21 Estate Planning Topics Every Oklahoma Family Should Know
Estate planning is more than simply writing a will. It involves preparing legal documents that protect your finances, healthcare decisions, and loved ones if you become incapacitated or pass away. Understanding the basics can help you make informed decisions and avoid costly mistakes.
Below are 21 important estate planning topics every Oklahoma family should know before creating or updating an estate plan.
Estate planning in Oklahoma involves much more than simply writing a will. A complete Oklahoma estate plan may include a will, revocable living trust, power of attorney, living will, HIPAA release, and other legal documents designed to protect you, your family, and your assets.
Understanding the terminology used in Oklahoma estate planning can help you make informed decisions about what happens if you become incapacitated or when you die. The following 21 terms explain important concepts found in Oklahoma estate planning, Oklahoma probate, trusts, wills, and powers of attorney.
1. DNR.
The Oklahoma Do-Not-Resuscitate Act, 63 O.S. § 3131.1-3131.13, allows a person to refuse cardio-pulmonary resuscitation (CPR) when their heart or breathing stops. You must sign a form, or your health care proxy can sign, two witnesses must sign, and your physician must sign. You can revoke it at any time.
Every person is presumed to consent to CPR without a DNR. The DNR is sometimes confused with the Living Will, which in Oklahoma is contained in the Oklahoma Advance Directive.
Hospitals frequently ask patients to fill out and sign a Living Will but do not ask patients to sign a DNR. If you have a DNR, be cautious. If a DNR is placed on file with your doctor or hospital and you go in for a knee surgery and your heart stops, they will likely not resuscitate you.
For Oklahoma residents creating an estate plan, understanding the difference between a DNR and an Oklahoma Living Will is important. These documents address different aspects of end-of-life and medical decision-making.
2. Living Will.
Your estate planning should include a Living Will. The Oklahoma Advance Directive Act, 63 O.S. § 3101.1 et seq., allows a person to make decisions about healthcare at the end of life.
Known as a “Living Will,” it applies to a person who is permanently unconscious, terminally ill, or incapacitated. It will come into effect when your attending physician, and another physician determine that you can’t make medical decisions.
It must be signed in front of two witnesses or a notary, who cannot be related to you or inherit from your estate. You can, for example, decide whether you want to be kept alive with a ventilator and feeding tubes. You can also appoint a healthcare proxy to make decisions for you.
Most Living Wills do not allow your proxies, which are usually family members, to override the choices you have made on the form. As a result, the family may not be able to customize your care even if needed. It may also prevent your family from seeking another medical opinion or transferring you to a different hospital or facility.
We modify the statutory form to give our clients the option to let their health care proxies override the client’s choices if they think it necessary. The client also has the option to prevent the proxies from overriding their choices as well.
When creating an Oklahoma estate plan, it is important to consider not only what happens to your property after death, but also who can make healthcare decisions for you if you cannot make them yourself.
3. Revocable Living Trust.
A revocable living trust is recognized both under the older Oklahoma Trust Act, 60 O.S. § 175.41, and the recently enacted Oklahoma Uniform Trust Code. 60 O.S. §1606.1&.2.
The capacity required to make a revocable trust is the same as that required for a will. Trusts are a unique estate planning tool that among other things, helps families avoid probate, blocks your beneficiaries’ creditors, helps beneficiaries with special needs keep their benefits even though you leave them money, and can control the distribution so that young beneficiaries don’t get it all at once.
In addition, as long as the settlor, the creator of the trust, is alive and has the power to revoke the trust, the trustee must follow the settlor’s orders even if contrary to the terms of the trust.
A Revocable Living Trust in Oklahoma can be an important part of an estate plan, particularly for people who want to address probate, asset management, and how and when beneficiaries receive their inheritance.
4. Pour-Over Will.
The Uniform Testamentary Additions to Trusts Act, 84 O.S. § 301 recognizes a pour over will, which divises, or gives, property to the trustee of a trust established during the testator’s lifetime, if the trust is identified in the will and its terms are set forth in a written instrument.
This is the case even though the trust may be revocable. This type of Will is different than a traditional Last Will and Testament which usually distributes specific items or percentages of estate assets to people or charities.
The signing requirements of a Pour-Over Will are the same as a Traditional Will in Oklahoma.
A Pour-Over Will may therefore be used as part of a broader Oklahoma trust and estate plan.
5) Traditional Will.
Wills are governed by Title 84 of the Oklahoma Statutes. Section 55 sets forth the requirements for executing a will.
The testator must sign the will at the end and declare to two witnesses that it is his will and the witnesses must sign. The witnesses will need to testify at the hearing on the will unless they and the notary sign a self-proving acknowledgement.
