Wills
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will is a legal document that states how an individual wishes to distribute their assets after death. In order for a will to be valid in the state of Colorado, it must be in writing, signed by the creator of the will (testator), and it must be witnessed by at least two individuals who are not beneficiaries of the will. The main function of a will is to handle the distribution of assets and name an executor who will manage the estate.
Benefits of having a will
There are a number of benefits to having a will. A will allows an individual to clearly state what assets will be distributed to certain beneficiaries and family members. Having this information clearly stated in a will often helps prevent disputes among the beneficiaries. It also ensures a smooth transition of assets like real estate and financial accounts to their rightful heirs.
Some of the additional key functions of a will include:
- Appointing a Guardian: A will also allows parents who have children under the age of 18 to appoint a legal guardian. It’s important for many families to know that their minor children will be taken care of by a trusted guardian. Without a will, the court will decide who is responsible for caring for the children.
- Naming an Executor: The grantor, or the person creating the will, is able to name a personal representative who will be responsible for managing their estate after they pass. The executor of a will is responsible for carrying out a number of different tasks, like gathering the deceased’s assets, paying off their debts and taxes, and overseeing the distribution of assets.
- Minimizing Family Disputes: When a will provides clear instructions about how an individual wants their estate to be managed, it helps reduce the amount of disputes within the family. Family members are often emotional after the passing of a loved one, and disputes about assets and family heirlooms can amplify the tension and stress.
Working with a trusted estate planning attorney to establish a will also offers peace of mind. Denver residents can rest assured knowing that their estate will be handled as they intend to be without the worry of any legal troubles. Our team is here to simplify the estate administration process, saving time and money for you and your beneficiaries.
Beneficiaries may feel that a will is either unfair or inaccurate and choose to contest it. Common reasons for contesting a will include:
- Lack of capacity by the testator: If the testator did not possess the mental capacity to understand the implications of their will, it is common for the will to be contested. It is necessary that the creator of the will fully understand their actions and the implications of their will.
- Undue Influence: If it is believed that the testator was influenced by an outside party to change their will in a particular way, this could lead to a will contest. Those who contest the will may claim that the testator was put under increased pressure to alter the will in a way that does not reflect their true intentions. Wills are often contested for undue influence if one beneficiary is disproportionately favored or if the testator is particularly vulnerable.
- Fraud: A will may be contested due to fraud if it is believed that the testator was either deceived into signing, was given false information while creating the will, or if a signature was forged.
- Improper execution: A will is required to be signed by the testator with two other parties according to Colorado laws, and it is also required to be properly notarized. A will can be challenged if proper execution was not undertaken.
- Errors in the will: The will can be challenged in case the testator has made an error or was under misapprehension as to the facts. Beneficiaries can also contest if there are other existing wills with conflicting terms. Most of the time, in such cases, the most recently drafted will will be upheld over the others.
- Revocation: The will may be contested if it is discovered that the testator revoked the will before death. This occurs where the testator prepares a new will, meaning to replace the earlier one, physically destroys the existing will, or makes the written statement of revocation of the will.
Without a will, the state may intervene and decide how to distribute an individual’s assets after they die. This may lead to disputes among family members or beneficiaries and also may not be in the best interest of the deceased.
Wills are fairly flexible and simple to amend if circumstances change. If you are in the process of estate planning and are in need of legal support, we strongly recommend that you reach out to the experienced team of estate planning attorneys at Evans Case. We will ensure that your needs and wishes are met and help you plan for the future.
Trusts
A trust differs from a will in that it typically does not require
probate and allows an individual to manage and distribute their assets while they are still alive. Trusts are designed to allow a third party trustee to manage the assets on the beneficiaries’ behalf. There are a number of different reasons why trusts can prove beneficial, including:
Avoiding Probate
Probate is the process of authenticating a person's will after death and transferring their property. It is slow, expensive, and public. One big reason people use a trust is that the property in the trust completely avoids probate. The point is that, unlike under a will, the beneficiaries can get their inheritance more quickly and outside the court system. In addition, avoidance of probate avoids attorney fees and administrative costs, thus saving more of the value of the estate for the beneficiaries.
Wills are public documents after the probate process has been carried out. On the other hand, a trust provides a level of privacy because the terms of a trust, such as identity of the beneficiaries and nature and value of the assets, remain confidential. This is particularly useful to those who want to keep the details of their estate and the inheritances of their beneficiaries as private as possible. This privacy can prevent disputes among relatives or even with any potential challengers from outside who could contest the way the assets have been divided.
Protection and Management of Assets
Trusts offer protection of assets from creditors, lawsuits, or other claims that may be presently existing or which may arise. This is very true for the irrevocable trust, where control over the assets is given up by the grantor to protect them against lawsuits judgment dictates against the grantor. Moreover, the terms of a trust can provide for the ongoing management of assets, which would come in handy if the beneficiaries are minors or have special needs, or if they just so happen to be inexperienced in handling finances. The named trustee can manage the trust assets according to the grantor's wishes, which are to be conserved and put to good use over time.
