Wills and Trusts

A will is a set of given instructions that the drafter gives to the named personal representative to follow regarding how the drafter's estate is to distributed when the drafter dies. . In addition, a will is used to address other issues such as naming a guardian for minor child(ren) or a disabled adult.

A drafter of a will must be at least 18 years old, of sound mind, and must understand the extent of their estate assets, who their immediate family members are, and who they want their assets to be given to. When drafting a will, named persons, charitable organizations, etc. are considered a "devisee".

There are certain types of assets that are not distributed by a will. Only assets that are owned by you in your individual name and that do not have a beneficiary designation are controlled by the will. Therefore it is important to consider how you own your assets when doing your estate planning. Assets that are titled in joint tenancy, such as real property or a bank account, or assets that have a beneficiary designation like a life insurance policy or IRA, pass to the beneficiaries by operation of law (without the need for probate).

A will may be amended or revoked at any time, provided you are mentally competent and not inappropriately influenced by another person.  You should never write directly on your original will, but instead should execute a codicil (amendment) or an entirely new will. Writing in new clauses or scratching out sections creates uncertainty as to your intent and will likely result in increased chance for probate litigation.

Under Colorado law, if you get divorced after you execute your will, your ex-spouse cannot serve as your personal representative and is automatically eliminated as a devisee when the divorce is final. If you get married after you execute your will, your spouse is entitled to the same share he or she would receive if you died without a will.

Not all estates will have estate taxes, and it is a common misunderstanding that avoiding probate saves estate taxes. Probate and estate taxes are separate matters. Probate is the process for passing the title of assets. The requirements for filing federal and Colorado estate tax returns are based on the total value of the assets at the time of death and therefore have nothing to do with the will.

You may direct how and when a devisee receives their inheritance, for example outright or in a trust. A trust established under a will is called a testamentary trust, and may provide significant protection for the beneficiary. The trust terms may prevent access by the beneficiary’s creditors, set out the terms and reasons that a beneficiary may receive a distribution from the trust assets, and prevent disqualification from public benefit programs. This is a sophisticated technique and you are encouraged to consult an attorney.

If a person dies without a will, he or she is said to have died “intestate.” When this happens, Colorado law essentially writes the person’s will for them through a set of statutes that dictate who is entitled to what, who has priority to be the personal representative, and other terms and procedures related to estate administration.  Administering an intestate estate can be complicated and may require significant court involvement. It is generally more expensive than filing a probate action with a will, and does not provide the possible protections for the heirs as a testamentary trust can for the beneficiaries. This is one of a list of many reasons why you should have a will.

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