Do you need a will or trust?

              This information is provided by the
Oklahoma Bar Association
1
Q: Should I have a will or a trust?
A: Here are some facts to help you decide:
A person does not have to be wealthy or elderly to do some serious thinking regarding an estate plan. If you own a home or a car or have a checking or savings account, you have an estate. Often a person with a small or modest estate is most in need of a plan to provide for the proper transfer of that property at death.
There are several reasons to have a will or a trust. Most im­portantly, having a will or a trust allows you to decide who will receive your property rather than leaving that choice to state law.
Having a will allows you to choose your personal representa­tive. Without a will, the court could appoint someone as per­sonal representation other than a person you would choose.
Having a trust allows you to avoid the probate court system altogether if your trust is created and funded properly.
Equally important, if you have minor children you can name their guardian in your will or trust. Your selection of a guardian is not binding on the court, but the court will give strong consideration to your selection. Without a will or a trust, the court may appoint a guardian other than the person you would have chosen.
Q: What if I die without a will or a trust?
A: Assuming your estate is not controlled by a prenuptial marriage contract, here are the general rules for how your estate will be distributed if you die without a will or a trust:
If you die leaving a surviving spouse and children, your spouse takes one-half of your estate, and your children split the remaining one-half in equal shares. If you die leaving a surviving spouse and no children, your spouse takes one-half of your estate, and your parents share the remaining one-half.
If you die single but have children, your children take your entire estate in equal shares. If you die single with no chil­dren, your parents take your entire estate. Oklahoma law provides for distribution of your estate in additional situ­ations, all depending on the identity of your legal heirs. Spe­cial rules apply if you have children from a prior marriage and you have property acquired during your last marriage as well as separate property.
If your children are minors, your surviving spouse, in order to use their portion of your estate for their support or edu­cation, would either have to be appointed guardian of the children by the court or have someone else appointed, give a bond, make annual accountings to the court and obtain the court’s permission for many routine transactions. This will result in considerable expenses as well as legal difficulty.
Q: What is a will?
A: A will is a written instrument by which you provide for the disposition of your property after your death. In Okla­homa, if you are of sound mind and 18 years or older, you may dispose of your property by will.
Q: May I dispose of my property as I wish with a will or a trust?
A: Under Oklahoma law, a married person may not com­pletely exclude the surviving spouse. Oklahoma law allows the spouse to elect to take a certain portion of the estate de­spite the will. If your will does not name a child or in some cases a grandchild, or indicate that the child or grandchild has been considered, then the child or grandchild may have certain rights to take a portion of your estate. Your lawyer can explain these restrictions and show you how to accom­plish your desires.