Are you wanting to Provide for a Surviving Spouse or Minor Children? Provide Cash to Pay Off Creditors or Taxes? Avoid Estate Taxes? Protect Assets from Creditors? Name a Guardian for Minor Children? Express Your Wishes for End of Life Medical Care? Empower Someone to Act for You if you're Incapacitated? Create a Plan for Charitable Giving?
There are many options and strategies we can discuss to tailor a plan just for you.
Estate Planning Attorney
Legal services for estate planning include the commonly thought of documents such as wills and trusts. But also often include other items such as durable powers of attorney, advance directives for health care, irrevocable life insurance trusts, charitable remainder trusts, special needs trusts, family limited liability companies, planning for lifetime gifting, and other asset transfer and estate tax liability avoidance documents and strategies. Estate planning can be fairly simple, but often involves an examination and avoidance of legal pitfalls and tax issues. It is important to hire the right attorney to assist you in navigating this potentially complex area of the law. I take the time to understand my client's needs, and then create an estate plan tailored to their specific circumstances. It is my commitment to provide my client's with every document they need to achieve their specific goals, but not oversell them a one-size fits all package. I also make certain my clients understand the purpose and effect of every document they execute. Because the best estate plan in the world is ineffective if the clients do not know how to implement it.
Yes, if you want to express any wish as to how your assets are to be distributed to your heirs after your death. When a person dies without a will (dying intestate) their assets are distributed pursuant to the State's Intestacy Statute. While the Intestacy Statute may distribute your assets to your heirs in a way that is agreeable to you, it is unlikely. For example, most people want to leave everything to their surviving spouse upon their death. The Intestacy Statute directs a division of the assets among the surviving spouse and any children, or is no children, the deceased persons parents.
That depends on how you want your assets managed after your death. To keep this simple, a Will directs a distribution of your assets at a single point in time. A probate court must interpret your Will and issue a final order directing your assets be distributed according to your directions immediately following the issuance of the final order. However, if you wish to set milestones as to when assets are to be distributed to your heirs (eg. when a child graduates college or reaches a specific age) you need a Trust. A Trust is perfect for providing for minor children and dictating how much and for what purpose assets are to be distributed to your heirs as they progress through life. For example, a person may direct Trust assets to be used to pay for educational expenses for a child through attainment of a bachelors degree. Then one-half of the Trust's remaining assets may be distributed to the child upon reaching age 25, with all remaining assets to be distributed to the child upon reaching age 30. Further, assets in a Trust do not have to be probated to be distributed to your heirs.
In the State of Oklahoma, end of life treatment decisions must be made in an Advance Directive for Health Care ("ADHC"). This allows a person to direct certain, specific treatment options for a future date when they are unable to express their wishes due to illness, injury or disease. There are two reasons to execxute an ADHC, (1) it takes the pressure off of family and loved ones to make a potentially very difficult decision about your care at a point and time when you are unable to express your wishes, and (2) it allows you to ensure your wishes are known and followed.
A Durable Power of Attorney authorizes a person of your choosing to step into your shoes and legally act on your behalf for either the care of your person or your property, or both. The word "Durable" has a specific legal meaning, which directs that the powers granted survive your mental incapacity. This is distinguishable from a power of attorney without the designation of "Durable" preceding it, which ceases to be effective upon you becoming mentally incapcitated. Mental incapacity is the condition that exists when you have been determined to lack the mental capacity to successfully make decisions to care for yourself or your property. Mental incapaceity can occur due to age, inllness or injury. Mental incapacity may also be temporary or permanent.
Placing your assets in a standard revocable trust does not shield them from your creditors. Legally, the assets are still viewed as being owned by you and, therefore, accessible by your creditors. There is a specialized type of Trust known as a Wealth Preservation Trust that can shield assets place in it from your creditors, but a discussion of that is better left to an actual conversation with me, and not this this summary format.
Any assets you place in your revocable Trust are viewed by the taxing authorities as still owned by you, and are reported on your personal income tax return just as before you placed them in trust. From the perspective of taxation, there is truly no difference in how are are accounted for an managed. The difference lies solely in legal title to the assets and how that title is transfered during your life and after your death.
Estate Planning Documents
Last Wills and Testaments
If an individual owns any property in their name at death it must be probated in order to legally pass title to your heirs. This document acts as your final expression of how you wish to transfer your assets to your family and loved ones. Within this document you may also make expressions of the disposition of your remains and designate guardians for your minor children.
This document is commonly referred to as a probate avoidance device. Assets administered under your revocable Trust do not have to be probated. A revocable Trust creates a separate owner of title to your assets that survives your death and allows you to direct the when and how much of your assets are distributed to your heirs or other parties such as charities. The assets placed in your revocable trust are still reported on your personal income tax return and you retain full control over the assets.
Durable Powers of Attorney
Empowers another person (attorney-in-fact) to act on your behalf to manage your health care and/or your property. This power can become effective immediately or be triggered by you becoming mentally incapacitated. All powers granted can be given to one person, or may be parcelled out among multiple individuals.
Directives for Health Care
(a/k/a living wills)
This document addresses specific end-of-life scenarios, where death is imminent and you are, at that time, unable to express your wishes. The directions made relate to the giving of artificial food and water, and medical treatments designed to prolong your life. These decisions are specifically excluded by law from the powers granted under a Durable Power of Attorney.
Life Insurance Trusts
In certain instances it is desirable for an individual to remove the value of life insurance proceeds from their estate to avoid additional potential estate taxation. The requirements for this type of trust are rigorous, and it does not suit everyone's situation. But it can be a useful option under the right circumstances.
Estate Tax Planning
Every estate plan should be structured with an eye toward utilzing all legal means at your disposal to minimize the effects of estate tax liability on your estate and your heirs. There are vehicles and techniques, such as the Life Insurance Trust mentioned above, as well as charitable giving and lifetime gifting, which can be employed to that end.
In this world nothing can be said to be certain, except death and taxes.
- Benjamin Franklin -
Kenneth T. McConkey
Oklahoma Estate Planning Attorney
I work with clients to identify their goals and design an estate plan specifically tailored to achieve them. In estate planning there is no one-size fits all structure. Whether you are motivated by a desire to provide for your minor children after your death, you want to clearly express your wishes in a living will, or your chief concern is to avoid estate tax liability, I can provide the guidance and legal counsel to get you there. I make it my mission to reduce the often confusing legalease of estate planning to easily understandable jargon, and ensure my clients fully understand the purpose and effect of each document they will be signing. For additional information regarding my background and experience, please click HERE to visit my personal webpage.
WARNING--The information on this webpage is not intended to provide legal advice and should not be relied upon in lieu of consultation with an attorney. The materials have been prepared for educational and informational purposes only. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Recipients and online readers of this information should not act upon it without seeking professional counsel.
Kenneth T. McConkey
Oklahoma Estate Planning Attorney
Please call or email me to schedule a discussion about your particular estate planning needs, and how I can help structure and implement the plan to achieve your goals.