Oklahoma Estate Planning

This category contains posts on trusts, wills, durable powers of attorney, living wills and other issues related to estate planning.

Oklahoma Revocable Living Trust: Questions & Answers

The Oklahoma revocable living trust is a great tool for a person to use to take care of their family both before and after the person has passed away.  Below is some additional information about  Oklahoma trusts.

What is an Oklahoma living trust?
The living trust is also known as a “revocable trust,” a “revocable living trust,” and an “inter vivos trust.”  What is a trust?  Simply put,

A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. With the revocable living trust, you can be the trustee of your own trust, you keep complete control over all property held in trust but get the benefits of the law treating the trust as a separate legal entity.

For more information about the Oklahoma living trust, check out this Blog Post.

What are some of the advantages of having your assets owned by a living trust when you pass away?
*Elimination of the Probate Process
*Immediate and continuous access to assets and cash flow
*Protecting your assets and providing continuous cash flow in the event you become mentally or physically disabled or incapacitated prior to your death 
*Reduces the burden on the children and other family members to search and gather assets after death.

What are five things you can do with an Oklahoma trust that you cannot do with a will?
(1) Your family can avoid probate.
(2) Protect your privacy.
(3) Plan for a special needs child.
(4) Facilitate your care during a disability.
(5) Allow your family to have immediate access to your assets at death.

For more information about the things you can do with an Oklahoma trust that you cannot do with a last will and testament, check out this post.

Why is privacy a highly underrated feature of an Oklahoma living trust?
How is privacy part of the trust process? To understand this, you must understand what happens if a person dies with no living trust. If a person passes away owning real property, investment accounts, or mineral interest, usually that person’s heirs must file in a probate proceeding to access the property.

Oklahoma probate is a public process. You file a lawsuit in the County Court in which the deceased person lived, and all of the documents filed in the lawsuit are publicly available. Not only are the documents publicly available, but with current technology, most of the documents can be accessed from any Internet-enabled computer. That means anyone can view the documents that are part of the probate case, including the last will and testament, which often contains personal details and other private family matters.

You avoid probate by ensuring that all of your property is held by a living trust. If the property is held by the trust, there is no need to have a probate proceeding when someone passes away because the owner remains the same: the living trust. Your heirs have immediate and continuous access to all the property and no reason to make all of the details of the family public in an Oklahoma probate case. The process of administering a living trust is private nothing needs to be filed publicly like with probate.  To read more about the sneaky goodness of the privacy provided by an Oklahoma living trust, check out this Post.

 

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Oklahoma Estate Planning: Questions & Answers

A decent portion of this Blog is dedicated to Oklahoma Estate Planning:  wills, trusts, powers of attorney etc. . .

With that in mind, a summary post of estate planning topics seemed in order:

What is an Oklahoma Estate?
Since this Blog contains so many posts about Oklahoma “estate planning”, it makes sense to define what an “estate” is.  According to Investopedia, an estate is “everything comprising the net worth of an individual, including all land and real estate, possessions, financial securities, cash, and other assets that the individual owns or has a controlling interest in.”  You can read more about what an estate is in this Blog Post.

What are the tools used in Oklahoma estate planning?
Oklahoma Estate Planning tools: The Living Trust
Oklahoma Estate Planning tools: the Last Will and Testament
Oklahoma Estate Planning tools: The Durable Power of Attorney
Oklahoma Estate Planning tools: The Living Will

What are the critical decisions you make in an Oklahoma Will?
1. Determine who gets your property and in what proportions.
2. Choose the person who will take care of your estate and make sure everything is handled like the Will or Trust states.
3. Nominate people to be the guardians of your minor children.
4. Give specific items of personal property to very the person or people to whom you want them to go.

What are the 7 Myths of Oklahoma Estate Planning?
Oklahoma Estate Planning Myths: A will covers disposition of all your assets
Oklahoma Estate Planning Myths: Having a Will avoids Oklahoma probate
Oklahoma Estate Planning Myth: If I have a Trust, I do not need a Will.
Oklahoma Estate Planning Myths: If I die without a will, all my assets go to the government.
Oklahoma Estate Planning Myths: I can do my own estate plan
Oklahoma Estate Planning Myths: Estate Planning is only for the wealthy
Oklahoma Estate Planning Myths: I am too young for an estate plan

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Turning 18 in Oklahoma: The legal issues for parents to consider

Part of a young woman or young man’s journey into adulthood is turning 18, becoming legal so to speak. 

A young adult inherits many new rights and also corresponding obligations, including the right to vote, enter the military, play the lottery, and get married.  Conversely, newly-minted 18-year-old males must register with the Selective Service System and be called to serve on a jury. 

The change in legal status brought on by turning 18 also means that parents should consider getting several legal documents in place that will allow them to continue to care for their children:

Healthcare Power of Attorney
When your child turns 18, you as parents don’t necessarily have the right to make all healthcare decisions for the child.  Reaching the age of majority means your child has an accident and is incapacitated or temporarily disabled; unless you have an Oklahoma power of attorney, you might have to seek guardianship from the court.  Under an Oklahoma power of attorney, your child is authorizing you to act for them if they are incapacitated and there are medical decisions to make.  This type of power of attorney may be made effective immediately as an alternative to becoming effective when your child becomes incapacitated.

