Do You Need a Will in Colorado? How to Draft a Will if You Do
I’ve had a general law practice for over 28 years and have drafted many wills as well as done probate cases based on good and bad wills. Having seen the good, the bad and the ugly, I can give you some basics so that you can decide if you need a will and if you do, what it should cover.
Do You Need A Will?
Really, the first question is whether you need a will at all. In Colorado, if your estate is under $64,000 and doesn’t include real estate, an heir can prepare an affidavit as to your property and you don’t have to have a will. Of course, a will would allow you to name who you want to inherit as well as name who should carry out tasks like closing out your accounts and prepare the affidavit. If you have real estate that doesn’t automatically go to another owner, or if you have assets over $64,000, if you die intestate (without a will), a judge will decide who inherits your property, based on a chart of family relationships that may or may not result in what you would want. It’s far better for you to decide who you want to inherit and who will act for you since it eliminates a disastrous situation where there is delay, and most likely, bad results. If you decide to do a will, it’s best to to have the documents that relate to it, which are described below, since they protect you while you live and to help your heirs after you pass.
Internet Wills – The Pros and Cons
On the plus side, Internet wills offer a cheap or free way to do wills and related documents and they are a fairly quickly way to just get the documents done at home. On the negative side, they often result in wills that judges don’t understand or don’t cover important issues. This is because the software asks basic questions that would tend to fit the average person but doesn’t offer much explanation about legal terms.
Explanation of Key Legal Terms
For example, I did a probate case where the deceased didn’t understand the questions and filled out a will that no one understood, including his kids. Judges expect to see certain terms, so many online terms use them because they’re traditional and expected but they often don’t do a good job of explaining what those terms mean. For example, a personal representative is the person in charge of carrying out our wishes in the will, which means they need to fill out forms, file them in court, pay creditors and beneficiaries and other critical tasks. If you understand that, you can better pick a person who would be good at paperwork, accounting and understands your priorities.
Generic Wills vs. Wills That Cover Your Important Issues and Priorities
The other issue is that software makes assumptions based on what they view as an average person so it doesn’t cover individual situations and preferences. For example, couples who aren’t married might wish to do certain things for one another but since they’re not married, the software treats the significant other like a generic friend. And not all software offers the related documents that will protect you and your heirs. An advanced medical directive and medical durable power of attorney are particularly important since it allows someone you choose to speak for you rather than having hospitals and doctors do what they can to keep you alive even in situations where you might strongly prefer to refuse treatment. For example, a ninety-five year old who is terminal or a bicyclist with massive internal damage, might not want to endure a series of surgeries that won’t help them regain consciousness, much less have quality of life. If they have the right documents, the person they choose will get a call from the doctor, can get all the information they need and make the decisions according to their wishes. Without these documents, doctors aren’t allowed to provide your health information or to accept any decisions. In fact, it’s medical malpractice and a violation of privacy if they were to do so, even if your spouse, significant other or a close relative is trying to help you.
Issues To Cover in a Will
If you decide you need a will, there are a few basics that need to be covered. Your will must name a personal representative to carry out the instructions in your will. That person should be someone who is good with money, trustworthy and available. And you should pick a successor and perhaps a back up for them because your first choice might be unable to help. Your will needs to name all of your beneficiaries, their relationship to you, their contact information and what you want them to receive. And you need to do all of this in a way that won’t be outdated in a few years. For example, if you name your elderly cousin as a beneficiary, but you should also state that if a beneficiary dies, whether the other beneficiaries share their inheritance or someone else would receive their gift. And if you don’t have many beneficiaries, think about friends or charitable causes. Example: “I want my sisters, Jane Smith, Dottie Smith and Clara Smith to share equally in any investments I own. If any of them die before me, I want the survivors to share equally and if none of them survive, this gift will go to the American Humane Society.”
Likewise, you need to direct your Personal Representative is to pay necessary burial expenses, taxes, and other expenses as well as debts prior to disbursing the remaining estate to beneficiaries.
While we’re at it, don’t make the mistake of being overly specific. For example, if your Will states that your 2015 Subaru is to go to your daughter, that is not helpful since your car hopefully won’t last as long as you will. To make your will last longer, you could state that you want your daughter to inherit any vehicles titled in your name. If you want to be more specific then count on updating your will each time you get a new car. You should have an attachment that lists where each asset is located and important details such as the name of your bank, account numbers, life insurance company, policy number, etc. Help your Personal Representative by providing this information, updating it regularly and printing it out so a copy is with your will. Most attorneys who prepare wills have a document they provide as part of their service to make things easier for a personal representative.
Are you disinheriting anyone? If there is a close relative that you intend to disinherit, you can avoid litigation by mentioning it in the will. It would too bad if part of your estate got tied up in lawyer fees because someone felt they had simply been missed. And by the way, in Colorado, you cannot disinherit a spouse. If you want to, you really should talk with an attorney since there is no point in creating a will that will be ignored.
A last point to consider is what will become of your pets and plants. Some people think this is silly or that it is a given. If you have living things in your care, it is neither. Do not assume that upset people dealing with your death are going to adopt your cat or care for your plants. You need to carefully consider who would be the best person (and successor if they can’t do it) to care for any pets you might have at the time of your death and likewise, your plants. My view is that if you cared enough to get them in the first place, it would be very sad if your pets wind up at the animal shelter and your plants died because there wasn’t a plan in place for them. And while you’re at it, you should allocate some money for the care of pets since there will be the expense of feeding them and vet care that can be a burden for some people who would otherwise be good caretakers.
Other Important Related Documents — Are These Included?
Your will needs to talk about funeral arrangements if they haven’t been already made, and again, be specific. I do a separate document called a Burial Memorandum so that I can be quite specific rather than just put a short paragraph in the Will. Otherwise, your survivors are likely to spend money that you would prefer go to other purposes, on things you would never have wanted. You’d be absolutely amazed at what some funeral homes can talk grieving relatives into. By the way, if you have pre-paid your funeral arrangements, this would be a really good place to make note of it or the expense might well be duplicated.
You should also have what used to be called a living will which is now called an advanced medical directive (which spells out what you want) and durable medical power of attorney (which gives your health care agent the power to speak on your behalf). These documents taken together state what your wishes are in the event you are unconscious and unable to speak for yourself, provide guidance as to how long you would want to be kept alive and under what circumstances and empower people you trust to speak on your behalf and make health care decisions. In my view, these documents are as important as the will itself because most people do not want to be kept alive indefinitely at vast expense to their relatives unless they will recover. And be certain to mention at least two decision makers with a back-up, because if there is a problem you cannot count on your first choice being in town and available. I should add that people often fail to do these documents because they assume if they have a health crisis it will be long-term and when they are older so that they have time to plan. However, a car accident, sports accident, or sudden short-term illness often put people into a short or long-term health crisis where they need help.
You should also mention in your will if you intend to have a personal property memorandum. This is one of the related documents I mentioned earlier and lists what you want done with personal items like collections, furniture, art, etc… The will should also state that if one isn’t located within 90 days of death it will be presumed to not exist. These memorandums are useful because you can list special items you want friends and relatives to have. They are also useful since people get a little crazy when someone dies. You don’t want your personal representative fending off people who insist that they are supposed to get the living room rug. Often the personal representative is also a primary beneficiary and the last thing they need is someone berating them about some item that you may never have offered them. To keep things fair and reduce stress on your personal representative, have a memorandum even if it is short. Also, it happens to be a very nice gesture to those of your friends and relatives that you would like to give something to but haven’t given a monetary gift to (none of us are infinitely wealthy). Think about special things that should go to specific people in your life; that way, you will know those things will have a good home and that the beneficiary knows that you were thinking about them. It will also spare your personal representative from figuring out what to do with your large collection of some item that might be treasured by some but hard to sell or know what to do with.
Additionally, a regular power of attorney can be helpful because it complements your will. If you are unable to handle your affairs, it lets a trusted person step in (for example, if you are comatose, this person could file your taxes for you). It also helps during the period when the will is being probated in the event that something needs to happen (renewing house insurance, etc.). You can have a broad power of attorney document or one that is quite narrow. And it can be a useful document for occasions when you might be out of the country or otherwise unable to take care of your affairs. It’s critical to only nominate someone who is absolutely trustworthy and has sound judgment.
When You’re Done Drafting
Be sure you sign your will in front of a notary and two witnesses. Truth be known, in Colorado you could get away with a handwritten will that has no notarization or witnesses but you’d be pushing it. If anyone disliked the will, it would set things up for a wills contest. It’s better to do it properly. Some banks will usually provide a notary and drag in a teller or two for witnesses. If an attorney is assisting you with these documents, they will handle witnesses, signatures and notarizations. Once the documents are done, you need to be sure the documents are somewhere they can be easily found by your personal representative and that they are safely stored.
Assistance Beyond the Internet
If you find all of this rather disheartening, you can have a lawyer draft all the documents for you. Most attorneys will do this flat fee and can update your will as needed at a reasonable cost since it is already on their computer. Having an attorney who will ask questions, get to know you and make sure that the documents really meet your needs is a better option than hoping you understood the questions and legal phrases on an internet program. It’s also a favor to your heirs, attorneys and courts who find it difficult to try and interpret what someone meant who did an internet will and misunderstood some of the provisions.
If you have specialized questions, it is best to schedule a consult with an attorney to be sure that you get answers that are tailored for your situation. Many attorneys have free consults to answer questions, as my office does. This is particularly important if you are not married to your partner, are single or have a complicated personal situation or one beyond a highly generic situation. An attorney like myself can do a reasonably priced will package for wills under $11.4 million for an individual or $22.8 million because there aren’t federal tax consequences. Beyond that you would need an attorney specializing in bigger estates to deal with the tax planning.