WILLS
A will is a written instrument by which you provide for the disposition of your property after your death. In Oklahoma if you are of sound mind and age 18 years or over, you may dispose of your property by will.
There are several reasons for having a will. Most importantly, having a will allows you to decide who will receive your property rather than leaving that choice to state law. Having a will also allows you to choose your personal representative and to eliminate the cost of a personal representative's bond the probate court would require if a probate of your estate is necessary. Without a will, the court will appoint someone as personal representative who may not be who you would have chosen. Your attorney can advise you as to whether or not your estate will need to be probated.
Equally important, if you have minor children you can name their guardian in your will. Without a will, the court may appoint a guardian who may not have been the person you would have chosen.
If you die without a will, Oklahoma law effectively writes one for you. These laws set a rigid formula and make no exceptions for those in unusual need. Your estate still must be administered in court, and often the cost will be greater than if you had planned your estate with a will.
Assuming your estate is not controlled by a prenuptial marriage contract, if you die without a will leaving a surviving spouse and children, generally your spouse takes one-half of your estate and your children share equally the remaining one-half. Special rules apply if you have children from a prior marriage and you have property acquired during your last marriage as well as separate property.
If your children are minors, your surviving spouse, in order to use their portion of your estate for their support or education, would either have to be appointed guardian of the children by the court or have someone else appointed, give a bond, make annual accountings to the court and obtain the court's permission for many routine transactions. This will result in considerable expenses as well as legal difficulty.
You may modify or revoke your will at any time. You should take steps to revise your will whenever changes in the size or circumstances of your family or estate mean that your old will no longer disposes of your property as you want. All changes, to be effective, must be made in strict conformity with the law. Any change made in a will by erasure or in your handwriting or typed as an insertion is likely to be invalid.
A court will consider a document to be a valid will if, looking only at the document itself, it finds that it was intended to be the final expression of the person's wishes. Additionally, the person creating the will must be of "sound mind." While each state varies in its specific requirements, sound mind is usually established in court by showing that the person making the will:
- Was legally old enough to understand what they were doing, usually 18 years old
- Knew what assets they owned
- Directed the disposition of those assets to people or institutions generally expected to receive them
- Understood that, by signing it, the will made a final disposition of property. This requirement generally only requires that the person understand the will and its contents at the time of signing. Thus, a person who is failing mentally but still has "good" days can make a will during a lucid periods as long as the person understands what they are signing.
Usually, a letter stating one's desires or a list of property is not a valid will. There are many types of wills, including holographic wills, video wills, and self-proving wills, and each has it own requirements in order to make it valid. While each state law varies, a will must generally have witnesses in order to be valid.
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TRUSTS
A trust is a legal property interest held by one person for the benefit of another. The person who holds the legal property interest is called the trustee. The person for whom the property is being held is called the beneficiary. The person establishing the trust is called the grantor. A trust can be revocable or irrevocable. Revocable trusts may be changed or terminated by the grantor at any time and for any reason. An irrevocable trust, once established, cannot be terminated or altered for any reason. A trust designed to go into effect upon your death is called a testamentary trust. However, experienced estate planning attorneys often use living trusts, created while you are still alive, as a way to avoid probate and its associated costs.
Ordinarily you serve as the sole trustee until you die or become incapacitated. After your death, the trust document can provide for the distribution of any remaining property to those persons or entities you have chosen or provide for the continued management by a successor trustee for many years, with ultimate distribution as you direct. The primary advantage of a revocable trust over a will is that upon your death, the administration of your estate in probate court is avoided and the distribution of your property is governed by your trust outside of the probate court system. This normally results in a quicker and less costly distribution of your property to the people you have selected. In addition, a revocable trust is a private document which is not recorded at the courthouse or anywhere else. In this regard a trust is unlike a will which, if probated, normally requires a list of your property and its value to be public record at the courthouse. When a revocable trust is fully funded, by conveying all of your property into your trust during your lifetime, no probate of your estate is required. You may amend or revoke your revocable trust during your lifetime so long as you retain the mental capacity to do so.
Trusts allow the trustee to direct or control the property or other legal rights that are in the trust. Trustees have a legal duty to make decisions regarding the trust property in the best interests of the beneficiary. In addition to true legal trusts, other trust-like instruments you may use to involve others in the execution of your wishes include the following:
- Power of Attorney: A power of attorney gives someone you trust the ability to make decisions for you, when you are incapacitated. That person does not have to be an attorney although he/she will be known as your "attorney in fact." A power of attorney used to address broad issues such as medical care decision is called a Health Care Power of Attorney. A power of attorney can also address narrow issues and simple decisions including the purchase of a single parcel of real estate.
- Health Care Directive and Living Wills: In a health care directive you make the decisions regarding your medical care for all situations should you become incapacitated. A living will is a narrower form of a health care directive, generally limited to situations in which death is imminent. Every state recognizes a patient's right to make fundamental choices about the care and treatment he/she receives at or near the end of life. Health care providers must generally honor the terms of living wills and advanced medical directives.
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Morgan Allen King serves clients throughout all of Oklahoma, including, but not limited to, the cities of Ada, Altas, Ardmore, Bethany, Chickasha, Choctaw, Clinton, Del City, Edmond, El Reno, Elk City, Enid, Guthrie, Lawton, McAlister, Mid West City, Moore, Mustang, Norman, Oklahoma City, Ponca City, Shawnee, War Acres, Weatherford, Woodward, Yukon |
