Oklahoma Estate Planning

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

The process of naming a guardian for your children

While it is not the most exciting part of the estate planning process, nominating the people you want to be the guardian of your children obviously has a huge impact.  When parents pass away, the guardianship of minor children is established by a court.  The court either follows a statute which lists relatives who are entitled to be named guardians or, looks to your nomination.  If the court is required to name a person listed in the statute, there is more potential for conflict over who is named the guardian.

Conversely, the nomination is important because unless there are specific facts that make the people you nominate unfit, the Court usually appoints the people who are nominated.  You “nominate” people by simply naming them in a Will or Trust.  In the process of addressing many other estate planning issues, people can cover the issue of guardianship.

Tomorrow, I will discuss the factors to consider in determining who your guardian(s) should be.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Oklahoma estate planning: If I have a living trust, do I still need a will?

I have talked quite a bit both on this blog and in my Oklahoma estate planning podcast about how the living trust in last will and testament work together. However, I realize there are still some questions about why someone would have a will if they already have a living trust. Also, the question comes up “why would I need a trust if I already have a last will and testament”?

Usually when you have a living trust you will also have a last will and testament which is often known as a pour-over will. The purpose of this will is to send any property that has not been transferred to your trust at the time you pass away to the trust. The living trust is still the primary document that controls your estate and disposes of your property. The pour-over will is a safety net that simply provides that all of your property goes to your living trust.

If you have a fully functional last will and testament, you probably will not have a living trust. In this case, the last will and testament will actually determine where your property goes, nominate guardians for your minor children and address other issues related to death in the transfer of property.

If you want to find out more about these topics please consider listening to my podcast series which is 8 brief episodes providing more detail on estate planning. You can subscribe to the podcast, Estate Planning Demystified, in iTunes or listen to it right here.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Why you might want an Oklahoma prenuptial agreement

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I am no fan of prenuptial agreements. The concept and tone that it sets seems flawed and negative. Having said that, I came across a few reasons recently why it makes sense in some cases to have a prenuptial agreement.

Why use a prenuptial agreement (“PNA”)? Because a PNA removes the need to determine what is a “marital” and what is “separate.” Each spouse is agreeing to take a fixed portion of other’s estate, regardless of how it is classified. It removes the concern that some “separate” property may be commingled and ended up being treated as “marital” property.

The PNA also may serve to protect the spouse who has little. Consider this example that I found recently provided in the Oklahoma Probate Handbook:

A man of wealth in his forties marries for the second time a woman without means and they live happily for forty years off the earnings of his separate property. No property was acquired by joint industry, neither spouse having worked. He dies, leaving all of his property to charity. Except for the wife’s homestead right and widow’s allowance, she is left destitute and penniless.

A PNA would have provided the woman with a defined share of the separate property, something in addition to the homestead right and widow’s allowance.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Estate Planning Demystified – The Podcast Series

Earlier this year I recorded an 8 episode series called “Estate Planning Demystified”. This is my discussion of the basics of estate planning, what it is, what the tools are and why you would want to do it.

 

 

You can subscribe to the entire series right here on iTunes or check out any of the individual episodes below:

Estate Planning Demystified – The Introduction

Estate Planning Demystified – Episode 2: The terms

Estate Planning Demystified Episode 3 – An Oklahoma Will or a Trust?

Estate Planning Demystified Episode 4 – The Living Trust

The post-rapture edition: Estate Planning Demystified – The Will

Estate Planning Demystified Episode 6 – “The Living Will”

Estate Planning Demystified Ep. 7 – Durable Power of Attorney

Estate Planning Demystified – Ep 8 – The Finale

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

What is a surviving spouse entitled to receive under Oklahoma law?

Oklahoma ice Larry Smith from Flicker https://flic.kr/p/iwixig License: https://creativecommons.org/licenses/by/2.0/

In an Oklahoma statute that is equal parts interesting and antiquated, the surviving spouse is entitled to get all of the following items after the death of the first spouse:

1. All family pictures.

2. A pew or other sitting in any house of worship.

3. A lot or lots in any burial ground.

4. The family Bible and all school books used by the family, and all other books used as part of the family library, not exceeding in value of One Hundred Dollars ($100.00).

5. All wearing apparel and clothing of the decedent and his family.

6. The provisions for the family necessary for one (1) year’s supply, either provided or growing, or both; and fuel necessary for one (1) year.

7. All household and kitchen furniture, including stoves, beds, bedsteads and bedding.

 

These are not the only things the surviving spouse is entitled to, but they are some of the items that the Oklahoma Legislature considered important when the statute was added in 1947!.

Title 58, Section 311.

The other thing to keep in mind is that none of these items are subject to be taken or sold to pay debts.  This means there is swath of items that creditors cannot touch under Oklahoma estate law, a necessary protection for family.

