When serving as an advocate, whether it be as a guardian, power of attorney, trustee, or executor, you want a real estate agent who understands the complexities involved in the real estate process and who will work together with your legal team and other parties to the transaction.
Below are just a few things any competent real estate agent you hire should be aware of:
TRUST RELATED ISSUES
Oklahoma Memorandum of Trust
In Oklahoma, the memorandum of trust is codified at 60 O.S. 175.6a. Executed by a trustee, the memorandum of trust is a recorded document pertaining to real property acquisitions and transfers by an express private trust.
An express private trust refers to any trust that is “created with the settlor’s express intent, usually declared in writing,” and is not a business trust . In a trust arrangement, a settlor conveys property to another person (the trustee) to be held for a third (the beneficiary). The trust is administered pursuant to the terms of a written document executed by the settlor. This document, called the trust instrument, designates the trustee and trust beneficiaries and outlines the provisions of the trust and the scope of the trust’s assets. In some cases, the trust instrument may be recorded, but it is generally a private document.
In lieu of providing parties outside of the trust arrangement with the full trust instrument, a trustee may provide a memorandum when entering into real property transactions. The memorandum is an abstract of the trust instrument that is recorded when the trust acquires real property or when the trustee is conveying real property held in the trust. The document contains only essential information about the trust, allowing the settlor to keep his estate plans and other information irrelevant to the transaction at hand private. It is similar to a certification of trust (under the Uniform Trust Code), the major difference being that the certification is generally not recorded.
There are differences of opinion among title examiners on when a memorandum is required . Oklahoma Title Standard 15.2 states that when real property is transferred to or by the name of a trustee as trustee of a named express private trust, a memorandum of trust is not required. Where a settlor makes a conveyance to a trust using the trust’s name alone as the grantee, the Title Standards require a memorandum of trust (see also 60 O.S. 175.6a) .
The memorandum of trust provides the name of the trust and the name and address of each trustee of the trust, as well as the date the trust was created. Because the document pertains to real property, a legal description of the parcel subject to the transaction for which the memorandum is being recorded may be required.
NOTE: More title companies are requesting the entire trust (in addition to the memorandum or certificate of trust) be presented for review as part of the title work process. If you are asked to provide your trust, you can request a meeting to deliver the trust to the title attorney personally and sit with said attorney while he or she reviews the document. You are not obligated to send your private trust document with your agent to the title company.
ISSUES OF PROBATE
R.L.1910, § 6382. §58423. Private sale Notice of Bids.
When a sale of real property is ordered to be made at private sale, notice of such sale must be published once each week for two (2) consecutive weeks in a newspaper in each county in which any part of the land to be sold is situated, and in the county where the order is made and by mailing a copy of the notice to all heirs, legatees and devises of the decedent whose addresses are known. The notice of sale shall describe the real property to be sold with common certainty, and must set a day on or after which the sale will be made, and the place where offers or bids will be received. The date last referred to must be at least ten (10) days from the first publication of notice, and the sale must not be made before that day, but must be made within one (1) year thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice or delivered to the executor or administrator personally at any time after the first publication of notice, and before the making of the sale.
58424. Relationship of sale price to appraisement. Exception of sale under authority of will.
No sale of real estate at private sale shall be confirmed by the court unless the sum offered is at least ninety percent (90%) of the appraised value thereof, nor unless such real estate has been appraised within one (1) year of the time of such sale. If it has not been so appraised, or if the court is satisfied that the appraisement is too high or too low, appraisers must be appointed, and they must make an appraisement thereof in the same manner as in case of an original appraisement of an estate. This may be done at any time before the sale or the confirmation thereof. Provided, that this section shall not apply to property sold under authority or direction of a will.
NOTE: An attorney is typically involved with the probate process. Not all attorneys are good at staying on top of the timelines involved in selling property being probated. If proceeds from the sale of real property is needed to to settle debts or manage other expenses associated with settling the estate, these deadlines can be critical. Your real estate agent, if knowledgeable about such matters, can assist in keeping the attorney accountable to the notice and recording deadlines.
301121. Guardian of the property Power Fiduciary duty.
A: A guardian of the property must keep safely the property of his ward. He must not permit any unnecessary waste or destruction of the real property, nor make any sale of such property without the order of the court, but must so far as it is in his power, maintain the same, with its buildings and appurtenances, out of the income or other property of the estate, and deliver it to the ward or the successors of the ward at the close of his guardianship, in as good condition as he received it.
B: A guardian of the property, in relation to powers conferred pursuant to the provisions of the Oklahoma Guardianship and Conservatorship Act, shall act as a fiduciary and shall perform, diligently and in good faith, as a prudent person would in managing his own property, not with regard to speculation but with regard to conservation and growth, and the specific duties and powers assigned by the court.
NOTE: If a guardianship becomes necessary as a means of completing a real estate transaction (i.e. owner becomes incapacitated or incapable of handling his or her own affairs and a power of attorney is not in place) your agent should understand the role and requirements of the appointed guardian.
Myths and Truths Concerning Trusts, Wills, and Guardianships
At our recent Senior Living Truth Series event, our expert panel of attorneys, trust officers, and guardians offered insight on the following myths and truths:
Myth: A will is all I need to handle my personal affairs. So, if I have a will, my end of life planning is complete.
Truth: A will provides instructions for handling your affairs after your death. It does not address your affairs when living incapacitated or with significant disability.
Myth: All my affairs can be handled both before and after death with a durable Power of Attorney.
Truth: A POA is only valid while you are living. And while it can be used for some things, it is not always honored and can be subject to circumstances (i.e. real estate, banking, healthcare, etc.).
Myth: It is cheaper to create a will then it is to create a trust.
Truth: The cost to create a will can be free and paying an attorney to create a trust does cost money. The cost to the estate can be excessively more than the cost of creating a trust if the estate must be probated after death.
Myth: Probate is required after death.
Truth: If assets are placed in a trust (and deeded and titled correctly) probate may not be necessary.
Myth: All probate processes are the same.
Truth: Probate processes depend upon the size of the estate, where the assets of the estate are located, and a variety of other factors.
Myth: A trustee and executor are the same thing.
Truth: A trustee may be entrusted to oversee a person or their property while he or she is alive and after death. An executor only comes into the picture after death.
Myth: My oldest child is the right person to designate as my trustee (of a trust) or executor (of a will).
Truth: An unbiased and more objective third-party may be able to better carry out your wishes and may prevent unnecessary family devisiveness.
Myth: With no living children or family members to care for me, I will not have an advocate in the case of incapacity or disability.
Truth: There are professionals who are trained as advocates. Some may oversee financial affairs and others may oversee personal affairs. Some can/will do both.
Myth: If I don’t have any living children I will not need to worry about anyone trying to tell me how to live my life.
Truth: In some cases, the courts may appoint a guardian to handle a person’s affairs – both personal and financial.
Myth: Only certain people can be appointed by the court as a guardian over others.
Truth: Anyone can petition the court to become a guardian over others. There are legal measures intended to ensure that guardians are held accountable and acting in the best interests of the “ward.”
Myth: A successor trustee can help my special needs child with everything.
Truth: Most corporate trustees only have the ability to assist with financial needs. It’s ideal to have both a personal AND financial guardian.
Myth: If I wait long enough to deal with this it will go away and never become an issue.
Truth: If you wait too long to plan and put legal provisions in place, someone else may be tasked with doing it for you.
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