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One common question about wills and trusts is about joint or mutual wills. Many people ask attorneys why joint wills are never recommended by attorneys. The reason is not that attorneys want to get more of your money by drafting two wills instead of one. Also, most people may see it as an extra expense that is unnecessary since a couple can just get a “joint will” or “mutual will.” Those assumptions, however, are incorrect. Today, the attorney of Skillern Law Firm and the Tulsa Estate Planning Blog will explain why no (rational) attorney would recommend or even draft a joint will.
First, let’s go through the different types of Wills.
A Joint Will is one document that covers the Wills of two (or more) people, usually a husband and wife. When each of them passes away, the Will is probated and administered for the deceased spouse, and the Will is supposed to then serve as the Last Will and Testament of the surviving spouse. This can and most likely will be problematic for most people. One problem, for example, is what happens if the surviving spouse moves on with their life and has a change of circumstance or even a remarriage. What if a child, who was an angel during the lifetime of the deceased spouse, suddenly abandons their family? The surviving spouse’s right to disinherit the child, or even lower the child’s rights in the joint will is unclear. It is always ambiguous how strictly a surviving spouse is bound to the terms of an old Joint Will. This can be a bigger problem when the couple created a joint will while young. What if a young spouse unexpectedly dies, leaving the spouse with a will that may bind the surviving spouse for 40, 50, or 60 years? This is a risk easily (and cheaply) avoided by each spouse creating their own will. Historically, Joint wills were common since they were regarded as a money-saving and labor-saving technique, but through all these complications and the use of computers, these concerns are now moot.
Mutual Will is another type of will sometimes used in Oklahoma. Mutual wills are two separate wills created with a legal agreement that neither will can be cancelled or altered after one of the spouses has died. This is a difficult situation to protect legally and attorneys often encourage spouses to make a moral obligation to each other, rather than a legal obligation.
The most common solution, and one that the attorney at Skillern Law Firm supports, if for spouses to get Reciprocal Wills or Mirror Wills. In these wills, each spouse has their own document, and each name their other spouse and the main beneficiary, with maybe their children as alternative beneficiaries. This is very common not only for married couples but also for civil partners or those in civil unions. Each reciprocal will is separate and there is no binding, legal agreement applied to the surviving partner who is perfectly entitled to amend this Will or prepare a brand new will in the future.
Skillern Law Firm does not support joint wills and we discourage them to clients and friends. We also do not support mutual wills for the preceding reasons.
We do however allow for people to create Reciprocal or Mirror Wills and this aligns with our philosophy that every single person needs to have a Last Will and Testament in place. If you are thinking about a will, or want to know why you may need one, please read another entitled, “Why Should I Get A Will Now?” Or, if you and your spouse has decided to get a will, feel free to contact us today to set up a free appointment.
It is a new year, and everyone is listing things that they want to accomplish in 2012.
You might be interested in a new healthy eating regimen, or workout schedule, but why not add updating your estate planning to that list? Twenty-twelve is the year of the estate plan!
If you haven’t established a way to distribute your estate after your death, or you need a power of attorney, we can help you accomplish your New Year’s Resolution!
There is a popular trend among the states right now in estate planning law to allow people to make preparations for their pets in their will or trusts. Oklahoma has recently joined the trend. Oklahoma now allows pet trusts since a relatively recent House Bill1641 that was signed into law and became effective August 27, 2010. If you want to read the statute in its entirety, click here.
A brief description of the law is essentially that the law has created a new section of the Oklahoma trust code that now legalizes trusts for the care of pets. The pet trust is terminated when there is no more living pets under the trust, so you can have a pet trust for more than one pet and it will exist until all the pets are deceased. The statute then gives a description of what the rules for governing a pet trusts, including compensation for the trustee, accounting requirements and provisions for terminating the trust. You can pick the trustee or pet caretaker, and trustees can be provided with compensation for administering the pet trust.
The code also states that the “The trustee may employ agents or contractors to provide any care and pay for the care from the assets of the trust. The trustee shall also ensure that the property of a trust authorized by this section is applied only to its intended use.”
The Oklahoma statute states that if you trust is below $20,000, the trust is exempt from fees, unless a court says otherwise. If the trust has a value of $20,000 or more, you will have to pay fees that include filing fees, periodic accounting, separate maintenance funds, and registration fees.
In the pet trusts, you can have complete control over your pet’s future needs, including their food, schedules, and even their veterinarian. The trust will be like most trusts: revocable, so you can make it go away or amend it at any time. You can make the trust be activated if you become disabled or incapacitated, which a will cannot do.
Overall, it is a good step forward in the area of pet estate planning.
The Supreme Court of the United States’ (SCOTUS) October session started yesterday, October 3rd. I was looking forward to this term, since there are a lot of interesting and important cases coming up on the Court’s docket. There are 48 cases on the Court’s docket thus far. There are, however, plenty of important cases being petitioned to be taken by the court. One of the most newsworthy is the ObamaCare lawsuits that are petitioning to be heard in front of the SCOTUS. So far, the case has not said whether or not it would be willing to take that case.
I have to say, I love listening to oral arguments. Last year, the Supreme Court started posting their oral arguments of the week each Friday on their website. I would suggest you check them out, if you are so interested, here: http://www.supremecourt.gov. This was a big deal for the Supreme Court. The (mostly conservative) Justices have always disliked media in courtrooms, even disallowing cameras in lower courts (re: the Prop 8 California gay-marriage case). So, when the Court started releasing oral arguments the week they were argued, I was estatic! In the past, they have released important cases’ oral arguments the day they were released, but the rest of the lesser-known cases’ arguments were not released until after the term was up. It’s nice to be able to listen to them the week they are argued.
Anyways, for more information on the Court’s new term, read updates, and get analysis on the Court’s case, check out my favorite Supreme Court blog, http://www.scotusblog.com.
Also, if you are interested to read oral arguments from past Supreme Court terms, check out http://www.oyez.org.
Check out other posts at Tulsa Estate Planning Blog!