The best way to ensure your financial assets and property is handled according to your wishes is to have a will created. An estate plan created by an experienced Denver wills attorney can make the process of distributing property and dividing assets to your family members relatively stress-free and can eliminate unnecessary probate legal proceedings. Despite the clear benefits, experts estimate that approximately 70% of Americans do not have valid wills. While it is difficult for most people to think about their own mortality, many people find great comfort in putting their affairs in order.
Without a will, the property is distributed per Colorado state laws. In such cases, it is up to the probate judge or lawyer to decide how property is distributed. This process can take a great deal of time and money and can leave surviving family members feeling powerless. Instead of creating uncertainty in the future, let your final wishes be known by creating a well-written will. Read below for an overview of will requirements, limitations, and more.
There are no federal requirements when it comes to how wills are created and executed. Rather, it is up to states to regulate estate planning. For a will to be recognized as valid in Colorado, the testator — the person executing the will — must be at least 18 years of age. The will must be signed by the testator in the presence of at least two witnesses. Wills can be handwritten or typed, but oral wills are not valid. While handwritten wills are permitted in Colorado, typed wills are more defensible in a court of law.
Generally, a testator must sign his or her own will. If the testator is incapacitated or otherwise unable to sign the document, another person can sign on the testator’s behalf in the presence of witnesses. A valid will remains in force until legally revoked or replaced by an ensuing valid will. Amendments are sometimes allowed, but they should be drawn up by a Denver wills attorney familiar with the laws surrounding will revisions.
There are certain limitations placed on wills for the protection of everyone involved. Generally, a married testator cannot leave a surviving spouse out of the will without a valid pre-nuptial agreement. Colorado law dictates that non-dependent children can be disinherited, but this choice should be clearly stated in the document. Other limitations include:
• A will cannot be used to gift property held in possession of a living trust.
• A will cannot avoid probate. It simply serves as a guideline to the courts and your loved ones.
• A will cannot gift life insurance proceeds in a policy for which a beneficiary has already been named.
• A will cannot gift jointly titled assets.
• A will cannot gift money in a bank account that is classified as payable on death
Further, wills cannot gift assets that are not owned solely by the testator.
APPOINTING A REPRESENTATIVE
A valid will should appoint a personal representative, often referred to as an executor, to perform certain duties on behalf of the testator. The executor does not need to be a family member, but it should be a trusted individual who knows you well and agrees to the duty. Upon execution of the will, the representative must be advised of his or her duties. Upon the passing of the testator, the executor is responsible for:
• Consolidating and managing the estate’s assets
• Collecting any debts owed to the estate
• Selling assets to pay estate expenses or taxes
• Filing court and tax documents by the appropriate deadlines
The executor does not decide which property is distributed to which family members. Rather, the executor simply performs the duties as outlined in the will.
CHOOSING A GUARDIAN
If you have minor children, the main function of creating a will is to name a guardian to care for the children in case no surviving parent is alive to do so. It is up to the courts to appoint a guardian if no one is named in the will. While testators typically choose a family member to serve as a guardian, other individuals name a trusted friend. Guardians named in the will should agree to the role and the corresponding responsibilities before the execution of the will. Some testators also choose to outline financial provisions for the guardian in the will.
WHEN NO VALID WILL EXISTS
If a person dies and no valid will exists, survivors may face an expensive, stressful and time-consuming legal process. A probate court is left in charge of dividing up assets and distributing it to surviving relatives if no will is on record. The courts are also responsible for paying any estate debts following the legal guidelines.
The probate process can take anywhere from a few months to several years, depending on the size and complexity of the estate. If no immediate relatives are located, the estate assets are given to the local government.
JOINT WILLS vs. INDIVIDUAL WILLS
Some married couples may be tempted to save time and money by creating a joint will. However, any experienced Denver wills attorney will likely advise against this practice. Joint wills can create confusion if there is property involved that is not jointly held or if you and your spouse die years apart.
Separate wills are particularly important if you or your spouse have children from previous relationships. Property acquired during a previous marriage is also best addressed in separate wills. Be on the safe side and create an individual will that is clear and concise.
CONTACT DENVER WILLS ATTORNEY SHANNON O'KEEFE AT JOHNSON LAW GROUP
Contemplating your mortality is an unpleasant task. However, passing away without a will can be expensive and stressful for your surviving relatives. At Johnson Law Group
, we can help you and your family prepare for the future with an estate plan. Attorney Shannon O'Keefe is experienced in estate law and can provide you with the peace of mind you are seeking. Don’t delay any longer. Contact Johnson Law Group today at 720-463-4333 to schedule an appointment or to discuss your estate plan options.