Kelly Ruth Jones, Probate and Trust Attorney

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Kelly Ruth Jones, Probate and Trust Attorney Skilled and compassionate probate, estate, trust, and guardianship Counsel. Here to help when life happens. Litigation may not always be necessary.

Generally, litigation involves the following areas:

Case Assessment and Investigation
This phase of the process helps to develop a strategy for issue resolution. Sometimes problems can be resolved through other methods, such as mediation, arbitration, or negotiations. If litigation is necessary, a detailed overview of the process will be had at this phase. Pleadings
Pleadings and motions are how litigators present facts and information to the court. Pleadings include petitions, summons, answers, etc. Motions are how litigators request actions from either the court or other parties. Whether a pleading or motion is used depends on the circumstance and request. Experienced litigators are familiar with both and use them to best advocate their client's position. Discovery
Experienced litigators use discovery is a way of gathering information from other parties. Usual methods of discovery include interrogatories (written questions), depositions (in-person questioning), and documents through requests and subpoenas. This is also the time where supporting witnesses and other evidence in support of the case are found. It is often one of the more frustrating parts of litigation, because it can be very in-depth. But it's also one of the most important, as it develops each side's case and arguments. Pre-Trial
After discovery has been completed, litigators work with clients to develop trial strategies based on the facts and evidence. Motions are often filed at this time to try and compel the Court to issue a ruling outside of additional hearings or a trial. It may also be the time to determine whether mediation or arbitration can help clients resolve their issues, again without the need for a trial. Trial
If motions and mediation do not work, the case will proceed to trial. This is a very time-consuming time, when litigators compile and prepare all information, documents, and witnesses to present to either a Judge or Jury, who will ultimately decide the outcome of a case. Litigators identify the strengths and weaknesses of a case and develop arguments. They prepare witnesses and their clients for testimony. The actual trial can be a stressful and lengthy process. Both parties get their day in court to present their evidence and witnesses. After both sides have done so, the Judge or Jury issues a ruling, which decides both parties' fate. The Appeals Process
If there is not a favorable ruling after a trial, the litigator may file for an appeal. This involves presenting evidence to the next court level as to why the ruling was wrong and what it should have been.

21/08/2024

Let's keep talking timelines. I posted about a minimum expectation for a basic, non-contested probate. On the other end is a contested/litigated probate. I'll start out by saying that only criminal matters are entitled to speedy trials. Civil and equitable (e.g., divorces, probates, and trusts actions) do not have that same entitlement. Civil and equitable cases can take years. I have some which have been going on for 3+ years, and are still in process.

With litigated matters, we usually start out with a scheduling order. This outlines the relevant deadlines for standard litigation procedure. They include dates to amend pleadings, add parties, start and end discovery, provide witness and exhibit information, mediation requirements, etc., usually ending in a pretrial. Pretrial is when we tell the court that we are ready for trial. By pretrial, everyone knows everything. The goal is that there are no surprises at trial. What you see on TV isn't true. There are no surprise witnesses or antics.

It's not unusual for a scheduling order to set dates over 6-months to a year. This doesn't account for delays, interim contests, hearings, etc. Once you get to a pretrial, you should be ready to go. But trial dates are dependent on court dockets, which are dependent on the county you're in, and the number of trials. Also, county funding. A trial can be set at least 6-months out. I am scheduling in to spring 2025 right now, and those are cases which have gone through the whole scheduling-order process.

Even then, smaller counties can run into funding issues. This can result in trial dockets being smaller, or struck all together. We have no control over any of this.

If you are in litigation, don't think you will be in trial in a couple of months. Instead, prepare yourself for over a year of being embroiled in the case. Also, don't think that hearings are a way of showing that the case is moving along. The exact opposite is true. Usually, if there are hearings before pretrial, it means that things are going wrong. Likely, there is an issue or dispute.

