Probate in a Nutshell

Most people hear the word "probate" and start to clam up. Probate is often associated with all the worst parts of the legal system: a slow, lengthy process where nobody wins except the lawyers. The hate of probate is so widespread that Charles Dickens even dedicated most of the plot of Bleak House to describing an endless and fruitless probate.

But is it really that bad?

No, of course not, and probate serves some very important purposes. Probate is the court process by which your assets are transferred to your heirs after your death. If you own real estate, such as a home, the deed to that property may be in your name alone. Legally, then, only you can sign a deed to transfer title to that property. But who has the authority to convey that property after you die? Although you may assume your spouse or children do, they have no legal authority unless and until the court gives it to them. That is where probate comes in.

So what does probate actually look like? There are four main parts: (1) admitting a Will and appointing an executor, (2) addressing creditors, (3) marshaling assets, and (4) distributing the estate.

Part 1: Admitting Will/Appointing Executor

If you have a Last Will and Testament, that instrument will be filed with the court along with a legal document, known as a Petition, requesting that the instrument be accepted as your Last Will and Testament. After filing, notice must be given to your Heirs-at-Law — the individuals who would be entitled to receive your estate if you died without a Will. These individuals are determined by state statute but generally include your spouse and children or grandchildren.

Once the Will is accepted as your Last Will and Testament, the Court appoints an executor, also known as a Personal Representative. Most Wills name a person or entity to serve as Personal Representative; if no one is named or available, the Court can choose someone. If an individual dies without a Last Will and Testament, then the Petition simply asks the Court to appoint someone (usually the Petitioner) as the Personal Representative.

Part 2: Addressing Creditors

After the Personal Representative is appointed, they publish a Notice to Creditors. This notice serves one of the other purposes of probate — protection of creditors, that is, people you owe money at the time of your death. Creditors with proper claims against your estate must be paid before any distribution can be made to your heirs, and must be notified either by mail or, at the very least, by publication. The notice gives creditors a certain period of time (usually 60 days) in which to file claims against the estate; if they don't file, then their claims are forever barred. That is another beneficial reason to file probate: it can resolve certain debts you owed at death. 

Not all assets, however, are subject to creditors' claims. Many states have homestead laws that exempt certain assets from creditors if there is a surviving spouse or minor child. In Oklahoma, the homestead generally includes the marital home and can also include an allowance to the surviving spouse or minor children to support them during the estate administration period.

Part 3: Marshaling Assets

During the creditors' period, the Personal Representative must also figure out what "stuff" is in the estate. Bank accounts, real property, minerals, vehicles, jewelry, stocks — all of it must be reported to the Court in a document called a General Inventory and Appraisement. Once filed, heirs can see what they may be entitled to as beneficiaries of the Estate; it provides a level of transparency to hold the Personal Representative accountable.

After the creditors' period ends and all debts, claims, and other issues are addressed, the Personal Representative has to file a document called a Final Account. The Final Account shows the Court and the heirs at law what the Personal Representative has done during the probate: income received, expenditures made, creditors paid, assets sold, etc. Where the Inventory shows the assets and value in the estate at the beginning of probate, the Final Account shows the assets and value remaining in the estate at the end of probate.

Part 4: Distributing the Estate

Once all creditors' claims have been addressed, taxes paid (always important!), and other necessary legal documents filed, the estate is ready for distribution. If no objections are filed, the Court will authorize the Personal Representative to distribute the estate, and the case is closed. Simple, right?

As you might guess, this process is both time-consuming and expensive. The shortest probate takes approximately six weeks, but it can take as long as a year or more. Contested cases can take even longer. Court costs and publication expenses cost $350 or more, and attorney's fees can be anywhere from $4,000 to much, much more. Additionally, the Personal Representative is entitled to a fee based on the value of the entire estate. What's more, probate is a public process. Probate records at the courthouse are available to anyone who wishes to see them, including what you owned, how much it was worth, and who it went to.

Taken together, the probate process is pretty straightforward, but it can be very complicated to those who have not navigated its murky waters. Dealing with family conflicts, aggressive creditors, and complex assets can make probate even more difficult. But with an experienced probate attorney by your side, the process can be almost painless.

To discuss whether probate is necessary for a recently deceased loved one, or how you can potentially avoid probate through estate planning, contact the experienced Oklahoma City probate attorneys at Postic & Bates today for a free, no-obligation consultation.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

De-mystifying Advance Directives

An advance directive for health care is a legal document that allows you to express your wishes for end-of-life care in the event you are unable to communicate those wishes to your doctor. In Oklahoma, an advance directive covers three topics: (1) the living will, (2) the health care proxy, and (3) anatomical gifts.

