When planning for the future, it is important to consider how other people will distribute your assets after you die. Two common legal tools used for this purpose are wills and trusts.
While both serve similar purposes, they have distinct differences that can significantly impact how people carry your wishes out.
Wills
A will is a legal document that outlines how you want your assets distributed upon your death. It allows you to pick beneficiaries for specific items or sums of money and appoint an executor to carry out your wishes. One of the primary advantages of a will is its simplicity and accessibility. It is relatively easy to create and change a will.
However, it is important to note that a will must go through the probate process, which is the legal procedure for validating the document and distributing assets. Probate can be time-consuming and costly, and the proceedings are public. Additionally, a will only takes effect after your death, so it does not offer any protection or management of assets during your lifetime.
Do I Need an Attorney to Write a Will?
The short answer is no. There is no legal requirement that you have an attorney when writing a will. However, your will must meet all the legal requirements in Oklahoma in order to be valid. Even handwritten wills may be considered valid as long as they meet all the necessary criteria.
When considering an important legal document, such as a will, it is always wise to consult with an experienced estate planning lawyer. Having a lawyer on your side can help you avoid many common mistakes, and this could save your family both time and money during the administration of your estate. Plus, a valid will can ensure that your wishes are carried out upon your death.
Legal Requirements of a Will in Oklahoma
For a will to be valid, it must meet certain legal criteria. First, the person creating the will (the testator) must be at least 18 years old and of sound mind. This means that they must have the mental capacity to have a reasonable understanding of the things they own and how they wish those assets to be distributed after their death.
Next, you must sign your will (or have someone else sign it in front of you and at your direction), and it should also be signed by two witnesses. The witnesses cannot be heirs who would inherit anything under the will, and they also cannot be spouses of heirs. Although having your will notarized is not a hard requirement, you must have the will notarized in order for it to be “self proving.” By creating a self-proving will, the probate process will be easier and more efficient.
Finally, handwritten wills may also be valid in some situations. These wills are sometimes called holographic wills. In Oklahoma, a holographic will must be 100% handwritten in your own handwriting, and it must also be signed and dated. After your death, family members may be called to court to testify about the authenticity of a holographic will.
Trusts
Unlike a will, a trust is a legal arrangement that allows you to transfer assets to a trustee, who holds and manages them on behalf of your beneficiaries. One significant advantage of a trust is that it can take effect during your lifetime, allowing you to maintain control over your assets even if you become incapacitated.
Unlike wills, which become part of the public record during probate, trusts are private documents that typically do not require court involvement for asset distribution. This can provide added protection for your beneficiaries. You can also specify conditions that must happen before beneficiaries receive their inheritance, such as reaching a certain age or completing a specific milestone.
Common Types of Trusts Used in Oklahoma Estate Planning
Trusts are powerful estate planning tools that can be used to efficiently transfer wealth from one generation to the next. There are several different types of trusts, and each one offers certain advantages over the others. Some of the most common types of trusts used in Oklahoma estate planning are:
- Living trust
- Revocable trust
- Irrevocable trust
- Special needs trust
- Charitable trust
The specific type of trust that works best for you will depend on your specific situation and goals. An experienced trust attorney can help you understand all your options and decide on the best path forward.
Should I Create a Will or a Trust?
The answer is not always whether you should create one or the other. In many cases, you may need both a will and a trust. These documents often work well together to create a comprehensive estate plan that can help you accomplish your goals and provide for your family.
The best option for you will depend on your individual circumstances and goals. Either way, this knowledge can help you navigate the complexities of estate planning.