Family Law

Family Law

What is a Living Trust and is it Best for My Family?

- admin3

Regardless of whether or not you’ve accrued a great deal of wealth in your lifetime, it is always important to protect what wealth you do have, and ensure that it is best meeting the needs of you and your family.

One option that many explore is a living trust, a legal agreement that puts all your assets into a specific fund, so to speak. Once this living trust is established it is possible to have those assets allocated as you deem acceptable. For example, you can use these funds for your own benefit while you are alive before transferring them to any beneficiaries upon your death.

Living trusts are also revocable, meaning that you retain sole discretion to alter the terms during the course of your lifetime. You may also elect to dissolve the trust completely, if it no longer serves the needs of you and your family.

How Does a Living Trust Work?

It’s important to note that any kind of trust, including living trusts, can be complicated to set up, it is always best to work with an attorney specializing in estate planning from the outset.

Once you have a qualified legal representative enlisted, you have the option to designate yourself as the trustee of your trust, giving you the right to manage the full extent of your assets. Depending on the extent of your assets, the established trust can cover everything from stocks and bonds to other physical assets, like residential or commercial properties.

From the moment you set up your trust, you maintain sole control over your assets. You can make changes to the trust as the needs of you and your family change. Once you pass, power transfers to a successor trustee, who is then tasked with the management of your trust and its assets.

It is also possible to have your successor trustee assume control of your trust if you become incapacitated and are unable to continue managing the trust.

What Are the Benefits of a Living Trust?

There are a number of reasons why an individual would consider a living trust, especially if you have accrued a significant amount of wealth. One of the leading reasons is that living trusts allow you to avoid the legal process of establishing a will’s validity, something known as probate.

This is an important contrast from other legal documents, like wills, where beneficiaries endure a lengthy and costly legal process to ensure that any and all wishes are carried out appropriately. With a living trust, your heirs are able to access your assets sooner, without the additional hassle.

You also are granted a greater degree of privacy with a living trust, rather than a will. Unlike wills, which are part of public record, a living trust allows you to keep sensitive information private.

Working with an Attorney Specializing in Trusts

In Norman, Oklahoma, the attorneys at Rick Dane Moore & Associates Law Firm specialize in all assets of estate planning, including the creation and establishment of living trusts. We can work with you to assess the extend of your assets and determine the best possible legal option for you and your loved ones, not just now, but well into the future as well.

To learn more about living trusts, or to schedule an initial consultation with one of our attorneys, call our law office today at (405) 366-0373.

Why It Is Important to Establish a Will?

- admin3

What Is a Will?

A will is a legally binding document that establishes your wishes in the event of your death. These documents serve several purposes, including allowing you to decide how you want to distribute assets like home, money and other property.

Another benefit to establishing a will is that it prevents conflicts between family members in the event of your passing. Not only does a will give you the peace of mind that your family is taken care of – it also provides your family a great deal of relief in knowing that you planned ahead, rather than leaving them to sort it out on their own.

In order to maximize the probability that your final wishes are carried out, it is important to set forth a will in writing that is signed by you and any necessary witnesses. If a will is found to not meet these standards, there is a fair chance that your wishes will not be carried out.

Types of Wills

It is important to note that there are several types of wills, some of which may or may not meet the aforementioned standards:

  • Testamentary/Self-Proving Will – the traditional form of will that most people are familiar with. This formally prepared document is signed in the presence of a witness or witnesses
  • Holographic Will – this type of will is not written in the presence of witnesses and rarely holds up in court
  • Living Will – this form of will has nothing to do with distributing assets. Instead, it sets forth your final wishes for life support or other medical care if you are incapacitated
  • Oral Will – these are spoken testaments provided before a witness or witnesses. Like holographic wills, they are not widely recognized in the legal arena

Why Do I Need a Will?

By creating a will, you are granted sole discretion over how your assets are distributed. You can decide how your belongings, including family heirlooms or other valuable property, may be distributed.

It is also important to establish a will if you are a parent or guardian to minor children, as it allows you to provide for their care. This includes children from a previous marriage, even if they are considered adults.

Although wills typically address the majority of your assets, there are certain items that are not covered under a will. Items like proceeds from life insurance payouts, community property, retirement assets, and certain investments may not be covered under a will, even if it is legally recognized.

Working with Rick Dane Moore and Associates

If you are considering creating a will, it is important that you seek the guidance of an attorney experienced in the drafting and enforcement of such documents.

