Estate Planning and Probate Tips and Tidbits

What do I do if the person with the Power of Attorney is Stealing money?


Unfortunately, the people we trust sometimes let us down. We are working now on a matter where one of the most sweet and kind ladies appointed her daughter as her power of attorney. Daughter was, however, addicted to gambling, and she gambled away all of her mother’s savings, hundreds of thousands of dollars.

Other family members knew that the daughter had serious problems with her finances, but they did not know that they could intervene, and they believed that they had no way to overcome the power of attorney that was being abused after mother became incapacitated. So they did nothing, and now their inheritance belongs to Riverwind Casino (among other casinos, of course).

The Oklahoma Statutes provide that upon the appointment of a guardian or a conservator, the power of attorney previously granted becomes ineffective as soon as the person holding the power is notified of the guardianship.  I would not claim that it would be easy to accomplish this task. I would, however, assure you that the money saved in this case would have paid for many such actions. Further, the successful petitioner for guardianship will likely have their attorney fees repaid from the funds of the ward.

If you know or have good reason to believe that an elderly or incapacitated person is having their savings wasted by a friend or family member, take action. Don’t stand by and let your friend be the victim. Hire an attorney, call adult protective services, talk to the police. Call us for advice and representation for your guardianship needs.


My husband died, don’t I inherit everything?

More than a few times in my career, a client has come to see me only after they learned that they did not inherit everything after their spouse died. My client assured me that they have always heard that the surviving spouse gets everything automatically. Unfortunately, that is almost never correct. The Oklahoma Statutes provide that where there is no Will or Trust, the surviving spouse is entitled to inherit everything only if the deceased person had no surviving child, grandchild, parent, brother, or sister. Even when that applies, which is somewhat rare, it is not automatic as the state is still likely to require a probate for anything that was in the name of the deceased spouse.

A fairly typical probate in Oklahoma, if uncontested and not complex, will last about 6 months and cost thousands of dollars. Most of that time and money can be saved with some estate planning. If there becomes a contest in the probate, the time and expense grows very quickly.

Our office can help you through a probate, or if you are planning in advance, we can help you avoid probate.


I have a Will, why would I need a probate?

Your Last Will and Testament in Oklahoma might be compared to the assembly instructions that came with my daughter’s bicycle last Christmas. Those instructions, and that Will, do not “do” anything on their own. Your Will is your list of “instructions” to the Probate Court. The goal of the Oklahoma Probate Court is to determine your intent and to make that happen (within the bounds of the law).  Unfortunately, the Judge will not always follow your instructions, and this is one of the reasons that many people are moving to Trusts for their estate planning.

Think back to the assembly instructions that came with that bicycle that you bought for that special child. You could show those instructions to everyone, and they can be perfectly clear, but until someone acts on those instructions – there is no usable bicycle.

Likewise, your Will can be very clear, drafted perfectly, signed, witnessed, and notarized – but it does nothing on its own. It is merely the instructions/guidance to the Court. You heirs are going to need a probate attorney to help them move the case through the probate process to accomplish what your Will directs.

If you want to avoid probate, and the time and expenses that accompany a probate, we can help you prepare a complete estate plan that will accomplish that goal.


Is my inherited IRA safe from creditors? Should I leave my IRA to my children?

Until mid-2014, most estate-planning and bankruptcy attorneys believed that an inherited IRA was an asset that could not be seized by creditors as that protection is one of the important advantages of your own IRA. I have even succeeded in convincing creditor attorneys that they could not take such an inheritance.

The U.S. Supreme Court has, however, now decided that an inherited IRA is not an exempt asset. Creditors and bankruptcy trustees can seize your children’s inherited retirement account – unless you plan carefully in advance.

If you have not yet completed a beneficiary designation form, or if you are still in your right mind and still able to change your beneficiary designation form, you should be considering a trust as your beneficiary. Your trustee will be able to spend your retirement to provide for the needs of those you love and still protect that money from creditors and predators (such as those who have sued, the IRS, the Tax Commission, and the like).


Can I be sued for my spouse’s nursing home care and medical bills?

Oklahoma law provides that your spouse is responsible for your necessary medical treatments (and you are responsible for theirs). This means that if your husband or wife experiences devastating medical expenses, that event has the potential to devastate the finances of the entire family unless you have done some serious estate planning with that event in mind. If you are concerned that this could happen to your family in the future, quickly engage an excellent estate planning attorney to advise you.


Do middle-class families need an Irrevocable Trust?

Asset Protection Trusts are no longer just for the wealthy and powerful. We are making these trusts affordable for the families who want to assure that they are protected from predators and creditors while they retain the right to enjoy their assets. You are no longer facing $15,000 to $25,000 in attorney fees for asset protection as we are bringing detailed and personalized asset protection plans to those who need it most at a cost they can afford.

If you would like to assure that a lien does not attach to your home just because you or your spouse have an automobile accident – we can help you with that.

If you want to be sure that your family has money to minimize your misery and maximize your enjoyment of life, even if you have to live in a nursing home – we can help you with that.

If you want your parents to extend their time at home and enjoy life to the greatest extent possible – we can help you with that.

If you cannot qualify for long-term care insurance or cannot reasonably afford the premiums for that coverage, you should be talking to us.

We offer free estate planning workshops every month, and we offer individuals and families a half-price personal estate planning workshops if they do not want to attend the public workshop. Call our office to make the appointment or to reserve your seat: 405-733-8686.


It appears to me that law and family dynamics are changing more and more quickly. For the estate planner that means that the plans we write need to be able to account for future changes.  It means the same for you who actually earned the money that is in your estate.

One way we can build in some flexibility for the future is to provide for a trust protector in our estate plans. That person (or trust company) will be able to make certain changes to our trust to meet the needs of future changes in the law or changes in the lives of our beneficiaries.

It is possible, more possible than we like to imagine, that our family will not be the same in 15 years as it is today.  Some of them may be gone; some may be in a nursing facility; someone may not be sober, and one may be in jail (you generally know who that may be).  A trust protector may be a great benefit when any or all of these happen. Let’s talk about a trust protector for your trust.

A little advice on your Power of Attorney



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