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. See Okla. Stat. tit. 84, § 213 (1994), for Oklahoma’s intestate distribution law.
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.
The Oklahoma Wills and probate lawyers at the Kania Law Office will advise you on the intricacies of Oklahoma Wills, Trusts, and Estates in setting up an estate plan which will protect your assets and execute your wishes.
What is Estate Planning?
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. See Okla. Stat. tit. 84, § 213 (1994). In the State of Oklahoma 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.
On the other hand, if 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. Okla. Stat. tit. 84, § 144.
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. See Okla. Stat. tit. 84, § 54.
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.
The experienced wills lawyers at Kania Law Office understand the personal nature of one’s right to die with dignity. With your wishes in mind, our Oklahoma estate planning attorneys can draft an Advanced Health Care directive, or Living Will, designed to safeguard your end of life medical decisions.
What is a Trust?
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.