Colorado Estate Planning Lawyers
Choosing the best attorney to assist you in planning for your family’s future is an important decision. Your lawyer needs to know the law and be willing to work with you as a person. Effective planning goes beyond a name typed on a legal document. Our Fort Collins based attorneys have been protecting families and their assets for more than 25 years with personalized planning that takes into consideration how the law affects people and the things that are important to them. We recognize that assisting clients with estate and probate matters involves highly personal matters that deserve compassionate guidance. We will take the time to get to know you and develop a plan to meet your specific goals, family dynamics, and financial situation. Personalized representation should be cost-effective. We always approach planning from the perspective of providing our clients with the simplest, most efficient way to meet their needs.
Our Northern Colorado office serves residents in Loveland, Windsor, Wellington, Greeley, and Fort Collins and includes a team of attorneys focused on:
- Estate Planning
- Wills & Trusts
- Trust Administration
- Estate Litigation
- Special Needs Trusts
- Asset Protection
Developing a solid estate plan is the best way to build, protect and preserve your legacy. We will help you understand your legal options and guide you through the entire process. An integrated estate plan should provide protection on all fronts and cover your property, assets, support, and health care concerns. Your plan may include:
- A last will and testament
- A living trust or other trusts appropriate for your situation
- Durable power of attorney for finances
- A health care power of attorney (also known as a “living will”)
Do I Need a Will or A Trust?
To ensure that your property is distributed in the manner that you would like, it is advisable to have at least a basic Will in place. A person who dies in Colorado without a Will dies “intestate” meaning that his or her property is distributed according to the “succession” statues found in the Colorado Revised Statutes (see Title 15, Intestate Succession and Wills). The state statute may distribute your property in a way that you would not have chosen. While a valid Will avoids the pitfalls of intestate succession, the disadvantage of a Will is that it does not avoid probate, a complex, time consuming and costly process with court oversight.
A living trust provides an excellent way of controlling your assets. When you set up a revocable living trust your wishes will be honored and your family can avoid probate. A trust allows you to maintain control of your assets until your death or incompetency. Thereafter, the designated trustee will manage those same assets and will distribute them to your beneficiaries according to the specifications in the trust. As trust allows you to specify exactly how and when assets are distributed, unlike a Will where the assets are distributed immediately through probate.
It is important to understand that a trust does not take away the need for a Will. A Will provides a backup plan for any property that doesn’t make it into your trust. For example, if you acquire a new property and don’t add it to your trust before you die, that property won’t pass under the terms of the trust document unless you have a Will in place that directs all assets to the trust.
Probate is the court-monitored process of settling a deceased person’s estate that comes into play when the deceased individual has a Will or dies without any estate planning in place. In Colorado, the probate court will oversee the gathering of a decedent’s assets, pay off debts and distribution of the assets to beneficiaries. This closely-monitored process is called formal administration and is governed by the Colorado Probate Code found in Title 15 of the Colorado Revised Statutes.
Probate is the legal process that is used to transfer title of assets from the decedent to his or her devisees (recipients named in a Will) or heirs (recipients designated by intestacy law). All Wills and intestate estates must be probated, but the degrees of court involvement and complexity range from simple and inexpensive to complicated and costly.
In Colorado there are three types of probates:
- Small estates (also known as summary probate where the decedent owned less than $64,000 and no real estate). Your devisees or heirs may collect your assets by using an affidavit and not have to open a probate action through the court.
- Uncontested estates (“informal”). If there is a valid Will or clear intestacy, no contests are expected, and there is a qualified personal representative ready to be appointed.
- Contested estates and invalid or questionable wills (“formal”). A formal probate may be required for several reasons, including when a Will is contested, unclear, invalid, or when there are apparent or actual significant challenges (i.e., identifying heirs, property title disputes) in administration.
Both formal and informal estates can be classified as either supervised or unsupervised probate. A supervised probate is one in which the court steps in to supervise the entire probate process. The court must approve the distribution of all property. Supervised probate is also the most expensive type of probate.
Colorado also requires that a personal representative notify (by publication in a local newspaper or by mail) any possible and known creditors of the decedent, and to pay legitimate claims. During the creditors’ period, the personal representative will likely deal with valuing, consolidating, and/or liquidating the estate’s assets.
Why Contact a Lawyer for Trust Administration?
When the creator of a trust dies, the trustee has certain duties to carry out. Those duties include the collection and management of the trust assets, the resolution of debts and claims, and the filing of tax reports. A trustee is held to a high standard of care in carrying out these duties. A trustee cannot self-deal or commingle trust and personal assets. If a trustee violates a duty, even if done so unintentionally, the trustee can be held personally responsible for any loss to the trust.
