The Law Office of Richard Biel, P.C.

A Will is the most common estate planning document and is used by both wealthy individuals and those of modest means. Like a Revocable Living Trust, a will is a set of instructions directing when, how, to whom, and by whom a decedent’s property should be disposed of and their business affairs wrapped up. In addition, the willmaker may name a guardian for their minor or disabled adult children.

Who can make a Will?
A Willmaker must be at least 18 years old, of sound mind, and must know what property they own, who their immediate family members are, and who they want their property to be given to.

Does a Will dispose of all property?
There are certain types of assets that are not governed or distributed per the terms of a Will. Only property that was owned by you in your individual name (and that does not have a beneficiary designation) is controlled by the Will. Therefore it is important to consider how you own your assets when doing your estate planning. Assets that are owned in joint tenancy, such as real property or a bank account, or assets that have a beneficiary designation like a life insurance policy or IRA, pass to the beneficiaries by operation of a contract, and are not subject to the provisions in the Will or the probate process. 

A Will may not dispose of all your property for other reasons, including if you make a Personal Property Memorandum, or a separate list, directing where specific items of personal property are to go. 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.

When should I update my will?
After you execute your will there will be changes in your life, your devisees’ lives, state and federal tax laws. Therefore, you should have your Will reviewed periodically. 

Can I save taxes by using a Will?
Like a Revocable Living Trust, a properly drafted Will may avoid or mitigate estate tax liability. Not all estates will have estate tax liability, and it is a common misunderstanding that avoiding probate saves taxes. Probate and estate taxes are separate matters—probate is the process for passing title of assets and the value of the decedent’s property may or may not invoke estate tax liability, regardless of whether there is a probate, and vice versa. 

Can I control how my devisees inherit my property?
You may direct how and when a devisee receives their inheritance, for example outright or in a trust. A trust established under a Will is called a testamentary trust, and may provide significant protection for the beneficiary. The trust terms may prevent access by the beneficiary’s creditors, set out the terms and reasons that a beneficiary may receive a distribution from the trust assets, and prevent disqualification from public benefit programs.

What happens if there is no Will?
If a person dies without a will, he or she is said to have died “intestate.” When this happens, Colorado law essentially writes the person’s Will for them through a set of statutes that dictate who is entitled to what, who has priority to be the personal representative, and other terms and procedures related to estate administration. 

Administering an intestate estate can be complicated and may require significant court involvement. It is generally more expensive than a probate of a Will, and does not provide the possible protections for the heirs as a testamentary trust can for the beneficiaries.

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