A will is an important document if a person knows whom he wants to inherit his property upon his death, especially if those beneficiaries are not relatives. When a person dies without a will, the law sets forth who inherits his property, and it is distributed by law with no exceptions. In Oklahoma, inheritance laws set forth requirements for a will and how property will pass if there is no will.
Dying Without a Will
A person dies “intestate” when he dies without a will. Under Oklahoma law, a surviving spouse is entitled to inherit the entire estate if the decedent did not have any children, his parents are deceased and there are no surviving siblings. If the decedent is also survived by parents or siblings, the spouse inherits any property owned jointly with the decedent and one-third of the remaining estate. The balance passes to the parents, but if they are deceased, the siblings will inherit equal shares. If the decedent had children, the spouse inherits half of the estate and the children inherit equal shares of the other half. If the spouse is deceased, the law states that the children will share the entire estate. When the decedent is not survived by any heirs, the law permits the state to “escheat,” where the property passs to the state of Oklahoma.
Dying With a Will
If a person does not want her property to pass according to the intestacy statute, she must make a will. In Oklahoma, a testator (one who makes a will) must be at least 18 years old. She must have full mental capacity (“of sound mind”) and be making the will voluntarily. A will must be in writing (typed). Handwritten (“holographic”) wills and oral (“nuncupative”) wills are permitted in very limited circumstances, such as military service or deathbed declarations, but requirements are strict, so typed wills are best. The testator must sign her will in front of two witnesses, who must also sign the document in the testator’s presence. A will is valid unless it is revoked, so it should be updated to reflect changes in a testator’s life, including marriage, divorce, birth of a child or purchase and sale of property. A testator can update her will by signing a “codicil” with the necessary amendments, or she can revoke the will in its entirety by destroying it or by signing a new will.
A testator can leave his property to anyone he wants, including friends and charities. However, Oklahoma law does not permit a testator to disinherit his spouse. If a surviving spouse is left out of a will, she may request her “elective share” from the court. This action must be taken when a will is submitted for probate. If she fails to contest the will, she will not be entitled to inherit. However, if her request is timely, the surviving spouse will inherit her intestate share after all expenses and debts are paid, before anyone else is entitled to inherit under the will.
Property That Cannot Be Willed
A decedent cannot include his entire estate in his will. Certain property already has an intended beneficiary and is not willable. For example, any property owned jointly, including real estate and bank accounts, is owned with a right of survivorship. The surviving owner automatically inherits the decedent’s share. If any property is held in trust, it will also pass to the beneficiary automatically upon death. Lastly, life insurance policies have named beneficiaries. The insurance company will disburse the proceeds to the named beneficiary upon receipt of a death certificate. Inheritance of non-willable property is automatic and the decedent is not permitted to alter named beneficiaries in his will. Any such provisions are invalid, and a court will not recognize them during probate.
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