Oklahoma Estate Planning

Oklahoma Estate Planning is about taking care of your family. The tools we use for Oklahoma Estate Planning are Trusts, Wills, Durable Power of Attorney, Living Wills and many other things.

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

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

The two primary uses of an Oklahoma Revocable Trust Trust

The Oklahoma revocable living trust is a fairly common estate planning tool.

I have written about using a trust to protect and plan for your family several times such as here, here and over there. The more I have worked with Oklahoma trusts and seen how my clients use them, I have come to see primarily used to accomplish two things:

The Probate avoidance Trust

The goal of the probate avoidance trust is to get all your property into it, then when you pass away, the trust passes all of your property to your heirs with no strings attached, without your heirs being required to file a probate case in court. Instead, the trust distributes your property to the people you choose.  When all the property has been distributed by the trust, the trust reaches the end of its life and is terminated. The Oklahoma probate-avoidance trust functions similar to an Oklahoma last will and testament, except with the trust, your heirs avoid the court-supervised probate case.

The Legacy Trust

The goal of what I call the legacy trust is to get all your property into your trust and when you pass away distribute all of your property to your heirs, over an extended period of time and possibly with some qualifying instructions (Note:  If this type of trust is properly created and managed, it to should help your heirs avoid probate). The legacy trust typically continues on for a lengthy period of time after you pass away doing things such as:

  • Providing for your children’s education
  • Protecting your children’s inheritance from their creditors
  • Gradually providing financial assistance on terms you design

 

The right trust for you and indeed even IF a trust is right for you is something I am happy to talk with you about.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning

Should your automobiles be transferred to your Oklahoma revocable living trust?

It is a good question.

The short answer is “yes,“ automobiles should be transferred to a person’s Oklahoma revocable trust, to receive the full benefits of Oklahoma estate planning. Below is a bit longer explanation:

Purpose of Estate Planning with a Revocable Trust

One of the purposes of doing estate planning with a revocable living trust is allowing a person’s family to avoid Oklahoma probate when the person passes away. The trust helps a person avoid probate because assets that typically force a probate case are owned by the trust when a person passes away (more on that here).

 
For example, if an individual owns real property at the time of his death, titled solely in his name, with no mechanism to pass the title to the property (such as a transfer-on-death deed), the real property is going to have to be probated to change the title to the heirs.
Contrasting that scenario with the revocable trust scenario, upon a person’s death where his revocable trust owns real property, the trust can continue as the owner and eventually transfer title to the property to the beneficiaries. Since a change in title is accomplished by the trust, there is no need to do a probate case based on the real property.

Automobiles and Revocable Trust

Automobiles come up a little bit short in terms of forcing an estate to be probated. There are scenarios where one can change the title to an automobile following a person’s death, by taking the original title to a tag agent and demonstrating that they are the beneficiaries entitled to receive the automobile. This showing of beneficiary status is usually accomplished with a last will and testament. This method is inconsistent and sometimes varies from tag agent to tag agent, so I do not recommend this method to my clients.

Instead, I recommend that my clients transfer title to their automobiles to their revocable living trust by signing the back of the original title at the tag agent. It’s a relatively simple process and allows people to get the full benefit of the revocable living trust.

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

Oklahoma Probate: Per Capita vs. Per Stirpes

Contrary to what it sounds like, stirpes is NOT something one visits the doctor to have treated.  

However, there are enough questions about the probate terms “per capita” and “per stirpes” to merit this blog post containing an explanation.  These terms describe different methods of sharing a deceased person’s estate when someone below the deceased person in the family tree has died before the decedent.  So, for example, Per Stirpes might be involved if a person, who had three children, passes away, leaving two living children and one child who died before the person who passed away. 

Per Stirpes 

Per Stirpes is a method of dividing an intestate estate where a class or group of distributees take the share which their deceased parent would have been entitled to, had he or she lived, taking thus by their right of representing such ancestor, and not as so many individuals.”** Essentially, Per Stirpes means that the relatives of the deceased person take the share their deceased parent would have taken.

Per Capita

Per Capita is a method of dividing an intestate estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree to the decedent, without reference to their stocks or the right of representation.”**  Essentially, Per Capita means relatives in the same generation each receive the same share of the estate.

**Both definitions are from the Oklahoma Court of Civil Appeals case Matter of Estate of Kinnamon, 1992 OK CIV APP 92, 837 P.2d 927, 928.

Per Capita with Representation

Per Capita with Representation is the method that Oklahoma uses for distribution when a person passed away without leaving a last will and testament.  With this version of per capita distribution, the number of shares is determined by reference to the generation nearest the testator which has at least one surviving person.  The image below shows a per capita with representation distribution, with the number of shares being determined at the grandchild level, since that is the first level where there is a surviving person.


This table summarizes the different distribution methods including per capita with representation, the method used in Oklahoma probate.

 

Posted by Shawn Roberts in Oklahoma Estate Planning

Two ways to change title to a car without Oklahoma probate

Image provided by Flickr user Keith Ellwood

Image provided by Flickr user Keith Ellwood

Would you like to know two ways you can change the title to a car owned by a person who died, without going through an Oklahoma probate?

If your answer is “yes”, you have found the right post. 🙂

I have written volumes on this blog about Oklahoma estate planning and a lesser amount about addressing the situation where someone died without doing estate planning.  I would like to provide a few cleanup tools that can be used to avoid probate even after someone didn’t do Oklahoma estate planning.

There are two options that may apply for changing the title to a car owned by someone who died with going through Oklahoma probate.

