OKLAHOMA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Oklahoma Probate Code (Okla. Stat., Tit. 58)
Trusts:ย Oklahoma Trust Act (Okla. Stat. ยงยง 60-175.1, et. seq.).
Oklahoma Will Requirements.
To create a valid will under Oklahoma law, a testator must be โof sound mindโ and at least 18 years old. ย In general, a testator is โof sound mindโ if he or she is aware of the people who would typically inherit from the testatorโs estate (i.e., close relatives), understands the property that makes up his/her estate, and comprehends the overall implications or how assets will be distributed under the will.ย ย
An Oklahoma will must be in writing and must be signed at the end by the testator (or by another person in the testatorโs presence at the testatorโs request).ย If a testator is subject to a court-appointed guardianship or conservatorship, his or her will must also be executed in the presence of a state district court judge. ย A will found to have been procured through โduress, menace, fraud or undue influenceโ can be rejected by a probate court.
Other than holographic wills (see below), valid Oklahoma wills must also be signed at the end by at least two witnesses, who must hear the testator declare that the document is a will.ย Witnesses must observe the testatorโs execution of the will (or hear the testator acknowledge the signatureโs validity) and must sign the will in the testatorโs presence.ย Oklahoma law directs witnesses to also include their addresses with their signatures, but a will is not rendered invalid by the absence of a witness address.
An Oklahoma will witnessed by an interested party is not invalid based solely upon the interested witness.ย However, a devise to an interested witness is deemed void unless the will is witnessed by at least two other disinterested witnesses.ย Provided, though, that, if the witness would have received a share in the estate had the testator been intestate, the witness can receive an interest up to the amount of the intestate share (but not more than the amount actually devised to the interested witness under the will).ย
Oklahoma wills need not be notarized, but a will can be made โself-provedโ through execution of a notarized affidavit.ย A self-proved affidavit must be executed by the willโs testator and witnesses.ย The affidavit attests to the testatorโs capacity to properly execute the will and that all required formalities were observed.ย A self-proving affidavit serves in place of witness testimony before the probate court and must attest to the facts necessary to authenticate the will in probate.ย The Oklahoma legislature provides a published template for a self-proved affidavit, at Okla. Stat., ยง84-55(5).
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Amendment, Revision, and Revocation of Oklahoma Wills.
Under Oklahoma law, revocation of a written will can be accomplished through either execution of a subsequent written will (or similar document observing requisite formalities) expressly revoking the prior will or through physical destruction of the will by the testator, such as by burning or tearing.ย Revocation through destruction may also performed by someone in the testatorโs presence acting at the testatorโs direction.ย However, if another person destroys a will for the purpose of revocation, two other witnesses must observe the act.ย ย
An existing Oklahoma will may be amended or supplemented by execution of a codicil satisfying all requirements for a written will.ย A codicil is a will amendment and effectively republishes the will as of the date of the codicilโs execution.ย If a will is later revoked, any codicils attached to the will are deemed to be likewise revoked.
If a subsequently executed will does not expressly revoke a prior will, the later will is deemed to supplement the earlier will, except to the extent of any inconsistencies (in which case the later will controls).ย If a later will is wholly inconsistent with the terms and nature of an existing will, the earlier will is treated as if it had been revoked.
If an Oklahoma testator is divorced after executing a will, any provisions in favor of the former spouse are deemed to have been revoked.ย Property bequeathed to the former spouse is treated as if the former spouse predeceased the testator.
If a child is born to or adopted by a testator after execution of an Oklahoma willโand if the testatorโs will does not provide for or otherwise mention the childโthe child inherits a share of the estate equal to what the child would have inherited had the testator died intestate.ย If an Oklahoma will omits any of the testatorโs childrenโand the omission appears to have been intentionalโthe omitted child receives the same share as if the testator had died intestate.
Holographic and Oral Wills.
Oklahoma law recognizes holographic (handwritten) wills as long as the will is written entirely and exclusively in the testatorโs handwriting, dated, and signed by the testator.
Oklahoma recognizes oral (or โnuncupativeโ) wills under very limited circumstances.ย When making the oral will, the testator must be in the field serving in the military or on duty aboard a ship at sea.ย The testator must also be acting under the fear of imminent death.ย The statements constituting the oral will must be heard by at least two witnesses, at least one of whom the testator asked to serve as witness to an oral will.ย In Oklahoma, nuncupative wills can only be used for personal property worth up to $1,000 and cannot be used to devise real estate.
Oklahoma Trust Requirements.
Trusts in Oklahoma are governed primarily by the Oklahoma Trust Act.ย Though Oklahomaโs trust law bears some similarities to the Uniform Trust Code, the uniform statute has not been adopted by the stateโs legislature.
As in other states, the vital parties to an Oklahoma trust are the settlor (the person creating and contributing property to the trustโOklahoma law uses the term โtrustorโ), the trustee (the person who controls property in the trust), and the beneficiary (the person who benefits from the trust assets).ย There can be overlap between the parties, and Oklahoma law expressly recognizes that a trustโs beneficiary may also be a co-trustee.
