It is important, although unpleasant, to have in mind that life is unpredictable, and being prepared will help your loved ones avoid any conflicts when you’re gone. Most people avoid thinking about death when they are healthy, but that’s the best time to consider writing your Will.
You can save them lots of money and time when you have established a well-thought plan about your estate. A will-based estate plan is perhaps the most popular one, especially if you have uncomplicated assets to pass on.
What is a Will?
A Will, also known as a ‘Last Will and Testament' is a legal document that dictates what happens to your tangible and intangible assets after you pass away. If the will meets all the requirements, it is binding and will be enforced by a probate court.
In this document, you can select a person to act as the legal representative (or executor as known in other states) of the will to carry out your instructions. This way, you will rest in peace knowing that your estate is in the right hands. Another crucial decision to add to your will is about the guardianship of any minor children or dependents.
The decision on who inherits your estate is entirely up to you. However, the Colorado inheritance law provides protection for the surviving spouse and children of the deceased. Thus, the spouse can select a percentage of your estate to inherit unless there is a valid prenuptial agreement stating otherwise.
Conditions of a valid Will
There are certain conditions that constitute a will valid when presented before the court:
- The testator must be at least 18 years old and of sound mind
- The document must be dated and signed by the testator and two witnesses
- The will must be either typed or handwritten (aka holographic)
The will must be filed to court within 10 days of the testator’s death, irrespective of whether probate is expected or not. Oral (or nuncupative) wills are not recognized by the law of Colorado.
What is the difference between the testator and an executor?
The testator is the person for whom the Will is written (you). The will is the way to dictate their wishes after their death. An executor is a person appointed by the testator to administer the estate after the testator passes away.
What’s Included in a Will?
Although there are lots of different types of Wills. there are main components that should always be present.
Executor: Naming an Executor determines who will be responsible for making sure your wishes expressed in your Will are followed. Technically an Executor can be anyone but it is common to name your spouse, another adult relative, a close friend, or your attorney. It’s possible to have more than one and this is known as Joint Executors.
Guardianship: Naming a guardian is often one of the biggest motivations for establishing a Will with parents. Knowing that you’ve chosen the best person possible to look after your children if anything should happen to you provides peace of mind.
Assets: Your assets and/or personal property pass to your heirs within a Will. It provides you the chance to specify who receives what from your estate.
Real Property: Any building, structure, or home that you own at the time of your death is “real property.” It may make sense to create a Trust that owns any real property depending on the size of your estate and personal situation.
Final Arrangements Instructions: These are written guidance that specifies things like your funeral arrangements and your wishes for your remains.
Can I Make Changes to My Will?
You can make changes to your will throughout your lifetime, assuming that you have the mental capacity and free will to do so. Any amendments to your Will must be dated, signed, and witnessed as in the original document.
When changing something in your will, you should execute a codicil (adding certain provisions to the will) instead of writing directly on the original document. Otherwise, you can draft a completely new document. In the latter case, the previous will is automatically revoked and the new one takes effect.
Another way to revoke your will (other than writing a new one) is to perform a revocatory act, such as burning, tearing, canceling, obliterating, or otherwise destroying all or parts of the document. Such an act should be performed by the testator or another person acting on the testator’s behalf.
It’s recommended to review your will once in a while, especially if you move to another state or change your marital status, to adjust the provisions to your given circumstances.
How Often Should I Update My Will?
It’s recommended to review your will every 3-5 years as life is constantly changing. It is highly recommended to review and update your will after a major life event, which includes:
- moving to another state,
- having children,
- changing your marital status,
- death of anyone named in your original will,
- a change in ownership of property within your estate.
What Are My Options?
The will is the most common estate planning document. People use it to express their wishes about the inheritance of their assets, the guardianship of their children, and even decide on the care of their pets (with a ‘pet trust’).
When drafting your Will, you can only include assets for which you are the sole owner. Assets with a joint tenancy, like property, bank accounts, or assets with designated beneficiaries, will automatically pass on to the joint tenant or the beneficiary; they are not subject to the will or probate.
Your Will takes effect during the probate process and after you have passed away. The probate court examines the document and determines its validity. Once the court renders your Will valid, the appointed executor can start paying off any debts or due taxes and then follow your instructions about distributing your assets.
Types of Wills
There are many different types of Wills, choosing the right type will depend on several factors, but most commonly comes down to how large or complicated your estate is.
In a Simple Will you to state your basic wishes without the inclusion of multiple stipulations or clauses. Despite the name “simple”, you can cover your basic inheritance needs, like appointing an executor and a guardian for any minor children or dependents.
