As we enter tornado season here in Oklahoma, it is a good time to remember the importance of safeguarding your original estate planning documents. While a copy of your estate planning documents will be sufficient for most situations, a major exception applies to your Last Will and Testament. In most situations, the original will must be presented in order to be valid.
The most common situation involves probate proceedings. If a person dies owning property that must be probated, the original will must be submitted to the court. If the original will cannot be located after death, the probate will proceed according to the Oklahoma intestacy statutes (the state laws that control the distribution of your assets with zero regard to your wishes). This could prove disastrous for some estates.
Our clients normally have a “pour over” will in which you direct all probate assets to “pour over” to your trust. This ensures that the distribution provisions you specified in your trust will control ALL of your property, even if such property has to be transferred through a probate.
On the other hand, if the original pour over will cannot be found, the probate assets would pass according to the Oklahoma intestacy statutes based solely on bloodline relatives and free of any restrictions which might be contained in your trust. As a result, the probate assets are not controlled by the terms of your trust and could result in several unintended consequences such as:
- Property passing to unintended beneficiaries
- Trust beneficiaries being left out
- All probate beneficiaries receive estate free of any restrictions
- Loss of creditor protection
- Guardianship proceedings for minor beneficiaries
The best way to protect yourself from these events is to make sure your assets are properly titled to your trust and, as you’ve heard us preach over and over, retain your original will in a safe place. If you have questions about the titling of your assets, please call Stacey, our Paralegal who specializes in titling assets.
Parman & Easterday