Steven L Holcombe | Attorney at Law

 IN THE DISTRICT COURT OF OSAGE COUNTY, STATE OF OKLAHOMA

 In the Matter of the Estate of                 )

                                                                                    )           Case No. PB-2022-36

NANCY LOUISE LAZELLE, Deceased    )          

ORDER APPROVING FINAL ACCOUNTING AND DECREE DISTRIBUTING ESTATE AND DISCHARGING PERSONAL REPRESENTATIVE

AND

ORDER APPROVING APPICATION BY ATTORNEY FOR PERSONAL REPRESENTATIVE FOR ATTONEY FEES AND COSTS AS A PREFERRED CLAIM

           This matter comes on for hearing this 24th day of October, 2022, pursuant to a sworn-to Final Accounting and Application for Decree Distributing Estate and for Discharge of Personal Representative (sometimes referred to herein as the Final Accounting) filed herein on the 29th day of September, 2022 and a sworn-to Testimony Affidavit of Personal Representative Bryan Michael Swope (sometimes referred to herein as the Testimony Affidavit) filed herein on the 24th day of October, 2022 by Bryan Michael Swope, Personal Representative of the Decedent’s Estate, and pursuant to a verified Application by Attorney for Personal Representative for Attorney Fees and Costs as a  Preferred Claim (hereinafter Application for Attorney Fees) filed on the 29th day of September, 2022, and the Court proceeded to examine these filings made with the Court, and after inquiry of the Personal Representative, inquiry of the attorney for the Personal Representative, and hearing an oral motion by the attorney for the Personal Representative to amend and approve the Final Accounting instanter without further notice to interested parties, and after examination of the other pleadings and filings herein, and there being no written objections, the Court finds, adjudges and decrees:

           1. That due and legal notice of the time and place of this hearing on the Final Accounting and Application for Decree Distributing Estate and for Discharge of Personal Representative filed herein on the 29th day of September, 2022 has been given in the manner, form and for the full time as required by law and the Order of this Court.

2. That Nancy Louise Lazelle died on the 23rd day of December, 2021, while a resident of Hominy, Osage County, State of Oklahoma.

3. That on the 28th day of March, 2022, the Probate Court ORDERED, ADJUDGED AND DECREED that Letters of Administration be issued to Bryan Michael Swope, as Personal Representative of said estate, to serve without bond, and the same were issued and filed with the Probate Court on the same date.

4. That on the 28th day of March, 2022, the Probate Court ORDERED, ADJUDGED AND DECREED that Nancy Louise Lazelle, deceased, was survived by the following persons who were determined to be the sole and only heirs at law of the said deceased:

NAME / RELATIONSHIP/AGE / ADDRESS

Bryan Michael Swope / Surviving Nephew (Adult) / [REDACTED]

Marilyn Anita Shirley / Surviving Niece (Adult) / [REDACTED]

Charles Marie Louvier / Surviving Niece (Adult) / [REDACTED] 

Jamie Marie Maker / Surviving Grandniece (Adult) / [REDACTED]

James Curtis Ballew / Surviving Grandnephew (Adult) / [REDACTED]

5. That a GENERAL INVENTORY AND APPRAISEMENT was filed herein by the Personal Representative on the 29th day of September, 2022, that the GENERAL INVENTORY AND APPRAISEMENT should have been filed according to Title 58 O.S. Section 281 on or before the 30th day of May, 2022, but that no prejudice is known to the Personal Representative to have occurred to any interested party in the estate as a result of the late filing, and in the absence of any objection thereto, and for good cause shown, said filing of the GENERAL INVENTORY is APPROVED.

           6. That the Estate of Nancy Louise Lazelle, deceased, consisted of real and personal property at or about the time of death more properly described in the General Inventory and Appraisement on file herein.