The Living Will

The main portion of an advance directive is the “living will,” by which you state your preference for the use of certain treatments under certain conditions. This is the most technical part of the document, so it is important to understand what these terms mean.

Conditions Covered

Many people are concerned about signing a document that allows someone else to “pull the plug” on them. But an advance directive only addresses very specific circumstances, namely if you have a terminal condition, an “end-stage condition,” or are “persistently unconscious.”

A terminal condition is an incurable, irreversible condition that, even with the administration of life-sustaining treatment (e.g., respirator or dialysis, pacemaker, surgery, blood transfusion) will, in the opinion of two attending physicians, result in death within six months.

An “end-stage condition” means a condition caused by injury, disease, or illness that results in severe and permanent deterioration indicated by incompetency and complete physical dependency, and that treatment of which would be medically ineffective.

“Persistently unconscious” can mean one of several things. Generally, it means an irreversible condition “in which thought and awareness of self and environment are absent.” A persistent vegetative state (PVS) is due to a partial death of the brain from which a person cannot recover. This is different from a coma because sometimes people wake up from comas. People with PVS might also reflexively move limbs, follow objects with their eyes, and make sounds. A diagnosis of PVS takes time to make, and a person in a PVS state can survive for years on feeding tubes and other life support.

On the other hand, a persistently unconscious condition can mean “irreversible cessation of all functions of the entire brain, including the brain stem.” This diagnosis is determined by a flat electroencephalogram (EEG) and certain medical signs.

Treatments Covered

1. Life-sustaining Treatment

“Life-sustaining” treatments (commonly known generally as “life support”) are medical procedures that support your body to keep you alive when your body is not able to function on its own. The most common treatments are cardiopulmonary resuscitation (CPR) and intubation.

CPR is a group of procedures used when your heart stops (cardiac arrest) or your breathing stops (respiratory arrest). For cardiac arrest, treatment may involve chest compressions, electrical stimulation, or use of medication to support or restore the heart’s ability to function. For respiratory arrest, treatment may be insertion of a tube through the nose or mouth into the trachea to artificially support or restore your breathing function.

Intubation is the placement of a tube through your nose or mouth and into your windpipe (trachea) to help you breathe. This type of treatment may prevent cardiac or respiratory arrest.

2. Artificially Administered Nutrition and Hydration

When a person is no longer able to take nutrition (food) and hydration (fluid) by mouth, he can receive them artificially through intravenous methods. When someone with a life-limiting or other serious illness is no longer able to eat or drink, it usually means that the body is beginning to stop functioning as a result of the illness.

3. Other Treatments

In Oklahoma and many other states, advance directives also give you the option to give more specific instructions regarding end-of-life care. For instance, you can describe other conditions in which you would want life-sustaining treatment or artificially administered nutrition and hydration provided, withheld, or withdrawn. Oklahoma also allows you to state that during a course of pregnancy, you specifically authorize that life-sustaining treatment, including CPR, and artificially administered hydration and nutrition be withheld.

Critically, the withdrawal of these treatments only becomes an issue if their continuation or withdrawal would merely delay the time of your death or maintain you in a state of permanent unconsciousness. Oklahoma law also provides that even if life-sustaining treatment or artificially administered nutrition and hydration are withheld or withdrawn, you will be provided with medication or other treatment to alleviate pain.

Appointment of Health Care Proxy

In addition to a living will, the advance directive also gives you the option to appoint a “health care proxy” to make decisions for you in the event you are unable to do so. This portion of the document essentially operates as a medical power of attorney; however, it limits that power to the extent you have provided instructions for your care in your living will. This begs the question: if you have appointed a health care proxy in an advance directive, should you still get a medical power of attorney? The answer: yes. Some health care providers prefer to see a power of attorney that grants specific powers to your attorney-in-fact and that includes certain HIPAA and other important language. Most people appoint the same person as their health care proxy and their medical power of attorney, so this rarely becomes an issue. But when it comes to your medical care, do you really want to leave it all to chance?

Anatomical Gifts

An advance directive in Oklahoma also allows you to state your wishes about organ donation. One of the options that gives many people pause is where you can donate your “entire body.” This is not the equivalent of saying, “I donate my entire body to science.” If you want to donate your body to science, you need to complete a lot more paperwork. The “entire body” language simply means that you are willing to donate whatever will be useful, be it a lung, a kidney, or anything else. After the donation is made, your body can be disposed of however you wish. To that end, you should be sure to let your loved ones know whether you wish to be buried or cremated.

