TWELVE QUESTIONS AND ANSWERS ABOUT WILLS IN COLORADO

  • The topics in this outline pertain only to Colorado law.
  • This is general information only and not legal advice.
  • Please consult with an attorney regarding your specific circumstances.

Introduction: “I’m so relieved that I’ve finally completed my estate planning and signed my will and other documents. I wish I had done it sooner, but . . .”

  • I was too busy
  • My assets were minimal
  • I could not decide who should get my assets
  • I did not know what to do or where to get help
  • I did not want to spend money on it
  • I just could not get around to it
  • I did not want to face my mortality or incapacity

1. "What is an estate plan?"

A. Your estate plan consists of all the tools by which you communicate your directions and wishes if you become incapacitated or die.

B. The core elements are:

  • Will and personal property memorandum
  • Financial power of attorney
  • Medical power of attorney
  • Declaration as to medical and surgical treatment (“living will”)
  • Deeds showing joint ownership of property
  • Beneficiary and payable-on-death designations

C. An estate plan often includes other documents, such as:
  • Appointment of guardian for minor children
  • Marital or domestic partnership agreement
  • Business agreements
  • Revocable trust (“living trust”)

2. “What is a will?”

A. Your will is a written document in which you direct:

  • Who is to gather and distribute your assets
  • Your specific gifts of money or other items to individuals
  • Your gifts to charities
  • The disposition of your residence and other probate assets
  • In other words, “who, what, where, when, why, how”

B. A will helps you and your successors by:
  • Appointing the personal representative and alternates
  • Giving specific directions to the personal representative
  • Reducing potential disagreements among beneficiaries
  • Focusing attention on what matters to you

C. Keep in mind:
  • Your will takes effect at your death
  • Your will can and should be amended as your circumstances or wishes change
  • You must have legal capacity to sign a will or codicil

3. “What happens if I die without leaving a will?”

A. Your informal instructions to family or friends may not be enforceable.

B. State law creates a will for you:

  • The court appoints the personal representative
  • Your assets are distributed only to your nearest living relatives
  • No gifts to other relatives, friends, or charities

4. “Does a will control my entire estate?”

A. “Nonprobate” assets are not controlled by your will.

B. Be sure to review:

  • Beneficiary designations on investment accounts, retirement accounts, insurance policies, annuity contracts
  • Payable-on-death designations on bank accounts
  • Property owned jointly with another or for which a beneficiary deed has been recorded
  • Property controlled by your trust or business

C. Nonprobate assets may become probate assets.

5. “How does probate work in Colorado?”

A. Small estate:

  • Value of assets less than $66,000 (in 2017), and no real property
  • Will filed with court, but no other court involvement
  • Successor uses small estate affidavit to gather assets

B. Informal probate:
  • Administrative action overseen by probate clerk
  • Normally no court hearings
  • Over 90% of cases in Larimer County

C. Formal probate:
  • A way to resolve disputes or supervise the personal representative’s actions
  • Court hearings as needed or as ordered by the judge
  • Less than 10% of cases in Larimer County

D. Probate in Colorado is less expensive and burdensome than in many other states:
  • Court hearings are usually not required
  • Colorado does not have an inheritance tax
  • Attorneys are not paid a percentage of the estate
  • Most probates are finished in 8 to 10 months

6. “What kinds of tasks must a personal representative or trustee do?”

  • Take legal responsibility for the estate or trust
  • File required documents with court
  • Communicate with beneficiaries
  • Pay final expenses and estate or trust expenses
  • Hire accountant, attorney, auctioneer, and other professionals 
  • Locate, gather, and inventory the assets 
  • Keep an accounting of income and expenses
  • Settle, pay, contest, or otherwise deal with claims and debts
  • Transfer title to real property
  • Distribute assets as directed in the will or trust
  • Prepare and file tax returns 

7. “What is a revocable trust?”

  • Performs many of the same functions as a will
  • Effective during life as well as after death
  • Up-front expense of the trust may save time and money later
  • Assets that belong to the trust normally pass without probate

8. “When should I consider a revocable trust?”

  • “Avoiding probate” is not the primary concern in Colorado
  • Out of state property
  • Community property
  • Planning for incapacity
  • Other special situations
  • Weigh whether the benefits justify the added cost 
  • Weigh whether you are comfortable with transferring ownership out of your name to a trust

9. “Can I write my own will or trust?”

  • Yes, but . . . 
  • It may be trickier than it sounds
  • Court hearing may be needed to resolve ambiguities
  • Handwritten wills (“holographic wills”) are recognized in about half the states, including Colorado

10. “Is it all right to use forms or advice I find on the internet?”

  • Yes, but . . . 
  • Is the information accurate and up-to-date?
  • Does the information conform to current Colorado law?
  • Are the forms of high quality and understandable?
  • Legal forms are not magic