            7. That the Estate of Nancy Louise Lazelle, deceased, is ready for closing and the Personal Representative affirmatively states the following to the Court, with accompanying requests made to this Court, to-wit:

a. All income has been properly received and expenses lawfully made leaving a cash balance as of October 6, 2022 of [REDACTED] (see Exhibit C to the Testimony Affidavit);

b. All allowed and approved claims in the amount of [REDACTED] (see Exhibit B to the Testimony Affidavit) are proposed by the Personal Representative to be paid according to the Final Accounting as itemized and accounted for in Exhibits A & B to the Testimony Affidavit;

c. All funeral expenses, taxes and costs of administration have been paid except that arrangements are proposed by the Personal Representative for covering and addressing a final estate tax return as a result of income to the estate. See Exhibit C to the Testimony Affidavit.;

d. That following should be ORDERED PAID:

      FIRST, all approved claims, expenses, attorney fees, statutory fees, and costs of administration should be ORDERED PAID,

      SECOND, that ONE THOUSAND dollars and zero cents ($1,000.00) be set aside for covering and addressing tax consequences, if any, as a result of the sale of real and personal property, and

      THIRD, that all remaining unrestricted cash, if any, and Osage Indian restricted property interests should be ORDERED PAID AND DISTRIBUTED according to the Oklahoma laws of intestate succession as set forth below.

             8. That an Oklahoma estate tax return was not filed with the Oklahoma Tax Commission because the Decedent died on or after January 1, 2010. The Estate of Nancy Louise Lazelle was of insufficient size to require the filing of a Federal Estate Tax Return.  All other federal, state, county, school and municipal taxes, including income taxes, have been paid, if owed, or are otherwise provided for.

             9. That due and lawful notice to the creditors of Nancy Louise Lazelle has been given for the time and in the manner provided by law; that prior to giving the required notice, the Personal Representative made a diligent search and inquiry of the heirs-at-law and other interested parties in an effort to determine the identity and nature of any claim against the Estate of Nancy Louise Lazelle, that all claims of every kind and character, chargeable to the estate, if any, are proposed by the Personal Representative to be paid and discharged under the authority of Title 58 O.S. Section 1 (7) on a prorated basis according to available funds of the estate on hand after payment of reasonable attorney fees and costs, statutory fees to the Personal Representative and estimated services for a certified public accountant; and that all other expenses and claims that were not presented are now barred by the statute of limitation in effect under the laws of the State of Oklahoma. See Exhibits A, B & C to the Testimony Affidavit.

            10. That a creditor’s claim was submitted by AscensionPoint Recovery Services LLC on behalf of Synchrony Bank for QCard in the amount of [REDACTED]. This claim was approved by the Personal Representative on the 25th day of April, 2022, and approved by the Probate Court and filed herein on the 25th day of April, 2022. Due to the insufficiency of funds available to pay all debts, and the lack of jurisdiction that the Court has to adjudge the payment of such debts from restricted Osage properties, as set forth below in more particularity, the Personal Representative proposes that this claim be adjudged under the Court’s authority “to order and regulate all distribution of property of estates of deceased persons” (Title 58 O.S. Section 1 (7))  to be fully paid and satisfied upon the receipt by the said claimant of [REDACTED]. See Exhibits A & B to the Testimony Affidavit.

            11. That a creditor’s claim was submitted by Phillips & Cohen Associates Ltd. on behalf of Citibank, N.A. for Sears Mastercard in the amount of [REDACTED]. This claim was approved by the Personal Representative on the 25th day of April, 2022, and approved by the Probate Court and filed herein on the 25th day of April, 2022. Due to the insufficiency of funds available to pay all debts, and the lack of jurisdiction that the Court has to adjudge the payment of such debts from restricted Osage properties, as set forth below in more particularity, the Personal Representative proposes that this claim be adjudged under the Court’s authority “to order and regulate all distribution of property of estates of deceased persons” (Title 58 O.S. Section 1 (7))  to be fully paid and satisfied upon the receipt by the said claimant of [REDACTED]. See Exhibits A & B to the Testimony Affidavit.

            12. That a creditor’s claim was submitted by AscensionPoint Recovery Services LLC on behalf of Synchrony Bank for JCP Card in the amount of [REDACTED]. This claim was approved by the Personal Representative on the 25th day of April, 2022, and approved by the Probate Court and filed herein on the 25th day of April, 2022. Due to the insufficiency of funds available to pay all debts, and the lack of jurisdiction that the Court has to adjudge the payment of such debts from restricted Osage properties, as set forth below in more particularity, the Personal Representative proposes that this claim be adjudged under the Court’s authority “to order and regulate all distribution of property of estates of deceased persons” (Title 58 O.S. Section 1 (7))  to be fully paid and satisfied upon the receipt by the said claimant of [REDACTED]. See Exhibits A & B to the Testimony Affidavit.

            13. That a creditor’s claim was submitted by AscensionPoint Recovery Services LLC on behalf of Synchrony Bank for HSN Card in the amount of [REDACTED]. This claim was approved by the Personal Representative on the 25th day of April, 2022, and approved by the Probate Court and filed herein on the 25th day of April, 2022. Due to the insufficiency of funds available to pay all debts, and the lack of jurisdiction that the Court has to adjudge the payment of such debts from restricted Osage properties, as set forth below in more particularity, the Personal Representative proposes that this claim be adjudged under the Court’s authority “to order and regulate all distribution of property of estates of deceased persons” (Title 58 O.S. Section 1 (7))  to be fully paid and satisfied upon the receipt by the said claimant of [REDACTED]. See Exhibits A & B to the Testimony Affidavit.

         14. That a creditor’s claim was submitted by AscensionPoint Recovery Services LLC on behalf of Citibank, N.A. for Citi Mastercard in the amount of [REDACTED]. This claim was approved by the Personal Representative on the 6th day of May, 2022, and approved by the Probate Court and filed herein on the 9th day of May, 2022. Due to the insufficiency of funds available to pay all debts, and the lack of jurisdiction that the Court has to adjudge the payment of such debts from restricted Osage properties, as set forth below in more particularity, the Personal Representative proposes that this claim be adjudged under the Court’s authority “to order and regulate all distribution of property of estates of deceased persons” (Title 58 O.S. Section 1 (7))  to be fully paid and satisfied upon the receipt by the said claimant of [REDACTED]. See Exhibits A & B to the Testimony Affidavit.

15. That “[t]here is no act of Congress providing for the sale, incumbering, or alienation of headrights by those of Indian blood.” DeNoya v. Arrington, 20 P.2d 563, (Okla. 1932). “The income accruing to the headright of a deceased Osage Allottee subsequent to death of such allottee is not an asset of the estate of such decedent which can be appropriated for the payment of the claims of creditors.” Id. This remains settled law unaffected by the passage of The Osage Tribe of Indians Technical Corrections Act of 1984, Pub.L. No. 98-605, 98 Stat. 3163 (1984 Act) which amends The Act of October 21, 1978, Pub.L. No. 95-496, 92 Stat. 1660 (1978 Act). See, generally, Estate of Little Bear, 909 P.2d 42, 1995 OK 134 (Okla. 1995).

             Furthermore, this rule applies though the beneficiaries under the will are not of Indian blood. In re Kohpay’s Estate, 245 P.2d 79 (Okla. 1952). "There is no act of Congress providing for the sale, incumbering, or alienation of headrights by those of Indian blood. If there is no such provision, how can it be consistently urged that the income from the headright of deceased Osage Indian allottee accruing subsequent to his death over an indefinite period can be taken to satisfy the debts of such allottee. This would be in effect an incumbering, assigning, transferring, or an alienation of such headright unauthorized by Congress.” Kohpay’s Estate, p. 81. "[T]he manifest purpose of Congress, as expressed in all legislation regarding said Osage Tribe, has been to preserve unencumbered and intact the individual Osage Indian's headright interest in the Osage tribal funds and property, and it could not be alienated either directly or indirectly." Kohpay’s Estate, p. 82. Income accruing to the headright of an Osage Indian subsequently to his death may not be appropriated for the payment of claims of general creditors and this rule applies even though the beneficiaries under the will are not of Indian blood. Kohpay’s Estate, p. 82 (citing to Tucker v. Brown, 90 P.2d 1071, 185 Okla. 234, 1938 OK 550 (Okla. 1938)).

           Therefore, the Court ADJUDGES AND DECREES that the “Restricted Osage Properties” identified in the Exhibit C of the Final Accounting filed herein on the 29th day of September, 2022 are beyond attachment by the approved creditors because is no act of Congress providing for the sale, incumbering, or alienation of headrights by those of Indian blood, and the income accruing to the Decedent’s headright is not an asset of the estate of such Decedent which can be appropriated for the payment of the claims of creditors.

