life saving treatments withheld if certain conditions are met.  If you don’t have a directive, the law presumes that you would want certain care such as feeding tubes.

Click Here to Get Started.

Biggest Estate Planning Mistake:

Too many people become confused by all of the choices and therefore do nothing.  A better strategy is to start with the estate planning essentials and if necessary build from there.

Click Here to Get Started With 16 Simple Questions.






If creating an essentials plan, one should consider enhancing it with the following to possibly avoid probate.  These tools can be effective but have limitations.

Transfer On Death:

Transfer on Death documents do not transfer title while you’re alive and are inexpensive to create.  They do not allow for comprehensive planning.

Transfer on Death Deed:  Is one way to avoid probate if certain conditions are met.  This is a tool that can be used but it has drawbacks to a Trust.  Most notably, it does not provide for contingencies and it requires a beneficiary to file an acceptance within 9 months of the death.  A Transfer on Death Deed overrides provisions of a Will.

Transfer Title on Death:  Now motor vehicles can be transferred on death without a Will, Trust or Probate.

Beneficiary Designations:

Beneficiary designations are found as “Payable on Death” choices on bank accounts and beneficiary designations on life insurance polices, IRAs, Roths and brokerage accounts.  These pass to the chosen beneficiaries without probate.  In fact, a Will and a beneficiary designation disagree the Will loses.  These are forms that are created by the institutions, clients are counseled on how to use them to their advantage.  Often it is best to coordinate these with a Trust for maximum benefit.

Limitations of Transfer on Death and Beneficiary Designations:  While these tools can avoid probate, unless used with a Trust they do not provide for comprehensive planning.  If the person to inherit dies before the owner, then probate may still be needed for the next in line to inherit.  It also does not provide for planning such as youthful heirs, disabled heirs or those who need asset protection.


Living Trusts:

A Trust allows the Trustee is able to manage or distribute Trust property without the need for oversight or control of the a probate court.  Trusts can be very simple; such as distributing property outright.  Trusts can also provide asset protection to the person who sets it up and to those who will inherit.


What’s Right for You?

Prices indicate a basic package.  They include counseling, an estate planning binder, witnesses & Notary.

Essentials Package $750 Individual $900 Couple

Essentials Plus Package Individual $900, Couple $1050 (plus filing fee $13 per property)

Basic Trust Package Individual $1500 Couple $2500 (plus filing fee usually $45)










20Oct 2017
unlocking digital assets after death

Executors Fight to Get Access to E-mails

John Ajemain, Forty-Six  died in a bicycle accident.  He had no Will or Trust.  His brother and sister became the Personal Representatives (PRs) of his estate.  They sought access to John’s “digital assets” in particular Yahoo e-mail account to review for other assets such as bank accounts and liabilities.  Yahoo denied access and a court battle ensued.

How Yahoo Justified Refusal

Yahoo refused  relied upon the two points.  First they claimed that the Stored Communications Act “SCA”(18 USC Sec. 2701) prevented such disclosure.  Yahoo also claimed that the terms of service agreement governing use of the Yahoo account allowed them to withhold or even destroy the information.

Stored Communication Act

The Court examined the SCA and found that the act was established to prevent “overzealous” law enforcement from gaining access to private accounts.  However, the SCA provides an exception to the nondisclosure to “with the lawful consent of the originator”.  Yahoo’s position was that the PRs “cannot lawfully consent on behalf of the decedent, regardless of the estate’s property interest in the e-mail messages”.  In Yahoo’s view, only a living person had the authority to grant the consent.

Luckily, the court did not agree with Yahoo on this point.  After an exhaustive examination of statutory construction, the Court held that the SCA could not be used to prevent disclosure to the PRs.  It found that the PRs had the authority to provide “lawful consent” and that access to the records was necessary because Yahoo’s refusal “would significantly curtail the ability of the personal representatives to perform their duties”.  The court stated that nothing in the SCA “would suggest that lawful consent precludes consent by a personal representative on a decedent’s behalf.”


