DO YOU HAVE A WILL?
You probably need a will if any of these items apply to you:
You or your spouse may have nursing costs someday.
You or your spouse have children outside of your current marriage.
You are married.
You own property in joint ownership.
This is your second marriage.
You want to take advantage of estate tax savings.
You have life insurance, a 401k, IRA or other tax deferred pension
You won property inherited or gifted to you.
FREQUENTLY ASKED QUESTIONS
How do I provide for my children after my death?
What can I do to provide for my disabled child?
What if I have parented a child out of wedlock or have children from a prior marriage that have never been a part of my life. Do I have to leave that child a share of my estate?
Can a will avoid probate?
My spouse and I own everything jointly. Why do we need wills?
Who should not own property in joint ownership?
This is our second marriage. Either or both of us have children from a prior marriage. How can we take care of each other, yet be certain our children will eventually receive their inheritance?
How can I provide for my spouse in the event I should die first and my spouse enter nursing care?
How can making a will save on estate taxes?
I own property in my own name that I was gifted and that I inherited from my family. What may I do with this property at my death?
Why do some people have a will and others choose a revocable trust?
The two main reasons for choosing a revocable trust are to avoid probate and to manage your estate in the event of incapacity. Wills are usually used by young healthy married couples who own their estate jointly and want to provide for their children in the event both parents die. Revocable trusts are a good decision for anyone over the age of 50 or anyone with health concerns.
Through your will you may leave separate property to anyone you wish. Separate property is property in which the ownership has been kept separate and comes from outside of the marriage, such as a gift or inheritance obtained during the marriage. Also, property owned before the marriage remains separate property if it is kept segregated and can be identified. Mutations, reinvestment and changes in form do not alter separate property, if it can be identified. For the marital estate, called joint industry property, you must leave your surviving spouse not less than one-half (1/2). Joint industry property is all property which is accumulated during the marriage as a result of the effort or earnings of the married couple. It makes no difference in whose name it is owned, nor whose labor or earnings acquired it. It is still joint industry property. That there is no tax on estate left to a surviving spouse. However, when the surviving spouse dies there may be Federal or Oklahoma estate tax owing. If the combined value of all the property that you and your spouse own, including your house, life insurance, IRA balances, 401K plan balances and the like will exceed the non-taxable amount, then you should consider a will with an estate tax saving plan. A will with a testamentary trust can provide for the care of a spouse in a nursing home. The will can be set up containing a special needs trusts and shelter the inheritance from nursing home cost so as to not disqualify your spouse from Medicaid. Avoiding joint tenancy ownership of property and making a will is the best method for taking care of your spouse and protecting your children. If you have minor children of a prior marriage, it is necessary to provide for their nurturing, education, support and maintenance until each child comes to what you believe is an age of responsibility. It is possible to use a testamentary trust within your will to provide for both your spouse and your children. This way both your spouse and your minor children are provided for properly. If you have adult children, avoiding joint tenancy ownership of property and making a will is the best method to insure that your children will receive their inheritance following you or your spouses death. At your death, if you have a will you may leave a portion of your estate to your children and a portion to your spouse. Or, you may provide through a testamentary trust that the surviving spouse will have the use and benefit of your estate during the surviving spouses life. At the death of the your spouse, your estate would then pass on to your children. Many young healthy married couples find joint tenancy ownership a convenient method of ownership. We almost never recommend joint ownership for anyone over the age of 50 or for anyone with health concerns. We have seen one spouse pass away and thirty days later the other spouse die. Joint ownership will not avoid probate in that case. We have seen one spouse become incapacitated. Joint ownership will not help you if your spouse is incompetent. You will likely end up having a guardian appointed. Anyone over the age of 50 or anyone with a health concern is normally better off with a revocable trust. It is true that joint tenancy with right of survivorship avoids probate, because whatever is owned in joint tenancy will pass to the surviving owner. But it only avoids probate on the death of the first joint tenant. Everything owned jointly will pass automatically to the surviving spouse and is usually a good way for younger married couples to own property. But joint ownership does not avoid probate when both of the joint owners die at the same time or within a short time of each other. If that were to happen and there was not a will, your estate would go to those persons designated by state law as your heirs. Many times the heirs at law are not who should be inheriting or are not who you would want to inherit your estate. A will allows you to specify who inherits your estate. Yes and no. If a married couple owns everything in joint tenancy and they have wills, there would not be a probate upon the death of the first spouse. Everything automatically passes to the surviving joint tenant. There would be a probate if husband and wife both died and there would be a probate at the death of the surviving spouse. If property is not owned jointly, a will is required to be probated upon the death of the owner of the property. Contract investments, such as life insurance, 401K plans and IRAS are not probated if a beneficiary is named to receive the property at death. It is also possible to use a revocable trust and avoid probate. You may disinherit any child and their descendants through your will. You can provide for a disabled child by using a special and supplemental needs trust in your will. If the child is severely disabled and will qualify for state assistance, SSI or Medicaid or some other means tested program, special care must be taken so your child will not be disqualified because of the inheritance.
Making a will is the cornerstone to protect your children following your death. You may also name your children as beneficiaries to your life insurance or your IRA or 401K plan.