Facebook allows people to name a "legacy contact" for estate planning purposes

Many people don't realize the vast amount of information, especially personal photos and records of memorable life events that are being captured and stored entirely within their social media accounts.  The memories are not only treasured by the individual but also incredibly important for their family members, especially upon one's passing.

So, while many people may not realize it exists Facebook allows its users to designate a "legacy survivor" who is authorized to access the person's account in the event of their passing. Click HERE to learn more.   

How Do I Execute (sign) a Will?

Wills must be signed in the presence of witnesses and certain formalities must be followed or the will may be invalid. In Oklahoma, a will that is formally executed in front of witnesses with all signatures notarized is deemed to be “self-proving” and may be admitted to probate without the testimony of witnesses or other additional proof.  Even if a will is ultimately held to be valid in spite of errors in execution, addressing such a challenge may be costly and difficult.  A potential challenge is best addressed by executing the will properly in the first instance.  A later amendment to a will is called a codicil and must be signed with the same formalities. Be cautious in using a codicil because, if there are ambiguities between its provisions and the prior will it amends, problems can ensue. In Oklahoma, the will may refer to a memorandum that distributes certain items of tangible personal property, such as furniture, jewelry, and automobiles, which may be changed from time to time without the formalities of a will. While use of a memorandum is permitted in Oklahoma, you proceed with caution.  This type of separate document can create potential confusion or challenges if it is inconsistent with the terms of the will or prepared in a haphazard manner.

What are Trusts and Aren't They Only for the Wealthy?

Trusts are legal arrangements that can provide incredible flexibility for the ownership of certain assets, thereby enabling you and your heirs to achieve a number of significant personal goals that cannot be achieved otherwise.   Trusts are NOT only for the wealthy. Many young parents with limited assets choose to create trusts either during life or in their wills for the benefit of their children in case both parents die before all their children have reached an age deemed by the parents to indicate sufficient maturity to handle property (which often is older than the age of majority under state law). 

The term trust describes the holding of property by a trustee, which may be one or more persons or a corporate trust company or bank, in accordance with the provisions of a contract, the written trust instrument, for the benefit of one or more persons called beneficiaries. The trustee is the legal owner of the trust property, and the beneficiaries are the equitable owners of the trust property.  A person may be both a trustee and a beneficiary of the same trust.

If you create a trust, you are described as the trust's grantor or settlor. A trust created by a will is called a testamentary trust, and the trust provisions for such a trust are contained in your will. A trust created during your lifetime is called a living trust or an inter vivos trust, and the trust provisions are contained in the trust agreement or declaration. The provisions of a living trust or inter vivos trust (rather than your will or state law default rules) usually will determine what happens to the property in the trust upon your death.

A trust created during lifetime may be revocable, which means it may be revoked or changed by the settlor, or irrevocable, which means it cannot be revoked or changed by the settlor.  Either type of trust may be designed to accomplish the purposes of property management, assistance to the settlor in the event of physical or mental incapacity, and disposition of property after the death of the settlor of the trust with the least involvement possible by the probate (surrogate or orphan’s) court.

Trusts permit the trust assets to be held as a single undivided fund to be used for the support and education of minor children according to their respective needs, with eventual division of the trust among the children when the youngest has reached a specified age. This type of arrangement has an obvious advantage over an inflexible division of property among children of different ages without regard to their level of maturity or individual needs at the time of such distribution.

What Does a Will Not Do?

A will does not govern the transfer of certain types of assets, called non-probate property, which by operation of law (title) or contract (such as a beneficiary designation) pass to someone other than your estate on your death. For example, real estate and other assets owned with rights of survivorship pass automatically to the surviving owner. Likewise, an IRA or insurance policy payable to a named beneficiary passes to that named beneficiary regardless of your will.

What Does a Will Do?

A will provides for the distribution of certain property owned by you at the time of your death, and generally you may dispose of such property in any manner you choose.  Your right to dispose of property as you choose, however, may be limited in certain circumstances to try prevent you from disinheriting a spouse and, in some cases, children.  Your Will is likely not going to govern the disposition of your assets and real property that are controlled by beneficiary designations or by titling and so passes outside your probate estate.  Such assets include property titled in joint names with rights of survivorship, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits.  These assets pass automatically at death to another person, and your Will is not applicable to them unless they are payable to your estate by the terms of the beneficiary designations for them. Your probate estate consists only of the assets subject to your Will, or to Oklahoma's intestacy laws if you have no will, and over which the probate court (in some jurisdictions referred to as surrogate’s or orphan’s court) may have authority.  This is why reviewing beneficiary designations, in addition to preparing a will, is a critical part of the estate planning process.  It is important to note that whether property is part of your probate estate has nothing to do with whether property is part of your taxable estate for estate tax purposes.

Wills can be of various degrees of complexity and can be utilized to achieve a wide range of family and tax objectives. If a will provides for the outright distribution of assets, it is sometimes characterized as a simple will. If the will creates one or more trusts upon your death, the will is often called a testamentary trust will. Alternatively, the will may leave probate assets to a preexisting inter vivos trust (created during your lifetime), in which case the will is called a pour over will. Such preexisting inter vivos trusts are often referred to as revocable living trusts. The use of such trusts or those created by a will generally is to ensure continued property management, divorce and creditor protection for the surviving family members, protection of an heir from his or her own irresponsibility, provisions for charities, or minimization of taxes.

Aside from providing for the intended disposition of your property upon your death, a number of other important objectives may be accomplished in your will.

• Guardianship of minor children.  You may designate a guardian for your minor child or children if you are the surviving parent and thereby minimize court involvement in the care of your child.  Also, by the judicious use of a trust and the appointment of a trustee to manage property funding that trust for the support of your children, you may eliminate the need for bonds (money posted to secure a trustee’s properly carrying out the trustee’s responsibilities) as well as avoid supervision by the court of the minor children’s inherited assets.
• Appoint an Executor without bond.  You may designate an executor (personal representative) of your estate in your will, and eliminate their need for a bond. In Oklahoma, the designation of an independent executor, or the waiver of otherwise applicable state statutes, will limit or possibly eliminate the need for court supervision of the settlement of your estate.
• Specify Beneficiaries other than Family Members. You may choose to provide for persons whom the Oklahoma's intestacy laws would not otherwise benefit, such as stepchildren, godchildren, friends or charities. 
• Designate others to Replace Your Role.  If you are acting as the custodian of assets of a child or grandchild under the Uniform Gift (or Transfers) to Minors Act (often referred to by their acronyms, UGMA or UTMA), you may designate your successor custodian and avoid the expense of a court appointment.

What Happens if You Die Without a Will?

If you die without a will (aka as Intestate), Oklahoma's laws of descent and distribution will determine who receives your property by default. Typically the distribution of your assets would be to your spouse and children, or if none, to other family members. Oklahoma's intestate statute reflects the Oklahoma legislature's best guess as to how most people would dispose of their estates and builds in protections for certain beneficiaries, particularly minor children. That Oklahoma statutory plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary in a harmonious family setting.

To best avoid the State automatically making the decisions, you should prepare a will or utilize other estate planning tools to create a plan to best suit your personal preferences and wishes.  A good estate plan also permits you to exercise control over a myriad of personal decisions that the Oklahoma intestacy statute does not address.