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


21May 2018
Oil and Gas Royalties in Suspense, payment withheld

You signed an Oil and Gas Lease, you might have even been paid a bonus.  However, now that there is production the company won’t pay the royalties.  In “Suspense” means that your oil and gas mineral royalty payments are being withheld.  A common reason for an operator to use suspense is because they want to be sure that they are paying the rightful owner.  Often, the issue is an un-probated estate in Oklahoma.  In other words, even though you inherited the minerals there is no court order determining that you own them.

How difficult is it Probate Minerals?  How long does a Probate Take?

Often a probate can be very simple.  In fact, Oklahoma’s probate laws are designed to provide quick resolution of an estate under certain circumstances.  It is not unusual for a matter to be fully resolved in 40-100 days after filing depending upon the Court’s availability.  The methods are by Summary Probate and Ancillary Probate.

Summary Probate:

A summary probate is possible if one of the following is true:

-The decedent died more than five years ago; or

-The decedent resided outside of Oklahoma; or

-The estate is valued less than $200,000.

This can be used whether or not a Will was created.  A Special Administrator can be appointed.  Notice is given to creditors and heirs.  If there is a Will, the people named in it are also provided notice.  Normally, only the attorney has to appear before the judge.

Ancillary Probate:

If the decedent had a Will that has been probated in another state, then an Ancillary Probate is often available.  Basically, an Oklahoma court ratifies what has occurred in decedent’s home state case.  If there was a probate but there was no Will, the Summary Probate is still available.

Do I have to come to Oklahoma to Probate the Minerals?

No, normally this can be done by an attorney in state.  A person interested in the estate would sign affidavits and other items before a notary in their own state.

What if the person named as Executor won’t Act?

If a person was named as executor in the Will refuses to help an heir or person named in the Will can start the process.  The named executor cannot prevent a probate from happening.  At best, he or she could ask that they be appointed as the representative of the estate.

Are the Estate Taxes on Oklahoma Minerals?

Rarely, Oklahoma abolished the Estate Tax in 2010.  Oklahoma has a 10 year limitation on estate taxes.  So an individual who died after 2010 is not subject to Oklahoma Estate Taxes.  Also a person who died more than 10 years ago is not subject to estate taxes except in the rarest of circumstances.

Federal Estate taxes are rarely an issue because the estates are not taxed until a high limit is reached.

I Signed and Affidavit of Heirship, Why Isn’t that Enough?

An Affidavit of Heirship is a flimsy document.  There is really no way to verify that the statements are accurate.  People have often lied about their rights in such an affidavit.  Oil and Gas Companies and operators know that if they pay royalties based solely on an affidavit, they might have to pay those same funds to a different person whose title is confirmed by a court order.

What happens if the property was owned by grand or great-grandparents?

The property can still be inherited by heirs several generations removed.

What if My Mother or Father Didn’t Have A Will?  Who gets the Minerals?

If somebody dies without a Will and owns minerals in Oklahoma, there is a statute that determines who should receive the decedent’s Oklahoma property interest.  Generally, a spouse is entitled to a share of the estate along with the children.  If a child predeceased the mineral owner, then his or her children would be entitled to a share.

Major companies include:



Black Hills

















16May 2018
Don't let your rights get bulldozed.

Eminent Domain Guide for Land Owners, By Harlan Hentges & Richard Winblad

If you’re reading this, somebody probably wants to take all or part of your property to build a road, pipeline, power line, or something else on your land, and you would prefer they went elsewhere. You’re not alone. Many people have been in your position. Congratulate yourself for doing research, which is the best first step.  This is called “Taking”, “Condemnation” and “Eminent Domain”.

What is eminent domain?

Eminent domain is the power of the government to take (condemn) private property. In the United States private property can only be taken for public use and the owner must be paid just compensation. (United States Constitution, Fifth Amendment) The government has even delegated the power to some private businesses such as utilities or pipeline companies.

Do they really have the power of eminent domain?  Can I Stop the Condemnation Taking?

Sometimes the answer is clear. If a state department of transportation is widening a highway, it is probably clear that property can be taken by eminent domain.  Other governmental entities may include the federal or state agencies, universities, water departments, agency, county or city governments.

