Making A Will and A Living Will

Table of Contents
Oklahoma Bar Association, since 1904

Making A Will and A Living Will

What does a will do?

A will allows you to decide and put in writing who should receive your assets instead of leaving the decision to state law. A judge rules on state law regarding who receives your assets. For example, if you have children, you can leave property in trust for them. You can leave property to your favorite charity, or you can divide your property among many different people. Most importantly, if both parents die and leave minor children, the court will consider a request in the will about whom the parents want to be appointed as the guardian of the children.

Do you need a will?

Last Will & Testament If you are an individual with assets, you need a will in which you can set forth who will receive your assets upon your death, subject to certain limitations. If you are married, your spouse is entitled to receive at least one-half of your assets in a will. A will should be revised as your life circumstances change - when you get married, have children, or gain more assets.

What happens if you don't have a will?

If you die without a will, state law determines who will get your assets and how they will be divided, unless your assets have been assigned to a Trust or have a proper beneficiary designation. For example, if you were unmarried and had no children, your assets will go to your parents. Another example would be if you were married and had one child together, your spouse would receive one-half of the assets and your child would receive one-half of your assets (even if the child was an adult at the time of your death).

What happens legally upon death?

When a person dies, there is a court procedure, known as probate, to process an estate and distribute assets that are still in a person’s name at death. Assets held in a Trust are not part of a deceased person’s estate. Assets that have a beneficiary designation will pass to the beneficiary upon the owner’s death. Probate is about the same whether there is a will or not. The difference is in the way the assets are divided. If there is a will, you decide who will carry out your wishes as set out in the will. That person is called the personal representative. The personal representative has the responsibility and legal obligation to deal with estate matters and to place the estate in order for distribution. You should seek the advice of an Estate Plan Attorney to discuss your options on the distribution of your estate upon your passing and the nomination of Guardian for any minor children.

Advance Directive for Health Care with a Living Will

When you become 18, you may also make an Advance Directive for Health Care. An Advance Directive has several parts, one of which is a Living Will. This tells physicians whether you wish to be put on life-sustaining treatment if you become terminally ill or persistently unconscious and cannot make your own decisions. In another part of the advance directive, you can appoint a health care proxy to make medical decisions for you if you cannot make them yourself, but you are not dying. You can get the forms for an advance directive from the Oklahoma Bar Association, the Oklahoma Medical Association, the Senior Law Resource Center and most hospitals for no charge.