Understanding the Validity of a Will

Ensuring that a loved-one’s wishes can be honored by a Will involves ensuring that the Will meets certain requirements and stands the best chance of being affirmed as a valid Will by the Probate Court. Knowing which type of Will to use is the best starting place.

Holographic Will: A handwritten will. While this type of Will can be valid in Colorado if certain conditions are met, it can also present a lot of issues upon filing with the Probate Court. The main issue being whether the Will should be authenticated as a valid Will, and the wishes honored. If it is not found to be valid, then the Court applies Statutory Intestate laws as if no will was written.

Verbal Wills / Noncupative Wills: This is essentially a verbal will that is spoken aloud from the creator to witnesses, and written down immediately by the witnesses. Although verbal wills are recognized by some states in limited circumstances, they are not recognized as a valid Will in Colorado.

Formal Will: This type of Will is typewritten, signed, and observed by witnesses. This format is the most likely to succeed authentication by the Court during the probate process. Each state is governed by its own probate laws, however, in Colorado a valid will should be signed by a person of sound mind, and witnessed by two witnesses over the age of 18 years old.  

Pour Over Will: This is similar to a Formal Will, yet it designed to work in conjunction with an Estate Trust, and “pours over” any remaining assets that have not already been transferred to the Trust. Drafters should be aware that the Pour Over Will must go through the probate Court process just as does a Formal Will.

This is a very brief summary of various types of Wills, when the reality is that each person’s situation is unique, and consulting a law firm is strongly recommended to ensure that your loved one’s wishes are properly documented, and carried out. Please reach out to Behrends Legal with questions regarding Estate Planning needs. (970) 578-9455.

What Is The Role of a Personal Representative in a Probate Case?

Finding oneself as a designated Personal Representative by a loved one’s Last Will & Testament can be an unanticipated discovery. Though it is a good practice to discuss these matters with loved ones before naming them in a Will, those conversations do not always occur in time to prepare the person named in the Will. What are the responsibilities of a designated Personal Representative? What if the designee does not wish, or is unable, to be the Personal Representative? What does the Court require of a Personal Representative?

Often a spouse or family member is designated as a Personal Representative, however, the author of the Will may designate a friend, family member, or legal advisor as a Personal Representative. The investment of authority in the Personal Representative does not occur automatically at the time of death, however. Once the Last Will & Testament has been submitted to the Probate Court, the Personal Representative must request that Court authenticate the Will (verify it is valid), and Appoint the designated person as Personal Representative. Only after the Court formally appoints the Personal Representative can he/she begin to act on the behalf of the Decedent to close the Decedent’s estate within the guidelines of the Probate laws.  

What if the Personal Representative Does Not Wish/Is Unable to fulfill the role of Personal Representative?

There may a number of reasons for someone to refuse appointment as Personal Representative. Wills often name an alternative Personal Representative in case this situation arises. If this is the case, the designated representative can petition the Court to appoint a successor Personal Representative named by the Will, or recommend another person to fulfill the role of Personal Representative for the Deceased’s Estate.

What are the Duties of the Personal Representative?

As a Personal Representative of a loved-one’s estate, the Personal Representative accepts the fiduciary duties associated with this role which include managing the estate funds and assets responsibly and according to the Decedent’s wishes. Though Probate laws are unique to each state, the Personal Representative’s duties generally include, but are not limited to, locating the estate assets, notifying creditors, estimating estate taxes, and paying final estate expenses.

This is a condensed version of the Probate process, and managing this process is less intimidating with the guidance of a law firm that is familiar with the process, and ready to provide answers to the questions that are unique to each family estate. Please feel free to reach out to Behrends Legal to find out more about how we can help with the Probate process.

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

What Is The Probate Process?

Implementing the Last Will and Testament of a loved one after they have passed away can bring about a host of questions, and unexpected steps. This post provides a very basic guide to the Probate process, however, we highly recommend speaking to an estate planning lawyer as each probate matter is truly unique.

What is the Probate Process?

Though the Probate Laws of each state vary, the objective of the process is to authenticate the Last Will & Testament of the deceased, and to provide statutory parameters for distributing and closing the estate if the Will is found to be invalid.

Why is the Probate Process Necessary?

Similar to the designation of a manager when an Estate Trust is created, a Last Will designates a Personal Representative to carry out the wishes of the deceased regarding property, and financial decisions. A Will is distinguished from an Estate Trust in that when the deceased leaves a Will, the deceased’s estate must be closed, and all financial matters settled to end all interests and obligations of the deceased’s estate. In contrast, when the deceased has previously created an Estate Trust, the Trust becomes an entity that survives beyond the death of the creator, and continues to be managed by a person of the creator’s choosing.

What is Involved in the Probate Process?

It is important to know the specific Probate laws in the state where the deceased resided, however, the Probate process generally includes the Appointment of a Personal Representative. This is usually a person named in the Will, however, if that person does not wish to be the Personal Representative, the Law allows for the appointment of alternative representative. Once the Personal Representative is appointed, they are required to settle the estate by completing tasks such as identifying the assets of the estate, gathering information on creditors of the estate, notifying interested parties or beneficiaries, and calculating any taxes owed by the estate. Finally, the Personal Representative distributes any assets or funds of the estate and will request the Probate Court close the Probate process for that estate.

Each estate is unique and an estate planning lawyer can provide helpful guidance specific to your situation. If you, or a loved one, need assistance preparing a will, or preparing to open a Probate Matter, please reach out to Behrends Legal for a consultation to find out how we can help. info@behrendslegal.com , or 970-578-9455.

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.