Sometimes the answer is not clear, especially when it’s a private company. You might be surprised that private businesses can use eminent domain. These can include pipeline and utilities companies or neighborhood developers.  Determining whether they actually have the power of eminent domain can get complicated. For example, eminent domain can be used for some oil and gas pipelines and not for others. The person communicating with you should be willing and able to explain exactly why and how they have the power of eminent domain. Don’t be afraid to ask and expect a clear answer. If the answer is not clear, dig deeper and don’t be bullied into accepting their offer.  Sometimes cases must be taken to the Supreme Court to stop the taking.  Read More.

What is the difference between an Private Easement and an Eminent Domain Taking?

A private easement is negotiated when a company does not have the “power” to take your land through eminent domain.   If the company does not have condemnation powers you can absolutely refuse to allow them on your property.  They must negotiate for a private easement.  Therefore, you are in a great position to ask for greater compensation or make other requirements.

The Oklahoma Constitution states:

No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.

What are the Landowner’s Rights Under Oklahoma Law in Eminent Domain?

You are entitled to receive just compensation if your property is taken for a public use.

Your property can only be taken for a public purpose.

Oklahoma law prohibits the taking of your property solely for economic development.

Your property can only be taken by a governmental entity or  private entity authorized by law to do so.

The entity must notify you that it wants to take your property.

The entity proposing to take your property must make a bona fide effort to negotiate to buy the property before it files a lawsuit to condemn the property – which means the condemning entity must make a good faith offer.

You may hire an appraiser or other professional to determine the value of your property or to assist you in any condemnation.

You may hire an attorney to negotiate with the condemning entity and to represent you in any condemnation proceeding.

Before your property is condemned, you are entitled to a copy of the commissioners’ report which determines the injury you may sustain by the condemnation of your property and the amount of just compensation entitled to you.

If you are unsatisfied with the compensation awarded by the commissioners’ report, or if you question whether the taking of your property was proper, you have the right to a trial by a jury or review by the district court judge. If you are dissatisfied with the trial court’s judgment, you may appeal that decision.


How much should you get as “just compensation”?

If they take your land under eminent domain you are entitled to be paid for two things: (1) fair market value of the land they take; and (2) the decrease in value of what is left.  The total of these two amounts is called “just compensation.”

Fair Market Value:

            You are entitled to the fair market value of the land taken.  Fair market value is the price a willing seller would receive from a willing buyer where neither are under an obligation to buy or sell.  Often the condemner will have an appraisal of your property.  Keep in mind that their goal is to acquire the property with smallest payment possible.  The appraiser, who works for the condemner, knows that his job is provide the lowest possible value.  Appraisals vary widely and you are not required to accept their value as accurate.

Damage or Diminution in Value to the Remainder

            Taking part of your property often causes the rest of your property to lose value.  The decrease (or diminution) in value to portion that is not taken is more complicated. If you’re a farmer and they put a four lane highway through your land, the value of the entire property is decreased because it cannot be operated as efficiently. If you’re have a business and they widen a highway into your only parking lot, the value of the entire property is diminished due to inadequate parking. If you’re a homeowner and they put a large gas line in your yard, the value of your house is diminished because home buyers would prefer to not have a large gas line in their yard. The amount you should be paid for the decrease in value to the entire property depends on your particular circumstance.

What happens if you don’t reach an agreement?

This is the part scares some people, but it shouldn’t. If you do not reach an agreement, the government company has to file a condemnation lawsuit. That doesn’t mean you have done anything wrong, and they still have to pay you “just compensation” as discussed above.  If you disagree with the compensation you have a Constitutional Right to have the value determined by a jury of your peers.

An eminent domain case has its own special process unlike any other lawsuit.  An explanation of the procedure could easily fill a thousand page book.   In short, it is not a task to be undertaken by an attorney unfamiliar with the process.  Often, landowners reach a better result is when the company or government is forced into litigation.

What will the negotiations be like?

You never can tell. The person who contacts you is like a salesman. Everything they do and say is intended to get you to say “yes” for as little money as possible. They might flatter you or try to intimidate you. They may share information, or they may be secretive. They might be good at their job or not. They might be honest or not. They are just people and they have no power to make you do anything.

There will be two things to discuss. One is the amount of money they will pay you.  The other is the description of what they want to take. For example, if it is a pipeline, do they want the right to put things above the ground or only beneath the surface?  If it is an electric line, do they want the right to place large metal towers with many lines, or smaller poles with few lines? Do they want to restrict you from building driveways, roads or planting trees? These and many other things can be negotiated to make sure that you are giving them only what they really need.

How much does it cost to have an attorney represent me in eminent domain?

Obviously, you want to end up in a better situation by using an attorney than not.  This may mean more compensation or a more favorable terms.  Sometimes an attorney may agree to represent you on a contingency basis.  This means they  would receive a percentage of increase of value.  For instance, if the initial offer was $10,000 and you ended up with $40,000, the fee would be based upon the increase or a portion of $30,000.  At other times, the attorney may agree to an hourly rate.  If the dispute goes to trial, the attorney may be entitled payment from the condemning authority or company.

Inverse Condemnation: When land is taken without going through the procedures:

Occasionally, land is taken by without going through any procedures.  It may occur through a mistake about boundaries, water backing up onto a landowner’s property.  In short, the condemnation procedures were not followed.  In this case, the law provides a remedy called inverse condemnation with the same compensation as described above.


You should be proud of what you have, and you have every right to insist your property rights be respected. Part of being a property owner is knowing that in certain situations your property can be taken for public use, but that does not mean that you must accept what you are being offered. You don’t have to answer their questions. You don’t have to believe what they are telling you. Ask questions. Expect answers. Talk to you neighbors.


More Information:

The following are from Title 27 of Oklahoma Statutes, the Oklahoma Constitution and Oklahoma Attorney General materials for which no copyright or credit is claimed.

Section 1 – Lands Subject to Right of Eminent Domain in Behalf of Any Public Enterprises

The lands set apart for the use and benefit of the State of Oklahoma for public schools, for public buildings and educational institutions, either by congressional enactment or executive reservation, are hereby declared to be subject to the right of eminent domain in behalf of any public enterprises now authorized by law to condemn private property for sewers, railroads, side tracks, station grounds and other municipal or corporate public uses, and all of the laws of this state with reference to the taking of private property for public use are hereby made applicable to the said lands.

Section 2 – Procedure of Condemnation for State Lands

Before any public corporation, municipality or other entity or person authorized to exercise the right of eminent domain under existing law, shall have the right to condemn or take any part of such lands, a plat of the grounds proposed to be taken, showing the part of the particular subdivision, shall be prepared and filed with the Governor of said state, together with a sworn statement of the engineer or superintendent in charge of such public work, that the taking of such lands is necessary to the exercise of the powers of such municipality or corporation; and it shall be the duty of the Governor to appoint three disinterested persons, resident householders of the county in which such land is located, who shall first take an oath to fairly and impartially appraise the value of the ground so taken, and the damage to the remaining parts of such subdivision by the taking thereof, and the said appraisers shall notify the Governor and the officers of such corporation of the time and place when they will proceed to appraise such damage, and at such time and place, upon actual view of the premises, the said appraisers shall meet and appraise the damage, in writing, and return one copy thereof under their signatures to the Governor of the state, and one copy to the principal officer of such corporation or municipality in charge of such construction, and if either party is aggrieved they may, within ten (10) days, appeal to the district court of the county where such land is located, in the same manner that appeals are taken from judgment of justices of the peace, where the amount of such damage shall be tried by a jury, as other causes are tried. In case no appeal is taken from the award of such appraisers, such corporation or municipality shall have the right to occupy such grounds by the paying into the State Treasury the amount of such award. In case either party appeals, such corporation or municipality shall have the right to occupy such grounds upon giving bond in treble the amount of the award, with sureties to be approved by the clerk of the district court where such appeal is pending, to the effect that the corporation or municipality will pay said award if such appeal be dismissed, or shall pay any judgment finally rendered in said action if the same shall be tried.

Section 5 – Power to Condemn Lands

Any county, city, town, township, school district, or board of education, or any board or official having charge of cemeteries created and existing under the laws of this state, shall have power to condemn lands in like manner as railroad companies, for highways, rights-of-way, building sites, cemeteries, public parks and other public purposes.

