In its simplest form, a will specifies who you want to give your assets and belongings to and who you want to be in charge of this process. In a more complex estate plan, a will can distribute assets to a trust. In fact, a will can actually create a trust upon your death if specified circumstances exist at the time of your death. A common use of this "testamentary trust" is to ensure that a person who is receiving public benefits or who is disabled receives their gifts in a special needs trust to avoid the loss of public benefits.
Even with a Trust, you need a will called a "pour over will" that ensures any asset accidentally left out of the trust is "poured into the trust." A will is always included in our estate planning package.
There are many types of trusts, including revocable living trusts, special needs trusts, irrevocable trusts, and testamentary trusts. However, the majority of Americans, especially young ones, are usually better off with a complete estate plan that does not include a trust until they have sufficient assets to justify the expense of creating and maintaining a trust.
The most common reasons to create a trust are owning property in another state, having minor children, or giving a gift to a disabled person either now or in your will. Often times, a testamentary trust, a trust created by your will after your death, can achieve your desired goals without requiring the creation of a trust that you have to manage while you are alive.
Post-Divorce Estate Planning
If you are divorced and have children, you need an estate plan. Unless you are in a unique situation where you want your ex-spouse to receive your estate, a Will and, sometimes, a trust is in order. Under Colorado law, if you have no will and you are not married, your children will receive your estate. Then, if your children pass away without a will, their surviving parent receives their estate. Thus, if your estate went to your children free of trust (not in a trust), and your children died without a will, your ex-spouse would receive their estate (and by default your estate that you left to them).
If you are divorced and have children, creating a trust or a testamentary trust enables you to decide who will manage the assets you leave to your children.
Powers of attorney
Every estate plan should include a durable medical power of attorney and a durable financial power of attorney (with limited exceptions). The term "durable" means the person making decisions for you, your agent, will be able to act on your behalf even after you become incapacitated (unable to make your own decisions).
Powers of attorney can be effective immediately or only after you are unable to make your own decisions as certified by a physician.
These documents are always included in our estate plans.
living wills or advance directives
A living will is is one of the most important documents in your estate plan because it informs your family of your wishes if you are on life support.
This document can be binding on your medical power of attorney and physicians, meaning they must follow your wishes as stated in the document (physicians can always give fluids and nutrition if it necessary to alleviate pain). If the documents is non-binding, it informs the decision maker of your wishes to help them make a final decision.
Designations of guardian
One of the most difficult deacons you have to make as part of your estate plan is who will raise your minor children if both their parents pass on before they are adults. One of the forms we include with every estate plan for people with minor children is a designation of guardian so that, in most circumstances, you can make this choice rather than a court. However, if the other parent of the child is still living and has not had their parental rights legally terminated, they are considered the "natural guardian" of the child.
SELF-PROVEN WILLS ARE ALL WE DO
In Colorado, a will signed by the Testator (person making the will) and a notary is valid. However, this is a risky proposition. If a will with only a notary is ever challenged in court, the person who wants to have the will enforced must prove the will was properly executed.
The best practice is to use a self-proving affidavit. This affidavit requires two witnesses who are not beneficiaries of the will and a notary to sign the document. When this is done and someone challenges your will in court, the challenger must prove to the court that the will was not properly executed. The small expense incurred by a law firm that uses a self-proving affidavit discourages a challenge to the document. It also makes it much harder for someone to keep the will from being probated.
why We only use date coded paper for estate plans
Slip sheeting is term to describe the act of replacing a page in a Will or Trust with a new page that changes the gifts in or terms of the document. We use only date coded paper that has a secret marking in the paper placed by the manufacture. This mark is changed every year. Therefore, if you sign your documents this year, five years from now the same brand of paper will look the same, but it will have a different mark. In litigation, a forensic document examiner can contact the paper manufacturer to identify the date each piece of paper was created. This information can be used to prove the document was altered.
Why you should choose the maggiore law firm for your estate plan
Because we litigate estate and trust matters, we understand where drafting mistakes are made. We also take the extra steps and expense to use date coded paper and self-proven wills for every estate plan.
Saving a few dollars now by not insisting that an attorney takes these steps can cost your estate thousands of dollars down the road.