HomeLiving TrustsA PRETERMITTED CHILD IS OUT OF LUCK WITH A TRUST

Do you have a trust? Is there someone you know that has a trust?

The case described below talks about a son who filed a petition wanting to be the personal representative of the probate estate of his dad.

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According to 2008 OK 83, 194 P. 3d 1269, This appeal arises from a final decree in a probate proceeding of the estate of Walter Kinsley Jackson (Jackson). On August 18, 2003, Johnny C. Benjamin (Benjamin) filed a petition seeking to be named the personal representative of the estate of Jackson. In the petition, Benjamin alleged (1) Jackson died intestate, (2) Benjamin is Jackson’s adult son,1 and (3) Benjamin is Jackson’s sole surviving heir at law. The notice of the hearing on Benjamin’s petition stated that Benjamin had applied for letters of administration and appointed a time certain for the hearing on Benjamin’s petition. Absent from the notice was any reference to or request for a determination of the heirs. Benjamin appeared at the hearing, but the record is absent of any evidentiary proof that Benjamin is Jackson’s heir at law. On September 3, 2003, the trial court found Jackson died intestate, found Benjamin to be Jackson’s son and entitled to Letters of Administration, and found Benjamin to be Jackson’s sole heir at law. Benjamin brought an intra-probate proceeding against Robena Butler and Harris Butler (together, the Butlers), the co-trustees of a revocable inter vivos trust established by Jackson and his wife, who had predeceased him. In the intra-probate proceeding, Benjamin sought the removal of the Butlers as co-trustees with him named as trustee in their place, sought the disgorgement of any trust assets which had been disbursed, and sought a determination that he was Jackson’s pretermitted heir and entitled to all the trust’s assets. Benjamin’s position hinged on the September 3, 2003 order’s findings that he was Jackson’s son and that he was Jackson’s heir at law. The trial court denied Benjamin’s motion for partial summary judgment, finding that the terms of title 84, section 132 of the Oklahoma Statutes do not apply to a revocable inter vivos trust. Pursuant to the letters of administration, Benjamin presented the court with a final accounting which stated that “[n]o assets exist for this estate and therefore there is no distribution.” On January 17, 2006, the final decree in the proceeding was filed. The final decree acknowledged the trial court’s previous ruling that the terms of title 84, section 132 do not apply to revocable inter vivos trusts. Benjamin appealed asserting that he is Jackson’s pretermitted heir; that the assets of the revocable inter vivos trusts are subject to the terms of title 84, section 132 of the Oklahoma Statutes; and that he is entitled to share in the trust assets. According to title 84, section 215 has specific evidentiary requirements for a child born out of wedlock to attain the status of an heir at law. Section 215 requires a child born out of wedlock and seeking status as the heir at law of a putative father to produce (1) proof of a written acknowledgment signed before competent witnesses that the child is that of the father, (2) proof that the father married the mother after the birth and acknowledged the child or adopted the child into his family, (3) proof that the father publicly acknowledged the child, receiving it into his family with his wife’s consent if married, and treating it as a child born in wedlock, or (4) proof that the father had been judicially determinated in a paternity proceeding to be the child’s father. Section 215 mandates such proof before a child born out of wedlock may attain the status of an heir at law of a putative father. In addition to such proof, title 58, section 2403 requires an explicit notice of a determination of heirs as a prerequisite to determinating heirship. The record here again is absent such notice. Because of this absence of such notice, this Court is not bound by the trial court’s determination of heirs, i.e. the finding that Benjamin is Jackson’s sole heir at law in the September 3, 2003 order. Disposing of property is an inalienable natural right throughout a person’s lifetime. Snodgrass v. Snodgrass, 1924 OK 597, ¶ 10, 231 P. 237, 239. However, the right to control disposition of property after death and the right of inheritance are statutory. Id. The Oklahoma Legislature has provided several means for disposing of one’s property at death: one is by will, 84 O.S.2001, § 44, and another is by trust. 60 O.S.2001, § 175.1; 84 O.S.2001, § 301. In Oklahoma’s pretermitted heir statute, the Legislature has also provided a statutory method of inheritance for children whom a testator fails to provide for or to name in a will. 84 O.S.2001, §§ 132, 213.

Here Benjamin invokes Oklahoma’s pretermitted heir statute in his quest for a share of Jackson’s assets and argues that it should be construed to extend to children omitted from revocable inter vivos trusts as well as wills. In construing a statute, our goal is to determine the Legislature’s intent. Heldermon v. Wright, 2006 OK 86, 12, 152 P.3d 855, 859. If the legislative intent is clear from a statute’s plain and unambiguous language, this Court need not resort to rules of statutory construction. Id. When a statute’s language is unambiguous, its words will be given their obvious and ordinary meaning and will be followed without additional inquiry. Oklahoma City Zoological Trust v. State ex rel. Public Employees Relations Bd., 2007 OK 21, 6, 158 P.3d 461, 464.

Oklahoma’s pretermitted heir statute provides:

When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.

84 O.S.2001, § 132, This provision unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts.
Effective July 1, 1985, Oklahoma’s forced heir statute was amended to prohibit a spouse from bequeath[ing] or devis[ing] away from the other so much of the estate of the testator that the other spouse would receive less in value than an undivided one-half (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture. Title 84, section 44 of the 1981 statutes and its current counterpart, known as “forced heir” statutes, are limitations on a married person’s power to dispose of his or her property. See Stinson v. Sherman, 1965 OK 19, 0, 405 P.2d 172, 173 (Syllabus by the Court). The forced heir statute limits a spouse’s power to disinherit the surviving spouse; the statute secures to a surviving spouse the right to elect a minimum statutory share in the deceased spouse’s estate which is superior to other legatees and devisees. Id. A spouse may not disinherit a surviving spouse even with a clear expression of intent to do.

In contrast, Oklahoma’s pretermitted heir statute found at title 84, section 132 is not a limitation on a testator’s power to dispose of his or her property. Section 132 is an assurance that a child is not unintentionally omitted from a will. In re Hoobler, 1996 OK 56, 8, 925 P.2d 13, 17. The pretermitted heir statute does not secure a child with a minimum statutory share of a parent’s estate upon the death of a parent. See id. Unlike a spouse, a testator can disinherit a child if the will shows a clear intent to do so. See id. Unlike section 44’s forced heir provisions, section 132 is ineffective against a testator’s bequest of a pittance to a child. See Eversole, 1994 OK 114 at 15, 885 P.2d at 664. The record is void of title 58, section 240’s required notice before a determination of heirs. Thus, the September 3, 2003 order’s determination of heirs is not binding on this Court. However, the trial court correctly found that the terms of Oklahoma’s pretermitted heir statute do not extend to a revocable inter vivos trust. This decision left Benjamin with no claim to the trust assets. Title 58, section 122 of the 2001 Oklahoma Statutes provides in part:

Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:

1. The surviving husband or wife, or some competent person whom he or she may request to have appointed.
2. The children.
3. The father or mother.
4. The brothers or sisters.
5. The grandchildren.
6. The next of kin entitled to share in the distribution of the estate.
7. The creditors.
8. Any person legally competent.

An experienced probate and living trust attorney like Brent D. Coldiron, knows what to do in these situations.

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His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.

About Brent Coldiron

Brent D. Coldiron is an attorney with offices at 1800 East Memorial Road, Oklahoma City and 2801 Parklawn Drive, Midwest City. He has over 39 years of experience. He practices in the area of probate, wills, trusts, guardianship, Medicaid Planning, and elder law. Brent is also the presiding Municipal Judge for the City of Midwest City.


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