We have found that many of our prospective clients frequently have questions and misconceptions about Wills and the disposition of their estates. If you have questions that we have not addressed in this section, please feel free to contact us with your questions, and we will be glad to answer them.
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What happens if I pass away without a will?
Many clients ask the attorneys at Todd Cone Law Office about what happens if someone dies without a Will. We routinely advise clients that the probate process when someone dies without a Will is much more complex and expensive. Instead of the assets being divided according to the provisions of the Testator’s Will, the assets are divided according to the provisions of Oklahoma law. Even if the Testator had expressed desires prior to their death about the division of their assets, those desires are not followed unless they are contained within a well-drafted Will.
The costs associated with creating a Will pales in comparison to the problems and cost that can arise from not having a Will. We highly recommend that every adult in the United States should consider a Will, and we advise our clients and prospective clients to seek competent advice from a lawyer who practices in this area before creating a Will.
Why do I need an estate plan?
Most of us spend a considerable amount of time and energy in our lives accumulating wealth. With this, there comes a time to preserve wealth both for enjoyment and future generations. A solid, effective estate plan ensures that your hard-earned wealth will remain intact as it passes to your beneficiaries, instead of being siphoned off to government processes and bureaucrats.
If I don't create an estate plan, won't the government provide one for me?
Why do I need an estate plan? If I don't create an estate plan, won't the government provide one for me?
Yes, but your family may not like it. The government’s estate plan is called “Intestate Succession” and guarantees government interference in the disposition of your estate. Documents must be filed and approval must be received from a court to pay your bills, pay your spouse an allowance, and account for your property-and it all takes place in the public’s view. If you fail to plan your estate, you lose the opportunity to protect your family from an impersonal, complex governmental process that can become a nightmare.
Then there is the matter of the government’s death taxes. There is much you can do in planning your estate that will reduce and even eliminate death taxes, but you don't suppose the government’s estate plan is designed to save your estate from taxes, do you? While some estate planners favor wills and others prefer a Living Trust as the estate plan of choice, all estate planners agree that dying without an estate plan should be avoided at all costs.
What's the difference between having a will and a Living Trust?
A will is a legal document that describes how your assets should be distributed in the event of death. The actual distribution, however, is controlled by a legal process called probate, which is Latin for “prove the will.” Upon your death, the will becomes a public document available for inspection by all comers. And, once your will enters the probate process, it is no longer controlled by your family, but by the court and probate attorneys. Probate can be cumbersome, time-consuming, expensive, and emotionally traumatic during a family’s time of grief and vulnerability.
A Living Trust avoids probate because your property is owned by the trust, so technically there's nothing for the probate courts to administer. Whomever you name as your “successor trustee” gains control of your assets and distributes them exactly according to your instructions.
There is one other crucial difference: A will does not take effect until your death, and is therefore no help to you during lifetime planning, an increasingly important consideration since Americans are now living longer. A Living Trust can help you preserve and increase your estate while you are still living, and offers protection should you become mentally disabled.
What would happen if I were mentally disabled and had no estate plan or just a will?
The possibility of a disabling injury or illness scares me. What would happen if I were mentally disabled and had no estate plan or just a will?
Unfortunately, you would be subject to “living probate,” also known as a guardianship proceeding. If you become mentally disabled before you die, the probate court will appoint someone to take control of your assets and personal affairs. These “court-appointed agents” must file a strict accounting of your finances with the court. The process is often expensive, time-consuming and humiliating.
If I set up a Living Trust, can I be my own trustee?
Yes. In fact, people who create most Living Trusts act as their own trustees. If you are married, you and your spouse can act as co-trustees. And you will have absolute and complete control over all of the assets in your trust. In the event of a mentally disabling condition, your hand-picked successor trustee assumes control over your affairs, not the court's appointee.
Will a Living Trust avoid income taxes?
No. The purpose of creating a Living Trust is to avoid living probate, death probate, and reduce or even eliminate estate taxes. It is not a vehicle for reducing income taxes. In fact, if you are the trustee of your Living Trust, you will file your income tax returns exactly as you filed them before the trust existed. There are no new returns to file and no new liabilities are created.
Can I transfer real estate into a Living Trust?
Yes. In fact, all real estate should be transferred into your Living Trust. Otherwise, upon your death, depending on how you hold the title, there will be a probate in every state in which you hold real property. When your real property is owned by your Living Trust, there is no probate anywhere.
Is the Living Trust some kind of loophole the government will eventually close down?
No. The Living Trust has been authorized by the law for centuries. The government really has no interest in making you or your family suffer a probate that will only further clog up the legal system. A Living Trust avoids probate so that your estate is settled exactly according to your wishes.
Isn’t a Living Trust only for the rich?
No. A Living Trust can help anyone protect their family from unnecessary probate fees, attorney’s fees, court costs and federal estate taxes. In certain circumstances even individuals with small estates can derive meaningful benefits.
How is property divided if someone does not have a Will?
If someone dies without leaving a proper Will, their assets will be divided and distributed to his heirs, as they are determined by Oklahoma law. It is important to note that the “heirs” may not be the same people that the family might consider to be the heirs. Intestate succession, under Oklahoma law, lays out a very specific method for determining the identity of the Decedent’s heirs and also the shares of the Decedent’s estate that each heir is entitled to share.
Is a handwritten Will valid?
Under Oklahoma law, in order for a holographic will (handwritten will) to be valid, it must be written completely in the handwriting of the decedent, signed and dated by the decedent. No portion of the Will can be written in the handwriting of another person. While the holographic will does not require the signature of witnesses, it does require the signature of the person making the will, and it requires that the will express the Decedent’s true intent as to the disposition of his estate.
Are other family members liable for the Decedent’s debts?
When someone dies, any creditors that he may have at the time of his death are entitled to recover their debt only against the assets owned by the Decedent at the time of his death. Other family members are not liable to have to pay any debts of the Decedent. If his assets are insufficient to pay all of the debts, any unpaid debts will simply have to be cancelled by the creditor.