Legal Services

Estate Planning

Why You Need to Talk to an Estate Planning Attorney

There’s no doubt that estate planning is not a popular subject of discussion, but it’s one of the most important conversations you need to have with an attorney.

Estate planning helps ease the burden of stress after you pass away. It’s important to have a detailed plan and will be very much appreciated by your family and loved ones. At Colonial Title we encourage our clients to bring along a family member when discussing the details of their estate plan so that their family is aware that a plan has been implemented. An experienced attorney can help you create your plan and make sure that it works as intended.

What happens if you fail to plan ahead

Unfortunately, if you fail to plan for what happens to your assets after you pass away, the state is going to do that for you. What this means is that your family members will have more work ahead of them in trying to convince the state why a certain person should be appointed to administer your estate, or why certain individuals should receive certain assets.

Starting with a Will

It does not matter how old you are, or how much you have in the bank. You’ll want to start controlling your assets with a Will. Sit down with an estate planning attorney and write your will. Your will outlines a lot of important information, such as who receives certain assets, who you wish to administer your estate, and who will be guardians of your minor children. Wills are such an important part of your estate plan, and they are easy to draft and easy to change when things in your life don’t go according to plan.

Trust, Power-of-Attorney and Health Care

If you have a lot of assets, your attorney may discuss implementing a trust to hold those assets. When trusts are set up properly, they can help to avoid probate, which will make things a lot easier on your family members.

Regarding a power-of-attorney, this is a document that is only enforced during your lifetime. As soon as you pass away, this document becomes null and void. A power-of-attorney is important in the event that you become incapacitated and can no longer take care of your personal affairs, such as banking, real estate transactions and business decisions. A power-of-attorney can be customized to fit your needs.

Also, you’ll want to consider establishing a health care proxy. This is a legal document that outlines your wishes regarding life support and other life-saving measures. The document will also name the individual, or individuals, who can make health care and life-saving decisions on your behalf.

An estate plan speaks for you after you’ve passed away, so take the time to talk to an attorney about setting yours up before it’s too late.

Wills

Why You Need A Will

A will is a formal, legal written instrument that allows you to make crucial decisions about what should happen after your death. Without a will, your family members and loved ones will have a difficult time administering your estate.

People create many reasons to delay making a Will, but there is never a better time than “Now”. At Colonial Title, we make it easy to start the process of creating your will and once you make the decision to create a will, you should consult with an attorney instead of relaying on a “one size fits all” will form. This “do it yourself” alternative may have severe consequences. However, an experienced estate planning attorney will help assure that your intentions will be carried out after your death and that your will complies with Oklahoma Law.

A will that conforms with the law can dictate how your assets pass down to the people and charities you wish. Your will can also designate your personal representative, who is the person who handles the business of collecting and distributing your property, among other things.

A will can name a guardian for your children as well. A court is not absolutely bound to honor your choice of guardian but will give strong consideration to your desire. If you die without having made a will, Oklahoma law will dictate who your beneficiaries are and how your property will be distributed.

Oklahoma law says generally that a decedent’s property goes to spouses, children and other relatives in a specific order depending on the circumstance. But, if you leave no properly signed will, your wishes as to the division of your property will be given no consideration by the courts. And, if you die leaving none of the recipients recognized by Oklahoma law, the state could receive your assets. What’s more, without a will or a trust, a court may appoint a personal representative or guardian for your children other than the person you would have chosen. It is not mandatory that an attorney assist you in making your will. However, the way your will is written can be extremely important, and if the wording used fails to properly express your wishes or is unclear, the outcome may not be what you wanted.

A qualified Estate Planning attorney will be able to understand exactly what you desire and then write the will in such a way that there is no question as to your intentions if it becomes necessary for a court to interpret the will. In your particular situation, a trust may be an advisable part of your overall Estate Planning design. Trusts can work alongside a will or separately.

An experienced attorney will know whether a trust is an advisable part of your estate plan and can give you counsel about how you should proceed. A will must conform to certain standards and procedures in order to be legally binding. If it doesn’t, a court may decide that the will is invalid. That determination won’t happen until after you have died, so it is imperative that your will comply with the law when you make it. Even if you have strongly spoken about what you desire to happen with your property many times, unless you have made a proper will, a court does not need to abide by your wishes.

A qualified lawyer can make sure your will is properly written and executed. When your will takes effect, after you have died, it will be the guidebook for your personal representative and the courts to handle your estate. Your will must state your wishes in an exact, legally enforceable way. A wills attorney will know how to correctly do this.

Estate Taxes

What is Estate Tax and why would you need an estate tax attorney?

Estate tax law governing the disposition of personal property following the death of the owner of certain assets can be complicated and technical in nature. This means that dying intestate (the legal term for having no established valid will), can be a bad situation for many individuals and their families. The problem is that most assets are classified as probate holdings that are frozen for a specific amount of time while all creditors or others who have a claim on the property can file their claims with the estate administrator. And, among those who will be filing always includes governments that also want claimable assets the law qualifies as estate taxes. However, there are some methods of protecting assets from creditors and tax collectors alike, but this will always require the expertise of an estate tax attorney for optimum legal protection of those assets.

Avoiding Probate Assignment

All assets of a decedent are assessed for classification as probate or non-probate property. Some assets and property are automatically considered non-probate when they are already designated as property belonging to someone other than the decedent, such as a beneficiary of a life insurance policy. Assets and property that are considered probate property can be transferred to non-probate status by using legal financial instruments such as irrevocable trusts or property transfers prior to death that effectively passes them outside of probate, and hence outside of attachment based on estate tax law. This transfer protecting the assets must all be validated by the court and the best method of ensuring that legally valid status is having them prepared by an estate tax attorney.

Protecting Your Assets From Probate Inclusion

There are specific legal methods of protecting assets from the tax collectors or being assigned by a district judge based on the Oklahoma state laws of distribution among creditors and inheritors as well as the federal government. Retirement accounts can be included in some instances, as 401(K) retirement funds are subject to tax. However, a Roth account passes without taxation and valid conversion of 401 retirement funds to a Roth account is always a good decision. Establishing a trust can be an excellent method of asset protection as well, but revocable trusts are still considered personal property of the decedent if they are the administrator at the time of death. Irrevocable trusts are property of the trust administrators, which passes the assets before death. Direct transfer of property or establishment of a will that designates inheritors is also a basic legal instrument that allows the decedent to determine what becomes of their property in the event of death. Your estate tax attorney can provide legal assistance in all of these situations as well as advice on any other legal action that is unique to a certain legal situation.

Estate tax avoidance is not just a concern for individuals who have abundant resources. Everyone will have legal issues with their estate following an untimely death, and being prepared beforehand is always the best decision. The problem is that wills can be contested in court by those who are claiming a portion of the probate assets, whether that is a family member, creditor, or the government. Always get an experienced estate tax lawyer who understands the problems that may lie ahead and can craft a solid legal financial instrument plan that meets the needs of your personal situation.