An Oklahoma trust can come into existence through a property ownerโs declaration that the property is held in trust for another person, transfer of property to another person as trustee (whether during life or by will), through a power of appointment, or a promise from one person to another to hold a third personโs rights in trust.
By default, Oklahoma trusts are assumed to be revocableโmeaning the trustor retains the right to terminate or modify the trustโunless the trust instrument expressly states that the trust is irrevocable.ย All Oklahoma trusts except spendthrift trusts can be revoked by the trustor if all other parties with any interest in the trust provide written consent.
Oklahoma trusts holding real or personal property can be created for any purpose for which a contract can be made. ย If an Oklahoma trust involves real estate, it must be evidenced by a written instrumentโwhich can be a trust instrument signed by the trustor or the deed or other document through which the trustee claims the interest in the real estate.ย The trustee of an Oklahoma trust that owns real estate is required to record a memorandum of trust with the relevant countyโs land records.
Oklahoma โbusiness trustsโ are governed by separate Oklahoma statutes and must be evidenced by either a written instrument signed by the grantor and recorded with the relevant county clerk or by a validly executed will.
Oklahoma law holds trustees to strong fiduciary duties, though a trustor may limit the extent of the duties within the trust instrument.ย Trustees who invest trust assets are subject to the โprudent investor rule,โ under which assets must be managed prudently with due consideration of the trustโs purposes, terms, distribution requirements, and surrounding circumstances.ย A trustor may expand, restrict, or modify the prudent investor rule within the trust instrument.
Trustees of Oklahoma trusts are expressly prohibited from self-dealing, including, in the case of a corporate trustee, a trusteeโs purchasing shares of the corporate trustee business on behalf of the trust.ย Individual trustees may not purchase for a trust shares of a business in which the trustee is owner or manager or is otherwise involved in an executive capacity.
Oklahoma law recognizes โspendthrift provisions,โ which restrict beneficiariesโ right to transfer interests in the trust and thereby prevent beneficiary creditors from attaching trust assets until actually distributed to the relevant beneficiary.ย Spendthrift provisions within Oklahoma trusts do not protect against attachment of trust income to satisfy domestic support obligations or claims arising from a creditorโs provision of โnecessaryโ services or supplies to the beneficiary.ย ย Other creditors can attach beneficial interests in trust income in excess of $25,000.ย A beneficiaryโs right to receive distributions of trust principal is protected from creditors under Oklahoma law.
Oklahoma trust law does not allow trustors to use self-settled trusts (i.e., trusts in which the trustor is also beneficiary) to protect assets from creditors.ย An Oklahoma trustorโs interest as a beneficiary can be attached by creditors.
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Estate Taxes: Oklahoma does not impose either estate or inheritance taxes.ย Large Oklahoma estates may still be liable for federal estate taxes.
Simplified Probate:ย Oklahoma law allows for a streamlined probate process for โsmall estatesโ (defined as probate assets valued at less than $50,000).ย If an estate qualifies, the decedentโs heirs can submit an affidavit allowing for possession of the probate assets, bypassing probate.
Non-Probate Transfers:ย Along with living trusts, Oklahoma law offers multiple other options for transfer of assets outside of probate.ย POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer of an asset to a beneficiary upon an ownerโs death, can be used in Oklahoma for a variety of assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Oklahoma also recognizes tenancy by the entireties, another joint ownership form with a right of survivorship.ย Tenancy by the entireties can only be used for co-ownership by two spouses.ย ย
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Oklahoma is among the few states that authorize TOD designations on both real estate deeds (commonly called โbeneficiary deedsโ) and vehicle titles.ย When a TOD designation is added to a deed or title during life, ownership of the real property or vehicle automatically transfers to the named beneficiary upon the ownerโs death, with no need for probate.ย The beneficiary, though, does not acquire present rights over the asset until death actually occurs.ย
Spousal Shares: ย Oklahoma law protects surviving spouses from disinheritance by allowing a surviving spouse an elective share in a decedent spouseโs estate.ย The elective share is measured as half of the portion of a decedent spouseโs estate consisting of property acquired during the marriage through the coupleโs joint efforts (similar to the intestate share).ย Under Oklahoma law, one spouse may not leave more than 50% of property acquired during the marriage to anyone other than the other spouse.ย
Additionally, if an Oklahoma testator and surviving spouse entered into a prenuptial contract regarding distribution of assets, the testatorโs will cannot preempt the contract.
In intestate estates, a surviving spouse receives a one-half interest in the decedentโs estateโexcept that a spouse receives the entire estate if the decedent leaves no surviving children, grandchildren, parents, or siblings.ย Oklahoma surviving spouses also have a right to continued possession of the homestead and to receive one vehicle titled to the decedent spouse.ย If the decedent owned more than one vehicle, the surviving spouse can choose.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