Terms of Service Agreement, Yahoo’s Delete Button

Even though the Court threw out the SCA defense, it still wasn’t sure what to do the “Terms of Service Agreement”.  According to Yahoo, that the Agreement trumps the PR’s property interest in the records.  The Agreement says:

You agree that Yahoo, in its sole discretion, may terminate your password, account…and remove and discard any Content…for any reason”.  The Court was not certain that this provision was enforceable or whether the essentials for a valid contract existed.  In short, there wasn’t sufficient evidence to show that there was a “meeting of the minds” with regard to Yahoo’s Agreement.  The Supreme Court sent the matter back to the Trial Court to take evidence on the matter.

What this Means to You

Unfortunately, the Court did provide a definitive answer to the question of whether the records will ultimately be handed over to the PRs.  This will play itself out in the courts below.  But there are things that you may consider.  What is frightening is how hard Yahoo is fighting to keep John’s records from his PR.  Yahoo is not alone in their position.  This area of the law is evolving.  While there are no definite answers the following are a few good ideas:

Digital Power of Attorney:  Your power of attorney should provide your agent with the authority to access your accounts.  This is increasingly necessary as many banks, financial products and other transactions occur digitally.  Failure to have access may be disruptive in the event of a disability.

Digital Powers in Will:  It is a good idea to include digital authorities in your Will which grants your Personal Representative the authority to access accounts.

Password Access:  The powers stated above are useless if one does not have access to the passwords.  Use a service like LastPass and DocuBank to keep track of your passwords.

Paper Copies:  The Yahoo case shows why it is important to maintain some paper copies of your important records.  Perhaps it is a good idea print out some statements and keep them with your other papers.

Want to read the Case?  Click Here





21Oct 2017
private mortgage

Helping the Kids Responsibly with Private Mortgages

Often a family member or child may need financial help.  This may involve the purchase or renovation of a home or some other need.  The person willing to may wish to help out but also wants to be repaid.  A solution may be a Private Mortgage.  This is where the parent loans the funds in a formal promissory note and uses a mortgage to secure payment.  This arrangement can have the following benefits:

  • Lower financing cost for the children compared to a commercial note & mortgage
  • Higher rate of return for the parents compared to certificate of deposit
  • Security for the parents in the event of default
  • The son or daughter can avoid many of the costs of a commercial loan & mortgage, including:
    • Origination fees
    • Inspections
    • Title insurance
    • Closing costs
  • A child with credit issues or unverifiable income may not qualify for a conventional loan
  • A Private Mortgage can protect the lender’s security from subsequent creditors’ liens
  • Parents can integrate the loan with their estate plan with debt forgiveness as part of the kid’s inheritance
  • If structured properly, the loan will not incur gift taxes
  • Flexibility, the note can provide for:
    • Interest only payments
    • Quarterly payments
    • Balloon payments
    • Payment upon the occurrence of a certain event

What you will need:

Promissory Note or Line of Credit Note

Mortgage Agreement

One Time Mortgage Tax to County Treasurer (sliding scale from 0.02% to 0.1% of the principal)

One Time Mortgage Certification to County Treasurer Fee $5.00

One Time County Clerk Recording Fee ($13 for 1st page and $2 for each additional page)

(A  $30,000 mortgage would cost about $55 in filing, certification and mortgage taxes.)

Expect about $500-700 for attorney’s preparation and review of documents.


Creation of a lender/borrower agreement may strain family relationships.

Foreclosure, if needed, can be expensive and damage family relationships

You must file IRS form 1098 and send a copy to the payer by January 31st of each year.

You must claim interest received as income.

Private mortgages provide a way to loan money to family members with the security of a lien.
04Nov 2017

A parent or spouse died but owned land or oil & gas mineral rights in Oklahoma:

Has one of these happened to you?

  • An investor wants to buy minerals owned by a family member who has died.
  • An oil company wants to lease minerals that were in your mother or father’s name.
  • Your relative was receiving royalty payments but won’t pay you until there is a probate.