  1. Oklahoma No Administrator Affidavit.

My experience has been that most tag agents will transfer title to the vehicle following a person’s death when the No Administrator Affidavit is provided.  I wrote about this Affidavit on this blog post.  This document will generally allow the title to a car to be transferred if:

  • A properly completed No Administrator Affidavit is provided;
  • A certified copy of the death certificate is provided; and
  • The facts are such where the person asking for the change in title (ostensibly to themselves) has a clear right to receive the vehicle.
  1. Oklahoma Small Estate Affidavit.

The other option is the Oklahoma Tax Commission’s Small Estate Affidavit.  This document is used to transfer the ownership of a vehicle when:

  • The car is given to someone in a last will and testament,
  • The total value of the estate is not greater than $50,000.00, and
  • The person who is given the car in the last will and testament must sign the Oklahoma Small Estate Affidavit.

 

There are no guarantees of course; even when you think you have done everything correctly, the transfer of title still doesn’t happen.  If you run into this type of issue, give me a call or an email.

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

5 things you can do with an Oklahoma trust that you can’t do with a Will

From Jerry "Woody" on Flickr

From Jerry “Woody” on Flickr

One of the primary decisions a person has to make after they’ve decided they are going to do Oklahoma estate planning is whether they’re going to go the trust route or the last will and testament route.

Both routes allow a person to make decisions about how their estate will be distributed and how their family will be cared for. There are however some things that a person can do with a living trust that the same person cannot do with the last will and testament. I’m going to provide a list of some of these things that will hopefully be helpful is another tool for determining whether you want to go the trust route or the last will and testament route.


 Your family can avoid probate.

As I wrote about in this post,  a Will does not provide any means to avoid probate. If you pass away owning real property that is not jointly titled, your heirs will be going through the probate process at some point. With an Oklahoma trust, however, the trust exists and owns the real property the day it is transferred into the trust. Since the Trust is the owner of the real property, the death of an individual does not impact this.  No probate case is required to transfer title to the real property.  Your family saves time and money.

 Protect your privacy.

Privacy is one of the most significant underrated features of a 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 errors must file 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.

 Plan for a special needs child.

If you have children, grandchildren, or other dependents with special needs a Trust can be customized to meet these needs, by specifying and limiting access or control over the inherited property. A Will allows you to pass on your property to those heirs but a Will in itself does not allow you to exercise substantial control or provide protection for your heirs’ use of the property.

 Facilitate your care during disability.

Creating a revocable trust is an excellent way to ensure your property remains available to be used for your benefit if you become incapable of managing your own affairs. While continuity of management is also possible when a durable power of attorney is signed, third parties such as banks, brokers and transfer agents often have more difficulty in dealing with a power of attorney than with a trust. And, if the designated attorney-in-fact is unable to act, the power of attorney may not be usable.  If you become disabled and you have neither a revocable trust nor a power of attorney, an expensive, lengthy, and potentially embarrassing court proceeding is generally required to appoint a conservator or guardian before your property can be used to benefit either you or your family. And even after a guardian has been named, continued court supervision over the management of investments and disbursements is usually required. This can include annual bond fees, annual fees for providing a court-ordered accounting and additional legal and accounting fees.  A Will is not helpful in this area because it does not go into effect until you pass away.

 Allow your family to have immediate access to your assets at death.

Assets in a revocable trust at the grantor’s death are available to raise cash to pay income, estate and other taxes, administration expenses and debts immediately after death, without waiting for a probate decree or issuance of preliminary letters. If the trust is funded prior to death, the property in the trust remains in the trustee’s name before and after death and is immediately available for liquidation should the need arise.

Posted by Shawn Roberts in Blogposts, Oklahoma Probate

Why is Oklahoma estate planning important? It may help avoid a nuclear-class family disaster . . .

Why is Oklahoma estate planning important?

I have asked and answered that question hundreds of times both on this blog and in real life. My answer generally is because it protects your family when you are gone. One of the primary protections is disputes over how you would’ve wanted your property to be distributed in your family taking care of.

However, nothing makes the point better than seeing the result of the failure to plan. Let me give you a factual scenario that is rooted in real-life events:

Husband and wife Mary in their late 30s. Both have children from previous relationships. They own their home, another rental property and some lake-front property in another part of the state. They live happily for 35 years until husband passes away. Neither husband nor wife has a will or a trust.

Wife, who is now a widow in her late 60s, is left to administer the estate. She is guided by what she believes her husband wanted. However, the husband’s children from his first relationship don’t see things the same way as the wife. With no Will or Trust to resolve the issues, the wife and the children are left to battle in probate court over the property. Although probate is usually a fairly routine, process, this probate is akin to a full-blown adversarial no holds barred lawsuit. Everyone involved believes they knew what husband wanted but nobody has clear enough proof to prevail quickly. Thousands of dollars in attorney fees and incalculable amounts of emotional damage occur throughout the process.

How could this have been avoided?

The Husband could have expressed his wishes on paper, in a last will and testament.

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

5 critical questions to answer when doing Oklahoma estate planning

 

Have you ever wondered what the key questions are when thinking about estate planning for your family?

Generally, you decide what you want to with the things you have and how you want take care of your family after you pass on.  A few years ago I laid out some of the key questions to consider when doing estate planning in this post.

As you think about what you want to do with the things you own when you pass away and to best protect your family, here are several more important points to consider:

  • Who will you designate to act as your personal representative (the person or corporation who will see to the administration of your estate)?
  • If the creation of a trust appears possible, what person, persons, or corporation would you wish to act as trustee?
  • Are there any specific items of real or personal property you would wish to go to particular persons?
  • Who would you wish to take the responsibility for the care of your minor children, if any?
  • At what age or ages would you feel your children should receive substantial assets (not simply support for their health, education and welfare)?

After you think about these questions a bit, it might be worth checking out this post about Oklahoma Estate Planning Tools and this post about simple Oklahoma Estate Planning with a trust.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning