Q: Should I have a will or a trust?
A: Here are some facts to help you decide:
A person does not have to be wealthy or elderly to do some serious thinking regarding an estate plan. If you own a home or a car or have a checking or savings account, you have an estate. Often a person with a small or modest estate is most in need of a plan to provide for the proper transfer of that property at death.
There are several reasons to have a will or a trust. Most importantly, having a will or a trust allows you to decide who will receive your property rather than leaving that choice to state law.
Having a will allows you to choose your personal representative. Without a will, the court could appoint someone as personal representation other than a person you would choose.
Having a trust allows you to avoid the probate court system altogether if your trust is created and funded properly.
Equally important, if you have minor children you can name their guardian in your will or trust. Your selection of a guardian is not binding on the court, but the court will give strong consideration to your selection. Without a will or a trust, the court may appoint a guardian other than the person you would have chosen.
Q: What if I die without a will or a trust?
A: Assuming your estate is not controlled by a prenuptial marriage contract, here are the general rules for how your estate will be distributed if you die without a will or a trust:
If you die leaving a surviving spouse and children, your spouse takes one-half of your estate, and your children split the remaining one-half in equal shares. If you die leaving a surviving spouse and no children, your spouse takes one-half of your estate, and your parents share the remaining one-half.
If you die single but have children, your children take your entire estate in equal shares. If you die single with no children, your parents take your entire estate. Oklahoma law provides for distribution of your estate in additional situations, all depending on the identity of your legal heirs. Special rules apply if you have children from a prior marriage and you have property acquired during your last marriage as well as separate property.
If your children are minors, your surviving spouse, in order to use their portion of your estate for their support or education, would either have to be appointed guardian of the children by the court or have someone else appointed, give a bond, make annual accountings to the court and obtain the court’s permission for many routine transactions. This will result in considerable expenses as well as legal difficulty.
Q: What is a will?
A: A will is a written instrument by which you provide for the disposition of your property after your death. In Oklahoma, if you are of sound mind and 18 years or older, you may dispose of your property by will.
Q: May I dispose of my property as I wish with a will or a trust?
A: Under Oklahoma law, a married person may not completely exclude the surviving spouse. Oklahoma law allows the spouse to elect to take a certain portion of the estate despite the will. If your will does not name a child or in some cases a grandchild, or indicate that the child or grandchild has been considered, then the child or grandchild may have certain rights to take a portion of your estate. Your lawyer can explain these restrictions and show you how to accomplish your desires.
Q: May I change my will or trust?
A: You may modify or revoke your will or revocable trust at any time. You should take steps to revise your will or trust whenever changes in the size or circumstances of your family or estate mean that your old will or trust no longer disposes of your property as you want. All changes, to be effective, must be made in strict conformity with the law. Any change made in a will or trust by erasure, in your handwriting or typed as an insertion is likely to be invalid.
Q: Does it cost more to administer an estate with or without a will?
A: Unfortunately, “it depends” is the appropriate answer. You could have the cost of having an attorney prepare your will, but you may also have costs for talking to an attorney for help with estate planning, even if you do not prepare a will. With a will, you can include cost-saving provisions such as waiving the bond requirement for your personal representative as well as authorizing your personal representative to sell property and perform other functions without first obtaining permission from the court. However, other procedures exist which may allow the same results or more favorable results, whether or not you have a will.
If you have a will, your estate will be “probated” in court. If you do not have a will, your estate will be “administered” in court. Both procedures are governed by the Oklahoma Probate Code (Okla. Stat. title 58) and many of the procedures apply equally to probate and estate administration. The Probate Code provides several methods to probate or administer an estate, some of which can reduce costs if used appropriately.
An attorney with a working knowledge of wills, inheritance, probate and estate administration can provide guidance on minimizing probate or estate administration costs and achieving the desired results for distribution of your estate.
Q: Is joint tenancy a substitute for a will or a trust?
A: No. Joint tenancy is a useful estate planning tool, but to rely solely on joint tenancy ownership for estate planning is generally a poor idea. Usually home and bank accounts are owned by married couples as joint tenants. Upon the death of the first joint tenant, the property passes to the survivor by law. The survivor becomes the sole owner of the property and should make additional provisions for distribution upon his or her death. If real property is held in joint tenancy, an affidavit must be filed at the courthouse in order to terminate the joint tenancy. Your attorney can advise you on this procedure.
There are creditor hazards and tax hazards in holding property in joint tenancy as well as other possible complications and expenses.
Your attorney can advise you as to whether the use of joint tenancy is appropriate. Joint tenancy is simply not an adequate substitute for a will or a trust in many cases. Furthermore, if both joint tenants die simultaneously, both of their estates will require probate; although, in some instances, both estates can be probated or administered through one court action.
