When I talk with clients about estate planning, I often need to start with the basics, giving them a good solid foundation. I am not sure I have done that yet on my blogs, so I am excited to do a four part series where I talk about the basic, foundational documents of every estate plan. Hopefully this will set a good foundation for you.
In my opinion, any estate plan should have these four basic, fundamental, foundational documents:
- A Will
- A Financial Power of Attorney
- A Medical Power of Attorney
- A Living Will (also called an Advanced Directive)
This blog will talk about a will: what it is, what function it provides, and the formalities a will needs to be valid.
What is a Will?
A will is a legal document that describes what should happen to your assets when you die. A will contains instructions for what to do with your property after you pass away.
A will can split up assets between your spouse, children, other family members, friends, charities, strangers, or pretty much anyone you want to receive your assets. The will is a written record of your wishes. The will needs to be clear as to what you want, and who should receive property.
Uncertainty in the language of a will, or unclear wishes and desires can lead to disagreements after you have passed away. Those disagreements can result in litigation and legal fights, which nobody enjoys, and certainly nobody wants to pay for! Having a will that clearly lays out what you want to have happen to your property is indispensable is setting up your estate plan properly.
What Function Does a Will Have?
– What Can a Will Do?
– What Can’t a Will Do?
As described in the previous paragraph, a will describes how to distribute your assets when you pass away. The will itself does not simply distribute assets. The will needs to name a person to distribute assets. This person is called a “personal representative” under Colorado law. The personal representative is responsible for taking the will to the probate court and opening a probate case. Probate is the legal process of getting assets from the deceased person to the heirs. A personal representative is responsible for carrying out the instructions contained in a will. The will guides the probate process, and tells the personal representative what to do. As part of the probate process the personal representative will receive a “letter testamentary” or “letter of administration.”
Proper Legal Authority
The “letter testamentary” or “letter of administration” give the personal representative legal authority to transfer assets out the deceased person’s name and over to the proper heirs. I had a client who told me that she took the will I wrote for her husband to the bank to transfer assets out of his name, and the bank would not just transfer the assets. She was quite upset that I had not written a proper will. We had a discussion about getting proper authorization from the probate court, and she understood what to do. I wonder how many people don’t understand that a will needs to go through probate. Now you are no longer one of them!
Clearly Identify Who Gets Your Property
A will must clearly identify who should receive property and assets. This seems basic, but I have had many people tell me they just put in their will that the personal representative can decide how to distribute assets. Unfortunately, that type of thinking does not comply with Colorado law. Without clearly identified heris, you may be treated as not having a will at all, which defeats the purpose of setting up a will!
Watch Out for Your Minor Children
You can also name a person to raise minor children in a will. This is an important thing to all of us who have minors. You can nominate someone to take care of your children, like Godparents. This nomination needs to be officially endorsed by the court, but absent any direction from you, your children may end up somewhere you might not want them to go! (To be clear: We try to avoid this result by planning properly for your children at the Michael Bailey Law Office 🙂
Getting your children to the people you want to raise them is quite possible the most important thing the parents of minor children can do in a will, so you want to get it right!
What Makes a Will Valid?
1.) Under Colorado law, a will needs to be signed to be valid. If the will is in your own handwriting, then you are the only one what needs to sign the will. This is true even if only the “material provisions” are in your own handwriting. Material provisions are the substance of a will that shows who will receive property, who is the personal representative, and not the standard language included in wills. This type of will is called a “holographic will.” This type of will has no corroborating witnesses to say it was a valid, or correct statement of the deceased person’s intent, but it is allowed under Colorado law.
2.) If the material provisions of a will are typed, then Colorado law concerning will execution states that the person signing a will should be witnessed by two other individuals, or by a notary. Many attorneys use both a notary and witnesses to a will. That way, many people can testify that the person who wrote the will did so of their own free will and choice. Witnesses signing a will can also be used to make a will self-proving, which makes things smoother and easier under most circumstances.