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Living Wills - Glossary
 

• Life insurance and retirement plan proceeds.
• Property owned jointly with one of more persons with a right of survivorship.
• Property held in a living trust.

Any property that is not included in those three categories is subject to the intestacy laws. In Intestacy, distribution of property is done by a prescribed formula, which may or may not handle the distribution in a manner that is in the best interests of the deceased individual’s family or other interests such as charities. Under Colorado’s Probate Code, the property of an intestate person passes as follows:

• If there are no descendants or parents, the entire estate goes to the surviving spouse.
• If there is no spouse, then all goes to the decedent’s descendants.
• If the decedent has no surviving descendants, but does have a surviving parent, the surviving spouse receives the first $200,000 of the estate and three-quarters of the balance. The rest goes to the parent or parents.
• If the decedent leaves neither spouse nor descendants, then the property passes to his or her parents.
• If no parents survive, then is goes to their surviving descendants or, if none, to the decedent’s grandparents or their surviving descendants.
• If the decedent’s surviving descendants are also descendants of the surviving spouse, but the surviving spouse has one or more surviving descendants who are not descendants of the deceased, the spouse receives the first $150,000 and one-half of the remaining balance, with the rest going to the descendants.
• If the decedent has surviving descendants who are not descendants of the surviving spouse, and all of the
  surviving descendants are adults, the surviving spouse receives the first $100,000 plus one-half of the balance, with the rest going to the descendants.
• If one or more of the decedent’s surviving descendants are not descendants of the surviving spouse and one or more of such descendants are minors, the surviving spouse receives one-half of the intestate estate, and the decedent’s descendants receive the other half.
• If more than one of these circumstances exist, the rule that results in the largest share going to the spouse will apply. C.R.S. § 15-11-101 et seq.
  
  More remote relatives do not inherit; instead, remaining funds go to the state of Colorado.

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Problems with Intestacy

Under the intestacy laws, you have no say where your property goes. Everything is distributed by a prescribed formula. This formula does not recognize domestic partners, civil partnerships, or same-sex couples. There are several drawbacks to allowing your estate to proceed through intestacy, such as:
 

• The special needs of a child, parent, spouse, relative, or friend may not be addressed.
• The child of a gay or lesbian couple cannot inherit from the partner who is not the child’s parent, unless
  specifically included in a will.
• The opportunity to protect a larger estate from unnecessary taxation through establishment of estate devised such as a charitable gift can only be accomplished by a will or trust.
• Your spouse, partner, children, adopted children, and parents may get more or less of your property than
  you might have expected or wanted.
• A surviving partner in an unmarried couple will not automatically inherit anything unless the couple owned
  property jointly.
• Your funeral wishes may not be carried out.
• If you and your spouse die, the court-appointed guardians may be people you would rather not have
  watching after your children and their property.
• The executor of your estate may be some person you would not want.

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Benefits of Executing a Will

1. You can leave different amounts to different persons. Under Colorado’s intestacy laws, if you do not have a will, (1) your spouse will not necessarily get everything you own if you have surviving children, and (2) your children are treated equally, whether that is fair or not. Most people in fact want their spouses to inherit everything, but the intestacy laws will not always accomplish that; only a will can do it. As to the children, intestacy laws provide that they all get exactly the same amount, even if one needs more due to illness, educational expenses, a poor marriage, or simply because you want him or her to have more. A will can treat your spouse and children the way you want, not the way Colorado wants.

2. Allows unmarried partners to inherit from each other. Because Colorado restricts marriages to the union of one man and one woman, lesbian and gay couples do not inherit from each other under intestacy. You need a will to leave each other property. If one partner dies without leaving a will, the surviving spouse will not automatically inherit anything unless the couple owned property jointly. A cohabiting couple needs to make wills in order to ensure that the other partner inherits. Similarly, if a couple is gay or lesbian, a child can only inherit from the partner who is not the child’s parent if it is specifically included in a will. (To further protect yourselves, unmarried couples should consider writing a cohabitation or “Living Together” agreement to govern financial and property decisions.

3. You can name specific recipients for specific items. A will determines the beneficiaries with exactness. One of the problems with intestacy is its blanket approach. It gives away chunks of your estate to persons without much care as to who gets what. With a will, you can give specific things to specific persons – your ring, a special collection, your automobile, the grandfather clock – all of these can be given to separate persons. Moreover, you can say what happens if a recipient dies before you: “I give my opal rings to my daughter, Kate, but if she does not survive me, then to my niece, Ashley, if she survives me.”

4. You can leave specific instructions regarding certain property. A will ensures that particular items will go to specific persons. If you have any specific wishes regarding a particular piece of property, your will is the appropriate place for them. For example, you might want your daughter to have your house when you die, but you do not want her husband to own it, since he could sell it out of the family. If you gave the house to her outright, she could give it to her husband or leave it to him in her will, thereby frustrating your desire to keep the house in the family. One way to avoid this situation is to state: “I give my house to my daughter Kate for her use during her life, and when she dies, the house is to go to my grandson Jim, or if he is not then alive, to my grandson, John.” Under this will, Kate has the right to use the house during her life, but she could not sell it without Jim’s and John’s permission.

5. You can name a guardian. If you and your spouse both die before any one of your children has reached the age of majority, then that child will have to have a guardian. The guardian sees that your minor child is fed, clothed, housed, and educated. The money for these items comes from the guardian of the child’s property. The guardian of the property holds the property that your child owns or property that you left your child under your will. The guardian of the property and the guardian of the child can be the same individual. Since these people have a tremendous responsibility with respect to your child and his or her property, you should think carefully about whom you want to nominate in your will. If you pick a married couple, you should be sure to state what you want to happen if they get a divorce of if one of them dies. It is always wise to specify alternate guardians in your will.

As a lesbian or gay parent, you may wish to consider appointing your partner to act as your child’s guardian in the event of your death.

6. You can name your Personal Representative. In your will, you name the person who carries your estate through probate. That person is called your Personal Representative, or executor. Your Personal Representative controls your property and has to deal closely over a long period of time with your spouse and heirs, so the selection is a very important one. A will give you a direct say as to who is going to administer your estate; without a will, the probate court looks at a list of people from within as well as outside your family.

7. If loyal friends, employees, and distant relatives are to be remembered, a will is necessary.

8. You can waive a bond for your executor and your child’s guardian. Your executor will be holding and administering your money and property during probate. The guardian will hold and administer your child’s money and property until the child reaches the age of majority. A bond may be required as a form of insurance that provides the if your executor or guardian runs off with your or your child’s property, the bonding company will pay. A bond is paid out of your estate or your child’s property. If you have faith in the persons you name, you can provide in your will that they serve without bond, and thereby save that expense.

9. Funeral and burial instructions. A will is the traditional and appropriate place for funeral and burial directions. Even if you keep your will in a safety deposit box, your executor or a family member can get it out right after your death to read these directions.

10. You can donate your body. If you want to leave your body, or part of your body, to a foundation or a university, you may accomplish this through your will.

11. A will can help plan your affairs even if you hold property jointly with your spouse. Some people assume they do not need a will if they hold property jointly. This may lead to unexpected results.

• First, check titles to be sure that they say “joint tenants with right of survivorship,” or “tenants by the entirety.” If
  they do not, then if you die your spouse will not automatically take ownership. A description of “husband and
  wife,” without the magic words above, creates a tenancy in common, not a tenancy with right of survivorship.
• Second, is all of your property held with right of survivorship? Household furniture, jewelry, clothing and
  personal effects are not usually held in joint names.
• Third, it can be problematic when both spouses neglect to make wills. When the surviving spouse dies, there are no more tenants with right of survivorship then, and so the property does down the surviving spouse’s intestacy line. For example, if the deed to the home reads, “John and Mary as tenants by the entirety,” Mary gets the whole house when John dies. When Mary dies, the house goes down her intestacy line. If Mary re-married, her new husband gets his intestacy share. If Mary did not remarry and has no issue, that means her relatives take the house. John’s relatives get nothing. Since it is not possible to know which spouse will die
  first, we cannot tell whose relatives are going to get the house.

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Executing a Will

The statutory requirements for a will in Colorado are simple:

1) the will must be in writing,

2) the testator must sign the will, or direct someone to sign for the testator in his or her presence, and

3) two other persons must witness the testator’s signing in the presence of the testator.

Colorado also recognizes the validity of a Holographic will. This is a will, whether or not witnessed, that does not comply with the statute but is valid because it is signed and the material provisions are in the handwriting of the testator. C.R.S. §15-11-502(2).

