It is common to have questions about the complexities of your legal issues. Find the answers to some of the most frequently asked questions before your visit Julie J. Austin Attorney at Law.

A: It is not unlawful for you to represent yourself in court or to handle your own legal matters. Self-help "kits" and preprinted forms do not consider individual needs, differences and complications. They may not be appropriate for you. Many laws are complex and subject to various interpretations and frequent change which can result in a great deal of confusion. Lawyers are trained to explain and interpret the law for you, to provide legal assistance and to be aware of all court procedures, filing requirements, deadlines and other details which a non-lawyer could easily overlook. Judges and court personnel are not allowed to give you any legal advice as your case proceeds or to relax rules and requirements for you because you are not a lawyer.

A: If you are unhappy with your lawyer, there are several things you can do:

Note: You and your lawyer have a contractual relationship. Even if you discharge a lawyer, you may still be liable for fees and costs incurred as a result of your lawyer’s representation. You will have to pay for the work already done in your case, as well as for costs that have already been incurred.

A: It is appropriate and important to discuss fees upon your first visit with the lawyer. Various factors and arrangements may influence the costs of legal services. Your lawyer can explain how fees are computed and may outline options available to you. Candid discussions about fees and your ability to pay will avoid misunderstandings while helping you decide if you want to retain the lawyer.

A: Three common methods of determining fees are time (usually based on hourly rates), contingency (based on the outcome of the case), and flat fees (for specific action, such as handling a real estate closing). Although exact fees cannot usually be determined in advance, the factors involved in computing charges are fairly standard. These factors include:

A: Upon the death of a property owner, Oklahoma law provides for a legal process to determine the assets, assess their value, and distribute them to creditors and heirs. Such procedure takes place in the district court of the county where the deceased property owner lived. If the deceased held property in another state, additional proceeding called “ancillary administration” will be necessary in that state but cannot be included in the Oklahoma probate. Oklahoma law provides for the probating of estates to protect all parties who have any interest in the estate.

A: An estate is probated for the following reasons:

Although this procedure may be considered lengthy and detailed, it is provided by law to assure that all property of the deceased is accounted for, and that all debts and taxes are paid. Someone is required to step into the shoes of the deceased person, so to speak, and carry out the business of the estate and pay the debts and the expenses, and, in the end, see that the property is distributed to the rightful parties. 

A: Probating an estate requires that a responsible party, called the personal representative, be appointed by the court to carry out the duties outlined above. The personal representative may be a bank or a trust company or it may be an individual such as the spouse or child of the deceased. If the deceased names a personal representative in a will, that party is usually appointed by the district court. If the deceased does not have a will, the district court will usually appoint the closest relative as the personal representative. The functions and duties of the personal representative are: 

These steps and proceedings require preparing and filing numerous legal documents, publishing certain notices in a newspaper, holding district court hearings, securing appraisals of property, preparing interim and final income tax returns and any required gift and estate tax returns, providing an accounting of funds, making actual distribution of the property, and receiving the final discharge of the personal representative by the district court.

A: All of these proceedings are under the jurisdiction of the judge of the district court. Every action taken by the personal representative is subject to the scrutiny and approval of the judge. All determinations are made by the judge, without a jury, including the payments of debts, payment of attorney and personal representative fees, and the final distribution of the estate assets.

A: It is difficult to predict how long it will take to settle any estate because each one is different. The minimum time required to complete a simple estate is six to twelve months. Large estates with property to be sold usually take longer.

A: Yes, some property may not be included in the probate estate, such as life insurance, pension and/or profit sharing benefits, trust property and property held in joint tenancy; but this property is still generally subject to estate taxes. 

A: Joint tenancy is a form of co-ownership of property whereby two or more persons own property together. On the death of one joint tenant, court proceedings are rarely necessary to transfer title. Normally a joint tenancy may be terminated by the execution of an affidavit filed in the county clerk’s records. Joint tenancy can be a useful transfer device for a married couple. However, many people do not have all of their property in joint tenancy and a full probate is required for the solely owned property. 

