HOLCOMB LAW FIRM, P.C.

I. Introduction
After your legal debts are paid, your Will is the legal document that directs to whom your assets are distributed. In your Will, you can name a guardian for your minor children, and you can determine who you want as your personal representative or executor to handle the administration of your estate in the probate Court process.

Both husband and wife should have a Will or Trust, even when all significant assets are held in joint tenancy. Under your Will, you can select who is to receive you estate, or place your assets in Trust for your family. Without a Will or Trust, Colorado law dictates how your assets will be distributed.

II. No Will? Then Colorado statutory law controls where your assets go.
If you don’t have a Will, your assets will be divided under Colorado’s intestacy laws. Division under intestacy laws can be complex. Any special provisions that you may have desired will be disregarded, and your estate will be divided only according to law.

III. How does probate work?
Your personal representative will perform the administration of your estate. If you do not have a Will, then the Court will appoint a personal representative. Likewise, if you do not appoint a guardian for your minor children in your Will, or if you do not leave a Will, then the Court will appoint a guardian. That person may not be who you would have appointed.

After your death, you assets will either pass to the beneficiaries you named in your Will, pass to the person you designated as beneficiary by contract, pass to your heirs under Colorado law, or pass to surviving joint tenancy survivors.

Probate assets are generally anything held only in your name, and assets without a title. Probate assets are passed to your beneficiaries in one of three ways. The first way is by Colorado’s Small Estate Affidavit. If the value of the estate is small, your heir can fill out an affidavit. The second way is by informal probate administration. This means that your estate is not Court-supervised. Certain forms are prepared and filed with the Court. The personal representative is then required to pay bills and taxes. After paying your creditors, the estate is then distributed to your beneficiaries. The third way is by Court supervised administration. This typically happens when there is a dispute among the beneficiaries of your estate. The informal probate process typically takes anywhere from six to eighteen months.

IV. What if my circumstances have changed, do I have to execute a new Will?
Not necessarily. Depending upon the simplicity of your change, you may change your Will with what is called a Codicil. Never change you Will by simply writing or striking out provisions on the original Will itself.

Typically, I utilize a Memorandum of Personal property which allows you some flexibility on who you want to receive certain personal property. What this does for you is save you the trouble of writing a new Will or new Codicil. The Memorandum of Personal property can be rewritten at any time.

V. What else does a Will do, and aren’t joint tenancy arrangements just as effective?
Besides determining to whom your assets will be distributed, you can name your personal representative, guardian for your minor children, and in cases where a testamentary trust is established, you may appoint a trustee to manage the assets of your estate for the long-term financial security of your family.

A well drafted Will can often reduce the time and expense of administering an estate. While joint tenancy can avoid probate of certain assets, you should carefully consider all of the ramifications before selecting this as your default estate plan. Placing property in joint tenancy may disinherit children because property held in joint tenancy passes to the survivor regardless of are the heirs of your estate.
In large estates, joint tenancy between spouses can actually result in more taxes. To prevent this result, tax planning trusts are utilized to ensure that certain property is not taxed in the surviving spouse’s estate.

VI. I’m recently divorced or married, now what happens?
If you are divorced after writing your Will, your ex-spouse will not inherit under your prior Will. If you remarry after writing your Will, your new spouse will automatically receive the same share of your estate as under Colorado’s intestacy laws, unless your new spouse was provided for outside of your Will.