Section 6 – Private Person, Firm or Corporation – Power to Exercise Eminent Domain

Any private person, firm or corporation shall have power to exercise the right of eminent domain in like manner as railroad companies for private ways of necessity or for agriculture, mining and sanitary purposes.


Section 7 – Rights – Same as Railroads

  1. Except as otherwise provided in this section, any person, firm or corporation organized under the laws of this state, or authorized to do business in this state, to furnish light, heat or power by electricity or gas, or any other person, association or firm engaged in furnishing lights, heat or power by electricity or gas shall have and exercise the right of eminent domain in the same manner and by like proceedings as provided for railroad corporations by laws of this state.
  2. The power of eminent domain shall not be used for the siting or building of wind turbines on private property. Title 27. Eminent Domain


Section 7.10 – Public Utility Lines – Relocating, Rerouting, Construction Changes, etc. – Expenses and Expenditures


In the event a common carrier, in the exercise of the power of eminent domain, or any other power granted hereunder, makes necessary the relocation, raising, lowering, rerouting, or changing the grade of, or altering the construction of any electric transmission or telephone lines, railroads, or properties and facilities, or pipeline, all such relocation, raising, lowering, rerouting, changing of grade or alteration of construction shall be accomplished at the sole expense of such common carrier. The term “sole expense” shall mean the actual cost of such relocation, raising, lowering, rerouting, or change in grade or alteration of construction in providing comparable replacement without enhancement of such facilities, after deducting therefrom the net salvage value derived from the old facility.

Section 12 – Inverse Condemnation Proceedings – Reimbursement of Expenses

Where an inverse condemnation proceeding is instituted by the owner of any right, title or interest in real property because of use of his property in any public program or project described in Section 1 of this act, the court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for the taking of property, or the state’s attorney effecting a settlement of any such proceeding, shall determine an award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the acquiring entity’s attorney, respectively, reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding. A determination by the court shall be appealable to the Supreme Court in the same manner as any other final order.

Section 13 – Policies

Any person, acquiring agency or other entity acquiring real property for any public project or program described in Section 9 of this title shall comply with the following policies:

  1. Every reasonable effort shall be made to acquire, expeditiously, real property by negotiation.
  2. Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property, except that the head or governing body of the entity acquiring real property, if so mandated by federal law or regulation, may prescribe a procedure to waive the appraisal in cases involving the acquisition by sale or donation of property with a low fair market value as such value is defined by federal law or regulation.
  3. Before the initiation of negotiations for real property, an amount shall be established which is reasonably believed to be just compensation therefor and such amount shall be promptly offered for the property. In no event shall such amount be less than the approved appraisal of the fair market value of such real property. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The owner of the real property to be acquired shall be provided with a written statement of, and summary of the basis for, the amount established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.
  4. No owner shall be required to surrender possession of real property before the agreed purchase price is paid or deposited with the state court, in accordance with applicable law, for the benefit of the owner of an amount not less than the approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding of such property.
  5. The construction or development of a public improvement shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling, assuming a replacement dwelling, as required by the Oklahoma Relocation Assistance Act, will be available, or to move his business or farm operation without at least ninety (90) days’ written notice from the date by which such move is required.
  6. If any owner or tenant is permitted to occupy the real property acquired on a rental basis for a short term or for a period subject to termination on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier.
  7. In no event shall the time of condemnation be advanced, on negotiations or condemnation and the deposit of funds in court for the use of the owner be deferred, or any other coercive action be taken to compel an agreement on the price to be paid for the property.
  8. If an interest in real property is to be acquired by exercise of power of eminent domain, formal condemnation proceedings shall be instituted. The acquiring authority shall not intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property.
  9. If the acquisition of only part of the property would leave its owner with an uneconomic remnant, an offer to acquire that remnant shall be made. For the purposes of this section, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the property of the owner which has little or no value or utility to the owner.
  10. A person whose real property is being acquired in accordance with this title may, after the person has been fully informed of his right to receive just compensation for such property, donate such property, any part thereof, any interest therein, or any compensation paid therefor, as such person shall determine.
  11. As used in this section:
  12. “Appraisal” means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information; and
  13. “Acquiring agency” means:

(1) a state agency which has the authority to acquire property by eminent domain pursuant to state law, and

(2) a state agency or person which does not have such authority, to the extent provided by regulation.

