I recently read an article that posed the question whether you should put your home in a living trust. The author did not like probate. If you from a larger city, I don’t blame her: Probate proceedings in different states with larger populations can get expensive and lengthy (Relatively, Colorado is a much cheaper state to probate a Will). Instead, the author recommended a living trust, but suggested the price tag would be at least $1,500 to $3,000. That does not include maintenance or guidance execution. These numbers are not unlike the market rates you will see here in the Western Slope. For example, an estate firm in Grand Junction lists their flat fees on their website, and they charge $1,500 for a nontaxable estate plan person with a trust. I assume by nontaxable, they mean an estate less than $5.4 million. If it is taxable, the charge is $2,500. Many firms do not do flat rates and charge an hourly, because every estate plan is different and hard to estimate. It is likely though the total charge for any living trust may exceed $2,000. The reason? They are complicated to draft with conditions specific to your estate plan and assets need to be transferred and maintained, which includes other legal documents. You also need a trustee and the ability to manage it every year. If the trust generates income, you need a tax accountant that is familiar with fiduciary returns.
In contrast, a Will may be less than $1,000. Some attorneys can do one for a couple hundred dollars for a simple Will. Once it is drafted, it is done–you do not need to look at it again unless you have a significant life event may effect the Will. With a Will, the amount you pay for a trust is about the same or more you might pay to probate the Will for a simple estate. Therefore, there is not a savings to do a living trust for smaller estates. But why do that when there are other ways to avoid it altogether and potentially save money? That is why you should consider a beneficiary deed with your estate plan as an alternative.
A beneficiary deed operates much like a payable on death designation you might have on your checking account or life insurance policy. The beneficiaries are listed on the deed, but they do not own the property until death. You can revoke it any time or sell the property without the beneficiary’s consent. Upon death, it will automatically transfer the house to your beneficiaries upon recording the death certificate. Is there a downside? A couple, depending on your situation. Because it is an incomplete gift, Medicaid eligibility is an issue (I am referring to Medicaid for Long Term Care Assistance, not Medicare). They wont allow you to keep the beneficiary deed, and they will ask you to revoke it before applying or they will deny your application. If Medicaid is part of your estate plan, a beneficiary deed will not work.
There are a couple other downsides: a Beneficiary Deed does not include conditions or contingencies. Do you want to give your home to your children but only until they graduate college or turn a certain age? Do you own multiple properties in different states and want them managed properly after death? Do you have children on disability or public assistance, which might be jeopardized if they receive an inheritance? If the answer is yes to any of these questions, then a trust or a Will with a testamentary trust might be a better option for you. You may also review the Colorado Bar Association’s Guide on Beneficiary Deeds HERE for more information.
And if you are considering these options or want more information regarding your estate plan, please contact the grand junction estate attorneys at Reams & Reams. We are available to assist completing or even modifying your estate plan.
If you are the executor or the personal representative of an estate, chances are you received a claim in the mail for the decedent. Most likely, it is an unpaid credit card bill. That bill has now been forwarded to collections and they are asking you, the next of kin, to personally pay it. Rest assured: You are not personally liable to pay this debt; however, the estate might be liable. Generally, creditor claims have priority over heirs, but they must be filed within certain deadlines. If it is a known creditor, that deadline to file a claim is generally one year from date of death. If you want to shorten this, give the known creditor notice. They have sixty days to file a claim or until the published notice deadline, whichever is later, or the claim is barred. If it is an unknown creditor and you publish a Notice of Creditors in the newspaper, the deadline to file is generally four months from the notice. This is considered the published notice deadline. That is why it takes at least six months to open and close an estate: You want the creditor period to expire first. You pay heirs before creditor, you open yourself up to personal liability. After the deadline has passed, the claim is barred and forever extinguished. The personal representative actually does not have the authority to pay a barred claim.
If the claim is valid or court-ordered to pay and if you have more than one, you must pay claims in the following priority. (1) Property held by or in the possession of the deceased person as fiduciary or trustee of a trust; (2) administrative costs and expenses to administer the estate or trust; (3) funeral expenses; (4) federal taxes; (5) medical expenses of last illness of decedent; (6) state taxes; (7) Medicaid; (8) child support obligations; and (9) all other claims. This is not word-for-word; I am paraphrasing the statute. For a more complete citation, look at the Colorado Revised Statutes Section 15-12-805. You can review them here.
As an example, if the estate has $100, and you receive a claim for $200 from Medicaid but you also have a funeral bill for $400, pay the funeral bill first and give notice to Medicaid why they are not receiving any funds.
If you need assistance with a claim or general administration of an estate, please call the Grand Junction Estate Attorneys at Reams & Reams: 970-242-7847.
Managing an estate is much like managing a trust or a conservatorship. It primarily involves gathering the assets, managing them for creditors, heirs, or any interested persons, and then distributing the assets to the rightful people upon conclusion. With all these entities, there are things you need if you want to effectively administer assets for another person or an estate. Here are five of the most important things:
- Hire an accountant or an attorney with estate tax knowledge. Most often, there is no tax issue to deal with if the estate only consists of a house (see the “step up” basis rule) and some personal property; however, I recommend having a tax professional tell you that rather than ignoring what could become a tax nightmare. Accountants sometimes charge a reduced rate to review your file to confirm a return is not needed. For example, if the estate or trust collects dividends, that is considered taxable income, and the estate should file a return for that year you received the dividends. If you close or terminate the estate or trust before paying that taxable income, as the fiduciary, you might be stuck with personally paying the bill or penalty if your forgot about it. By then, the heirs are probably long gone or have already spent their money.
