Commercial Real Estate Leases

by Jon Austin

A commercial real estate lease is intended to capture the long-term relationship between a landlord and tenant, so it is important for both parties to ensure the lease rightly captures their intent. It is beyond the scope of this article to discuss every key provision within a lease. However, we want to point out a few terms both parties will often give extra attention to in the negotiation process.

1. Rent. Tenants need to ensure they understand whether the quoted rent amount is the total amount of rent due or merely the "base" rent amount. Many leases require the tenant to pay a base rent plus the tenant’s pro rata share of the landlord’s insurance, taxes and maintenance costs. It is important for both landlords and tenants to know how rent is calculated, whether it is subject to increases over the life of the lease, and then budget accordingly.
    
2. Commencement Date. This date is generally a trigger for the first payment of rent, but it also can lead to a possible default if either the landlord is unable to deliver the leased space or if the tenant does not take possession by this date. Therefore, both parties need to have a firm understanding of when this date occurs (especially if the date can occur within a certain range as opposed to a date certain) and the impact if someone is not ready by this time.
    
3. Use. The parties will often want to clarify on the front end what the tenant’s expected business will be. This is often an important term in a retail setting due to the competing nature of businesses in a shopping center, but it is still important in an office building as a landlord may want to manage its overall mix of tenants.   
    
4. Scope of Common Area Maintenance. The "common area" is that area within a building or complex that is generally not leasable, but rather is shared (or common) among all tenants and their customers (e.g., parking lots, hallways, restrooms, elevators, etc.). While the landlord is responsible for operating and maintaining the common area, it will also look to pass these costs through to the tenants. Both parties want to make sure the lease clearly defines what is included within this definition and how these costs are calculated on an annual basis.
    
5. Indemnification & Insurance. Unfortunately, people make mistakes and injuries happen. Therefore, it is important both parties have fairly allocated responsibility and risk, and have required sufficient insurance to be in place if needed.

As noted above, this list is not exhaustive and other factors (such as, breach/remedies, shopping center restrictions, and the ability of a party to assign the lease) may be more important than others depending on the circumstances, location, and parties involved.  

Whether one is landlord or tenant and regardless of the type of lease, both parties need to be mindful of the variety of issues at play in negotiating and drafting their lease and the impact these terms can have on the success of their business operations for years to come.

Business Guidelines - Actions Speak Louder than Words

by Brandon Baker

We are privileged with the opportunity to serve many privately-held businesses.  Often, the company’s organizational documents (such as an operating agreement for an LLC or bylaws for a corporation) provide good governance practices for the company. However, the actions of the owners and officers unintentionally stray from the terms of those documents.  In certain circumstances, such failures could result in a loss of the liability protection afforded by the company.  As the old saying goes, “actions speak louder than words.”  

We suggest the following guidelines for operating a privately-held business in a conscientious manner:
 

• The company’s officers should review the company’s organizational documents on a regular basis (at least annually), to ensure the company’s current operating practices, books, and records are consistent with the organizational documents.
   
• The company should have a separate bank account, titled in the name of the company and used solely for company business.
   
• Company funds should not be used for personal expenses, unless properly documented for repayment as one would do with a third party.  
   
• The company should maintain sufficient operating capital to conduct the company’s ordinary business activities.
   
• All agreements should be made in the company’s name, with the signature block noting the title of the individual signing on the company’s behalf.
   
• Any assets used for company purposes should be owned, leased, or otherwise properly titled in the company’s name.  
   
• The company should maintain sufficient insurance coverage for liability, casualty, workers' compensation, and other matters as appropriate for its business.
   
• The company’s officers should act in accordance with their fiduciary duty to the company’s owners.
   
• The company must stay current on taxes and required fees to government agencies.  Anyone conducting business in Oklahoma, whether it is a limited liability company, corporation, partnership, individual or otherwise, is now required to file an annual Business Activity Tax Return with the Oklahoma Tax Commission.  Generally, the tax is $25.00.  The Business Activity Tax, once paid, may be applied as a credit against certain taxes and fees, such as the annual fee paid to the Oklahoma Secretary of State by limited liability companies.

Each company is different and these recommendations may not apply to every company in every circumstance.  However, these suggestions will hopefully provide some helpful guidelines for the privately-held business operation.

Annual Maintenance for the Oklahoma LLC

by Brandon Baker

Limited liability companies, or “LLCs,” have become very common in the business marketplace.  One of the primary benefits of the LLC business entity, as opposed to the corporation or the limited partnership, is the LLC’s ease of operation.  However, “low maintenance” does not equal “no maintenance.”  Thus, Oklahoma LLC owners need to be attentive to certain annual maintenance requirements for their company.

Oklahoma LLCs, unlike corporations, are not required to pay annual franchise tax to the Oklahoma Tax Commission.  Instead, LLCs must file an Annual Certificate with the Oklahoma Secretary of State each year and pay a $25 annual fee.  The Annual Certificate is a simple form which recites the LLC’s name, states the street address of its principal place of business, and confirms that the LLC is an active business entity.  The Annual Certificate is due each year on the anniversary of the LLC’s creation (the date the Articles of Organization were originally filed with the Secretary of State).  

The process of filing the Annual Certificate is now conducted almost entirely through email and online filing.  The Secretary of State sends an annual reminder to the LLC’s email address of record prior to the anniversary date (usually two months in advance).  The annual reminder email contains a link, which the LLC’s owner or officer can use to file the Annual Certificate online.  

However, a surprisingly high number of LLCs fail to file an Annual Certificate each year.  If just one Annual Certificate is not filed in a timely manner, the LLC ceases to be in good standing under state law.  The loss of good standing prevents the LLC from filing lawsuits, filing documents with the Secretary of State (other than an Annual Certificate), and may hinder contractual business dealings, though it does not totally prevent them.  The good news is that the Secretary of State has streamlined the process for reinstating an inactive LLC.  An LLC can simply file an application for reinstatement, along with all past-due Annual Certificates, and payment of accrued annual fees.  

The Oklahoma LLC is an excellent choice for those looking to form a new business entity.  Though they are extremely user-friendly, Oklahoma LLCs do involve some ongoing annual maintenance.  Please feel free to contact our office if you have any questions or concerns about your current company, or if you are considering the formation of a new business entity.  

A Few “Best Practice” Resolutions for Businesses at Year-End

by Jon Austin

Just as we often spend time at the end of the year contemplating both the year behind us and the one before us, setting goals, reviewing accomplishments and so forth, the end of the year is also a good time to review similar items for any business. With that in mind, we offer the following non-exhaustive list of some items you may want to consider in your end-of-the-year business review.  

Limit Your Litigation Exposure. One of the effects of a bad economy is increased litigation. Studies have shown a majority of companies report being involved in ongoing litigation during the economic downturn, with contract obligations and employment issues topping the list. Although avoiding litigation may be impossible, you can control certain aspects. 
 

• Keep company assets separate. Business and personal assets and records should be kept separate and distinct. A company’s limited liability protection is easily lost by commingling personal and business assets.  
   
• Make sure contracts are in the company name. It is important that the proper person or entity (business vs. individual) be identified as the party to the contract. And, when you sign documents, be sure to identify your representative capacity when signing in behalf of a business (e.g., president, manager, etc.).  Otherwise, others can seek to impose personal liability upon you for obligations of the business.
   