That’s where the legal specialists at Rick Dane Moore and Associates Law Firm, P.L.L.C. come in. Our legal team has more than 30 years of experience in drafting wills, in addition to litigating and contesting wills that other attorneys have drafted. Whether you are looking to establish a living will or your final will and testament, our attorneys can provide the wisdom and support you need to make the best possible decisions.

To schedule an appointment with a member of our legal team to explore your options for creating a will, we invite you to call Rick Dane Moore and Associates Law Firm, P.L.L.C. today at (405) 366-0373.

Unconventional Family Agree to Tri-Custody Arrangement

- admin3

Last month a New York judge was tasked with sorting out a seldom encountered child custody issue: a tri-custody agreement.

The father of the 10-year-old boy and his wife had struggled to conceive for quite some time. The couple then met their new neighbor and the three began to engage in “intimate relations” with one another. The neighbor consequently became pregnant.

The three adults and one child considered themselves to be a family and planned to raise the boy together. But one year after the child was born, the neighbor/mother of the child and the wife left the home shared with the father and chose to move in together, taking the child with them.

Wife Wanted Tri-Custody Agreement, Father Did Not

The wife was in favor of a tri-custody agreement, but the father was not. The judge in the case found that the child was “well adjusted” and that because he loved his father and his two mothers, custodial rights would be awarded to the two biological parents as well as to the wife. According to the judge, anything other than joint custody would have “devastating consequences” to the child.

Different Types of Custody for Different Families

In Oklahoma, there are two different types of custody:

  1. Legal custody
  2. Physical custody

Legal custody allows parents to receive information about the child and to make decisions about a number of important issues, including:

  • Education
  • Religious practice
  • Medical care
  • Physical custody is who the child will live with for the majority of the time, if not always (sole physical custody)

Joint Custody and Joint Custody Arrangements

Having joint custody means that parents who are not living together still share the responsibilities of making decisions for the child. Joint custody can come in one or both of the following forms:

  • Joint legal custody
  • Joint physical custody

Though a joint custody agreement parents can arrange for set periods of time for when the child will be with them, and when they will be with the other parent. Parents may choose to alternate weeks and/or weekends on a regular basis, and have a monthly or annual schedule for holidays.

Speak with a Child Custody Attorney at Rick Dane Moore & Associates Law Firm, P.L.L.C.

Regardless of whether you have an amicable relationship with your child’s other parent or a contentious one, having an attorney from the Rick Dane Moore & Associates Law Firm, P.L.L.C. by your side will ensure that your rights are maintained and that all agreements are fair and legal.

We invite you to speak with one of our accomplished child custody attorneys today at (405) 366-0373.

Teen Requesting Guardianship of Younger Sister

- admin3

After the death of both parents, an 18-year-old teen is applying to be the guardian for his 15-year-old sister.

On Christmas Eve in 2015, Kyle Nester and his younger sister, Madison, lost their father due to a heart attack. Earlier this year, their mother Tammy passed away due to liver and kidney failure.

Nester is currently in his final year of high school and plans to attend Ohio State University in Columbus after he graduates in May. He plans to continue to live at home rather than on campus for as long as his sister is in high school.

Making Sure His Sister Has Everything She Needs

Nester stated that he is choosing to become his sister’s guardian to ensure that she has “everything she needs” throughout college and afterwards. Their grandparents are proud supporters of Nester’s decision and are helping him through the complex paperwork necessary to gain guardianship of his sister.

How Guardianship Differs from Adoption

Guardianship is about establishing a legal relationship between a minor and an adult who is not the child’s parent. It does not end the legal relationship between a child and his or her own biological parents.

Adoption, on the other hand, changes that relationship. Adopting adults legally become the parents of a child and biological parents give up all parental rights and obligations.

Guardianship only lasts until:

  • The child reaches legal age (in Oklahoma, it is 18 years of age)
  • The child passes away
  • A judge believes that guardianship is no longer necessary
  • The child’s assets are gone (this is if guardianship was set up for the purpose of dealing with a child’s finances)

Becoming a Guardian in Oklahoma

Individuals may wish to become a guardian for a child for a number of reasons, including ensuring that proper care is provided, to enroll a child in school, and to receive state benefits. Obtaining guardianship requires three general steps:

  1. Filing paperwork with the court clerk
  2. Requesting that the judge appoint you as guardian of the minor child
  3. Attend a hearing and tell the judge why you should be the child’s guardian

Rick Dane Moore & Associates: Over 30 Years Combined Experience in Guardianship Cases

The Rick Dane Moore & Associates Law Firm, P.L.L.C. in Oklahoma protects the well-being of minor children by ensuring that suitable clients have well-prepared cases for guardianship ready for the courts.