A: Wills must be filed in the district court upon deaths, if a probate is required. If there is not a will, the property will be distributed according to the Oklahoma laws of descent and distribution, depending on how title is held on each asset.

A: If a person dies without a will, the legislature has written a law determining how that person’s estate will be distributed at death, called the law of descent and distribution. The law of descent and distribution will be subject to any prenuptial marriage contract. Assuming there is no prenuptial contract, if the deceased leaves a spouse and children of their marriage, the surviving spouse receives one-half of all the property of the deceased, whether acquired by the joint industry of the husband and wife during marriage or otherwise. The remaining one-half of the estate passes in equal shares to the surviving children. Additionally, where a person’s child has predeceased them, if that deceased child is survived by children (the deceased person’s grandchildren), those grandchildren will receive equal shares the portion of the estate that their parent would have received if living.

A: An action for recovery of money based on breach of contract, for injuries, or to recover personal property may be brought in Small Claims Court if the plaintiff is willing to accept a recovery which does not exceed $6,000. Small Claims Court is not available for actions claiming libel or slander. 

A: Yes. It can take more than a year for a regular civil case to come to trial. However, a defendant must be properly served with the lawsuit in both small claims and regular civil lawsuits. If a plaintiff files a small claims lawsuit and is unable to locate the defendant, it may take longer.

A: Anyone who has a claim against another in Oklahoma may use the small claims procedure. Anyone seeking to use small claims will be limited to a recovery of $6,000. The person must pay the filing fee prescribed by law.  

A: Of course. All parties are entitled to be represented by an attorney in every case in State Court in Oklahoma. Either party may use an attorney even if the other side does not.

A: No. An individual may be self-represented in small claims; a company may be represented by an officer or full-time employee. However, the judge is required by law to apply evidence rules even in small claims cases. The judge cannot fulfill the role of an attorney for either side; therefore, parties must be familiar enough with their case and with restrictions on the use of evidence to be sure they are able to present their case properly.

A: The use of hearsay evidence is the most important evidence problem in small claims. Some parties do not realize, for example, that an estimate from a reputable automobile repair shop, or a written statement from someone who saw an accident is not admissible in court. The reason for this is the estimate or the statement of the out-of-court witness is “hearsay evidence.” However, an estimate or other document may be allowed into evidence if the person who prepared the document is present to testify. If you are not represented by a lawyer, the best thing to do, whether you are a plaintiff or defendant, is bring everything to trial that pertains to the lawsuit. Also, be sure all persons who know about the facts are available to testify. 

A: Be certain you have in court all of the documents and witnesses who know about your case. If a document was prepared by someone who is not a party to the case, that person must be present to testify about the document. 

A: When you file your claim in the office of your county’s court clerk, the court clerk will assign a day and time for your trial. 

A: Unless service by the sheriff is requested, the court clerk will serve an order on the defendant by certified mail compelling the defendant to be in court on the day of the trial. Service may also be made by private process server; however, extra costs may apply. 

A: If the defendant has been properly served and does not appear in court, you will normally be entitled to a default judgment if you can prove your claim is valid. The judge will ask you enough questions about the case to establish the validity of your claim and then enter judgment in the amount you are entitled to have. If the defendant has not been properly served, you will not be entitled to default judgment, but you will be entitled to continue to try to properly serve the defendant again. This is called using “alias” (or substitute) process. 

A: All of the “post-judgment remedies” available to any party are available to the successful small claims party. If the defendant simply does not pay, you may execute on the defendant’s property, you may have a garnishment issued against the defendant’s assets or wages, and you may compel the defendant to come to court for a hearing on assets to determine what assets are available. 

A: Yes, at any time before or after your trial. 

A: When a person (the plaintiff) files a small claims case, the defendant has a right to assert claims against the plaintiff in the form of a counterclaim. If the counterclaim is filed properly and at least 72 hours prior to the time set for the defendant’s appearance, then the judge will try the counterclaim along with the original claim and give judgment in both. Counterclaims in Small Claims Court are also limited to a certain dollar amount. 

