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I have many clients that come into my office that have written, scribbled, crossed-out, or marked all over their estate planning documents. This can be a big mistake with big consequences!
What should you do if you have a Will or a Trust that you wish to change, amend or revoke? One thing people frequently try to do when they want to amend a Will is to cross out whatever change they want, and write in new directions and initial next to their marking.
A thing to remember is that your Last Will and Testament and/or Revocable Trust typically serves as the foundation for a comprehensive estate plan. Similar to most legal documents, your Will or Trust should be reviewed and formally amended on a regular basis (usually every 3-5 years); however, this needs to be accomplished with the assistance of an attorney, and done in the formal matter required by statutes. For a Will, that includes two witnesses and a notary. For a Trust, that includes whatever way the Trust document prescribed (usually a notary). Your Will and Trust is not like other legal documents where simply marking or crossing something out and initialing the change will suffice. In fact, usually it revokes the entire document.
I recently had a client who did such a thing – she wanted to get rid of a beneficiary, and simply crossed out the beneficiary she wanted out and initialed and dated next to the marking. She then passed away before we could do a formal amendment. The problem with this action is, at least in Oklahoma, marking and changing any Will or Trust without the formal amendment process actually revokes the entire document! The small amendment my deceased client wanted actually completely changed her entire estate plan. Her intention was for a friend to receive the entire estate. However, due to her scribble on her Will, her estate went through the intestate probate process, which means her (distant) family inherited her entire estate, which was completely against her intention.
Wills and Trusts have formal statutory requirements to keep fraud and misunderstandings from happening in the important process of estate administration and probate. If there is a question as to the authenticity of a Will, the Will, with markings on it, would no longer be clear as to what the Testator’s intentions were. This is precisely why the execution of your Last Will and Testament must be witnessed by an uninterested witness and a notary authenticating the signatures. Requiring a Will to be witnessed and notarized is the only way to be sure the Testator actually signed the document. If, however, you write on the Will or Trust after the original signing, there is no sure way to determine if you actually wrote the words or if a third party took the liberty after your death. If the probate court declares the Will or Trust to be revoked , your estate may end up being distributed as an intestate estate which could have very different results than if the Will is used to probate your estate.
If you desire to amend your Will or Trust, or even revoke it entirely, don’t try to do it yourself by writing on the documents. Take the time to consult with your estate planning attorney and make the changes or the revocation the right way, in front of witnesses, to ensure that your estate doesn’t wind up in costly litigation after your death.
If you have additional questions or concerns about wills, trusts, or estate planning in general, contact the experienced Oklahoma estate planning attorney at the Skillern Law Firm by calling 918-805-2511 or email email@example.com to schedule your appointment.
Most of our clients come to us to help make their loved ones’ lives easier – not more difficult. Many people will come in wanting a very simple estate plan because of the cost or because they believe their estate is not large enough to cause anyone any issues. However, often, very simple estate plans can complicated matters and cost heirs and beneficiaries more time and money in the future.
In general, even with a perfect estate plan, heirs and beneficiaries have numerous tasks to attend to, including paying the death expenses, handling creditors and transferring ownership of assets. If the deceased person did not properly complete the estate planning process before his or her demise, or did not execute the right estate plan, complications could arise.
There are several issues and events that could make an estate plan less effective. One of the most common mistakes in estate planning is to never update your estate plan. Our attorney recommends reviewing or updating your estate plan after every major life event (death of a family member, marriage, divorce, inheritance, etc.). It is important to update your documents in case there is a significant change in the situation from when you drafted it. Also, it is good to have your estate plan reviewed by an estate planning attorney in case important updates are needed in your will/trusts/power of attorneys/advanced directives due to change in the law.
Furthermore, conflict could arise if a person did not provide enough detail about how his/her assets should be distributed. It is allowed for individuals to leave the distribution decisions up to surviving family or even state law, however, some individuals may not agree. This often leads to contention and conflict that could build to a point where costly and prolonged litigation is necessary. In order to have a more effective plan, parties need to consider their assets and make decisions themselves, and they should put specific directions and details inside their estate plan to ward off any future issues and conflicts.
Sometimes, people may start out with an estate plan that simply consists of a Will and Power of Attorney. While young and without a lot of assets, that may be enough for your beneficiaries and heirs to handle your estate efficiently. However, as we age and accumulate more property and our lives become more complex, a Trust is often better for more complex estates. This is another area in which people keep their estate plan stagnant, and yet reviewing their plan or even making an entirely new one would’ve been a better option for their particular situation.
