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Your life is not static, so why is your estate plan?

It is important to periodically review your will and estate plan. Life changes often require that you reassess your estate plan.

Children

Most parents are concerned about how their children will be cared for in the event that one or both parents suffer an accident or are incapacitated. It is important to name a guardian for your minor children in your will. Also, parents should consider a trust if they wish to stagger financial inheritance distributions for their children, instead of having the kids receive the whole of the estate at the age of majority.

Divorce

In Oklahoma, a divorce makes any trust that you had with a former spouse void. You should also consider any power of attorney documents or health power of attorney documents so that the contents reflect your current intent.

Remarriage

You may consider signing a ante-nuptial agreement in the event of a remarriage so as to legally separate your estates during marriage. A trust may be helpful in addressing any inheritance issues to children that a second marriage can create.

Middle Age

As people age, their assets tend to increase. Make sure that your money is working for you by talking to a financial planner. In addition, you should make sure that any assets that you acquire are included in any will or trust that you have already created.

Death of Spouse

When a spouse dies, you probably will need to get new health care and financial power of attorney documents.

 

The offices of Skillern Law can assist you in making changes to any and all of your estate planning needs. Call our office today!

Why A Joint Will Is A Bad Idea.

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.

Why Should I Get A Will Now?

The more clients and friends that we talk to, the more we see why so many people put off writing their will.  No one especially wants to think about their own future death, and no one really wants to plan for it. In reality, however, everyone needs to have a will prepared, even at a young age.  There are a multitude of reasons to consider, and any reputable wills and trusts lawyer should be able to go through the factors with you to make certain that you are protecting your assets as well as the people you love.

First off, it’s obvious people do not want to think about death. However, the reality is that it is inevitable. This does not only include your death, but your family members, such as your grandmother, daughter, son, and parents. If you, or your (especially older) family members have not prepared a will, then you are jeopardizing both your own wishes and the outcome for those you love.  This could be especially important for parents.

If you haven’t had a will prepared, then your children’s future can be in serious jeopardy.  For example, many assume that their property will pass automatically to their children, but the Oklahoma courts may have other ideas.  Other family members, like a new spouse or a child you gave for adoption, may go to the courts and inherit money and heirlooms that you intended for your children.

The most extreme and important factor to consider will likely be that of child guardianship. If you have children, or intend to have children, a will allows you to ensure that your children are raised by people you trust and in a way you deem appropriate. A will allows you to specify their guardians, should you die.  Without a will, the courts will decide who will take control of your children should you pass away, and who wants a court to decide the future of their children’s care?

Sadly, another case where a will is needed is when both spouses being killed at the same time.  In a circumstance like that, there is no surviving spouse to take care of the children, explain what should happen to them, nor have a say in the distribution of assets.  As expected, the courts will have more of a say in the distribution of your estate than you would probably want.

Creating a will doesn’t have to be a exasperating, complicated activity. A will is not generally very expensive, and a trustworthy wills and trust lawyer can tell you your exact benefits in creating a will.  Skillern Law Firm can help you create your will, and any other estate planning document you may need to ensure your family and assets are safe from court interference. Undoubtedly, it is not ideal to spend your time imagining what would happen to your family and assets after you have passed away, however, doing so now can make an incredible difference later.

If you are interested in other estate planning documents, or how they can help you, read other posts on Tulsa Estate Planning Blog.

Living Wills- The Questions to Think About

Today on Tulsa Estate Planning Blog, we will discuss what a living will is, and what medical scenarios it will cover. Let’s get started.

A living will is a legal document which allows a person to make known his/her wishes regarding life-prolonging medical treatments. Living wills are also referred to as advance directives, health care directives, or a physician’s directives. A living will is not a living trust, which is a trust for holding and distributing a person’s assets to avoid probate. It is very important to include a living will in your estate planning documents since it informs your health care providers, as well as your family, of your desires for medical treatment in the event you are not able to make those decisions yourself – like if you were in a coma. Living wills and other advance directives are not only for older adults. Unexpected end-of-life situations can and do occur at any age, so it’s important for all adults to get estate planning, including an advance directive, completed.

Sometimes, clients are surprised on the amount of situations that are included in a living will. A lot of the the questions take some thought and personal reflection to decide on what you would want to happen in the specific given situation. Skillern Law Firm’s living will covers three situations as well as other end-life options.

The first situation that you need to consider is situations where the physician has given you a diagnosis of an terminal, incurable and irreversible condition that will result in death within six (6) months, even when administered life-sustaining treatment. These include fatal cancers, tumors, or any other disease or scenario where you are giving a very short time to live. Your brain can be fully functional, but your body could be in a very poor condition. After considering this question, you would have to choose whether you would want (1) both life-sustaining treatment and artificiality administered food or water, (2) neither treatment nor artificially given food or water (3) only artificially given food and water, but no treatment. You are also allowed to provide your own specific instructions.

The second situation is when you are in a persistently unconscious state that is irreversible, and where the physicians believe you to be unaware and brain dead. So, essentially, you are in a persistent vegetative state. The same three options are applicable to this situation as well.

The third situation is when you are in an end-stage condition which could have been caused by injury, disease, or illness, and the condition results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which treatment of the irreversible condition would be medically ineffective. In this situation, your body is so deteriorated in condition that you cannot stand, feed, or do anything for yourself. The three same situations are above. Your mind may be functional here, but your body is not.

These are tough situations, and that is why a living will is so essential. Will your wife, brother, or parents be able to handle one of these scenarios rationally, or do they even know what would be your wishes in these situations? Most people would say no. Living wills really help make sure that you are guaranteed your desired medical treatments in these situations.

Skillern Law Firm, PLLC living wills also include an area where you are able to choose if you will be an organ donor, what organs or body parts you want to donate, and for which purpose you would want to donate for (surgery, transplant, science, etc). If you need a living will done today (which you probably do!), contact Skillern Law Firm now!

Medicaid Planning – Planning for Your Future Health Costs

Skillern Law is excited to be adding Medicaid/Nursing Home Estate Planning to our practice areas. It’s a new type of estate planning in the law, and it’s becoming more and more important as the baby boomers are growing older. A lot of people do not know what it is or what it entails exactly. Let’s answer all those questions today on Tulsa Estate Planning Blog.

First of all, there are a lot of misconceptions about Medicaid and what it provides for. Medicaid is not a welfare program. It was before 1989, however Congress passed the Medicare Catastrophic Coverage Act in 1988 after Congress saw that Americans were getting older, and nursing homes were rising in costs. This act changed Medicaid to make it a Federal insurance program that helps middle-class America pay for long-term care costs.

Medicaid Estate Planning, or “nursing home planning” as it is commonly called, helps qualify a client for Medicaid benefits for future assistance. The planning helps qualify the future Medicaid applicant, which will help pay for nursing home costs, prescription drug costs, and medical expenses. Medicaid planning can help families save money from having to be spent on nursing homes and prescription drugs. This is especially true in the case of family held farms or businesses. Most people spend their lives paying into the Medicaid system, and Medicaid planning will help middle-class families from having to spend their retirement fund solely on health costs.

The essential thing to remember about Medicaid or nursing home planning is to get it done early. While there are planning methods to be used in “emergency 911” situations, that planning is expensive, can be time-consuming, and will not be able to get as much Medicaid help as early planning can. Preventative Estate Planning should happen years before the client is expected to be in need of Medicaid money. Typically, it is good to get done when you get your other estate planning documents drafted. At least five (5) years before an expected need, but the earlier the better in the case of Medicaid planning.

The exciting news is that Skillern Law Firm offers Medicaid, VA & Social Security Benefit planning in conjunction with Senior Resources & Benefits, LLC. Please feel free to look at SRB’s website here.   Set up an appointment today to discuss your options!

Stepchildren, adopted children, and half-blood relatives: No Child Left Behind.

Oklahoma has some unusual laws when it comes to step-children and half-blood relatives, especially in the intestate inheritance laws. Just as a reminder, intestate merely means that the person who passed away died without a will, and so the state’s inheritance laws are in effect. Oklahoma’s statute, Okla. Stat. tit. 84, § 213 (1994), is the state’s Intestacy law/code, if you are interested in reading the statute yourself.

Stepchildren are not able to inherit through the intestate system in Oklahoma. Only blood children are able to take from the estate. It’s as simple as that. If you want your stepchildren to inherit part of your estate, you need to get estate planning in place (a will is a good place to start), so that they are able to. Otherwise, your blood children, spouse, and other blood relatives will take from the estate.

In Oklahoma, half-blood children have their own special rules, which can be viewed as harsh. Half-blood children/relatives are not be able to inherit “ancestral property,” but are able to inherit all other property and assets. “Ancestral property” is property that the decedent (half relative who passed away) acquired by gift, devise, or inheritance. In other words, half-blood children or relations will not be able to receive any intestate property that was given to the decedent by an ancestor who is not also an ancestor of the half-blood relation. Okla. Stat. tit. 84, §222. However, half-blood relatives are able to inherit ancestral property when full-blood relatives are more remotely decended. See In Re Estate of Robbs. Therefore, a half-blood would not be able to inherit ancestral property if there is whole-blood kindred of the same or closer degree of relative. For example, if A & B were full blood relatives, and B & C were half-blood relatives, A would receive the B’s entire ancestral estate, leaving C to receive 1/2 or whatever portion he was entitled to without ancestral property included. Half-blood intestate inheritance can be a little confusing, and is a major source of probate litigation in Oklahoma. If you have any questions, feel free to call us today for any explanation of the law and to see how you can avoid this problem with a will.

Adopted children in Oklahoma have an advantage not available in many states to them: double inheritance. In Oklahoma, an adopted child can inherit from and through his/her natural parents as well as their adopted parents. The converse is not available, however. The adopted parents cannot inherit through the child they gave up for adoption. Adopted children, therefore, will be able to inherit through intestacy just as if the child was a maternal or paternal child.

Skillern Law Firm can help craft all different types of wills, trusts, and other estate planning documents that allow your children (of all sorts) inherit your property without worrying about Oklahoma Intestate Law. Please call us today for more information.

Estate Planning for Everyone

A few years ago, my mother sent me the  Jessica’s morning affirmation video. I haven’t woken up every morning with Jessica’s joie de vivre, this morning I did. My whole house is great. I can do anything good. I realized that I can really make a difference for same-sex couples with estate planning. I’m not as sure about my hairs or haircuts, but that’s a moot point.

The actual point: estate planning can solve many problems that the law creates for same-sex couples living in states that do notrecognize same-sex marriages.

Same-sex couples are  not able to benefit from inheritance laws that enable spouses to take property under homestead laws. Oklahoma intestacy laws would not allow for a same-sex spouses to inherit anything. Therefore it is much more imperative for same-sex couples to invest in estate planning than hetero couples.

Both wills and trusts can establish inheritance for same-sex couples. Trusts offer basically the same inheritance options that wills do (please see our previous post), with the added benefit of privacy. Wills are open to the public when they are entered into the probate court after death, but trusts are only public in so much as that one has been created.

Same-sex families that adopt face unique child custody issues facing the death of one parent. Oklahoma laws allow only one parent of same-sex couples to be the adoptive parent. Parental rights follow this parent. If that parent passes away, then the other parent has no legal parental rights over the child. A will or trust can remedy the situation by specifying who will raise the child after death.

This is not to say that estate planning is a substitute for marriage. I in no way want to insinuate that signing a trust document provides the same joy that saying I do ever will. However, this is an option that Oklahoma provides that same-sex couples should take advantage of today. Skillern Law Firm  can set up a trust for you and your spouse to help you with your estate planning needs.

Check out other posts at Tulsa Estate Planning Blog.

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