Frequently Asked Questions

Allison Firm, PLLC - Tulsa Estate Planning Attorneys

We have assembled a list of frequently asked questions about the language and terminology used in estate planning, estate administration, probate, and estate disputes. Just find your question below and click on it for a definition and explanation.

What Is a Trust?

A trust is a way of holding title to property. Holding title means you own or have legal rights to the property, such as with a deed, or bank account. A trust is generally created through a document that names a trustee (the person or entity to be in charge of the property) and names the beneficiary(ies) (person(s) and/or charity(ies) that is/are to receive the trust property.)

Generally, there are two basic types of trusts, revocable and irrevocable. There are virtually endless designs of both types.

What Is a Revocable Trust (also known as a Living Trust)?

This is a kind of trust that includes words directing how it can be changed or stopped at any time. In other words, it is a trust that can be revoked. When a person creates this for himself it generally says that the person can do anything he wants at any time with the trust property while he is alive and in his right mind. When the person dies or becomes incompetent, the successor trustee (who is named in the trust document) takes over. If that happens, there are instructions on how that trustee will handle the property.

The trust property is generally not subject to the probate court process.

What Is an Irrevocable Trust?

This is a kind of trust that generally cannot be changed without a court order or under very limited circumstances that are written into the trust agreement. Such trusts are rarely capable of being changed by the person who created the trust. Usually, these trusts are created for tax, Medicaid and asset protection reasons, or because the intended beneficiary is a minor.

What Is an Oklahoma Advance Health Care Directive?

An Oklahoma advance health care directive is Oklahoma's version of a living will. It allows you to give direction on how your body will be managed with regard to machines and tubes if two doctors have diagnosed you as terminally ill or in a vegetative state. Terminally ill means that there is very little chance you will ever recover or get well. Vegetative state means that you have no brain function that allows you to think, participate in your life or communicate with anyone.

If you do not have an advance health care directive, Oklahoma law says that those caring for you must presume you should be hooked up to machines and tubes. You could be kept alive indefinitely with no quality of life or ability to communicate.

This document is available free at a number of websites, doctor's offices, hospitals, and online at the Oklahoma Bar Association's website. Two witnesses must watch you sign the form. They must then sign the document, to prove that they did witness you signing it.

What Is a Power of Attorney?

A Power of Attorney is the name of a document that gives one person decision-making power over another competent person's property. The person who the principal designates to manage the business or property is called an attorney-in-fact (also known as an agent). As soon as the principal passes away or revokes the document, the power and the document are void. Generally, the attorney-in-fact only has the powers that are described in the Power of Attorney.

A Power of Attorney can be general or specific, and only gives the powers that are described in it. There are endless designs of powers of attorney. If the power of attorney is expected to be used even when the creator is incompetent, the document must say so. This is usually called a Durable Power of Attorney.

What Is a Power of Attorney for Finance?

A Power of Attorney for financial matters is one that grants only powers over property and matters related to financial and tax matters.

What Is a Power of Attorney for Health?

A Power of Attorney for Health is designed to allow someone to receive information and make the health care decisions regarding an individual. It is needed in addition to the Oklahoma advance directive. Remember, the Advance Directive is for people who are dying or in a vegetative state. Many health crises do not invole those situations.

FOR EXAMPLE: Doctors sometimes put an individual in a coma while healing from a trauma. When health is restored, the doctors gradually bring the person out of the coma. While in the coma, the person could get a sinus infection and not be able to choose treatment. The choice would be made by the person named in the Power of Attorney for Health.

What Is A Prenuptial Contract (Prenuptial Agreement, "Prenup")?

A prenuptial contract should cover much more than wealth and divorce. Rights at death are also important in a well-written prenuptial contract and a good marriage means providing for that. A surviving spouse has legal rights to a deceased spouse's estate, regardless of any informal agreement they may have had, and without regard to the deceased spouse's Will or Trust - unless formalized in a prenuptial contract. A prenuptial contract should address much more than divorce. We ensure that it does.

What Is a Will?

A Will is nothing more than a letter to the probate judge and the heirs telling them how your property is to be distributed when you die. you want to give your property away upon your death. A Will only controls property that is made payable to your estate or that is titled in (deeded, or owned) your name only. Sometimes property is not controlled by the Will, even if mentioned specifically. Two examples are: 1) all property that is titled jointly "with right of survivorship" such as a home owned by the decedent (the person who died) and spouse, or 2) property or accounts made payable to someone on the death of the decedent.

