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November 2020

Four Answers to Common Questions About Zoning

When it comes to owning real estate, zoning can be a big deal. Just because you own a parcel of land does not always mean you can do whatever you want with it. There are laws in place to protect not only your neighbors, but also your city's comprehensive community plan. In today's blog post we're answering some common questions about zoning, and zoning variance in particular.

1. What is a zoning variance?

Communities use set rules, called zoning ordinances, to regulate which properties can be used as residences, which properties can be used as businesses, which properties can be used for agricultural purposes, etc. A zoning variance is an approved deviation from these rules.

2. How do I get a zoning variance?

If you are a property owner and want to use your land or building for purposes other than those it is zoned for, you will need to file an application with your local board of adjustment, county commission, or a similar entity (this will depend on your city or county and an attorney can help you determine which agency is appropriate). A notice will need to be sent to your neighbors to let them know you are trying to get a zoning variance, and then a public hearing will be held.

3. What can I do if my neighbor is trying to rezone and I don't want them to?

You will have the opportunity to attend the public hearing, and express your support for or opposition to the variance. While simply expressing your opposition certainly cannot guarantee that the variance will not be granted, you will know that your voice has been heard.

Knowledge is power in these matters, so if your neighbor gets a zoning variance you hoped they wouldn't, do the best you can with what you've learned. You can make a plan and be proactive with your property based on what your neighbor wants to do. For example, if they want to make a previously residential property next to your home into a commercial property and you're concerned about privacy, you can go ahead and start construction on an outdoor privacy wall.

4. Can my neighbor rezone without me knowing about it?

You should receive a notice if your neighbor applies for a zoning variance. If you did not receive this notice due to a clerical error or any other hiccup in the system, you may have legal recourse.

Contact an Oklahoma Real Property Attorney

At Pence Law Firm, P.C., we often help clients with legal issues related to real property. If you have questions about zoning laws, zoning variances, or a related issue, we encourage you to contact us today!

Banks

October 2020

Alternative Options for the Role of Executor

An executor is responsible for overseeing and managing the administration of your estate when you pass away. They notify beneficiaries and creditors of your death and perform a wide range of duties that include determining the validity of your will, paying debts and estate taxes, and distributing your assets to beneficiaries.

While many Oklahoma residents appoint a capable and responsible family member, there can be times when a relative is not the ideal choice. Maybe there are issues between family members that could disrupt the administration process or, alternatively, you don't have any close relatives and the idea of asking a friend to be your executor makes you uncomfortable.

If you find yourself in this situation, there are alternative options for the role of executor. Banks, trust companies, certified public accountants, and attorneys can all assume that responsibility in a competent, diligent manner that benefits the estate as well as its heirs and creditors.

Bank

Many financial institutions offer estate administration services. There is usually a fee involved, although the amount tends to be reasonable if you are already a client. Depending on which bank you use, you may have to include certain language in your will, so be sure to ask a representative about any special requirements before you meet with an estate planning attorney.

Trust Company

Trust companies offer professional fiduciary services that include being an executor. Like banks, they will charge a fee, usually a percentage of the value of the estate, but it can be worth it considering that these companies have vast experience in estate administration. They are regulated and carry corporate insurance, which ensures the safety of your property, and their perpetual existence eliminates any worry about them being unavailable when the time comes to administer your estate.

Certified Public Accountant (CPA)

If you use a CPA for your taxes and other financial matters, you may want to consider appointing them as executor. They already have intimate knowledge of your personal and business finances and are required to follow an ethical code that makes them an excellent fiduciary, especially if they have experience in managing property as well as money.

Attorney

Settling an estate can be far from simple, but an estate planning attorney has the qualifications and experience to handle all of the tasks and overcome any unexpected hurdles. Perhaps someone who had access to your accounts through a Power of Attorney mismanaged them or a creditor comes forward with an unverifiable claim. When an attorney is executor of your estate, they can competently take all necessary steps to protect its value, even litigate.

Work with an Oklahoma Estate Planning Attorney

Executors have responsibilities that many people have never experienced before. If your estate is large or complex, the right executor may also need administration, accounting, and legal expertise, all of which is available through professional fiduciaries.

At Pence Law Firm, we can help you put together an estate plan and administer it after you pass. We have the experience and resources to ensure that all necessary duties are carried out and your estate passes to the next generation as smoothly as possible. To learn more or speak to an estate planning attorney, call 918-367-8505.

September 20, 2020

Four Types of Damages Available in a Breach of Contract

Money

Usually, when two parties enter into a business contract, both intend to uphold their end of the deal. However, sometimes circumstances arise that make the terms of the contract less appealing or even impossible to uphold. If someone breaches their contract with your business, it can leave you in a lurch, financially, practically, or both.

Sometimes, it is possible to take your breach of contract case to court and receive compensation for your losses. Today, we're looking into four types of damages you may be able to receive in a breach of contract case.

1. Compensatory damages

Compensatory damages aim to restore the party who did NOT breach the contract back to the position they would have been in if the other party had held up their end of the deal as promised.

2. Punitive damages

Punitive damages go beyond compensatory damages. The breaching party must not only restore the non-breaching party, but also give them more money beyond that. This is intended to punish the breaching party for the damage they have inflicted. It is rare for punitive damages to be awarded in business contract cases.

3. Nominal damages

Nominal damages are symbolic and usually not a lot of money. They are awarded in cases where perhaps the non-breaching party was not severely, if at all, impacted by the breach but still want to hold the other party accountable.

4. Liquidated damages

Sometimes a contract lists certain, specific damages that can be collected in case of a breach. These are referred to as liquidated damages. Usually the only liquidated damages that qualify to be collected in a business contract case are those that are reasonably calculated estimates of what losses would have (and did) occur as a result of a breach.

At Pence Law Firm, P.C. we understand the importance of business contracts and how much stress it can cause when you start incurring losses because someone you trusted didn't do what they said they were going to do. That's why we're passionate about handling business litigation matters, including breach of contract. We find peaceful resolution whenever possible and fight for you in court when necessary. If you are a business owner in or around Jenks, Oklahoma and would like to learn more about our services, we encourage you to contact us today. We look forward to hearing from you soon!

August 20, 2020

Three Reasons Not to Use an Online Form Will

Online Will

If you've heard all the reasons it's so important not to die without a will, but you're still not crazy about the idea of sitting down with an estate planning attorney, you may be tempted to use an online form will and call it a day. The allure of online form wills is clear -- it's nice to think that maybe you could knock out your estate planning by downloading a document off the internet, filling in the blanks, and signing your name on the dotted line. The fact of the matter is that it's just not that simple. Today we're looking at three of the top reasons the use of online form wills is so dangerous.

1. It might not comply with state laws.

Every state has different laws governing what happens to your assets after you pass away and what makes a will valid or invalid. If you download a form will off the internet there's no guarantee it will even be valid in the state where you live. This can become even more complicated if you've lived in another state in the past or if you own property in a different state from the one where you live now. Only an estate planning attorney can look at your individual situation and know what is required to make your will legally binding.

2. You might make a mistake filling it out.

The fill-in-the-blanks on a form will might seem relatively straightforward, but it is extremely easy to make a mistake that could change the document's meaning entirely. Part of an estate planning attorney's job is to help you understand the far-reaching consequences of every decision you make throughout the process.

3. You might need more than just a will.

It is very rare that a will is the only estate planning document someone needs to ensure that all their wishes are respected and their assets protected. Most secure and well-organized estate plans also utilize trusts as well as documents like living wills and powers of attorney.

The bottom line is that if you want to make sure your loved ones are cared for and your assets are protected after you are gone, using an online form will just won't cut it. You need to sit down with an experienced estate planning attorney. At Pence Law Firm, we have the knowledge and experience to make the process as stress free and straightforward as possible. If you're ready to get started, please contact us [link] today. We can't wait to hear from you.

July 20, 2020

Four Probate Myths You Might Believe

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There are lots of myths, misconceptions, and bits of misinformation out there about probate. In fact, you might say it's one of the most misunderstood legal processes out there. Unfortunately, believing false information leads many people to make estate planning mistakes like leaving their assets unprotected. In today's blog post, we're busting some of the most prevalent probate myths so that you will have the information you need to make the right estate planning decisions for yourself and your loved ones.

Myth #1: If you have a will, your estate won't go through probate.

A will does not make it possible to avoid probate all together. For instance, when the judge validates a will, that is considered part of the probate process.

We think this myth stems from confusion about the difference between wills and trusts. Unlike wills, living trusts can sometimes help assets bypass probate. Everything is the trust immediately becomes the responsibility of the successor trustee when the original trustee dies.

Proper estate planning can help you keep some assets out of probate, but just a will certainly won't make it possible to bypass it all together.

Myth #2: Probate never leaves any money left over.

It's reasonable to be wary of the high costs associated with probate. However, assets that pass through probate will by no means always be completely drained. With proper planning, assets can pass through probate with minimal fees and expenses. Disputes in probate, however, do tend to become very expensive very quickly.

Myth #3: Probate always takes years.

There are certainly cases where people die without any estate plan in places and their assets get tied up in probate for years. However, it is more typical that probate will take just a handful of months. Larger estates take longer, as do complicated debts and family disputes. With good estate administration guidance from an attorney, the probate process doesn't have to be a long, drawn-out nightmare.

Myth #4: The oldest child is always the executor/personal representative.

Not true! The role of your executor or personal representative can be played by anyone you name as long as they are willing. While people often choose their oldest child, this is certainly not a requirement. You can choose another child, another relative, a friend, a distant relative, or even your CPA, your bank, or a trust company.

Estate planning is challenging and you need to understand the probate-related repercussions of each decision you make. That's why it's important to work with an experienced estate planning attorney. The Pence Law Firm, P.C. team is here to help. Contact us today if you need guidance regarding probate, estate administration, or estate planning.

June 20, 2020

Closing Shop: What to do with Your Business Assets When You Liquidate

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Sometimes business owners must make a decision: should they sell the business or shut it down entirely? Whether you're making this tough choice because of economic hardship or because you've decided to focus your energy on bigger and better things, if you choose to close your business, this blog post will offer some pointers for liquidating your assets and tying up your loose ends.

Liquidating your assets will allow you to "trade in" your business for some cash. This money can be used to pay your creditors and you might even have some left over to put into your next business venture or your retirement fund! When liquidating your business assets, you must make sure to comply with laws and regulations, and to strategize in a way that will allow you to maximize profits.

What can you liquidate?

Your first step is to take inventory of all of your business's assets. Make sure you don't overlook the following:

  • Selling office furniture, art, and decorations

  • Selling computer equipment

  • Sell your inventory (items you sell if your business is a store)

  • Request return of security deposit on rental property

  • Request refund of any prepaid insurance premiums

Contracts

All of your contracts need to be appropriately terminated. Alternatively, you may be able to assign them to a third party. Make sure you follow notice procedures for contracts that are terminable upon notice. You may have to pay a fee on contracts with terms.

Your Lease

If you rent property for your business, make sure you understand your lease terms. It is likely you will need to determine whether it is wiser to find a subletter for the remaining duration of your lease, or to cut your losses and terminate early.

Who to Sell Your Assets To

Employees may be interested in buying furniture for their home offices. Or perhaps you can sell basic equipment over the internet. However for high-value and industry related things that you want to sell, it is important to make sure you seek out the right buyer.

Paying Debts

Any profits from liquidating assets should first go towards paying debts. Remember that you cannot sell something that has a lien on it without first paying it off. However, you may be able to come up with an arrangement in which a buyer first pays the lien, then takes possession of the item for a lower cost.

We can help!

If you need help with the legal side of closing your business's doors, the Pence Law Firm team is here to help. Contact us if you have any questions!