Alternatives to an Advance Directive

An advance directive is a good document to have because it covers a variety difficult decisions that your family would otherwise be forced to make. However, some people also prefer to have a Do Not Resuscitate (DNR) order or a Do Not Intubate (DNI) order.

A Do Not Resuscitate (DNR) order is a written order from a doctor that keeps a healthcare team from initiating CPR. (Importantly, however, some facilities do not honor DNR orders during surgery, so you should discuss the issue with your surgeon and anesthesiologist before surgery.) A doctor can write and sign a DNR at your request or at the request of your family or health care proxy. If the DNR order is not signed by a doctor, it will not be honored. DNR orders can be canceled at any time by letting the doctor who signed the DNR know that you have changed your decision.

Like a DNR order, a Do Not Intubate (DNI) order is a written order from a doctor that prohibits intubation. Importantly, refusing intubation does not mean that you necessary refuse other techniques of resuscitation, such as mechanical ventilation. If you wish to execute a DNR or DNI order, speak with your doctor about what specific procedures you do or do not want.

Potential Problems

Some healthcare professionals may choose to ignore what is written in your living will if they believe that what is written is against your best interest. In that case, your attending physician is required, as soon as practicable, to take all reasonable steps to arrange for your care by another physician. In some cases, your physician may simply misunderstand the law, medical ethics, or his professional responsibilities. Therefore, it is important that you speak with your doctors about your living will so you can know whether they will honor your request.

End-of-life matters require a great deal of consideration and planning, and it is best to begin planning early. Contact Postic & Bates today for a free, no-obligation consultation regarding an advance directive for health care or other estate planning or legal matters.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Where Should We Take You?

Several years ago, partner Martin Postic, Jr. faced an issue common in elder care: when your family requires assisted-living or skilled-nursing care, where should you take them? Read about his experience below.

My father was a fiercely independent person. At age 84, he was fully mentally competent and able to care for himself and his home. But one day while he outside trimming his hedges, he fell and broke a hip. Hip surgery went smoothly, and we thought he was set to come home in a few more days. Then, his care manager told us that he would need to spend thirty days in a skilled nursing center to rehabilitate. So I had to ask my dad a difficult question: "Where should we take you?"

The choice wasn't made any easier by the fact that I had only three days to find an acceptable skilled nursing center. At minimum, I needed to find a place (a) that had the expertise to take care of my father; (b) that my father would feel comfortable living in; and (c) that I would feel comfortable entrusting with my father's care. In spite of the short notice, I found a facilitate that—on its face—looked great, so we moved my father in and thought everything would be fine. After all, what could go wrong?

Apparently, a lot. During his stay, he discovered that one of his nurses was "skimming" pills. One day, she gave him his evening medicine—but when he counted the pills, one was missing. When he asked about it, the nurse said, "Oh, you already took that one." My father was a sharp guy; he knew that the nurse had not given him the correct number of pills. We reported the nurse, and it turned out that for months she had been using a similar scheme on other patients. She was eventually fired.

Another day, my father returned to his room from a meal to find a naked, elderly woman in his bed. She thought it was her room. There were many problems like this throughout my father's stay, and it was clear that the management of the center lacked competence. More than any single event, however, what upset my father the most was having to deal with the smell of the place, the noises, and the vacant stares from other residents there. Although that's often just the way things are in a long-term care facility, it doesn't make it any easier on the patient. My father couldn't get out of that place fast enough.

Based on this experience, I always recommend that my clients keep a "short list" of places they wouldn’t mind living, if the need ever arises. Often, "Plan B" is to live with a child. ("Plan A," of course, is to stay in your own home.) But what if those options are not available? What if, after a period of living with a child, that arrangement is no longer convenient or bearable? What do you do? If you have researched retirement centers, nursing homes, assisted living centers, and memory-care facilities in your area (or in the area where you intend to live), you will be better prepared should the need arise to make such a move.

Talk to friends, neighbors, and other acquaintances; ask any nurses, physical therapists, or other health care professionals that deal with elderly patients; get as much advice, input, and experience as you can. Often, people can share stories like mine to let you know potential problems you may encounter at a facility that may make it undesirable to you. Even after you have prepared your "short list," I suggest that you re-evaluate it regularly. Management of these facilities changes, the physical facility often deteriorates over time, and new options become available. Think of it like buying a house: where do you want to live?

By making this list, you can avoid the anxiety of you and/or your family needing to make last-minute decisions regarding your care, whether short-term or long-term. Don’t leave such an important part of your estate planning up in the air. Discuss the issue with your family and add it to your letter of instruction. You’ll be very glad you did.