For expert advice and assistance with your guardianship case, we invite you to call (405) 366-0373.

Supreme Court Denies Adoption of Choctaw Child

- admin3

In mid-January 2017 the U.S. Supreme Court declined to hear a child custody claim regarding a Choctaw child who had been placed with her extended family in Utah under the terms of the Indian Child Welfare Act.

A California court decided to remove the child known as Lexi from her Santa Clarita foster family. The family has been fighting the law in an attempt to adopt her.

Since spring of 2016 Lexi has been living with her extended family which includes her sister. She will continue to be raised in the Choctaw tradition.

Common Challenges Families Face Throughout The Adoption Process

Financial

The financial challenges of an adoption largely depend on the agency you choose.

  • Private adoption agencies often have higher adoption fees and expenses in comparison to a public agency
  • Expect the adoption fee to be higher if you are adopting a child who is a foreign national
  • Your expenses may increase if you agree to pay for the expenses of the birth mother’s hospital and medical bills

Emotional

The adoption process presents numerous emotional challenges for the adoptive parents, the child, the family unit, and the birth parents. An adopted child may not be able to adjust with your family, for example, or you may realize that you are not able to handle the special parenting challenges which come with an adopted child.

As adopted children grow older another unique set of emotional challenges may arise. The child will likely be curious about her birth parents, question her sense of identity, and be wondering why she her birth parents allowed for the adoption.

Legal

The case above involves more legalities than many other adoption cases. But no adoption is not without its own unique set of legal challenges.

One of the most common legal issues which an adoptive family may face is that both birth parents are unaware of the adoption. A birth mother, for example, may have agreed to give up her child for adoption but the birth father may not have yet relinquished his rights to the child. This can result in a number of lengthy and costly legal hassles.

The adoption attorneys at Rick Dane Moore and Associates Law Firm, P.L.L.C. have helped many families in the state of Oklahoma fulfill their dreams of adopting a child into their home. Our adoption attorneys will guide you through every step of the process and are committed to helping you during this exciting time.

We welcome you to speak with one of our experienced adoption attorneys today for free by calling (405) 366-0373.

When Legal Spouse May Not Be Appointed Personal Representative of Estate

- admin3

When a person dies without a will, he passes on property and debts intestate and a personal representative is usually appointed to manage the decedent’s estate.

The personal representative occupies a key role in the settlement of the estate, exercising functions such as:

  • Gathering the assets of the estate;
  • Creating an inventory of the estate;
  • Notifying creditors of the opening of estate proceedings;
  • Paying bills that have been approved by the court, and
  • Distributing the estate to the heirs following the court’s order of distribution.

In Oklahoma family law, the decedent’s surviving spouse has the priority in requesting for an appointment as the estate’s personal representative. But who should be appointed when the decedent is survived by a common-law wife and a legal wife, albeit separated in fact for several years before the death of the decedent?

Estoppel as Obstacle for Legal Wife

In a recent case, the Oklahoma Supreme Court ruled that the legal wife is estopped from asserting her status as the surviving spouse due to specific conduct such as entering into a subsequent marriage after the couple’s separation.

The facts of this case showed that the decedent was previously married to a woman who later left him allegedly due to his extramarital affairs. The couple separated but neither of them filed for divorce. The decedent later met and started a live-in relationship with a second woman with whom he had two children and who he treated as his common-law wife. Both lived together for many years until the decedent’s death in 2013.

When the legal wife learned of the common-law wife’s appointment as the personal representative of the decedent’s estate, the former asked the court to revoke the common-law wife’s appointment stating that the former’s marriage was never dissolved despite the separation.

During the proceedings, it was established that the legal wife not only separated from the decedent for many years but also that she married another man and signed her name using the second husband’s surname. The court considered the later marriage after the petitioner’s separation as a denial of her prior marriage under the legal principle of estoppel. If a loved one has recently passed, the period immediately following your loss can be an emotional time. Having an experienced estate attorney to guide you can ease the stress that can come with estate proceedings.

In Oklahoma, the family law attorneys at Rick Dane Moore & Associates, PLLC have over 30 years of experience, working with estates and helping heirs settle through estate procedures. Call us today at (405) 366-0373 to arrange for your free 15-minute telephone consultation.

