Our Colorado lawyers help clients draft their Last Will and Testament and their entire estate plan. In this article, we discuss what a last will and testament is, and why you need one.
A Colorado will helps assure your assets go where you intend
Regardless of personal financial situation, every Colorado adult should have a will in place to help assure their assets are distributed according to their wishes after their death.
While it is possible to draft a will on your own, the prudent course of action is to contact a competent Colorado estate-planning lawyer to draft your will. By doing this, you ensure than your legal instrument achieves all your personal objectives for your property’s distribution. Writing your own will can save some money in the short run, but it can be extremely costly in the long term for your heirs.
Wills only handle your probate assets. Often, a will can be used in conjunction with a trust and become a “pour over” will. If you do not have a properly drafted will, the state will decide where your property goes. For more on wills versus trusts, click here.
A qualified estate planning attorney knows that no two wills are exactly the same. Armed with the knowledge gained through years of helping estate owners of all sizes create effective legal instruments, your attorney will take the steps necessary to help you achieve your estate planning goals.
What is intestacy?
If you die without a will, your estate is in what is known as “intestacy.” In this case, you are basically leaving your estate at the mercy of the state of Colorado, which will determine how your assets will be distributed among your heirs. In intestacy, your assets are distributed according to a set formula, which does not take into account your personal relationships or wishes. If you have no heirs or relatives, the state ultimately receives your assets – not your friends, not your partner and not your favorite charities.
Essentially, there are three types of property that are not governed by the laws of intestacy if you do not have a will:
- Property jointly held where one person has rights of survivorship
- Property held in a living trust
- Life insurance and retirement plan savings
A will deals only with property owned by you in your individual name without a beneficiary designation.
Why should I write a will in Colorado?
You benefit in a number of ways when you write a will in Colorado.
Leaving specific possessions to specific people. Having a properly executed will allows you to leave specific possessions to specific people. You can make sure your best friend gets your historic car, your niece inherits your heirloom ring, etc. None of this can happen without a will. Plus, if you die without a will, your children will all be treated equally, even if one child has special needs that require expensive long-term care. The best way to protect this child is to have a will in place.
Provide for a partner. A will allows you to provide for your partner if you are in an unmarried relationship. In this case, it is strongly advised that you also have your attorney write a cohabitation agreement to further safeguard your property and other financial decisions.
Guardianship of minor children. A will gives you a means to provide for the guardianship of your minor children. In this provision, make sure you have your attorney address what should happen if the couple you have named as guardians divorce or experience a death themselves. It is wise to name an alternate guardian as a backup.
Name an executor. A will is the ideal place to name an executor of your estate. Without this, probate will choose an executor from persons inside or outside the family. Also, by having a will you can waive the bond that is required as a form of insurance should your executor abscond with the money in your estate. If you know that your executor is trustworthy, you can specify that they should serve without bond and eliminate this expense.
Detail your final wishes. A will is an excellent place to detail how you wish your funeral and burial/cremation to be handled. You can also make provisions in a will for your body to be donated to science.
What is required in a Colorado will?
There are basically four requirements for Colorado wills:
- The will must be in writing.
- The testator (person making the will) must sign the will or direct someone to sign on his or her behalf in the presence of witnesses.
- Two disinterested persons (aka people who do not stand to benefit from the will) must witness the will in the presence of the testator. Note: Colorado recognizes holographic wills (wills that are entirely handwritten by the testator) if it can be proven that the will is entirely in the testator’s
- The testator must be at least 18 years of age and of sound mind and body (aka capable of understanding the instrument that has been executed).
Once your attorney creates a will for you, keep it in a safety deposit box or have your attorney keep it at his or her office. Never keep the will in your home where it may be destroyed by fire, flood or other natural disaster. If you wish, you can keep a backup copy of your will at home for your personal records.
How often should I revisit my will?
You should review your will with your lawyer every five years or when you have had a major life change such as a divorce or remarriage. Also, if you have just moved to Colorado or moved out of state, it is a good idea to have the document reviewed by your attorney to ensure that it meets your current state’s requirements.
What if I want to change my will?
You can change your will any time. If you wish to have it amended, your lawyer will write a codicil (an amendment or supplement to the will) which must be signed, dated and witnessed just like the original will. You can also revoke a previous will and write an entirely new one to replace the previous document.
A word of caution: Never under any circumstances cross out the terms of a will and handwrite in new instructions. Doing this can dramatically increase the court’s involvement in your estate after your death as it tries to sort out your true intent for your property.
If you need help writing your will, contact the estate planning lawyers at Robinson & Henry. We are well experienced in navigating the nuances of Colorado estate law and will help you create a will that achieves your financial goals and plans for your estate. Call 303-688-0944 for an assessment.