To discuss legal options regarding estate planning and elder care, contact Postic & Bates today and schedule a free, no-obligation consultation appointment.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Legal Briefs: Do Handwritten Notes Make a Will?

The handwritten Will is a commonly misunderstood area of estate planning. Under Oklahoma Statutes title 84, section 54, a holographic Will (as it is known in Oklahoma) can be a valid testamentary instrument if it is: (1) entirely written by the Testator, (2) dated, and (3) signed by the Testator. Sounds simple enough, right?

But Oklahoma courts are very strict in interpreting holographic Wills. For instance, what if part of the document is typed, while the rest is handwritten? What if some of it was written on one date, then some more was written on another? Where does the signature have to be located on the document? Where does the date have to be located? How should you describe your assets and beneficiaries? Do the pages need to be stapled or clipped together?

Importantly, there must also be evidence that the Testator intended this particular document as a Will. Is the language of the document sufficient? Could anybody argue that the document is simply a set of notes rather than a testamentary instrument? 

As you can see, drafting a valid Will is not quite as simple as it seems. Even more difficult can be drafting an effective Will that disposes of your assets exactly how you want. Keep in mind that once you are gone, you cannot tell the court exactly what you want to happen to your “stuff.” If you phrase something ambiguously, the court may not interpret it the way you intended. What if you want to amend the Will? What if one of the pages gets lost or out of order? What if your handwriting is difficult to read?

So you want to know whether handwritten notes make a Will? The answer: it depends. And when it comes to the disposal of your assets — your life’s work — do you really want to take the chance?

There are many things to consider when making a Last Will and Testament, which is why we always recommend consulting an estate planning attorney to discuss and prepare your estate plan. You can contact Postic & Bates today for a free, no-obligation consultation regarding your estate planning needs.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Has Your Family Had a Fire Drill?

Remember fire drills when you were in school? An alarm goes off. There’s a certain sense of panic, but you walk — in an orderly fashion — to the exit and meet your classmates outside. The teacher takes attendance, the coordinator makes sure everyone is accounted for, and then you go back inside. Most students probably think fire drills are a waste time, and surely teachers would prefer to not have their lessons interrupted while their students go outside. So why do we have fire drills? Obviously, to make sure we know what to do if a real fire occurs. Because if there is a real fire, there can be dire consequences if you don’t have a plan.

For similar reasons, we encourage our clients to conduct a “fire drill” regarding their estate plan. In other words, pretend you have died and walk your family through the process of what they must do to set your affairs in order. Surviving spouses or children are often consumed by grief and/or shock after the passing of a loved one. It can be hard enough getting up every morning, much less handling the administration of an estate. By organizing your estate plan and going through regular “fire drills,” you can make things that much easier on your family after you are gone.

So what kind of topics should you cover during your “fire drill”? We suggest you consider discussing at least the following:

  1. Location of a written calling tree (a list of family to be called at death).
  2. Location of a list of advisors (e.g., lawyer, accountant) and why they should be called.
  3. Location of your written funeral/burial plans.
  4. Location of your trust, will, durable power of attorney, advance directive, and other legal documents.
  5. Location of your safe deposit box key or safe combination.
  6. Location of your password vault or other information on passwords and passcodes (including information for any online accounts or other digital assets).
  7. Directions on how you wish to see personal items disposed of at death.
  8. Who you are placing in charge at your death or incapacity and why.
  9. Your thoughts/concerns on the use of artificial life support, including artificially administered nutrition and hydration.
  10. A “short list” of places you would suggest for your living or care if you are unable to continue living at home.
  11. A list of accounts, subscriptions, or other services that should be paid or discontinued.

In addition to doing a “live” fire drill in-person, we also recommend creating a letter of instruction that outlines, step-by-step, what must be done upon your death. Once prepared, review it regularly with your nominated personal representative or successor trustee. This will then allow them to ask questions and allow you to refine your instructions to make them as clear as possible. You will find that a good letter of instruction is not something you can write in a few minutes.

For years when I was young, my father would carry a large, gray, metal strongbox and place it on the kitchen table. It was his “fire drill” box containing important documents and other information. My mother and I would sit at the table with him while he explained each of the files in the box. As I got older, my mother avoided these drills, but I attended them dutifully. When my father died, I placed that same strongbox on my office table and laughed: I knew exactly what to do because we had gone over it so many times. There was no stress, no strain, no anxiety.

