An Texas lawyer drafted a will for an Texas resident. The only problem was that the Texas resident owned oil, gas and other minerals in Oklahoma. The will stated, “all [of the mother’s] property of every kind and character of which [she] may die seized and possessed” would be left to “her beloved son… if he predeceased her to her “beloved daughter-in-law….” In re Estate of Boyd, 321 P3.d 1001, 2014 OK CIV APP 20 [www.oscn.net].
The fact of the matter was that the mother had four sons, not just one. However, this was good enough for Texas. The will was admitted to probate. Everything went to the one son in Texas. Then things got interesting.
The will was filed in Oklahoma because minerals were owned here. The son had died by then, and so had two of the other three sons. In a probate a notice has to go out to all heirs of the decedent. When a child was an heir but now is deceased, then his issue take his place as the heir. So a notice went out the deceased son’s heirs. You can imagine how this will turn out. [Its amazing how active and interested relatives will get when it comes to an inheritance. Especially an unexpected one. One they have done nothing to deserve, except to be related by blood.]
The deceased sons’s heirs objected to the will. They said they were pretermitted heirs. That is a legal term of art in Oklahoma. They said the will was not valid and they were entitled to an intestate share, entitled to inherit as if their grandmother didn’t have a will at all. Predicably, the Oklahoma Court agreed. The Court of Civil Appeals held: “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….”
The Court went on to explain what the will could have properly omitted these heirs as follows: “A person can express the intention to omit to provide for his children in many ways. He may expressly state that the named child is to receive nothing. He may provide that a child who claims to be pretermitted shall receive only a nominal amount. He may name the child, but leave nothing to him. He may declare that any child claiming to be a pretermitted heir shall take nothing.” Of course it did not.
The Court noted that the Texas will failed to mention the other sons by name or class [Something maybe, like this: I do not want my other three sons and their children, issue and descendants to receive anything under my will. That would have worked. But a careful experienced will and probate attorney would have gone to the trouble to name all the children first just to be sure.] And the Texas will had no affirmative expression of an intent to disinherit anyone. The Court adopted the legal rule that states that when that happens, it is presumed that the maker of the will forgot about her other children [I know that would make the mom pretty stupid to not remember giving birth to the other three. But that is the way the law is. Some results are absurd. It often lacks common sense. Which is why the lawyer must avoid it at all costs to protect his client.]
What could have been done? For one thing, if the Texas lawyer knew about the Oklahoma minerals, an Oklahoma attorney could have been engaged to draft a codicil for the Oklahoma minerals specifically. An experienced Oklahoma will and probate attorney would have named the children. Then made the mother’s intent clear that she was intentionally omitting them and their children, issue and descendants. But an even better Oklahoma attorney would have suggested that an Oklahoma living trust be used for the Oklahoma minerals. Why go through a probate in the first place? Why send out a notice to all heirs with essentially an invitation to make a legal protest of a will? Stay out of the Court. Use a living trust. And a living trust has another huge advantage over and above avoiding probate.
Pretermitted heirs have no rights to protest under a living trust. Say the mother came to an experienced living trust, will and probate attorney, like Brent D. Coldiron. Brent being experienced and knowledgeable with over 39 years of practice, would have suggested using a living trust for lots of reasons. One is it avoids probate. Another reason is no heir who is not a beneficiary to the living trust will get a notice at death to show up in court and protest. Another reason is that permitted heirs have no legal right to fight a living trust.
In 2008 a case came before the Oklahoma Supreme Court, In re Estate of Jackson, 194 P.3d 1269, 2008 OK 83 Supreme Court Website. The legal issue was whether the Oklahoma pretermitted heir statute applied to a revocable living trust. The Supreme Court held it did not as follows: “Disposing of property is an inalienable natural right throughout a person’s lifetime…However, the right to control disposition of property after death and the right of inheritance are statutory… The Oklahoma Legislature has provided several means for disposing of one’s property at death: one is by will, … and another is by trust…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… In construing a statute, our goal is to determine the Legislature’s intent. … If the legislative intent is clear from a statute’s plain and unambiguous language, this Court need not resort to rules of statutory construction… 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’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… 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.”While this is the rule for children, that a parent may disinherit a child if it is correctly done in his will, or a parent need not do anything specific in a trust to leave out a child, that is not the rule for a spouse. Special rules apply there and a different result is obtained for a revocable living trust. However it is possible to disinherit a spouse from inheriting separate property and certain exceptions will apply if there is a prenuptial contract. More on that later.
What is to be learned from this? Living trusts are almost always a better way to go than a will. Especially when drafted by an experienced living trust, will and probate attorney like Brent D. Coldiron. Call Brent at (405) 478-5655 or 737-2255. He has offices in Oklahoma City/Edmond and Midwest City. He has over 39 years experience. Learn more at Brent’s Website.