Bradford Publishing Blog | Colorado Law Articles & Topics

The decision to hire an attorney depends upon assessing the situation — and then being honest with yourself about your ability to handle the matter on your own.

First, always consult an attorney for:

•    Criminal charges
•    If you are sued
•    Bankruptcy
•    Employment issues (whether you are a business or an employee)
•    Personal injuries
•    Entering a franchise agreement
•    Selling a business, or bringing new owners into a business.

Individuals may effectively handle family law matters, business transactions, estate planning, and tax issues. However, one has to consider the costs of time and expertise when deciding to act without an attorney.

Advantages of handling a legal issue yourself:
•    There are Court-approved forms and books to help you.
•    You can move quickly, not waiting for an attorney to get to your matter.
•    You save money by not hiring an attorney.

Disadvantages of handling a legal issue yourself: Continue reading “Should I Hire an Attorney for My Legal Issue?” »

There are a few things that comprehensive wills have in common. A thorough will should:

•    State the name of the person writing the will.

•    Be dated.

•    Revoke all previous wills and codicils.

•    Contain at least one major provision—such as appointing someone to care for your minor children, choosing a personal representative, or making a gift.

•    Have the signature of the person whose will it is.

•    Have the signatures of at least two witnesses.

•    Be notarized.

Beyond these provisions, what your will contains is up to you according to your personal situation. But watch out for common pitfalls when filling in the details of your will. Your will does not have to contain lofty legal language and complex sentences. Writing in plain English is all it takes to write a will in Colorado. Use simple, declarative sentences.

There are a few common mistakes found in wills written without the help of a lawyer. Some suggestions to avoid these mistakes are:

•    Always use the words “give” or “leave” when making gifts. Using “wish” may be misinterpreted. You wished it, but did you really want it?

•    Always be specific when a gift should be divided among more than one beneficiary. It is confusing if the will reads “I give $10,000 to my sons Benjamin Sanker and Isaiah Sanker.” $10,000 each? Or $10,000 together? Instead try “I give $10,000 to each of my sons Benjamin Sanker and Isaiah Sanker” or I give $10,000 to my sons Benjamin Sanker and Isaiah Sanker, in equal shares.”

•    Consider also what you want should the recipient of a gift die before you: Do you want the gift to go to nobody, to the recipient’s children or to someone else? Say so.

•    Always use the full name of the beneficiaries in your will. Leaving your car to “John” is not helpful if you have a cousin John, a son John, and a best friend John.

For more information about writing your will, get “Planning a Will in Colorado”, Bradford Publishing’s Legal Series.

One of the major decisions you will make when writing your will is to choose a personal representative. Colorado law uses “personal representative” rather than “executor” as the term to describe the person who will be responsible for your estate after your death. The personal representative pays your debts and taxes, files all the appropriate papers, collects probate assets, locates your beneficiaries, takes your estate through the probate process, and settles spats between your relatives. The personal representative you choose will have to be approved by the probate court.

Can a beneficiary be a personal representative?

Yes. It is common for one of your beneficiaries to be nominated to serve as a personal representative. This person already has a personal stake in your will, so he or she ought to do a good job.

Can my spouse be my personal representative?

Yes, but it’s not necessary. Many people choose their spouse to be their personal representative. Although, if your spouse does not have the business or mediation skills, you can add someone else who does to be a co-personal representative.

What if I don’t know anyone I want to be my personal representative?

Many banks or trust companies can serve in this position for a fee. While they will already be familiar with all the forms and procedures necessary, they may not be able to represent your wishes as well as someone who actually knew you.

On the other hand, for someone with a difficult family, an impartial third-party who will not be pushed around is about the best choice to administer their estate, despite the extra cost.

For more information about writing your will, get “Planning a Will in Colorado”, Bradford Publishing’s Legal Series.

So, you have all of your estate planning documents completed and in a safe place and you have peace of mind. Good for you!  How long has it been since you reviewed them?  While it’s true that these documents don’t have an expiration date, a lot of things can happen that may affect the validity of your important estate planning documents. Here is a list of possible life changes that might require you to update such documents as a Will, Power of Attorney, Living Will, or a Designated Beneficiary Agreement.

1.    Marriage.

2.    Divorce.

3.    Death of a spouse.

4.    Birth, adoption or death of children.

5.    Significant increase or decrease in your net worth.

6.    Serious illness or upcoming surgery.

7.    Change in Federal or state estate or inheritance tax laws.

8.    Change in state laws governing health care proxies and other health care documents (living wills).

9.    Move to a different state.

10.    Change in citizenship status.

11.    Having a will or trust which contains a marital deduction estate tax formula governed by the federal tax credit (which has significantly changed in the past few years).

12.    Your health care documents were created before 2004 when HIPAA (the Federal health privacy act) became effective.

13.    You have a durable general power of attorney that, in the subjective view of your financial institution, is “too old.”

Everyone’s situation is personal to them.  The federal estate and gift tax law changes over the past few years have been significant and can result in distributions of an estate which are quite different than your intent might have been.  It would be prudent to have any will or trust created before 2011 at least briefly reviewed so you understand the effect of the tax clauses.

The other frequent problem families encounter is either not having a current durable medical power of attorney at all or having one that was prepared prior to 2004 and does not give permission to medical personnel to share medical information with your designated agent or family members.

When a loved one dies, family members can find themselves clutching at furniture, jewelry, silver and artwork. Death heightens emotions, and sometimes relatives descend upon a home and help themselves to personal possessions without permission.  Other times, relatives say something was “promised” to them, even if there’s no evidence to support it.

To avoid this, Colorado law recognizes an easy-to-use tool for parceling out “tangible personal property:” a Memorandum of Disposition.

This Memorandum is not a complex legal form; it is simply a handwritten or typewritten list that describes items and states who is to receive them upon your death.  It must be signed and dated, and it should be kept with your will. The memorandum can cover items such as vehicles, jewelry and furniture.

Although we strongly suggest you write a will, even if you don’t, you can still create this list. Make sure you store it someplace prominent and sign it. And remember, a memorandum cannot be used to dispose of real estate, securities, insurance and many other assets. 

For more information about the practical and emotional issues related to handing a spouse’s affairs, see Life After Death – A Legal and Practical Guide for Surviving Spouses by Marilyn W. McWilliams, J.D.

For many people, the main reason for writing a will is to be sure that their underage children will be provided for. A will can be used to do two major things: choose someone to care or your child, and make sure that the child’s inheritance is used in the way most beneficial to your child.

First, you need to choose a guardian to care for your children if anything happens to you. Second, you will need to choose a conservator for your child.

What is the difference between a guardian and conservator?

A conservator is different from a guardian because the guardian is responsible for the minor’s care, and the conservator is responsible for the minor’s money. Until the child turns 21, the conservator will manage the child’s property, money, and gifts, and use them in the child’s best interest. If you leave gifts directly to your child and do not choose a conservator, the courts will choose a conservator. Since this person could have a lot of influence over your child’s life, it is a good idea to choose a conservator yourself. Be sure to ask your choice if he or she is willing to be a conservator for your child, and do not forget to select alternate conservators.

Can the guardian and the conservator be the same person? Continue reading “Who Will Take Care of the Kids? (Part II)” »

One of the main reasons for writing a will is to be sure that your underage children are provided for. A will can be used to do two major things: choose someone to care for your children and to make sure that your children’s inheritance is used to benefit them.

First, you need to choose a guardian to care for your children if anything should happen to you. Keep in mind the following when deciding who to pick.

1.    Is the person you’re thinking of selecting willing to the job? It is important to ask if he or she is up for the task should something happen to you.

2.    You want your kids in capable hands and to be wanted, so be sure the person you choose is enthusiastic and both physically and financially able to raise your child.

3.    Be sure to select one or more alternate guardians in case your first choice cannot or does not want the job if the time comes. Continue reading “Who Will Take Care of the Kids? (Part I)” »

If someone who lives in Colorado dies without leaving a will that details what should happen to their property, the law must determine who is entitled to own the person’s assets next. Probate is the court-supervised process for transferring those assets.

Who is entitled to inherit when there is no will?

When there is no will, the decedent is said to have died “intestate.” A person or entity that receives the property according to the rules of intestacy is an “heir” of the decedent.

Colorado’s Intestate Succession law determines who inherits, and in what proportion. This is where things can get complicated. The answer will partly depend on whether the decedent was married; the decedent has descendants (which means children, grandchildren, great-grandchildren, etc.); who of those are still living, and whether the decedent has living parents.

If the situation is complex, it may be helpful to make a family tree to determine who will inherit.

Once the heirs are determined, they will be listed in the initial application for probate  that is filed with the court and will receive notice as interested persons.

Who takes care of probating the estate when there’s no will? Continue reading “Probating an Estate Without a Will in Colorado” »

Once you have figured out what items in your estate you have to leave to someone, the next step is to decide to who gets what. This is really the fun part of making a will–giving gifts to the people and organizations that mean the most to you. Whoever or whatever receives a gift from you is your beneficiary.

What is the difference between an heir and a beneficiary?

Heirs are the people who are entitled to part of your estate if you die without a will; usually your spouse, kids, and parents. Beneficiaries include everyone who will benefit from your will, including your spouse, kids, etc. If you’re reading this blog you understand the importance of writing a will—which means you should not be dying without one. Therefore, we will continue to use the word beneficiaries.

There are four types of beneficiaries Continue reading “Choosing Beneficiaries for Your Colorado Will: Who Should Gain?” »

Among the many heart-wrenching topics explored in The Descendants is the role of advanced directives in enforcing patients’ wishes and forcing family members to come to terms with death.  Advanced directives or living wills are documents that allow patients to direct aspects of their health care before they become incapacitated.

In the movie, wife Elizabeth enters a coma after a boating accident. She will never awaken, and under the terms of her living will, she must be disconnected shortly from life support.
Aside from relieving her family of the burden of caring for her (and paying for her care) indefinitely, the advance directive allows her husband Matt to focus immediately on his children and coming to terms with what has happened.

What if Elizabeth hadn’t any advanced directives? Part of the movie would have been about Matt’s struggle over whether to pull the plug and when. Instead, Elizabeth made the decision herself, therefore, relieving her family of that difficult decision. Continue reading “Lessons Learned From “The Descendants”” »