Tag Archives: estate planning lawyer

Self-Proved Will

Several of the estate planning documents require witnesses to be valid, or, at least, fully effective – the Will, the Medical Power of Attorney and the Living Will. Having witnesses for a Will is not vital, though, it can save headaches down the road.

A Will does not need to be witnessed in Colorado to be valid. A recent change in the law allowed Wills to be valid merely by having the testator’s/testatrix’s signature notarized. However, by executing a Will in this fashion, it may also be “self-proved.” By attesting to a self-proving affidavit contained in a Will, there is a rebuttable presumption that the Will was executed correctly. The presumption is rebuttable, but the burden is then on anyone attacking the authenticity and validity of the document.

A notarized Will is valid, but is not given the same rebuttable presumption. This small provision at the end of a Will is easy to include and execute and can prove very useful if the Will is ever challenge. Make sure that any Will you sign has a self-proving affidavit. However, in a pinch, a notarized Will will work and is better than no Will at all.

Intestate Succession – Where does everything go without a Will?

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One of the purposes of a Will is to direct the disposition of a person’s assets. When a person dies with a valid Will directing the disposition of their assets, they have died testate. However, all too often, people die without first implementing the necessary estate plan – including a Will. When a person dies without a valid Will, the person has died intestate. In these instances, the state laws of intestate succession dictate how a person’s property will pass to that person’s heirs.

Each state is different and the laws of intestacy will be determined based on where the property is located. For instance, a person who resided in Colorado will follow Colorado law for any real property and personal property located in Colorado, but will have to follow the laws of any other state where they may have property located, such as an out-of-state vacation home.

My practice is located in Colorado and this post will focus on Colorado intestate succession. If you have any questions about intestate succession in another state, I recommend contacting the state bar of the state to get in touch with a local probate attorney. The information you obtain may be the motivation that a parent, spouse or friend may need to begin their own estate plan. As you will see, the laws of intestacy are not always in line with how someone would actually want their estate distributed.

In Colorado, the share of the spouse is determined first. C.R.S. 15-11-102. Most clients I have discussed this issue with believe that a spouse will receive everything in the absence of a Will, but this is not correct. A surviving spouse will only receive the entire estate of their deceased spouse if either a) all of the deceased spouse descendants (children, grandchildren, etc.) are also descendants of the surviving spouse (no step-children) or b) the deceased spouse had no surviving descendants or surviving parents. In all other scenarios, Colorado intestate succession contemplates a division of the estate between a surviving spouse and either a parent or a child.

The surviving spouse is entitled to the first $300,000 and ¾ of any amounts above $300,000 of the deceased spouse’s estate if the deceased spouse died with no living descendants but was survived by at least one parent. In this instance, the parent(s) would receive the remaining ¼ of any amount above $300,000 in the estate. This is primarily a concern for younger childless couples who have not planned properly. If a life insurance policy designates the estate as a beneficiary instead of the spouse, the influx of cash at death could result in a portion of the proceeds being distributed to the deceased spouse’s parent(s) instead of the surviving spouse.

The amounts to the surviving spouse are further reduced depending on the relationship between the surviving spouse and the deceased spouse’s descendants and if the surviving spouse has any descendants not related to the deceased spouse (step-children from either spouse). The surviving spouse will receive the first $250,000 plus ½ of the remaining estate if all the descendants of the deceased spouse were also descendants of the surviving spouse, but the surviving spouse also had one or more descendants not a descendant of the deceased spouse. Lastly, the surviving spouse is entitled to the first $150,000 plus ½ of the remaining estate if the deceased spouse has one or more descendants who are not also descendants of the surviving spouse.

After the surviving spouse’s share has been determined, or if the decedent was unmarried at the time of his or her death, the remaining amounts are distributed to the heirs of the decedent in the following order:

- To the decedent’s descendants;

- To the decedent’s parent(s);

- To the descendants of the decedent’s parents (brothers, sisters, nieces, nephews);

- To the decedent’s grandparents;

- To the descendants of the decedent’s grandparents (aunts, uncles, cousins);

- To the State of Colorado

C.R.S. 15-11-103.

The State of Colorado believes that the laws of intestate succession closely mirror the desires of the typical Coloradan. However, every estate plan I have ever drafted has looked vastly different than the state’s proposed distributive scheme. Most people have specific items that they would like distributed to certain people and the best way to ensure that those types of bequests are fulfilled is to draft a Will. What is even less clear is how to distribute tangible property. The formulas seem to work with money, but when real or personal property is involved, it can become very problematic.

Along with a Will, an estate planning attorney can discuss and draft necessary documents to make sure that nearly all contingencies have been accounted for both at death and incapacity and avoid many of these situations.

Patrick Curnalia is an estate and tax planning attorney with Curnalia Law, LLC. Patrick has worked with many clients to help them achieve their planning goals. Our firm services the entire Denver area and is located near the Denver Tech Center. Find out more about how our firm can help you by visiting our website at www.curnalialaw.com.

Disability planning for financial matters

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Disability planning is essential for everyone. There are several techniques that range from relatively simple to complex, depending on the types of assets and protection required by the client. Each of the techniques will work to some degree, but also have some inherent shortcomings in certain situations. It is best to consult your attorney before implementing any of the following techniques.

First, lets identify what happens when no planning has been done and a person becomes incapacitated. Focusing just on the financial aspect, the incapacitated person will need a conservator appointed for them. The conservator is a fiduciary required to act in the incapacitated person’s best interest. The conservator may be required to report to the court on a periodic basis regarding the assets of the incapacitated person if there is any doubt as to the conservator’s intentions and legitimacy of his or her actions. The conservatorship can be costly and time consuming to set up. A conservatorship is also not ideal for emergency situations where quick actions are necessary.

A common situation is the incapacity of one spouse – leaving the other spouse to care for him or her. The easiest and most cost-effective way to prepare for this situation is the retitling of property into joint tenancy. Obviously, this will only work for property that can be titled jointly such as real property, bank accounts and vehicles, but it does work in a pinch and can be a saving grace when no other planning has been completed.

Another planning technique is to execute a Financial Durable Power of Attorney (or Financial POA) naming an agent to act on the incapacitated person’s behalf. The Financial Durable Power of Attorney is limited to financial matters so that a different person can be nominated as the incapacitated person’s Medical Power of Attorney to make medical decisions. Some clients prefer to have one person making financial decisions and another making medical decisions. The Financial Durable Power of Attorney is durable because it remains in effect even after the person executing the document has become incapacitated. Not to long ago, Colorado and other states had laws that nullified a person’s Financial Power of Attorney as soon as that person became incapacitated – completely defeating the purpose of the document. An estate planning lawyer can draft a Financial Durable Power of Attorney and should include this document in any estate plan drafted. If requested by itself, the document is fairly straightforward and should not cost very much to have drafted.

The most complicated disability plan will include a trust of some sort. Typically, revocable living trusts will be utilized because they allow the person who created the trust (the “Settlor”) to retain control of the assets during the Settlor’s lifetime. Property can go in and out of the trust at the Settlor’s discretion. However, once the Settlor becomes incapacitated, all of the property in the trust then comes under the control of the successor trustee of the trust. The trustee must follow the terms of the trust as written by the Settlor, but otherwise has the authority to care for all of the trust assets. A trust is a legal document that can be enforced and must be followed by the trustee. The terms of the trust can, and typically do, identify exactly how the property inside the trust is to be administered for the benefit of the Settlor and/or any other beneficiary of the trust. Each of the above options have their own advantages and disadvantages from cost to levels of protection. As with many things in life there is no one best answer, and client’s typically find that a combination of disability planning tools is necessary to meet their needs and adequately cover as many contingencies as possible.

What is “pauper planning”?

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Pauper planning is more than just a catchy name for an estate planning blog – it is the idea that a person need not be of the wealthiest 1% of America to benefit from estate planning. Everyone, from the wealthiest of people to the young professional just starting out in life, can benefit from a properly crafted estate plan. I have found that most clients benefit from a discussion about the estate planning process and the documents involved. I think that is a fitting way to start this blog – by identifying some of the pieces of the typical estate plan and showing how they affect the typical family.

The basic documents that should be in every plan include a Will, Financial Power of Attorney, Medical Power of Attorney and Living Will. Trusts are common planning tools but their utility really depends on the types and location of assets and the ultimate goals of the client. The Will is the most common and known document of the bunch. This document identifies how property is to be passed and who is responsible for making this happen.

If someone dies without a Will, the laws of the state of the decedent’s domicile or location of property will dictate how the property is passed. Letting the state determine how your property passes after your death is called intestate succession. The laws of each state are different, but needless to say, a client will typically have much different ideas of how their property should be distributed at their death. A person’s Will ensures that everything they have amassed during their lifetime will be distributed according to their wishes. Almost as important as how property is distributed is nominating the personal representative who will do the actual work. Property that passes via a Will will need to be probated. Probate can become very complicated if the wrong person is put in charge of the process. In addition to nominating a personal representative, the Will also allows the nomination of a guardian and conservator of any minor children. All of these decisions can be left to the discretion of a judge and interpretation of state law if no Will exists.

The Financial Power of Attorney is a document that grants another person the authority to make financial decisions on behalf someone who has become incapacitated. Without the grant of this authority, a person would need to be appointed conservator of the incapacitated person in order for any financial decisions to be made on the incapacitated person’s behalf. This authority becomes very important if medical bills needs to be paid, mortgage payments become due or, possibly, a special needs trust needs to be created to collect insurance funds on behalf of the incapacitated person. The cost of drafting and executing a simple Financial Power of Attorney is much less than the time and cost of a drawn-out battle between the spouse, parents and adult children from a previous marriage to be appointed conservator. The issues with inter-family squabbles are present with medical decisions as well.

A Medical Power of Attorney identifies who is supposed to make medical decisions for a person after he or she becomes incapacitated. Financial decisions can cause problems, but decisions regarding whether someone lives or dies are a completely different animal. The simplest way to prevent any issues is to appoint a medical proxy to make decisions on your behalf.

Unfortunately, many people are misinformed as to the rights of spouses in Colorado regarding medical decisions for an incapacitated spouse. According to Colorado law (C.R.S. 15-18.5-103), a spouse will be consulted by the attending physician when no advanced directive (more on that later) and no Medical Power of Attorney has been appointed. However, the physician is also required to consult with any other “interested person” the physician can find. For the sake of this consultation, “‘interested persons’ means the patient’s spouse, either parent of the patient, any adult child, sibling, or grandchild of the patient, or any close friend of the patient. C.R.S. 15-18.5-103(3). Not only do each of these people have a say, but the decision has to be unanimous regarding the election of the incapacitated person’s healthcare proxy and any decision that the healthcare proxy makes on your behalf. In other words, the person’s health care is essentially under mob rule. How is a stalemate broken? By the courts of course! Who better to make these decisions than a judge who has never met the incapacitated person. Anyone wishing to be appointed as the healthcare proxy can file for guardianship, and it is up to the court to determine who is the best person for the job. It is easy to see how this process could become drawn out with hearings and appeals only to leave the incapacitated person in limbo – remember Terri Schiavo in Florida?

The last document, the Living Will, is similar to the Medical Power of Attorney. However, this document is typically only concerned with the advanced directives concerning life-sustaining procedures when the incapacitated person has been diagnosed with a terminal condition or is in a persistent vegetative state. These decisions can be made by the Medical Power of Attorney, but clients often feel better make these decisions for their designated agent.

All of these documents are an important part of anybody’s estate plan, and none of them are contingent upon the amount of a person’s assets. The millionaires in the world may have more complex estates that require additional considerations, but here is the proof that even the paupers need to adequately plan. Estate planning for most Americans is deciding who takes care of you, your property and, most importantly, your family when you cannot. Asking the State of Colorado to make those decisions is often times inadequate and results in something contrary to what the decedent/incapacitated person would have wanted. Do not leave anything to chance! Paupers unite, and start your planning!