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 - Nicole Wipp
015 The 5 Things Adult Children Of Aging Parents Need To Know NOW (Part 1) With Audrey Earhart - ElderCounsel - Nicole Wipp
In Oklahoma mineral such as Oil and Gas are considered real estate. Often individuals would sell the surface rights to their property but keep the mineral rights. They did so because they realized that someday those property interests may become valuable. Sometimes, many generations later oil and gas development occurs, and the decedents need to prove up their inheritance through probate to get paid. Probate is a way to get the royalties paid to you.
What exactly is Probate?
Probate
is a legal process where a court determines that someone is deceased and who
will receive his or her property after it is administered.
Is Probate Difficult?
A
probate case can be very simple with the right attorney. Basically, the client provides information about
the person who died, who survived him or her, what property they owned and whether
there were any creditors. The attorney
prepares the paperwork for the client to review and sign.
Do I have to Appear in Probate Court?
No,
except in rare cases. Often the client
can receive and return various items by mail.
The attorney can handle any appearances.
The exception would be if the case becomes contested.
What if my Relative Didn’t Have a Will?
A
probate case can be handled if the person did or did not have a Will. If there was no Will, the distributions are
determined by Oklahoma intestacy statutes.
How Long Does a Probate Take to Complete?
Often a “summary probate procedure” can be used. This is available if any of the following apply: The person didn’t live in Oklahoma at the time of death; or The person has been dead more than 5 years; or The estate is valued at $200,000 or less.
In these cases, the time-frame is usually 60-80 days depending upon the availability of the court. Otherwise, a standard probate may be required which can take six or more months to complete.
What if the
Estate has been Probated in Another State?
What is an Ancillary Probate?
If
the mineral rights are in Oklahoma, another state’s court does not have authority
(jurisdiction) to transfer them. Therefore,
and Oklahoma probate is required, even if, there was a probate in
another state. Often an Ancillary Probate
procedure can be used which shortens the timeline to about 50 days. Procedure is available if the home state
probate case is concluded and certain orders were filed there.[1]
How Much Does a Probate Cost?
Most
mineral probate cases qualify for a flat rate of $3,400 which includes court
costs, publication fees, mailing copying and attorney’s fees. If there are multiple counties where minerals
are located, there are additional recording fees of about $30 per county.
I Filed an Affidavit of Heirship, why do I Need a Probate?
In
Oklahoma an Affidavit of Heirship can create title in the heirs. However, there are many requirements, the
biggest stumbling block but only after
it has been recorded at least ten years with the County Clerk were the minerals
are located and during that 10-year period not instrument inconsistent
with affidavit has been filed of record. Therefore, few companies paying royalties are
willing to rely upon an Affidavit of Heirship unless 10 years have passed.
What does Royalty Payments in Suspense or Payments on Hold Mean?
This
means that the royalties or other payments have been calculated and set aside
until the title of the person entitled to receive them has been
established. Often this means a probate. A company may use a Division Order Analyst
who determines what “title requirements” are needed to put royalties into “pay
status”.
My or My Relative’s Funds are held by the Oklahoma Treasurer’s Unclaimed Property Division or listed in the Mineral Owners Escrow Account. How do I claim these?
They
will inform you if a probate or an affidavit is sufficient to claim the funds.
What if I have more than one Estates, can they be joined in a single joint administration case?
Sometimes there is a need to take care of two or more
estates in order to get minerals into the name of the rightful heirs. While this may seem like a daunting task, it
can often be accomplished in one case. For
example, if grandfather owned mineral and died, then his daughter died. Neither had a probate done for their estates. Oklahoma law allows multiple estates to be
administered in one case.
In this case the living grandchildren would inherit through
their line.
What are the Advantages of Jointly Administered Probate
Cases?
Court Costs: The filing fee for a single or joint probate case is the same.
Publication Costs: Probate cases require publication. A joint probate is about ½ the cost of filing
two separate probate cases.
[1] The requirement would be order admitting the will to probate and an order
distributing the estate from the home state probate proceeding, or if the
decedent died intestate, by attaching a duly certified copy of the order
appointing the personal representative and an order distributing estate from
the home state probate estate. 58 O.S. §
677.
An estate plan must be coordinated to provided desired protection and results.
Formal written instructions for your family, doctors, and others regarding your:
Property
Finances
Family
It also empowers individuals to act on your behalf.
It keeps you in charge as long as you are alive and well.
It minimizes the need for guardianship or probate.
Powers of Attorney:
Grants somebody else to make decisions
Have access to information
Have ability to deal with property.
Have ability to make decisions
Financial Powers
Healthcare Powers
No POAs? May require the appointment of a guardian to
manage your affairs.
Advanced
Healthcare Directives:
Instructs family and doctors
about the care you want or don’t want at the end of your life.
It is followed when you
are unable to speak for yourself.
Provides basic choices
regarding lifesaving care, feeding tubes for food and hydration.
Can name a health care
proxy to make other care decisions.
No Advanced
Directive: Can cause family
disagreements concerning your care and end up in court.
Last
Testament
Provides for payment of debts and expenses
Names a person to be in charge
Disposes of property left in your name
Requires a Court to admit it to probate
No Will (or other plan): Probate property will be distributed
according to intestacy statutes and involve cumbersome probate procedures.
Trusts:
Avoids probate court
Can be changed
Can protect family from
predators
Can protect assets from
poor decisions
Provides inheritance
Works while you are
alive
No Trust: Probate may be required to transfer titles to
properties.
Transfer
on Death
Vehicles, Minerals
& Land
Avoids probate
Easy to set up
Inexpensive to create
Negative: Possible Disinheritance
Beneficiary
Designations:
Life Insurance &
Annuities
IRA, 401k, 403b other
Retirement
Bank / Credit Union
Accounts & CDs
Disadvantages: Limited Contingency
Estate Planning
involves a skill set that identifies how property is held and how it is passed
upon death. It also involves knowing
what danger signs are ahead and how to plan for them. Knowledge of the formalities of various documents
is a necessity to an effective estate plan.
This company is building a 186-mile pipeline through Gavin, Stephens, Coal, Pontotoc and Murray Counties Oklahoma. Oklahoma
You have Constitutional Rights when Eminent Domain is Claimed
They must pay:
Value of what is taken.
Value to diminished value to the remainder of the property
Expect the Easement to be Forever!
As with most proposed easements there are onerous terms that can
prevent the owner from building ponds, changing grade, planting trees or
shrubs.
As in all such cases, if an agreement is reached, there will be a one-time payment and no opportunity to re-negotiate the terms.
Don’t be Afraid to Say “NO” to the Initial Offer, or any offer.
In
a similar pipeline project, another company paid a range from $180 to
$745 per rod with an average of a 50 foot easement. The price obtained
depended upon the nature of the property and the negotiation skills of
the landowner.
Permanent means permanent.
An easement may prevent you from constructing or the loss of:
