Designate power of attorney, have an attorney help you draft a will, and above all, visit the Bureau of Indian Affairs for a free form to designate your Osage trust.
Those were the three main directives repeated by Osage County Bar Association attorneys Sept. 20 at an informational session on estate planning tailored for Osage headright holders and restricted property owners at the Dave Landrum Community Center.
Osage County District Court Judge Bruce David Gambill, Tulsa-based Osage attorney Gene Dennison, attorney Scott Boulanger and Osage attorney Amanda Proctor, who is chair of the OC bar association, spoke at the session.
“A revocable trust and will, is the only way to leave an estate,” Judge Gambill said. “The County Court Clerk’s office keeps it (the will) and I can change it anytime I want to, until I’m dead.”
Judge Gambill, who has judged many Osage probate hearings, said that establishing a trust and leaving a will enables your loved ones to avoid any probate disputes that might occur.
Available to restricted Osages is a form at the Pawhuska BIA office that Dennison said is simple to fill out and will handle administratively by itself upon the death of the headright holder.
“The only thing I don’t like on this form is, who is the trustee? The Secretary of the Interior is the trustee,” Dennison said. “Save money, save time, save effort and it’s free. Don’t get duped into doing a $2,500, $3,000 trust.”
Headrights cannot be left to a non-Indian, Proctor said. The only exception is if the Osage shareholder leaves their headright to their non-Osage spouse, but it is only valid during their lifetime. A headright can be left to a legally adopted child of the shareholder. It cannot be left to an Indian of another tribe, she said. If a qualified heir isn’t found upon the death of the shareholder then the share reverts back to an Osage in the family or the tribe.
Boulanger, who has done estate planning for 17 years, said that a common misconception about having a revocable trust is that headright holders don’t need a will.
“We have Osages who have done an revocable trust and think they didn’t have to have a will. You still have to have estate planning for the rest of your things,” Boulanger said. “The surviving spouse gets half of everything non-Osage.”
He also stressed that designating power of attorney for health care and for property decisions is wise. “Powers of attorney are important, you need them.”
If not, he said as an example, if a person gets in a car wreck and they’re in a coma for a year, a guardian will be appointed by Judge Gambill to take care of their affairs, not their spouse or children. He said in Oklahoma, without power of attorney designated to your spouse, children or whoever a person chooses, a judge appoints the guardian.
“Your marital status doesn’t give authority to deal with the doctor if you’re in a coma, not in Oklahoma,” he said.
Judge Gambill, Dennison and Boulanger warned against these scenarios:
· Don’t make one of your children a joint owner of your assets. Upon death all assets co-owned by child will go to the one child. Not a good scenario in the case of multiple children.
· Don’t put minor children on deeds. Not a good scenario in case of early death.
· Don’t leave beneficiaries on forms that are work related. Probate cannot fight it. Not a good scenario if 401k goes to ex-spouse instead of current spouse or children.
· Don’t leave large trusts to beneficiaries in a lump sum. Dole it out in increments. Not a good scenario if hard earned trust is blown on a cruise to the Bahamas.
For more information contact Amanda Proctor at 1-800-655-4820, extension 3.