HomeESTATE PLANNINGWILLS MUST BE CAREFULLY WORDED

Everyone has heard of the term probate. Have you ever wondered how the administration expenses, including estate taxes, costs and attorney fees, is paid?

Brent D. Coldiron is a NAELA Member

Brent D. Coldiron is a member of National Academy of Elder Law Attorneys

How attorneys put wording into wills is a big factor when it comes into having to file a probate on an estate. If the attorney words something the incorrect way, that can lead to bigger problems down the road. The case below talks about some of the wording in the will and shows how the appellants had to determine if the appellees should have the expenses the way they did

According to the case found at 1977 OK CIV APP 62, 579 P. 2d 203 there was an appeal in the probate of the Last Will and Testament of Gilbert R. Murray, deceased. Two of the appellants were Kenneth McCray and Billy Dan Murray, who were named in the Will. The disappointed heirs in the probate argue that the personal representatives should not have paid the administration expenses, including estate taxes, costs and attorney fees, entirely out of the personal property, which exhausted all of the personal property of the estate. They said that the probate judge should have prorated these expenses among all of the heirs according to the value received by each.

The real objection was the payment of the estate taxes. Here is how the will read.

ITEM ONE: I hereby direct the payment of all my just debts, estate taxes, last illness, funeral expenses, and the costs of administering my estate.

ITEM TWO: I hereby confirm all deeds, bank account, and other items that I now have or my hereinafter acquire in joint tenancy.

ITEM THREE: I give and bequeath all of my cash and personal property as follows, to wit: In equal and undivided shares to Gayles Hill, my niece; Jonane Melton, my niece; Rita Polf, my niece; Kenneth McCray, my nephew; and Billy Dan Murray, my nephew.

ITEM FOUR: I give and devise my real property as follows, to-wit: (Here follows the devises of five parcels of farm land and one city property.)

ITEM FIVE: Any other real property that I may own at the time of my death, not devised above, I give and devise to my niece, Joanne Melton and my niece Gayles Hill, in equal and undivided shares.
The appellant court said that the real question was whether Item Three should be construed as a specific legacy or as a residuary bequest.  The appellant court determined it was a specific bequest and not a residuary bequest.  Are you eyes starting to cross yet? Now doesn’t this give you comfort if you have tried to do your own legal work by going to the office supply store or getting a will form off of the internet? Wills are instruments of art. The court is going to treat them that way. The court is going to apply the words in your will as they are written.

According to 84 O.S. 1971 § 3, this statute provides:

The property of a testator, except as otherwise especially provided in this code and in the chapter on civil procedure must be resorted to for the payment of debts in the following order: 1) The property which is expressly appropriated by the will for the payment of the debts. 2) Property not disposed of by the will. 3) Property which is devised or bequeathed to a residuary legatee. 4) Property which is not specifically devised or bequeathed, and, 5) All other property ratably.

The appellant court held that the above statute controlled the appeal. That it was error for the trial court to allow the use of all the cash and personal property of the estate for the payment of all the debts, estate taxes, attorney fees and costs of administration. That the burden of the costs should have been prorated among all the heirs according to the value of what each received.

Photograph of probate and living trust attorney Brent D. Coldiron

Photograph of probate and living trust attorney Brent D. Coldiron

An experienced probate, will and living trust attorney like Brent D. Coldiron, knows what to do in these situations. He has prepared hundreds of wills over 39 years of practice. He has never had one of his wills turned down by the court. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.


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