Most people want their family to be at peace after their death. A “fire drill,” as well as a well-written letter of instruction, can assist with that process and make things easier on your family during what will undoubtedly be a trying time in their lives. Addressing these matters is never easy or fun, but it is wise to set your affairs in order today. Tomorrow could be too late.

To learn how you can begin the estate planning process, contact the Oklahoma City law firm of Postic & Bates today for a free, no-obligation consultation.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

5 Tips to Create Your Digital Estate Plan

You have spent years cultivating memories with your Facebook profile, curating an audience with your Twitter account, and building an incredibly efficient agricultural operation on FarmVille. But what happens to those accounts after your death? We recently wrote about the importance of protecting your digital assets, but what exactly does is involved in creating a digital estate plan?

Tip #1: Make an inventory of digitAL assets and how to access them. 

This is a bit of a catch-22. We usually recommend that our clients keep a list of any accounts, usernames, and passwords on a piece of paper so their representatives will know how to access those accounts after your death. However, if all of that information is in one place, anyone who steals the list could hack into your accounts. So if you prefer to play it safe, consider writing the accounts and usernames on one piece of paper, and passwords and other security information on another — keeping one in a safe at home, and the other in your safety deposit box.

However you decide to store this information, creating an inventory of digital assets will make it much easier for your loved ones to access your Internet accounts after your death. Your digital inventory could include the following:

  • Facebook, Twitter, Instagram, LinkedIn, and other social media accounts
  • Wordpress, Tumblr, Blogger, and other blogs and websites you own
  • Bank, credit card, brokerage, retirement plan, credit, loan, insurance, and other accounts you access and/or pay online
  • E-mail accounts
  • Online retail accounts
  • Apps from stores or marketplaces like eBay, Amazon, and iTunes
  • Photo- or video-sharing sites like Flickr or YouTube
  • Video subscription sites like Netflix, Huhu, or Amazon Prime
  • Music sites like Spotify or Pandora
  • PayPal or other online payment accounts
  • Utility bills you pay online
  • Frequent flier accounts 

Additionally, if you use a “digital wallet” or Passport product on your cell phone — like the Starbucks app that lets you pay for orders from your phone — this might also be worth adding to the list. Update this inventory regularly or, ideally, whenever you add a new account or change account information.

Tip #2: Store the information in a safe place.

As illustrated above, security should always be a concern when it comes to storing this sensitive information. Outside of physical options like a safety deposit box, some websites like Legacy Locker or SecureSafe securely encrypt and store your account information and passwords in one place. I personally use LastPass, which has a free (but still secure) option as well as a paid subscription that costs only $1/month. Most of these sites allow you to designate a beneficiary who can get access to the account after your death, making it easy to pass on your account information to your heirs or representatives.

Tip #3: Name a “digital executor.” 

This can be the same person you name as executor of your estate in your Will, or you can name someone else to carry out your digital wishes. If you do choose to designate a separate person to manage your digital assets, you may also consider naming him or her as your digital executor in your Will, detailing what assets they can control and where they can find information to access those accounts.

Some websites allow you to automate the transfer of your digital assets after your death. One example is Google's Inactive Account Manager. Here's how it works: You give Google instructions for what to do with your accounts after your death (i.e., either share them with someone(s) or delete them). If you are inactive for a certain period of time (you can decide how long), Google will send you a text or email alert. If you do not respond, Google will notify the friends or family members whose contact information you provided. Once they have confirmed that you are deceased, Google will follow your instructions and either share those accounts with the designated individual(s) or delete the accounts as you have provided.

Similarly, Facebook has given users the option of identifying a "legacy contact" that can access your account after your death. But that access is limited to the ability to pin a post on your Timeline, such as a funeral announcement. Your legacy contact will not be able to log in as you or read your private messages, but they will have the ability to accept or deny new friend requests, update your profile and cover photos, and archive your posts and photos.

Even though these "legacy" processes are automated, it is important to let your executor know that have set up those options, so he or she does not have to figure out what to do with those accounts.

Tip #4: Write instructions for what should happen to your digital assets. 

Your Will probably lays out the distribution of your online financial accounts, but what do you want to happen to your Facebook, Twitter, or Instagram profiles? Consider writing out a "to-do" list to let you digital executor know, among other things, whether they should delete your accounts. It should answer questions such as:

  • Should your digital executor deactivate your Facebook account when you die, or do you want him or her to set it up as a memorial page?
  • Do you want your executor to send prints of your Flickr photos to your family members?
  • Do you want to give someone control of any unused iTunes credits you have?
  • Do you want any personal videos uploaded to YouTube for friends and family to see (or taken off of YouTube so they don't see them)?