Unlike a trust that is used without court proceedings, a Will is used in court. Many people choose a trust, usually a Revocable Living Trust, as their main estate planning method solely to keep their spouse and kids or others from having to go to court when they die.
For Oklahoma residents, understanding how a Traditional Will works in relation to Oklahoma probate is an important part of estate planning.
6. Testamentary Trust.
Both the Oklahoma Trust Act, 60 O.S. § 75.6, and the Oklahoma Uniform Trust Code, 60 O.S. § 1604.1, authorize the creation of a testamentary trust in a will.
This means a Will can be written so that a trust is created through the probate, or court, process.
This used to be a good thing if money was left to a minor, person with special needs and others. However, with the creation of the Revocable Living Trust, the Testamentary will is virtually obsolete.
Probates are already expensive, and creating a trust during the probate makes it even more expensive.
Understanding the difference between a Testamentary Trust and Revocable Living Trust in Oklahoma can help families determine which estate planning structure may be appropriate for their circumstances.
7. Penalty for Lost Will.
After the death of the testator, the original will must be filed with the court. If the original will is lost or destroyed, the court must take testimony from at least two witnesses about the content of the will.
If a copy is found, the court must determine how much weight to give to it. 58 O.S. §§ 24.1, 82-84.
Without the original will, there is a chance the will won’t be honored. We have personally never seen a judge allow a copy of a Will to be introduced in the probate. Which means, whatever is said is disregarded.
The court would look at the statutes to decide who gets what.
Keep your ORIGINAL Will safe.
For families in Oklahoma, keeping original estate planning documents in a safe and accessible location is an important part of preparing for Oklahoma probate.
8. Estate Planning Professionals.
Estate planning is a very general term and can involve the skills of several professions.
The most important is that of the lawyer, because all the instruments involved in estate planning are legal documents, e.g., wills, trusts, deeds, etc. A lawyer has ethical obligations which ensure professional responsibility.
Another relevant profession may be a certified public accountant to handle the accounting of assets. A stockbroker or financial advisor may be involved in investment decisions. A realtor may have input on buying and selling real estate.
The lawyer, however, is in the best overall position to plan your estate and may enlist other professionals if needed.
For Oklahoma estate planning, these professionals may work together to address legal documents, financial considerations, real estate, and other aspects of an individual’s estate.
9. What is Estate Planning.
Estate planning involves several different types of professional services.
Drawing up wills is defined in Title 84 of the Oklahoma Statutes, while the administration of probate estate is governed by Title 58. Property law, including trusts, is found in Title 60.
There is, however, no specific activity recognized in law as estate planning.
However, estate planning is generally considered the planning one does in case they are seriously disabled or deceased. It is done to safeguard their assets when they are no longer able. And it makes it easy on their family.
For Oklahoma families, estate planning can address what happens to property and assets after death as well as what happens if someone becomes unable to make decisions for themselves.
10. Legal Owner of Trust Property.
A trustee is someone who is trusted to manage another person’s interests in property. The trustee is the legal owner of the property.
A trust is not a legal entity and cannot own anything. Property is held “in trust” not “by a trust.” The assets of the trust are bought and sold by the trustee.
A deed must be made out to or from the trustee of the trust. The powers and duties of the trustee are set out in the Oklahoma Trust Act, 60 O.S. § 175.1 et seq., and the Oklahoma Uniform Trust Code, 60 O.S. § 1608.1 et seq.
Understanding who legally owns and manages trust property is an important part of understanding Oklahoma trusts and estate planning.
11. Beneficial Owner of Trust Property.
The persons whose interest are protected by the trustee is the beneficiary of the trust and the trustee must manage the trust for his or her benefit.
The beneficiary has a beneficial interest in the assets of the trust and is the equitable owner of the property held in trust, but is not the legal owner until his or her share of the trust assets are distributed to him or her.
The rights of the beneficiary are set forth in the Oklahoma Trust Act, 60 O.S. § 175.56 & .57, and the Oklahoma Uniform Trust Code, 60 O.S. § 60 O.S. § 1604.4.
The distinction between the trustee and beneficiary is an important concept for anyone establishing or receiving assets through an Oklahoma trust.
12. Fiduciary Obligations of a Trustee.
A violation by a trustee of a duty the trustee owes a beneficiary is a breach of trust. 60 O.S. § 175.57.
A trustee shall administer the trust solely in the interests of the beneficiaries. 60 O.S. § 1608.2.
The beneficiary may bring an action for relief in the District Court.
Trustees in Oklahoma have legal responsibilities when managing trust property and acting on behalf of beneficiaries. Understanding these fiduciary obligations is important for both trustees and beneficiaries involved in Oklahoma trust administration.
