FAQ

Estate Planning FAQs

1. What type of cases do you handle?
2. If I have a Durable Power of Attorney, will a Guardianship be necessary?
3. How do I get a Guardianship for my adult child with special needs?
4. What is the difference between an Advanced Directive, Living Will, and a Healthcare Power of Attorney?
5. I want to start a business. Should I be a Corporation or an LLC?
6. What will happen to my business if I get divorced, become incapacitated, or die?
7. My parents set up a Trust and named me as the trustee. I’m not sure what to do; can you help me?
8. How can I get a Living Will form?
9. I don’t have a lot of assets.  Do I still need an Estate Plan?
10. What will happen to our children if we both die?
11. If I have a Trust, why do I need a Will?
12. Can I avoid probate with a Will?
13. Can I avoid probate with a Testamentary Trust?
14. My father died before changing the beneficiary designation on his Life Insurance. Does the Will control who will receive the Life Insurance benefits?

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Q1. What type of cases do you handle?

A. Cheryl Husmann limits her practice to Estate Planning, Probate and Business Law.

Q2. If I have a Durable Power of Attorney, will a Guardianship be necessary?

A. If your durable power of attorney is structured properly, a guardianship can be avoided. A power of attorney appoints an agent to act on your behalf in the same manner as you would. You may also state in your durable power of attorney that you wish for the power of attorney to serve the same purpose as a guardianship, but if for any reason a guardianship becomes necessary, you nominate your agent under the durable power of attorney to also serve as guardian.

Q3. How do I get a Guardianship for my adult child with special needs?

A. You must file a petition for guardianship and show the court why your adult child with special needs requires a guardianship. A guardianship may be a general guardianship over the person and the property of an individual or it may be limited to only certain aspects of a persons care or management of their assets.

Q4. What is the difference between an Advanced Directive, Living Will, and a Healthcare Power of Attorney?

A. An advanced directive is just another name for a living will. It is a document in which you state your wishes about life-sustaining medical treatment if you are terminally ill, permanently unconscious, or in the end-stage of a fatal illness. this document is governed by the Oklahoma Advanced Directive Act. A healthcare power of attorney is a different document in which you appoint someone to act as your healthcare proxy to communicate your wishes to your healthcare providers and to act as your advocate when you cannot communicate on your own. A healthcare power of attorney is useful for situations when your condition does not meet the circumstances described in a living will. It is best to have both an advanced directive and a healthcare power of attorney.

Q5. I want to start a business. Should I be a Corporation or an LLC?

A. Choosing the correct entity structure for your business — corporation, LLC, partnership, sole proprietorship, etc. — is critical for two purpose. The first is separating your personal assets and liabilities from your business assets and liabilities. The second is to choose a structure that is most advantageous for tax planning. Although entity structure and tax classification are two entirely different things, they are dependent upon one another. Setting up your business without proper guidance may result in insufficient liability shielding or excessive taxation.

Q6. What will happen to my business if I get divorced, become incapacitated, or die?

A. If you have a proper plan in place for your business and for your estate, there can be an orderly transition of your business assets if something bad happens to you. Without a plan, however, your business assets and management might be subject to division and distribution in ways you and any co-owners of your business never imagined. Rarely is such division and distribution preferable to what you would choose for your business.

Q7. My parents set up a Trust and named me as the trustee. I’m not sure what to do; can you help me?

A. Absolutely! We can help you understand what to do as the trustee and can assist you in understanding the terms of the trust, managing the assets, and communicating with the beneficiaries.

Q8. How can I get a Living Will form?

A. In Oklahoma, a living will is called an advanced directive for health care. The Oklahoma Department of Human Services has the statutory compliant form available here for free. You should also consult with Cheryl Husmann about a healthcare power of attorney and comprehensive estate planning.

Q9. I don’t have a lot of assets.  Do I still need an Estate Plan?

A. Yes. “Estate Plan” doesn’t always mean a Trust, and having only a Will is not sufficient to have a plan. There are many tools available to ensure an orderly transfer of your assets to your heirs without going through court. See our article titled “Caring for your loved ones: do you have a plan?”

Q10. What will happen to our children if we both die?

A. Oklahoma law allows parents to leave a provision in their will to nominate a guardian for their children. Although a court process to appoint a guardian will still be necessary, the court will appoint the nominee unless there is a compelling reason not to. Without a nomination, the court, or in some cases child protective services, will appoint a guardian or foster parent without knowing what your preference is.

Q11. If I have a Trust, why do I need a Will?

A. A trust will own all property that is properly assigned to it or titled in the name of the trust. If you die before you have assigned or retitled all of your assets into trust, the will were tell the probate court to “pour over” all of those assets into the trust, thereby allowing your trustee to distribute all  of your asset under the private terms of the trust.

Q12. Can I avoid probate with a Will?

A. No. A will is effective only over probate assets. If assets are in probate form, there is no avoiding probate unless the total value of all probate assets is less than $50,000. The only way to avoid probate is to have all of your assets in non-probate form.

Q13. Can I avoid probate with a Testamentary Trust?

A. No. A testamentary trust is incorporated into the terms of your will and becomes effective only upon the will be admitted into probate court. By its very nature, a testamentary trust requires probate.

Q14. My father died before changing the beneficiary designation on his Life Insurance. Does the Will control who will receive the Life Insurance benefits?

A. No. If a life insurance policy has a named beneficiary, the proceeds are non-probate assets and will pass directly to the beneficiary. The only time life insurance proceeds are controlled by the terms of a will is (1) the named beneficiary died before the insured individual died and a secondary beneficiary was not name, and (2) if the named beneficiary voluntarily disclaims the proceeds and there is no secondary beneficiary.