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What is a Last Will and Testament?

What is a Last Will and Testament?

A Last Will and Testament is a legally binding document of an individual’s final wishes for handling their affairs and personal property after death. This document can include instructions for all manner of items from child custody to dividing physical and monetary assets.

Different Types of Will and Testaments

There are several different types of wills, each addressing the testator’s, or the person writing the document, various circumstances. This post covers two of the more common will types, the simple will, and the pour-over will.

In wills and testaments, specific requirements must be met to create a valid document, including the following:

  • The testator, or person making a will, must be 18 years of age or older.
  • A will requires the testator to be of sound mind.
  • The testator’s will and testament must be signed and dated with the legally required number of witnesses observing the signature. The number of witnesses varies and is set by the state. In Oklahoma, you need two disinterested witnesses.

See 84 O.S. Sec. 55 for all the formal requirements of a self-proving will.

Simple Will

The simple will is a basic document for people with a small number of assets and a simple approach to designating beneficiaries. A simple estate includes assets not valuable enough to be subject to estate taxes.

A typical simple will setup might include a husband and wife leaving all property to each other or, if they die together, leaving equal shares to their children. These wills can consist of appointing guardians for minor children.

Pour-Over Will

A pour-over will, used with a living trust, ensures all assets transfer to a previously established trust upon your death, to be distributed to the named beneficiaries.

There are a few advantages to transferring property into a trust and having all your assets covered under the terms of a single document.

  • Simple: Assets being controlled under a single document makes closing the estate easier by clarifying who you want to receive your property.
  • Complete: No one transfers everything they own into a trust, and a pour-over will covers those assets not transferred before your death.
  • Private: Unlike a will, trusts are confidential and not part of the public record after your death, keeping inheritance details private. When looking at the public records, all anyone sees is property poured into the trust, and not who inherited it.

The downside to pour-over wills is that property passing through them must go through probate before being distributed by the trust. Probate can hold up the beneficiary distribution for several months after the trust maker’s death. By contrast, property placed directly in a living trust can be distributed in a matter of weeks after death. Thus, it is important to fully fund the trust in order to avoid probate all together.

Drawing Up a Will

For a will and testament to be valid, it must meet specific legal requirements. When it comes to writing your last will and testament, consulting an experienced attorney can ensure the document complies with state laws. The Seda Law Firm can help you create said will and avoid costly probate mistakes.

You can find out more by using our Contact Form. Or call us at 405.759.0678 to set up an appointment.

Please visit our Probates section for more information.

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