3 Planning Documents to Protect Your Caregiver From Poverty

By Solid Serenity Legal Services

We have had many potential clients call our office after a loved one passes in a panic.  They have been living with their loved one for years, often, quitting their jobs or taking on less hours at work and leaving their homes to be the sole caretaker.

Now, they have reached out to the mortgage company or tried to get insurance on the property, only to find out their loved one did not change the title of the property, so now, the caretaker has to go through probate.

Probate is a long process, and if there are no estate planning documents in place that say otherwise, there are certain rules probates must follow for distributing a deceased’s property.  It doesn’t matter if the deceased told someone they intended for the house to go to them.  It doesn’t even matter if the whole family knew, if it’s not in writing somewhere.

When a caretaker has given up everything they had to care for a loved one and the loved one doesn’t plan property for his or her death, the caretaker can be left homeless.  They can also face large legal expenses to try to transfer the ownership of the property, often finding that they must divide ownership of the house they’ve called home for years.

If you have a loved one who is helping to care for you, proper planning can help prevent this tragedy for your caretaker. 

(1) Last Will and Testament

If you intend to leave your house, or any specific items you own, to only one person, or to someone that wouldn’t receive it directly through Oklahoma law if you do not have an estate plan, you can name those individuals in a Will.

There is a common misconception that Wills do not go through the probate procedure in Oklahoma.  That is not true. 

Someone named in a Will for real property or any other property not jointly owned or with a named beneficiary, needs to take the Will to Court and have the Judge approve the Will and the distribution of the property.  However, with a valid Will and no proof of coercion or fraud, the Court will follow your wishes and distribute the property as you choose.

(2) Trust

If you choose to create a trust and title your property properly into the trust, you get to choose who receives your assets.  The other benefits of a trust are that any assets held in the trust do not have to go through probate. 

That means your heirs get what you want them to have without Court interference, and privately. Probates are public record and require notices to be sent to all possible heirs of the proceedings, and published in a newspaper in the County where the probate is filed.

(3) Transfer on Death Deed

Oklahoma allows individuals who own real estate to name a person, or several people, who can take title to the property after the owner’s death.  The beneficiary does not own the property until the owner dies.  In the meantime, the owner is free to do whatever he or she would like with the property, including sell it.  If the property is sold while the owner is still alive, the beneficiary’s interest lapses.

For deaths after November 2011, a beneficiary of the TOD Deed will need to file an Affidavit accepting the property with a Certified Death Certificate within 9 months of the owner’s death, or the ownership interest will lapse and revert back to the estate. At that point, a probate will have to be filed.

If someone you love is helping care for you, speak to an estate planning professional today to make sure your caretaker is taken care of after your death.