OKlaw4families

Do You Need a Will?     Should You Have a Will?

Here are some facts you should know before you decide "No."

A person does not have to be wealthy or elderly to do some serious thinking regarding an estate plan. If you own a home or a car or have a checking or savings account, you have an estate. Often a person with a small or modest estate is most in need of a plan to provide for the proper transfer of that property at death.
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.

Q: What if I die without a will?

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.

Q: What is a will?
 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.

Q: May I dispose of my property as I wish with a will?

Almost, but not quite. Under Oklahoma law, a married person may not completely exclude the surviving spouse because Oklahoma law allows the spouse to elect to take a certain portion of the estate despite the will. If your will does not name a child or in some cases a grandchild, or indicate that the child or grandchild has been considered, then the child or grandchild may have certain rights to take a portion of your estate. Your lawyer can explain these restrictions and show you how to accomplish your desires.

Q: May I change my will?
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.

Q: Does it cost more to have a will?

Obviously there is the cost of having an attorney prepare your will. But the cost of administering the estate of a person who dies with a will is normally less than the cost of administering the estate of a person who dies without a will. That is because you can include cost saving provisions in a will such as waiving the bond requirement for your personal representative as well as authorizing your personal representative to sell property and perform other functions without first obtaining permission from the court.

Q: Is joint tenancy a substitute for a will?

No. Joint tenancy may be a good way to title your property for a married couple, but to rely on joint tenancy ownership for estate planning is generally a poor idea. Usually a home is owned by a married couple as joint tenants. Upon the death of the first joint tenant, the property passes to the survivor by law. However, if real property is held in joint tenancy, an affidavit must be filed at the courthouse in order to terminate the joint tenancy. Your attorney can advise you on this procedure. Then there is the issue of how the property will pass when the surviving joint tenant dies. It is rarely if ever advisable to create a joint tenancy with someone other than your spouse. There are creditor hazards and tax hazards in such joint tenancies as well as other possible complications and expenses. Your attorney can advise you as to whether the use of joint tenancy outside of marriage is appropriate. Joint tenancy is simply not an adequate substitute for a will in most cases. Furthermore, if both joint tenants die simultaneously, both of their estates will require probate.

Q: How do I make a will?

Trusting your estate planning to a will form or computer program is not recommended. A will must be prepared within the legal technicalities prescribed by the law. These technicalities are for the protection of you and your heirs, but they must be observed.  The drafting of a will requires the professional learning, skill and experience obtained only by study, training and practice. Only a practicing lawyer can perform this service properly.  Some attorneys charge on the basis of time spent in preparation of a will while others have a flat fee. A few hours of an attorney's time now will save your beneficiaries the costs of litigation over a poorly drawn will and avoid the additional expense of a guardianship of your minor children. Your attorney will be glad to discuss the charge for services with you.

Q: Is a handwritten will valid?

Under Oklahoma law a will that is entirely written, dated and signed in your own handwriting, and which contains no typed or printed portion, is valid. The problems resulting from this type of will are not so much in what the person writing the will says as in what he fails to say. Without the advice of an attorney, most people who prepare handwritten wills fail to include provisions that address the issue of a beneficiary who dies before the will maker, the naming of a personal representative and waiver of his bond, the source for payment of estate taxes and the specific powers the personal representative will have, as well as the problem of the simultaneous death of the will maker and a will beneficiary. Your lawyer can explain these matters and show you how to simplify the administration of your estate as well as accomplish your desires with the best tax consequences.

Q: What is a living will?

A living will is part of a document called an advance directive for health care.  In the living will portion of such document, if you (1) have a terminal condition, or (2) become persistently unconscious, or (3) have an end-stage condition, you may direct that your life not be extended by life-sustaining treatment. Your directions go into effect if your attending physician and another physician determine that you are no longer able to make decisions regarding your medical treatment. As part of this living will, you may also make an election whether you desire the artificial administration of food and water under these circumstances if you are unable to take food and water by mouth.

Q: What is a revocable or living trust and what are its advantages instead of a will?

A revocable or living trust is a written document which becomes effective while you are living, unlike a will which takes effect after your death. A trust can be set up for a trustee to manage your property for your benefit during your lifetime or in the event of your incapacity. 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.

Q: What are the advantages of having a will instead of a living trust?

Generally the cost to prepare a will is less than the cost of preparing a revocable or living trust.  That is because a will requires no action on your part after it is signed and thus is simpler to create than a trust. On the other hand, a revocable trust is more complicated than a will because it involves the management of your property during your lifetime as well as its distribution after your death. In addition, a trust must be funded during your lifetime and this requires a lot of paperwork and legwork. Your attorney should assist you by explaining the steps necessary to put your property into the trust. Basically, they are two separate approaches to estate planning. You should consult with an attorney who works extensively in estate planning for an explanation of the advantages and disadvantages of wills, trusts and joint tenancies. Keep in mind, you can include in a will provisions to establish a trust. However such a will is usually no longer a simple will and the costs could approach what a revocable trust would have cost. Either a will or a trust can be used to transfer your property following your death.

Note: this information is based on the laws of the state of Oklahoma. It is issued to inform the public and not to advise. Only a lawyer can advise you on your particular problems.   Revised December 2006

Estate Planning Law in Oklahoma

When an individual passes away in Oklahoma, his or her real and personal property is gifted to loved ones through either the person's Will, a Trust or through the State's intestate succession laws. In Oklahoma, if a decedent has a properly executed Will, its terms will be enforced by the courts. However, if a person dies without a Will (Intestate), Oklahoma statute determines who your heirs are and what they receive.

