Question and Answer of Probate and Trust Questions

Probate Questions from last presentation

At our last probate presentation we held at Immaculate Heart of Mary Catholic Church (if you would us to speak with your institution or group, free of charge, about Will, Trusts, and Probate, please contact us), there were a number of index cards with questions that we quickly answered. If you forgot or wanted more detail with those answers, I wanted to follow up with some of those answers on our site.

 

Some of you asked about the Colorado Judicial Branch website for the standard forms. You can find those forms here: https://www.courts.state.co.us/Self_Help/Index.cfm

I have also linked a couple of the forms from other resources on our resources page: http://reamslaw.com/resources/

However, take caution with anything you download.

The number one piece of advice we tried to instill from the presentation: Refrain from downloading forms off the internet. If you must do it, have someone (preferably an attorney) review the document before signing it. These documents have legal consequences that sometimes take years and may spend a lot of your hard-earned assets to fix in the court system if they are not done right. As I noted in the presentation, some of those forms, which purport to reflect Colorado law, are glaringly wrong.

 

Here were some of the index cards and my answers:

 

Question: I have a Colorado Will, but I will move out-of-state soon. Is this the Will still good? Vis-versa: I moved into Colorado and my Will is from another state.

Answer: Your Will is still generally valid from another state, but there are some things you need consider that you may want to update: What law governs my Will? (Most of the time, that clause is near the bottom of your Will.) If another state governs the interpretation of your Will or if it changes depending on which state your reside in, did distribution schedule of your Will change? (Terms like per capita at each generation or by representation may be defined differently in other states). Now that you have moved, will my nominated personal representative be able to efficiently administer my estate or will he or she have to delegate from afar? The marital rules may have changed, especially if you moved into a community property state such as California. Does the new state allow common law marriage and will that effect the outcome of your Will?

 

Q: Do you prepare medical and financial powers of attorney?

A: Yes, and we prepare them along with your Last Will and Testament and Advanced Directives to give your medical agent instructions in certain situations. Most estate planning attorneys can provide all of these documents for your estate plan.

 

Q: If most of my assets are in a 401k, should I still have a Will?

A: If your 401k has a listed beneficiary other than the Estate, this is considered a non-probate asset. That means upon death, it will generally be distributed to whomever is the listed beneficiary, no matter what your Will says. There are always exceptions to this rule, but generally non-probate assets trump your Will. However, even if all of your assets are going to be distributed outside your Will, we recommend a Will as a backup. There may be cases where you missed an asset, or the beneficiary designation is ineffective, or any issue that may arise. The most important thing to consider is making sure your estate plan is consistent. Without a Will, the distribution of assets may not be what you intended.

 

Q: What is the quickest type of Will to put together?

A: In Colorado, if you need to make a Will immediately and you have the capacity to do it, you may write out your Will in your own handwriting (on a legal pad, napkin, or any medium available) and then sign it. For some reason, Colorado does not require it to be dated, but I recommend it in case you do more than one. In this form, it does not need to be witnessed or notarized, but I recommend that too to confirm it was you who signed it and to prevent forgery or undue influence. Colorado refers to this as a holographic will. However, I do not recommend you continue to use this as your Last Will and Testament. Any mistake and ambiguous term or clause may invalidate it or create litigation among your family.

 

Q: Do I need a Trust?

A: My general answer to this question for most of my clients is No, but it depends on the person’s needs and estate plan. Trusts are complicated and difficult to manage if you do not maintain them appropriately. Colorado has a very efficient probate system, unlike California, which has seemed to have created the trust problem. Unlike California, lawyers cannot charge percentages (I have seen in some instances where they have, but the percentage has to be reasonable to services rendered on behalf of the estate.). The high commissions in California have resulted in a lot of trusts, because people have tried to avoid the probate system. In Colorado, I only recommend trusts if it serves a particular purpose, such as, but not limited to

  • Beneficiaries that are disabled, on special needs, public assistance, or minors
  • Beneficiaries have issues with financial responsibility and have creditors
  • Beneficiaries are incarcerated
  • You want give your beneficiaries their inheritance over time or when they reach a certain milestone rather than in one lump sum
  • Tax or marital issues
  • Medicaid issues
  • Real property in multiple states or multiple properties that need managed

 

Q: In Colorado, does a financial power of attorney expire on death?

A: Yes. Your authority to act as an agent under a financial power of attorney terminates on death.

 

Q: How much does a Will cost?

A: It depends. At our firm, we strive to keep the costs low. Please see our Estate Planning page to understand the factors of the cost and how you can lessen the cost. Estimated costs that I have seen in other firms range from $300 to $2,000; however, the market average in Mesa County seems to center around $500 to $1000. If you know someone who has done their estate plan recently, ask them about their experience and who they would recommend.

 

If any of these questions concern you, we recommend you have someone review your estate plan. Contact us today at 970-242-7847.

 

The material presented on this site is included with the understanding and agreement that Reams & Reams is not engaged giving legal advice by posting material on this website. The services of a competent professional should be sought if legal or other specific expert assistance is required. Further, the firm does not wish to represent anyone desiring representation based upon viewing this website in any state or jurisdiction where this website fails to comply with all laws and ethical rules. The firm is also only licensed to practice in the State of Colorado. Any material presented on this site may be different or incorrect in another state. Please consult any attorney before using any of this information.