Financial Power of Attorney
Similar to the Healthcare Power of Attorney, the Oklahoma Financial Power of Attorney allows your child to appoint to make financial decisions, access bank accounts, pay bills, and the like for them.  This power of attorney can be effective immediately or only to become effective when your child becomes incapacitated.

HIPPA Authorization
This document, short of a power of attorney, is still helpful in that it will allow you to communicate with your child’s healthcare providers, even while your child is not incapacitated.  This may be particularly useful if you are still paying your child’s healthcare expenses and need to communicate with healthcare professionals.

 

The inspiration for this blog post came from a post written by Helene Wingens on the site Grown & Flown.  If you like what you read here, check out the full post on Grown & Flown.

 

If you have questions about this post or the document discussed here, please feel free to reach out to me anytime (sjr@shawnjroberts.com).

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

The magical, nearly mystical return of the Oklahoma Health Care Power of Attorney

Almost as quickly as it exited Oklahoma law, the Oklahoma health care power of attorney recently reappeared, albeit under a different statute number.  Below is the backstory about this elusive document which provides a valuable right.

The old law
Until November 1, 2021, Oklahoma law allowed people to make a power of attorney to address health care issues (e.g., talking to a doctor, agreeing to treatment, dealing with medications etc. . .). In the halcyon days of the Oklahoma Uniform Durable Power of Attorney Act, a person could give another person or people the ability to make a variety of health care decisions (Follow this link for a view of the previous POA statute).  The Health Care POA was useful and necessary because it covered a range of health care and medical decisions up to the end-of-life decisions that are instead made in an Oklahoma Advance Directive.  While a general power of attorney does cover primarily financial and personal decisions, it does not cover health care decisions.

The new law not covering health care
In 2021, the Oklahoma Legislature enacted a new Uniform Power of Attorney Act under Title 58 O.S. sec. 3001 et. seq.  This Act allows a person to make a power of attorney covering a wide range of decisions but stops short of health care decisions.  At the same time, the Oklahoma Legislature repealed the Uniform Durable Power of Attorney Act (Note: If you did a power of attorney under the Act prior to November 1, 2021, it remains valid under Oklahoma law).  So, following the flurry of power of attorney-related legislation, Oklahomans could do a power of attorney covering most personal decisions but not health care.

This was a problem.  Health care powers of attorney have been around for years and people routinely relied on the document to cover medical and health care decisions.  In the absence of the ability to do a health care power of attorney, there was a substantial void.  From my perspective, the Oklahoma Legislature tried to improve how powers of attorney were handled but somewhere in the process it forgot about health care.

The solution
Fear not, however, because it wasn’t long until the void was mostly filled:  The 2022 Oklahoma Legislature enacted a new Act that covered health care powers of attorney, known as the “Oklahoma Health Care Agent Act”, Title 63 O.S> sec. 3111.1 et seq.  The Health Care Agent Act, effective April 29, 2022, restored most of the options and rights Oklahomans need to do a health care power of attorney.

So, with the dust having settled, Oklahomans can once again make both a power of attorney for general matters and a health care power of attorney. 

Schedule an appointment with us today to create or update your Power of Attorney documents (405-562-7371). 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

In case you are curious: The anatomy of an Oklahoma Last Will and Testament

Similar to the way the human body is made up of different parts so too is an Oklahoma Last Will and Testament.  Below is a pictorial tour of the key components of an Oklahoma Last Will and Testament: 

 

Personal Representative

Guardianship Nomination

 

 

Powers of the Personal Representative

 

Intentional Disinheritance

 

Distribution of Property

 

Attestation Clause

This is the clause that makes Will “legal” under Oklahoma law.

 

Self-Proving Affidavit

Posted by Shawn Roberts in Oklahoma Estate Planning

The key terms to know in an Oklahoma living trust agreement

To understand an Oklahoma revocable living trust agreement it is helpful to understand some of the key terms and players used in the trust. 

Below are key definitions for the different roles in an Oklahoma revocable living trust agreement:

Settlor
The person who creates the trust agreement.

Trustee
The person or entity who holds legal title to the property that is transferred to the trust.  The Trustee is responsible for managing and administering the trust.

Beneficiary
The person or entity for which the trust holds the property.  A beneficiary might get something when the settlor passes away or the beneficiary might get a steady flow of income from the trust.

Trust Protector
“A trust protector can be an individual or a group of individuals that is not the settlor, beneficiary, or trustee. Their role occurs in a directed trust. The trust protector’s role, in essence, is to supervise the trustee. ”  Link to the definition.

Trustee advisor
“Means a person appointed by the terms of the trust instrument to act as an advisor to the trustee with regard to all or some of the matters relating to the property of the trust. Unless otherwise provided by the terms of the trust instrument, if a trustee advisor is appointed, the property and management of the trust and the exercise of all powers and discretionary acts exercisable by the trustee remain vested in the trustee as fully and effectively as if an advisor were not appointed, the trustee is not required to follow the advice of the trustee advisor, and the trustee advisor is not liable as or considered to be a trustee of the trust or a fiduciary when acting as an advisor to the trust.”  Link to the definition.