• Implement and update a document retention policy. A policy governing the retention and destruction of old company documents is a good business practice. The policy needs to be prospective, objective, and rigorously followed to ensure documents are destroyed according to an established schedule and, otherwise, documents are retained according to the retention policy. If you become involved in litigation and your practice of destroying documents appears to be arbitrary and not according to a prescribed policy, courts will often presume the worst and may allow the other side to use it against you. Also remember, a company’s internal documents are not privileged – whatever you say, even in an e-mail or text message, could become public in a lawsuit. 

Know Your Contracts. Do you know when your lease expires?  Or when your biggest customer might start shopping for a lower price?  Entering into a contract is only the first step to ensuring the intended benefits are realized. A good practice is to keep a summary of the significant obligations and liabilities in every major contract. It’s also good to keep a contract calendar with all key dates on one calendar to ensure you do not inadvertently breach a contract or lose a time-limited contractual right. The end of the year is a great time to review and update your contract calendar.

Keep Things Current. Current organizational records can mean the difference between business-level liability and personal liability. We recommend updating organizational records on an annual basis, so the end of the year is a perfect reminder to review the organization’s records for the year. 

• In Oklahoma, limited liabilities companies must file an annual report with the Secretary of State and pay a $25 annual fee.  Corporations must file an annual franchise tax return with the Oklahoma Tax Commission.  
   
• Corporations, both for profit and non-profit, must also hold annual meetings in accordance with their bylaws, and minutes of the shareholder’s meeting and board of director’s meeting should be kept with the corporate record books. Although limited liability companies do not have the same requirement, we believe it is best practice for the owners to have similar documentation.

Non-profit corporations must generally follow the same requirements of any other corporation under Oklahoma law, including keeping board of director minutes with the corporate records. Most Oklahoma non-profits are also required to file and renew annually the Registration Statement of Charitable Organization with the Secretary of State. 

Public charities must also file an annual information return (Form 990) with the IRS.  The last several years have seen substantial changes to the Form 990, both in terms of which version is required (often depending on revenue and assets) and in terms of what information the organization must provide. The most significant change has been the transition of the Form 990 from a reporting form with mostly “fill in the box” type responses to an organizational governance form that relies on extensive narrative responses and seeks to move away from a one-size-fits-all approach. Certain governance practices and policies are now encouraged through their inclusion on the Form 990. Implementing new governance practices now should result in less scrutiny later by the IRS. Private foundations are still required to file Form 990-PF with the IRS, which is a modified version of Form 990 tailored for the distinctive characteristics associated with private foundations.

One best practice is for the organization to require officers and board members to annually review and agree to a conflict of interest policy. A good conflict of interest policy will consider, among other things, actual and perceived conflicts between the organization and its directors and employees, especially with respect to financial considerations such as salaries, contracts or purchases that benefit directors or employees, leases between the organization and a director or employee, and benefits provided to directors or employees who are related through family, marriage, or business interests. 

We have had the privilege of helping establish and counsel many businesses and non-profit organizations. If you have questions about anything discussed here or if you would like our assistance with an annual review of your business practices, we would be pleased to help. 

A Closer Look at the Private Foundation

by Jon Austin

In 1936 Henry Ford’s son Edsel started and funded the Ford Foundation, now one of the most famous private foundations in the world, to promote philanthropic goals shared by the family. The Ford Foundation has been actively funding the family’s charitable goals for seventy-five years and at the end of 2009 had over $10 billion in assets. In the world of private foundations, the Ford Foundation is the exception; there are over 120,000 private foundations in the United States and approximately 75% of them have less than $10 million in assets. But the purposes and benefits of private foundations are uniform to all, from the smallest to the largest.

Private foundations have a number of useful purposes and you don’t have to be worth billions for it to be a valuable planning tool. One of the most common reasons people create private foundations is tax reduction.  There are other significant benefits, including:

• Promoting and directing long-term charitable giving for certain specified purposes; and
• Creating a family purpose that will provide common ground and common goals to guide future giving efforts.

Private foundations are only one of many methods commonly used to fund charitable purposes and reduce taxes. However, private foundations generally have three distinctive characteristics:

• Most or all of the funding comes from a single source, usually a family or business, rather than from the general public;
• Distributions from the foundation are typically in the form of grants to public charities or government entities, rather than the foundation directly operating charitable programs; and
• Grants and administrative expenses come out of the foundation’s endowment or investment income of the endowment, rather than through a fundraising program.

Private foundations are not without their trade-offs. Like most other planning techniques with significant tax benefits, private foundations are subject to a number of complex and sometimes burdensome rules.  These rules are intended to prevent “abuse” of the benefits and ensure a private foundation is managed consistently with the charitable purpose of its creation. There are rules associated with funding the foundation, including restrictions on how much stock or other ownership interest a foundation can hold in a business, and percentage caps on the amount deductible as a charitable contribution. There are also rules regarding the ongoing operation of a private foundation, such as the requirements the foundation generally distribute at least five percent of the foundation’s net investment assets each year, make annual filings with the IRS and pay a small tax on certain investment income.  There are also substantial due diligence and conflict of interest requirements the board must adhere to. Particularly relevant to many business owners are the self-dealing rules that impose severe limitations on business transactions (e.g., selling, leasing, etc.) between a foundation and related parties.

The private foundation is not, however, the only way to reach many common charitable goals. Another option, the donor advised fund, operates in much the same manner but is generally easier and less expensive to set-up. The trade-off is less control over the assets and the long-term direction of the giving. And for many people, other more common gifting and estate planning techniques will accomplish their goals without the complexity often associated with a private foundation. But for people with a real philanthropic passion, or people with a potential estate tax concern, the private foundation is a worthwhile option to consider.

Our firm is routinely approached by persons with charitable intentions to assist them in evaluating the alternative means by which their charitable intentions might best be fulfilled, including the possibility of setting-up private foundations.  We are honored to contribute in this important aspect of planning and gifting. Whether you are taking the first step of exploring the options or you are working to implement a complex charitable gifting plan, we would consider it a privilege to help. 

Do You Need an Advance Directive

by Karla McAlister

An Associated Press-LifeGoesStrong.com poll found that sixty –four percent of boomers - born between 1946 and 1964 – say they don’t have a health care proxy or living will. Many people stated they feel healthy and that death and dying is not on their minds. However, the reality of death is inevitable for all of us and none of us have a crystal ball to tell us when or how we will die. Thinking about aging and possible end of life situations allows you to decide what types of care should be provided to you or withheld if you are unable to make and communicate your own decisions at that future point in time.  Documenting your wishes concerning end of life care is a comforting gift for your family as they may need to make those decisions in the future for you and, if so, they will be a able to do so with the assurance they are carrying out your wishes. It lessens the anxiety, possible guilt and potential conflict between family members if you have told your family your wishes and your decisions are stated clearly in an Advance Directive for Healthcare. 