May 7, 2020

Five Times in Your Life When You Need to Update Your Estate Plan

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You've accomplished a lot in your life. You've worked hard to build your assets and care for your family over the years. At Pence Law Firm, P.C., we believe that estate planning is the best way to protect all that you have worked so hard to build. We also understand that circumstances change. That's why it's so important to us that our clients understand that estate planning isn't just a one-and-done matter. Once a solid estate plan has been created, it needs to be updated periodically as your circumstances change. Consider these situations in which an update to your estate plan is necessary:

1. You get married.

When you are married, your spouse is the first person your assets pass to through intestate law. This may reflect your intentions or may not. If your spouse outlives you, do you want him or her to inherit all of your assets? The answer often depends on whether you have children from a previous relationship. Regardless of the details of your unique situation, marriage is a major life and should trigger you to review and adjust your estate plan.

2. You get divorced.

If your marriage ends, you will likely keep some assets while your ex keeps others. Any significant change to your assets requires a review of your estate plan. Most divorcees also choose to remove their ex as a benefactor unless they have minor children together.

3. Children and grandchildren are born.

When your family grows, you will likely want to make sure that the new members are included in your estate plan. This typically includes adding them as benefactors of trusts, among other adjustments.

4. You move to another state.

Estate planning and probate laws can vary vastly from state to state. For this reason, it is a good idea to review your plan with an attorney any time you move, to ensure that it still holds up in the state where you now reside.

5. It has been more than three years since you last updated your estate plan.

We recommend updating your estate plan at least once every three years, even if none of the above events have occurred. People change, circumstances change, and relationships change. Maybe now that your children are older, you think someone else would make a better guardian than the person currently listed if anything should happen to you. Perhaps the person you've named as the executor of your will is no longer able to perform these duties. An attorney can help you review your plan and make sure that it is still the best fit for you.

If you need to update your estate plan, or if you haven't created one yet, The Pence Law Firm, P.C. is here to help. Contact us to get started.

April 10, 2020
Planning for the Future with a Durable Power of Attorney

Hospital Bed

Have you ever wondered what would happen if you were incapacitated and could no longer make coherent decisions regarding things like your finances and your healthcare? This concern is on the minds of many, and luckily there's an estate planning tool that can help you. By creating a durable power of attorney, you can rest assured that if you are incapacitated, your affairs will be in trusted hands.

A power of attorney is a document in which one person, called the "principal," grants authority over his or her affairs to a trusted individual, called the "agent." With a healthcare power of attorney, they grant decision making power over medical matters. With a financial power of attorney, they grant decision making power over their financial affairs. With a limited power of attorney, the principal can pick and choose what authority they grant their agent.

Powers of attorney have a lot of uses. For example, if you are traveling abroad for an extended period of time and want to have a family member sell property on your behalf while you are gone, you could create a power of attorney for this purpose. Regular powers of attorney come to an end at the expiration date set when they are created, when revoked by the principal, or if the principal becomes incapacitated. Durable powers of attorney, on the other hand, do not become invalid when the the principal is incapacitated and will continue on past this point.

At Pence Law Firm, we believe that everyone needs a durable power of attorney in place for emergencies. For example, many 18-year-olds and their families do not realize that since they're a legal adult, their parents would not be allowed to make decisions about their care if, for instance, they were in an accident that left them in a coma or otherwise rendered unconscious and incapacitated.

Who can help?

If you are ready to create a durable power of attorney, you will need the guidance of an experienced estate planning attorney. Attorney Kathleen Pence has the knowledge and experience to help you make sure your durable power of attorney is legally binding and functions exactly as you intend for it to. We encourage you to contact us today to get started, for your own peace of mind and that of your loved ones!

March 10, 2020

What You Need to Know About Wrongful Termination in Oklahoma

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Oklahoma is an at-will employment state. This means that workers can quit their jobs without warning for any reason, and employers can terminate (or fire) their employees at any time without warning and for any reason -- any legal reason.

It is a common misconception that because Oklahoma is an at-will employment state, Oklahoma employees cannot make wrongful termination claims. This is absolutely not the case! If you fired an employee for an illegal reason, you were violating the law and they can take legal action against you. You may be required to rehire them, award them monetary damages, reimburse them for back pay, or otherwise compensate them.

Let's look at some examples of wrongful termination:

Discrimination: The state protects certain classes including skin color, sex (including pregnancy), religion, race/ethnicity, age, disability, genetic information, and nation of origin. Firing employees based on any of these things is considered wrongful termination.

Medical Leave: Employers are not allowed to fire their employees because they got sick and used medical leave. You also cannot fire them for using their medical leave to care for a family member who is ill or injured.

Retaliation: You cannot fire an employee as retaliation for participating in legally protected activities, such as asking for compensation for overtime, reporting sexual harassment, or exposing the business for discriminatory practice or other unlawful actions.

Public Policy: Oklahoma forbids employers from firing their employees because they obeyed public policy. For example, you cannot fire someone for refusing to commit a crime. You also cannot fire someone for missing work because they've been called for jury duty. Filing a worker's compensation claim is also protected.

What should I do if I have been accused of wrongfully terminating an employee?

If your former employee believes they have been wrongfully terminated, you need to consult with an attorney right away. You need a skilled attorney who can defend your rights and help you fight for your financial and professional interests. The Pence Law Firm, P.C., is here to help. If you're ready to learn about your options, we encourage you to give us a call at (918) 367-8505.

February 10, 2020

Three Lesser Known Trusts You Should Consider

Pence Law Firm

Trusts are an excellent -- and very versatile -- estate planning tool. They create a contract between three parties: a grantor, a beneficiary, and a trustee. The grantor is the person who creates the trust, and whose assets go into it. The beneficiary is the person who will benefit from the assets. The trustee is the person who is entrusted with distributing the assets, in accordance with the grantor's wishes, to the beneficiary.

