While the thought of one's own death might not be on the forefront of most people's minds, it’s important to have a plan in place for that eventuality.
When estate planning, there is much to consider, such as naming an executor, a child’s guardian, and alternates to replace personal representatives or guardians should they become incapacitated or die.
“My first piece of advice is hire an attorney, because if you mess it up, it’s going to cost a whole lot more for your heirs and beneficiaries to fix it than it costs to have it done,” said Denise Deason-Toyne, local attorney and business law professor at Northeastern State University.
Available online are documents that provide instructions on how to write a will. But Deason-Toyne said there is a lot more to it if someone wants to prevent loves ones from having issues with a will, and it’s important to have contingency plans. For instance, what if both a personal representative, or guardian, and an alternate representative, or guardian, has already died before a will has been updated?
“If you’re naming guardians or trustees for children, have backups and make sure you’ve spoken with them,” said Deason-Toyne. “I recommend people review their wills or estate plans about every three to five a years, or if there’s been a big family change.”
The probate process is when a will has to be proved in court. A will directs how an estate goes through probate. Deason-Toyne said if the deceased does not have a will, state law directs to whom the estate is transferred, which can lead to some ugly situations among family members.
“The way to avoid probate would be to have a trust, or have everything titled with a beneficiary,” she said. “So a lot of married couples typically have things such as joint tenancy with right of survivorship, so the surviving spouse automatically owns it and it stays out of probate. But then that surviving spouse should probably think about having a transfer-on-death [account] or payable-on-death on things, and that can avoid probate.”
Depending on their assets, it might be easier for folks to write their own wills, or one can serve as a placeholder until an attorney can prepare a "last will and testament," although it’s not highly recommended.
Robin Gann, a senior advocate and paralegal with Legal Aid Services of Oklahoma Inc., said the nonprofit law firm recommends people complete a holographic will if they don’t have any property to convey and only have personal items.
There are some specific rules to follow to properly dispose of real and personal property through a holographic will. First, the will must be written in that person’s own handwriting.
“You can’t type it and then sign it,” said Gann. “You have to date it and then sign below it, and then nothing below your signature.”
According to Legal Aid Services, those preparing their own wills should make sure to state whether they have children. Even if they don't plan to leave anything to one or more of them, their names should be in the will. The document should also include language that clearly states the new handwritten will is how the property should be settled after death.
In Oklahoma, it is not required for handwritten wills to be notarized. However, to make it a self-proving will, it must be notarized and have two witnesses. Deason-Toyne said it’s best to just have the handwritten will notarized, but again, she recommends having an attorney prepare one instead. If someone were to only prepare a handwritten will, heirs or family members could contest the legitimacy of the handwriting.
Even those who don’t feel as though they need to complete wills might want to have contingency plans in place.
“One thing you do need to have is a durable power of attorney in case you become incapacitated, even briefly, so someone is appointed to handle your business for you or make medical decisions,” said Deason-Toyne. “If you are in a car accident and you're laid up in a hospital, comatose, who’s going to make medical decisions for you? It does not automatically go to a spouse, and if you’re not married, it doesn’t go to your parents, because you’re over 18.”