Frequently Asked Questions
We pride ourselves on being counselors at law, so we have answered some commonly asked questions.
Do I need a Will?
Not everybody needs a Will and many people die without one (called “dying intestate”). Default rules in the law dictate how your assets will be distributed. Sometimes the default, or intestacy laws, are just fine and everything goes just as it would have if you had a will. In Colorado, if you die intestate, your spouse always receives a portion of your estate, while children, parents and siblings may receive a share of your estate, determined by formulas set by law. We know the default rules and will honestly help you evaluate whether you need a will. Consultations are free.
What happens if I die without a Will?
Whether or not you have a will, many of your assets will pass according to joint ownership, beneficiary or pay on death designations. Only probate assets, those that do not have a joint owner, or designated beneficiary, pass according to your Will. In limited circumstances you can even pass real property directly to a beneficiary, using a beneficiary deed. A common misconception is that if you do not have a Will, the state will seize your assets. That happens in very, very rare cases and only when no kin can be located.
Should I set up a Will or a trust?
There are many types of trusts with many different purposes. Once we understand your objectives, we can help you determine if a trust is needed to accomplish them.The most common type of trust is a “revocable living trust.” The sole purpose of which is to avoid probate. In Colorado, however, probate is not a big deal and we don’t encourage people to go to great expense to avoid it. This is not true in other states, such as California where most planning is and should be done through a revocable trust. There are other reasons one might need a trust, but those objectives can often be met within a will, through something called a “testamentary trust.” These trusts are commonly used for minor children, disabled adults or others who may need someone else to manage their inheritance. More complex plans may include trust for estate tax planning purposes.
How do I contest a Will?
To challenge a will, it has to be legally proven to be invalid and you have to be an interested party.These are factually intensive cases and each one is unique. A Will can be set aside if the decedent was incapacitated at the time the Will was signed, or if he or she was unduly influenced. We can help you understand if you can bring such an action, or can help defend the proponent of the Will.
What should I consider when I name my agent for power of attorney?
Depending upon the type of power of attorney you grant, your agent will handle all your financial or medical decisions, in either case you want someone you trust to carry out your wishes. While it’s essential that you choose an agent that is absolutely trustworthy, your agent should be able to manage the demands of the task and be strong enough to serve your best interests when conflict arises.
It may become difficult for your agent to execute her duties if she is ill, extremely busy or lives far away from you. Sometimes the best agent is not a family member and we can help you choose a professional to serve as agent if that is needed.
What is probate?
Probate, in its narrow meaning, describes the process by which an instrument purporting to be a Will is legally determined to be the effective Last Will and Testament. Probate, in its broader sense, describes the entire process by which a decedent’s estate is collected, administered and distributed. Probate laws vary from state to state, and in Colorado we are fortunate to have a streamlined probate code and probate administration is not overly burdensome or costly.