Oklahoma Estate Planning Book

Estate Planning

By: H. Terrell Monks, Esq.

Copyright © 2016 by H. Terrell Monks
All rights reserved. No part of this writing may be reproduced, scanned,
or distributed in any printed or electronic form without permission.
First Edition: August 2016
Printed in the United States of America

Table of Contents

Attorney Introduction
Book Introduction
Chapter 1: I Am Not Rich! Do I Really Need an Estate Plan?
Chapter 2: What Estate Plan is Right for Me?
Chapter 3: The Last Will and Testament
Chapter 4: The Oklahoma Probate Process
Chapter 5: The Revocable Trust
Chapter 6: The Irrevocable Trust
Chapter 7: Power of Attorney
Chapter 8: Advance Directive for Healthcare
Chapter 9: Special Situations
Chapter 10: Alright Already, I am Convinced that I need an Estate Plan? What do I do now?

Attorney Introduction
Attorney H. Terrell Monks practices law in Midwest City, Oklahoma, where he focuses his profession on probate, estate planning, and guardianships. He has been assisting clients in the area of probate and estate planning for more than 18 years.
Terrell Monks is also active in public service: he has served as Mayor and City Councilman of the City of Nicoma Park, served as the President of his Kiwanis club, first as a member, now as the Chairman of the Oklahoma Bar Association’s Legal Intern Committee, and as the Treasurer of the Estate Planning, Probate, and Trust Section of the Oklahoma Bar Association.
Attorney Terrell Monks offers clients personal legal advice and produces excellent work. He is attentive to his clients’ needs and works with his clients as they go through the estate planning process, rather than leaving them confused as to what is happening. He is readily available to answer clients’ questions and wants to make their experiences as smooth and educational as possible.

Introduction to this Book
The goal of this book is to describe the importance of planning for the future through creating your estate plan. You may see the estate planning process as something only people your parents’ age need to do, or something that is only important for those who are sick or disabled, or you might simply see the process as far too complicated. You are not alone; many people put off estate planning for these very reasons, and realize too late that planning in advance would have saved them time and money. With the assistance of a competent estate planning attorney and knowledge of your long-term goals, your experience with the estate planning process can be smooth and reassuring.
This book is designed to give you a general knowledge of estate planning and describe the part you can play in assisting your attorney throughout the estate planning process. The book walks you through elements of a complete estate plan and describes the various steps taken by you and your attorney in creating each component.
It is my hope that as you use this book to guide you through the estate-planning process, you will more fully understand each stage of the process, be able to effectively assist your attorney, and save money on your estate for your personal benefit and the benefit of your family.

Chapter 1
I Am Not Rich! Do I Really Need an Estate Plan?

Most of my prospective clients do not perceive themselves as rich. They have a house, a car, some retirement and some savings. Many of them are middle class and a majority of them have worked a regular job most of their lives. They have regularly heard on TV and from their friends that everyone needs to do some estate planning, but they really don’t believe in their hearts that they have enough money to worry about it. In addition to that feeling, they sometimes believe that they already know where their estates will go when they pass away. Some of them believe that everything will go to their surviving spouse and others believe that the surviving children will take everything. Sometimes they are correct in these beliefs, but often they are not correct at all.

The State of Oklahoma has a plan for you if you die without creating your own plan. Unfortunately, the Oklahoma estate plan is almost always put into effect during the probate process, whether you intended to have a probate or not. Unlike the State plan, a true estate plan, made in advance, can protect your assets from the ravages of creditors and even Medicaid. Without a plan, most of your assets might be lost if you should join the ever-growing number of people who have to spend time in skilled nursing care.
An estate plan is so much more than a desire that your family members receive your property at your death. Your estate plan can explain exactly what you want each member of your family to receive, when you want them to receive it, and how you want them to receive it. An estate plan can identify the person you wish to care for your minor children in the event you are unable to be there for them. Your estate plan can protect you and your family members from the ravages of lawsuits, predators, creditors, and the requirements of Medicaid. Your estate plan can set in place a complete plan for your care should you become incapacitated, including who you would want to manage your affairs and what you expect them to do. It is possible for your estate plan to help assure that you have dignity and resources in your later years, even if you are confined to the dreaded nursing home. There is such a great deal to gain from having an estate plan and so much to be lost if you do not have one. So to answer the question I posed at the beginning, I must say yes, even if you are not rich, perhaps especially if you are not rich, you need an estate plan!
By way of illustration, let me tell you the story of Mr. Cleveland (names have been changed to protect the identity of the guilty). Mr. Cleveland came to my office a few years ago. He was a somewhat elderly gentlemen, but one who was in reasonably good health. He was one of the people who saw himself as not really rich enough to need an estate plan. Mr. Cleveland decided to do the absolute minimum of planning, even though he owned his own home, a decent car, and had a reasonable level of income. Unfortunately, as life so often does, Mr. Cleveland’s life did not proceed as he imagined it would. The next time I saw him, he was a nursing home resident whose hearing had deteriorated and whose vision was almost gone. There was not enough money put aside to pay for Mr. Cleveland’s hearing aids, and no one knew when they had last seen his glasses. Mr. Cleveland, who was mentally sharp, was unable to communicate effectively and had so little money that he had lost all of his freedom. To make the situation worse, Medicaid had filed a lien against his home and the home would soon be fully taken by that lien. It did not have to be this way. Mr. Cleveland could have done a real estate plan before being placed into skilled nursing care. Mr. Cleveland could have had thousands, even tens of thousands of dollars, set aside to make his life in the nursing home less miserable and allow him the freedom to attend his church, have a dinner at a nice restaurant, travel to see a friend or family member, or even purchase decent clothing. Unfortunately, life almost never turns out this way without an estate plan. However, with an estate plan, you can retain much greater autonomy and suffer less misery. Yes, my friend, you do need an estate plan.

Chapter 2
What Estate Plan is Right for me?
You may have seen online “Last Will and Testament” forms, power of attorney documents, and even online trust packets. Despite the one-size-fits-all aspect of these documents, an estate plan really should be a very personalized set of documents and instructions. No two families’ estate plans will look exactly the same. Some plans may purposely include a probate for certain assets, where other plans are based solely on a desire to avoid probate. Some plans may simply be designed to protect the clients’ assets from the creditors of their spendthrift son. Some plans may be primarily motivated by the desire to have a comfortable retirement.
You may want to begin by examining what estate or financial planning steps you have already taken. Are these steps really aligned with your goals? Will they fully accomplish your goals? You may not be able to answer these questions on your own, but with the input of a qualified advisor, you will be able to quickly see what your current plan accomplishes and what your current plan lacks.
Once you have determined what your current plan does and does not accomplish, you will need to decide what you should add or take away from your plan. This is not an easy step and can often consist of many individual considerations. Take your time with this first step. Make sure you share your concerns and your desires with someone who understands the law surrounding estate planning. He or she should be able to tell you whether your concerns are justified and whether your goals can be achieved. Consulting with an expert before you make these decisions will save you time, money and headaches in the future.
Often at this step many people are concerned about the costs of estate planning. This is understandable. It is hard to spend well-earned money when you do not fully understand the benefits you will receive from such an expense. It is important to share this concern with your attorney. Your attorney can explain to you which estate-planning tools are worth you money now and even how these tools will save your money in the future. Your attorney should explain to you the full financial benefits of doing your estate planning. Through our years of experience in assisting clients with estate planning, we have noticed that clients who understand that they are getting something of great value are much happier and goal oriented as they navigate the estate planning process.
Once you and your attorney have discussed the changes that need to be made to your current estate plan, your attorney will begin drafting the documents that will protect your estate plan. Although your attorney creates the documents, your input during this process will be important. Remember your goals and make sure that as you review each part of your estate plan, you can see how it helps to accomplish your goals. If you aren’t sure, ASK. Your estate plan is designed just for you and your family, so it is important for you to understand what it accomplishes.
As you read through the following chapters, consider each of the different estate planning parts and options, and how each can be molded to fit your unique situation and desires. Designing your estate plan should not be done carelessly, as these are important decisions and are best made with thought, preparation, and advice from an estate-planning expert who knows how to transform your vision for the future into a reality.

Chapter 3
The Last Will and Testament


Some people may consider the Last Will and Testament to be the most basic form of an estate plan. However, when done correctly, the last will and testament can be an inexpensive and reasonably effective way to assure that your assets are distributed to the correct people at the appropriate time. Your last will and testament also allows you to nominate an executor or a personal representative. This will be the person you most trust to manage your affairs after your death. Without a last will and testament, your family members will be required to go to court and have the judge determine who will be in charge of all of your property. Further, the last will and testament allows you to nominate a guardian to care for your minor children should you pass away before they are grown. As I am sure you are well-aware, this provision can be very important to the safety and well-being of your children.
The person who creates the last will and testament is called the “testator.” Almost anyone can create a last will and testament without spending a huge amount of money. So long as you have the desire to create a last will and testament, are over the age of eighteen and are mentally competent, you may create a last will and testament.
A last will and testament generally has three essential requirements. First, in most states, a last will and testament must be in writing, whether handwritten or typed. Second, the testator must sign his or her last will and testament. Finally, unless the testator handwrites the last will and testament (known as a holographic last will and testament), two witnesses must sign the last will and testament. This requirement helps to preserve the validity of your last will and testament and prevents disgruntled heirs from claiming that your last will and testament accurately portrays your desires. Although there are generally strict requirements to create a valid last will and testament, the document is fairly adaptable and can be drafted to fit many situations.


A last will and testament may be the simplest form of an estate plan, but it is also a critical element of a comprehensive estate plan.
To illustrate this point, let me tell you the story of Ms. Charlotte. Charlotte was truly a good and decent person; she worked at the local air force base for almost 50 years. She saved money for her old age and her retirement. She had a very pleasant little home. Charlotte never had any children, and her husband passed away before she did. For many years, Charlotte assured her favorite brother that she had “everything taken care of” and that she intended for him to “get it all.” This brother, William, called me from Charlotte’s home just a few days before Charlotte passed away. William told me that Charlotte was not doing well and that she did not have much longer to live. Charlotte wanted to do some estate planning, namely create a last will and testament. I immediately dropped what I was working on and drove to see Charlotte. The house was a very clean and very well maintained brick home in a stable neighborhood, nothing overly fancy and nothing bought to impress others. Inside, the house was neat as a pin and the furnishings, although dated, were clean and in good condition. A hospital bed had been moved into the dining room and Charlotte lay there suffering from the cancer that had taken all of her strength and would soon take her life. William left me at Charlotte’s bedside and stepped out the front door. I did my best to talk to Charlotte, but she was past the point when she could successfully complete her estate planning, because she was not sufficiently competent to execute a last will and testament that would hold up in court. I drove home that day feeling more than a little sad and feeling that I had failed somehow in my effort to help this good and gentle lady. But the truth of the matter is that all of my training, skill, and experience are of no use if I am not called on to help before it is too late.
When Charlotte passed away, a very somber family gathered in my office to discuss Charlotte’s final affairs. Charlotte’s family was even more somber when they read the estate plan that the State of Oklahoma prepares for those who die without their own last will and testament. Under the State of Oklahoma’s intestate succession plan, there were many people who would inherit a portion of Charlotte’s Estate who Charlotte would never have dreamed of giving anything to. There was a sister whom Charlotte had not seen for decades. There were great nieces and nephews, many of whom Charlotte had never met. Some of the family inheriting Charlotte’s estate were so far removed from her that their portions of the estate were less than 2%. I can assure you with the firmest of convictions, that there was not one chance in a million that Charlotte would have chosen to leave her estate as the State of Oklahoma chose for her.
I offer you this story as an example of why it is urgent that you at least have a last will and testament, because without a last will and testament you will have no say in the final distribution of your property.


You might be surprised to learn that a Last Will and Testament doesn’t actually have any power on its own. Many times prospective clients have called me on the phone frustrated to tell me that their local title company just informed them that they did not have the authority to sell the house that they believed they had inherited from their father, mother, or grandparents.
Often these Clients tell me that Grandpa had a last will and testament and it is very clear in the last will and testament who will inherit Grandpa’s house. So why do they need a probate? I sometimes like to compare a Last Will and Testament to a set of assembly instructions. For example, last Christmas I bought my daughter her first bicycle. It arrived on the porch in a box that was far too small to hold an assembled bicycle. We opened it up and found five pages of assembly instructions. Fortunately for me, the instructions were clearly written and reasonably understandable. But no matter how clear or straightforward these instructions may be, are never enough to assemble the bicycle. The instructions are nothing more than paper and information. Someone has to apply a great deal of effort and time following those instructions to achieve the desired result.
The last will and testament is similar. It can clearly state who should receive, when that person should receive, and how they should receive. But standing alone, the Last Will and Testament is insufficient to make all of that happen. Standing alone, it cannot transfer ownership. Someone has to probate that will in the appropriate district court before a district judge. (In our next chapter we will talk about the probate process further). Just like the set of assembly instructions, the last will and testament states who you chose to be in charge of your estate, who you chose to be your children’s guardians, who should receive your estate, when they should receive it, and how they should receive it. The judge will do his or her best to follow the instructions left in the last will and testament, but without a signed order from the judge, the last will and testament cannot appoint anyone as executor or give anything to anyone.


There are many important considerations that will come into play as you work to create a last will and testament. You may have already thought of some of these and others you may spend some time reviewing. Here are just a few considerations: 1) whom do you trust to handle the financial aspects of your estate? 2) Do you have any minor children? Whom do you trust to take care of your children? 3) Do you have any specific pieces of personal property you want to leave to a particular person? 4) Do you want your children to sell your house? 5) Do you have any friends you would like to include in your Last Will and Testament? 6) If someone you have chosen to receive a portion of your estate is no longer living, who will receive that gift? 7) Do you have any children or grandchildren that should be protected from creditors? 8) Do you have any a spouse, children, or grandchildren who are, or may become, incapacitated? 9) Do you have any heirs or beneficiaries who may suffer a devastating divorce or a bankruptcy? With careful planning, you can protect your gift so it will be available to cushion the harsh blows of difficult times.
Make sure that you talk to your attorney throughout the estate-planning process, to assure that each of your concerns have been properly addressed. Your attorney should know what questions to ask, but only you can provide the answers needed to create your last will and testament.

Chapter 4
The Oklahoma Probate Process


The word “probate” has been used for many years, even decades, to scare people because it is not well understood and we humans have a built in fear for the unknown. People generally fear that the probate process will last for years and years and that the entire value of the estate will be consumed in attorney fees and court costs. Cases such as these seem to appear on the news with much more regularity than they should. One somewhat recent study indicated that probate is likely to cost the estate between 5% and 20% of the estate’s total value. In my experience, 5% is a little lower than normal and 20% higher than normal. Despite that experience, it is true that some estates are extraordinarily expensive to probate and other estates take a very long time to probate. However, it should be somewhat comforting to know that most Oklahoma probates can be completed in about 6 months, and often the total cost of the probate is less than 10% of the estate’s value.
In relatively simple terms, probate is the name given to the legal process whereby the final affairs of the deceased person are wrapped up, the bills are paid, and the remaining assets are distributed. Probate requires a person to work through the court system in order to get each of the requisite actions approved by a judge’s order.
How the assets are distributed largely depends upon whether the decedent left a last will and testament (discussed in chapter 3). Although a last will and testament also goes through probate, the will allows the decedent to instruct how his or her assets should be distributed. If there is a last will and testament, the estate’s assets will be distributed to the beneficiaries under the will. If there is no last will and testament, the estate’s assets will be distributed to the decedent’s heirs at law, often the decedent’s closest kin. For a more detailed description of probate see our book “Oklahoma Probate for Non-Attorneys.”


It is fair to point out that there are times when a probate may be a better option than the cheaper and faster trust administration (trusts are non-probate assets discussed in chapters five and six). There are some families who will benefit from having a court and a judge review all actions to make sure all of the assets end up where they are supposed to go, because no one in the family can reasonably be trusted to be fair and honest. I wish such families were few and far between, but that is not necessarily the case.
Another benefit of the probate process is found in the “Notice to Creditors.” Towards the beginning of a probate, your attorney will file a “Notice to Creditors,” which gives any of the decedent’s potential creditors about sixty days to file their claims against the decedent’s estate. This is a great benefit to the beneficiaries of the estate, as it assures that they will not later have their inheritances claimed by a creditor of the decedent. All creditor claims must be filed by the deadline, or those creditors of the estate lose the opportunity to file a later lawsuit on their claims. The time that the creditors have to file their claims during probate is a much shorter time than they might have under the law outside of the probate process.


Unfortunately, one of the negative side effects of probate is that often much of the estate and family privacy is lost. Probate cases are open records in Oklahoma, and anyone with an internet connection and a little curiosity can locate the court records, read the inventory of everything the estate owns, the value of each item, who is going to receive, when they will receive, and how they will receive. It does not take a person with an extraordinary imagination to recognize that these open records lend themselves to abuse. If your beneficiary or heir has any life difficulties, there is probably going to be more than one person who is willing to take advantage of them when they realize that this person is inheriting a little extra money.
Further, probate cases can seem to bring out the worst in families. I will sometimes advise my clients to be especially watchful during probate, because, in my experience, there are two things that quickly bring emotions to the surface. First, the pain that accompanies the loss of someone who is dear to us. We cannot lose our beloved mother or father without experiencing deep feelings of loss and pain. Second, the availability of money or property without having to earn them encourages bad behavior. A probate combines these two emotional hand-grenades into one incident. Suddenly, past emotional scars are disturbed and simultaneously there is a house and money in the bank that is going to go to somebody, and at least part of it may be going to the person who caused these emotional scars. This is a recipe for feeling and saying things that we would not say in any other situation. Perhaps that is why probate has received such a bad reputation.
To further complicate the feelings and legal results of probate, it appears that our parents and grandparents often make a common mistake by promising an item to a particular child or grandchild and eventually forgetting that promise. Sometimes, perhaps years later, they promise that same beloved item to a different child or grandchild, and then they might even forget again. Often, however, both of those children remember that promise very clearly and they both have a reasonable expectation that they will receive the promised momento. Unfortunately, if Mom did not put that promise in writing in her last will and testament, the state probate law may not distribute that item as Mom had hoped or her children had expected. Promises that are not written into the will are almost always worthless and unenforceable.
The state probate law is filled with scores of rules and exceptions to rules, with procedures and exceptions to procedures. Therefore, the probate code is a virtual minefield for the uninitiated or even the new attorney. It is a rare non-attorney who should venture into handling a probate on their own. If you are forced into probate, I have two suggestions: first, seek out a very experienced probate attorney and second get your hands on a copy of our probate handbook for non-attorneys. You can find it on Amazon.com, at the Oklahoma County law library or at our office.

Chapter 5
The Revocable Trust
A revocable trust is also known as a living trust. This particular type of trust can be readily changed by the trustor (the person who created the trust).
An advantage of a revocable trust is the ability to have complete and utter control over all of the assets in the trust for the trustor’s entire life, or at least so long as the trustor retains his or her mental competence. For example, if something happens in the life of one of the Trustor’s beneficiaries (such as a bad marriage or a bad car accident), the trustor can change this trust and cause the distribution to be protected and thus unavailable to the beneficiary’s creditors. Of course, to make this happen, the trustor must still be alive and competent at the time the change is needed. One important disadvantage of the revocable trust is that if you have full authority over every asset in your trust, so do your creditors and predators.


Where a last will and testament can be likened to a set of bicycle assembly instructions, I like to compare a trust to the wagon you had as a child. You could put whatever you wanted into the wagon, take the wagon with you wherever you went, and if you were unable to care for the wagon, you could let somebody else pull the wagon. All of your “stuff” stays in your wagon, and when you die, or if you become incapacitated, you simply have someone else pick up the wagon and continue to use your stuff. There is no need to go to court and have the judge distribute the things in the wagon. These things were in the wagon before anything happened to you, and they will stay in the wagon after you are gone.
Generally, estate-planning attorneys will instantly assure you that a trust is always better than a will because trusts avoid probate, and that is generally accurate. The reason that trusts avoid probate is that when you, the creator of the trust and possibly the trustee, pass away it is highly likely that you will have nominated a successor trustee to continue to take care of your trust and to follow the rules controlling your trust. Therefore, the trust does not die, even when the trust creator dies. It is very much like creating your own personal corporation. Consider the General Electric Corporation. If the president of that corporation were to die, there is no chance that the company will cease operations and undergo dissolution in court. A new president will be appointed and she will operate the company according to the law and rules of the corporation. The affairs of the corporation will not be particular impaired.
Because of all of the above, I generally agree that a trust is better than a will standing alone. However, I would caution you not to have a trust standing alone, as it is not uncommon for your estate to experience a substantial financial benefit from having the opportunity to probate a will, should the need arise. (See our Probate Handbook)


The “Trustor” is the title given to the person or persons who are the creator(s) of the trust and with whose money the trust is generally funded. Trustors are sometimes referred to as “grantors” or “trust creators.” The trustor of a revocable trust generally retains the ability to change the trust at anytime or even to completely revoke the trust.

The “trustee” is the person or persons who are actually in charge of the day-to-day affairs of the trust. The trustor appoints the trustee, often at the time the trust is created. The trustee is often the same person as the trustor. For some trusts, it is important to have someone other than the trustor serve as the trustee in order for more complete asset protection. In other trusts, it is important to the trustor that he or she maintains complete control of the trust, so he or she would therefore also serve as the trustee for as long as possible.

Trust Beneficiary
Anyone who will receive from the trust is called a “trust beneficiary.” Some beneficiaries receive from the trust at the moment it is created and some beneficiaries will receive future benefits from the trust. If the beneficiary would only receive in certain circumstances, such as reaching a certain age or receiving as a successor after someone has passed away, that person is called a “contingent beneficiary.”

Funding the Trust
One of the most important tasks, which will have to be accomplished once your trust is created, is the job of funding the trust. Unfortunately, some people have paid their attorneys handsomely to create excellent trusts for them and then forgot or failed to put their assets in their trusts. The work of changing the title to the assets is called “funding the trust.” You will often start funding the trust by taking your trust book to the financial institutions where you have assets and by advising the institution’s employees that you have created a family trust and would like your accounts to be put into the name of the trust. Often there will be documents for you to sign to effectuate this change. Occasionally, but not often, a financial institution will change your account number when you change the title of your account into the name of the trust. However, you can generally continue to use your account just as before, but your account statements will come in the name of your new trust.
If you have titled property such as a vehicle, and if you intend to keep these items long term, it is often advisable that you take your trust book and the titles to the tag office and have new titles issued in the name of your trust. If, however, you intend to trade your vehicle in fairly soon, it may not be worth the time and money to transfer the vehicle into the name of your trust. Please keep in mind that an asset that is not owned by your trust cannot be controlled by your trust and may be subject to probate if it is still in your name when you pass away. There are commercial services that will help you to fund your trust, but as a practical matter most people can do it without any assistance. Our office will be happy to provide you guidance on how to self-fund your trust if you choose that method.


Trusts offer a substantial advantage over a last will and testament in that when handled properly, they can pass the entire estate to the beneficiaries of the trust without the time and expense of the probate process. This represents a very substantial savings. A trust can also reduce the time that it takes for your family to receive their inheritance. Where an uncomplicated probate may take 6 months, trust administration is often done in 1 month. There are occasions when this speed is of substantial value to the family. Further, in our office we offer our clients an opportunity to use our maintenance service to care for the trust throughout their lives. In exchange, we guarantee that we will handle the trust administration for a fee of 1% of the estate’s value. This option allows an estate to be settled for a small fraction of the price of a typical probate.


For many years, a revocable trust has been the most common estate-planning tool for people with a desire to avoid probate. This trust, also known as a “living trust” or a “living irrevocable trust,” was once popular because the person who created the trust was still free to revoke the trust at any time, so long as he or she was of sound mind. This means that the trustor, the person who created the trust, could later put more property into the trust, take property out of the trust, substitute property, or do anything else he or she wanted to do with the property owned by the trust, so long as the trustor remained competent. Only when the trustor passed away or became incompetent was his or her right to change this trust eliminated. However, when the trustor retains the power to so change the trust, the trustor’s creditors and predators can reach the trust to satisfy the debts of the trustor.
A revocable trust might be sufficient for a younger family that wants to be sure that they can avoid probate and guardianship but have not yet accumulated enough money that they are concerned about losing their assets to creditors and predators. A revocable trust is a cost effective way to avoid probate and guardianship, and to leave a set of instructions as to how your assets should be distributed, but it offers no protection against predators or creditors.
For most families, a revocable trust is an important piece of a good estate plan, but it is generally not enough by itself. As mentioned earlier, the trustor’s creditors can do anything that the trustor can do with the property that belongs to the trust. For example, if you create a revocable living trust and are later sued as the result of a terrible car accident, the assets that belong to your trust are subject to being seized by a successful judgment creditor. Further, if you, the trust creator, are someday committed to the care of a long-term nursing facility, all the assets that belong to your revocable trust must be fully expended (or at least below 2,000 dollars) before you will be eligible to receive assistance from Medicaid to pay for your nursing care. This can be a financial disaster, because in most instances, nursing care will cost you several thousands of dollars a month. That kind of expense will cut into your savings severely and quickly.
Knowing that the revocable trust assets are still subject to creditors and predators, some of our clients are surprised to learn that we still do use revocable trusts for almost every family. We use revocable trusts because the law does not allow us to fully protect all of your assets, as we must leave you sufficient income and assets to meet your reasonably foreseeable daily expenses. Therefore, we typically put some of your assets into a revocable trust even though we know that those assets will not be protected from your creditors or predators.
One of the great values of the revocable trust is the ability to pass funds to your heirs and beneficiaries without having to pay the cost of a probate. As mentioned in an earlier chapter, a probate can take 5 to 20 percent of the value of your estate. Therefore, a great savings to your estate can be accomplished by passing your assets to your heirs without the expense of probate. Yet another advantage of your trust is the ability to achieve greater protection for your personal information. If your homestead is owned by a trust, it is much more difficult for stalkers and hackers to locate you and to learn enough about your assets to cause you great harm. Further, the privacy of your heirs and beneficiaries is also increased. Since there is no probate, your beneficiaries’ names are generally not published, your assets are not disclosed in the public court files, and the inheritance that your children or other beneficiaries receive will not be detailed in the open court files that are subject to being read by anyone with an internet connection.
In summary, a revocable trust standing alone is generally not sufficient for all families but it can be enough for a younger family that is wanting to be sure that they can avoid probate and guardianship but have not yet accumulated enough money that they are concerned about losing their assets to creditors and predators. However, a revocable trust as part of a comprehensive estate plan is beneficial for almost everyone.

Chapter 6
Irrevocable Trusts


As we discussed in the previous chapter, the revocable trust allows the trustors to retain complete control over the trust. The trustors can change the trust whenever and however they want. The trustors can even completely revoke the trust and give the trust assets back to themselves or directly to their kids, or sell them to go on a long vacation. Unfortunately, retaining the power to revoke the trust means the trust also offers no protection against creditors, predators, or nursing home expenses. An irrevocable trust is necessary in order to achieve asset protection because any control that a trustor retains for himself or herself could also be exercised by his or her creditors to take the assets that belong to the trust. That’s why the revocable living trust has no asset protection to offer. The revocable living trust is what we call the open box of trust planning. The trustor can reach into the open box and pull out any asset that he or she wants at any time, may amend the trust, may add property to the trust, may spend the money in the trust for any purpose at all, and therefore her creditors and predators can do precisely the same thing. The net result of using an open box (revocable) trust is that no asset protection is achieved at all. In order to achieve asset protection you must give up that which you wish to protect. This is where the benefits of irrevocable trusts come in. There are a few different types of irrevocable trusts that we will discuss in this chapter.


For many years, even decades, we have come to think of irrevocable trusts as a trust that we cannot control at all, and thus a trust from which we cannot benefit at all. This belief was and is based upon a reasonably accurate understanding of the type of irrevocable trusts that are commonly used to accomplish planning for gift and inheritance taxes. Not so many years ago, estate and gift taxes had particularly high taxation rates, beginning at a few hundred thousand dollars. In order to avoid that taxation, many people turned to irrevocable trusts that were very strict in form and function and allowed the trustor little, if any, power to make changes to the trust.
Some attorneys attempted to use those irrevocable trusts as asset protection trusts. Unfortunately, most of us are not willing to give up all right to enjoy or control our assets in order to achieve some asset protection. Therefore, irrevocable trusts have come to have a bad name among those of us who want to do estate-planning and have some asset protection, but are unwilling or unable to completely walk away from those assets. Therefore, if your financial advisor, your sister, or your friend at the coffee shop turns pale when you tell them you have an irrevocable trust, you will understand that these people are thinking about the traditional irrevocable trust that is used to address some estate tax issues.
At the time of this writing, you can pass more than 5 million dollars to your heirs and beneficiaries without having to worry about inheritance issues. For most American families, about 97 percent of us, there is no need to plan around inheritance taxes. However, if you have such a need, our office is willing and able to help you.
Traditional irrevocable trusts are not the sort of trusts that most people use for today’s asset protection and estate planning. But most people do not know that there is another type of irrevocable trust, which we will discuss in the next section.


As you may have read above, the traditional irrevocable trust was created primarily for estate tax planning purposes and it is ill suited for most people in modern estate-planning times. Under the current state of the law, 97 percent of American families have no reason to fear that their estate will be taxable. Unfortunately, some attorneys have attempted to take the traditional irrevocable trust and use it as a vehicle for modern estate planning and asset protection. That very nearly defeats the value of asset protection because if you cannot enjoy the asset and cannot control it, it is about the same as having lost it. Therefore, modern estate planners have had to come up with new versions and new types of irrevocable trusts.
In our modern estate planning you do not have to give up everything to have asset protection but you do have to give up something. What you give up will vary from situation to situation and can only be decided upon after consultation and careful, deliberate and detailed advice from a highly qualified estate-planning attorney. Perhaps you will want to give up the right to take the money out of the trust and pay your creditors, or perhaps you will want to give up the income. We can help you decide what to give up and how it might affect you in the future.


It is fair to say that an in-depth study of every aspect of irrevocable trusts is well beyond the scope of this handbook, but here are a few things that you will need to be
thinking about before you come in to address your estate plan with your attorney: First, who will be in charge of your trust? This will need to be someone of impeccable character and knowledge of finances with the willingness to seek out advice, and the ability to follow that advice. The person in charge of your trust should also be someone who is willing to serve as your trustee. Therefore, this person may need to have time to meet your estate-planning attorney and discuss his or her role in the administration of your trust.
Second, who will be eligible to benefit from your trust? Do you want to be able to take care of your children? How about your grandchildren? Might there come a day when you need to help take care of your parents? Be sure to think about these issues well in advance because a failure to put these options into your trust could make it unavailable in the future.
Third, who will be the ultimate beneficiaries of your trust if all of the people you name as your potential beneficiaries pass away before you? Do you want to leave the money to a charity, a church, your closest living relatives, or perhaps your friends? Be sure to list these people and know their full names, including their middle initials, when you are drafting the trust with your estate-planning attorney.
Fourth, do you have specific gifts coming out of your trust? For example, if you are putting a house in the trust do you want your daughter to be able to live there for the rest of her life? Will it remain in the family after your daughter is gone? If so, how will the taxes and maintenance be paid? Please keep in mind that the irrevocable trust is not a vehicle well suited for holding your household goods and furnishings. It is likely that your estate-planning attorney will have you put those assets into your revocable trust, as they are more easily dealt with there.


Many people know that they need a trust in order to avoid probate, and they really do want to avoid probate. Many of us are not certain that we need an irrevocable trust. It is commonly thought that irrevocable trusts and asset protection are only for rich people. I disagree. In my opinion, the people who need asset protection the most are the ones who do not have a lot of money to spare. If you would like to provide some money that family members could spend to reduce the hardships of life if you are ever put into a nursing home, an irrevocable trust is for you. If you would like to assure that your home is not subject to a judgment lien, even if you experience an extraordinarily unfortunate automobile wreck, an irrevocable trust is for you. If you want to be sure that your children inherit from your estate, even if your surviving spouse finds a “new friend,” then an irrevocable trust is for you. If you want to be sure that your son-in-law or daughter-in-law, who has always kept one eye on the checkbook and the other eye on the door, does not walk out the door carrying half of your child’s inheritance, an irrevocable trust is for you.
There are families who do not need an irrevocable trust, but there are many more families that do need one. We can help you to determine whether your estate is likely to benefit from an irrevocable trust, and if so, what kind of an irrevocable trust would be best for you.
Let me illustrate the benefits of an irrevocable trust with a short example. Jeff and Anne were married about 44 years before Anne passed away. They had two children, a son and a daughter. The daughter works a reasonably good job and saves some money. Their son is a good human being, but he is not particularly successful in handling his finances. I would have predicted that Jeff’s problem would be from his son. I have seen it many times before. The adult child who doesn’t handle their money well, borrows from the parent, or worse, just takes money. That did not turn out to be the problem. As it happens, Jeff has started to suffer from signs of early onset dementia. He still can pass tests to qualify as being legally competent, but most of us looking at his finances would say that he has “lost his mind.” Jeff sold his perfectly good sedan and purchased a used convertible with maintenance issues. Jeff also has a “new friend” who is soaking up a lot of money. Jeff is having parties at his house that appear to be very unusual for a man of his age and experience. As of the most recent report, Jeff has gone through about three-fourths of his retirement and has spent more than his income by running up his credit card debt. Jeff’s children are desperately worried and they have no idea what they should do because frankly, there is so little that they can do. If the current course of events continues, as it appears that it will, Jeff will pass away completely penniless, and everything that he and his wife saved will be long gone. Jeff’s late wife probably never imagined that it would be possible that her children would inherit nothing from her estate, but that almost certainly appears to be the outcome.
You may wonder how this could have turned out differently, and if it could have been different without leaving Jeff completely powerless. That is an important question because none of us would willingly become powerless over our financial affairs. Perhaps, Jeff’s case could have worked as follows: Upon the passing of the first of the two spouses, the estate could have been split into two parts. One half of the estate could have been left completely in the power and control of the surviving spouse, to lose and use as he saw fit. This money could have been used for vacations, parties, and even vehicles that were not quite reasonable. The other half of the estate could have gone into an irrevocable trust wherein Jeff and one of his children would have served jointly as trustees. This trust could have been used to care for Jeff’s needs to the extent that his own income and trust was insufficient.
It is probably not reasonable for any of us to deny Jeff the right to have a “new friend” and even to have a party, even a lot of parties. But that doesn’t mean that there shouldn’t be some protection for the children and for Jeff’s late-in-life needs. It could be better if there were just a little more advance planning.

Chapter 7
Power of Attorney
The “power of attorney” form will allow you to take care of basic financial transactions that many people would be likely to need assistance with during a hospital stay. The person giving the power is known as the “grantor.” The grantor gives the person holding the power the authority to pay utility bills, deposit paychecks, make payments on debts, and generally conduct day to day affairs sufficient to keep the basic financial needs covered until the grantor of the power is able to take over their own affairs again. This is not a small thing; without this power, a guardianship would probably be required and that would cost thousands of dollars. A power of attorney is an important piece of an estate plan, but it is not an estate plan by itself. There are a few different types of power of attorneys. Some are nearly identical, while others have completely different functions. We will briefly discuss some types of powers of attorney in this chapter.

In general, a “durable power of attorney” is a power that continues in effect even if the grantor becomes incapacitated. There are a couple basic types of durable powers of attorney. The general durable power of attorney becomes effective immediately upon you signing it. Many people find this immediate effect troubling and ask that the power only come into force if they are actually incapacitated, and this is possible. We call this type of power of attorney a “springing” power of attorney because it springs into force upon the happening of some future event such as poor health or incapacity. The downside to having a springing power of attorney is that there are occasionally times when it is important that we be able to quickly use the power of attorney. This may be problematic because we must attach to the springing power of attorney supporting evidence that the incident that triggers this power of attorney has actually occurred. Often this evidence is in the form of letters from two physicians, wherein the doctors verify that the person who gave the power is now incapacitated. If you have not had the opportunity to try and get two physicians to write letters on your behalf, I can assure you this, it usually doesn’t happen very quickly. Therefore, while the springing power of attorney may sound better, it may not have the desired result because of the time needed to prove that the triggering incident has happened.

This is the document that appoints the person who will have the authority to sign consents for medical treatment on your behalf, if you are unable to do so yourself. You may not be near the end of your life, but if you are unable to sign the consent form, you will need someone there to evaluate the doctor’s report and to make a reasonable determination as to whether you should undergo the particular course of treatment of procedure that is being suggested. As with the other powers of attorney, you will want to consider who should serve as a backup if your first choice of medical power of attorney is unavailable. Maybe this individual will be the child who is reliable and beloved, but not quite as conveniently located as your first choice of medical power of attorney.

There are some common misconceptions concerning these documents. First, you must keep in mind that a power of attorney document is not an estate plan, in part because the authority granted by the document ends at the very instant that the grantor passes away. Somewhat regularly over the years my clients have responded to this information by saying, “but this is a durable power of attorney.” Unfortunately, a durable power of attorney only endures incapacity of a grantor, and it must cease to be effective at the instant of death. Second, a power of attorney usually will not allow you to create a trust for the person who gave you that power. The Oklahoma Supreme Court has decided that there are certain powers that will not be granted in our statutory power of attorney form because those powers are so personal that the Court does not believe that they should be presumed to be included. Powers that are generally not included are: estate planning, signing a do-not-resuscitate order (DNR), executing an advance directive for healthcare, and the power to give away assets that belonged to the grantor. One of the implications of this Oklahoma case law is that the person who holds the power of attorney generally cannot do any Medicaid planning for the grantor, even if the grantor’s life would be greatly improved or extended if he or she were to receive that assistance.


Earlier this week my office received a phone call from a very nice lady who shared with us that her grandmother was in very poor health and would soon pass away. Grandmother had given our client her power of attorney, a form she found on the Internet. The caller wanted to know whether she could use this power of attorney to transfer grandmother’s house to herself because neither she nor Grandmother wanted the estate to go through probate. Sadly, I was compelled to advise the caller that a power of attorney generally does not allow the person holding that power to give the grantor’s property to herself. We asked the caller to send us a copy of the power of attorney and we would look at it to determine whether this particular document might be an exception to the general rule. We reviewed the document and found that there was no way around the general rule that applies to Oklahoma power of attorneys. The recipient of the power was not free to give Grandmother’s home to herself, or to anyone else for that matter.
As you can see, there are many things that the grantor of a power of attorney might really need but if he or she has relied upon a form power of attorney, something found on the Internet, or even the form found in the Oklahoma statutes, it is very likely that the desired outcome will not be achieved.
On the other hand, a power of attorney might be compared to a blank check, only more dangerous. If I give you a blank check, you have the power to completely empty my bank account, but if I give you my power of attorney, you have the power to take away everything I own. You could sell my house, empty my bank account, sell my car, and effectively destroy my financial stability. When I consider this, along with the first story I told in this chapter, I reach the opinion that a standard power of attorney is both too much power and too little power, and in the wrong hands it can create complete financial devastation. Therefore, you need a power of attorney that is carefully tailored to meet the goals that you have described to your attorney. The power of attorney form that you got off the Internet is no more a good idea than are the instructions for a do-it-yourself appendectomy that you might find on the Internet. Don’t do it. Be smart and use an estate plan drafted by an expert attorney who has spent years studying to do the best job possible.
Despite these pitfalls and common misconceptions, a power of attorney can be a very important part of your estate plan. Spend time thinking about who would be a trustworthy general power of attorney and medical power of attorney. Talk with your attorney about how to give this person the power that they will need to protect you and accomplish your individual goals, but avoid giving a blank check. Your attorney should be well experienced in this area, and with input from you, can create a power of attorney document perfectly tailored to your unique situation.

Chapter 8
Advance Directive for Healthcare

At the risk of disclosing family secrets, my own parents did not complete their estate plans until they were facing serious surgeries. When my parents did decide to do some estate planning, I took the opportunity to encourage them to execute an advance directive for healthcare. I might also share that my wife and I, despite being much younger than my parents, have also prepared our own advance directives for healthcare. My wife and I have done this because we have held the hands of clients, friends, and family members who were faced with the task of making end-of-life decisions for their loved ones and were struggling with the extraordinarily difficult question of what mom or dad really wanted. This chapter discusses this important piece of your estate plan.


An Advance Directive for Healthcare is sometimes known as a “living will.” The Advance Directive for Healthcare informs your family what kind of care and treatment you want to receive in the event that you suffer a serious injury or disease and are unable to effectively communicate your desires.
This document can be customized in many ways. Some questions you might think about before completing your advance directive for healthcare are: do you want to be kept on life support for 30 days while the doctor watches for progress? Do you want to receive enough hydration to assure that the doctors can effectively deliver pain medication? Do you want to direct that no one should perform the CPR that could break your ribs? Do you want to ensure that the doctors try everything possible within their arsenal right up to and including the last minute? Think carefully about these options and share your desires and goals with us so that we can customize your plan to match the treatment you choose.

The “healthcare proxy” is named to effectuate your plan in your Advance Directive for Healthcare. This is the person who will sign the medical orders directing the physicians to follow the guidance that you put in the advance directive for healthcare. This should be someone you trust to follow your instructions and enforce your wishes, even if they disagree with you. This should also be someone who has some calming influence in case some of your family are experiencing an emotional breakdown due to the stress brought on by your condition. You should name a first choice and at least one back up choice to handle this task.
My friend, another estate planning attorney, Dave Zumpano, has suggested that everyone should appoint “the child they hate the most” to make the decision concerning their end-of-life healthcare. Dave says this somewhat in jest, but it identifies a very important truth. Without guidance from you in writing, the decisions that your children have to make when it comes time for them to guide the medical providers as you are facing severe illness or injury will haunt them for the rest of their lives. Therefore, you should very carefully and very seriously consider the advance directive for healthcare as one of the most important decisions that you will be making.


Let’s talk a little bit about the Oklahoma form of the Advanced Directive for Healthcare. First, and very importantly, this advance directive document has no authority so long as you are able to make decisions and communicate what you want. If you can blink once for yes and twice for no when asked questions, that may be enough. However, once the time comes that you can no longer make those decisions and communicate them, and if you are within 6 months of death, the advance directive form will tell us what you have decided concerning your healthcare in this dire situation.
Next, you have options that would arise if you were “persistently unconscious” (we might call it in a coma). When the time comes that you are physically functioning, but as far as we can tell your mind is no longer working, we need to know what healthcare you would choose to receive and whether you want that decision reconsidered over time. Perhaps in that situation you are willing to receive a feeding tube but you would have the doctors review your condition monthly, and there may come a time when you would no longer wish to be maintained in that circumstance.
The third scenario arises if you are in the final stages of an illness, whether by disease or injury, that is getting progressively worse and you have reached the point when you are completely physically dependent on others and are unable to make decisions or communicate decisions to your healthcare providers. In that event, how much healthcare maintenance do you want? Might it matter how old you were at the time? Remember we can customize these documents in almost any manner that you could wish.
The advance directive form is important for anyone who might someday be in a car accident, suffer a serious illness, or suffer the deterioration that comes with age. Basically, everyone needs an advance directive for healthcare. We would all generally follow your wishes, even if we disagree, but you have to tell us what these wishes are, or these decisions may haunt us forever.

Chapter 9
Special Situations

Many of the typical life situations will be covered in the proceeding chapters but there are some considerations for which special thought and planning are necessary. Fist, there will be times when your proposed heir or beneficiary is disabled or may become disabled in the future. Unfortunately, if you give that heir or beneficiary his or her gift outright, that gift may terminate his or her right to receive assistance from the state or federal government. You will, in effect, have given your gift to the taxpayers, which is generally not consistent with your goal. One of the ways to prevent that from happening is to put your gift into a special needs trust (SNT) and allow your trustee the authority and discretion to incur expenses or purchase items for the benefit of that beneficiary. Such purchases or gifts should be carefully considered in order to ensure that the trustee does not inadvertently impair the beneficiary’s right to receive assistance from the state. Our office can assist you in drafting a special needs trust that will allow your beneficiary to receive comfort and assistance without losing his or her right to receive Medicaid or other needs-based assistance from the government.
Another situation that appears with some regularity is dealing with education for beneficiaries. Many of us desire that our beneficiaries receive education assistance, but often we have not given great thought to the degree of assistance we want to provide. For example, do you wish to only assist with tuition, do you wish to also pay the price of books, how about housing, transportation and other such expenses? Some trustors will want to pay for all of the costs of education after high school, and others only want to help supplement the beneficiary’s income. Think about these issues and be prepared to tell us how much assistance you want to give your beneficiary. We will also want you to consider what should happen if your beneficiary does not do well in college. What if she fails all of her classes? How long can the beneficiary remain in college and continue to receive your money? Are there other education providers that you are willing to support, such as vocational or technical school? What about study abroad? As you can see, there are a host of possibilities and variations on each, so if you desire to provide your beneficiary with an education, think about these details and options.

Chapter 10
Alright already, I am convinced that I need an Estate Plan? What do I do now?

Once you decide that you are going to create a plan that will protect your family, assets, and lifestyle, there are some things you need to do, some things to think about, and some information to gather. I will address some of the most important issues here in this chapter.
First, it is urgent, that you make a list of your family and your friends, or at least the friends who will be receiving from or helping manage your estate. Be sure you know how to spell their names, know their correct addresses, and whether they are willing to help you (for those who are going to be active in managing your estate).
A few years ago, I conducted a trial over whether the decedent had been competent at the time that he prepared and signed his last will and testament. The opposing counsel spent most of the day arguing that two misspellings in the names of his children were evidence that he had lost his mind. As you might expect, the judge didn’t buy it, but it cost my clients thousands of dollars to conduct the fight. In most such instances, each side has to pay their own attorney fees, and my clients suffered a substantial loss that was entirely unfair and unfounded. Unfortunately, the deceased gentlemen had not gone to the trouble of making a list of his family members and being certain that he knew the correct spelling of their names. Don’t make that same mistake. You might have a successful case even if you make that mistake, but why risk the expense?
You will also need to decide who is going to be in charge of your estate. If you are going to use a trust plan, the title of that person is the “trustee” of the trust. If you are going to use a Last Will and Testament, without a trust plan, the person in charge is known as the “personal representative.” It is very important that you choose a person to hold such power who has the greatest of integrity. You will also need backup plans for these jobs. I encourage you to have a visit with each person whom you are considering appointing to care for your estate. Make sure that they accept the task willingly, because it is not an easy task and it is quite commonly an underpaid task.
Who will receive your stuff? Make a list of your items of sentimental value and anything you want to go to a specific person. Describe the item such that a stranger could enter your home and reasonably identify the item that you are describing. List by that item your first and perhaps even your second and third choices as to who should receive it. It is not necessary that you designate a recipient for each thing that you own, but it is important that you create a designation for each item that is meaningful to you and the recipient. The list might be fairly simple, such as:

Mother’s wedding ring goes to Aunt Suzanne.
Father’s tool box goes to his brother William.
$500 to the First Baptist Church of Nicoma Park.

Once you have designated all of the specific gifts from the estate, you will need to decide who inherits everything else. That could be as easy as “I leave everything to my children.” However, you must consider what should happen if one of your children does not survive you. Does that share go to his or her children- your grandchildren? Does that share go to his or her surviving spouse? Is there someone else who should receive it?
This is also a good time to consider whether you want to make a gift to a charity or church. Do you want that to be a percentage of your estate? I often discourage people from designating their gifts in specific sums of money. Inflation and deflation have a way of making the numbers not be the result we expected 15 years before death. A $10,000.00 gift today is likely to have a significantly different value 20 years from now. I would encourage you to make many of your gifts in a percentage of your estate. You generally know or can easily compute what 5% of your estate is in today’s dollars. There is, however, no perfect way to designate every gift. Sometimes you just have to do your best and decide that you are not going to worry about it anymore.
Your estate-planning attorney is almost certain to need the legal descriptions of all land that you own. In some cases the legal description is short and easy, such as “Lot 5, Block 2, of Rosemary Heights, Addition to Oklahoma County, State of Oklahoma”. In other cases, the description can be a long paragraph of confusing numbers and directions. Either way, you need to be absolutely certain that the legal description you provide to your attorney is the correct description. An incorrect description may result in your trust being improperly funded and cause your property to go through probate.
These are not the only issues that you will have to address, but this is somewhere for you to start and some things for you to consider while you are preparing your estate plan.

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