Wills, Trusts and Probate FAQs
It is inherently difficult to take action to address your own disability or death. My approach is to make the planning process as simple and stress-free as possible. If you need a will, power of attorney or other estate planning document, please call me.
A simple will, even one with a trust for children, is sufficient for over 90% of my clients, costing a small fraction of the living trusts peddled at seminars. A beneficiary deed and careful attention to your beneficiary designations will avoid probate without the use of a living trust. If you have attended a workshop or seminar using the probate scare to convince you (especially seniors) that you need a $4,000.00 living trust, please call me for a free second opinion. One call may save you literally thousands of dollars, and pages of documents you really don't need!
Even if you need a trust in your particular situation, my fees are less than a third of the cost of that charged by the seminar organizers, even for a revocable trust plan.
Do I need a Power of Attorney?
Every adult should have a medical and financial power of attorney. Without one, no other person can access your financial information or handle your finances, even if you need someone to help you. Your closest relatives are assumed to have the ability to make medical decisions, but considering the small cost of a power of attorney, it is best to make it clear who would make the decisions for you, and what your attitude toward end-of-life issues (pulling the plug).
If you are the parent of a child going off to college, it is critical to pack a valid power of attorney, and living will. I provide these documents to college students at a reduced charge because they are so important to have.
I think I would only need a simple will, am I right?
Most of my clients only require a "simple" will (meaning "simple" for attorneys to draft). Any will that does not contain a trust or an elaborate distribution scheme counts as a “simple” will in my office. A will does not become complex simply because a client wants to include a number of people as beneficiaries in the will. While a simple will is sufficient for most people, you must consult an attorney to determine if a simple will would fulfill your needs.
Can I make my own will?
Any will should be prepared by a capable attorney (for a reasonable charge). The cost of having a will prepared by an attorney is well worth it. Only an attorney can give you the assurance that will has been made in compliance with state laws and will accomplish your goals in a variety of circumstances. The laws of interpreting wills can be very technical. For this reason, there are many ways to innocently sabotage your plans in a will. Even Warren Burger, (former Chief Justice of the United States Supreme Court) wrote a will for himself that was quite lacking. Slight errors or conflicts in a will can cause serious legal problems or create unnecessary estate taxes. Because the point of having a will is security and certainty, consulting an attorney is critical.
Who usually needs a more complex will?
The most common type of client who needs more elaborate planning in a will, whether the client is single or married, is one who has minor children. I strongly recommend that parents include a minor's trust in their will in case the parent dies while the children are quite young. A minor's trust is used to entrust the parent's property (now the child's) to a suitable adult to manage and spend the money on the child's behalf until the child has reached an age of the client's choosing (21, 30, 35, etc.). I will work with clients to include any guidelines they wish to include in their instructions to the trustee that will affect how funds are to be spent for the children's benefit.
The second category of clients who may need a more complex will are married couples, whose combined net worth exceeds $11 million. In this case, more sophisticated tax planning may be advisable to help clients avoid substantial estate taxes. This is an area of law that is constantly changing. For current information, you should call my office.
Of course, any client may have a particular need for more extensive planning, based on that client's own circumstances and desires. Consulting with a capable attorney will ensure that your will meets your particular goals.
Do I need a Will?
Generally, every adult should have a Will. Having a will is the only to ensure that your property will go to the loved ones you choose. Also, having a will is the only way to specify who should be in charge of managing your estate after you die.
Nevertheless, there are a small number of people who may not need a will. However, to determine whether you are one of the few who do not need a will, you should consult an attorney. Remember, without charge or obligation, I will advise you whether you do need a will in your situation, and give you an up-front flat fee for your recommended documents.
Is a Living Trust better than a Will?
There is no single answer to this question in all circumstances. I would be pleased to review your personal situation to see if a Living Trust is something you should consider. In my opinion, Living Trusts are oversold by some attorneys and financial planners. Probate can be easily be avoided in most cases with simpler, less expensive planning. Also, Colorado´s estate administration (probate) system is usually quite simple and quick. Estate administration also has some benefits that are lost if probate is avoided. I do recommend that clients who own real estate outside of Colorado would benefit from a Living Trust in order to avoid probate in the other state. In short, whether a living trust is best for you is something you should discuss with a capable attorney.
I already have a will/trust. Do I need to update my documents?
Wills and trusts do not automatically grow stale with time. Their suitability changes with a client´s circumstances. I will always review a document, even if drafted by another attorney, without charge, to determine whether you need to update it. If the document continues to fulfill your estate plan, even with your changed circumstances, I will advise you that you do not need any changes.
An experienced attorney plans against reasonable contingencies in drafting a will. For example, if a client wants to leave all her property to A, a good attorney should ask: "What if A dies before you do? Then who should get the property?" Perhaps the client would choose a person "B" that the attorney would not have contemplated. In short, a good will should remain valid whether or not the primary beneficiary (here, "A") has died before the client.
Of course, other contingencies that once seemed remote may become more likely after an unexpected event. For example, if our hypothetical will planned for the death of A (in which case B should receive everything), and A does die, the client may wish to plan in the event that B should also unexpectedly die (e.g., by naming C and D as beneficiaries instead of E). In this case, updating the will is not an emergency, but may be a good idea.