Testamentary Trust Wills
A Testamentary Trust, also known as a “Trust Under Will” or a “Will Trust,” is written inside a Will. Similar to other trusts, a Testamentary Trust distributes assets after you pass. However, a Testamentary Trust is established after you pass instead of during your lifetime. Probate is needed for Testamentary Trusts and there are often used in situations when beneficiaries will need to be cared for over an extended time period (for example, a dependent with special needs or young minors).
When you want your spouse to be the initial beneficiary of your whole estate then you’ll want to use a Joint Will, the final beneficiaries would be your children in case both of you pass away. A Joint Will is one Will for people and it is important to understand that a Joint Will becomes irrevocable (meaning it cannot be changed) after one partner passes. As long as both parties live, changes can be made.
Joint Wills used to be common amongst most married couples and partners. However, today they usually set up individual Wills. While Joint Wills do exist, there are some major downsides and few benefits to going this route.
Like the name suggests, these Wills are written when you are close to death and tend to be last minute. They are usually very problematic and least effective and can have a whole host of problems as assets may be forgotten or these Wills were written in compromised mental states.
A Holographic Will is one that’s written and signed by hand entirely by the testator (the person making the will). These types of wills are fairly uncommon but they do exist and generally result from extreme, unexpected, often life-threatening situations. These Wills are not recognized in all states.
Are Holographic Wills are accepted in Colorado?
Holographic wills are recognized in Colorado, but requirements must be met for the will to be valid. The will must be handwritten and signed in the writer’s (decedent’s) own handwriting and there must be enough evidence to show that the will was intended to be a will and not a letter or any other type of writing.
Similar to a Holographic Will, this version is spoken instead of written. Nuncupative Wills aren’t always recognized in every state and its likely you’ll need a certain number of witnesses and/or have your wishes written down after being spoken.
What is the difference Between a Will and a Living Will?
The purpose of a Living Will, also known as an Advance Healthcare Directive, is to provide instructions to your family or loved ones in the event that you are suddenly unable to make sound decisions yourself about the medical treatment you should receive if you were to become incapacitated. For example, this could be directions about your treatment if you were to be placed on life support, fell into a coma, or became mentally disabled. A Living Will has nothing to do with passing on assets or wealth of your estate.
Do I Need An Attorney to Write a Will?
The majority of us would seek the services of an estate planning attorney for the creation of a Will, but it is not a necessity. However, that being said, an attorney would offer expert advice and it is advisable to seek professional help to ensure your Will does not have any shortcomings that could result in Probate or stress for your family after your pass.
Can You Write your own will?
Yes, you can write your own will, you can even use templates and online tools to create a Will. However, the chances of you creating a Will that is legally sound, effective and conclusive without professional help is low. There are certain requirements that vary by state and not meeting these requirements could result in a Will that is not valid.
When there is no valid will at the time of death, then your estate is subjected to probate. Colorado law essentially writes your will for you in accordance with the intestacy rules and divides your property to your family under those laws, whether you wanted your assets to pass that way or not.
Although the probate process can be complicated, time-consuming, and expensive, it is often unavoidable. The probate court will appoint a person as the executor and determine who inherits your assets. It will also decide about custody of any surviving children or dependent adults.
How Much Does It Cost to Make a Will?
Obviously, there can be significant cost differences depending on how you go about setting up and finalizing your Will. Some web services provide very low prices (starting from $149 for a will). However, these are simple documents that follow a template and may not be customized to your actual needs and estate plan.
An alternative is to use an estate planning attorney and you will be subject to their hourly rates. Even though the price can be significantly higher than a website templated service, you can be assured that your last will and testimonial will be air-tight and cover your requirements. Attorney fees could start anywhere from $250-£2500 for a basic will and can increase if you have a large complex estate.
The final option is a DIY will that will cost you nothing, but it comes with huge risks. You may make mistakes and not create a secure document that could be easily contested or doesn’t cover everything required in your estate and increases your risk of probate.
Can a Will be contested?
Most well written Wills can only be contested for very specific, defined legal reasons, such as:
- Concern the testator was mentally unstable or incapacitated at the time of signing
- The testator was under the influence of another person when signing
- Questions about the manner in which the Will was signed and witnessed – individual states may require different numbers of witnesses
- Suspicion of fraud, undue influence, duress, or coercion
Where should I keep my Will?
Storing your Will in a secure a safe place is advisable. Some choose to give it directly to their appointed executor, who should then keep it in a fireproof personal safe.
A will, when drafted properly, can avoid or reduce the estate tax. However, avoiding probate doesn’t necessarily mean avoiding estate taxes; that is a common misconception.
Estate and probate taxes are two distinct matters. You are liable for the probate tax with every title transfer of an asset. Federal and estate taxes in Colorado depend on the value of your assets at the time of death.
Contact Nicole McGann, Longmont and Boulder, Colorado Estate Planning Attorney for an Initial Consultation
Wills 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 will depend 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 or determine if setting up a trust is the right fit depending on your estate.