Section 18 – Landowner’s Bill of Rights

  1. The Attorney General shall prepare a written statement that includes a “Landowner’s Bill of Rights” for a property owner whose real property may be acquired by a person, acquiring agency, or other entity through the use of the entity’s eminent domain authority under Title 27 or Title 66 of the Oklahoma Statutes. The statement shall be made available to the public and written in plain language designed to be easily understood by the average property owner.
  2. The Landowner’s Bill of Rights shall notify each property owner of the right to:
  3. Notice of the proposed acquisition of the owner’s property;
  4. A bona fide good-faith effort to negotiate by the entity proposing to acquire the property;
  5. An assessment of damages to the owner that will result from the taking of the property;
  6. A hearing under Title 27 of the Oklahoma Statutes, including a hearing on the assessment of damages; and
  7. An appeal of a judgment in a condemnation proceeding, including an appeal of an assessment of damages.
  8. The statement shall include:
  9. The title “Landowner’s Bill of Rights”; and
  10. A description of:
  11. the condemnation procedures provided by Title 27 of the Oklahoma Statutes,
  12. the condemning entity’s obligations to the property owner, and
  13. the property owner’s options during a condemnation, including the property owner’s right to object to and appeal an amount of damages awarded.

Section 14 – Buildings, Structures and other Improvements – Taking with Real Property

  1. Where any interest in real property is acquired, an equal interest shall be acquired in all buildings, structures or other improvements located upon the real property which are required, by the head of the acquiring entity, to be removed from such real property or which he determines to be adversely affected by the use to which such real property will be put.
  2. For the purpose of determining the just compensation to be paid for any building, structure or other improvement required to be acquired as by subsection A of this section, such building, structure or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of a tenant, as against the owner of any other interest in the real property, to remove such building, structure or improvement at the expiration of his term, and the fair market value which such building, structure or improvement contributes to the fair market value of the real property to be acquired or the fair market value of such building, structure or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor.
  3. Payment under this section shall not result in duplication of any payments otherwise authorized by law. No such payment shall be made unless the owner of the land involved disclaims all interest in the improvements of the tenant. In consideration for any such payment, the tenant shall assign, transfer and release to the acquiring entity all his right, title and interest in and to such improvements. Nothing in this section shall be construed to deprive the tenant of any rights to reject payment under this section and to obtain payment for such property interests in accordance with applicable law other than this section.

Section 16 – Right to Just Compensation – Definition

  1. In every case wherein private property is taken or damaged for public use, the person whose property is taken or damaged shall be entitled to just compensation.
  2. “Just compensation”, as used in subsection A of this section, shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. If only a part of a tract is taken, just compensation shall be ascertained by determining the difference between the fair market value of the whole tract immediately before the taking and the fair market value of that portion left remaining immediately after the taking.



  Oklahoma Constitution

    Article 2 – Bill of Rights

        Section Article 2 section 23 – Private property – Taking or damaging for private use

  • 23. Private property – Taking or damaging for private use.

No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.


Section Article 2 section 24 – Private property – Public use – Character of use a judicial question



  • 24. Private property – Public use – Character of use a judicial question.

Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. Provided however, in no case shall the owner be required to make any payments should the benefits be judged to exceed damages. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.








This Landowner’s Bill of Rights applies to any attempt by the government or a private entity to take your property through a condemnation or other legal proceeding. Generally, the laws applicable to the Landowner’s Bill of Rights can be found in Titles 27 and 66 of the Oklahoma Statutes.



