HomeINTESTATE SUCCESSIONPROBATE CAUSED BY SELF-HELP

Have you or a loved one ever wondered what caused your family’s or friend’s estates to go into a probate? Well I hope this story will help you understanding why it happens.

A few years back, there was a couple that met with a very good and experienced elder law attorney (me). It was their first meeting with the attorney. At the meeting they discussed either setting up a trust for each of them, using a joint trust, or using wills. They also discussed setting up power of attorneys to avoid guardianship and give control to each other in the event either became incapacitated. The couple enjoyed meeting with the attorney to discuss their options. They took notes. But, they wanted to think about it. They never came back. They never followed up. A few years went by. It turns out the husband did not trust his wife or the attorney. Well not really that attorney alone. The husband didn’t trust any attorney. The wife decided to set up her own self-help living trust. The husband did nothing at all and depended upon the intestacy statute (a state law that decides how a decedent’s estate will pass to heirs when there is no will or trust). The husband dies intestate. He left property in just his name. The wife’s trust is questionable as a legal trust. But even if it is legal, it is not effective the way it is worded and funded. Since the husband never signed a will, his estate will go through a probate. The wife came in to see me to handle the probate. She remembered the earlier conference with the attorney and wished they had allowed him to take care of everything.

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Does this sound like something that you or a loved one or your parents could be facing? There are many people who hear the word probate and begin to worry. Probates can definitely be a scary thing to deal with. Expensive too. That is why you need to know what the Oklahoma intestacy statue says about the law in Oklahoma when it comes to the probate of an estate without a will.
The Oklahoma Statue states:

Okla. Stat. tit. 84 Sec. 213 Intestacy – Descent and Distribution (Oklahoma Statutes (2014 Edition)) LOCATE STATUTE ONLINE

“B. Beginning July 1, 1985, if any person having title to any estate not otherwise limited by any antenuptial marriage contract dies without disposing of the estate by will, such estate descends and shall be distributed in the following manner: 1. If the decedent leaves a surviving spouse, the share of the estate passing to said spouse is: a. if there is no surviving issue, parent, brother or sister, the entire estate, or b. if there is no surviving issue but the decedent is survived by a parent or parents, brother or sister: (1) all the property acquired by the joint industry of the husband and wife during coverture, and (2) an undivided one-third (1/3) interest in the remaining estate, or c. if there are surviving issue, all of whom are also issue of the surviving spouse: an undivided one-half (½) interest in all the property of the estate whether acquired by the joint industry of the husband and wife during coverture or otherwise, or d. if there are surviving issue, one or more of whom are not also issue of the surviving spouse: (1) an undivided one-half (½) interest in the property acquired by the joint industry of the husband and wife during coverture, and (2) an undivided equal part in the property of the decedent not acquired by the joint industry of the husband and wife during coverture with each of the living children of the decedent and the lawful issue of any deceased child by right of representation; 2. The share of the estate not passing to the surviving spouse or if there is no surviving spouse, the estate is to be distributed as follows: a. in undivided equal shares to the surviving children of the decedent and issue of any deceased child of the decedent by right of representation, or b. if there is no surviving issue, to the surviving parent or parents of the decedent in undivided equal shares, or c. if there is no surviving issue nor parent, in undivided equal shares to the issue of parents by right of representation, or d. if there is no surviving issue, parent, nor issue of parents, but the decedent is survived by one or more grandparents or issue of any grandparent, half of the estate passes equally to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of any paternal grandparent if both paternal grandparents are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation and the other half passes to the maternal relatives in the same manner; but if the decedent is survived by one or more grandparents or issue of grandparents on only one side of the family, paternal or maternal, the entire estate shall pass to such survivors in the manner set forth in this subsection, or e. if there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to the next of kin in equal degree; 3. If the decedent leaves no spouse, issue, parent, issue of parents, grandparent, issue of a grandparent, nor kindred, then the estate shall escheat to the state for the support of the common schools; and 4. For the purpose of this section, the phrase “by right of representation” means the estate is to be divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one equal share and the equal share of each deceased person in the same degree being divided among his issue in the same manner. The word “issue” means lineal descendants.”

You are probably reading through the intestacy statute and wondering, what in the world does that mean? This statue is saying that if someone passes away without leaving a will and the property was acquired by joint industry during the marriage when they lived together (coverture) between a husband and wife, the estate shall be distributed in a number of different ways to the surviving spouse. Sometimes it is divided with the parents or siblings, and sometimes with the children. Sometimes it matters whether the children were of the marriage or not. The thing to remember is, do you want to leave your estate to the whims of a state law, instead of to your own decision and plan. Most people would not want to trust the state law. I’m sure you are also wondering, what can you do to protect either your estate or a loved ones estate from being distributed by such a statute further on down the road. The best thing to do is to get in contact with a lawyer that is experienced and qualified in trusts, wills, probates, power of attorney, etc. Brent D. Coldiron, is an experienced elder law attorney and understands trusts, will, probates, power’s of attorney and Medicaid qualification for nursing home admission. You may reach him at BRENT’S WEBSITE or by telephone at (405) 478-5655.

While this story contains fictional people, the events in it are all too common.


Comments

PROBATE CAUSED BY SELF-HELP — 3 Comments

  1. Hello,My Mom is living off a trust fund from her ftaher. She is spending interest as well as the body. The trust is closely kept by the bank and dribbled out to her for her rent etc. This and SS is all she has. Can she shelter this trust allowing her to get some government benefits?

    • Your mother probably cannot. I am guessing that your grandfather has passed. It is likely this trust for your mother became irrevocable at his death. It might be possible for your mother to challenge the discretion used by the trustee. Is the trustee protecting what is left in the trust to the detriment of your mother? Usually the district court has jurisdiction over trusts and the actions of a trustee. Be sure and have a trust litigator carefully examine the trust instrument and the no contest provision. You would not want to end up disinheriting your mother or working a forfeiture by her challenge.

    • Generally for Medicaid and SSI the resources of a trust are considered available to her. However it costs nothing to find out. She could apply, submit a copy of the trust and what it holds and DHS will either deny or approve based on her resources and income. She also has to be aged (over age 65), blind or disabled.

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