Established Colorado Estate Planning Attorney Helps You Prepare for the Future
John J Husson, Esq.
Financial Power of Attorney
Medical Power of Attorney
Living Will (Advance Healthcare Directive)
Will & Revocable Trust
Estate Planning requires the preparation of a comprehensive written plan to determine who will receive your assets (known as “your estate”) following your death. Also, a carefully structured estate plan will consider how your finances will be managed while you are alive if you become incapacitated and unable to manage your assets and those of your family.
Regarding the disposition of your assets following your death, this can be controlled both by contract and also by your Will or Trust. Many individuals and families will complete beneficiary designations for their bank accounts, life insurance policies, and retirement plans such as IRAs and 401(K)s etc. These completed beneficiary designations, and not your Will, will determine who receives your assets at your death. Also, most married couples in Colorado own their homes in “joint tenancy”. By law in Colorado, this means that the surviving joint tenant automatically owns the home following the death of his/her spouse. The use of beneficiary designations and joint tenancy are two common ways that assets are distributed following an individual’s death without the need for probate. Your Will however controls the disposition of your assets following your death if your assets are not controlled by probate avoidance devices such as joint tenancy, written beneficiary designations such as a payable on death bank account.
If your Will controls the disposition of some of your assets then your Will may need to be probated depending on the size of your probate estate ($70,000 in 2021 in Colorado). This means you will need to hire an attorney and the Court will appoint a Personal Representative (also called Executor in some states) to manage and distribute your estate after your Will is filed and accepted by the Court if the fair market value of your estate is $70,000 or more. In Colorado, Probate is usually not expensive but it can take time and it does involve the Court’s supervision of your estate. If you die without a Will this is called dying “intestate”. The same $70,000 estate size limitation applies whether you die with or without a Will in Colorado.
Because Colorado has adopted the Uniform Probate Code, probate in Colorado is not as expensive and time-consuming as it used to be. There can be exceptions to this for complicated estates and with litigious families who might dispute the decedent’s Will. Many of my estate planning clients wish to avoid probate. This is usually done with a document called a Revocable Trust also called a Rev Trust or Living Trust. Your Rev Trust will own your assets at your death, and the person or entity you appoint as your Trustee will distribute your trust-owned assets without court control and supervision. A Rev Trust is not for everyone and the legal costs to draft it are more expensive than the preparation of a Will. Regardless, a Rev Trust may be recommended for you if wish to avoid probate and if there are other good reasons for it such as the protection of assets to be distributed to your beneficiaries especially minor beneficiaries.
I will provide a detailed estate planning questionnaire to you to complete. I will then review it and discuss your assets and detailed financial information and your personal circumstances to determine how best to proceed. If you are planning to have children or already have one or more children under the age of 18, you will be advised to nominate a guardian and successor guardian, to permanently care for your children if you die before they reach the age of majority which is 18 in Colorado. The nomination of a guardian is essential for the best interests of your children. The Court still must appoint your Guardian by court order, but your nomination of a guardian in your Will requires that the Court give the individuals you nominate as guardian, statutory priority. For example, , if you nominate your brother and his wife to be guardians, the Court will not second guess your selection unless evidence is submitted to the court that they are not suitable to be the guardians of your children.
Wills — Your last will and testament provides the opportunity to distribute property, establish care for children and otherwise express your final wishes. A will is also the primary means by which you can leave property to a person or entity other than a blood relative.
Trusts — Trusts are flexible instruments that allow you to put conditions on gifts and provide an allowance for a beneficiary rather than a lump sum. When you set up a living trust, for example, you can enjoy your property during your lifetime and transfer wealth seamlessly at your passing, helping your loved ones avoid probate.
Guardianships — If you have minor children, it’s important to plan for their care in the event you and your spouse die unexpectedly It is important to nominate primary and successor guardians in your Will. This will give your nominated guardians statutory priority when the Court is asked to appoint guardians for your minor children. Your naming or nominating a primary and successor guardian for your minor children will help prevent family disputes and disharmony in the event of your disability or death.