As you create this to-do list, be sure to review the terms of service on your social media accounts. Often times, those agreements take precedent over state laws. For example, Facebook allows your "legacy contact" to either “memorialize” your profile so family and friends can still see it and post on your wall, or Facebook can deactivate the profile at the request of your family.

Twitter, on the other hand, only gives the option of deactivating your account. To do this, your digital executor would need to fax Twitter copies of your death certificate and government-issued ID (e.g., driver’s license), along with a signed and notarized statement of your death, and either a link to an online obituary or a copy of the obituary from a local paper.

Tip #5: Talk to a Qualified Estate Planning Attorney.

As with all things legal, we recommend you work with a qualified estate planning attorney to ensure that your wishes are carried out properly. In today's world, it is common for people to have most of their lives online: personal information, pictures, articles, memories. To avoid the uncertainty of what happens to your online accounts after your death, you should consider what you want to happen to all that information. Contact Postic & Bates today for a free, no-obligation consultation to discuss how you can incorporate digital assets into your estate plan.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Case Study: Asset Protection and the "Dumb Blonde"

If you watch television, you have probably seen (or at least heard of) the sitcom The Big Bang Theory. The show is about some nerdy, socially awkward scientists who befriend their attractive neighbor, a stereotypical “dumb blonde” named Penny. Penny is played by Kaley Cuoco, who plays the role brilliantly. She is so convincing, in fact, that the audience is tempted to believe that she, too, is a “dumb blonde.” But appearances can be deceiving. Let’s compare her to some other stars that have made the news in the past few years.

Almost everyone knows the musician Prince (AKA the artist formerly known as “The Artist Formerly Known as Prince”), who died in 2016. He was an incredibly talented musician who played 27 musical instruments, had a gifted set of vocal chords, and was considered by many to be a “musical genius” (though perhaps not an “acting genius” to those who have seen Purple Rain). He was so successful that at the time of his death, his estate was rumored to be valued between $150 and $300 million.

Frank Zappa, another renowned musician and producer, died in 1993. A musical legend, he was also (in)famous for the unique names he gave his four children — Dweezil, Moon Unit, Ahmet, and Diva. Zappa was forward-thinking and created the Zappa Family Trust, which owned (among other assets) all his rights to his massive music portfolio. He was survived by children and his wife, whom he left in charge of the trust. The estate was estimated to be worth $40 million at the time of his death. Zappa’s wife Gail died in 2015.

Of these individuals, who would you consider the smartest: the producer, the musician, or the “dumb blonde”?

In 2016, a Minnesota probate court judge denied the claims of 29 individuals seeking status as heirs of Prince’s estate. In addition, the judge required genetic testing for several of Prince’s alleged half-siblings. There was no Will, no Trust, no tax planning. The estate will eventually be divided among his siblings. There is also the matter of the federal estate tax, estimated to be more than $100 million. It’s safe to assume that lawyers, accountants, and creditors will take a similar “chunk” out of the estate before it ever gets to those siblings, all of whom will have carte blanche to spend their shares of the estate in whatever way they wish, without restriction. I would venture to guess most of Prince’s siblings don’t have experience handling multi-million dollar investment portfolios.

In 2015, shortly before her death, Frank Zappa’s wife — dying of lung cancer — said to her daughter, Moon Unit, “Do you forgive me for what I’ve done?” The daughter replied, “Sure”, not knowing what her mother was talking about. After her mother’s death, Moon and her siblings learned that Gail had put the two younger children — Ahmet and Diva — in charge of the family trust, giving Dweezil and Moon a smaller portion of the estate. Gail also left the trust millions of dollars in debt. Now, the four siblings are pitted against each other over the management and distribution of the trust estate, incurring fees and costs and, not surprisingly, creating a fracture in the family that may never heal.

Could both of these tragedies — the estates of Prince and Frank Zappa — have been avoided? Yes, and quite easily. With a Last Will and Testament, Prince could have dictated the distribution of his estate, instead of leaving it to a judge to decide. With a Trust, he could have kept the distribution of his estate private, provided for the future professional management of the estate, and limited distributions to heirs who might not be financially responsible. He also could have included provisions to potentially eliminate his estate tax burden and substantially reduced the costs and fees associated with the administration of his estate.

Frank was smart enough to have a Trust. However, with proper advice and counsel, he could have put professionals in charge of that Trust and not left the distribution to the whims of his wife. This simple change could have saved the estate millions of dollars and prevented a rift that threatens to ruin the relationships among his children. In the end, both of these musical “geniuses” were not so smart when it came to planning their estates.