In today's blog post, we're exploring some of the lesser known types of trusts that many people don't realize they have at their disposal.

1. Pet trusts

Are you concerned about what will happen to your furry friends after you pass away? Fortunately, you can provide for them financially with a pet trust. The trustee will need to be someone who is willing to care for your pets and provide for them physically and emotionally, but they won't have to worry about affording food, toys, vet care, and all the other expenses that come with pet ownership.

2. Gun trusts

If you leave a firearm to someone in your Will, it will have to pass through probate. Since everything that happens in probate is a matter of public record, some people want to avoid this. For safety and peace of mind, many people want to keep inheriting a gun to themselves. That's where gun trusts come in. When you set up a gun trust, the trust technically owns the gun or guns, so your loved ones won't have to worry about things like public records, criminal background checks for gun ownership, etc.!

3. Generation-skipping trusts

In the absence of any estate planning documents, your assets would usually be split between your surviving spouse and your children if you have any. If you want to leave assets to your grandchildren instead of or in addition to your spouse and/or children, you can use a generation-skipping trust to do so. These trusts also help you avoid estate taxes!

Who can help me set up these types of trusts?

At Pence Law Firm, P.C., we have extensive experience in all areas of estate planning, including these lesser-known types of trusts. If you are interested in setting one of these up as a part of a cohesive and effective estate plan, we would love to help you. If you're ready to get started, give us a call at (918) 367-8505. We can't wait to meet with you to discuss your needs and get started on your plan!

January 10, 2020

What Every Family Needs to Build Their Estate Plan

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Creating an estate plan is one of the most important things you can do to preserve your wealth for the future. However, many people assume that having a plan is a simple matter of drafting a Will or Trust that transfers all assets seamlessly to beneficiaries after their death. In reality, an effective estate plan also protects your property and conveys your wishes should you become unable to do so yourself.

Below is an overview of estate planning tools that help you protect your wealth, legacy, and loved ones.

1. Will

Also known as a Last Will and Testament, a Will protects your loved ones and your estate by:

  • Naming beneficiaries and identifying what property each person receives

  • Appointing a legal guardian for your minor children

  • Naming a trusted party to manage your minor children's inheritances

If you die without a Will, your wealth will be distributed according to Oklahoma's laws of intestacy, which may yield results contrary to your wishes.

2. Revocable Living Trust

A Revocable Living Trust is a legal formation that holds your assets during your life and distributes them in accordance with your wishes after your death. This arrangement allows your family to avoid the delays and expense of the probate process.

Revocable Living Trusts are often accompanied by Pour-Over Wills that allow any property that you accidentally leave out of the trust to be added and distributed as directed.

3. Irrevocable Trusts

As its name suggests, an Irrevocable Trust can't be modified or terminated without approval from the court. After you transfer assets into one, the Trust owns them and the Trustee controls them. One of the biggest advantages of this estate planning tool is that it prevents your wealth from being eroded by estate taxes and creditor claims.

One type of irrevocable trust is a Beneficiary Defective Inheritance Trust, which shields assets from gift and estate taxes when a beneficiary sells them to the trust. The beneficiary is also eligible to receive discretionary distributions from the trust in the future. Another type is the irrevocable life insurance trust, which is designed to hold life insurance proceeds and exclude them from the taxable estate.

4. Financial Power of Attorney

A financial power of attorney enables you to assign an agent to act on your behalf if you become too ill or disabled to manage your own affairs. This person, who can be a family member, trusted friend, or an attorney, can enter into financial transactions, buy and sell property, and in general make legal decisions for you. You can revoke this type of POA once you regain competency; otherwise, it can last until you pass away.

5. Healthcare Power of Attorney

A healthcare power of attorney designates another person to make important healthcare decisions on your behalf in the event that you become incapacitated. It is essential that you name someone you trust, who shares your views regarding sensitive issues and will not agree to treatments that you would have refused. Always appoint a backup agent in case the person you name is unable to act when needed.

Contact an Oklahoma Planning Attorney

At Pence Law Firm, P.C. we help families of all backgrounds use estate planning assets to build and protect their legacies. Whether you are a young couple just starting out or a high net-worth individual with a sizable estate built over a long lifetime, we will help you plan your future with confidence. To schedule a consultation today, call (918) 376-8505.

December 11, 2019

Understanding Easements

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Easements are "nonpossessory" property interests that give holders rights to use land owned by someone else. But what exactly does that mean? Easements can pose a variety of legal issues, so it is important to understand them thoroughly.

It's easier to understand broad concepts when we have concrete examples, so let's take a look at a few examples of easements.

  • A landowner might grant a rail company the use of their property to lay railroad tracks.

  • A landowner might grant a neighbor the use of a private path or road that cuts through their property so that the person can get somewhere "landlocked" (closed in by land owned by other people).

  • A landowner might grant their city or county the use of their land to run electrical wires.

When created legally, easements become a part of the property. That means that if a buyer purchases property where the previous owner created an easement that allowed a neighboring landowner to use a private path through the land, then the purchaser would also have to allow this easement.

How are easements created?

There are a few different ways easements can be created, and the one that is appropriate depends on the type of easement.

Express easements: These easements are created with a written agreement, which has to be signed by the landowner and the party who will use the easement. This is recorded with the property deeds for both parties.

Prescriptive easements: If someone who is not the landowner has been using the property in a particular way for an extended period of time, a prescriptive easement can be created. This is only possible if the use has been openly (not secretly) done for a continuous period of time. In Oklahoma, the prescriptive period is 15 years.

Do easements expire after a set period of time?

No. Easements are valid indefinitely after their creation. However, you can take measures to end an easement. The two parties can make a written agreement if they both agree to terminate the easement. The easement also ends if the owner of the land that is being used acquires the land previously owned by the person, generally a neighbor, who used the easement. This is called a "merger." Easement holders can abandon their rights -- this is an affirmative action and not using the easement is not the same as legally abandoning it.