A Financial Power of Attorney (also referred to “General Power of Attorney”) is often the most important estate planning document I will prepare for my clients. Your financial power of attorney can save you significant legal expenses if you become incapacitated and are not able to manage your assets. For most clients, the financial power of attorney I draft will not become effective until the client (called the “grantor” in the Power of Attorney) becomes incapacitated. However, for most married couples, the agent’s authority begins immediately and is not dependent on the grantor’s spouse being incapacitated. This is done so that married couples have additional flexibility. Depending on the client’s personal situation, a Financial POA can always be written so that it is not effective unless and until the Grantor becomes incapacitated. I will discuss your personal circumstances with you to advise you what is best for you. That are many variables such as if you are cohabiting with your girlfriend or boyfriend or if the person you wish to appoint as your agent is having marital difficulty.
In your financial POA you will select a person to act as your agent to manage your assets during your incapacity. The most important qualification of your agent is trust. This is because your agent will have control over your assets and finances. Your agent’s financial skills are also important but trust is essential above all else. If you become incapacitated and do not have a financial power of attorney in place, then a court appointed conservator may be needed. In this event, your spouse, significant other or other family members will need to hire an attorney to ask the Court to appoint a Conservator to manage your assets as well as assets jointly owned. A conservatorship is often an expensive and time-consuming process which can be avoided with a financial power of attorney in place.
The other Power of Attorney I draft for my estate planning clients is their Medical or Healthcare Power of Attorney (“POA”). This POA provides that if the grantor becomes incapacitated then the person named as his grantee will make healthcare decisions for him/her. Healthcare facilities do not always ask the spouse of an incapacitated patient if there is a Medical POA and they will often as a matter of course allow the spouse to sign surgical and other consent documents for their incapacitated spouse. It is however highly advisable that a Medical POA be drafted for all of my estate planning clients. The primary and successor agents you nominate will depend on the facts on your personal situation. For example, it is best not to appoint an elderly person as your agent or a person who is difficult to reach or does not deal well with the stress of a serious illness or injury.
Living Will or Advance Healthcare Directive. I draft Living Wills for my estate planning clients to ensure they have documented what their medical care should be if they are in a terminal condition. A terminal condition is an incurable or irreversible condition for which the administration of life sustaining procedures will serve only to postpone the moment of death and prolong the dying process. You can decide you do not want heroic medical efforts undertaken to keep you alive such as on a ventilator and other life support equipment. Or, you can decide that you want everything medically possible done for you to keep you alive including the use of life support equipment, antibiotics, and other medical treatment usually reserved for an individual who is expected to recover medically. Finally, if you want, you can appoint the individual you appointed as your Agent in your Medical POA to make all end-of-life decisions for you. Every situation is different and very personal. There is not right way to complete your Living Will. You must be comfortable and at peace with the end-of-life decision-making you select in your Living Will.
Disposition of Last Remains Form: This document allows you to decide the disposition of your body. You can request cremation, burial or entombment or other disposition of your body. You can also request the kind of memorial or religious service you want as well as other requests. For example, if you are a Veteran you may request a military service and burial. Or you may request that certain religious rites occur as part of your funeral or memorial service. Colorado’s Disposition of Last Remains Act obligates the Personal Representative of your estate to comply with your wishes. It is advisable to discuss your dispositional wishes with your family and loved ones while you are in good health and best able to communicate your wishes. Your family will likely remember such a conversation much better than a document you have completed.
Will drafting, execution and review
Living also known as Revocable trusts
Advance healthcare directives (living wills)
Financial and Medical Powers of attorney
Estate and gift tax issues
Guardianships and conservatorships
Choosing the appropriate executor known also as personal representative
Your disposition of stored genetic material such as human embryos, eggs and sperm if you have undertaken assisted reproductive technology to assist you with your family formation needs.
Each person has different concerns and goals for the future. I work closely with you to determine your priorities and create carefully drafted documents to carry out your intentions. For example, a carefully drafted financial power of attorney can prevent an expensive, difficult and time-consuming court supervised conservatorship proceeding regarding the use of your financial and other assets if you become disabled.
Power Of Attorney
THOUGHTFUL ATTORNEY ADVISES YOU REGARDING WILLS, GUARDIANSHIPS AND POWERS OF ATTORNEY
Estate plans include instructions not only for distributing your property after you’ve died but also for handling financial and medical decisionmaking in the event of your temporary or permanent disability or incapacity and you can no longer make them for yourself. Though it may be difficult to think about your mortality, clear and thorough plans can remove the fear of uncertainty. I can help with:
Knowing that you have planned for the long-term well-being and financial security of your loved ones can be comforting. At Husson Law LLC, I thoroughly analyze your assets and liabilities and help you determine the best means of transferring your assets at your death and establishing guardianship for your children.