Q: How do I make a will or a trust?
A: Using a will or trust form or computer program for estate planning is not recommended. A will or trust must be prepared within the legal technicalities prescribed by the law. These technicalities are for the protection of you and your heirs, and they must be observed. The proper drafting of a will or a trust requires the professional knowledge, skill and experience of a practicing lawyer. Some attorneys charge on the basis of time spent in preparation of a will or a trust while others have a flat fee. A few hours of an attorney’s time now will save your beneficiaries not only the costs of litigation over a poorly drawn will or trust but also the additional expense of a guardianship of your minor children. Your attorney will be glad to discuss the charge for services with you.
Q: Is a handwritten will valid?
A: Under Oklahoma law a will that is entirely written, dated and signed in your own handwriting, and which contains no typed or printed portion, is valid. The problems resulting from this type of will are not so much in what the person writing the will says as in what the person fails to say. Without the advice of an attorney, most people who prepare handwritten wills fail to include provisions that address the issue of a beneficiary who dies before the will maker, the naming of a personal representative and waiver of his bond, the source for payment of estate taxes and the specific powers the personal representative will have, as well as the problem of the simultaneous death of the will maker and a will beneficiary.
Your lawyer can explain these matters and show you how to simplify the administration of your estate as well as accomplish your desires with the best tax consequences.
Q: What is a living will?
A: A living will is part of a document called an Advance Directive for Health Care. In the living will portion of such document, if you 1) have a terminal condition, 2) become persistently unconscious, or 3) have an end-stage condition, you may direct that your life not be extended by life-sustaining treatment. Your directions go into effect if your attending physician and another physician determine that you are no longer able to make decisions regarding your medical treatment. As part of this living will, you may also make an election whether you desire the artificial administration of food and water under these circumstances if you are unable to take food and water by mouth.
Q: What is a revocable or living trust and what are its advantages over a will?
A: A revocable or living trust is a written document providing for the management of your property which becomes effective while you are living, unlike a will which takes effect after your death. A trust is set up for a trustee to manage your property for your benefit during your lifetime or in the event of your incapacity. Ordinarily you serve as the sole trustee until you die or become incapacitated. After your death, the trust document will provide for your successor trustee to distribute any remaining property to those persons or entities you have chosen (just as in a will) or provide for the continued management of your property by that successor trustee for many years, with the ultimate distribution as you direct. The primary advantage of a revocable trust over a will is that upon your death, the administration of your estate in probate court is avoided, and the distribution of your property is governed by your trust outside of the probate court system.
This normally results in a quicker and less costly distribution of your property to the people you have selected. In addition, a revocable trust is a private document which is not recorded at the courthouse or anywhere else. In this regard a trust is unlike a will which, if probated, normally requires a list of your property and its value to be public record at the courthouse. When a revocable trust is fully funded by conveying all of your property into your trust during your lifetime, no probate of your estate is required.
Another advantage is that a trust can continue after your death, holding property for the benefit of a spouse, a child or another named beneficiary. This is especially useful in the event the spouse, child or other beneficiary is disabled or is receiving assistance from other sources. The trust cannot be continued indefinitely, but can be continued long enough to achieve many desired purposes. The same results can also be achieved by adding trust provisions to a will, but normally results in a delay in providing for the beneficiary since the will must first be probated.
Q: What are the advantages of having a will instead of a trust?
A: Generally the cost to prepare a will is less than the cost of preparing a revocable or living trust. That is because a will requires no action on your part after it is signed and is simpler to create than a trust. On the other hand, a revocable trust is more complicated than a will because it involves the management of your property during your lifetime as well as its distribution after your death. In addition, a trust must be funded during your lifetime and this can require significant effort and paperwork. If you fail to transfer all property into your trust or you subsequently acquire property in your own name instead of the trust name, your estate will still have to be probated. Your attorney will assist you by explaining the steps necessary to put your property into the trust. Basically, wills and trust are two separate approaches to estate planning. You should consult with an attorney who works extensively in estate planning for an explanation of the advantages and disadvantages of wills, trusts and joint tenancies. Keep in mind, you can include in a will provisions to establish a trust. However such a will is usually no longer a simple will and the costs could approach what a revocable trust would have cost. Either a will or a trust can be used to transfer your property following your death.
Q: Do other alternatives to a will or trust exist?
A: Oklahoma provides several methods of transferring property upon a your death. One of the recent additions is a “Transfer on Death deed” which provides for the transfer of real property to a named beneficiary upon the death of the owner, with the owner retaining full ownership during his or her lifetime. Oklahoma also provides for “Transfer on Death” or “Payable on Death” for other types of property, including bank accounts, corporate stock, and other types of personal property. Oklahoma recognizes the division of real property between a life estate and a remainder interest, with certain persons owning the real property during the lifetime of one or more named persons, with the property becoming fully owned by the designated remainder interest owner upon the death of the named persons. Trusts other than revocable trusts also exist which are useful in appropriate circumstances. All of these are useful planning methods and can be used separately or in conjunction with a will or a trust to achieve your desired estate plan.