A: No. If you have a claim for $6,000 or less and want to use the regular civil docket, you are perfectly entitled to do so. 

A: Not normally.  

A: Yes, but such an appeal is an enormous burden because a record is not made by a Court Reporter of the testimony and exhibits presented.

Caution: The law the court must apply may be very complex even in Small Claims. You should make certain you are comfortable with what you must prove and how to do it before you represent yourself in any court hearing or trial. If you are unsure about proceeding with a lawsuit, contact an attorney.

A: A person does not have to be wealthy or elderly to do some serious thinking regarding an estate plan. If you own a home or a car or have a checking or savings account, you have an estate. Having a will or a trust allows you to decide who will receive your property rather than leaving that choice to state law. Having a will allows you to choose your personal representative. Without a will, the court could appoint someone as personal representative other than a person you would choose. Having a trust allows you to avoid the probate court system altogether if your trust is created and funded properly. If you have minor children you can name their guardian in your will or trust. Your selection of a guardian is not binding on the court, but the court will give strong consideration to your selection. Without a will or a trust, the court may appoint a guardian other than the person you would have chosen. 

A: If you die leaving a surviving spouse and children, your spouse takes one-half of your estate, and your children split the remaining one-half in equal shares. If you die leaving a surviving spouse and no children, your spouse takes one-half of your estate, and your parents share the remaining one-half. 

If you die single but have children, your children take your entire estate in equal shares. If you die single with no children, your parents take your entire estate. Oklahoma law provides for distribution of your estate in additional situations, all depending on the identity of your legal heirs. 

If your children are minors, your surviving spouse, in order to use their portion of your estate for their support or education, would either have to be appointed guardian of the children by the court or have someone else appointed, give a bond, make annual accountings to the court and obtain the court’s permission for many routine transactions. This will result in considerable expenses as well as legal difficulty.

A: A will is a written instrument by which you provide for the disposition of your property after your death. In Oklahoma, if you are of sound mind and 18 years or older, you may dispose of your property by will.

A: Under Oklahoma law, a married person may not completely exclude the surviving spouse. Oklahoma law allows the spouse to elect to take a certain portion of the estate despite the will. If your will does not name a child, or in some cases a grandchild, or indicate that the child or grandchild has been considered, then the child or grandchild may have certain rights to take a portion of your estate. Your lawyer can explain these restrictions and show you how to accomplish your desires. 

A: You may modify or revoke your will or revocable trust at any time. You should take steps to revise your will or trust whenever changes in the size or circumstances of your family or estate mean that your old will or trust no longer disposes of your property as you want. All changes, to be effective, must be made in strict conformity with the law. Any change made in a will or trust by erasure, in your handwriting or typed as an insertion is likely to be invalid. 

A: Unfortunately, “it depends” is the appropriate answer. You could have the cost of having an attorney prepare your will, but you may also have costs for talking to an attorney for help with estate planning, even if you do not prepare a will. With a will, you can include cost-saving provisions such as waiving the bond requirement for your personal representative as well as authorizing your personal representative to sell property and perform other functions without first obtaining permission from the court. However, other procedures exist which may allow the same results or more favorable results, whether or not you have a will.

If you have a will, your estate will be “probated” in court. If you do not have a will, your estate will be “administered” in court. Both procedures are governed by the Oklahoma Probate Code (Okla. Stat. title 58) and many of the procedures apply equally to probate and estate administration. The Probate Code provides several methods to probate or administer an estate, some of which can reduce costs if used appropriately.

An attorney with a working knowledge of wills, inheritance, probate and estate administration can provide guidance on minimizing probate or estate administration costs and achieving the desired results for distribution of your estate. 

A: No. Joint tenancy is a useful estate planning tool, but to rely solely on joint tenancy ownership for estate planning is generally a poor idea. Usually home and bank accounts are owned by married couples as joint tenants. Upon the death of the first joint tenant, the property passes to the survivor by law. The survivor becomes the sole owner of the property and should make additional provisions for distribution upon his or her death. If real property is held in joint tenancy, an affidavit must be filed in the county clerk’s records in order to terminate the joint tenancy. Your attorney can advise you on this procedure.

