The subject of wills, trusts, and estates all involve the planning and execution of the transfer and management concerning assets of a person who has passed away to the remaining family and other beneficiaries of that deceased person.
A will is a written document executed by a person who sets out the person’s directions on what is to be done with his or her property after her death. In order for the instructions contained in a will to be carried out a probate case must be filed in district court and legal proceedings are carried out under the authority of the court to complete the distribution of the estate.
A trust is a written document executed by a person which creates a trust which is similar to creating a corporation or other legal entity that has its own legal existence. Then, after the trust is created the person’s property is transferred to the trust which then owns the property. At death, the instructions of the trust dictate what is done with the deceased person’s property. A trust does not require any filing of a case and courts do not get involved in the estate. It is administered by the private trustees of the trust who were appointed or designated by the person creating the trust.
Estate Planning refers to the process of determining what mechanisms to use to give effect to a person’s plan for the division and administration of his or her estate when the time comes. It may involve the use of wills, trusts or other dispositional processes such as joint tenancy deeds, transfer on death deeds or contractual provisions of pay on death beneficiaries and designation of beneficiaries under accounts and insurance policies. Each individual and family is unique. As such, at Ritchie, Rock, McBride & Atwood we believe it is vital to take time at the beginning with our clients to understand your goals, wishes, worries, and fears.
Wills are historically the foundational and traditional way estate planning was done for years. The typical well-done will is drafted by an attorney working with the client to tailor it to accomplish that person’s desires for their property on death. They are drafted so that they are “self-proving” such that they can be admitted to probate without the necessity of witnesses appearing to prove they are the deceased person’s will.
Wills can also be very informally done as holographic wills. A holographic will is one which the person drafts completely in their own handwriting, is dated by them and signed by them. Holographic wills are highly discouraged in that they are a hotbed for litigation. A person that is not very knowledgeable about the laws of estates can make many mistakes in trying to do their own will which may well result in expensive litigation that may result in the entire will being determined to be invalid by a court.
When a person passes away and that person did not have a will or trust or other mechanism set up to pass their property to their family or intended beneficiaries it is referred to as a person passing away intestate. In such cases, the law of intestate succession dictates how their property is to be distributed to their heirs. In order to accomplish this, a case must be filed in the district court to administer the estate and the court determines to whom the property goes under the laws of intestate succession.
Property such as real estate, cars, boats, bank accounts and so forth that are titled assets present issues that must be resolved through a proceeding in district court in order to pass legal title to the heirs of the deceased person.
The most common form of trust seen in the present time is a “Revocable Living Trust”. They are quite popular and versatile. With these types of trust, the person creates a trust which they can change or even terminate at their own choosing during their lifetime. These trusts do not change the way a person does business. Even though a person has created such a trust and put their property in the trust they continue to operate as usual with full access to, and authority over their property just like normal. However, at death, their assets are disposed of according to their private instructions to their successor trustees without the need of any court case being filed.
Another form of trust is an “Irrevocable Trust”. With this kind of trust, a person creates the trust and transfers assets to the trust for the benefit of designated beneficiaries. Generally, speaking once created they are permanent and can’t be changed. These type trusts also avoid probate with the estate being administered according to private instructions given to the trustees of the trust.
There are a huge variety of ways, and mechanisms to use in estate planning. What is stated in the foregoing sections is not even to scratch the surface. If you are interested in estate planning or if you are going through the loss of a loved one and attempting to deal with the remaining estate the attorneys at Ritchie, Rock, McBride & Atwood are available to answer your questions. Give us a call.
Firm’s Primary Geographical Practice Region For Wills – Trusts – Estates
Pryor, Oklahoma, Tulsa, Oklahoma, Claremore, Oklahoma, Jay, Oklahoma, Shawnee, Oklahoma, Oklahoma City, Oklahoma, Rogers County, Oklahoma, Wagoner County, Oklahoma, Mayes County, Oklahoma, Delaware County, Oklahoma, Tulsa County, Oklahoma, Pottawatomie County, Oklahoma and Oklahoma County, Oklahoma.