These are calls we receive each week.  Fortunately, Oklahoma has a several stream-lined ways to handle these issues.  Here are a couple of ways to address the situation:

Summary Administration:

A Summary Administration is slightly different from an Ancillary Probate.  It is available in three situations

  • The person has been dead more than five years;
  • The total value of the estate (property owned by the decedent) is $200,000 or less; or
  • The person was not an Oklahoma resident & there was not a probate anywhere else.

Generally, the process involves filing a petition (if there was a Will enclosing a copy), sending notice to all heirs and creditors.  An Administrator, usually a family, member is appointed.  If there are no issues or claims the process can usually be concluded within 90 days.  At that point the property will be transferred or distributed to the family members according to the Will or if there is no Will by Oklahoma’s intestacy statutes.

Ancillary Probate:

This procedure is relatively quick.  This process is used if the deceased person has had a probate in a state other than Oklahoma.  For example, if there was a probate in California, that court would not have the power to transfer or re-title property in Oklahoma.  The process involves filing copies of those pleading in Oklahoma, providing notice to all heirs, creditors and persons named in the will.  If there is no objection the matter can often be concluded within two months.

What does an Ancillary Probate cost?

Affidavit of Heirship

Occasionally, an Affidavit of Heirship will be sufficient for a company to sign a lease with you or to release payments.  However, this will not vest you with ownership of the property for up to ten years.  If there are multiple individuals entitled to inherit or creditors claims this may not be the best approach.


Probate services available in the following Oklahoma Counties:








































Le Flore
























Roger Mills
















15Feb 2017

How to Apply for Medicaid Nursing Home Benefits

Nursing homes are expensive.  Medicaid (called SoonerCare in Oklahoma) covers the cost of Nursing Home expenses for those who qualify.  Unfortunately, many myths surround how to apply or become eligible.

Medicaid Myths:

  • You cannot own anything
  • You have to give everything away
  • You can only have $2,000
  • You cannot be eligible for 5 years

Medicaid Eligibility

Medical:  The person applying for Medicaid must need services provided either in home or in a skilled nursing facility.

Financial:  The rules surrounding Medicaid eligibility are very complex.  Medicaid is a federal program that states administer.  There are rules regarding assets, however there are many exceptions and exemptions from those rules.  In short, a person applying may have far more than $2,000 and still be eligible.  Married couples can protect large portions of their life’s savings.

Citizenship:         Applicants must be United States citizens.  Certain exceptions apply to certain non-citizens residing here legally.

Medicaid Application and DHS

The Medicaid application process can be simple but many people fail to become qualified if they do not provide the correct information.  The caseworker looks at the income and current assets.  Perhaps the most troublesome requirement is the production of 60 months of records, including cancelled checks, from all financial institutions.  These are required for any account even if it has closed during the 60 months.

Why does Medicaid Want 60 Months of Records?

The 60 months is called the “Look Back Period”.  Transactions are examined to see if property was given away for sold for less than its fair market value.  If such a transaction is found, the caseworker may impose a “Penalty Period”.

What is a Penalty Period?

The Penalty Period is amount of time the applicant must wait before Medicaid will begin paying for the care. 

Penalty Period Examples:

Example 1:  It may be possible to explain the transfer to the satisfaction of the caseworker.  However, it is likely that the transfers will be penalized.

Applicant gave grandchildren $10,000 over the past 60 months (birthday or Christmas presents)$10,000
Medicaid divides that amount by the daily divisor  The 2017 rate is $144.6710,000 ÷ 144.67 = 69


Penalty Period69 days


Example 2:  In a recent case, a penalty period was imposed on church tithing.  The applicant appealed to a Fair Hearing and was able to show that the giving was a pattern that had not changed in decades.  The Appeal wiped away the penalty period.

Applicant gave Church $10,000 over the past 60 months as a pattern of tithing or giving.$10,000
Medicaid divides that amount by the daily divisor  The 2017 rate is $144.6710,000 ÷ 144.67 = 69


Penalty Period69 days reduced to zero on appeal


Example 3:  Father deeds $400,000 farm to son and applies for Medicaid 4.5 years later.  This example demonstrates two points.  First, if the date of application was delayed 6 months, then the transfer of the farm would not be considered at all.  The second point is that there is no limit to the amount of the Penalty Period.

Applicant deeded son a farm valued at $400,000  4.5  years ago$400,000
Medicaid divides that amount by the daily divisor  The 2017 rate is $144.67400,000 ÷ 144.67 = 2765


Penalty Period2765 days (7.5 years)

What is a Fair Hearing?

A Fair Hearing is a process where the decision of a caseworker can be challenged.  Denials of applications and imposition of Penalty Periods are good reasons that such an action may be considered.  A notice of disagreement is filed.  It is a good idea to prepare a brief stating the applicant’s side of the case.  In the brief, the factual or legal conclusions behind the casework’s denial or penalty period can be fully challenged.  At the hearing itself, the parties are allowed to present their sides.  The Administrative Hearing Officer takes the matter to a committee that then issues an order which may agree with, overturn or modify the caseworker’s decision.

How an Elder Law Attorney Can Help:

It is never too late to plan even in crisis.  Among the things Elder Law Lawyer can do includes:

  • Presenting the application for benefits in a way that explains the exceptions or rules for the caseworker.
  • Identify troublesome transactions that may cause penalties. Once identified, there are ways to cure the penalties, delay applications or take some other course to avoid or minimize the Penalty Period.
  • Developing permissible transfers that preserve assets while minimizing penalty periods.
  • File a Fair Hearing Request and represent you at the hearing.


While no attorney can guarantee results, applicants typically benefit from the services of an Elder Law attorney knowledgeable with the workings of Medicaid.

09Feb 2017

History of Church Tithing

Marian joined her church in 1990.  From that time on, she made tithed 10% of her income and other contributions to support her church.  Her giving of first fruits continued even after she became ill.  When she could no longer remain home, she sold her house and donated 10% of the proceeds to the Church. 

Need for Medicaid / SoonerCare

Marian was out of money by the end of 2016.  Medicare does not pay for long-term nursing home care.  Her income was insufficient to cover the cost of her nursing home.  In fact, she the cost exceeded her income by about $4,000 per month.  She had no choice but to file for Medicaid.  Medicaid, a separate program from Medicare,  pays the difference between her income and the nursing home’s reimbursement rate.  SoonerCare is Oklahoma’s version of Medicaid.

Medicaid Application and Examination

Medicaid is needs based program.  A person with too many countable assets will be denied.  In the past, people gave away property in order to qualify for this benefit.  In order to prevent intentional impoverishment, strict rules were adopted.  Now when anybody applies for Medicaid, the Department of Human Services (DHS) case worker is required to obtain financial records for the past 60 months.  The purpose is to attempt to determine whether assets were given away to become qualified to receive Medicaid or without receiving something of equal value in return.  Unfortunately, DHS is likely to treat all donations as improper gifts.

Church Giving Treated and Improper

In Marian’s case, she had given about $14,000 to her church over the past 60 months.  DHS used that amount to calculate a “penalty period”.  The penalty period is the length of time an applicant must wait before benefits are paid.    It is calculated by dividing the value of the property given away by $144.67[i] to determine the number of penalty period days.  This meant that she would not be eligible for benefits until 96 days after she was broke.  Either the family must come up with the difference; the facility eats the cost or the resident faces eviction.

Appeal to Fair Hearing Judge

Fortunately, the caseworker’s decision is appealable.  A Fair Hearing allows an applicant to file a request a hearing if DHS denies an application or imposes penalty period.  Marian requested a hearing because the rule say:

 A penalty would not apply if the individual can show satisfactorily that the intent was to dispose of assets at fair market value or that the transfer was exclusively for a purpose other than eligibility.

Because of Marian’s faithful pattern of tithing the Fair Hearing Judge agreed that no penalty should be imposed.  However, if Marian suddenly began giving as her health declined, the decision may have gone against her.


Planning is the best tool to avoid a bad result.  In fact, many families can save a significant amount of resources just by knowing the rules.  Having an attorney experienced in Medicaid laws can help avoid denials and penalties.




[i] 2017 rate.

%d bloggers like this: