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An estate plan that is not maintained suffers a high likelihood of failure, and by failure, we mean that the plan does not perform as the person expected it to. First, make a mental note whenever anything serious happens in your life, such as someone being diagnosed with a serious illness, a divorce, a marriage, a death in the family, pull out your estate plan, find that name, and decide what your backup plan is, and whether you are happy with that outcome.
If you are not happy with the result in your current estate plan, call us and make adjustments to the plan and pay just on an hourly rate for the amendment. Or, keep a maintenance plan with our office. The maintenance is now $495 a year for a trust. This maintenance plan provides unlimited calls to our office for consultations and unlimited amendments to your estate plan. We also allow your financial advisors to call us for guidance concerning your estate. But in any event, whenever something serious happens, then it is definitely time to pull out the estate plan and make sure that it still meets your goals.
What Is Asset Protection And What Laws Are Applicable In That Regard In Oklahoma?
Asset protection trusts are estate planning vehicles that allow you to plan your estate in such a fashion that the assets that belong to an asset protection trust can no longer be taken by the predators and creditors. In order to have asset protection, the plan has to be written before there is a problem to be avoided. For example, if I were to have a car accident this evening on my way home, I cannot then run out and create an asset protection plan that would succeed, because the courts would see that as a fraudulent transfer that could be set aside or undone.
An asset protection trust, when properly formed and funded, and when done prior to an incident that gives rise to a claim, allows the creator of the trust to title property in the name of their trustee and make that property unavailable to creditors and predators. This is a common tool for Medicaid planning, for example.
One of the ways that attorneys can assist in preparing for Medicaid is the use of asset protection trusts whereby the assets are titled to the trustee and not the former owner. In Oklahoma, our asset protection law substantially follows the common law.
Who Are All The Necessary Parties Involved In An Estate Plan?
In Oklahoma, a person can create an estate plan all by themselves. Our law recognizes holographic wills. A holographic will is a hand-written will fully written by the hand of the testator, signed and dated at the bottom. At the most basic level that is an estate plan, and it is something that can be accomplished by the testator alone. One of the downsides of such a plan is it is subject to probate, and that probate would likely be more expensive than the one for a plan that was done by an attorney. The next step up from such a plan requires the testator to get assistance from an expert in preparing their estate plan and having properly executed it in front of the appropriate number of witnesses and notary.
In a basic but professional plan, there are two people necessary: the professional who is preparing the plan and the testator who is giving the instructions. Perhaps more commonly in my practice would be the testator or the testators if there is a husband and wife, the attorney who is an expert at drafting plans, a trustee or trustee(s) as the case may be, and a trust protector. (The trust protector is a professional who has the ability to adjust the plan down the road if the testator is unable to make changes to the plan because of illness or changes in the law.) The trust protector can step in and be of assistance when otherwise the goal of the plan would not be realized.
At that level, which is the most common level in my office, we have testator, attorney, the trustee or trustees, and a trust protector. So about five people are involved in an excellent asset protection plan.
For more information on Maintaining An Estate Plan, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 880-8960 today.