Estate Planning

A Last Will and Testament is the legal document by which you identify those persons (or charities) that are to receive your property and possessions upon your death.  These persons and charities are referred to as your beneficiaries under your Last Will and Testament.  You will also nominate a person to serve as the executor of your estate who will be responsible for the proper administration of the estate and the disposition of your property to your intended beneficiaries.  The Executor may be an individual or an institution.  After your death, the named executor should petition the court to be appointed Executor (or Personal Representative) of your estate.  After appointment, the Executor manages your estate’s financial affairs and ensures that your property is distributed in accordance with your wishes as indicated in your Last Will and Testament.

A Revocable Living Trust (“RLT”) is an arrangement by which you transfer ownership of your property into a trust throughout the course of your lifetime.  The Grantor (or Trustor) is the person who creates the Trust.  The Trustee is the person or entity that distributes and manages the trust property according to the trust documents.  Beneficiaries are the persons who receive the benefits of the trust after the death of the Grantor (or Trustor).  A RLT is revocable during your lifetime and can also be amended during your lifetime to account for changes that occur to your personal situation.  The RLT is established by a written agreement that appoints a trustee to manage and administer the property of the Grantor.  Many times, the Grantor and Trustee is the same person.  There are several advantages to having a RLT including the following:

• Avoidance of Probate
• Revocable
• Privacy Preservation
• Eliminate Challenges to the Estate
• Segregation of Assets
• Assignment of Durable Power of Attorney / Guardianship

A Statutory Durable Power of Attorney enables you (the “Principal”) to appoint an “Agent” to handle specific legal and financial responsibilities in the event you become incapacitated or are otherwise unable to manage your legal and financial affairs.  A Statutory Durable Power of Attorney should be prepared long before you become ill or begin having problems handling legal or financial affairs.  You must be competent at the time of signing the Statutory Durable Power of Attorney.  If you have a loved one suffering from advanced Alzheimer’s or dementia, they may be unable to appoint a POA if determined they are not of sound mind.  A Statutory Durable Power of Attorney is important because if a person becomes incapacitated or incompetent without preparing this document, family and friends will be unable to make many important legal and financial decisions, such as paying your bills.  It is essential to choose your Agent wisely.

name a person to make decisions about your health care in the event you are unable to make those decisions for yourself.  It gives that person (called your “Agent”) instructions about the kinds of medical treatment you want.

If you have certain wishes concerning your health care, a Durable Power of Attorney (with Heath Care Powers only) will ensure that those wishes are honored even if you are physically or mentally unable to tell your doctors what you want.  Even if you do not have certain wishes regarding your health care, it will ensure that someone you trust will make your medical decisions if you are unable to do so.

Your agent can make a wide variety of decisions including (i) whether to admit or discharge you from a hospital or nursing home; (ii) which treatments or medicines you do or do not want to receive; and (iii) who has access to your medical records.  Your agent can only make these decisions if you cannot do so yourself, and your agent must follow your wishes when making these decisions.

You are allowed to appoint more than one agent if you wish; however, this may cause conflict if the agents have differing ideas about your desires.  Your agent(s) must be over 18 years of age and someone other than your doctor or other health care provider.  People typically choose a family member, trusted friend, or a spiritual advisor.

An Advance Directive for Health Care is a written legal document that allows you to instruct your attending physician whether or not you wish to be given life-sustaining treatments and artificially administered nutrition (food) and hydration (water) and to give other medical directions that impact the end of life.  Its purpose is to recognize your right to control some aspects of your medical care and treatment, primarily the right to decline medical treatment or direct that it be withdrawn even if death ensues. An Advance Directive for Health Care may include a living will, the appointment of a health care proxy (a proxy is a person authorized to act for another) and directions for organ donation.  In Oklahoma, an Advance Directive must be signed before two witnesses who are 18 years of age or older.  The witnesses cannot be beneficiaries under your will or persons who would inherit your property if you die without a will.  The Advance Directive covers three end of life conditions: (i) terminal condition; (ii) persistently unconscious and (iii) end-stage condition.

A memorandum of trust helps preserve the privacy that a revocable living trust affords for privacy regarding your assets.  During your lifetime, you may move ownership of assets into your trust.  Consequently, a financial institution or other entity may want a copy of the trust agreement for its files.  You may not want to provide a copy of your trust to anyone to preserve your privacy.  You can keep the provisions of your trust private by having a Memorandum of Trust that provides the following information:

• Who created the trust and when
• The name to be used for the trust
• The fact that the trust is revocable and can be changed at any time
• Who is named to serve as the initial trustee or trustees
• Who is named to serve as the successor trustee or trustees to take over when the initial trustee dies or becomes incapacitated, and
• Who signed the trust agreement

You may wish to fund your trust with real estate, such as your home.  This requires preparation and recording of a new deed transferring ownership from yourself as an individual to yourself as trustee.  The Memorandum of Trust can be recorded in place of your entire trust agreement in the county land records.