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Capacity to Make a Will

In order to make a will, you must be legally capable of doing so. You must also be eighteen years of age before you can make your will.

Meeting the “sound mind” requirement means that you must be physically and mentally capable of understanding the nature and importance of the document you are preparing and signing. The following conditions can affect the validity of your will:

• being under the influence of drugs or alcohol
• having a physical handicap that affects your reasoning abilities or impairs your ability to think
• being declared mentally incompetent by a court
• being physically paralyzed and unable to communicate your instructions

A person has testamentary capacity if he or she is an “individual eighteen or more years of age who is of sound mind.” C.R.S. § 15-11-501.

The Colorado courts state that testamentary capacity consists of “mentality and memory sufficient to understand intelligently the nature and purpose of the transaction, to comprehend generally the nature and extent of property to be disposed of, to remember who are the natural objects of the testator’s bounty, and to understand the nature and effect of the desired disposition. Columbia Sav. And Loan Ass’n v. Carpenter, 521 P.2d 1299 (Colo.App. 1974)
 

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Witnessing the Will

Colorado requires that a will be witnessed by at least two disinterested persons. The witnesses, like the testator, must be of sound mind and be at least eighteen years old.

At the same time, a witness should not be someone who stands to benefit under the terms of the will because of the inherent conflict of interest involved. However, a witness is not disqualified in Colorado by virtue of his or her financial interest in or under the will. C.R.S. § 15-11-505.

The witnesses of your will should be clearly identified in the will itself. In addition to their signatures, their printed names and addresses should be listed.

To ensure the authenticity of the will’s content’s, Kurtz & Peckham numbers the pages consecutively and requires the testator and witnesses to initial each of the pages. This prevents pages or provisions from being added after the fact.


 

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Choosing your Personal Representative

In selecting a personal representative, you should consider the following:

1) Will he or she be available, responsible, and competent at the time your death is most likely to occur?

2) Is he or she qualified by training or experience to handle the affairs of your estate?

3) Is he or she likely to be well received by your beneficiaries?

4) Is he or she financially responsible so that he or she can be held liable for breach of trust?

5) Is he or she competent to keep books and records, prepare reports, etc.?

It is best to find a person experienced, qualified, and trustworthy and then to authorize the person to serve without bond. Sometimes it is desirable to appoint a corporation.

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Where to Keep Your Will

You should put the original executed copy of your will in a safe place. Do not keep it at your house. If your house should burn up, then your will is gone, too. You can put the original in a safety deposit box, or leave it at your attorney’s office, or store it at a trust company. You can take copies home with you for your records.

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Reviewing Your Will

You should consider updating your estate documents when major life events occur.

You should review your will whenever there is a major change in family circumstances, such as marriage, divorce, birth, adoption, or death. You should also review it whenever there is a major change in your assets. In any case, you should review your will every three to five years to make sure it still says what you want it to say.

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Revoking and Changing Your Will

Any change to a will must be executed with the same procedures as were followed for the original will. A simple line through a name or the addition of a figure is not legal without those procedures. The only proper way to change your will is by writing a “codicil,” a short amendment to your will. A codicil is frequently used to:

1) increase or decrease a gift to a devisee

2) to make a gift to a person not mentioned in the will

3) to name a new Personal Representative, guardian, or fiduciary where the previous one has died, etc.

You should have a lawyer assist you in preparing a codicil and supervising its execution. It is common to provide in the codicil that all provisions of the will not affected by the codicil are ratified.

Where a major revision is desired, it is usually better to draft a new will and revoke the previous one. If you decide to simply make a new will, the new will should state expressly that it revokes the prior will.

Revoking previously made wills is vital if you are going to make any changes to your will. If multiple documents exist, those examining your will do not know which instructions to follow. The legal requirement to revoke all previously made wills was developed to avoid this confusion.

There are two ways to revoke your entire will. The first is to simply write a new will and provide that the new will expressly revokes all prior wills. This is the safest method. The second way is to destroy (burn, tear, cancel) the will. Destroying your will can lead to problems if there is controversy about whether you intended to destroy it at the time you committed the act of destruction. In order to avoid questions that arise when a will is physically destroyed, it is best to simply revoke it by a subsequent written will.

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