Where there’s a will, there should be a trust

It happens at least once a week or so.  I get the phone call or the client who walks in off the street.  They want a will drawn up so that when they die, everything is “taken care of”.  They assume that once they have that will everything is settled.  They assume one can just go down to the court house and all the property the decedent owned can simply be transferred to whomever is supposed to inherit it.  There’s just one problem with this line of thinking.  That problem is that the “Last Will & Testament” is only the beginning when it comes to distributing a deceased’s property.

We call the process of distributing the property of a deceased person “probate”.  There are two types of probates.  One involves a will.  The other type of probate does not involve a will.   In some states, probate is a relatively easy process, but in Oklahoma, probate laws are a bit antiquated at times.  Whereas in some states, you may be able to transfer property in a rather quick manner and never appear in court, in Oklahoma, regardless of whether your loved one dies with or without a will, you must go to court.  The procedure is basically the same for both types of probate.  The only difference is that when someone dies with a will, a judge will issue an order distributing said person’s property to the people specifically listed in the will.  Whereas, if someone dies without a will, the judge will issue an order distributing property in accordance with the rules of intestate succession.  In other words, there is a statute in Oklahoma that instructs the judge how to distribute property when there is no will.  Think of this type of distribution as a “default” distribution.  If you don’t want the “default” distribution, you write a will.  Probate takes a lot of time and can become expensive in Oklahoma.

However, there is a way around probate.  It’s called a “revocable trust”.   I sometimes find that clients shy away from this option though, maybe because it sounds all fancy, or maybe because it costs a little more up front than a simple will.  At the end of the day though, it’s really quite simple and will save your heirs thousands of dollars when you die because there won’t be a need to be a probate of any kind.  You see, a revocable trust is an agreement between yourself and yourself (you read that correctly) created during your lifetime, whereby you transfer all of your property that would otherwise need to be probated into a trust, which usually bears your name.  For instance, you would transfer your house into this trust.  During your lifetime, you would remain the “trustee” of the trust, and as trustee you would have complete and total control over all the assets in the trust.  You can remove those assets, transfer those assets, do anything with those assets that you would otherwise do, except that instead of doing it as an individual, you are doing it as a trustee.  In the trust you name all the people you want to receive your property when you die, just like you would in a will.  You also name a trustee to take over for you after you die (this can literally be anyone).  Then, when you do pass away, instead of taking this trust to the court house and having a judge assist with the distribution of assets, whomever you named to take over as trustee when you die simply transfers all of the assets that are in the trust to the people you listed in the trust.  It never gets introduced in court.  No one other than the trustees ever need to see it, and you will have ended up saving thousands of dollars.  It is for this reason that I always recommend to my clients that they have a trust.

There are of course other kinds of trusts for more complicated matters, but in general this simple trust works for most people and saves your relatives from a lot of stress and saves a lot of money at your death.  Just remember.  All a will does is tell a judge what to do with your stuff.  Of course, if you don’t want a trust, you should still have a will if you want to have some say over who gets what when you die.

For more information, see https://wordpress.com/page/rpdearmanlaw.com/3

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About Ryan P. DeArman, Esq.

Ryan P. DeArman, Esq. Attorney At Law 2512 N. Moore Ave. Moore, OK 73160 405.501.7640 / 405.578.4336 fax rdearman@cox.net / www.rpdearmanlaw.com
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