A Will has no legal force until a probate court judge issues a court order accepting it as your final Will. As such, when you pass down your property by a Will you are also giving your heirs an unnecessary (though often friendly) lawsuit that requires court orders to accomplish any of its terms. Most people want to avoid court intervention in the settlement of their estates. Unless there are going to be creditor or environmental issues or if people are certain to be fighting over the estate, there is no logical reason to subject your heirs to this expensive, public and time-consuming process. There are other options, such as forming a trust.

Legal Authority and Responsibilities of People

What Is a Fiduciary?

This is a person or corporate entity (such as a bank with a trust department) that is legally responsible for acting in the best interest of another person. It is best if the Fiduciary is appointed by a legal document (Will, Trust, Power of Attorney). If no document exists, the court will appoint a Fiduciary when one is needed.

What Is a Trustee?

A Trustee is the fiduciary named in a Trust document to manage the property and see that it stays properly invested or managed. As fiduciary, the Trustee makes sure that the assets are properly distributed to the designated parties.

Who Is a Personal Representative or Executor?

The Personal Representative (Executor) is the one in charge of a probate estate. That is the person appointed by the court to distribute the assets or pay the debts of the estate. If you die with a Will you are called "testate" and without one you are called "intestate." With or without a Will the estate must go through the probate process.

A Personal Representative is an individual or corporate entity (like a bank with a trust department). If no one is named or there is no Will, the probate judge appoints someone.

Who Is an Administrator?

The Administrator is the individual named by the probate judge to oversee the estate of someone who died without a Will. This person has the same duties as a Personal Representative to distribute the estate.

Who Is an Attorney-in-Fact?

An Attorney-in-Fact is the fiduciary appointed in a Power of Attorney document to act on behalf of the creator of the power, the principal. The powers granted to the Attorney-in-Fact are limited only by the wishes of its creator.

Who Is a Guardian or Conservator?

A Guardian or Conservator is named by the court to manage the interests of a person referred to as the "ward." Wards are people unable to care for themselves whether they are minor children incapacitated individuals. In many circumstances, the Guardian or Conservator is a family member, but may also be an entity like a bank with a trust department.

Guardians or Conservators must make periodic reports to the court regarding the well-being of wards and their property. Guardianship ends if a ward dies or the court orders it. A court order may be issued when someone regains the ability to care for himself and/or his property, or reaches adulthood.

Legal Estate Procedures

When You Have to Probate a Person's Estate, What Does That Mean?

Probate is the court process that is required in Oklahoma if a person dies owning property in his or her name only, whether or not there is a Will. If you own property and you die, the only way to get it out of your name and into the names of heirs is through probate.

The purpose is so that a living person has the legal authority to pay the bills and transfer the decendent's property. To begin probate a petition is filed with the court to name the one who will administer the estate. It takes several months, sometimes years to complete the process. Probate, in a public way, makes sure that all the debts, taxes and expenses of a decedent's estate are paid and the remaining property is then retitled out of the name of the person who died and into the name of the beneficiary (the person who is to inherit the property).

Due to the time, public exposure and expense, probate is not desired. Avoiding the process is a significant goal of good estate planning.

What Does "Estate Doctoring" Mean?

"Estate doctoring" is what an attorney does to streamline or repair an estate. Maybe it was poorly planned or executed or it is outdated. Examples might be:

People's lives, relationships and assets change over time - in a 5 year period you might marry, have a child, gain property, or become disabled.
Sometimes the intent of a document is lost or contradicts other documents.
Laws change and parts of your estate plan might need to be brought into compliance.

Our clients rely on us for straightforward and cost-effective legal assistance. They count on us to correct or update their estate plans or documents, if it's been over 5 years since the last update.

Will you explain what's involved in Estate Planning?

Estate Planning: Strategic drafting of wills, trusts and powers of attorney provides control over asset distribution and protects beneficiaries. We are intimately familiar with the practical application of a multitude of different designs of wills and trusts and other ancillary documents (i.e. powers of attorney, buy sell agreements, prenuptial contracts, foundations, etc.) See our brochure for a list of some of these tools.