How can I learn more about easements or get help with a legal issue related to an easement?

The creation, interpretation, and implementation of easements can easily lead to legal disputes. To better understand their scope and how they impact you and your property, it is necessary to partner with an experienced real estate attorney. At Pence Law Firm, P.C. we have the knowledge and experience to help you with all of your real estate legal needs. Give us a call at (918) 367-8505 to learn more.

November 20, 2019

3 Common Partnership Disputes (And How to Handle Them)

Have you and your business partner been disagreeing? Even though you share your goals of growing and maintaining a successful, profitable business, it's understandable if you don't always see eye to eye on the best way of achieving that.

Partnership disputes in businesses tend to fall into three major categories. Read on to find out what they are and the best methods for solving and preventing each type of dispute.

1. Disagreements about money

How much should you pay your employees? If you're selling a product or a service, what should your price point be? Should you prioritize high quality or low production costs? What if your partner embezzles money from the company or accuses you of doing so? Can you cut corners on any of your expenses? How should profits be distributed among shareholders?

These are all issues that could come up between you and your business partner. You can handle these types of issues by making sure you have clear roles. Delineate who is in charge of making financial decisions. Try to make a plan for how disagreements will be resolved before the issues come up. If your partner is stealing from your company, speak to a lawyer right away.

2. Disagreements about operations

Maybe you and your partner don't agree on how day to day operations of the company need to be structured. Again, having clear boundaries regarding roles can help prevent this from happening. But if it does, you may need to bring in a third party, such as your investors, to help with decision making.

3. Disagreements about intellectual property

What if your business hinges on an invention created by your partner, but they want to leave the company and stop letting you use their intellectual property. Is this intellectual property considered their personal property or company property? You will need to consult your documentation and licensing to be sure about who owns what. If problems still exist once this information has been uncovered, it's best to consult a business litigation attorney.

At Pence Law Firm, P.C., we have extensive experience navigating complicated business partnership disputes of all types. Our goal is to help our clients obtain practical and constructive outcomes, whether it's through peaceful negotiation or litigation in court. If you need help with your business partnership, give us a call at (918) 367-8505.

October 20, 2019

Estate Planning Basics: The Guardianship

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If you are a caregiver to a child, an aging parent, or someone else, one question likely hangs heavy in your mind: Who will take care of my loved one when I am gone?

For many, providing for the care of a loved one is the most critical part of an estate plan. Designating a guardian in your Will ensures that you have a say in the matter, and their caregiver will not be chosen arbitrarily by courts when you can no longer decide.

Guardianships for Children

There are many factors that you should consider when choosing a guardian for your child or children. While unique factors play into every situation, these are a few considerations that everyone should keep in mind:

  • Values: From religious beliefs to education to politics, you'll likely want to choose someone whose values are similar to yours. The environment your child is raised in will have an enormous impact on the type of adult they grow up to be.

  • Age: Many people want to name their own parents as their children's guardian. And sometimes this works out wonderfully! But it's also important to consider age. Will they have the energy to care for your children? Will they lose out on their chance to enjoy retirement and an empty nest? Will they become elderly and need to depend on your child before your child is ready to stop depending on them?

  • Location: Your sister may be the perfect candidate, but if she lives on the other side of the country, you'll need to consider the impact that relocation will have on your children? Will they have to leave their school and their friends?

  • Stability: Generally, we try not to pry into other people's relationships, but it's important to be certain that the environment will be stable for your child. If the couple you plan to name as guardians is having marital issues and on the brink of divorce, it's best to rethink.

Adult Guardianships

If you care for an adult who is legally incapable of making decisions and caring for him or herself, you can also establish an adult guardianship. Many of the same considerations that you would make when choosing a guardian for a child should be taken into account. You should choose someone who already has a strong relationship with the adult in question.

How do I get started?

You should certainly ask permission from the person before naming them as a guardian in your will. Make sure they are ready and willing to take on this responsibility should the need arise.

When you are ready to proceed, you should contact an estate planning attorney. The lawyers at Pence Law Firm, P.C. have experience helping Oklahoma clients with these issues. Call us at (918) 367-8505 to learn more about how we can help you with your estate planning needs.

September 20, 2019

Oklahoma Probate Explained

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The state of Oklahoma has a legal process in place for determining what happens to a deceased person's assets. Like elsewhere, in Oklahoma this process is referred to as probate. Different states handle probate in different ways, and today's blog post is about how it's handled in Oklahoma.

What is the purpose of probate?

The purpose of probate is to assess the value of the deceased's assets, repay their creditors, pay their taxes, and distribute what remains to their heirs (or anyone else they may have mentioned in their Will). District court supervises while this process is carried out.

Can probate be avoided?

If an estate is small enough -- personal property (not including real estate) valued at less than $25,000 -- the deceased's successors can use a Small Estates Affidavit to bypass probate.

Estate planning can also help avoid probate. Certain types of property are classified as non-probate, and therefore not required to pass through probate. Many people choose to own as much of their property as possible within this classification as opposed to the probate property classification. Some examples of non-probate property include trusts, pay on death (POD) and transfer on death (TOD) accounts, and retirement accounts. Joint bank accounts are also non-probate.

How is probate property distributed if there is no Will?

If the deceased person had a Will, their probate property will be distributed according to their wishes as stated in the Will. If not, it will be distributed in accordance with the Oklahoma laws of descent and distribution.

  • If the deceased leaves behind a spouse and children, their spouse will receive 50% of their assets, and the other half will be distributed evenly among the children.

  • If the deceased does not leave behind a spouse, but does leave behind children, the assets will be split evenly among the children.

  • If the deceased leaves behind grandchildren but no children, the grandchildren will receive the percentage their parents would have received. This gets a bit complicated. If you had two daughters, both deceased, and one of them gave birth to one child and the other to two, the grandchild who is an only child would receive 50% of your assets while the other two would each receive 25%.