Q: I own real property in another state. What do I need to do?
A: Each state has its own laws, but can also have laws in common with other states. As long as every state in which you hold property recognizes the validity of holding property in trust, a trust helps avoid having to probate your estate in every one of those states. Whether you use a will, trust, joint tenancy, or other planning device, you will need to comply with the laws of each state in which you hold property. Often, you or your local attorney will consult with an attorney licensed to practice law in the state where the property is located to make sure the method used is handled properly according to that state’s laws.
(Revised October 2012)
All Rights Reserved
Copyright ©2012 Oklahoma Bar Association
Oklahoma’s DUI statute is once again changing. In March the legislature passed and recently the Governor signed into law House Bill 1441. The new law takes effect on October 1, 2013. One of the biggest changes is the addition of the following language:
Has any amount of a Schedule I chemical or controlled substance, as defined in Section 2-204 of Title 63 of the Oklahoma Statutes, or one of its metabolites or analogs in the person’s blood, saliva, urine or any other bodily fluid at the time of a test of such person’s blood, saliva, urine or any other bodily fluid administered within two (2) hours after the arrest of such person
What does this mean for you? Well, it means that even if you have used a Schedule I chemical or controlled substance several days before your arrest, if you have any detectable amount of the substance you may be found guilty of a DUI. This is true even though the effects of the drug or the substance have worn off potentially days earlier. Also, the law still provides that if you deny the state’s test, (for Drug cases it is a Blood test, for Alcohol cases it is a Breath test), your license is automatically suspended for the statutory time.
You should contact an experienced lawyer very soon after your arrest, the time limit to appeal the suspension of your Drivers License is very short, so you need an attorney to begin the fight for you as soon as is possible.
To read HB1441 in its entirety please go to:
The criminal justice system can be very confusing and scary. While you have the right to represent yourself in court, the advice of a lawyer is invaluable. While you may not feel you have the money to hire a lawyer, you may not be able to afford not to have a lawyer. If you cannot afford a lawyer and you are charged with an offense which carries possible jail or prison time, you are entitled to a court-appointed lawyer at state expense. But if you paid a bail bondsman a fee of $500 or more, you may not get a court-appointed attorney, even if the bond fee was paid by someone else. The information in this brochure is intended as general information only. Nothing in this brochure should replace the advice of your lawyer. This information generally applies to Oklahoma District court cases, and not necessarily to municipal or federal cases.
Crimes are generally classified as felonies or misdemeanors. Usually, felonies are punished by a sentence of one year or more in prison. Misdemeanors are generally punished by one year or less in a county jail. Probation is also a possibility. Under probation, a person would not serve any time in jail or prison.
The following definitions are provided to explain the criminal justice process:
Arrest and Booking: This is when a police officer takes you into custody and takes you to jail. The process of actually putting you in jail is called booking.
Initial Appearance: (Commonly referred to as “Arraignment”)If you are charged with a crime, this will be the first time you will go before a judge. You will be advised on the charges against you, and a bond will be set for you which you must arrange to pay before you may be released from jail. In some cases, this bond may be an “Own-Recognizance Bond” (O.R. Bond) which requires no payment of money to a bondsman. If you bonded out of jail before arraignment, your bond will generally stay the same unless additional charges are filed, or if you have a prior felony conviction. You also will be told the next time you are to appear in court.
Preliminary Hearing Conference: This hearing may also be called a pre-preliminary hearing or an announcement docket. Generally, these hearings are a time for your attorney and the prosecutor to discuss your case. The prosecutor may make a plea bargain offer which you and your attorney will discuss. If you decide to accept the offer, you would waive or give up your right to a trial and set your case for a date for you to plead guilty. If you do not accept the plea offer, you will have your case set for a preliminary hearing or trial.
Preliminary Hearing: If you are charged with a felony you have a right to a preliminary hearing. A preliminary hearing is a court hearing where witnesses testify and the judge decides whether there is enough evidence against you to order you to have a trial. If the court believes there is enough evidence to believe a crime was committed and enough evidence to believe you committed the crime (probable cause), the court will “bind you over” for trial. If the court does not believe there is enough evidence, the case is dismissed. The prosecutor is not required to present all of their witnesses or all of the evidence they have collected. They are only required to present enough evidence to meet the probable cause standard. The judge, by law, must consider all the evidence in a light most favorable to the state. He must also assume the state’s case will get better by trial.
Pre-Trial Docket: This is a hearing where you and your lawyer meet with the judge and the prosecutor to announce that you want a trial or to plead guilty.