13. Fiduciary Obligations of a Power of Attorney
The Uniform Power of Attorney Act, 58 O.S. § 3014, requires an agent with a power of attorney to act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest; act in good faith; and act only within the scope of authority granted in the power of attorney.
An agent who becomes aware of a breach of fiduciary duty by another agent must safeguard the principal’s best interests or be personally liable. 58 O.S. § 3011.
When creating a Power of Attorney in Oklahoma, it is important to understand both the authority granted to the agent and the fiduciary obligations that come with that authority.
14. Time Limit of a Will.
There is no expiration date on an Oklahoma will. It is good until revoked by the testator during his lifetime. After death, it will always be good.
There is also no time limit on probating a will. Anyone who has the will must either file it with the court or give it to the executor named in the will but the probate petition may be filed any time after death. 58 O.S. §§ 21 & 22.
However, a will only needs to be filed with the court if there is some reason to file it, such as property owned by the decedent that needs to be distributed to the family or others.
Understanding how long a will remains valid in Oklahoma is an important part of maintaining an estate plan.
15. Time Limit of a Trust.
A revocable trust normally ends when the trustor dies, since it is used as will substitute.
Meaning, the assets are paid out to their loved ones or charities and when all the property is out, the trust ends. However, trusts can be worded so that assets sit in trust for various reasons, such as controlling distribution to minors.
Revocable trusts generally have an expiration date. Problems may develop if a trust goes on indefinitely because Oklahoma law prohibits a trust from preventing the disposition of property for more than twenty-one years plus the lives of the beneficiaries living at the time the trust was created. 60 O.S. § 175.47.
For anyone considering how long a trust lasts in Oklahoma, the terms of the trust and applicable Oklahoma law are important considerations.
16. Time Limit of Power of Attorney.
A power of attorney lasts as long as the principal is alive and the principal, the one who created it, hasn’t revoked it.
A durable power of attorney survives incapacity unless a guardian is appointed. 58 O.S. § 3010.
If the power of attorney is not a durable power of attorney, the power of attorney terminates upon the incapacity of the principal.
Understanding the Time Limit of Power of Attorney is an important part of creating an Oklahoma estate plan because powers of attorney can address decision-making during a person’s lifetime.
17. Time Limit of Living Will.
A living will is valid when signed but only goes into effect when the qualifying conditions, set out in the document, are met.
It expires when the person is deceased. It can be revoked any time before the person becomes incompetent. 63 O.S. § 3101.1 et seq.
An Oklahoma Living Will is therefore different from a will that addresses the distribution of property after death.
18. Time Limit of HIPAA Release.
A HIPAA release form is valid until the earlier of its expiration date or the stated event of expiration or written revocation by the patient, with default periods applied only if no expiration is specified.
State laws may modify the time period. They are governed by federal law. 45 C.F.R. §§ 160.102, 160.103.
A HIPAA release can be an important part of an Oklahoma estate plan because it can address who may have access to certain protected health information.
19. HIPAA Release for Mental Health Records.
A HIPAA release is needed to obtain mental health records.
It must clearly describe the specific information requested, the source and the intended recipient, the purpose, and a specific expiration date.
Psychotherapy records are more difficult to get because they contain the opinions of the therapist. They must be requested on a separate form, and the records must be kept separate. 45 C.F.R. § 164.508(a)(2).
For Oklahoma families planning for incapacity, understanding how a HIPAA Release for Mental Health Records works can be an important consideration.
20. Financial and Medical POA.
The Uniform Power of Attorney Act, effective 2021, states, “This act applies to all powers of attorney except: …2. A power to make health care decisions;”
The following year, 2022, the Legislature passed the Oklahoma Health Care Agent Act, 63 O.S. § 3111.1, which gave the medical power of attorney its own statute and a different title.
This distinction is important when discussing Financial and Medical POA in Oklahoma, because financial authority and healthcare decision-making are addressed under different Oklahoma laws.
21. Grantors, Settlors, Trustors.
The Oklahoma Trust Act, 60 O.S. § 175.3, contains the following definition:
“B. ‘Trustor’ means the maker, creator, donor, settlor, grantor, of a trust and the testator (male)or testatrix (female) of a will that contains trust provisions.”
All these terms mean the same thing. The Oklahoma Uniform Trust Code, 60 O.S. § 1601.3, prefers Settlor.
If you are researching Oklahoma trusts, you may encounter the terms grantor, settlor, and trustor used in different estate planning documents. Understanding that these terms refer to the person who creates the trust can make Oklahoma trust documents easier to understand.
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