Principal
“Means any real or personal property which has been so set aside or limited by the owner thereof, or a person thereto, legally empowered that it and any substitutions for it are eventually to be conveyed, delivered, or paid to a person, while the return therefrom, or use thereof, or any part of such return or use is in the meantime to be taken or received by or held for accumulation for the same or another person.” Link to the definition.

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Practical Differences: Oklahoma Last Will and Testament vs. Revocable Trust

People are curious about the differences between and Oklahoma last will and testament and an Oklahoma revocable living trust.  In particular, people want to know how each document will impact them and their family.

On this Blog, I have written quite a bit about each of the Will and Trust and some of the differences.  You can check out this PAGE as a solid resource for finding a substantial amount of my written materials.  Below is a simple info graphic highlighting some of the differences between an Oklahoma last will and testament and an Oklahoma revocable living trust.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Do you know what an Oklahoma estate is?

You would be correct if you pointed to Investopedia’s definition of an estate:

An estate is everything comprising the net worth of an individual, including all land and real estate, possessions, financial securities, cash, and other assets that the individual owns or has a controlling interest in.

Each person has an estate during their life and following their death.  The difference between a person’s estate during life and death is that after death the estate technically becomes a separate legal entity.  Consider the Internal Revenue Service’s definition of an estate:

  • An estate (or decedent estate) is a legal entity created as a result of
    a person’s death.
  • The estate consists of the real and/or personal property of the deceased person.
  • The estate pays any debts owed by the decedent and distributes the
    balance of the estate’s assets to the beneficiaries of the estate.
  • An estate arises on a person’s death whether the person died with or without a will.

It is also worth pointing out that since you have an “estate” you need to make an “estate plan”, a topic that is discussed several places on this Blog: Here, Here and Here to mention a few.

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Oklahoma Probate

Oklahoma Estate Planning for the Married Couple —-> 1 Family Trust vs. 2 Separate Trusts, one for each Spouse

Usually, the threshold estate planning question is: Do I need an Oklahoma revocable trust or an Oklahoma Last Will and Testament?

Once that question is answered and the answer is an “Oklahoma revocable trust”, the question becomes ___ Does a married couple need one joint trust or one trust for each spouse? 

The answer to this question is relatively easy for me:  Almost always it is a joint trust.  However, there are circumstances where a married couple can use a trust for each spouse more effectively than they can use one joint spouse. Below is a table summarizing the benefits of a joint trust versus separate trusts for each spouse:

1 Family Trust  2 Separate Trusts
Easy to administer during the couple’s life since there is only trust rather than two separate trusts Allows a couple to maintain separate assets to comply with a pre-nuptial agreement
Easy to track and transfer property when there is only one trust to which to make transfers In a few cases where the marital estate is very very large (probably at least valued at $23,000,000.00), there may be some federal estate tax planning benefit to each spouse having their own trust
Less expensive and less complex to administer when the first spouse passes away Protecting inheritance property.  If one spouse is going to inherit property, having a separate trust for the inheriting spouse allows the inheritance property to [usually] remain separate from the marital estate

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

What are the components of an Oklahoma estate plan using a revocable living trust?

Flickr User Matthew P

If you are thinking about taking care of your estate planning, it will be helpful to know what type of things we offer. 

Below is information on what our law firm provides if you choose to use an Oklahoma revocable living trust.

 
We provide an Oklahoma revocable living trust and related documents as part of a comprehensive estate planning package. The revocable trust package includes services which are necessary to establish a comprehensive estate plan including:
 
    • Revocable Living Trust Agreement (one, two or more depending on the facts);
    • Pour-over Last Will and Testament for Husband
    •  Pour-over Last Will and Testament for Wife;
    • Durable Power of Attorney – Healthcare for Husband;
    • Durable Power of Attorney – General for Husband;
    • Durable Power of Attorney for Healthcare for Wife;
    • Durable Power of Attorney – General for Wife;
    • Advance Directive/Living Will for Husband
    • Advance Directive/Living Will for Wife;
    • The documents necessary to transfer all trust-appropriate assets to the newly created trust such as:
      • Deeds to transfer real property to the trust; 
      • Mineral Quitclaim Deeds to transfer mineral interests
      • Memorandum of trust (real property and personal property); and
      • Assignment of personal property; 
    • Assistance in transferring all trust-appropriate assets to the trust;
    • Review, revise and finalize documents based on client feedback
    • Meeting at our office to sign and finalize all documentation;
    • Instruction letter on transferring property to the Trust, assistance in actually transferring certain items of property,
    • An Estate Planning binder which contains all of the original documents you sign.
 
If you have questions about any of this material feel free to reach out to me.  If you are interested in seeing what we offer to people when an Oklahoma last will and testament is the centerpiece of estate planning, check out this post.
Posted by Shawn Roberts in Oklahoma Estate Planning