Many people do not realize that having an estate plan is an ongoing process. Just as your life changes through the years, so should your estate plan. It may seem inconvenient, but it can help ensure that your wishes and desires are known and executed correctly at the time of your passing. If any Oklahoma or Tulsa area residents are concerned about whether their plans cover all their needs and desires, they should review those plans and have their documents reviewed by a professional, including the attorney at the Skillern Law Firm. Gaining more information on planning tools and possible errors to avoid could also prove useful.
Estate planning is not just for after you pass away, it can also be very important for when you become ill or incapacitated during your life. The attorney at the Skillern Law Firm can assist with the creation of a comprehensive incapacity plan, as well as your estate planning for when you are gone. It is hard to contemplate and plan for if or when you will experience a major medical issue, but it is also necessary. Illnesses and medical issues can strike at any time, either through a disease or illness, or a carwreck or accident. Let’s go through some reasons how you can plan for an illness, and why you should.
The most common estate planning documents to get done so your affairs can be handled by someone you trust while you’re alive but ill are the Durable Power of Attorney and the Advanced Directive. Please read those previous blog posts about those documents for more information. Our attorney usually creates and implements those documents in conjunction with a Will or Trust, taking care of our clients both through their life and their passing. Why are these recommended? There are three major reasons:
1. To Have A Say In Your Future Medical Care
Through a Health Care Power of Attorney and an Advanced Directive, you are able to direct your health care when you are too ill to talk to the doctors. In the Advanced Directive, you are able to have a say in if you’d like to accept or decline life sustaining treatment or heroic measures (like CPR or the defibrillator). You can also have a say in whether you’d like to be kept alive using a feeding tube. You can answer these important questions that will need to be answered if you suffer a serious medical emergency. If you suffer from an illness or get into a sudden medical emergency, these documents can be valuable to answer medical questions.
2. To Protect Your Assets And Staying Out of Court
If you become ill or incapacitated, and you do not have your estate planning documents set up, your family will have to go to court to obtain authority to manage your assets. This is usually through a court process called ‘guardianship” or ‘conservatorship.’ Anytime court is involved, there are time delays, and usually some surprises. Going to court can also have high stress on the family while you are ill (which is already a stressful situation), and can cost thousands of dollars in unnecessary legal expenses. Also, these delays can cause your investments to suffer losses due to lack of management, and your real estate to become abandoned. There is also the risk that the court may select someone you do not want to manage your assets. You can get rid of those delays and risks by being proactive and getting a written incapacity plan, outlining who you want managing your wealth if something happens to you.
3. To Spare Your Family Difficult Decisions
An Advanced Directive can take away stress and anxiety from your family members, who will not be forced to decide whether to pull the plug or withhold lifesaving care from you. If you express your preferences in legal documents, ahead of time, it can alleviate that stress. A Durable Power of Attorney can also alleviate stress because the Power of Attorney you nominate to take over your financial affairs will be able to seamlessly take over your accounts, so your day-to-day bills and medical bills can be paid.
The attorney at the Skillern Law Firm can help guide you through the available methods, including advanced directives, trusts, powers of attorney and more. We can explain the different ways through which you can plan ahead for incapacity and help put a plan in place that provides you and your loved ones with the protections you deserve. Call us for a free consultation today!
The attorney of Skillern Law Firm, PLLC, Penni Skillern, recently had a baby girl in January of 2015. Yes, that is why there was a lack of blog posts and updates on our website. The first thing she did when she was able to go back to work was update her estate plan to reflect her new expanded family. Not only is it important to set up guardianship in your will, but its important to look at structuring your estate plan distribution for your new infant.
We have previously written about how to handle a minor infant in your estate plan before. Please read the blog post here.
For this blog post, we are going to discuss what to get done for your estate plan once you have the new baby. Having a child or children complicates life in many ways, and your estate plan is no exception. If you had an estate plan written when you were childless, it is important to reflect the monumental change in your situation in life in your estate planning. Most likely, you would want to leave part or all of your estate to your new child(ren). You do not have to have anything fancy like a revocable trust, however, it does need to be done. Here are four simple steps to take.