How do you help me with Asset Protection?

Asset Protection: Our goal is to protect the assets of our clients. To that end, we implement estate, gift, and generation-skipping tools that preserve and protect assets, and keep those assets available to you while you live, and to your loved ones after you're gone.

How do I protect my health care and end of life decisions?

Choice Protection: Not every estate decision is about money or material assets. If you become physically or mentally disabled, who will choose your care or that of your children, parents or other dependents? If you are terminally ill, do you want to be kept alive by machines or allow nature to take its course? Do you have a Living Will or Health Care Directive so your family and others know your wishes and have authority to carry them out? You can and should have a say in determining who will make what decisions for you if you can't make them for yourself, and we can help you do it.

What should I consider when making Charitable Transactions in my estate plan?

Charitable Transactions: Charitable and other benevolent transactions involve substantial tax and estate considerations. As former IRS estate and gift tax attorneys, we can assist our clients to establish charitable entities and fund them through proper planning and administration. Here is a List of Charities with whom we've worked or who have accepted gifts from our clients' estates.

What is Business Succession Planning?

Business Succession Planning: Clients who built a business must plan for the disposition and survival of the business at death. To survive your death or disability and not lose value and viability (regardless of whether or not you leave the company to your heirs), your business requires careful planning which we can provide.

What happens during Post Mortem Planning and Estate Doctoring?

Post Mortem Planning and Estate Doctoring: Careful post mortem (after death) planning will lead to orderly and cost efficient administration of any estate. Even in small estates, your choices can affect taxable income. In larger estates, disclaimers and other techniques can help your heirs with tax planning for their inheritances. However, when the estate is a mess, estate doctoring is a key to efficiently fixing the estate and minimizing the possibility of litigation lawsuits) and overly high taxes.

Why do I need a Lawyer for Preparing Death, Gift, and Generation-skipping Tax Returns?

Preparing Death, Gift, and Generation-skipping Tax Returns: The correct preparation of these types of tax returns requires our thorough understanding of estate planning and related tax laws. When tax returns are prepared with attention to detail, broad and deep experience, and nuanced knowledge - then you and your loved ones may save thousands of dollars.

What do I do when a Death, Gift, or Generation-skipping Tax Decision goes against me?

Litigating Adverse Death, Gift, and Generation-skipping Tax Decisions: For some clients, the ability to take your controversy to court often generates a more favorable outcome with a taxing authority - even at the audit level of the tax return. Few estate law firms in the nation litigate adverse tax decisions. These matters are often litigated by non-tax professionals. When thousands of dollars are at stake, tax disputes are best handled by attorneys, like ours at The Allison Firm, PLLC, who limit their practices to these matters.

What if we've tried to settle our dispute out of court and can't?

Estate Litigation Disputes and Appeals: Disputes can and do arise among beneficiaries and between beneficiaries and fiduciaries. We represent beneficiaries who seek to protect their inheritances and we defend fiduciaries who have been accused of improper estate administration or settlement.

Call The Allison Firm, PLLC, at 918-492-4500 or contact us by email to talk to an experienced attorney about how we can help you and your family. We will be happy to answer your questions.

Suite 301 ♦ Top Floor, Valley National Bank building, 81st & Yale ♦ Tulsa, Oklahoma

Mail to: PO Box 700116 ♦ Tulsa, OK 74170

918.492.4500

Tulsa Law Office

Home : Attorneys : Estate Practice Overview : Estate Admin/Probate : Estate Disputes : Estate Planning : What's at Stake? : FAQs, News and Blog : Presentations : Resources : Contact : Firm Disclaimer

Based in Tulsa, Oklahoma, the Allison Firm, PLLC, represents clients in matters related to probate, estate administration, estate planning, and estate disputes and litigation. In its Northeast Oklahoma practice, the firm serves Tulsa, Sand Springs, Sapulpa, Bartlesville, Owasso, Jenks, Bixby, Broken Arrow, Claremore, Catoosa, Arcadia, Grove and Vinita, and other cities in Tulsa County, Rogers County, Creek County, Muskogee County, Wagoner County and Osage County. Our Oklahoma estate and probate lawyers associate with attorneys nationwide on mulit-state cases.

Legal Documents

Legal Authorities

Legal Processes