Your instructions will be found in various legal documents, the most common being the following five (5) generally used documents:

1. LAST WILL AND TESTAMENT is a set of written instructions to another person (Executor/Administrator now Personal Representative or "PR" of your Probate Estate) instructing the PR what to do with your individually owned property that does not have a beneficiary (i.e. "Probate Estate") at your death.
• DEFINITIONS: Since many of the probate terms may be new to you, the following definitions may prove helpful:
  • Decedent:
    The person who passes away owning property individually without a beneficiary designation.

  • P.R.:
    The Personal Representative appointed by the Court to manage the Decedent’s property after the Decedent’s death and prior to distribution to the beneficiaries of the Decedent’s Probate Estate.

  • Probate Estate:
    The property owned by the Decedent individually without a beneficiary designation.

  • Types of Probate:
    Testate and Intestate. Testate means the Decedent left a Last Will and Testament instructing the Personal Representative and the Court to whom to transfer the Decedent’s probate estate. Intestate means the Decedent did not leave a Last Will and Testament. Thus, the Decedent’s probate estate is distributed to the Decedent’s heirs pursuant to applicable State Law.

  • Beneficiary:
    The person who receives the probate estate pursuant to the Decedent’s Last Will and Testament or State law, whichever is applicable.
2. REVOCABLE TRUST AGREEMENT is a set of written instructions to another person (Trustee) telling the Trustee what to do with the property titled in the name of the Trust during your lifetime and after your death.
   • DEFINITIONS: Since many of the terms used in a Revocable Trust Agreement are new to you, the following definitions may prove helpful:
     • Grantor: The person who creates the Trust.

     • Trustee: The person who manages the Trust Corpus and Trust Income and follows the Grantor’s instructions as set forth in the Trust Agreement. It is very common for the Grantor and Grantor’s spouse to be the initial Co-Trustees with a Grantor's family member (e.g., child or children) or a Trust Company named as the Successor Trustee.

     • Revocable: Grantor may revoke, amend, change or modify the Trust Agreement at anytime and for any reason.

     • Beneficiary: The person who receives Trust Income and Trust Corpus. Usually the Grantor is the first beneficiary, the Grantor's spouse is second beneficiary, and the Grantor's family (children, etc.) are the ultimate beneficiaries.

     • Trust Income: The income, such as interest or dividends, which the Trust receives.

     • Trust Corpus: The "body" of the Trust; the property such as cash, real estate, stocks and bonds and other property which are placed in the Trust. This is also sometimes referred to as "Trust Principal".

   • BETTER THAN A WILL? YES, a Revocable Trust Agreement is better than a Will. Assets titled in the name of your revocable trust are not subject to either guardianship or probate.

     Guardianship is the legal administration of one’s property during any period where the owner is unable to manage property.

   • INCOME TAXES: A Revocable Trust does not reduce its Grantor’s income tax liability, but may provide income tax benefits to its beneficiaries after the Grantor’s death.

   • ESTATE TAXES: A Revocable Trust or a Will may be written to reduce or eliminate Federal and State estate (inheritance) taxes.

   • TYPES OF REVOCABLE LIVING TRUSTS: There are two (2) types of Revocable Trust Agreements.
     1. The Joint Revocable Trust is suitable for husband and wife to avoid joint tenancy with right of survivorship. In effect, the Trust is established by both husband and wife and all property in the Trust is owned equally by husband and wife until the first spouse’s death. At the first spouse’s death, the entire Joint Trust becomes the Revocable Trust of the survivor. Both spouses serve as initial Co-Trustees with either spouse having the right to act independently for the trust. Upon the death or incapacity of one spouse, the other continues to serve as sole Trustee. The Joint Revocable Trust is recommended when the combined fair market value of both spouses' estates is less than or equal to $675,000 for 2000 (increasing to $1,000,000 in 2006).

     2. The Separate Revocable Trust is suitable for unmarried Grantors or married Grantors wishing to reduce estate taxes. This type has only one Grantor, who has complete rights regarding the Trust property. Both spouses may serve as initial Co-Trustees with either spouse having the right to act independently for the trust. Upon the death or incapacity of one spouse, the other may continue to serve as sole Trustee. The Separate Revocable Trust is recommended when the combined fair market value of both spouses' estates is greater than $675,000 for 2000 (increasing to $1,000,000 in 2006).

   • DO I STILL NEED A WILL WITH A REVOCABLE TRUST? YES, there are several reasons you need a Will even if you create a Revocable Trust. First, a new Will revokes all prior Wills you have. Second, a new Will instructs your PR to transfer your Probate Estate to your Trust Estate at death. This type of Will is known as a "Pour Over" Will.

3. DURABLE POWER OF ATTORNEY is a Power of Attorney which is durable. A Power of Attorney is simply a legal document whereby one person known as the principal ("Principal") authorizes another person known as the attorney-in-fact ("Attorney-in-fact") to sign Principal’s name and transact business on Principal’s behalf. A Power of Attorney is durable if it specifically states that it does not lapse and is not affected by the subsequent incapacitation of the Principal. A Durable Power of Attorney is effective until it is revoked or the Principal dies, whichever happens first. This is much more helpful than a "regular" (non-durable) Power of Attorney, which is automatically revoked if the Principal becomes incapacitated prior to death. A Durable Power of Attorney is extremely helpful in authorizing someone else to:
   • Manage any asset not owned by your Trust for your benefit (e.g. an IRA),

   • Sign your personal income tax returns on your behalf,

   • Deal with government agencies (e.g. Social Security Administration, Department of Human Services, Veterans Administration, Internal Revenue Service, Oklahoma Tax Commission and others) on your behalf,

   • Transfer assets to the Trustee of your Revocable Trust for your benefit,

   • Make Required Minimum Distribution ("RMDs") decisions for retirement accounts (e.g. 401(k)s, IRAs, and other pension plans), and

   • Handle various other problems that may result from your incapacity.

4. ADVANCE DIRECTIVE FOR HEALTH CARE is a written document expressing your wishes not to be given (1) life sustaining treatment or (2) artificially administered food and water, or both, in the event you (1) are diagnosed with a terminal condition or (2) become persistently unconscious. It can also include the appointment of a health care proxy and provide for the donation of body organs. This document is commonly called a "Living Will".

5. ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT is a written document whereby, if you need mental health care treatment, you can: (1) appoint an attorney-in-fact to make mental health care decisions for you or (2) provide specific instructions as to what mental health care treatment you want to receive, or both.