  • You are entitled to receive just compensation if your property is taken for a public
  • Your property can only be taken for a public
  • Oklahoma law prohibits the taking of your property solely for economic
  • Your property can only be taken by a governmental entity or  private entity authorized by law to do
  • The entity must notify you that it wants to take your
  • The entity proposing to take your property must make a bona fide effort  to negotiate to buy the property before it files a lawsuit to condemn the property – which means the condemning entity must make a good faith offer that conforms within Titles 27 and 66 of the Oklahoma
  • You may hire an appraiser or other professional to determine the value of your property or to assist you in any condemnation
  • You may hire an attorney to negotiate with the condemning entity and to represent you in any legal proceedings involving the
  • Before your property is condemned, you are entitled to a copy of the commissioners’ report which determines the injury you may sustain by the condemnation of your property and the amount of just compensation entitled to
  • If you are unsatisfied with the compensation awarded by the commissioners’ report, or if you question whether the taking of your property was proper, you have the right to a trial by a jury or review by the district court judge. If you are dissatisfied with the trial court’s judgment, you may appeal that




Eminent domain is the legal authority certain entities are granted that allows those entities to  take private property for a public use. Private property can include land and certain improvements that are on that property.


Private property may only be taken by a governmental entity or private entity authorized by law to do so. Your property may be taken only for a public use. That means it can only be taken for a purpose or use that serves the general public. Oklahoma law prohibits the taking of your  property solely for economic development.


Your property cannot be taken without just compensation. Just compensation includes the  market value of the property being taken. It may also include certain damages if your remaining property’s market value is diminished by the acquisition itself or by the way the condemning entity will use the property.




The taking of private property by eminent domain must follow certain procedures. First, the entity that wants to condemn your property must notify you. Since additional  requirements apply to entities using government funds when exercising eminent domain, the entity must also specify to you whether they intend to use government or private funds for the taking.**

Second, the condemning entity must make a bona fide effort to negotiate with you to purchase the property. You have the right to discuss the negotiation with others and to either accept or reject any offer made by the condemning entity.




If you and the condemning entity do not agree on the value of your property, the entity may begin condemnation proceedings. Condemnation is the legal process that eligible entities utilize to take private property. It begins with a condemning entity filing a petition for condemnation in district court, in the county where the property is located.




After the condemning entity files a condemnation claim in court, and after ten (10) days’ notice to you, the judge will appoint three disinterested landowners to serve as commissioners. These commissioners must take an oath to perform their duties impartially and justly. The commissioners are not legally authorized to decide whether the condemnation is necessary or if the public use is proper. Their role is limited to assessing just compensation for you.


After being appointed, the commissioners will inspect the property and consider the injury you may sustain by the taking. The commissioners must make a report in writing which determines the quantity, boundaries and just compensation of your property that is being taken. The commissioners must give their report to the district court clerk, who will file and record the


report. Once the commissioners’ report is filed, the district court clerk has ten (10) days to forward a copy of the commissioners’ report and a notice of time limits for review and appeal to all parties. After the commissioners’ report is filed, the condemning entity may take possession of the condemned property, even if either party seeks judicial review of the award. To take possession of your property, the condemning entity must first pay the county clerk the amount assessed and reported by the commissioners.


The commissioners’ report is significant to you not only because it determines the amount that qualifies as just compensation, but also because it impacts who pays the cost of the condemnation proceedings, as noted in the next section.




If either the landowner or the condemning entity disagrees with the commissioners’ award, two options are available. Either party may file written exceptions or objections with the district  court clerk’s office within thirty (30) days after the report is filed. If an exception/objection is filed, the court must confirm the awarded amount, reject the awarded amount, or order a new appraisement if either party shows good cause. Alternatively, either party may submit a written demand for a jury trial with the district court clerk’s office, within sixty (60) days after the report is filed. If you wish to make this objection, you must file it in writing with the court. If either party demands a jury trial, the trial will be conducted in the same manner as other civil actions are conducted in district court and the jury will assess the amount of damages from the taking. If the party demanding the jury trial does not receive a verdict more favorable to him than in the commissioners’ report, then that party may be required to pay all district court costs.  This means, if you demand a jury trial and the jury determines the commissioners’ award was sufficient, you might be required to pay all the district court costs related to the jury trial.


Either party may ask the court to extend the time limit for filing an exception or demand for jury trial if the court clerk failed to give notice within ten (10) days from the report filing. The court may extend the time for filing to up to twenty (20) days after the application is heard.