  • If the deceased had no descendants, their assets go to their parents.

  • If the deceased had no descendants and was predeceased by their parents, their siblings (and the children of any deceased siblings) will share their assets.

Are you and your family navigating probate after the death of a loved one? Or maybe you want to start an estate plan to help your loved ones avoid the time and expense of probate after your death? In either situation, you need an experienced attorney by your side. At Pence Law Firm, P.C., we have the knowledge and skills to help you. We offer a free 30 minute phone consultation for new clients. Call us today at (918) 367-8505 to find out what we can do for you!

August 20, 2019

Find a Defect the Seller Failed to Disclose on Your New Home? You Have Rights!

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You find your dream home, live through the stress of closing, and get your keys. Then, once you move in, you find a significant problem with your new home. Disco vering a defect that the previous homeowner had to have known about can leave you feeling like a victim. Luckily, you're very well protected. Here's what you can do.

What to Do After You've Found a Defect

After you've found a defect in your home, you are eligible to sue both the previous homeowner and their realtor. Both parties may be legally responsible for disclosing any known issues. However, they must also have the home so thoroughly inspected by professionals before sale that any hidden or potential issues will be revealed. The failure to have the home inspected for future problems could show negligence on the part of the realtor.

What Your Home Inspection Should Reveal

A thorough home inspection will check for:

  • Structural weakness,

  • Wiring and electrical problems,
  • Plumbing issues and pipe leaks,

  • Permit or code violations,

  • Roof condition,

  • Septic tank function (if applicable), and

  • Shoddy construction.

If there is a defect from one of these areas, it should have been discovered and disclosed before the sale of your home. Failure to reveal this pertinent information could result in the previous owner paying for any necessary repairs.

If Your Home Defect Isn't Structural

Homes can have other damage besides structural issues. Often, properties that are classified as "stigmatized properties" include areas that are known as haunted or locations of murders or other traumatic events. Depending on state laws, your realtor and previous homeowner may be legally obligated to reveal this information. However, in 21 states (including Oklahoma), you may be able to take your case to court and have your contract rescinded.

Did You Find a Defect After You Closed on Your House?

If you found a defect after you closed on your house, you may not be responsible for the repair. You could sue the previous owner (and even possibly their real estate agent) to recover the amount of money to fix your home's issue.

At Pence Law Firm, our experienced real estate attorneys are available to answer your questions and advise you how to proceed. We are happy to give you the information you need to make the best decisions regarding your new home. Give us a call today at (918) 367-8505 or contact us online to discuss your situation.

July 20, 2019

4 Reasons a Will Might Be Contested

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When you create your Last Will and Testament, you want to create a legal document that explains exactly how you would like your property, assets, and other important items divided when you pass away. In theory, this one document should be a sufficient way of letting everyone know what you want to happen, and it should stand unchallenged. However, there are times when people disagree with what is written in the Will. Here are four reasons a Will might be contested.

1. You didn't update your Will after a major life event

Sometimes, Wills are set aside and forgotten once they've been completed. However, if your Will fails to account for major life events like marriage, children, or a divorce; it's likely your Will might be contested. Honestly, you would want this to happen. Most likely, you didn't mean to exclude your spouse or children. You also probably wouldn't mean to leave everything to a former spouse. Still, if you don't update your Will periodically, this will be the official message you're sending when you pass away.

2. There are multiple Wills

When you update your Will, there are a couple different things you could do. First, you could create a legal document that contains amendments to your already-existing Will. Second, you could create an entirely new Will. If there are multiple copies of a Will in existence, the court will normally use the most currently dated Will. However, if there are any errors (such as misspellings of names) that make the Will invalid, the previous version of the Will must be used. For this reason, it's a good idea to destroy any Wills that no longer reflect your wishes.

3. Invalid Distributions

Another invalid aspect of Wills is that items are distributed that are not legally allowed to be distributed. For example, let's say a person passes away and wants to leave the home to their child. This may not be allowed if the surviving spouse is still living in the home.

By including invalid distributions of possessions and misspellings in your Will, you run the risk that part or all of your Will would be challenged or deemed invalid. This would mean all your time and money spent creating the Will would be wasted.

4. There are questions about whether you were in your right mind when the Will was created

If you wait until you are seriously ill or just about to die to create your Will, it could be contested because people could claim you were not in your right mind. For this reason, it's a good idea to create your Will while you're still relatively young.

Do You Want to Create a Will that No One Will Contest?

The last thing you want to do is spend time and money creating a Will that no one will enforce when you're deceased. In order to ensure your Will is valid and to reduce the likelihood of someone contesting it, it's best to meet with a qualified attorney to create this important legal document. At Pence Law Firm, P.C., we can help you create an enforceable Will. Call our office today at (918) 367-8505 or contact us online to learn how we can help.

June 20, 2019

3 Common Title Conflicts and How They Can Be Resolved

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After you find your dream home or property, there are still plenty of important tasks to do. One of the most important things that will happen between your accepted offer and closing is a title search, which could reveal some previously unknown issues with your potential new home. Here are three common title conflicts and how you can resolve them.

1. Unknown liens

Although the sellers should be aware of and disclose any liens against their property, it doesn't necessarily mean that they will. It's not odd for a title search to reveal unknown liens. What this means is that at some point in time the owner borrowed money and used the property as collateral.

The bank now has a note that they are entitled to the property if the borrower fails to repay the loan. Even if the property has been sold to you, the bank is still entitled to repayment. This means if you don't handle this issue before closing, the bank will want you to repay the loan.

If your title search reveals an unknown lien on the property, you can attempt to resolve the issue with the property seller through mediation with the realtors. However, if no resolution is reached, you can contact a lawyer.

2. Illegal action

Whether there has been forgery, false impersonation, or another illegal action, it's not uncommon for some sort of illegal activity to be discovered during the title search. When illegal action is uncovered, it can impact ownership even for the present owner. For example, if the previous owner was of unsound mind and sold the property to the current owners, it's possible that family members of the previous owner might be unaware of or opposed to the sale. Because it's illegal for someone of unsound mind to make such legal transactions, neither you nor the current owners would actually be able to legally own the property.

