Estate planning helps individuals who own assets control how those assets are disposed of upon their death. There are two primary vehicles for estate planning: a will and a living trust, sometimes simply called a trust. Oklahoma has specific rules on how to properly use both types of estate planning.
Under Oklahoma law, a will must be signed and in writing. In addition, Oklahoma law requires that at least two witnesses sign the document after they watch the testator -- the person who the will belongs to -- sign the will. The testator's will generally names an executor to administer the estate upon the testator’s death, at which point the executor begins the probate process by filing the will with an Oklahoma probate court.
A trust is a different type of legal document. In a trust, the assets' owner, called “settlor,” transfers her assets to the trust while she is alive. Usually, a settlor appoints herself as trustee so that she can maintain control over the assets while alive. The “successor trustee” is the person the settlor names to take over the trust in the event the settlor dies or otherwise becomes incapacitated. Once the settlor dies, the successor trustee must transfer the assets of the trust in accordance with the settlor’s directives in the trust.
One significant difference between a will and a trust in Oklahoma is that a trust does not have to go through the probate process. Probate is a legal process where a court authenticates the will and oversees the executor’s administration of the estate’s assets. Probate can be costly and time consuming, and the costs come directly from the estate, which can use up some of the estate’s resources. Accordingly, some people find that a trust better suits their estate planning needs by avoiding the probate process.
A will becomes a public record once it is filed for probate. Like other court records and documents, all records in probate proceedings are available to be viewed by the public. A trust, however, is not subject to public viewing, so if you're concerned about privacy in the administration of your estate, a trust alleviates this problem.
The law refers to a person who dies without a will or trust as “intestate.” When that happens, Oklahoma statutory law governs how the assets of the estate will be distributed. Oklahoma law divides the property among the decedent’s immediate family in that case, so individuals who die intestate have no control over how their assets will be distributed upon their death.