Distribution Flexibility
Trusts provide immense flexibility on how and when their assets are distributed to the beneficiaries. For instance, the grantor can provide that the beneficiaries shall receive their inheritance at specific ages, upon reaching certain stages of life, or upon the happening of certain conditions, such as after completing higher education. This flexibility enables the grantor to ensure that the beneficiaries are ready and capable of managing their inheritance responsibly. Trusts can also be applied in cases where continued periodic support—like regular payments or allowances—is preferred to distribution in one bulk, more so if such a beneficiary is not financially savvy or requires support for a period of time.
The inclusion of such benefits can make trusts a flexible and powerful tool in estate planning, ensuring peace of mind, asset protection, and certainty that the wishes of the grantor are regarded and carried out with efficiency and in private.
Unlike wills, which become public records, trusts allow for a much more private distribution of assets. They offer several advantages that may be useful depending on the circumstances of your estate. There are multiple different types of trusts, and an estate planning attorney will be able to offer assistance in choosing the one that is best for you. An attorney will also be able to help you draft legally sound documents and assist in properly transferring assets into the trust. Some of the different kinds of trusts include:
- Revocable Trusts: A revocable trust is flexible and can be altered by the grantor during their lifetime. One of the main advantages of a revocable trust often helps avoid probate after death.
- Irrevocable Trusts: An irrevocable trust is not able to be amended without the consent of the beneficiaries. The main advantage of an irrevocable trust is that they protect assets and allow for potential tax benefits.
- Special Needs Trust: A special needs trust provides support for beneficiaries with disabilities while allowing them to maintain their eligibility for government benefits like Medicaid and SSI.
- Charitable Trusts: A charitable trust is an irrevocable trust created to benefit a charitable organization. A big advantage of these trusts is that they often offer generous tax benefits for the grantor.
- Life Insurance Trusts: A life insurance trust helps manage life insurance proceeds that often go toward paying estate taxes. It is an irrevocable trust and cannot be amended.
Revocable trusts offer flexibility and control to the grantor but do not provide great asset protection or tax benefits. Irrevocable trusts, on the other hand, provide substantial asset protection and tax benefits, though they require the grantor to give up control over their assets. An estate planning attorney will be able to provide valuable insight into what kind of trust is best for your needs. The best kind of trust for you is dependent on your goals and wishes.
Living Wills and Health Care Directives
A living will is a document that states an individual's preferences for healthcare and medical treatment if they are unable to make a decision themselves. If they are unable to clearly communicate their wishes, a living will ensures that their wishes are respected. Living wills are especially useful in situations where an individual is unable to advocate for themselves, as they provide a clear outline for their preferred medical treatments. It also relieves family and loved ones of having to make any difficult decisions on their behalf.
Some of the important decisions that a living will can help Denver residents clarify include:
- Life-Sustaining Treatment: Many individuals will specify whether they want to receive life-sustaining treatment in end-of-life situations in their living wills. This addresses their preferences on certain measures like CPR, ventilation, or feeding tubes. For those who might prefer to avoid prolonged suffering, a living will allows you to state your wishes.
- Organ Donation: Some living wills may include preferences regarding organ and tissue donation. Individuals can specify their willingness to donate for transplantation or research purposes.
- Pain Management: Living wills also allow individuals to outline their wishes regarding the use of pain-relieving medications.
For more information about how the estate planning attorneys at Evans Case can assist in creating a living will that meets your needs, contact us today.
Health Care Directives
Aside from a living will, other health care directives include:
Durable Medical Power of Attorney: With a Durable Medical Power of Attorney (Medical POA), you can appoint another trustworthy individual to make important medical decisions in the event of incapacitation. The individual appointed should be somebody who understands your personal and medical wishes and who you trust to choose treatment, consent to procedures, and communicate with health care providers on your behalf.
HIPAA Authorization and Release Forms: This form grants permission to have access to the individual's medical information to the persons indicated therein for execution of informed decisions. With a HIPAA release form, you can choose specifically who has access to your medical information. Oftentimes, Denver residents designate their Medical POA agent, close family members, and other trusted loved ones to be involved in their healthcare decisions. These designated individuals will have the ability to ask your healthcare providers questions, review your medical records, and stay up-to-date with your condition.
We strongly urge you to consult with one of our estate planning attorneys when creating a Medical POA or a HIPAA Authorization. We will be able to make sure that your health care directives are legally sound and provide you with personalized care that meets your values and preferences. If you are looking to create or update an existing healthcare directive, Evans Case can help guide you through the process with confidence.
Power of Attorney
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Power of Attorney is a legal document wherein one person, termed the "agent" or "attorney-in-fact," is granted authority to act on behalf of another, termed the "principal." The extent of that authority will depend on the type of Power of Attorney and any specific limitations described within the document. There are several types of POAs, including:
General Power of Attorney: The general power of attorney grants powers to the agent, or person acting as an agent on behalf of the principal, with respect to his/her financial and legal matters. It is mostly used during a specific period or for some certain purpose; it becomes invalid if the principal becomes incapacitated.
Durable Power of Attorney: Durable power of attorney remains effective even if the principal is declared incompetent; an agent will be unrestricted in continuing the management of the principal's affairs. This is particularly useful for long-term planning.