Some situations of illegal action can be quite confusing, so it's best to contact a lawyer if you are notified of this infringement on your title. A qualified lawyer can help you decide how you want to proceed.

3. Easements and boundary disputes

One of the benefits of a title search is having the title company research the legal description of your property. This process can tell you the exact measurements of your lot, as well as if there are any easements or recorded boundary issues.

Easements are tracts of your lot that may be used by certain entities without your consent. For example, it's not uncommon for lots to have utility easements. These easements give utility crews the space to make necessary repairs to keep your services running. However, they do not need to ask your permission to enter your lot and they have the right to drive service trucks or dig wherever necessary within the easement. You definitely want to know about any easements before landscaping or building on your lot.

When handling either easement or boundary disputes, you should consult with your lawyer. Some easements that are not currently used might be able to be legally removed from your property. Similarly, disagreements about the boundaries of the lot can normally be settled with help from a lawyer.

Do You Have Questions About Your Title Search?

Sometimes, title searches can reveal interesting results. If your title search has discovered some potentially troubling information, contact Pence Law Firm, P.C. Our experienced lawyers can help you handle your real estate dispute. Call our office today at (918) 367-8505 or contact us online to learn how we can help.

May 20, 2019

Understanding the Role of Executor

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When you are creating your Last Will and Testament, one of the biggest decisions you will face is naming an executor. In order to decide who would best fill this role, it's important to fully understand the role of executor. Keep reading to find out what an executor does for a Will in Oklahoma.

What Does an Executor Do?

Essentially, the executor is the guardian of your estate after you pass away. This person is responsible for paying any taxes or outstanding debts you may have. Then, when those debts are paid, the executor divides the remainder of your assets according to your wishes in your Will.

When choosing an executor, it's important to choose someone who you trust. The person doesn't necessarily have to be good with finances and managing money. Instead, it's more important that he or she is honest and trustworthy.

Can Anyone Be an Executor?

There are rules that govern who can and who can't be an executor in Oklahoma. Each state has its own rules so, if you're not in Oklahoma, make sure to research the guidelines from your state. In order to be an executor in Oklahoma, you must be over 18-years-old and of sound mind. This means that the executor must not have been judged incapacitated or incompetent by a court. Also, the state of Oklahoma prohibits any executors who have been convicted of a felony.

Can My Executor Be Out-of-State?

Yes, you may absolutely have an out-of-state executor. However, this is not a very practical idea for two main reasons. First, your executor is responsible for paying your bills and handling your post-mortem finances. This can be quite an undertaking that could last for several months. A distant location makes it harder for your executor to stay on top of paying your debts.

Second, the state of Oklahoma imposes some extra rules on out-of-state executors. For example, if you choose to have an out-of-state executor and you are deceased, your executor will have to name a local agent--someone who resides within the county of your estate--to act on his or her behalf. This local person will handle any paperwork regarding your estate on behalf of your non-resident executor.

Do You Need Help Creating a Will?

If you are thinking about creating a Last Will and Testament, Pence Law Firm, PC can help. Our knowledgeable experts can answer any questions you may have about naming an executor or creating your Oklahoma Will. Give us a call today at 918) 367-8505 or contact us online to learn how we can help.

April 20, 2019

Served with a Lawsuit? Take These 6 Steps Immediately

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When your business is faced with a lawsuit, it can be very emotional. You might feel anxiety, fear, or even start to panic. However, it's important to stay calm. Yours is not the first business to get sued, and it won't be the last. Lawsuits happen, so just take a deep breath and follow these six steps.

1. Contact your business lawyer.

Hopefully, you had help from a business lawyer when you created your business. If you didn't, you should search for a business lawyer right now. A lawyer who specializes in business will be the best-equipped to handle any of your business's legal issues (such as a lawsuit). Once you have chosen a lawyer, schedule an appointment for a meeting to review your lawsuit.

2. Do not communicate with the plaintiff.

Although it might be tempting to contact the person or people who are suing you, you should absolutely not have contact with them under any circumstances. Do not call, email, or text the plaintiff. Even if that individual reaches out and sends a message to you, do not reply. At this point, you can bet that anything you say to that person will be part of the lawsuit, so it's best to just cease communication.

3. Carefully read your lawsuit.

After you call your lawyer to schedule an appointment for a consultation, take time to carefully and clearly read the lawsuit papers. Find out exactly what you're being accused of. You might find it helpful to jot down counter-points on a notepad as you read, but make sure to thoroughly read your lawsuit.

4. Gather your evidence.

Once you completely understand the charges against your business, you can get an idea of how you want to reply. If you would like to dispute the charges, start searching for any papers or emails that might serve as a defense. Bring these when you meet with your lawyer.

5. Meet with your lawyer.

When you meet with your lawyer, you will review the lawsuit. You will also want to show your lawyer any papers or emails that might be helpful for your defense. Be completely honest with your lawyer about what has happened, and he or she can help you decide how to proceed with your case.

6. Inform your insurance company that you have been sued.

It's likely that your business has insurance for in case you get sued. Find out the best way to notify the company and do so. Even though it's still early in the process of the lawsuit, it's courteous to give your insurance company an early warning.

Has your business been sued?

If your business is facing a lawsuit and you're in need of a qualified business lawyer, contact Pence Law Firm, P.C. Our experts can help you understand your lawsuit and decide how to proceed. To learn how we can help, give us a call today at (918) 367-8505 or contact us online.

March 20, 2019

Own Firearms? Here's What Happens to Them If You Die Without Creating a Gun Trust

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There are many advantages for you today, and for your loved ones when you're gone, if you have a good estate plan in place. For gun owners, one of the most important steps in estate planning is creating a gun trust that will "hold" your guns for you today and for your heirs in the future. Having this type of trust can provide you with a variety of benefits, but it can also offer your loved ones some important protections when you pass away. Without a gun trust in place, some or all of the following things could occur.