- Inventory the assets as best as you can. In most cases, heirs or interested persons can reasonably work out how to divide the assets. However, in every case, you should itemize and inventory everything as best as possible. Contested cases sometimes materialize overnight. At the very least, put tags like these on every piece of property the estate or trust owns. Take pictures of everything. These practices will separate your stuff from the estate’s stuff, and it will avoid commingling. You should then prepare an inventory. Microsoft Excel works great. We track our assets with Wasp MobileAsset. The price for that may be more than what you are willing to invest for one estate; however, you can use this excel template I made as a guide. It will keep track of what the estate owns, the estimated value, and what the items sold for. I would recommend quickbooks and quicken to track your expenses and income as well. When you conclude your administration, this report is vital to show the interested parties how everything was distributed. If you do not adequately track the personal property and expenses, somebody is going to ask you about a particular item six months into the administration. Without proper tracking, you will not have any idea where that item is located or where it went.
- Keep track of your time and expenses. Many executors or trustees that do not regularly to this type of work forget to track their time on a consistent basis. When administration has concluded, they end up trying to estimate how much time they spent. Without calendars or a billing system, estimating in lump sums will get contested and you may not be able to charge at all or at a very reduced rate. Buy a cheap or free calendar and put down your hours for each day. You can calculate a reasonable hourly rate later. Don’t forget about mileage either. Expenses are also reimbursable.
- Get appraisals or a market analysis for assets. If you are selling land or valuable assets, nothing is better than a professional appraisal to back up your sale. They are also great expert witnesses to rely upon in contested cases. Where there have been disputes over sale of assets, and the ones that stand up are professional appraisals behind them the sale. The assessed value with the county’s assessor and Zillow will give you a good estimate but do not solely rely on them.
- Never buy or take estate owned for yourself. This is axiomatic, but it needs to be repeated. Someone else has put you in charge to handle the estate or conservatorship. Someone entrusted you to do the right thing on behalf of the others involved and to not take from the estate. Even if you buy it for market value, you are putting yourself in a compromising position. Further, the transaction could be voidable if it is not expressly authorized by the court and after notice of interested persons.
In many cases, you probably can do most of the work on your own if you follow these rules. If you need assistance, maybe even limited advisement, please call the Grand Junction Estate Attorneys, Reams & Reams at 970-242-7847.
As the nominated personal representative or the successor of an estate, you have a lot of options to consider. Whatever you do consider, please also review the duties you have to the estate in general, including to the creditors and to the beneficiaries of the estate from the Colorado Bar Association’s article: So Now You Are A Personal Representative. This article gives enough information to get started; however, one thing it does not mention is whether you even need to open up an estate probate proceeding.
If the estate you are administering does not have real property in the decedent’s sole name (exclude properties in joint tenancy) and the estate has less than $64,000 in assets less liens and encumbrances, you may be able to avoid a formal probate proceeding altogether. On the Colorado Judicial Branch website, you may use a signed Affidavit for the Collection of Personal Property if it meets the following criteria:
- No real property in the decedent’s sole name (Check the Assessor’s webpage and the Mesa County Clerk and Recorder to review the chain of title to the property and the vesting deed.) and the estate has less than $64,000 in assets less liens and encumbrances;
- At least ten days have elapsed since the date of death; and
- There is no appointment of a personal representative pending in this district or any other state.
If you meet the criteria above, you may be able to use the Affidavit in the following ways: (1) collect assets from a financial institution; (2) transfer or sell vehicles in the decedent’s name (the DMV will require the use of its own form); (3) authorize cremation or deal with funeral services; (4) deal with creditors of the estate; or, but not limited to (5) distribute assets to heirs.
Anyone who uses this the Small Estate Affidavit is still held accountable for any action they make on behalf of the estate. If there is a Will, follow the Will’s division of property after creditors have been paid. If there is no Will, you will have to divide any assets after creditors are paid by intestate succession pursuant to the Colorado Revised Statutes. The statutes are somewhat complicated if there are no known next of kin.
There is one disadvantage to using a small estate affidavit as opposed to a probate proceeding, even if you do not need to file: They have different creditor periods. With any unknown or known creditor of an estate, generally creditors have a year from the date of death to claim against the estate. The most common claims are credit card debt. If you file a probate proceeding and publish the Notice to Creditors in the local newspaper, it cuts the creditor period for unknown creditors to four months. C.R.S. 15-12-801 (Use Lexisnexis’s website to review statutes). The same works for known creditors you can prove they had actual notice of the published notice. You can also cut it down to 60 days if you intentionally give notice to a creditor of the estate. (Review the same statute). If they do not file their claim or petition to allow their claim, it is barred forever (there are always exceptions, but they are not covered here). The reason why creditor periods are important is if you distribute the assets to heirs before the creditor period expires, you might be liable to that creditor if they have a valid, timely claim.
If you need assistance with the estate administration, please contact Reams & Reams at (970)-242-7847.
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