 

Oklahoma Estate Planning

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

4 reasons you need an Oklahoma Power of Attorney

An Oklahoma Power of Attorney allows you to give someone else (usually a spouse or relative) control over your affairs when you are not able to control them.  You can hear more about the Oklahoma Power of Attorney in my podcast series, “Estate Planning Demystified”, episode 7 discussing the Oklahoma Power of Attorney.

What can an Oklahoma Power of Attorney do you for you?  Allow me to list benefits below:

1.  The Oklahoma Power of Attorney lets you choose the person you want to act on your behalf.  If you do not select someone, your family will probably be required to have a guardian appointed and it may not be who you prefer.

2.  The Oklahoma Power of Attorney prevents your family and friends from having to petition a court for guardianship, a time consuming and costly process.

3. The Oklahoma Power of Attorney lets you define when you are incapacitated, rather than leaving this decision for relatives to fight over in court.

4. The Oklahoma Power of Attorney lets you define and limit the powers of your attorney in fact (the person you choose) rather than defaulting to the limits set by Oklahoma law.

If you are interested in putting an Oklahoma Power of Attorney in place, please let me know.

 

Oklahoma power of attorney forms

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Oklahoma estate planning: If I have a living trust, do I still need a will?

Vic from Flickr https://www.flickr.com/photos/59632563@N04/6239670686 License: https://creativecommons.org/licenses/by/2.0/

 

I have talked quite a bit both on this blog and in my Oklahoma estate planning podcast about how the living trust in last will and testament work together. However, I realize there are still some questions about why someone would have a will if they already have a living trust. Also, the question comes up “why would I need a trust if I already have a last will and testament”?

Usually when you have a living trust you will also have a last will and testament which is often known as a pour-over will. The purpose of this will is to send any property that has not been transferred to your trust at the time you pass away to the trust. The living trust is still the primary document that controls your estate and disposes of your property. The pour-over will is a safety net that simply provides that all of your property goes to your living trust.

If you have a fully functional last will and testament, you probably will not have a living trust. In this case, the last will and testament will actually determine where your property goes, nominate guardians for your minor children and address other issues related to death in the transfer of property.

If you want to find out more about these topics please consider listening to my podcast series which is 8 brief episodes providing more detail on estate planning. You can subscribe to the podcast, Estate Planning Demystified, in iTunes or listen to it right here.

Oklahoma Estate Planning

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

Can I give away all my property so my spouse gets nothing with Oklahoma Estate Planning?

I’m not sure why someone would want to do this, but in Oklahoma there are laws that prohibit it.

One is the statutory prohibition on the right of a spouse to will away from the surviving spouse so much of the estate that the surviving spouse would receive less in value than an undivided one-half interest in the property acquired by joint industry of the husband and wife during coverture.   A person cannot disinherit a spouse without some type of prior agreement.

If a spouse tries to do this, the surviving spouse has the right of “election”: the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives the right that he should not enjoy both.

One exception to this rule is if there is value pre-nuptial agreement.

If you have any questions about this post, Oklahoma estate planning, Wills, Trust or Oklahoma probate, feel free to contact me anytime at sjr@shawnjroberts.com.

 

 

 

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

6 ways to avoid Oklahoma probate after death – the Series

I counsel people who desire to avoid probate to take the necessary steps now to get it done.  Usually, that means creating a living trust and/or re-titling real property.  However, I know from experience that things are not always done before death.

For that reason, I put together a six blog post series 6 ways to avoid Oklahoma probate after death about steps you can take following someone’s death to avoid Oklahoma probate while at the same time getting to the property.  You can find all the posts here on the blog but I am also providing the collection and links to each post below:

#1 Way to avoid Oklahoma probate after death – Small Estate Affidavit

#2 Way to Avoid Oklahoma probate after death – life estate or joint tenancy

#3 Way to avoid Oklahoma probate after death – Affidavit>Delivery>Personal Property

#4 Way to avoid Oklahoma probate after death – Government death benefits

#5 Way to Avoid Oklahoma probate after Death: Vehicles, Boats, Motors

#6 Way to avoid Oklahoma probate after death – Unclaimed Property

If you have questions about Oklahoma probate or transferring assets in Oklahoma after someone has died, please feel free to contact me at sjr@shawnjroberts.com

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

Estate Planning Demystified – Ep 8 – The Finale

In Episode 8 of 8, the finale of this podcasts series Estate Planning Demystified, I talk about putting it all together, working with the pieces of of the puzzle and give my best recommendation ever. Items covered in this episode include:

1. Review and summary of the previous episodes;
2. The Trust, Last Will and Testament, the Durable Power of Attorney; and
3. The most important recommendation and piece of information in this series.

As always, if you want to contact me check out my website at www.shawnjroberts.com or email me directly at sjr@shawnjroberts.com

Direct Download
iTunes Download

 

 

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning, Podcast Episodes