There are creditor hazards and tax hazards in holding property in joint tenancy as well as other possible complications and expenses.

Your attorney can advise you as to whether the use of joint tenancy is appropriate. Joint tenancy is simply not an adequate substitute for a will or a trust in many cases. Furthermore, if both joint tenants die simultaneously, both of their estates will require probate; although, in some instances, both estates can be probated or administered through one court action.

A: Using a will or trust form or computer program for estate planning is not recommended. A will or trust must be prepared within the legal technicalities prescribed by the law. These technicalities are for the protection of you and your heirs, and they must be observed. The proper drafting of a will or a trust requires the professional knowledge, skill and experience of a practicing lawyer. You may be charged on the basis of time spent in preparation of a will or a trust, or you may be charged a flat fee, depending on the situation. A few hours of an attorney’s time now will save your beneficiaries not only the costs of litigation over a poorly drawn will or trust but also the additional expense of a guardianship of your minor children. Your attorney will be glad to discuss the charge for services with you.

A: Under Oklahoma law, a will that is entirely written, dated and signed in your own handwriting, and which contains no typed or printed portion, is valid. The problems resulting from this type of will are not so much in what the person writing the will says as in what the person fails to say. Without the advice of an attorney, most people who prepare handwritten wills fail to include provisions that address the issue of a beneficiary who dies before the will maker, the naming of a personal representative and waiver of his bond, the source for payment of estate taxes and the specific powers the personal representative will have, as well as the problem of the simultaneous death of the will maker and a will beneficiary.

A: A living will is part of a document called an Advance Directive for Health Care. In the living will portion of such document, if you 1) have a terminal condition, 2) become persistently unconscious, or 3) have an end-stage condition. You may direct that your life not be extended by life-sustaining treatment. Your directions go into effect if your attending physician and another physician determine that you are no longer able to make decisions regarding your medical treatment. As part of this living will, you may also make an election whether you desire the artificial administration of food and water under these circumstances if you are unable to take food and water by mouth. 

A: A revocable or living trust is a written document providing for the management of your property which becomes effective while you are living, unlike a will which takes effect after your death. A trust is set up for a trustee to manage your property for your benefit during your lifetime or in the event of your incapacity. Ordinarily you serve as the sole trustee until you die or become incapacitated. After your death, the trust document will provide for your successor trustee to distribute any remaining property to those persons or entities you have chosen (just as in a will) or provide for the continued management of your property by that successor trustee for many years, with the ultimate distribution as you direct. The primary advantage of a revocable trust over a will is that upon your death, the administration of your estate in probate court is avoided, and the distribution of your property is governed by your trust outside of the probate court system. This normally results in a quicker and less costly distribution of your property to the people you have selected. In addition, a revocable trust is a private document which is not recorded at the courthouse or anywhere else. In this regard a trust is unlike a will which, if probated, normally requires a list of your property and its value to be public record at the courthouse. When a revocable trust is fully funded by conveying all of your property into your trust during your lifetime, no probate of your estate is required. Another advantage is that a trust can continue after your death, holding property for the benefit of a spouse, a child or another named beneficiary. This is especially useful in the event the spouse, child or other beneficiary is disabled or is receiving assistance from other sources. The trust cannot be continued indefinitely, but can be continued long enough to achieve many desired purposes. The same results can also be achieved by adding trust provisions to a will, but normally results in a delay in providing for the beneficiary since the will must first be probated.

A: Generally the cost to prepare a will is less than the cost of preparing a revocable or living trust. That is because a will requires no action on your part after it is signed and is simpler to create than a trust. On the other hand, a revocable trust is more complicated than a will because it involves the management of your property during your lifetime as well as its distribution after your death. In addition, a trust must be funded during your lifetime and this can require significant effort and paperwork. If you fail to transfer all property into your trust or you subsequently acquire property in your own name instead of the trust name, your estate will still have to be probated. Either a will or a trust can be used to transfer your property following your death.