What is the cost of getting a new Will?
I cannot provide fee estimates without discussing a client's particular situation. I can usually quote a fixed fee after a few minutes of a free telephone consultation, generally between $500 and $2,000 depending on whether my client is an individual or married couple, whether one or more trusts are, and whether other associated documents are needed (power of attorney, living will, beneficiary deed).
What is the cost of updating an existing Will?
I keep all Wills I have prepared for clients on my computer. To avoid any possible problems of interpretation, I recommend that when changes are needed, we reprint the whole will with the changes made and destroy the old will. For routine changes (changing a name, adding a name, etc.) I charge a nominal fee for this service. To significantly change wills, or update a will that I did not prepare, my regular and reasonable will preparation fee usually will apply.
What is a POD or beneficiary designation?
A "payable on death" ("POD") and beneficiary designation are generally the same concept. The owner of an account, by agreement with the institution that holds the account (e.g., a bank), can direct that the owners funds be paid to a particular person outside of probate upon the owner's death. A POD or beneficiary designation is different from joint tenancy because the beneficiary has no rights to the account until the owner has died. I will always review the property beneficiary designations with you when preparing your estate planning documents.
What is a Personal Representative?
A Personal Representative (known as "Executor" in some other states) is the person appointed in your Will to handle the settlement of your estate. He or she will be responsible for valuing assets, paying debts and administrative expenses, filing death tax and income tax returns when required, and handling distribution of your estate to your heirs. A Personal Representative does not need to have prior experience to be effective, but should be someone you trust to deal with things promptly and thoroughly. Note that it is permissible to name someone who lives in another state to serve as Personal Representative.
What happens if I do not have a Will?
Your property that is not directed to a particular person (through joint tenancy or a beneficiary designation) become part of your estate, whether or not you have a will. Without a will, the law attempts to guess where you wanted your property go, generally to your spouse or closest relative(s). Sometimes, the presumption made by law is accurate. However, in most cases, the presumption does not accurate predict your wishes. The only way to ensure that your property is given to the people you desire is with a will. A will also provides you a critical opportunity to name the person you want to run your estate when you die.
What is Joint Tenancy?
When property is owned by two people in "joint tenancy" (usually real estate or a financial account), both owners have equal rights to the property. However, when one joint tenant dies, the other joint tenant automatically becomes the sole owner of the property (outside of the probate process), who is said to have the "right of survivorship." Thus, if a joint tenant attempts to leave property to a third person in a will, this gift is ineffective due to the joint tenancy.
Joint tenancy should be distinguished from "tenancy in common." Tenants in common also have equal rights to the property while alive, but one tenant in common can leave his or her half to whomever the tenant desires; there is no right of survivorship.
Joint tenancy can be a useful method of avoiding probate, in certain circumstances. However, for many clients, especially those who should be concerned with estate taxes, placing property in joint tenancy can be a serious and expensive error. An experienced attorney, as part of the estate planning process, will review all your significant assets to determine whether the manner of ownership should be changed. This is why consulting a capable attorney is critical to review your entire situation, whether or not property will pass through probate.
What is a Trustee?
A Trustee is a person you appoint in your Will or Revocable Trust to manage, use and distribute assets for the benefit of another person or persons ("Beneficiary"), usually minors until they reach a certain age. This person will handle the investments as well as make decisions on any distributions made on behalf of the Beneficiary in accordance with the rules you set up in your Trust.
What is a Guardian?
A guardian is the person or persons you appoint in your Will to raise your children if you have died. A guardian is like a substitute parent.Can one person serve as my Personal Representative, Trustee, and Guardian?
Yes. It is common to appoint the same person to perform all functions. You can also select a different person for each function. For instance, a parent may have a sister that would be a fantastic guardian ("substitute parent") but may not be very responsible with money. Another relative or friend could be the Trustee and manage the money for the parent's child, distributing the money to the guardian for the child's benefit when needed.
The majority of probate proceedings in Colorado (technically called 'estate administration') are remarkably simple in procedure. In most cases, the total cost of estate administration is roughly $2,500, including court fees (approx. $250.00), publication fees ($100-250), and attorney's fees. Cost is similar regardless of whether the deceased person left a will.
In Colorado, if the property in the estate does not include real estate, and is worth less than an aggregate of $74,000 (based on death in 2022), the property may be transferred without a probate, using a short affidavit.
An ounce of prevention: An improper will is likely to create a more complex probate case. The lack of will may not increase the cost of estate administration, but may significantly jeopardize the estate plan that the client had in mind.
When cost-effective and desired by the client, I assist clients in avoiding probate proceedings at the will preparation stage, especially when planning for the death of one spouse. However, when probate is necessary or desirable, I am able to guide my clients through the entire process, usually within six months. In fact, most issues in probate are resolved during the early stage of the process.
An attorney's guidance in these cases is well worth the fee. A capable attorney will get the job done as soon as legally possible; and you will be sure it is done right. An experienced attorney will also be able to determine whether there are any unusual or complex legal issues in your particular case.
Remember: It only takes ONE mistake to create more problems for an attorney to clean up later. I strongly suggest that clients consult an attorney with any probate issue.