            16. That while no creditor’s claim was filed by Freedom Mortgage, there were foreclosure proceedings filed on the 9th day of May, 2022 in Freedom Mortgage Corporation v. Estate of Nancy Louise Lazelle, CJ-2022-71, District Court of Osage County, State of Oklahoma, against the Decedent's residence,[1] of which the Court may take judicial notice, but a foreclosure sale - and the concomitant expenditures in attorney fees, interests, and costs that would have resulted - were avoided through a private sale initiated by the Personal Representative. At the closing on the private sale of the Decedent’s residence, the Personal Representative paid in [REDACTED] to fully satisfy the claims of the mortgage holder under the authority of the Section 239 Order filed herein on the 9th day of May, 2022 so that the Estate’s proceedings would continue without further delay and costs to the Estate, and further diminishment of funds that would otherwise be made available to the approved unsecured creditors identified herein. See “Approved Creditor’s Claims” (Exhibit B), attached to the Testimony Affidavit. Therefore, the Court ADJUDGES AND DECREES its approval of all actions taken by the Personal Representative in regard to foreclosure proceedings in CJ-2022-71.

           17. That an Application by Attorney for Personal Representative for Attorney Fees and Costs as a Preferred Claim was filed herein on the 29th day of September, 2022 by Steven L. Holcombe, Attorney at Law, requesting that he be paid for unpaid attorney fees and costs in the amount of [REDACTED] pursuant to Invoice No. 2077 attached thereto. The Personal Representative requests that the Probate Court approve the invoice and order it to be paid in full at the time of the distribution of the Estate as set forth in Exhibit A, attached to the Testimony Affidavit.

          18. That the Personal Representative proposes to set aside [REDACTED], as set forth in Exhibit A to the Testimony Affidavit, for taxes owed, if any, and the preparation and filing services relative to estate income tax returns for reporting capital gains and/or deductible expenses as a result of income to the estate. The Personal Representative requests that the Probate Court approve this estimate and order it to be set aside at the time of the distribution of the Estate as set forth in Exhibit A, attached to the Testimony Affidavit.

          19. That the verified Application by Attorney for Personal Representative for Attorney Fees and Costs as a Preferred Claim requests that Steven L. Holcombe be paid for unpaid attorney fees and costs in the amount of [REDACTED] pursuant to Invoice No. 2077 attached thereto and necessarily incurred for the benefit of the estate, this cost of administration has been approved by the Personal Representative, no written objection has been filed to the said Application, these fees and costs were necessarily incurred in the administration of the estate, and Steven L. Holcombe, Attorney at Law, should be so paid.

         20. That the payment of all reasonable costs and legal fees, a statutory fee for the services of the Personal Representative, and the estimated fee for the final services of a certified public accountant, are expenses of administration and have priority over every other obligation of the estate. See Tims Funeral Home v. Phillips, 501 P.2d 493 (Okla. 1972) (citing to Title 58 O.S. 1961 Sections 591 & 594).

         21. That after the payment of all reasonable costs and legal fees, a statutory fee for the services of the Personal Representative, and the estimated fee for the final services of a certified public accountant, there are INSUFFICIENT funds in the estate to fully pay from unrestricted cash the creditors’ claims stated above which the Personal Representative proposes should therefore be prorated as set forth in  the attached Exhibits B & C attached to the Testimony Affidavit under the authority of Title 58 O.S. Section 1 (7). FURTHERMORE, the Court approves the amended Final Accounting instanter according to the Personal Representative’s Testimony Affidavit and without prior notice to interested parties as to do so is without prejudice to the approved creditors.

            22. That all purposes of administration have been fully and faithfully fulfilled; that the Personal Representative has performed all acts and duties lawfully required, and the Estate of Nancy Louise Lazelle is now ready for closing and distribution.

            23. That the Personal Representative has made no personal profit from any increase in the Estate of Nancy Louise Lazelle.

          24. That the Personal Representative should be awarded the statutory fee under Title 58 O.S. Section 527 based on the value of one hundred seven thousand three hundred twenty dollars and zero cents ($107,320.00) of unrestricted properties, said statutory fee to be in the amount of [REDACTED], as itemized in Exhibit A, attached to the Testimony Affidavit, which remains unchanged from the Final Accounting filed on the 29th day of September, 2022.

          25. That pursuant to the Oklahoma laws of intestate succession the remainder of the Decedent’s Estate should be distributed as follows pursuant to Title 84 O.S. Section 213 (B) (2) (c):

NAME / RELATIONSHIP/AGE / INTESTATE DISTRIBUTION

Bryan Michael Swope / Surviving Nephew (Adult) / [REDACTED]

Marilyn Anita Shirley / Surviving Niece (Adult) / [REDACTED]

Charles Marie Louvier / Surviving Niece (Adult) / [REDACTED]

Jamie Marie Maker / Surviving Grandniece (Adult) / [REDACTED] 

James Curtis Ballew / Surviving Grandnephew (Adult) / [REDACTED]

           26. That as to the Estate of Nancy Louise Lazelle, deceased, the Final Accounting and Application for Decree Distributing Estate and for Discharge of Personal Representative, filed herein on the 29th day of September, 2022, as amended by the Personal Representative’s  Testimony Affidavit, is duly approved and sustained.