Gun Ownership Becomes Public

When you die, most belongings that are not in a legal trust will need to go through the probate court in order to be passed on to your heirs. The probate process is a matter of public record, so if a gun passes on to a relative, everyone will have the ability to know this. For many people, this is a serious violation of their privacy and should be avoided if possible.

Loved Ones Inadvertently Violate the Law

If a gun passes to a loved one upon death, they may actually be breaking the law without even realizing it. If your heir lives in an area where gun ownership is restricted, for example, this type of inheritance could cause problems. If you have an heir that is prohibited from owning guns due to prior legal issues, this too could cause serious issues. Having your firearms in a gun trust, however, will ensure your heirs do not become the legal owners of these guns so they aren't breaking any laws.

No Need for Fingerprints or Photos

When an individual buys a firearm, they typically need to have their fingerprints and photo taken to be run through the FBI's criminal database. If you have your loved ones listed as owners or authorized users of the gun trust, this process won't be necessary.

Create a Gun Trust Today

While there are other options such as using an LLC or a revocable trust to protect your guns, none of them were designed specifically with this task in mind. Using a gun trust is the ideal option for protecting yourself, your firearms, and your loved ones from any problems associated with passing your firearms on to your loved ones. Contact the Pence Law Firm, P.C. to discuss your options, and begin a gun trust for you right away.

Oklahoma Estate Planning: Wills vs. Trusts

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When starting the process of estate planning, all the options and choices can be overwhelming. For most people, understanding the difference between a Will and a Trust is one of the first obstacles to overcome. This post will explain the differences and help you understand how each one can be used in your estate plan.

What is a Will?

A Will is a legal document that is used to identify your final wishes for your estate. It is by far the most common type of estate planning device, and virtually every adult should have one in place regardless of the size of their estate. A Will goes into effect only after you have died, so it will have no impact on your day to day life or how your estate is managed until your death. If you only have a Will in place, and no other estate planning tools, your entire estate will typically have to go through the probate process. This is where the court gathers your estate, evaluates its value, settles all debts, and distributes your assets according to your wishes listed in your Will.

What are Trusts?

A legal Trust is a type of estate planning tool that allows you to plan out what you want to happen with your estate now and after you have passed away. There are many different types of Trusts available, each designed to accomplish specific goals. Unlike Wills, a Trust can go into effect while you are still living. Another thing that sets Trusts apart from Wills is that they typically won't have to go through the probate process, which will save your loved ones a lot of time and money when the time comes.

One of the most important things for using Trusts is choosing the right type. When going through the estate planning process, you and your attorney will pick which types of Trusts are needed to accomplish your goals. You can have multiple different Trusts, or just one, depending on your needs. Some of the most common types of Trusts are:

  • Revocable Trusts - A revocable Trust can be changed or even revoked as long as you are still living. This gives you a lot of flexibility, and is often used by people who likely still have quite a few years of life ahead of them.
  • Irrevocable Trusts - This type of Trust can not be modified or revoked after it is in place. While this does limit your options, it comes with certain legal and tax benefits that make it a great option for many situations.
  • Charitable Trust - Placing assets into a charitable Trust will allow you to give money or other assets to your favorite charity after you die. You can set up the Trust to ensure the charity uses the money in very specific ways, which can help to ensure your money is used in the best way possible.
  • Special Needs Trust - If you have a loved one with special needs, you can set up a Trust that will provide them with the assets needed for their care long after you are gone. You can specify how the money is to be used as well so you know it will be there for your loved one when it is needed.

Working with an Estate Planning Attorney

An estate planning attorney will work with you to identify your specific needs, and tailor your estate plan to meet them. When done properly, an estate plan will include both a Will and Trusts, all set up in such a way as to ensure the assets you have worked for your entire life will be there when you need them and will then be distributed according to your wishes. Please contact us to discuss your estate planning needs in greater detail.


Feb. 4, 2019

4 Ways You can Handle a Business Dispute

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Running a business comes with a lot of hard work, but also some great rewards. If you operate a  business long enough, however, it will also come with some type of dispute. This could be a dispute between you and another company, you and a customer, or even you and your business partner(s). If handled incorrectly, conflict in business can cause huge problems, cost lots of money, and if serious enough, even result in the closing of the business. Knowing how to handle a business dispute ahead of time will help ensure the conflict is resolved quickly and without any further issues.

Sit Down and Talk

Most conflicts can be resolved by getting the impacted parties together in one room and talking it out. To the greatest extent possible, leave emotions out of the discussion. Don't look at who is right and who is wrong, but rather, look for what is in the best interest of your business. When people are in the same room and focused on finding solutions, it is often possible to work things out more easily than through email or on the phone.

Use a Mediator

If the issue is one that can't be resolved by just talking it out, consider bringing a mediator or arbitrator in to help. These are professionals who will act as a neutral third party. Their goal will be to help facilitate a resolution that everyone is happy with, even if nobody gets 100% of what they wanted. Depending on the situation, you can even give the mediator the legal authority to settle a dispute so you are sure that the conflict will be resolved.

Go to Court

If all else fails and the other party is being completely unreasonable, you can take disputes to court. Just keep in mind, even if you win your case in court, you'll often end up spending a lot of time and money, which might not even be worth it in the end. Additionally, going to court can cause harm to your business reputation, which can have long term impacts. While it is sometimes necessary to bring a dispute to court, it should really be the last resort.

Talk to an Attorney

As soon as you know that there is a serious dispute that you need to address, it is a good idea to discuss the situation with an attorney. They can help you decide what your best options are for resolution and provide clear legal advice on how strong your position is. A good business attorney is invaluable regardless of which method you choose to resolve your business dispute. Please contact us to schedule a consultation so we can discuss your specific situation.