But what about the girl who plays the “dumb blonde,” Kaley Cuoco? On December 31, 2013, she married tennis pro Ryan Sweeting. They had dated only six months. After just 21 months of marriage, they got divorced. At the time of the divorce, Cuoco had a net worth of more than $45 million. Yet, as a result of a professionally prepared prenuptial agreement she and Ryan signed before they said “I do,” she got to keep (1) her $72 million TV contract; (2) her Sherman Oaks home, valued at nearly $3 million; and (3) the LA house she purchased from Khloe Kardashian, valued at more than $5 million. All she had to do was pay her ex-husband $165,000, pay some of his $195,000 of debt, and pay $55,000 of his legal fees.

Now who’s the dumb blonde?

Prince did nothing. Why? Maybe he wasn’t planning on dying.

Frank Zappa had an estate plan but didn’t quite think it all the way through. What was his error? Putting the wrong person in charge of his estate.

Of the three examples, Kaley Cuoco is the only one who got it right when it comes to asset protection. With proper legal representation, she avoided what could have been a catastrophic loss and many years of court battles (i.e., years of legal fees and other expenses).

Asset protection — whether preparing for death, incapacity, divorce, or some other contingency — is more than just filling in documents. It takes thoughtful consideration of all the “what ifs” and the expertise and experience of an attorney who can help you achieve your goals. Contact Postic & Bates today for a free, no-obligation consultation to determine how you can best protect your assets.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Estate Planning in the Digital Age

Who gets your Facebook account when you die? What happens to your Twitter? Your Instagram? Your e-mail account? The Digital Age and the advent of Internet- and cloud-based assets have created a new category of estate planning. Your Internet accounts are your property, and property stored online that has any value requires the same level of protection you give to other tangible and intangible assets.

You May Have More Digital Assets Than You Think

Cutting-edge technology continues to evolve at a rapid pace while estate planning and probate laws struggle to keep up. Some companies, such as Facebook, have private user agreements that allow you to designate someone to "inherit" your account after your death. Similarly, banks may allow you to transfer online access along with your account balance by naming a "pay on death" beneficiary. But there are many other assets that may not offer the same ability to control their disposition at your death, such as:

  • Online financial accounts (credit card, brokerage, retirement plan, credit, online payment and insurance)
  • Online retail accounts and apps
  • Digital wallets and prepaid apps
  • Social media accounts
  • Blogs and websites
  • E-mail accounts and text messages
  • Phone passcode
  • Software, music, movie, and television show collections
  • Photo and video-sharing sites

Digital estate planning is a relatively new area of law and regulations on the topic are sparse and incomplete. Oklahoma has laws mandating court orders or provisions in a will that allow executors to access e-mails, blogs, and other social networking accounts; however, this authorization applies only to personal representatives, so other fiduciaries (such as an attorney-in-fact) may be limited by the private terms-of-service agreements required by various companies hosting your digital accounts. For example, pursuant to their terms of service, a fiduciary is not allowed to access your Facebook or Gmail accounts; however, he or she may access your iTunes account if authorized.

Proactive Protection of Your Privacy and Legacy

Just as you would pass on assets to your loved ones, you should ensure that your family or other designated representative can open your online accounts for various reasons, including:

  • Accessing valuable assets that include bank and investment accounts
  • Downloading personal property, including photos and videos posted online
  • Removing an online presence to minimize reminders of the deceased
  • Deleting private data to prevent identity theft

Digital estate planning is not as simple as including screen names and passwords in your Will. In fact, because wills are made public when admitted to probate, putting that information in your Will means that your financial or social media accounts could be at risk when your estate enters probate. A better practice could be to list the information in a separate document but refer to it in your Will.

Take Action Sooner Rather Than Later

No one likes to think about death, but — like social media — it is a fact of life. So the next time you revise your estate plan, consider how you want to dispose of your digital assets. Your family is entitled to the peace of mind that comes with not only legal documents formally expressing your wishes, but also the proactive strategies necessary to protect your online legacy. Contact Postic & Bates today for a free, no-obligation consultation to determine how to incorporate your digital assets into your estate plan.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Where Did the Estate Tax Come From?

