Shawn J. Roberts

It is huge accomplishment to have your Last Will and Testament done. You can rest easier knowing you have provided for your family and created an orderly plan to transfer what you have to who you want it to go to. Once you have this done, there are several times in your life when you may need to consider updating the Will or Trust to match current your circumstances. Let me mention a few:

1. You have another child.

2. Someone named in your Will to act as your personal representative (executor) either is no longer around or no longer wants to serve.

3. Someone in your Will who you left a large part of your estate to has passed away.

4. Children named in your Will or Trust have grown up and are ready to receive their inheritence with fewer strings attached to it or no strings at all.

5. You have divorced, suffered the death of a spouse or remarried. (It is particularly important in a second marriage that involves children from previous relationships to carefully plan your estate).

6. You have simply changed your mind about what you want to give, who want to help administer your estate or who to whom you want to give your property.

You update your Will or Trust becauase you want it to reflect your current thoughts and circumstances. If circumstances have changed, feel free to contact me to discuss updating your Will or Trust at sjr@shawnjroberts.com.

Oklahoma Estate Planning

While it is not the most exciting part of the estate planning process, nominating the people you want to be guardian of your children obviously has a huge impact.  When parents pass away, the guardianship of minor children is established by a court.  The court either follows a statute which lists relatives who are entitled to be named guardians or, looks to your nomination.  If the court has consider people named in a statute, there is more potential for conflict over who is named guardian.

Conversley, nomination is important because unless there are specific facts that make the people you nominate unfit, the Court usually appoints the people who are nominated.  You “nominate” people by simply naming them in a Will or Trust.  In the process of addressing many other estate planning issues, people can cover the issue of guardianship.

Tomorrow, I will discuss the factors to consider in determining who your guardian(s) should be.

I have followed daily deal sites such as Groupon and Living Social for a few years.  I like the concept and have wanted to try but it doesn’t seem to fit my law practice.  Google Offers could be different.  Rather than being a daily deal, Offers allows the users to set the time limit. You redeem the Google Offer by either printing out and sending me the Offer or showing it to me on your smartphone (although I would probably settle for a screenshot of the coupon).  Offers is tied to Google Places and having recently become a “verified” Google Place, I decided to try it.

My first offer is a discount on the normal Living Trust package (I am not working through the official “Google Offers” mechanism, but rather using the functionality for a merchant to offer directly).  The normal package includes:  

1. A Living Trust;
2. Pour-wills for both spouses;
3. Durable Powers of Attorney for both spouses; and
4. Living Wills for both spouses.

I usually charge a flat fee of $1,500.00 or higher for this work.  In my Google Offer, I am lowering the price by $25% to $1,125.00 (plus any out of pocket costs for things such as recording deeds).  Redemption in this case means paying the fee and starting the process.

If you are considering Oklahoma estate planning or know someone who is, here is the Offer.  If you have any questions, please feel free to email me sjr@shawnjroberts.com.

I have talked quite a bit both on this blog and in my Oklahoma estate planning podcast about how the living trust in last will and testament work together. However, I realize there are still some questions about why someone would have a will if they already have a living trust. Also, the question comes up “why would I need a trust if I already have a last will and testament”?

Usually when you have a living trust you will also have a last will and testament which is often known as a pour-over will. The purpose of this will is to send any property that has not been transferred to your trust at the time you pass away to the trust. The living trust is still the primary document that controls your estate and disposes of your property. The pour-over will is a safety net that simply provides that all of your property goes to your living trust.

If you have a fully functional last will and testament, you probably will not have a living trust. In this case, the last will and testament will actually determine where your property goes, nominate guardians for your minor children and address other issues related to death in the transfer of property.

If you want to find out more about these topics please consider listening to my podcast series which is 8 brief episodes providing more detail on estate planning. You can subscribe to the podcast, Estate Planning Demystified, in iTunes or listen to it right here.

I’m not sure why someone would want to do this, but in Oklahoma there are laws that prohibit it.

One is the statutory prohibition on the right of a spouse to will away from the surviving spouse so much of the estate that the surviving spouse would receive less in value than an undivided one-half interest in the property acquired by joint industry of the husband and wife during coverture.   A person cannot disinherit a spouse without some type of prior agreement.

If a spouse tries to do this, the surviving spouse has the right of “election”: the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives the right that he should not enjoy both.

One exception to this rule is if there is value pre-nuptial agreement.

If you have any questions about this post, Oklahoma estate planning, Wills, Trust or Oklahoma probate, feel free to contact me anytime at sjr@shawnjroberts.com.

Living Trust vs. Simple Will

This table compares the benefits of the revocable living trust and a simple last will and testament.  A revocable living trust is an agreement that determines how a person’s assets are handled during their lifetime and how it is distributed after death.  A simple Will distributes a person’s assets after death.

If you recall from the early part of this century, there was a huge legal battle in Florida over whether a poor woman named Terri Schaivo would be kept alive through artificial means (feeding tube) or allowed to pass away.  Her husband, who was estranged from her family wanted her to pass away, her family wanted her to remain alive through artificial means.  The result was 10 years of litigation, $100,000.00 of dollars in legal fees and unmeasurable pain for the family.  A court ultimately decided Ms. Schaivo should be allowed to pass away.

There is a way to prevent this type of battle.  In Oklahoma, it is done through an Advance Directive (living will).  This document allows you make decisions about how your end-of-life are is handled and appoint a person you trust to help the doctors carry out your decisions.  Most other states have the same type of living will provisions.

If the living will is done properly, the doctors, hospital and family are required to follow it:

A physician or other health care provider who is furnished the original or a photocopy of the advance directive shall make it a part of the declarant’s medical record and, if unwilling to comply with the advance directive, promptly so advise the declarant.

If you have questions about a living will or any other estate planning issues, please feel free to contact me and to find out more about estate planning listen to my podcast “Estate Planning Demystified“.