          27. That the verified Application by Attorney for Personal Representative for Attorney Fees and Costs as a  Preferred Claim (hereinafter Application for Attorney Fees) filed on the 29th day of September, 2022, is duly approved and sustained.

       WHEREFORE, PREMISES CONSIDERED, It is therefore Ordered, Adjudged and Decreed by the Court that due and legal notice of the time and place of this hearing on the Final Accounting and Application for Decree Distributing Estate and for Discharge of Personal Representative (as amended by the Personal Representative’s Testimony Affidavit) filed herein on the 29th day of September, 2022 has been given by Bryan Michael Swope, the Personal Representative in the manner, form and for the full time as required by law and the Order of this Court, and the Court so finds, adjudges and decrees.

         It is FURTHER Ordered, Adjudged and Decreed by the Court that notice to creditors as required by law was given by the Personal Representative, and that all claims which were not lawfully submitted within the time permitted for the presentation of claims are hereby nonsuited, void and forever barred.

       It is Further Ordered, Adjudged, and Decreed by the Court that the Personal Representative’s statutory fee is APPROVED AND ORDERED PAID.

        It is Further Ordered, Adjudged, and Decreed the Application by Attorney for Personal Representative for Attorney Fees and Costs as a Preferred Claim filed herein on the 29th day of September, 2022 by Steven L. Holcombe, Attorney at Law, is SUSTAINED, APPROVED AND ORDERED PAID.

         It is Further Ordered, Adjudged, and Decreed by the Court that the following be PAID as follows:

      FIRST, payment of the following:

a) that AscensionPoint Recovery Services LLC be PAID for the creditor’s claim on behalf of Synchrony Bank for QCard in the PRORATED amount of [REDACTED],

b) that Phillips & Cohen Associates Ltd. be PAID for the creditor’s claim on behalf of Citibank, N.A. for Sears Mastercard in the PRORATED amount of [REDACTED],

c) that AscensionPoint Recovery Services LLC be PAID for the creditor’s claim on behalf of Synchrony Bank for JCP Card in the PRORATED amount of [REDACTED],

d) that AscensionPoint Recovery Services LLC be PAID for the creditor’s claim on behalf of Synchrony Bank for HSN Card in the PRORATED amount of [REDACTED],

e) that AscensionPoint Recovery Services LLC be PAID for the creditor’s claim on behalf of Citibank, N.A. for Citi Mastercard in the PRORATED amount of [REDACTED],

f) that Steven L. Holcombe, Attorney at Law be PAID for as yet unpaid attorney fees and costs in the amount of [REDACTED], and

g) that Bryan Michael Swope, individually, be PAID a statutory fee for his services performed as the Personal Representative in the amount [REDACTED].

      SECOND, that [REDACTE] be set aside for covering and addressing tax consequences, if any, as a result of the sale of real and personal property, and

      THIRD, that all remaining unrestricted cash, if any, and Osage Indian restricted property interests, be PAID AND DISTRIBUTED according to the Oklahoma laws of intestate succession as set forth.

         It is Further Ordered, Adjudged, and Decreed by the Court that this Order Approving Final Accounting and Decree Distributing Estate and Discharging Personal Representative may by itself be relied upon to pass title to, and vest interests in, all such distributed interests. Furthermore, this Order may be relied upon to distribute title to, and vest interests in, the rest, residue and remainder of the Decedent’s assets, including all subsequently discovered assets.

         It is Further Ordered, Adjudged, and Decreed that the Personal Representative should be entitled to receive his discharge upon filing a final report to the court verifying that all claims approved for payment have been paid, that the attorney’s fees and costs have been paid, and that the entire estate has been distributed; and that upon the filing of said final report he may be discharged and have no further duties or obligations with regard to the Decedent’s estate in all respects.

Dated this 24th day of October, 2022.

The Honorable Stuart Tate

THE HONORABLE STUART TATE

Judge of the District Court

 Prepared By:

Steven L. Holcombe, OBA #4287

Attorney for Personal Representative Bryan Michael Swope

[1] See Property No. 2 in the General Inventory filed herein.