If you have no Will and no heirs at law, your estate will pass (i.e. escheat) intestate to the State of Oklahoma.  For this reason and many others, a person's  Last Will and Testament is one of the most significant documents ever drafted for that person. Further, not only is this document significant to you, but it is crucial to your loved ones you leave behind. This is not only because it designates the distribution of your property, but also because it articulates your wishes, which makes the process easier for those left behind.

What is Estate Planning in Oklahoma?
Estate planning in Oklahoma is much more than having a Will.  Estate planning is the process of creating and implementing programs for the protection and transfer of wealth.  Just as each person is unique, so to is the state planning for each person.  Estate planning begins during your like and can continue long after your death.  It is the understating of your own limitations and the planning for possible guardianships and incapacity far in advance.  Estate Planning is also the process of simplifying the procedure of distribution and using methods to save on taxes, probate expenses, and administrative costs.  The remainder of this page describes different tools, instruments, and documents available to attorneys under Oklahoma law for estate planning. 

What happens when a person dies without having a Will?
To die without a Will valid under Oklahoma law is to die intestate.   When this occurs, the State of Oklahoma through its intestate distribution law decides how the Decedent's property will be distributed to his or her heirs.   In the State of Okalahoma the decedent's property is divided among their immediate family.  In what proportion and to who the assets go is determined by the relationship between the heir and the decedent.  If the decedent passes without children or other issue. such as grandchildren or great grandchildren, then the entire estate passes to the decedent's spouse. If on the other hand the decedent is survived by a spouse and one child the estate property is divided between the two heirs.  If the decedent has neither children nor a spouse then the property of the estate will go to the decedent's parents, so long as they did not predecease.  In the event the decedent's parents passed previously, the estate is divided between the decedent's siblings or the issue (i.e. linear descendents) of the siblings if any of the siblings predeceased.  The complexity involved in dying without a Will is obvious.

Wills under Oklahoma Law:
A will is an instrument or declaration by which one directs the disposition of one's real and personal property after death.  The State of Oklahoma requires that every Will be in writing and witnessed by two persons, with a very narrow exception of Nuncupative Wills.

Generally most anyone can act as a witness to the Will, but Oklahoma law does have some formalistic requirements.  One said requirement deals with the witness who is also named as a beneficiary in the Will.  In the event that a witness to the Will is also a beneficiary under the Will, Oklahoma statute restricts what that person may receive from the Will. 

If a witness to whom any beneficial devise, legacy or gift, void by the preceding section, is made, would have been entitled to any share of the estate of the testator, in case the Will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the Will, and he may recover the same of the other devisees or legatees name in the Will, in proportion to and out of the parts devised or bequeathed to them.  

Finally, a Will by definition is ambulatory, and can changed at anytime prior to death.  This means that the popular phrase, Last Will and Testament, as is often spelled out in the caption of a Will, is only truly final upon the Testator's death.

What is a Codicil to a Will in Oklahoma:
A codicil is a supplement to a Will, whereby a Codicil adds or deletes conditions or bequests found within the original Will. A codicil is subject to the same formalistic requirements as is a Will.  It is simply a later Will which does not altogether supersede a prior Will. 

What is a Holographic Will:
An Oklahoma holographic Will is a Will that is handwritten, dated and signed by the hand of the testator.  It is subject to no other form, and may be made in or out of this State.  Further, unlike a traditional Will, it need not be witnessed, since it is in the testator's own hand writing. 

Depending on the jurisdiction, either the entire Will, or the testamentary portions thereof, must be in the testator's handwriting by and through his or her pen.  Generally speaking, the testator's non-handwritten portions will be cut out and the court will determine if the decedent's testamentary intent can be derived or inferred solely from the handwritten portions of the text.  

What is a Self-Proving Will?
An Oklahoma Will whose proper execution is attested to in an affidavit found within the Will itself and separately signed by the two witnesses in front of a Notary Public.  The benefit of a properly executed Self-Proving Will is that the witnesses will not be required to appear in probate court and testify to the witnessing of the testator signing the will. 

What is a Living Will or Advanced Health Care Directive?
This devise is not a Will at all, but rather is a writing directing persons so chosen by its author not to prolong his or her life through the use of extraordinary medical procedures in the event that the signer has little expectation of a recovery.

What is a Trust in Oklahoma?
A Trust is the legal result of a process whereby a fiduciary relation is created with respect to real and personal property.  This relationship exists between the trustee who holds the assets of the trust for the benefit of another person, or trustor.  A unique characteristic of a Trust is that it separates the administration of property from its enjoyment.  Through the use of a Trust the person who creates the Trust is able to determine who, when, and how the beneficiary of the trust receives money, property, or the use thereof.  A Trust can be either testamentary or living. Living Trusts are either revocable or irrevocable once created by the Trustor.

Among the benefits of creating a trust is that once the assets of the Trustor are irrevocably placed in the Trust, (the Trust is funded) the same assets are no longer considered for tax purposes to be attributable to the Trustor.  Furthermore, for asset protection, the property of the trust is considered beyond the reach of many creditors.  Another advantage of creating a trust is that it can be used as a vehicle to avoid the long, expensive, and cumbersome process of probate court, after the Trustor passes.