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For many people, a will provides the simplest way to document their wishes about how their property should be distributed upon their deaths. Many people fail to appreciate the importance of having a will, despite the difficulties to which not having one can lead for the people who rely on you for financial support. If you pass away without a will, the law considers you intestate and your property that is not in a trust or other account where it passes automatically to a joint owner will be distributed according to Colorado’s intestate succession law.
Under intestate succession, this property will pass to your closest relatives or your spouse and children. If you have none, then your parents will receive the property. The line of succession continues to other relatives if you have no children and your parents are deceased.
The Purpose of a Will
A will contains your instructions about who should receive your property after you pass away. A validly executed will is also the only way for you to nominate a guardian for your minor children if your children’s other parent passes away before or at the same time as you.
You can leave property to your beneficiaries outright, with no strings attached, or via a trust. You can create that trust while you are still alive (a “living trust”) or according to instructions in the will (a “testamentary trust”). Correctly titling assets to a living trust allows your loved ones to avoid probate, whereas leaving assets to a testamentary trust does not.
If you die without a will, you will have no say over how your property gets distributed or who will be in charge of making those decisions after you pass away. You also won’t have any say over who becomes the guardian of your minor children. You should consult with wills lawyer Dan McKenzie regarding what you can include in your will and what you cannot.
Requirements for a Valid Will
Although you can draft your own will, having a Denver wills lawyer do it for you is recommended. State law requires that your will be signed in front of two disinterested witnesses and that those witnesses sign the will as well. We highly recommend that you get all three signatures notarized. If anyone questions the validity of the will, the notarization provides legal proof that the will was properly witnessed.
If the will is not notarized and someone questions whether it was properly witnessed, the witnesses may need to be located so that they can testify in court that they did witness and sign the document. Locating witnesses and getting them to court to testify can be a substantial difficulty if the will is even just a few years old.
Occasionally a disgruntled relative will challenge a will. Will disputes usually center upon these issues:
- The will was not validly signed by two witnesses
- The witnesses to the will cannot be located to confirm that they witnessed the will signing and that it was done correctly
- The decedent (also sometimes referred to as the testator) is alleged to have lacked the requisite mental capacity to enter into the will
- A spouse or child was disinherited and wants to claim a testamentary share under state law
- The personal representative is violating his or her fiduciary duties to act in the best interests of all the beneficiaries.
- The decedent was unduly influenced by one of the beneficiaries, or executed the will under duress
If a dispute arises, you will need the services of Dan McKenzie, a Colorado wills lawyer. Disputes can drain an estate of its assets and can be emotionally trying for all involved. We can discuss the issues involved and attempt to bring the parties together to resolve them informally through compromise if necessary. An impartial mediator can be brought in to listen to the issues and offer recommendations for a resolution. If the parties are too entrenched in their respective positions to reach an agreement, they can submit their dispute to binding arbitration in lieu of a court trial. You should have Denver Wills lawyer Dan McKenzie representing you at the arbitration to ensure that you follow the proper evidentiary rules and protocol.
As a last resort, a probate court may need to hear the case and determine the validity of the will and the testator’s intent.
You can avoid potential disputes, determine if your estate will be eligible to take advantage of the streamlined informal probate process, and learn about other estate planning methods by consulting with Dan McKenzie of the McKenzie Law Firm, located in Denver. He has been advising clients on wills and estate planning for over 10 years and has earned the trust and confidence of countless clients. Call the office today if you need the McKenzie Law Firm to draft or update a will, or if you have any other estate planning questions.