Wills in Colorado
Click here for to download a PDF copy of this brochure
A will is a legal document that directs how your assets will be given away after your death. It allows you to give away some or all of what you own, including your real estate, cars, business holdings, money, and personal property. Your property may be given to anyone you choose, with certain exceptions, after your estate debts are paid. You may name who you want to act as guardian for a minor or disabled adult child. You also can appoint a personal representative (formerly known as an executor) to handle your affairs after your death.
Who can make a will? When should it be done?
You must be at least 18 years old and of sound mind to make a will. You must also have “testamentary capacity,” which means that you must know the property you own, how it will be distributed, who the members of your immediate family are, and that your will represents your wishes.
You must be making the will because you want to and not because someone else is forcing you to. The will can be in writing or typed; it must be dated and signed. (If you are unable to sign the will, you may direct that another person sign for you, but he or she must sign the will at your request and in your presence.)
Can assets be given to whomever I name in my will?
This is generally true, with two notable exceptions:
• In Colorado, the surviving spouse can choose to receive a percentage of the estate
regardless of what the will states. This may not apply if a spouse receives property by other
means than the will, such as life insurance proceeds.
• A child born after the will is signed sometimes takes a share of the estate as if no will
existed, unless it is made clear that you intended to exclude the child.
What happens if there is no will?
If a person dies without a will we look to the law of intestacy. In Colorado the law provides that all or a portion of your estate will pass to your surviving spouse, depending upon a number of factors such as the size of your estate, whether all of your descendants (children, grandchildren, etc.,) are also the descendants of your spouse, and whether all of your spouse’s descendants are also yours. It may also depend upon whether you are survived by any minor children. The law will provide for your spouse and your minor children to share in your estate. The law also provides for a certain portion to pass to your descendants by anyone other than your spouse, provided your estate is large enough to do so. If you have no spouse or children, then your estate will pass to your parents, if either survives you, and if not, then to your siblings. If one or more of your siblings has predeceased you, but is survived by issue (for example, your nieces or nephews), a share may pass to them. Depending upon your situation, it may be very simple or very complicated to determine who your lawful heirs are if you die without a will. For this reason alone, it is advisable to have a will which specifies where you want your assets to go and who should be in charge.
The only time your assets will pass to the State of Colorado (the term used is to “escheat”), is when you die without a will and have no living blood relatives. It important to discuss all these situations with a probate attorney to make sure your spouse, surviving descendants and other intended beneficiaries receive their appropriate share.
Similarly, a guardian steps in to take care of your minor or disabled adult child after your death. If you appoint a guardian in your will, then that person will take care of your child. If you do not appoint a guardian in your will, or if you do not leave a will, then the court will appoint a guardian for your child.
If the court appoints a personal representative or a guardian, the person named may not be the person you would have chosen.
What is Probate?
Probate is the process of collecting and managing your assets. After your death, your property is managed by your personal representative. Your personal representative is also known as an “executor” in other states. Your personal representative must collect your assets, provide an inventory, pay legitimate creditor claims and expenses of administration, prepare and file any tax returns which may be due, and distribute the balance to the beneficiaries as designated in your will. If you don’t have a will, your personal representative will have to determine who your heirs are. Generally, a personal representative handles your estate without court involvement. If you have a will, the person you name should be appointed. If you don’t have a will, the court will determine who should be in charge. Not having a will does not avoid probate.
Can I change my will?
Yes. A will can be changed, in whole or in part, as long as you are competent and not influenced by another person. An amendment to a will is called a codicil. Requirements for a codicil are the same as for writing the original will. Changes should never be made by writing on the original will itself, because this could invalidate part of or all of your will.
How do I give away my personal property?
In Colorado, you can use a memorandum to give away your tangible personal property. However, you can only use a memorandum if you specifically mention a memorandum in your will. The memorandum is usually handwritten or typed and can then be written or rewritten at any time. It does not need to be witnessed or notarized, only signed, dated and found with your will.
What else does a will do besides distribute property?
A will can set up a trust for long-term management of assets and the protection and security of family members. It can also prevent the estate from being taxable in some instances. Through a will, you can select the guardian for your minor children, although there are some restrictions.
Even if you intend to leave your estate to the same people who would receive it under the laws of intestacy, a will can simplify administration and allow for different distributions. A well drafted will can often reduce the time and expense of administering an estate.
If I want my entire estate to go to one person, perhaps my spouse, can I use joint tenancy instead? I have heard this avoids probate.
If your estate is not taxable, joint tenancy can be used between spouses. However, between other family members (for example, putting a bank account in two names), the blanket use of joint tenancy for assets may create unintended tax consequences or expose one joint tenant to the creditors of another. An attorney should be consulted before deciding to use joint tenancy to be sure that the necessary specific language is used and the situation is appropriate.
Does a will dispose of all property?
No. Certain types of assets automatically pass at death. Your will cannot give away property you own in joint tenancy with right of survivorship if the other joint owner survives you. In addition, your will cannot give away property that has a named beneficiary, such as a life insurance policy. Good estate planning includes the organization of these types of assets to reflect your individual wishes at death.
What happens to my will if I get divorced or married?
Under Colorado law, if you get divorced after the will has been written, then the ex-spouse named in the will is automatically eliminated as a beneficiary when the divorce is final.
If you marry after you have written your will, then your spouse receives the same share he or she would have received without a will unless the will makes clear the omission was intentional or if your spouse was provided for outside the will. An intentional omission does not change the rights of your spouse to take a fixed share unless such rights have been relinquished in a marital agreement.
Can I save taxes by using a will?
A will can save taxes if your estate is taxable. This depends on the size of your estate. It is a common misunderstanding that “avoiding probate” saves taxes. Probate and taxes are separate matters. Probate is simply the procedure for passing on assets, which is required when these assets are worth over $50,000 or the assets include real estate. An estate is taxable when its value, including life insurance policies, is over a certain figure. This amount is $2 million for 2008. An attorney or accountant can tell you if your estate is taxable.
If I’ve made a will and do not want to make changes, is there any reason to have it reviewed? Do I need to change it if I move to/from Colorado?
Because of changes in Colorado law and federal tax law, it is prudent to have a will reviewed periodically. Colorado law states that a will is valid if it was valid where it was signed, even though the will would not have been valid if it had been signed in Colorado. Most states have similar laws, so the Colorado will would not be invalid in another state. Still, it is wise to have the will reviewed when moving because of factors that could affect a will. For example: community property status, differing rules about the disposition of personal and real property, local rules affecting marital rights, etc.
Can I write my own will?
Colorado generally recognizes wills that are handwritten and signed by the testator. These wills are known as holographic wills. However, the drafting of a will does require special skills, and it would be prudent to have the will drafted by an attorney. Holographic wills are frequently found to be ambiguous or defective, which causes delay, expense and litigation.
Good, organized estate planning can provide you with peace of mind and leave an estate that is easy to manage for those you leave behind.
Sponsored by the Colorado Bar Association(2008) This pamphlet is published as a public service by the Colorado Bar Association. Its purpose is to inform citizens of their legal rights and obligations and to provide information regarding the legal profession and how it may best serve the community. Changes may have occurred in the law since the time of publication. Before relying on this information, consult an attorney about your individual case.