Oklahoma's Advance Directive for Healthcare allows you, if you are 18 years of age or older, to inform physicians and others of your wishes concerning life-sustaining treatment. This document evidences the patient’s exercise of their constitutional right of self-determination, allowing them to state when they believe enough medical intervention has occurred and they want to be allowed to die. If a patient authorizes or directs the withholding or withdrawal of life sustaining treatment such as resuscitation and use of respirators, it does not prevent healthcare professionals from providing the patient pain relief and other forms of comfort care (palliative care).  And, if the patient is no longer taking nutrition and hydration (eating and drinking), the Oklahoma law requires separate, explicit decisions concerning withholding or withdrawing artificial administration of food and water (nutrition and/or hydration provided intravenously). Each person can decide if they would want those treatments provided or withdrawn.  The Directive does not become operative unless you are diagnosed by two physicians to be in a terminal condition, a persistently unconscious condition, or an end-stage condition and, then, only if you are unable to make and communicate these decisions for yourself. The Advance Directive can also be used to donate one’s body or specified organs for transplantation, research or education.

The Advance Directive also allows you to appoint a Health Care Proxy to make decisions in your behalf. With the advances in healthcare it is possible to keep a dying person alive for days, weeks, months or even years with medical intervention. After you complete an Advance Directive, you may revoke it in whole or in part at any time and in any manner. A revocation is effective upon your communication to your attending physician or other care provider or a witness to the revocation. We advise clients to give copies of the Advance Directive to the persons they appoint as proxies and also to their doctors. The signed, original Advance Directive needs to be kept with your important documents but a copy should be handy to provide to a healthcare provider if you have a sudden health crisis. Your family should know where to quickly locate the document.  In order to assist our clients and their families in times of health emergencies, we recommend our clients inform us of the location of all their important legal documents, including their Advance Directive, so that we are prepared to assist their family and surrogate decision makers at those times. 

If you signed a Directive to Physicians or other Advance Directive for Healthcare under Oklahoma law prior to 2006, we recommend you consider executing the new Advance Directive because of additional options under the existing law. When we assist people with their estate planning we often prepare an Advance Directive for Healthcare and we also recommend a Healthcare Power of Attorney; the former deals with the end of life decisions as explained above and the latter is used to deal more generally with health and personal care decisions which might arise at any point in one’s life due to injury or illness and, in those situations, to delegate authority to an appointed agent to make those decisions for you if you do not have the capacity to do so for yourself.

Trust Funding

by Karla McAlister

If you have a revocable trust as part of your personal estate planning, with an objective of avoiding court-supervised estate administration at your death (probate), this is your annual reminder that if you have not attended to the funding of your revocable trust your estate may have to go through court-supervised probate following your death.  

When we meet with our estate planning clients to sign their estate planning documents, we discuss the plan which their documents will carry out at the time of their future death.  We discuss trust funding with our clients who have chosen to use a revocable trust, informing them of the mechanics for changing ownership of appropriate assets to trust ownership (as well as alternative methods for succession of ownership) and reminding them we will help if they want our assistance with asset ownership changes, beneficiary designations, ownership succession documents for business interests, etc. Even so, each year we have clients who die and, as their family begins to take care of the necessary legal and tax matters following their death, the family is dismayed to find there is an asset which is not in the trust and for which no alternative arrangements have been made for the transfer of ownership without court-supervised administration.  

We can be as involved as you want us to be. Many choose to complete their own transfers and transfer on death arrangements in order to avoid the cost associated with the attorney being involved. That is terrific if you follow through and actually complete the transfers.  Sometimes clients transfer what they own currently but forget to implement similar ownership and transfer on death arrangements as the composition of their assets change over time, including the acquisition of new assets by purchase, gift or inheritance. We recommend you examine your financial statement annually and confirm the ownership of each asset. We have found it very effective to work with our clients’ tax accountants to use the process of preparing their annual income tax returns as a convenient time to prepare or update a personal balance sheet and confirm ownership of all assets. 

You may recall that probate is the court-supervised administration for the estate of a deceased person. Most of the probates we are currently handling are for people who were not our estate planning clients. Some of them did have a trust yet simply failed to transfer an asset to the trust.  A number of them are for people with Oklahoma mineral interests (what many in Oklahoma refer to as “royalty”) that were still titled in the name of the now deceased owner.  To be properly transferred in trust, title to minerals must be transferred by mineral deeds.  Whether or not minerals are producing now, it is worth the effort to find the original deed or probate decree whereby ownership of the minerals was first acquired and use that information to prepare appropriate legal documents (deed, assignment, etc. depending upon the nature of the interest owned) to transfer title to the trust. The other option is to let your family deal with them after you die, which may entail a time consuming and costly probate.  Another common issue is a bank or brokerage account which was never put into the trust. It is perfectly acceptable to leave one account out of the trust, either checking or savings, and at times it may actually be helpful. However, you must make sure appropriate alternative arrangements are made for transfer of ownership at your death (alternative arrangements such as payable on death designations, joint and survivor ownership, etc.). Otherwise the bank may appropriately require your family to initiate a “probate” in the district court in order for the bank to be able to work with a court-appointed legal representative. It is a shame to have to file a probate for a small account with a bank or other financial institution.  Another common mistake is overlooking beneficiary designations and/or successor owner arrangements for IRA’s, pensions and profit-sharing plans, annuities, life insurance and other death benefits. If a beneficiary is not named, it is generally assumed such financial interests are payable to the “the estate of” the deceased owner, which requires a probate and may also have unintended adverse tax consequences.

Regarding the issue of banking, it has come to our attention that many banks are extremely uncooperative about receiving checks written as payable to an individual for deposit into the trust account of the payee after the payee’s death.  For example, Mom dies and she has everything in her Trust, including all bank accounts. Son is successor trustee and he is closing down Mom’s home. He gets rebates and refund checks from various utilities and other vendors for account deposits and the unearned portion of other payments made by Mom prior to her death. The rebate and refund checks are all made out to Mom. The bank refuses to deposit them or cash them because they are not made out to the Trust of Mom, which is the owner of the account with the bank. The vendors that wrote the checks refuse to reissue to the Trust because the Trust did not make the initial deposit or other payment; Mom was the customer. Sometimes we have been able to convince the vendor to issue their check to the trustee or convince the bank to go ahead and deposit the check made payable to Mom.  However, to avoid this unintended problem you might leave one small account in your name to take care of such issues after death. However, if you do, make sure such an account is payable on your death (POD) asdiscussed above and do not close it out until all such “stray” deposits have been received and deposited.

If you own property in another State it is very important to have a post-mortem ownership succession strategy in place, whether the strategy is to transfer title to the out of state property into your trust or implementation of an alternative ownership succession strategy. If you do not integrate out of state property in the current implementation of your estate plan, upon your death it may be necessary to have a probate in another jurisdiction to clear the title to the out of state property for the control and benefit of your intended beneficiaries.

If a probate is needed, it is not the end of the world. After over twenty-five years serving clients out of our Edmond law firm and with a staff of professionals having over one-hundred years of cumulative experience, we are both prepared and pleased to help clients complete whatever post-mortem procedures are necessary, as efficiently as possible. We do give this annual warning to those who have thought ahead and have completed estate planning documents with the goal of avoiding probate. Do not fail to attend to the proper funding of your trust, otherwise your loved ones may be surprised when a probate is required.  

Estate Planning FAQs

What is the difference among a Personal Representative, Trustee, Agent, Guardian and Proxy?

The Personal Representative, also known as an Executor, settles your estate if a court-supervised probate is required. You can appoint your Personal Representative in your Will. 

The Trustee is the person or entity who manages assets owned by your trust and distributes the trust fund to the named beneficiaries according to the dispositive provisions of the trust. A husband and wife who create a trust often appoint themselves as the initial trustees and their children as their successor trustees. Instead of appointing their children as successor trustees, some clients opt to appoint an entity as their successor trustee, such as a trust company.  

An Agent is the person you appoint in your Power of Attorney document to make decisions on your behalf if you are incapacitated or otherwise cannot conduct your business. Through the Health Care Power of Attorney, our clients appoint an Agent to make decisions regarding medical and other personal care matters. Through the Durable Power of Attorney, our clients appoint an Agent to make decisions regarding legal, property, and financial matters.  If a third party requires court authorization, the Guardian is the person you nominate, or suggest, the court to appoint.  Most often, a client selects the same individual to be his or her Agent and Guardian. 

A Proxy is the individual you nominate under your Advance Directive to ensure your end-of-life decisions are fulfilled.  

What do I need to do if my spouse becomes incapacitated? 

If your spouse’s mental or physical condition is rapidly declining such that he or she is unable to make financial and medical decisions for himself or herself, you need to take steps to protect your spouse.  You may need to obtain letters from your spouse’s physicians to document the incapacity.  These letters accompanied by an affidavit will allow you to notify third parties that your spouse is no longer able to serve in a fiduciary role as agent or trustee.  Also, if your spouse has a power of attorney triggered upon his or her incapacity, you will need to present the physicians’ letters and the power of attorney to third parties in order to act as your spouse’s agent. If your spouse does not have a power of attorney document, it may be necessary for you to seek a court-appointed guardianship to care for your spouse. 

Our married clients commonly have estate plans in which each spouse is authorized to act for the other (as agent, trustee, and health care proxy) without having to document their spouse's incapacity.  Many single clients have similar delegations of fiduciary authority to other adults (children, parents, siblings, or trusted friends).  Planning for your incapacity, or for your assistance to loved ones who become incapacitated, is important and can be done in many creative ways to ensure a person's needs are met in the best way possible. 

What do I need to do when my spouse dies?

Every person's affairs are different as their life comes to an end.  Although a long list of detailed tasks could be compiled in advance, much of it would be unnecessarily confusing or inapplicable when the time comes for its use.  The best advice is two-fold.  First, consult with your attorney, accountant, doctor, and financial advisor to have good estate planning in place and keep it up to date with annual plan reviews.  Then, when a death occurs or seems imminent, convene a meeting of those advisors to confirm the planning in place and the appropriate actions to take after considering the circumstances at the time.  Each person has their own unique circumstances with a need for a unique plan, unique in both implementation and in execution.  Plan your work, then work your plan. 

Can I transfer real property to my trust if it is subject to a mortgage?  What if I need to refinance my home?

Federal law permits individuals to transfer their homestead property to a revocable trust for estate planning purposes without triggering the due-on-sale clause in a mortgage agreement.  This law only applies to your homestead property – it does not apply to rental properties or vacation homes. If you need to refinance your home, most likely the mortgage company will require you transfer the home out of your trust to yourself individually.  After you have refinanced, it is imperative for you to deed your home back into your trust to avoid probate and ensure your home passes according to the terms of your trust. You can transfer other real property subject to a mortgage to your revocable trust, but you will need to coordinate with the mortgage company to avoid triggering the due-on-sale clause.

What do I need to transfer to my trust?

In general, all assets requiring interaction with a third party in order to transfer the asset should be owned by your trust if you want the terms of the trust to govern the disposition of the asset upon your death or incapacity. You should consider transferring the following assets to your trust: real estate, automobiles, savings accounts, checking accounts, certificates of deposit, money market accounts, stocks, bonds, interests in general or limited partnerships, interests in limited liability companies, accounts receivable, notes receivable, mineral interests, royalty interests, boats, and other recreational vehicles.  Some of these assets may pass by beneficiary designation or joint ownership if they are not transferred to your trust. You should review your beneficiary designations to determine if your trust should be listed as the primary or contingent beneficiary. 

What should not or might not be transferred to my trust?

Retirement accounts, such as IRAs and 401(k)s, must be owned by individuals. A trust cannot own these types of assets. However, trusts can be the designated beneficiaries of such assets. Take caution though, because your trust should not be the designated beneficiary of your retirement accounts unless your trust contains certain "qualifying" provisions. 

Retirement accounts are unique assets because they receive special tax deferral treatment. To take advantage of this special tax treatment, contact your financial institution and make sure you have primary and contingent beneficiary designations in place for all of your retirement accounts. 

Some clients are uncomfortable with the thought of relying on beneficiary designations to transfer their retirement accounts to their beneficiaries. This discomfort is understandable because retirement accounts often comprise the bulk of many clients’ estates. If you prefer your retirement accounts pass to your beneficiaries according to the distribution provisions of your trust instead of providing complete control to your named beneficiaries, please contact us before designating your trust as the primary or contingent beneficiary of your retirement account. We will review your trust to make sure it includes the provisions required to “qualify” the trust for tax deferral. 

I’m concerned about my child’s marriage, substance abuse, financial management, etc.  How can I protect my child’s inheritance?

This is a concern shared by many clients. If your estate plan provides your children their inheritance outright, there is not much you can do to protect them from themselves or their creditors once their inheritance is distributed. At your death, if your trust distributes outright, your trustee must distribute your assets to your beneficiaries as your trust directs. Unless your trust specifically provides otherwise, your trustee will not have discretion to withhold assets from your beneficiaries, even if a beneficiary is a drug addict, in prison, filing for bankruptcy, or going through a divorce.

If this possibility concerns you, the best way to protect your child's inheritance is to set up a trust for their share. Your child's trust can authorize the trustee to use his or her discretion in deciding whether or not to distribute trust funds to your child. Because the trust fund can only be used at the discretion of the trustee and because the child, as beneficiary, cannot force a distribution, creditors cannot reach the child’s trust fund and the child's spouse cannot claim an interest in the trust fund as marital property. 

Our address changed.  Do we need to update our documents?

Your estate planning documents are not invalid because your address and phone number have changed. However, accurate contact information may become important when you provide these documents to third parties. For example, your Health Care Power of Attorney provides the name, address, and telephone number of your Agent, the person you have selected to make health care decisions on your behalf if you are incapacitated and unable to do so. In an emergency situation, your medical care providers should have accurate contact information on file so they will be able to contact your Health Care Agent as quickly and easily as possible. 

What is my trust’s tax ID number?

For individual revocable trusts, the tax ID number for the trust is the social security number of the settlor, or creator, of the trust.  For joint revocable trusts, the trust's tax ID number is usually the social security number of the primary reporting spouse. However, if the initial trustees of your revocable trust are no longer trustees, new identification numbers should be used to report trust income. You can file an SS-4 with the IRS to request a trust identification number. 

Food for Thought

by Lloyd and Karla McAlister

In this holiday season, much thought is given to food.  Here is some food for thought, for the good health of your personal estate planning ... and with no calories!

1.    Proper funding of a revocable trust.  Primarily the tool of the wealthy in the past, revocable trusts have become a common document in many personal estate plans today.  Revocable trusts can be crafted to accomplish many planning objectives.  However, avoiding the need for a court to appoint and oversee a guardian to manage ones financial affairs in the event of incapacity and avoiding the court supervised administration of ones estate after death, called probate, are by far the most frequent reasons for having a revocable trust in ones estate plan.  If you have a revocable trust for the purpose of avoiding the need for guardianship and/or probate, you should review every asset in which you have any interest to confirm each and every asset is properly integrated in your overall plan through ownership and/or pay on death provisions.  Although most assets can and should properly be owned by your revocable trust, there are very important exceptions.  So you should review your estate plan at least annually in order to confirm every asset is properly integrated in your plan to accomplish all your planning objectives, both non-tax objectives, such as probate avoidance, and tax objectives.  An annual review might be done at years end, with each newyear serving as a reminder for that review, or in conjunction with the preparation of ones annual income tax returns when you are handling your financial information for tax purposes anyway.

2.    Beneficiary designations, payable on death (POD) and transfer on death (TOD) accounts.  It is common for certain types of assets to pass from the owner to the person(s) of their choice at the owners death by a contractual designation, rather than by the owners Will or trust.  For example, life insurance and certain types of retirement benefits often pass to beneficiaries designated by the owner.  It is, therefore, critical for you to review any such arrangements in light of your overall estate plan to be certain those assets and benefits will pass in the event of your death to the person(s) or charities you intend.  Since a well drafted Will or trust can consider and provide for many contingent events, such as the unexpected death of the person(s) you intend to be the beneficiaries of your estate, it may be preferable to have such assets arranged so that the provisions of your Will or trust will control the disposition rather than relying upon beneficiary designations and payable/transfer on death arrangements.

3.    Deaths, including the unexpected death of a beneficiary.  In planning ones estate, thoughtful consideration is given to formulating a plan which is to be carried out in the event of your death.  However, all too often estate plans fail to consider the death of another person which can be critical to the success of your plan, your beneficiary.  What if the person(s) and/or charities you intend to benefit are deceased or incapacitated (or no longer in existence, as to charity) at the time of your death?  Or, what if they are alive at your death, but suffer death or incapacity (or legally dissolve, as to a charity) shortly after your death?  All too often a person will designate their spouse or adult child(ren) to receive some or all of their property, only to have one or more of those persons die or become incapacitated at points in time which were unexpected and cause unintended results such as a probate where probate was intended to be avoided, or estate taxes which could have been avoided, or property passing to persons who were not intended to benefit (such as unintended benefit or control passing to the spouse or even the ex-spouse of a child).  You should give careful thought to the possibility of your intended beneficiaries not being in existence, as you anticipate, at your death and, if that were the case, how you would prefer for your estate plan to operate in those alternative events.

4.    Family harmony and the family fiduciary.  Each of the five legal documents in a basic estate plan include the appointment of a fiduciary (Will - personal representative; trust - trustee; power of attorney - agent; advance directive - proxy).  The appointed fiduciary is delegated the legal authority to carry out the duties assigned to them, such as a trustee managing trust assets or a healthcare agent giving instructions to medical personnel.  Although family members, such as a spouse, parent or adult children, are logical candidates due to the intimacy of the relationship and their personal interest in the responsibilities to be undertaken, you should be mindful of the potential for family disharmony which can result from appointing family members.  It might make sense to involve a corporate fiduciary (a corporation whose business it is to handle such fiduciary matters, for a fee) or trusted friends who have the professional skills to handle such responsibilities with objectivity, either along with family members or alone.  In instances where family members are clearly the preference, which will undoubtedly continue to be the majority, careful consideration should be given to making those decisions and structuring such arrangements in the way which is believed will foster family harmony and not fuel the flames of conflict and disharmony.  Since there is no one way which is best, and people and circumstances change over time, you should review the fiduciaries named in your documents at least annually in order to determine whether any changes need to be made, either with the persons named or the guidelines for their performance of the delegated duties.

Estate Planning Toolkit

by Karla McAlister

Only about half of Americans have a Will according to a recent Forbes magazine article. Most people procrastinate because they do not want to actually think about what will happen when they die. It is important to plan and to make decisions or the state will make the decisions for you. State law directs how your assets are distributed if you die without a Will.  The distribution depends on whether you are married or single and whether you have children. The distribution, according to state law may not be anything you would have chosen but it is what your family must deal with if you have not planned.  It is especially important if you have minor children to make plans for the preservation of your assets to care for them. Provisions for a contingent trust for your children can be included in a Will or in a separate revocable trust document. 

 There are many different planning options and the proper option depends on your family situation, your assets and the complexity of your particular wishes.  Taking the time to work through and complete a planning questionnaire helps ensure accurate advice about the options for your situation. Sometimes the right answer is a revocable trust which avoids probateand provides detailed instruction for the trustee to manage your assets for your family. Other times the proper planning may be a transfer on death deed and placing payable on death beneficiaries on your bank accounts.  

Planning gives peace of mind:

• By specifying who gets what—especially items with emotional significance—you head off disputes.
• By choosing an executor and trustee if you use a trust to administer your estate, you put someone you trust in charge.
• By naming a guardian for your young children (under 18), you make it possible for the person you choose to raise your children if for some reason you and the other parent couldn’t. If you don’t make your preference known in your will (or in other legally effective document) a judge would have to choose a guardian without any knowledge of your wishes.

Your life insurance and retirement accounts, traditional IRA, Roth IRA, and 401K are distributed upon your death according to the beneficiary designation, not by the provisions of your Will or Trust. The law is complicated and it is important to discuss those beneficiary designations with an experienced advisor.
 

In addition to the basic estate planning tools of a Will and Trust, a Durable Power of Attorney, which names a person who can act in your behalf regarding your property, is a valuable document. This tool gives the agent the power to act on your behalf if you are incapacitated and need assistance or if you are unavailable to act.  If you have a Durable Power of Attorney you will probably avoid the need to have a Guardian appointed if you unable to handle your own affairs. This avoids the cost and time associated with guardianship proceedings. 
 

A Healthcare Power of Attorney allows the agent named to make healthcare decisions for you, if you cannot make them. It is useful if you are injured or incapacitated and unable to make healthcare decisions. An additional healthcare document is the Advance Directive for Healthcare that gives instructions to your physicians on end of life matters. It also names a proxy who can make decisions if you are not able to make them.  It is essential in all of these documents to name people you trust as the agents, proxies, trustees, and personal representatives. They have great power but it also gives you great flexibility and avoids court supervisions of your affairs. 

Dispelling the Myth that Estate Planning is for Old People

by Cody Jones

• “I/we don’t have enough assets to have a trust.”
• “I won’t need an estate plan until I’m older.”
• “I/we have too much debt for an estate plan.”
• “I just want to know who will take care of my kids if I die.”

I often hear these responses when the twenty- and thirty-somethings I meet discover I’m an estate planning attorney. Although we’re told to plan for the worst and hope for the best, that advice rarely translates into preparing for our incapacity or death.  Instead, our time is spent focusing on careers, finances, homes, families, and other adventures. As a thirty-something, I too am often guilty of forgetting my days are numbered, hoping I’ll have plenty of time to plan for the not-so-fun “adult” decisions of life.  In doing so, we disadvantage our loved ones by leaving them to pick up the pieces without any foresight from us. Plus, we sacrifice the advantages of planning ahead. 

1. Death is guaranteed, and incapacity is likely for all of us - no matter our age.  If you have experienced the loss or incapacity of someone you love, you know it is difficult.  We seldom think clearly in times of great tragedy. Planning ahead for such events can prevent additional stress in already stressful times. Such plans may include nominating someone you trust to care for you if you are incapacitated and documenting end-of-life decisions you would make if you were able.  Nominating an agent or proxy for your health care may also prevent the need for a costly court-supervised guardianship. 
   
    
2. Not planning ahead can create confusion.  Upon your death or incapacity, your loved ones will have heightened emotions, and each will react to grief in a different and personal way.  One of the most sensitive questions that may be asked is who will take care of your minor children or other dependents. This may be a difficult question for you to answer, but it is even more difficult for others to answer when you cannot.  Discussing the nomination of a guardian for your minor children or other dependents with your spouse and loved ones while you have the ability to express your reasoning and consider their input can help avoid controversy over an already difficult decision.  Nominating a guardian helps provide a smooth transition for your children or other dependents and their caregivers. 
   
    
3. Planning ahead can make planning later easier. Just as a football team is better prepared for the big game if the coach has a game plan, you can be more prepared for managing your estate as it increases in value if you create the framework from the beginning. Part of this framework may include a revocable trust that outlines how your assets may be used upon your incapacity and controls the distribution of your assets upon your death.  You don’t need an abundance of assets to justify having a trust.  If you have assets without beneficiary designations, such as a vehicle and a house, preparing a trust may be prudent.  Even if you have debt associated with an asset, such as a mortgage, the equity you own is an asset of your estate.  If you die and the legal ownership of the asset is trapped in your name, your loved ones will likely need to go through a court-supervised probate to access the value of the asset. A probate is avoidable if you properly utilize a revocable trust. Creating a trust to own your assets as you acquire them throughout your life can be less time-consuming and less expensive than implementing the same planning with a lifetime’s accumulation of assets later in life.  With a trust already prepared, you can simply buy an asset in the name of your trust at the time of purchase and rest in the assurance the asset will be controlled by the trust upon your death or incapacity. 
   
    
4. A plan eases the impact of unexpected circumstances.  A revocable trust also provides a plan for unanticipated situations that joint ownership with rights of survivorship cannot address. Joint ownership only works well if at least one of the owners survives and has capacity.  If both you and your spouse die or become incapacitated simultaneously, a revocable trust contains provisions to address such circumstances.  Similarly, after your death if a beneficiary of your trust unexpectedly suffers from substance abuse or develops a disability, the trust can provide protections to avoid misuse or exhaustion of the trust funds which outright ownership cannot avoid.

Unexpected circumstances do not have an age limit.  Take time today to look at your family situation and personal assets. Who will care for your children if you pass away?  Who will care for you if you are incapacitated? What will happen to your assets upon your death or incapacity?  If you don’t have answers to these questions, or if you have adult children who cannot answer these questions for themselves, make an appointment so we can help you plan ahead and provide everyone certainty and peace of mind.

A Year-End Check-Up!

by Lloyd McAlister

Year’s end or the beginning of a new year, whichever you prefer, is an excellent time to get in the habit of checking your important personal paperwork – documents that are legally and financially important for you and your family.  So, consider taking an hour or so to do the following paper check-up:

1. Locate your documents!  Isn’t it amazing how many times we need some piece of paperwork and aren’t sure where to look for it? If you can’t relate to that problem, move on to #2!   If you’ve experienced that problem, though, you know it is a good idea to gather all your important records.  
    
2. Confirm the documentation you have! Your important records might include: military service and discharge papers; retirement plan papers; insurance policies; documents evidencing your ownership of all your assets, including vehicle titles, financial account statements, deeds for land and minerals, ownership records for assets received by gift or inheritance, trust papers for any interests you have in existing trusts, and so on.  And, last but by no means unimportant, your estate planning documents, including your last will and testament, your revocable trust, your durable power of attorney, your healthcare power of attorney (for general health and personal care decisions), your advance directive for healthcare (for end of life health decisions) and your consent for your attorney to communicate with your fiduciaries.  
    
3. Confirm you have the necessary signed, original documents!  In most of our business and personal matters it is acceptable to simply have a copy of documentation, rather than a signed and dated original document.  This is so either because we aren’t the party responsible for possession of an original or the original document is not necessary.  However, as you well know, it can be very important to have the original paperwork proving ownership of certain types of assets, either in order to transfer ownership to a new owner or in order to establish our own ownership.  Likewise, original estate planning documents, properly executed with your signature and, if required, the signatures of witnesses and/or a notary public, can be critical in carrying out plans and instructions in the event of your incapacity or death.  
    
4. Confirm your documents are current!  Have you ever felt time was passing quickly?  The speed of time passing seems especially real when we notice how “old” something has gotten without our notice.  For example, do you remember the date you did your estate planning documents (Will, trust, powers of attorney, advance directive for healthcare, etc.)?  Have things changed since then?  Do your documents still work the way you originally intended and, if so, is that still how you want things to happen?  Our clients regularly call upon us to meet with them and review their documents in order to assess whether any updating is needed or desirable.  Although this may seem inconvenient and does involve time and expense, the cost at present can be very small in comparison to the problems and costs which can be caused by having outdated documents which are no longer adequate or appropriate for the person’s situation.
    

My planning check-up:

• What documents do I have?  
• And which are signed originals?
• Will    
• Trust    
• Durable Power of Attorney    
• Healthcare Power of Attorney    
• Advance Directive for Healthcare
• Where are my documents located?
• Are my documents current?

A Word About Words

by Lloyd McAlister

Mrs. Jones’ attorney: “Mrs. Jones, your father’s life insurance is taxable and at an estate tax rate of forty percent.”

Mrs. Jones: “But I didn’t think my father’s insurance was in his estate!”

Mrs. Jones’ attorney: “The life insurance your father owned is not part of his ‘probate estate’ but it is a part of his ‘gross estate’ for estate tax purposes.”

Legal terminology can be confusing, causing people to misunderstand important legal and financial consequences.  Few legal terms create more confusion than the word “estate” and the variety of uses for the word which have different legal and tax implications.

When a person dies, we often speak of their “estate,” usually referring to the property and legal rights the deceased person owned at the time of their death.  However, sometimes we mean something narrower in meaning, with a more specific application.  For example, we might be talking about the “estate tax” due as a result of the person’s death, in which case we might use the word estate to refer to their “taxable estate.”  However, technically, to arrive at one’s “taxable estate” we must start with their “gross estate” and deduct allowable deductions.  Now, what at first might have seemed somewhat simple becomes more confusing.  

When referring to one’s estate, we might also be talking about their “probate estate.”  Again, what might seem simple can become quite confusing because we referred to “taxable estate” and “gross estate” above, yet what comprises one’s “probate estate” might be quite different than those other terms used to refer to tax matters.  If a person dies owning property titled in their name without valid transfer on death successor owner arrangements, the disposition of that property after the owner’s death is technically subject to the administration of such property by the “probate court.”  The probate court determines:  what property fits in that category (and, consequently, is subject to the jurisdiction of the probate court), whether there was a valid last will and testament of the deceased person which disposes of such property and, if no valid will exists which completely disposes of the property, the disposition of the deceased person’s property according to state law (called the laws of “descent and distribution”).

Although all the property in a deceased person’s probate estate might also be in their gross estate, it will not necessarily all be in their taxable estate due to the “allowable deductions” which are subtracted from the gross estate to arrive at the taxable estate, deductions such as the marital deduction for property passing to a surviving spouse or the charitable deduction for property passing to a charity.  Similarly, it is entirely possible some or even all the deceased person’s property is in that person’s “gross estate” (again, using the term in its technical sense to refer to the gross estate for federal estate tax purposes) yet little or none of it is in their “probate estate” because the ownership of the property was such that there was no need for a probate court to determine the lawful, successor owners.  The very common use of revocable trusts (also referred to alternatively as living trusts, inter vivos trusts, loving trusts, etc.) is an excellent example; a person might establish the ownership of some or even all their property in the name of the trustee of their revocable trust in order to avoid the court-supervised administration of their estate, a legal process called “probate.” By virtue of the legal fact that the client, now deceased, did not hold the title in their individual name but rather held title in their name (or someone else’s name) as a trustee of their trust, there is nothing to probate (nothing for the probate court to administer); the successor trustee named in the deceased person’s trust merely needs to accept or confirm their appointment as trustee.  Since the property in one’s revocable trust is subject to the “estate tax” it is included in their “gross estate” and, possibly, their “taxable estate” even though such property is not in their “probate estate.”  In fact, the deceased person may have planned their “estate” so that there will not be a “probate estate” and, consequently, no need for a court-supervised probate proceeding.

So, if you speak of someone’s “estate,” be careful to be clear about the type of “estate” to which you are referring.  Otherwise, you may believe others understand what you said, yet you may not realize that what they think you said is not what you meant!

Negotiating Oil and Gas Leases

by Brandon Baker

Many Oklahomans have the good fortune to own mineral interests, whether based on inheritance or their own acquisitions and investments.  In order to drill a well for the production of oil and gas, the producer must first acquire the right to do so from the surrounding mineral owners through either a lease, a forced pooling action, or a combination of both.  As such, oil and gas leasing activity has been a mainstay in the Oklahoma economy for generations.  

Many of our clients and friends receive various lease proposals from landmen and other leasing agents.  For those with limited experience in leasing minerals, it could be tempting to focus purely on the financial terms (the lease bonus paid up-front and royalty to be paid on production) and assume the remainder of the lease is either unimportant or non-negotiable.  These assumptions are not only incorrect, they can prove problematic for the mineral owner over time.

There are several negotiable provisions in a standard Oklahoma oil and gas lease which can greatly improve the mineral owner’s position over time.  This article will provide a quick summary of a few provisions that are generally beneficial to mineral owners.

1. Limitation Clauses:  A depth clause can be utilized to restrict the minerals covered by the lease to a specific depth (usually the lowest depth penetrated by the operator’s well).  A depth clause leaves the deeper formations open for future leasing opportunities.  A so-called “Pugh Clause” limits the minerals covered by the lease to the minerals included in the drilling and spacing unit established by the Oklahoma Corporation Commission.  The Pugh Clause allows the mineral owner to re-lease any minerals not covered by the spacing unit at a later time.
    

2. Cost Deductions:  The standard oil and gas lease will allow the operator to deduct various costs of production from the mineral owner’s royalty payment.  By adding certain provisions to the lease, the mineral owner can protect against these cost deductions and increase the amount of their royalty payments.
    

3. Warranty on Title:  Mineral owners should be wary of the standard lease provision where they provide a full warranty on the ownership of the minerals.  Many mineral owners simply trust the leasing agent on the number of acres owned and the ownership of the minerals in general, only to be forced to repay some or all of their lease bonus if their ownership is proven invalid at a later point.  It is possible to lease minerals without a full warranty on title.
    

4. Commencement of Operations:  A standard oil and gas lease will provide a primary term of 3 years, which can be extended as long as oil or gas are produced if a producing well is drilled or commenced during that initial 3 year period.  We can utilize a commencement clause in the lease to specifically define commencement of operations as a drilling rig on location (as opposed to clearing trees or bulldozing a pad site, as some operators will argue to be commencement of drilling operations).
    

5.  Shut-In Royalty Clause:  The standard lease provides for a drastically reduced royalty payment during any period where the well operator has shut-in the well.  In addition a shut-in well is still considered to be producing and thus, extends the lease term.  With a shut-in royalty clause, we can limit the length of time an operator can extend the lease term with shut-in royalties.  This allows a mineral owner to pursue other leasing opportunities once that time has expired.  by Brandon Baker
    

This is not an exhaustive list, nor is it a complete explanation of each of the provisions noted above.  My goal is simply to provide a brief outline of a few provisions which can be used to a mineral owner’s advantage.  If the mineral owner is also the landowner, several other provisions are very important as well (such as use of water, access and roads, surface damage, etc.).  I should also mention that the financial terms (lease bonus and royalty) are often open to discussion and educated negotiation will sometimes result in higher payments for the mineral owner.

With careful analysis and negotiation, mineral owners can maximize their return in the short-term (with more beneficial financial terms), in the mid-term (with provisions that maximize their royalty payments and limit liability), and in the long-term (with provisions that allow them to exit the lease and pursue new leasing prospects).  There are many considerations for a mineral owner in effectively negotiating an oil and gas lease.  If you would like assistance with review, analysis, or negotiation of an oil and gas lease, please contact our office and we would be happy to serve you.

Using Affidavits to Transfer Mineral Interests

A Story About a Man Named Jed

by Cody Jones

An oil and gas operator calls you to tell you he’s interested in leasing your mineral rights in western Oklahoma.  Your first thought is what mineral rights?

With the introduction of new drilling technologies, mineral interests that have been dormant for years have become hot commodities.  Through cold calls from operators or mineral acquisition companies, many of our clients are discovering they have rights in minerals of which they were previously unaware.  

More often than not, the story goes something like this: Grandpa and Grandma die, leaving five children to take over the farm.  Over time, four of the children decide to leave the farm, and one remains to oversee the operation.  The siblings convey the land in bits and pieces, granting quarter-sections to each other and reserving mineral rights, or some portion thereof.  The siblings then pass away, leaving their interests to their children.  Rinse and repeat.  The minerals haven’t been leased in decades, so the younger generations are unaware that anyone still has an interest to lease.  Then Jed, the one cousin who still lives in the county, receives an oil and gas lease proposal in the mail – the modern day version of shooting and hitting bubblin’ crude.

Jed discovers his father inherited the minerals from his grandfather, so Jed assumes he and his siblings own the minerals.  The only problem is that no probate was conducted when Jed’s father passed away, and the severed mineral interests are the only asset remaining in his father’s estate. Thus, Jed doesn’t have a final decree or a deed transferring the mineral interests to him and his siblings. They can’t reap the economic benefits of the minerals without proving ownership.  Thankfully, Section 67 in Title 16 of the Oklahoma Statutes provides a possible alternative to probate – an affidavit of death and heirship (c.f. 16 O.S. § 3.2(A)).

Jed can record an affidavit of death and heirship in the county records to establish the rebuttable presumption of ownership.  The affidavit must recite the following: (1) that the decedent died without a will, or if the decedent had a will, the will was never probated and a copy of the will is attached, (2) the names of the decedent’s heirs and their relationship to the decedent, and (3) that the affiant is related to the decedent or otherwise has personal knowledge of the facts stated therein.  A properly prepared affidavit is not a true substitute for a deed or decree because it will not provide marketable title until it has been recorded without challenge for ten years.  However, many operators will assume the risk of relying on an affidavit and lease the mineral rights from the presumed heirs in the meantime.  In this way, Jed and his siblings can receive income from the minerals, but they cannot sell or transfer their interest until they obtain marketable title. 

The simplicity of the affidavit appeals to many of our clients who stumble upon mineral interests, but the affidavit can only be used when severed mineral interests are the only remaining estate assets.  If surface interests or other assets are involved, a probate or intestate administration may be necessary.   Furthermore, clients should weigh the risks of waiting ten years to obtain marketable title.  During the interim, an instrument may be filed which contradicts the heirship alleged in the affidavit. Similarly, the client may die or become incapacitated before the client’s interest vests, in which case the client may have lost the opportunity to control the disposition of his or her interest.  Lastly, if the client foresees possible family discord regarding ownership of the mineral interests, an affidavit may not be the easiest, or cheapest, alternative in the end. 

Restrictive Employment Covenants in Oklahoma

by Cara Nicklas

Restrictive employment covenants are becoming more commonplace.  Employers have an interest in protecting against the unfair competitive advantage employees gain by access to an employer’s customers, trade secrets, business decisions, etc.  Employees may betoo desperate for work and unequipped to negotiate such covenants, so they sign without much thought.  Both employer and employee should make sure they understand the restrictive employment covenant they sign and ensure it makes sense for their particular industry and situation.
 

Restrictive employment covenants are governed by state law rather than federal law.  Therefore, employers should exercise caution before using “free and easy” downloadable agreements from the internet.  They are not “one-size-fits-all” type of agreements.  Employees should carefully consider the impact of a proposed restrictive covenant when the employment relationship ends and should seek advice as to the enforceability of the particular provisions in order to understand the potential risks in signing an employment agreement.  
 

Restrictive employment covenants may include the following provisions:

1. A non-compete provision prohibits the employee from working for competitors during a specified period of time and within a defined geographical area.   General non-compete agreements are not permitted in Oklahoma.  A broadly worded contract that restrains a person from exercising a lawful profession, trade or business is void as a violation of Oklahoma public policy except as provided by Oklahoma statute.  In an agreement to purchase another’s business, which includes the goodwill of the business, the parties may agree that the seller will refrain from carrying on a similar business (bear in mind such provision can affect the tax consequences of the sale of a business).  Similarly, partners who dissolve a partnership may agree that none of them will carry on a similar business within a specified geographical area.
    
2. A non-solicitation provision bars the employee from soliciting the business of the employer’s customers.  The Oklahoma Legislature created a third statutory exception to the general prohibition against contracts in restraint of trade.  An agreement prohibiting a former employee from directly soliciting the sale of goods and services from the “established customers of the former employer” is not a contract in restraint of trade and may be enforced in Oklahoma.  Courts will likely enforce such agreements only if the agreement includes a reasonable length of time as opposed to a permanent ban.  Courts will be left to define terms such as “established customers” but employers are clearly permitted to prohibit direct solicitations of its “established customers” by former employees.   
    
3. A nonrecruitment provision or anti-raiding provision bars the employee from recruiting the employer’s employees and contractors for a subsequent or concurrent employer.  Effective November 1, 2013, the Oklahoma Legislature expanded the exception to the prohibition against restrictive employments contracts by authorizing employers or businesses to prohibit its employees or independent contractors from soliciting its employees or independent contractors to work for their new employer/business.
    
4. A confidentiality/nondisclosure provision prohibits the disclosure of the employer’s confidential and proprietary information.  Oklahoma law permits confidentiality/non-disclosure agreements.  Such provisions are common in employment agreements but often poorly written.   A written agreement specifying an employee’s obligations regarding the employer’s confidential and proprietary information should 1) clearly define what is “confidential” and “proprietary” so the employee understands what information is protected, 2) state the duration of the obligation, and 3) identify the specific prohibitions on disclosure or use of confidential and proprietary information.   Vague provisions are difficult to enforce.

Employment Law Basics for the Small Business Owner

by Cara Nicklas

Small business owners sometimes assume the onerous employment laws apply only to the big corporations.  This misconception is fed by the reality that more wrongful discharge cases have historically been filed against larger employers with deep pockets rather than the small businesses.  However, as our society grows increasingly more litigious, small businesses are becoming more prone to lawsuits and should take precautions.

Generally, Oklahoma is an “at-will employment” state.  That means an employer may discharge an employee for good cause, for no cause or even for cause that is morally wrong, without being liable.  However, this general rule has been engulfed by exceptions.  Those exceptions include many statutory causes of action such as Title VII of the Civil Rights Act of 1964, Fair Labor Standards Act, Family Medical Leave Act, Americans With Disabilities Act, and Age Discrimination in Employment Act, to name just a few.   Each law’s applicability depends on the size of the employer, ranging from a minimum of 2 to 50 employees.

Besides the various statutory causes of action that constitute exceptions to the at-will employment doctrine, Oklahoma has recognized another common law exception.  The public policy tort claim (also referred to as the Burk tort claim, named after the Oklahoma Supreme Court case of Burk v. Kmart Corporation) permits a former employee to sue an employer if the employee believes he or she was discharged for 1) refusing to act in violation of an established and well-defined Oklahoma public policy, or 2) performing an act consistent with a clear and compelling Oklahoma public policy.  Small businesses, with as few as one employee, may be sued under this theory.  This claim is becoming widely used by terminated employees.

Oklahoma Courts’ expansion of the public policy tort claim makes it difficult to completely protect oneself against such claims.   A discharged employee may simply claim to have complained to a supervisor about a suspected violation of an Oklahoma law, i.e., public policy, and allege his or her discharge resulted from the complaint.  The case becomes a question of whether the former employee or the supervisor is telling the truth.  Resolution of this allegation, which may be completely false, requires an expensive, protracted jury trial that most small businesses cannot afford.

For a small business owner to be placed in the most favorable position, the employer should consider the following:

• Develop a written, but not overly detailed, employee handbook. Do NOT include policies you do not intend to enforce.

• Ensure your hiring process is fair. Spend time at the front end thoroughly vetting your new employees. Conduct a background check, including a verification of prior employment, before hiring. This will save time and money in the long run.

• Do NOT ignore or dismiss employee complaints, even if informal or based on hearsay. Thoroughly document your handling of complaints.

• Seek legal advice before disciplining or terminating an employee. Making sure you properly handle an employee termination may save you the considerable expense of a lawsuit.

• Consider the purchase of insurance to defend against employment related claims.