It has been called an inheritance tax, a transfer tax, and a wealth tax. However, the estate tax, as it is presently called, has been part of world history dating back to Egypt in 700 B.C. and to the Roman Empire, nearly 2,000 years ago, where Emperor Caesar Augustus imposed the Vicesina Hereditatatium. The estate tax has been a part of our country's culture and laws since almost the beginning. The first federal "estate" tax was passed by the 5th Congress in 1797 to pay for a naval build-up in anticipation of a possible war with France. It was then called “An Act Laying Duties on Stamped Vellum, Parchment, and Paper” and required payment of 25 cents on distributions by estates of between $50 and $100; 50 cents on the next $500; and $1 on each additional $500. When a treaty with France was signed to avoid the war, the tax was repealed in 1802.

To raise revenue for the Civil War, a federal inheritance tax was enacted in 1862. The share of an estate passing to ancestors, to issue (children), or to siblings was 0.75%; to nephews and nieces was 1%; to aunts, uncles, and cousins was 3%; second cousins 4%; and to more distant relatives or to unrelated persons 5%. Surprisingly, there was also a 100% marital deduction, meaning no estate tax was due on a surviving spouse's share of the estate. Such a deduction did not become part of the present estate tax law until 1982. Nevertheless, the federal inheritance tax was repealed in 1870, after the end of the war.

In 1898, another inheritance tax was passed to help finance the Spanish-American War. This tax had a top rate of 15% on estates over $1 million. However, that tax was also repealed in 1902, after the war ended.

In 1916, as the U.S. prepared to enter World War I, Congress passed yet another form of the estate tax. After an exemption of $50,000, the rates started at 1% and had a top rate of 10% on estates over $5 million. Although modified many times, our current estate tax comes from this 1916 Act. Initially, there was no marital deduction, even if the entire estate passed to a surviving spouse.

Historically, then, estate tax laws have been enacted primarily to fund our involvement or possible involvement in a war. After World War I, though, estate taxes became a more permanent feature of our tax system. In 1926, the top estate tax rate was 20%. During the Depression, the top rate soared to 70% in 1935. During World War II, the top estate tax rate was 77% on taxable estates greater than $10 million.

The rate was still as high as 70% with only a $175,000 exemption in 1980, when President Reagan sought passage of The Economic Recovery Tax Act of 1981. That act dropped the top estate tax rate from 70% to 50% and increased the deduction from the estate tax (in the form of a tax credit) to $600,000 by 1987. In 1997, Congress passed The Taxpayer Relief Act, which would have increased the exemption over time to $1 million in 2006. However, The Economic Growth and Tax Reconciliation Act of 2001 (EGTRRA, AKA the “Bush Tax Cuts”) increased the estate tax exemption to $3.5 million in 2009, and then repealed the estate tax for 2010. On December 17, 2010, President Obama signed The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, which reinstated the estate tax, but with a $5 million exemption and a 35% maximum marginal rate.

The federal exemption and marginal rate have changed slightly over the past few years. For 2017, is $5.49 million for individuals or $11.98 million combined for a married couple, with a top marginal tax rate of 40%. Oklahoma repealed its estate tax in 2010. Although 99.8% of estates pay no estate taxes — and those that are taxed pay roughly a 17% effective tax rate — it is still important to craft an estate plan that aims to avoid estate taxes. For more information on how you can minimize or avoid estate taxes, contact our office for a free, no-obligation consultation appointment.

[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]

Website Re-launch

After a great deal of thought and effort, we at Postic & Bates decided to redesign our website and other online resources to better meet the legal needs of the 21st Century. Although our attorneys have over 70 years combined experience in the practice of law, we want to stay cutting-edge to provide you with the best legal representation possible. Our redesign focuses on three key aspects:

Education

Our website is a great way to get our contact information or to schedule a free, no-obligation consultation appointment. But a law firm website can (and should) be so much more! Through detailed descriptions of our services, as well as topical and relevant blog posts, we hope to de-mystify the legal process. Even if you choose not to engage our services, we want you to have the best information possible so that you can make intelligent, informed decisions about your legal needs.

Accessibility

Social media has revolutionized the way people communicate. By re-engaging our social media outlets on Facebook and Twitter, we aim to make ourselves available to you wherever you are. Send us a message or tweet at us with your questions -- whatever is most convenient for you. And of course, you can always contact us by phone, e-mail, or by coming into our office.

Painlessness

Going to a lawyer does not have to be a difficult, painful process. At Postic & Bates, we value your time and energy, and we want to provide you with a simple, seamless process for meeting your legal needs. By making valuable resources, such as our Estate Planning Guide, available for free download online, we hope to make it as easy as possible for you to consult an attorney and determine your best course of action.

At Postic & Bates, our attorneys care about your experience. That is why this website redesign revolves around you, the client. If there is any way we can assist you, or if you would like to suggest how we can better meet your needs through our online services and resources, please contact us. We would love to hear from you.