Distribution of Trust Property Intended Only for Lineal Descendants

- admin3

A trust agreement is a powerful way for people to distribute assets and their income during their lifetime or when they die. This method of distributing property is widely favored for people who wish to provide financially for specific persons such as a surviving spouse but still want to ensure that the remainder of the estate goes to chosen heirs after the spouse dies.

The terms and conditions found in a trust agreement can be as simple or as complex as the settlor would like them to be. Due to the financial and legal implications of drawing a trust, it’s absolutely important to consult an experienced trust attorney who can ensure that your intentions are reflected and carried out when you are no longer around.

In one case, the settlor executed a trust that called for the distribution of the income of specific assets to his wife, while passing on the principal assets to his grandchildren or their lineal descendants, should his children predecease his wife.

Years after the settlor died, his grandchildren predeceased his wife, without leaving behind any children of their own. The settlor’s wife then asked that she be appointed as trustee of the assets that were initially intended for the two grandchildren. The grandchild’s widow filed a lawsuit asking the court for its interpretation of the trust conditions pertaining to the death of the trustees who died without any lineal descendants.

Correct Interpretation of Trust Condition on Per Stirpes Distribution

The Supreme Court of Oklahoma tackled the issue: whether the ‘per stirpes’ gift of any remaining trust principal left to two of the settlor’s grandchildren may be distributed to the widow of one of the grandchildren.

In arriving at the legal interpretation of the trust arrangement, the high court examined the conditions of the agreement and determined the intention of the settlor. The court eventually ruled that it was the settlor’s intention to pass on the remaining trust principal only to lineal descendants or blood relatives in the direct line of descent of his grandchildren. Spouses are not lineal descendants of each other. The remaining trust principal would have to pass to the beneficiary of the trust—the settlor’s wife.

Role of Experienced Trust Attorney

Trust arrangements are not for everyone. You must be able to consider certain things such as your goals to provide for specific persons, the kind of assets you own, and the timing of the distribution of your trust assets/income. It’s important to discuss your goals with your experienced trust attorney who can determine what type of trust is appropriate for your situation and who can carefully craft solid provisions that carry out your intentions.

At Rick Dane Moore & Associates, PLLC, our experienced Oklahoma trust attorneys have a solid grasp of the complex laws and rules of creating trusts and their financial implications. Our Firm will customize the terms and conditions of your trust agreement to suit your situation, needs, and goals.

We invite you to call us today at (405) 366-0373 to speak to one of our attorneys about your situation.

US Supreme Court to Decide Division of Retirement Pay in Military Divorce

- admin3

For many military spouses, the largest asset in the marital estate is the retirement pay of a service member. When the marriage of a service member falls apart, one of the major concerns of a non-military spouse in a military divorce will likely concern the division of this retirement pay.

Retirement Pay Reduced by Disability Pay

A military divorce can become more complicated when the service member subsequently chooses to receive Veterans Affairs (VA) disability benefits after entering into a settlement agreement. Under the current provisions of the United States Former Spouses Protection Act (USFSPA), state courts are allowed to treat disposable retired pay as either the service member’s property or as the marital assets of the spouses. Disposable retired pay is defined as the service member’s retired pay less any portion that the service member has waived in favor of disability benefits.

In one case, the military husband entered into an agreement dividing the marital assets including his retirement pay. Years after, the husband chose to receive disability benefits and waived the corresponding amount of retirement pay. The divorced couple found themselves in court over conflicting interpretations of the USFSPA provision. The service member claimed that his ex-wife’s share in the retirement pay must also be reduced.

Courts Can Compensate Spouse for Reduced Retirement Pay

The state courts having jurisdiction of the parties ruled in favor of the ex-wife saying that federal law allows state courts to compensate the non-military spouse for the reduction in the amounts due her as a result of his waiver of retirement pay. When asked to comment on the pending case before the Supreme Court, the Federal Government filed its brief recommending the same position of the state courts and further asked the US High Court to issue a uniform ruling for the guidance of state courts in resolving this frequently recurring issue.

Importance of Military Divorce Attorney

A divorce can be an emotionally challenging time, made more stressful by decisions that can have a significant impact on your future. If you are contemplating a military divorce or are facing one, it’s important to discuss all angles of your situation with an experienced military divorce attorney. Your lawyer can examine the details of your case, sort the legal issues, and recommend options that are available in your situation.