After trial, either party may appeal any judgment entered by the court to the Supreme Court of Oklahoma. If you appeal the judgment, you will be liable for the costs of the appeal, unless the Supreme Court determines you are entitled to a greater amount of damages than the commissioners awarded.




When an entity uses federal, state, or local funds to acquire your private property for public use, the entity must comply with additional procedures before beginning the condemnation process. First, the entity must appraise the real property before initiating negotiations to purchase your property. The entity must give you the opportunity to accompany the appraiser during the


inspection of your property, unless a federal law provides an exception. Second, after the appraisal, the entity must promptly offer you an amount reasonably believed to be just compensation. This amount cannot be less than the amount of the approved appraisal of the fair market value of the real property. The entity must provide you a written statement of the established just compensation amount they are offering you and a summary of how the entity came to this conclusion. If it is determined that damages to your remaining property will occur, the just compensation offered to you for those damages must be stated separately.


You will not be required to surrender possession of your real property to the condemning entity, even if you accepted the approved offer price or, after the condemnation proceedings, the compensation award amount has been determined, until the condemning entity pays the agreed purchase price or deposits the purchase price with the state court.


If the property taken is your dwelling, business or farm operation, the condemning entity must give you at least ninety (90) days’ written notice from the date you are required to move from your dwelling or move your business or farm operation to another location.


The statute forbids the condemning entity from taking any coercive action to compel you to agree on the price of your property. This means that the entity cannot advance the time of condemnation nor can the entity postpone depositing the fund in court for your use.

You have the right to donate your property or compensation paid, if you choose, after you have been fully informed of your right to just compensation.


If private property was condemned with the use of governmental funds, and the property is not used for the purposes for which it was condemned or for another public use, this property is called surplus property. You have the right of first refusal to the surplus property. This means you have the right to purchase the surplus property at the appraised value or the original price at which the entity purchased that portion of the property, whichever is less, before anyone else.




The condemning entity must, as soon as practicable after paying the purchase price, reimburse you for certain expenses you incur as a result of the taking. These expenses  include:  1) recording fees, transfer taxes and similar expenses incidental to conveying your real property; 2) penalty costs for prepaying your preexisting recorded mortgage; and 3) their pro rata portion of real property taxes paid.




The court may also determine that the condemning entity must reimburse you for your reasonable attorney, appraisal, engineering and expert witness fees, you actually incurred because of the condemnation proceedings, if the entity abandons the proceedings or where the final judgment is that your property cannot be acquired through condemnation. The court may also award these expenses if the jury award exceeds the commissioners’ award by at least ten percent (10%).




The information in this statement is intended to be a summary of the applicable portions of Oklahoma state law as required by HB 1562, enacted during the Oklahoma 2012 Regular Session. This statement is not legal advice and is not a substitute for legal counsel.




Further information regarding the procedures, time-lines and requirements outlined in this document can be found in Oklahoma Statutes Title 27 Eminent Domain and Chapter 2 of Title 66 Railroads. Other Statutes regarding eminent domain can be found in Oklahoma Statutes  Titles 11, 52, 60, 69, 70 and 74.


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



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18Dec 2017

Advanced Health Care Directive (Living Will Form)

30Mar 2018

What To Do When The Divorce Doesn’t Work Out

You get a divorce then reconcile.  You might want to get remarried.  However, there is another answer you can also have the divorce vacated in Oklahoma.  This is available if:

  1. An Oklahoma Court issued the divorce;
  2. Both parties agree; and
  3. Neither of the parties have married a third person since the divorce.

Social Security Rules Regarding Divorce and Benefits:

Generally:  If divorced, in order to be eligible for Social Security Benefits you must have been married 10 or more years and not be remarried.  But if the divorce is vacated, social security considers it as follows, “Because the order vacating the divorce decree stated that the divorce was set aside, vacated, and held for naught, the divorce was reordered a nullity, as if the parties had never been divorced.”  See ruling.  If either spouse was previously been married, it may be more advantageous for Social Security benefits to remain divorced.  See Rules.


How To Vacate a Divorce:

Sign a Joint Petition

Attach Affidavits

Present Order to Judge.

Start Here, Vacation of Divorce 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.
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