Plea or Disposition Docket: At this hearing, you will appear with your attorney and plead guilty or “no contest” to a judge. At this hearing the court will announce your punishment based on your plea bargain agreement with the prosecutor. If the judge thinks the punishment is not harsh enough, you will be allowed to withdraw your plea of guilty and have a trial.
Blind Plea: If you do not have a plea bargain agreement with the prosecutor, you may still wish to enter a plea of guilty and allow the judge to determine what your sentence will be. This type of plea is often called a “blind plea.” In this situation, you do not know the punishment the judge will give you, and you are throwing yourself on the mercy of the court. If you do not like the punishment the court decides is appropriate for you, you do not have the right to withdraw your plea and have your case set for trial.
Jury Trial: This is where a jury decides whether you are guilty of the crime which you have been charged. The prosecutor must prove your guilt “beyond a reasonable doubt” to the jury or the judge in order for you to be convicted of a crime.
Non-Jury or Bench Trial: This is a trial where a jury is waived and the judge alone decides whether you are guilty or not guilty of the crime with which you have been charged. In most cases both sides must agree to waive a jury.
Deferred Sentence: You are not convicted of a crime until you are found guilty and punished for the crime. With a deferred sentence, the judge accepts your guilty plea to the crime but postpones, delays or defers sentencing until a later date, usually several years away. If you do everything the court orders you to do, the court will dismiss your case and the charge will not appear on your court record. You may be ordered to pay all court costs and fees, see a probation officer, go to treatment and make sure you do not break the law again. If you do not successfully complete the deferred sentence requirements or if you are charged with committing a “new” crime, the Court may sentence you to jail or prison. Even if you complete your deferred probation, your arrest will still appear on the records of the Oklahoma State Bureau of Investigation unless you obtain an expungement.
Suspended Sentence: You are convicted of a crime but are on probation for all or part of the sentence; it is suspended so you do not have to go to prison for that amount of time, as long as you satisfy the conditions of probation. The probation may be “supervised” or “unsupervised.” If it is supervised, you must regularly report to a probation officer. If it is “unsupervised,” you simply must obey the rules of probation and not break the law. If you are unsuccessful, however, you may be sentenced to spend the entire sentence in jail or prison.
Bench Warrant: A bench warrant is an order by the court to have you arrested because you failed to appear in court when the court told you to appear.
KNOW YOUR RIGHTS
Even before you are placed under arrest, the Constitution of the United States guarantees you certain rights. The following are some of the more basic rights, but it is not a complete list. You have many other rights under our Constitution.
Right to Remain Silent: When the police ask to speak to you, you have the right to remain silent. You may talk to the police about the crime they arrested you for, but you do not have to. If you do start talking to the police, you may stop talking at any time during the interview or interrogation and ask for a lawyer before talking further. At that point the law enforcement officer must ask no more questions. Anything you say or write to the police will be used against you in court. You may also ask to have an attorney when the police want to question you. If you ask for any attorney the police cannot ask you any questions until you have spoken with an attorney. If you cannot afford to pay for an attorney, the court may appoint a lawyer to represent you if the court believes you do not have enough money to hire one.
Right to Be Represented by a Lawyer: You have the right to have a lawyer. If you cannot afford to hire a lawyer, you can submit the appropriate application, called either “Form 13.3” or “Pauper’s Affidavit,” which asks the judge to appoint a lawyer to represent you. One good reason to be represented by a lawyer is to make sure your rights have not been violated. Another reason is to ensure that you get all the evidence you need to defend yourself. Many times a lawyer knows the kind of evidence that is best suited for a good defense. It is extremely risky to defend yourself in a criminal proceeding without a lawyer.
Right to Confront the Witnesses Against You: You have the right for your lawyer to ask questions of every witness against you if you go to trial.
Right Not to Be Stopped and Searched Without a Good Reason: Law enforcement officers must have a good reason before they decide to arrest you or search you or your property. This is called “probable cause.” In some cases the officer must first get a judge to issue a search warrant. In other cases, such as routine traffic stops for traffic violations, there must be some good reason why officers suspect you may be committing a crime before they may search without getting a warrant. If the police do not have an arrest or search warrant and ask to search you or your property, you have the right to say ‘NO’ and may lawfully refuse their request to search. If the police stop you and ask you to identify yourself or show ID, you must comply. However, after you have told the police who you are you have the right to tell the officer you do not want to answer any other questions or speak with them until you have spoken with an attorney.
Caution: The law the court must apply may be very complex even in Small Claims. You should make certain you are comfortable with what you must prove and how to do it before you represent yourself in any court hearing or trial. If you are unsure about proceeding with a lawsuit, contact an attorney.
(Revised December 2012)