On the other hand, if everything is going smoothly, less time in court is a good thing. I often have clients say, "Well so and so said that I should have had a hearing by now" or "We haven't had any hearings, you're not doing anything" or "You're catering to the other side." No. So and so is wrong. And we are actively working on your case. Hearing = problems. Also, hearing = more money. And hearing = delays. Give this, attorneys try to work together to avoid hearings and have agreements so that things can keep moving along. It isn't a sign of weakness, it's a sign of understanding the procedure and acting in a professional environment.

I've mentioned many times about litigation costing tens of thousands of dollars. You must pay for every step of the way. You want to stay out of court as much as possible. And you really want to consider things like mediation. This can help you get a cheaper and quicker resolution.

If you are on the way to a contested matter, or litigation, you must hire an attorney well-versed in litigation procedures. And look for an attorney who specializes in your area of law. These attorneys help the process move along better, because they know the law inside and out, and know what you can and can't do. Specialists can be more expensive, but they are worth it. They save you time and money in the long run, because they know what they are doing in your specific area of law.

If you have questions on your case, feel free to reach out and ask. I'm available at 918-382-9200 or [email protected].

16/08/2024

Let's talk timing. How long will this take? That's one of the most common questions, right after "How much will this cost?" Like the cost question, the best, lawyerly answer, is that it depends. There are several considerations when it comes to the timeframe. Is it contested? Are we selling property? Do we have to research heirs? Do we have to research, locate, or collect assets? Are there creditor claims? Will there be creditor disputes? What does the court docket look like? How quickly can we get in for hearings? How many hearings will we need? All of those questions weigh into the timeline for a probate.

In Oklahoma, a completely run-of-the-mill, non-contested, no creditors, no-sale probate, on the low end, could be about 120-days. For a run-down, you must file a petition and set it for a hearing. The hearing is typically 30-45 days out, depending on the Court's docket. It may be longer. You then have a notice to creditors timeframe of 60-days. During that time, the administrator is responsible for collecting, safeguarding, and accounting for assets.

After the notice to creditors, you can prepare and file a final report and accounting, and a request for a final decree. This gets set for hearing. Which can be 30-45-days out, at a minimum. At the hearing, if no issues, the Judge can issue a final decree and order of distribution. The administrator then has to distribute, per the court order, get receipts, and file those receipts in the court. The administrator can then be discharged.

So, if you look at the absolute low-end, you have a minimum of 120-days. But again, it's highly dependent on external factors, many of which we have no control over, as much as we may try. I usually tend to quote 180-210 days at a minimum, for a completely basic probate.

There can be different options, with different timelines. But it's case-dependent. If you have timeline requirements, such as if you are trying to close on a house, you need to discuss everything with an attorney well familiar with the process. Also, well familiar with the courts you will be working with. All courts are different.

If you have questions for a probate or estate-related matter, be sure to reach out. I am happy to discuss all options, along with realistic expectations for your situation. You can contact me at 918-382-9200, or [email protected].

08/08/2024

Financial Institutions. Estate facilitation can be hard enough. Having to work with banks, insurance companies, and retirement-plan administrators (e.g., 401k, pension, etc.) can make it even worse. Financial institutions have their own rules and requirements for processing claims. And, if there's an issue, arguing with them doesn't make much of a difference. We can have issues where we send in requirements, only to have them lost, or told that what we send isn't good enough.

Most of us have companies that we dread working with, because of these problems. Recently, I've had to report two to the Insurance Commissioner and then had to directly contact general counsel offices for others. This was the only way to move the claims along.
If a decedent had accounts, the institution will likely not talk to you unless you 1) present a death certificate, and 2) are either the beneficiary or the representative of an the estate. If you send the certificate and they still won't talk to you, it's usually because you fail to meet #2.

If financial institutions are giving you a major headache, call an attorney to review what's going on and advise you accordingly. Many attorneys will do an initial consult, but charge for document review and an opinion. You just have to decide if it's worth it.
Feel free to contact me at McDaniel Acord PLLC for a free consultation. We are always happy to help. 918-382-9200 or [email protected].

31/07/2024

Emergency Administration. In Oklahoma, it usually takes a minimum of 30-days to have someone appointed as an estate's representative. But sometimes we need to get someone in charge right away. Common reasons include other parties starting to collect and distribute estate assets, having to remove people from a decedent's residence, carrying on active lawsuits, filing necessary claims relating to the decedent, approving settlements, etc.
When we have those types of circumstances, we have can file for a temporary, emergency administration, while a petition for a standard administration is pending. These can usually be granted either same day, or within a few days of filing the necessary documents.
This emergency appointment gives a person authority to address and handle the situation. It is then their job to collect and safeguard estate assets. Also, to facilitate any other reasons for the emergency appointment.
One of the purposes of a probate is to slow down the estate process. This allows time to get your arms around what needs to happen.
If you have this type of situation, reach out to an attorney who can advise you of the options. We can then file any necessary documents to match what you need. I am more than happy to walk you through that process. Feel free to contact me at 918-382-9200 or [email protected].

29/07/2024

Transfer on Death Title. Oklahoma has a wonderful estate-planning method for titled assets, like cars. This is called a transfer on death title. This is similar to a transfer on death deed for your home. It allows you to put a beneficiary designation on the asset. When the owner passes away, the beneficiary just has to take a copy of the death certificate to a tag agency, fill out and affidavit, and then take title.

This is safer than adding someone to the title as an and/or. With that, the other person is also an owner, and can do whatever they want with the asset. That being said, if the asset is titled and/or with someone else, the survivor will automatically have sole ownership. But the survivor should still have something in place.

This is only available if there is no lienholder. So long as the asset is paid off, you can fill out a simple form and send it to the Oklahoma Tax Commission. Though I do recommend sending it via certified mail, or at least some way with a tracking number.

If there is a lien, you have to work with the financing company. If someone wants to keep the item, they usually have to buy it themselves. And selling it could be tricky, because the decedent's estate would need an official representative to execute the title. If no one wants it, the company typically takes the asset back.

A transfer on death title is so simple that I don't feel right charging for it. I am including the website, so you can access it on your own.

Remember that estate-planning doesn't have to be complex or time-consuming. Taking these types of easy steps makes a world of difference. Be sure to contact me if you have questions or want advice on other planning methods. 918-382-9200 or [email protected].

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26/07/2024

Family. Family is an interesting topic. When we talk family, we usually mean those people related by blood, marriage, or legally (think adoptions). Nowadays, the word is more flexible. People consider close friends to be family, and may even refer to each other that say.

For estate purposes, family does mean the former. Those related by blood, marriage, or the law. If a person doesn't fall into one of those categories, the law doesn't recognize them as having any standing in an estate proceeding.

When planning your estate, it's important to specifically include anyone close to you whom you want to benefit from your estate. You can easily name them in a Will or Trust. So, be sure to think of all aspects of your estate and family while going through the process.

I'm happy to walk clients through their estate plans, and making sure that they include everyone they want. Let me know if you'd like to sit down and talk about your plan. Call or email at 918-382-9200 or [email protected].

25/07/2024

Let's talk costs. One of the top questions I get asked is how much a probate will cost. The answer is - we don't know. Most attorneys don't charge flat-fees in probates. This is because of the difficulties we have in knowing the nuances for each probate. If an attorney tries to give you a guarantee on a price, but doesn't offer it as a fixed amount, be wary.

From experience, we can potentially guestimate a minimum, but it would be just a guess. Personally, I am quite leery on even speculating on a cost in any court action. This is because there is a tendency for clients to assume that this will be the total amount.

For a probate, we don't always know if it will be contested. We don't know how other parties are going to act. We don't know what all it may take to sell any property, if needed. We don't know if we will have multiple hearings.

If contested, we may have to do discovery, depositions, motion work, etc. This is a litigated probate, which is very expensive. If litigated, a minimum estimate can be well over $10,000.00, and very well likely more. I've seen fees of $50,000 to $100,000 in heavily contested matters. So, as attorneys, we aren't being difficult when we don't give a price. Nor are we trying to be sneaky. We are being honest in that we don't know, because there are so many things outside of our control.

A good attorney will inform you, up front, on the possible happenings in the probate, and the associated costs. They will also consult with you each step of the way and help you with a regular cost-benefit analysis. Sometimes, the cost simply outweighs the desired outcome. At that point, things like settlements, mediation, or arbitration should be discussed. For additional questions, feel free to contact me at 918-382-9200 or [email protected]. I'm here to help.

24/07/2024

A large number of my probates are specifically for homes. There could be nothing else which needs a probate, but still end up having to do one because of a house. What we typically see is a house owned by two people as joint tenants with rights of survivorship. When one dies, ownership vests solely in the survivor. If the survivor doesn't take any steps to dictate where the house goes after their death, a probate is needed to establish who is entitled to it.

It used to be where most estate planners recommended a trust, specifically for the home. Nowadays, you don't have to go through the time and expense of a basic trust. Instead, you can use a document called a Transfer on Death Deed. This document is your way of putting a beneficiary on your home, just like a bank account.

It's not a present-day conveyance of ownership. So, you can do whatever you want with the home while you're alive. You can sell it, mortgage it, change the beneficiary, add another owner, donate it, etc.

After death, the beneficiary just has to fill out an affidavit, attach a copy of the death certificate, and record it in the land records. And, boom, they own the home. It just has to be done within 9-months of the date of death. If you don't, the house will likely end up in probate.

Transfer on Death Deeds are a quick and easy way to prevent your loved ones from having to spend a few thousand (at a minimum), just to probate the house. Talk to an estate-planning attorney today who will cater your plan to your needs, and not try to charge you for unnecessary methods. You don't have to spend a lot of money to get a good plan.

If you want my help, call me at 918-382-9200, or send me an email at [email protected]. Estate planning isn't hard. What's hard is not having a plan for after you pass.

22/07/2024

I've had several calls over the last few weeks from clients working frantically to put plans in place for loved ones. The reasons range from accidents/injuries, long- and short-term illnesses, declines into dementia or Alzheimer's, etc. Though their stories are different, one thing they all have in common is that the affected person didn't have an appropriate plan. Or, they had an older or outdated plan, which didn't match what they currently wanted or needed. It's too late to create a plan once someone is incapacitated. This is because the person must be able to understand, direct, and execute the relevant documents.

Also, the reality is that finding an attorney who can turn a plan or documents around in just a day or two can be difficult. Plans and documents take time to draft and implement. Errors can happen if the proper care isn't taken. Some attorneys won't create plans unless they personally talk to the affected person, either.

Along with this, most attorneys already have set deadlines, court time, projects, and other cases they are working on. This doesn't mean that they can't or won't take new clients. Many of us are highly organized, which enables us to ensure that each client gets the best service possible. But it does mean that attorneys can't always be immediately available for an emergency plan. If they are, there will likely be an upcharge for essentially stopping all other work to assist with the immediate need.

Sadly, a couple of the clients passed before we could get their plan in place. And they are now having to go through probate. Though we know what they may have wanted, there's nothing we can do. Unless a plan is properly drafted and executed, it has no effect, whatsoever. You can have a dozen witnesses to a verbal statement, and it's of no effect. This is the harsh reality of not having a plan in place.

Estate plans are not difficult. They don't have to involve trusts or advanced techniques. Simple things like a power of attorney, healthcare proxy, advanced directive, etc., makes all the difference. If you don't have it, and something happens, it's usually too late. You can try to pull forms off the internet, but then you run the risk of them being done wrong. Talk to an attorney early on. It's better to have a plan which just has to be updated, than no plan at all.

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