1. Write or Amend a Will or Trust
Even without children, having an estate plan in place is important. Generally, most young people do not think about getting an estate plan done until they have children. That is understandable, as most single young adults do not own a lot of assets to be distributed at their demise. However, once you have a child, it becomes not only important to write a will to discuss distribution, but also to name a guardian for your child(ren). Make sure to read a previous post about how to chose the right guardian for your child.
Once you have a will with a guardian appointed in place, if your children ever needed a guardian, the court would appoint the person you nominated in your will, absent a serious problem with that person. You can even name a separate guardian for different children if you wish. If you have not made plain in your will or estate plan who you wish to be the guardian of your children, and you pass away unexpectedly, the probate court will have no idea what your wishes were. That can cause fighting among the families of the two parents, each wanting the child. This can be stressful for the families, and especially the children left behind. The court would have no way of knowing which family member of friend who you wished to watch over your children if you were to pass.
The other main reason to write or update your will is that if you do not, and then you pass away, a portion of your estate may not go to your spouse, but may go to your children. If you pass away and have a young child, most people prefer that the money go to their spouse, who will use it to support their children.
Getting a will written and signed is easy, quick, and inexpensive. You can easily set up an appointment with an attorney and have one done and signed within a couple of weeks or a month. This important step can help your new family in unexpected ways and can alleviate an amazing amount of stress in the future if something unforeseen were to happen.
2. Buy Life Insurance
While our attorney was pregnant with her new daughter, she and her husband added new life insurance to their financial portfolio. The reason is simple: their lives were about to get more expensive. It’s not surprising to know that life with a child is more expensive than one without one. If you or your spouse were to pass away unexpectedly, are you prepared to take care of your child(ren) without the other person’s income? Life insurance is there as a safety net, to help take care of expenses that your deceased spouse would have helped with if they remained alive.
Obviously, this is more of a financial planning than legal planning. However, it is good to get both done when you are preparing or soon after you have a child. It’s best to have both your financial and legal plans in place, working together, when you have a child.
3. Write Durable Powers of Attorney and a Living Will
Even without children, Powers of Attorney and Living Wills are extremely important documents to have for every adult. If an accident or sudden illness strikes, these documents will make things much easier for your family.The Powers of Attorney (both financial and health), are documents that designate an individual to take care of matters if you are unable to. We have previously written about these documents, and you can read about Powers of Attorneys here.
Living Wills, or Advanced Directives, are also very important to have in your estate plan. If you have been to the hospital recently, you have probably been asked if you have one when you checked in. An Advanced Directive is a document that sets out your wishes for end-of-life choices and care. Oklahoma allows you to set our your end-of-life health care choices for three scenarios. Read about those here.
Even if you are young, childless, and healthy, these documents are important to have done. If you were seriously injured, these documents would let your family know what you wanted, sparing them very difficult decisions, court costs, and disagreements. There have been many famous young people whose families have gone through courts and disagreements because these documents were not in place. (Terri Schiavo was 26 when her illness began and she fell into a permanent vegetative state.)
4. Designate Beneficiaries on Accounts
One last simple (and completely free!) action to take is to name beneficiaries on your accounts, whether retirement, banks, life insurance, etc. All you need to do is fill out the beneficiary form provided by the account holding institution. By naming a beneficiary, you make it possible for the funds in the account to go directly to the person (or persons) you name, without probate. It is important to know the repercussions of naming minors as beneficiaries, however, so make sure you keep that in mind when you are planning for your new child.
If you do all of the above after you have a child, you are ready. Having a new child is a huge change in your life, and your estate plan needs to reflect that change. You are doing a disservice to your child if you do not plan ahead in case you are not there to take care of him/her. Your family would want to know your wishes for your child(ren) if you pass unexpectedly. Make an appointment with your local estate planning attorney today!
What does the fiscal cliff agreement mean for my estate? The estate tax was a bit of a mixed bag – the $5 million dollar per person exemption was kept in place (and indexed for inflation continued) however the top rate is increased from 35% to 40% – effective yesterday. Other good news for estate planning – portability is kept in place and estate and gift remains unified – ie the $5 million stays in place for gift tax purposes as well. All are permanent law, so rejoice!
So, no real change for smaller estates worth under 5 million, however, if your estate is worth more than 5-10 million, the estate tax percentage increased.
Hope this helps! Please call the office of Skillern Law Firm if you have any questions or are ready to set up a trust or create a will.