-CAVEAT - The Answers and Opinions expressed on this page are general in nature, and the Answers and Opinions that our office would most likely give you.

You should also be aware that many of the Answers and Opinions expressed on this page represent our opinion and do not necessarily reflect the views of the entire legal community!

Laws in different states may vary. Since we practice in Oklahoma the views in this segment reflect Oklahoma Law, and the law applicable in your state may be different.

You should not consider these Answers and Opinions as legal advice applicable to your particular case and circumstances.

In planning your affairs you should consult directly with an attorney of your choosing, acquainting him / her with all of the facts and circumstances which apply to you.

In planning your affairs you should always get a second opinion.

One of the most frequently asked questions is for us to explain the difference between a 'Living Trust' and a 'Living Will'

LIVING WILL

A 'Living Will' is but one portion of an Advance Directive For Health Care

This instrument, authorized by Oklahoma Rights of the Terminally Ill or Persistently Unconscious Act, Title 63, Okla. Stats., Sect 3101.1, et seq, allows you to give directions concerning the use of extraordinary life sustaining procedures in the event you are Terminally Ill or Persistently Unconscious.

You may also appoint a 'Health Care Proxy', and direct the donation of organs by this instrument.

Other states may have statutory provisions allowing such an instrument.

LIVING TRUST

This is a Trust Agreement Popularly known as a 'Living Trust' which has gained wide acceptance in recent years.

These are generally revocable, and in some cases may be used to avoid probate. In order to be effective they must be periodically checked and all property to be included in the trust must be identified - either in the trust, or titled property must be held in the name of the Trust.

- Caveat: - Many times this instrument is meant to be used to avoid probate, but sometimes valuable items, i.e., jewelry, stamp and coin collections, antiques, etc., are not properly transferred to the Trust, and a probate may be necessary to distribute those items.

- This is the reason that Most Attorneys/Companies that prepare these Revocable Trusts also prepare a Will at the same time!

If you intend to have such a Trust to avoid probate, you should go over the Trust with your attorney not less than annually to be sure that all of your property is included.

- Caveat: - Some non-lawyer Companies have begun to Sell these Living Trusts almost door to door, with unsolicited phone calls, advertisements and referrals.

They usually charge exorbitant prices for an attractive book which contains everything such a Trust looks like it ought to contain.

However, most of these companies never finish the paperwork by the actual transfer of property into the Trust!

Such a Trust may have no useful purpose to anyone except the persons who sold it!

Never purchase such a Trust by mail, over the phone or from a door to door salesman!

Before making a decision about a Living Trust contact an attorney you have confidence in! - One who will carefully explain to you what such a Trust Will do - and What it Won't Do!

Q. - Will a Revocable Trust Save on Estate or Inheritance Taxes?

A. - Generally, No! - The value of all property over which you have the power to control must be included in computing the value of your Estate for Estate and Inheritance Taxes.

Even life insurance proceeds - Joint Tenancy interests - and even property you have disposed of without consideration within a specified period prior to death must be included in your taxable estate!

Upon death most States acquire an immediate Lien on all of your property.

This lien must be released by the governmental entity before the property Even though no Estate or Inheritance Taxes might be owed, an Estate and Inheritance Tax Return must be filed.

On Most Estates, where property passes to the surviving spouse or to lineal descendants, there would not be any Estate or Inheritance Taxes due - either in or out of a Trust!

Q. - Will a Revocable Trust Help Maintain privacy about my property?

A. - Sometimes - However, In many States a Memorandum of Trust Agreement must be filed with the public Records.

Where real estate is involved, proof of the death of the Trustee, and a showing that the Successor Trustee has the power to deal with the property also may become part of the public record!

Where Inheritance and Estate Taxes have been paid, the public record may also reveal the value of the estate which may be shown on necessary Releases issued by the Governmental Entities.

Q. - Will a Revocable Trust Help Speed up the Distribution of my property to those I want to have it?

A. - Yes! - Distribution, according to your wishes, by the Successor Trustee could be immediate, subject only to any claims of the taxing authorities.

However, you should weigh carefully the true value of the actual time savings before letting this consideration sway you.

See our FAQ - About Probate

One Example of when immediate transfer might be of real value would be a gift to a charitable institution.

Q. - If I Have a Revocable Trust, What Property should be In It?

A. - If your intent is to Avoid Probate - All of your property, down to every stick of furniture and your last dime!

If you have other good reasons for a Trust, We Recommend the following:

• Income Producing Properties;
• Properties Held For Investment Purposes;
• Stocks and Bonds

We Recommend the following not be held in the Trust:

• Family Home;
• Personal Checking Accounts - Besides the other good reasons for not having this in Trust, is that everytime you write a check you tell the world that you have a trust!
  
• Automobiles;
• Other Personal Property, furniture, etc.

Q. - Do I need a Revocable Trust?

A. - Your circumstances are unique to you, and without more information about your affairs, no attorney can answer this question with a Yes or No!

You should contact an attorney of your own choosing to discuss whether you should have one.

It is our opinion that a Revocable or Living Trust is not needed by certain people - and a waste of time and money for them to have one!

Those we discourage from having such a Trust include:

• People whose estate consists only of their home, furnishings, automobiles and bank accounts.
• People whose estate has a total value less than what would be subject to Estate and Inheritance Taxes in the State where they live.
• People who have already directed distribution of the bulk of their property by other means - i.e., Insurance Proceeds, Joint Tenancy
• People whose estate consists primarily of personal property.

This list is not all inclusive, and a personal conference with your own attorney is highly recommended.

- There may be many good reasons for you to have a Revocable Trust, but it is our opinion that if your sole reason for having one is to Avoid Probate, then you really don't need one!

FREQUENTLY ASKED QUESTIONS ABOUT WILLS

Q. - What is a Last Will and Testament?

A. - This instrument, referred to as a Will is an instrument, in writing, and executed according to the laws of the jurisdiction where you reside, which instructs the Court and the World what you want to be done with your possession upon your death.

Sometimes people ask about video taped Wills!

To be Valid, a Will must be executed pursuant to the laws of the State where it is executed.

A so called video taped Will is not a substitute for a Valid Will in Oklahoma, and we do not know of any jurisdiction where it would be.

However, a video tape of the execution of a Will may be used as evidence to show the circumstances of the execution, the competency of the testator and and that it was executed without coercion, undue influence or duress.

You should consult with an attorney in your own State to determine whether video taping the execution of your Will has any value to you!

Q. - Can I Write My Own Will?

A. - Yes! If you follow the statutory requirements you may write your own will.

In many States, including Oklahoma, a person may even 'handwrite' a Will, with no witnesses and no notary. This type of will is called a holographic or olographic Will.

- Before you ever attempt to do this, remember Howard Hughes and William Jennings Bryan.

Your cheapest insurance is to have your Will prepared by an Attorney!

Q. - Why Do I Need a WILL?

A. - So that you may control the distribution of your property and direct exactly who is to receive it upon your death.

With a Will you may also be able to cut down on the total cost and time required to complete a probate.

With a Will you may name the person who is to take charge of your estate.

Persons who absolutely should have a will Couples who have minor children may nominate guardians - and provide for trustee of their estate for the care of the children. Divorced Persons with minor children may nominate guardians in the event of the death of the other parent - and provide for trustees of their estate to insure the children benefit. Persons with children entering into a second marriage who want to insure that their own children are taken care of. These persons should also have a 'pre nuptial' agreement. - See FAQ - Pre Nuptial Agreements - Ante Nuptial Persons who may want to insure that one child has a different portion of the estate than might be otherwise provided by law. Persons who have no spouse and / or children need to provide an orderly distribution. Without a will it is possible that your estate may pass to unknown relatives. Persons who want to make specific gifts of particular property to particular persons. All persons who think they have already taken care of everything. - A Will is like a spare tire and covers those things that may have been overlooked. All persons who want to insure their last wishes are carried out!

Q. - If I move to another State, Is my Will Any Good?

A. - The general rule of law is that a Will validly executed under the laws of the State where it is executed is a valid Will in any other State.

- Although the Will may be valid, certain depository provisions in it may be contrary to the laws in the state where you move to.

Examples:

In Oklahoma, a surviving spouse has certain rights as provided in Title 84 O.S. Section 44 - Spousal Rights which he/ she may forfeit, but which cannot be taken away in a Will.

In Oklahoma, a surviving spouse may not be disinherited but has the right to elect to take the share to which he/she may be entitled under the laws of intestate succession as provided in Title 84 O.S. 213 - Intestate Distribution

See - FAQ - Common Law Marriages

In Oklahoma, a person my disinherit a child, while in other states this may not be allowed.

The actual distribution of your estate will be governed by the laws of the State which is your domicile at the time of your death.

If you move from one State to another consult an attorney in that State to determine what effect the move has upon your Will.

Q. - How Long is My Will Any Good?

A. - Your Will is effective until you revoke it. Wills that are 10 or 50 years old may be probated, and your property will be distributed according to your directions in it.

A will is Good only so long as it reflects your wishes as of today!

Your Will is not written in stone! - As conditions change - as children grow up - as grandchildren come - as children die prematurely - as family relations change - as your children's families suffer divorce or other catastrophe - as your estate increases in value - your own desires concerning the disposition of your property may also change.

You should periodically look over your will to determine whether or not it reflects what you would want to happen to your property today. If not, then it's time to make changes.

Q. - I Have a Will - Does my Will Need to be Probated?

A. - Having a Will does not prevent the necessity of probate proceedings, if you own any interest in property at the time of your death!

Because your Will is your expression of your last wishes, the law protects you when you are no longer able to protect yourself.

Many States require that your be produced in the Court shortly after your death. In Oklahoma, Title 58 O.S. Sec. 21 requires the custodian of your Will deliver it to the Court or Personal Representative within 30 days of receiving information of your death.

See - FAQ - About Probate

Q. - Why Do I Need a Lawyer?

A. - In many states, including Oklahoma, you are not required to have a lawyer to represent you in any legal proceeding, including probate.

You may even write your own will if you want to, without a lawyer.

You may also change the transmission in you car - but you need to know what you are doing!

- Caveat: - You should realize that many lawyers spend a great deal of their time in litigation correcting the mistakes created by persons who have chosen to write their own wills, or do their own legal work without sound legal advice.

Oklahoma Residents Only We Welcome Your Questions concerning the drafting of your Last Will & Testament. Many Times we are able to get all of the information on the phone or by E-Mail which may be necessary for us to prepare a first draft for your approval. If You would Like to receive a Simple Form which you may fill out which provides the basic information for preparation of your Will - Click Here and request Will Check-List. We Will Send the Form written in Word Perfect 12 as an attachment to our Response to Your Request.