Most people understand that, whether you have a substantial amount of money to pass down to your family members or not, a will is an important (generally necessary) document to have throughout your life. Your final wishes shouldn’t only be transcribed in your final years; rather, a will may include crucial information such as:
- Who gets custody of your children in the event of an accident
- How your assets are distributed after your death
- How your debts are resolved
- Who inherits your real estate/property after you have passed
...and anything else that may be important to you.
Dying without a will can be detrimental to your loved ones, as it leaves them vulnerable to the whims of the court, as well as state intestacy laws. The entire process can be exhausting for your surviving family members, causing them additional stress and grief in the wake of your death.
This article will discuss the consequences of dying without a will for those in all walks of life, as well as information regarding writing and contesting a will, filing probate, and more.
What is a will?
A last will and testament is a legal document that clearly stipulates a person’s last wishes for their assets, property, and loved ones. If you have children who are minors (under the age of 18), your will should also include who gets custody in the event of sudden death.
Basically, your will is your final opportunity for you to exercise legal control over all you hold dear. You can enjoy peace of mind knowing that important items, such as guardianship of your children and allocation of your money and other assets, have been properly handled.
When you draw up a will, you will name an executor who will be responsible for submitting the document to probate court for authentication. The executor of your will is going to oversee your remaining financial obligations, such as bills, taxes, and outstanding payments, as well as ensure that your assets and estate are passed on as specified.
How your assets are passed—going to probate
Probate involves the process of distributing your assets postmortem, and applies both to those who have a will and those who do not. Probate can be a lengthy and expensive process, with guidelines varying among states. In addition, the larger your estate (or the more assets you have), the more complicated the process can be.
In general, a few common tasks associated with probate include:
- Filing probate with the courts
- Passing out assets
- Notifying creditors.
Those who have a will automatically begin the probate process upon appointing an executor and having their will authenticated. Those who do not have a will are subject to the state naming an administrator on their behalf.
In the event that you do not have a will upon your passing, the state will likely appoint your spouse or adult child as your personal representative, unless the person who is elected does not want to be your administrator. Should this be the case, the court will appoint a public trustee for the role of asset distribution.
Before a representative is appointed to oversee the necessary tasks, your assets will be temporarily frozen.
One way to bypass probate altogether is to set up a revocable trust, which may allow your loved ones to avoid intestacy proceedings. This is largely due to the fact that if you have a trust, your assets and property will have already been distributed.
A few other circumstances that may make it possible to avoid probate are:
- Having a small estate
- Having joint property
- Having accounts that are payable-on-death
- Giving away assets before your death.
Intestate succession for Colorado
If a person dies without a will, it’s called dying “intestate.”
Intestate succession laws vary by state, but generally determine who gets what upon your death. Let’s take a closer look at Colorado’s laws, specifically, and what happens if you die without a will in a range of situations.
Intestate succession laws only affect assets included in your will. Any assets that do not go through your will are not affected by intestate succession laws. Examples may include:
- Assets or property covered by a living trust
- Life insurance proceeds
- Funds in any type of retirement savings account
- Payable-on-death bank accounts
- Property you own with someone else.
In addition, if you die without a will, your young children may receive much more money than you’d like them to, given their stage of life. It’s probably not in a minor’s best interest to inherit hundreds of thousands, or millions, of dollars; thus, having a will or a trust will give you further peace of mind if you have underage children.
How to write a will
These days, it is not necessary to hire a lawyer or a professional to write your will; however, doing so is advisable if you own many (or valuable) assets, a complicated estate, or have complex final wishes. In cases such as these, an estate planning attorney may make your life much easier, handling the minute details of the process and giving you greater peace of mind by ensuring that your will covers everything it needs to.
If, alternatively, you have limited property or few assets, you may opt to use an online service to create your will. Many of these have state-specific templates for you to fill out with your information, which you can then print, sign, and have witnessed as an official document.
However, with any online service you will lose the expertise of an attorney. If you own real estate, have valuable assets, specific wishes, or simply want a better peace of mind, you may be better off using an attorney so you do not risk creating a complex or disappointing situation for your loved ones when you are gone if anything was not considered in an online template. It is important to make sure any online documents are signed properly and do not have or any provisions you didn't intend, amount other important factors.
Can people contest my will?
Generally, wills are very difficult to contest. For Colorado specifically, intestate succession statutes make it nearly impossible for anyone to (successfully) contest your will.
That said, a poorly-written will is easier to contest than a well-crafted one. It is always a good idea to take steps to make the terms of your will as airtight as possible. These may include actions such as:
- Hiring an estate planning attorney or lawyer to draft your will
- Keep copies of applicable correspondence (e.g. emails) with your drafting attorney
- Update your will regularly, and destroy older copies that may have conflicting wishes or terms.
How much does a will cost?
Of course, how much a will costs to draft will depend upon the process you employ. If you go the do-it-yourself route, the online service you use may put you out about $150. An experienced attorney may charge anywhere from $500 to $5,000 or more for their services for a will or a full estate package.
Keep in mind that if you have very specific wishes, or a lot of valuable and expensive assets at stake, it is probably worth your while to bite the bullet and absorb the cost of an estate planning attorney. It may be tempting to purchase a will-drafting kit and write your own, but an attorney will ensure that the finished product is error-free and as airtight as possible.
It's also worth investigating if the legal fees for estate planning, including writing a will, are tax-deductable to see if you can make a saving.
What is a living will?
Often confused for a last will and testament, a living will has nothing to do with postmortem wishes, property management, and asset distribution. Instead, a living will is an advanced healthcare directive—a medical document that outlines your wishes for life support in the event of an emergency.
Were you to be in a serious accident that left you brain-damaged or in a catatonic state, your living will would state the length of time that you would want to continue receiving life support. If you were still unresponsive after the designated number of days in your living will, doctors would discontinue life support or artificial nourishment and allow nature to take its course.
Your attorney will typically draft your living will along with a financial power of attorney and medical power of attorney and any other documents you may need as part of your "estate plan".
Contact Nicole McGann, Longmont and Boulder, Colorado Estate Planning Attorney for an Initial Consultation
Creating a Will (Or Trust) will be different for all of us, they are for everyone of all ages as we all have our own estates and assets. Working out the exact details of your Will depends on the size and value of your estate, your wishes and your personal circumstances.
Attorney Nicole McGann of McGann Law Group has extensive experience helping Longmont and Boulder, Colorado residents write wills and set up trusts based on their needs, requirements, and personal wishes.