Colorado Beneficiary Representation
Even the best estate planning can potentially spawn disagreements between beneficiaries, heirs, and other interested parties and you can still find yourself in a dispute for your rightful inheritance. It seems like the worst time, the passing of a loved one, but that if all too often the time that disputes over the disposition of the deceased’s estate and the inheritance occur. Relationships can be pushed to the breaking point, sometimes leading to severe fights among siblings and other family members over their respective inheritances. Dunlap Bennett & Ludwig is extremely knowledgeable and experienced in estate litigation law and represents those whose rights may be affected in an estate dispute.
Unfortunately, the rights of an estate beneficiary can be violated in several ways. This could include coerced and inappropriate transfer or gifts, a new Will or Trust or an amendment made while incompetent or under duress or coercion of another. An executor or trustee can also violate the rights of a beneficiary by self-dealing, commingling assets, failing to account for trust assets, failing to properly preserve assets, failing to remain impartial or failing to allocate or distribute assets as specified in a Will or Trust.
When there is a disagreement over the validity of a will or the existence of multiple wills, attorneys call such a situation a “will contest”. This is a specific and specialized form of probate litigation that requires the assistance of an attorney familiar with the Colorado Probate Code and Colorado case law. Many such cases are a hybrid between a civil litigation case and a formal probate case. Probate litigation of often involves disclosures, subpoenas, depositions, negotiations, mediations, and sometimes a trial.
Colorado Guardianship/Conservatorship Representation
An elderly parent no longer capable of caring for themselves. A special needs child about to reach age 18. Grandchildren who lost their parents in a fatal accident. These are all examples of the types of circumstances that require the legal appointment of an individual to care for the needs of another. Colorado law provides detailed provisions for the care of an adult deemed to be an “incapacitated person” (see Title 15 Article 14 of the Colorado Revised Statutes). Our Colorado attorneys can help you through the legal process of establishing a guardianship or conservatorship. We offer informative, personal guidance that is specific to your situation and your loved one’s needs.
There are two aspects to the legal care of another person – personal care (guardianship) and financial care (conservatorship). A guardian is responsible for the care of the individual and his or her healthcare and bodily decisions. A conservator is responsible for financial decisions.
You can only become a guardian or conservator by court appointment that involves filing a petition, the appointment of a court visitor, evaluation of the “interested person”, the filing of a report, a hearing, and a determination by the court. Guardianship proceedings can be full of complicated issues. The powers and responsibilities of court appointment as a guardian or conservator can present many pitfalls. We understand that taking care of a loved one can be overwhelming. We assist families in the guardianship and conservatorship process for both children and adults including:
- Determining if guardianship or conservatorship is necessary
- Appointing a legal representative to act on behalf of the person or estate
- Locating and inventorying assets
- Accounting to the court and relatives
- Petitioning the court for permission to take actions on behalf of the “interested person”
- Terminating the guardianship or conservatorship when it is no longer necessary
Special Needs Trusts
A Special Needs Trust is a unique type of trust that can be used to conserve the assets of an elderly or disabled person. In many cases, especially when government benefits are involved, a loved one with a disability will need to have a special trust in the estate plan that is different from the trust for beneficiaries without a disability. The purpose of a Special Needs Trust is to ensure that the loved one can continue to receive public benefits while also receiving benefits from the funds held in trust to improve quality of life. The assets of a special needs trust can provide for non-support, quality of life needs of the beneficiary. The exact terms of the trust will depend upon the source of the trust funds. Examples of the types of Special Needs Trusts are:
- A third-party trust is a trust established for the benefit of an elderly or disabled person and is funded with the assets of persons other than the beneficiary. These types of trusts have few rules. They must contain standards about how distributions are made to the beneficiary but otherwise are flexible.
- A first-party trust is a trust where the source of the funds is from the disabled person. This type of trust has many complicated requirements; however, it can be useful to preserve the inheritance of a beneficiary or preserve the proceeds of a judgment or settlement.
- A testamentary special needs trust is one that is set forth in a person’s last will and testament or revocable living trust and is only established and funded after the death of the testator of the will or the settlor of the revocable living trust.
- A pooled trust is funded with the assets of an elderly or disabled person and the assets are then pooled with other pooled trust beneficiaries’ assets with the goal of lower of administrative costs and to allow the larger pooled principal to be increased for investment purposes.
Should I Be Concerned About Asset Protection?
A vital component of estate planning involves preserving and protecting the assets you have worked hard to accumulate. Asset protection strategies are being implements with greater frequency to address damaging lawsuits and creditor claims. Some strategies include:
- Revocable Trusts
- Irrevocable Trusts
- Homestead Exemptions
- Family Limited Partnerships
- Limited Liability Companies
- On-Shore Trusts
Asset protection law requires that planning take place long before there is any sign of a lawsuit. Money or property transferred out of your name with the intent of avoiding a pending lawsuit or creditor may be voided by a court. Do not wait until it is too late to take the appropriate steps.