This article explains how to create a legally enforceable Will document in the State of Oklahoma.
What is a Last Will and Testament?
A Will, also called a Last Will or Last Will & Testament, is a written document that prescribes how a person wants their estate to be distributed when they die. The person who writes the will is known as the Testator. The Will is basically a set of instructions on how the Testator wants his estate distributed.
When a person uses a Will to distribute their estate, this process is referred to as Testate Succession. (Intestate Succession is the term for the process of distributing a person’s estate when they die without a will).
Who may create a Will in Oklahoma?
Oklahoma does have certain minimal requirements for a person that desires to make a Will. Those requirements are simply that the person must be at least eighteen (18) years of age and of” sound mind.” Therefore, minor children cannot create Wills, only adults.
Additionally, the adult testator must be of sound mind. But what if the adult testator is subject to a guardianship or conservatorship? They can still create a Last Will in Oklahoma.
A person who is subject to a guardianship or conservatorship may still create a Will to dispose of their property, but they must sign their Will in the presence of a Judge of the District Court. In such an instance, the Judge has no power to disapprove of the contents of the Will, and is only present for the purposes of acknowledging the signature by the Testator under the guardianship.
The legal requirements for a valid Will in Oklahoma
In order to create a valid, legally enforceable will, the following must happen:
- The Testator must be at least 18 years of age
- The Testator must be of sound mind at the time of executing the Will
- The Will must be a written document
- The Testator must sign the will in the presence of two witnesses
- The Witnesses must sign the will, and also state the address of their residence
The above items must be completed in order for the Will to be valid in Oklahoma. But this does not automatically prove, or authenticate the Will. Whoever submits the Will to Court for Probate must still prove the Will.
In a Probate proceeding, which is a proceeding to carry out the intent of the Will by obtaining Court orders transferring the various property of the estate, interested parties may challenge the validity of the will. And it may be that the witnesses to the Will must come to court to testify that they did in fact observe the Testator’s execution. This presents a problem if the witnesses have already deceased or cannot be located.
However, there is a solution to this problem that can be done ahead of time, which is why it is important to consult with an experienced Estate Planning Attorney prior to executing your Last Will and Testament.
Create a Self-Authenticating Will to Avoid having to call Witnesses to Testify about signing
A Self-Authenticating Will is a Will that in Oklahoma, does not require witness testimony in court in order to be accepted a legal evidence in a probate proceeding. The best part about this is that creating a Self-Authenticating Will involves merely adding a clause at the end of your Last Will and Testament.
The Self-Authenticating clause will be a statement at the end of your Will that identifies you, the Testator, and your witnesses and states that the witnesses appeared for the purpose of witnessing your sign your will. You and your witnesses then sign the Self Authenticating Clause before a Public Notary, who affixes her notary seal to the clause. Afterwards, you have a Last Will that will verify itself in a court proceeding without needing the original witnesses to appear and testify.
A Self-Authenticating Will is the only type of Will you should create when you are working with an attorney. The Self-Authenticating Will makes the job of administering the probate action much easier on your family members that will be responsible for dealing with the probate matter.
Hire Oklahoma City Attorney to create a valid Last Will and Testament for you
You do not need to hire an attorney to create your Last Will, but there are many advantages to doing so. And preparation of a Last Will is not costly in the context of legal services.
There are a lot of considerations when creating an estate plan, and a Last Will is a major component, as are joint-tenancy accounts, revocable living trusts, and medical directives. You do not need to attempt to figure this all out on your own. You may seek legal counsel from an attorney that handles estate planning.
To schedule your estate planning consultation, or to get started on the creation of your Last Will, call our office at (405) 724-8112 or send us an email.
You may continue reading our next article on whether handwritten wills are valid in Oklahoma.