Frequently Asked Questions

Who should I name as my child’s guardian and my financial and healthcare power of attorney?

Click here to watch attorney Frieda Leonard explain who to name as your child’s guardian and your financial and healthcare power of attorney. .

What are the legal requirements of a will in Colorado?

In Colorado, a valid will must be signed in the presence of two witnesses. Ideally, it will be witnessed by a notary as well. If it is not notarized, the witnesses must appear in Probate Court.

What is a decedent?

A decedent is a person who has died.

What does “intestate” mean?

An estate is “intestate” when a person (decedent) dies without a will.

What is probate?

Wills and intestate estates must go through the court supervised probate process. Probate is used to transfer title to the beneficiaries under a will or the “heirs” if there is no will.

What is the first step in the probate process?

Colorado law requires that a decedent’s will be filed with the court within 10 days of the date of death, even if it is anticipated that no formal probate will be necessary. Under certain circumstances, informal probate by affidavit is possible.

How long does the probate process take?

In Colorado, probating a will or intestate estate takes an average of 12 months for a relatively simple, uncontested estate. If a will is challenged or an estate is particularly complex, the process can take far longer.

What documents does my attorney need to review in the estate planning process?

The following is a checklist of documents that your attorney will need to review:

Real Estate Assets: description, value, ownership, mortgages or other liabilities
Business Interests: business entity, value of interest, ownership, liabilities
Bank Accounts: where held, type of account, value, ownership, designated beneficiary
Brokerage Accounts: where held, type of account, value, ownership, designated beneficiary
Stocks and Bonds: name of company, value, cost, ownership notes
Receivables: description, value
Motor Vehicles: description, value, ownership
Life Insurance: carrier, type, face value, owner, beneficiary
Retirement Plans (pension, 401(k), IRA, KEOGH, profit sharing): type of plan, owner, beneficiary

When should I change my will or trust?

You should review your estate planning documents when there are significant changes in the law or in your life, such as the birth of a child, a marriage, a divorce, or a substantial inheritance.

Can my will or trust change the beneficiaries of my IRA, 401K, annuities or insurance contracts?

No. Retirement accounts and insurance contracts are independent legal contracts, with beneficiary designations that are not governed by your estate planning documents. It is imperative that you properly designate your beneficiaries in these documents to correspond with your estate planning goals. If such accounts are intended to fund trusts, proper beneficiary designations are essential.

Does real estate held as a joint tenant pass through my will or trust?

No. Your ownership portion of the joint tenancy passes to the surviving joint tenant by “operation of law” without probate court intervention and without regard to trust documents.

What is an executor or personal representative?

An executor named in a will, commonly called a personal representative, is responsible for carrying out the wishes stated in the will through the probate process. The personal representative must handle final financial affairs, such as paying bills, locating, managing, valuing and distributing assets, and hiring a probate attorney and other advisors, as needed. The personal representative is entitled to reasonable compensation for their services.

What is a grantor?

A grantor creates a trust and is also referred to as a settlor, trustor or trustmaker.

What is a Trust Protector?

A Trust Protector is appointed in a will to protect against trustee misconduct. A Trust Protector is not legally required. However, Trust Protectors are increasingly common and often advisable.

What is a Living Will or Advance Medical Directive?

A Living Will, also known as an Advanced Medical Directive, is a valuable document and provides great ease of mind to families facing end of life decisions. A living will lets family and caregivers know:

Who you want to make health care decisions for you when you can’t make them
The kind of medical treatment you want or don’t want
Whether you wish to receive life sustaining measures if you have a terminal illness
How comfortable you want to be

What are the duties of a trustee?

A trustee of a trust has various duties and legal responsibilities. A trustee oversees the trust’s assets, handles trust accounts and finances, pays bills and distributes trust income and principal to the beneficiaries. The trust agreement guides all the trustee’s actions. For example, if the agreement states a specific beneficiary receives income only on December 15 of each year, the trustee must give the beneficiary the income on that date. A trustee has a fiduciary duty to act with honesty, prudence, and diligence.

Colorado Bar Association Information & Tips

The Colorado Bar Association provides practical tips and information addressing Wills, Powers of Attorney, Guardianship, Probate and more.

What is a Beneficiary?

A person entitles to receive property via a will, trust, or financial designation.

What is an Heir?

An individual entitled to a distribution of an asset or property interest under applicable state law in the absence of a will. “Heir” and “beneficiary” are not synonymous, although they may refer to the same individual in a particular case.

What is a Spendthrift Provision?

A trust provision restricting both voluntary and involuntary transfers of a beneficiary’s interest, frequently in order to protect assets from claims of the beneficiary’s creditors.

How does Divorce Effect a Current Will or Trust and Powers of Attorney?

In the State of Colorado, a final divorce decree automatically revokes the designation of the ex-spouse as a beneficiary or fiduciary in a will, trust, life insurance policy, retirement account, and power of attorney. Note, in cases where you still want your ex-spouse to be included as a beneficiary, fiduciary, or power of attorney, you will have to re-insert the spouse into your estate plan after the divorce.

Do I Have to Wait Until a Divorce is Final to Update My Estate Plan?

You can revise your estate plan before the divorce is final. In fact, it’s wise for spouses to revise their estate plans while their divorce is pending because Colorado law only automatically revokes a designation of a former spouse as a beneficiary or fiduciary in a will after a divorce is final. If a spouse dies before the divorce is final, then his/her assets would still go to the spouse (unless the estate plan has been updated).

Caveat: It is important to consult with your divorce attorney before making any changes to your estate plan because when one spouse files for divorce, a temporary injunction goes into effect that prevents both spouses from transferring, encumbering, concealing or in any way disposing of any marital property without the other spouse’s consent or an order of the court.

Do you have to pay Income Tax Reporting After Someone dies?

It depends. See link, https://www.irs.gov/businesses/small-businesses-self-employed/deceased-taxpayers-filing-the-estate-income-tax-return-form-1041

What is Business Succession Planning

Planning for the transfer of your business interests upon your death through your operating agreement, assignment of membership interests, or buy out agreements.

How Do You Remove an Account from Facebook or Twitter When Someone Dies or Becomes Incapacitated?

Facebook Account Memorialization Form:
https://www.facebook.com/help/contact/228813257197480

Facebook Medically Incapacitated Person Account Removal Form:
https://m.facebook.com/help/contact/191122007680088

Twitter help article on Removal of Deceased/Incapacitated Person Accounts:
https://help.twitter.com/en/rules-and-policies/contact-twitter-about-a-deceased-family-members-account

How to Obtain a Credit Report for a Deceased Person

Contact Information for the Credit Unions:
https://leonardlawplanning.com/wp-content/uploads/2021/02/Webpage-Credit-Bureaus-to-Send-Death-Notice.docx

How do you change your gender classification on your license?

https://drive.google.com/file/d/1PeYZd7U43ar6Flg8lFAT1Etg1EPdLVUy/view

How to determine if a deceased person owed taxes or was entitled to a refund

https://www.irs.gov/businesses/small-businesses-self-employed/deceased-taxpayers-getting-information-from-the-irs

Can an irrevocable trust be changed?

Yes through either a nonjudicial settlement agreement or judicial trust modification.

Click here to learn more

Does Colorado have a right to die act or medical aid in dying?

Yes – Click here to learn more

“We needed help with all estate planning levels that included multiple conversations with each family member and sets of documents for all of us – each with different needs and requirements. In less than a month, Leonard Law completed the entire process for us. More importantly, Frieda explained each document’s details, sometimes repeatedly, since this was a new process for us. I absolutely recommend Frieda Leonard – she has given our family great peace of mind!”
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