In Oklahoma, the Rick Dane Moore & Associates Law Firm has over 30 years of proven experience in military divorce and other related family law matters. Our firm’s personal approach starts from the moment you call us for advice. Call us today at (405) 366-0373 for a free 15-minute phone consultation and tell us about your situation.

Estate Liable for Mortgage under Decedent’s Will

- admin3

In Oklahoma, when a person dies with a Will, the estate must undergo probate proceedings in order to distribute properties and liquidate debts according to the decedent’s Will. In many situations, conflicting interpretations of the testator’s Will have led to litigation proceedings where the court’s judgment is sought on complicated probate issues.

Issue on liability of Estate for Mortgage

In a recent case involving property disposed through a Transfer-On-Death deed (TODD), the transferee presented a claim against the estate for the payment of the encumbrance or mortgage that attached to the property. The mortgagee, as well, presented its claim against the estate for the settlement of the unpaid loan. The executor denied both claims stating that the liabilities presented were not liabilities of the estate.

Rule When Mortgaged Property Is Inherited

The representative of the estate relied on 58 O.S. 2011 Sec. 461 and 46 O.S. 2011 Sec. 5 which set down the rule that when real property that is encumbered by a mortgage passes to another person by Will or succession, the successor also acquires the responsibility for satisfying the mortgage unless the decedent specifically provided in the Will for payment of the mortgage by the estate or by some other way.

When the case reached the state Supreme Court, the high court ruled that the debt subject of the mortgage was the liability of the estate.

Testator’s Will Must Prevail

In its decision, the high court said that under Oklahoma law, the Will must be construed according to the intention of the testator and that discerning and implementing the decedent’s intent must be paramount.

The decedent’s Last Will and Testament contained a provision directing the executor of her estate to pay all her debts, including the debts secured by mortgage. The Court found that the Transfer-on-Death deeds, while considered as non-testamentary dispositions, were executed on the same day as the Last Will and Testament and were part of a comprehensive plan. In discerning the intent of the decedent, the Court said that the Last Will and Testament contained very clear instructions for the settlement of all of the decedent’s debts, which as well covers the encumbrance on the property transferred through TODD.

The Court also said that 58 O.S. 2011 Sec. 461 did not apply to the transferee, who received the property by TODD, not by succession or Will.

If you are contemplating the execution of a Last Will and Testament or have recently lost a loved one who left a Will, call the Rick Dane Moore & Associates Law Firm at (405) 366-0373. Our Firm has over 30 years of experience in family law matters including Wills and succession. We offer a free 15-minute phone consultation where you can learn more about how we can help you.

Mother Places Son for Adoption on Craigslist

- admin3

It was only a few months ago when many pet lovers on Craigslist were shocked to find an adoption advertisement placed for a mother’s 10 month old son.

A desperate mother created a post under the “Pets” section on the Oklahoma City Craigslist asking someone to adopt her child. In the post the mother stated that the father of the child passed away when she was four months pregnant and that life has been “treating [her] on the bad side” and that she had no other option.

Illegal to Go Around Legal Channels

In the state of Oklahoma, the adoption process must go through the proper legal channels and it is illegal to try to adopt your child on a website.

The first step to legally adopting a child in our state is to file a Petition for Adoption with the Court. This shows the Court that you understand that:

  • You are knowingly becoming the parents of the child; and
  • You know what it means to be a parent

If you already know the biological parents and they agree to the adoption, the process will likely be fairly straightforward. The biological parents will provide consent before a judge, sign away their rights to the children, and the new parents will need to undergo some background checks. Children will stay with the new parents temporarily until an entity such as the Oklahoma Department of Family Services checks in with you periodically.

Once the steps are completed, the Court will then issue the new parents a final adoption order.

When You May Require Legal Assistance

A private adoption can be very complicated, and a lot of paperwork and an understanding of the law is required. In these situations it is important to retain an attorney.

It is also important to note that each adopting parent must participate in the pre-placement home study and be approved for the adoption, and that the birth parents of the child must consent to the adoption. In some situations you may be able to have a birth parents’ rights terminated by the Court.

Rick Dane Moore And Associates Law Firm, P.L.L.C. prides itself on providing personable legal assistance to all parents involved in an adoption. After years of experience in adoption and family law, we understand the importance of being available to parents whenever an issue arises.

For a consultation here in Oklahoma, please call us today at (405) 366-0373.