Limited or Special Power of Attorney: The agent is appointed to do specific tasks or transactions, like selling a property or running a business. It is limited in its scope and duration.
Medical or Healthcare Power of Attorney: This empowers the agent to make decisions regarding the principal's health in case they are unable to do so. It is usually combined with a living will or other healthcare directives.
There are a number of reasons having a Power of Attorney is important:
Assuring decisions are made by a person you trust: A power of attorney allows you to designate somebody you trust enough to make decisions on your behalf, thus ensuring that your financial, legal, and healthcare matters are managed in accordance with your wishes.
Avoiding Court-Appointed Guardianship: If you do not have a power of attorney, then in the event that you become incapacitated, it will be left to the court's discretion to appoint a guardian or conservator who will take care of your matters. This is a time-consuming and expensive process, and the appointed guardian may be a person you would not have chosen for this position.
Flexibility and Control: A power of attorney can be drafted to grant as much or as little authority as desired; therefore, you hold the power of determining the powers and limitations granted to and imposed upon the agent.
Choosing the Right Agent
Choosing the right person to act on your behalf in your Power of Attorney is an important decision. Some things to consider before choosing someone may include:
Trustworthiness: It is strongly encouraged that you choose somebody that you can trust to act in your best interests at all times and who you know will honor your wishes. .
Financial Acumen: In the case of financial POAs, it would be somebody who is financially savvy and in a position to manage your assets responsibly.
Willingness and Availability: Your agent should be willing and able to take on these responsibilities. They will have some incredibly important decisions to consider and make and you should only choose someone who is fully willing to take on the role.
Knowledge of Your Values and Wishes: Your agent should be aware of your preferences, values, and long-term goals so that they can make informed decisions based on your desires.
An attorney's involvement in the drafting process will ensure that the POA documents are legally compliant and truly reflect your intentions. They can also advise about choosing an appropriate agent and can also explain the responsibilities and legal implications that come with being an agent.
Denver Estate Litigation
Our attorneys are also available to provide support when disputes arise of the administration of your estate. Careful estate planning can help prevent conflicts, though conflicts still occur. When significant assets are at stake and the terms of a will are unclear, family members and beneficiaries may have disagreements that end in litigation. Estate litigation includes a number of different issues like contested wills, disputes about trusts, executor duties, and beneficiary disputes.
- Contested Wills: Beneficiaries challenging the validity of a will is extremely common in estate litigation. Whether someone believes that a will was created without proper mental capacity or was established under undue influence, they may choose to contest the will. Proving improper execution or undue influence can be challenging and often requires substantial evidence.
- Trust Disputes: Litigation may occur when beneficiaries believe that the terms of a trust are not being honored. They may also believe that the trustee is mismanaging the trust. Disputes revolving around trusts are often regarding issues like asset distribution, a breach of fiduciary duty, or a lack of transparency and communication during administration.
- Executor and Trustee Misconduct: Executors and trustees have an obligation to manage and distribute the estate’s assets in the best interest of the deceased. If an executor or trustee breaches their fiduciary duty through negligence, fraud, or self-dealing, they may face legal action from other beneficiaries who have been disadvantaged. Beneficiaries may look to recover lost assets and replace the executor or trustee.
- Guardianship Disputes: It is not uncommon for disputes about guardianship to arise after the death of a loved one. When it comes to minors or incapacitated adults, family members may choose to challenge the guardianship appointment in order to make sure that their loved ones are appropriately taken care of and their needs are met. Interested parties may choose to contest the appointment of a guardian if they feel that another person would be better suited to provide care and financial support for the affected individual.
- Beneficiary Disputes: Beneficiaries may have disagreements over the distribution of assets. They may argue the interpretation of certain terms in the will or trust that can lead to litigation.
- Creditor Claims: Creditors are able to make claims against an estate for any unpaid debts. These claims often lead to disputes, and litigation is needed to determine their validity and fairly distribute assets.
Litigation can be a challenging and stressful process, especially after dealing with the loss of a family member or loved one. However, it might be necessary to protect your rights and your family and ensure a fair distribution of the decedent’s assets. When the language in a will or trust is unclear, it can often lead to litigation, and an experienced estate planning attorney may be required to provide clarity and act in the best interest of the beneficiaries.
Our Denver attorneys are proud to offer representation to families and individuals facing disputes. Our goal is to reach a fair outcome for everyone involved and provide an amicable and stress-free experience for executors, trustees, beneficiaries, and all interested parties.
Contact Evans Case Today for Your Estate Planning Needs
Estate planning is a complex legal process that aims to ensure that your best wishes are met after your death. It is an essential step to making sure that your assets are properly distributed and ensures that your financial and health-related decisions are respected if you are unable to make them yourself. An estate planning attorney will be able to help you manage your estate and make sure that your best wishes are met. If you are beginning the estate planning process and are seeking legal support, do not hesitate to
contact our team of attorneys at Evans Case today. Come see why we are trusted to offer our estate planning expertise to clients all throughout the Denver area.
