Probate is the legal process involving the administration of a deceased person’s will or the estate of a deceased person without a will (known as dying intestate). Probate is carried out within a Probate Court and is the process in which:

• A will is declared valid or invalid;
• Property is transferred from the deceased to an heir or a beneficiary named in a will;
• An executor of an estate is given legal standing to handle the estate’s business;
• The liabilities and bills of the estate are paid;
• The assets of the estate are distributed.

Where does a probate attorney fit into the process? A probate attorney, also referred to as an estate attorney, can help prepare an estate plan that helps avoid probate, as the probate process can be costly and complex. They can also assist the executor, the person named as the estate’s administrator, with tasks that are faced in probate, such as:

• Preparing and filing probate forms and paperwork;
• Advising and assisting with the sale of the estate’s assets;
• Advising and assisting with the payment of the estate’s liabilities and bills;
• Requesting permission from the probate court for various actions as required under Colorado law;
• Obtain a taxpayer identification number for the estate and file the final tax return;

Some probate lawyers are also willing to be named as the executor of the will. In this case, they are paid a fee to oversee the distribution of assets. The fee for serving as the executor of a will is separate from the fee for preparing a will.

A probate lawyer can be hired by either a person making a will or those who are named within the will. The attorney will have an ethical duty to represent the wishes of his client to facilitate the probate process and act within the best interest of their client both before and during the probate process.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Did you know that the laws of the state where real estate or tangible personal property is physically located will govern what happens to out of state property after you die? Most people assume the laws of the state where you live at the time of your death dictate the administration of your estate, but this is not the case. In fact, property located within another state is subjected to a secondary probate process called ancillary probate that takes place in that state.

Ancillary probate is the probate of property in a state other than the state where you live. If, at the time of your death, you own real estate or other property in your name alone, a probate will be necessary in each state where the property is owned and/or located. This is necessary to transfer the ownership of the property and clear the title, as well as advise creditors that may be located in the state.

One of the biggest drawbacks of ancillary probate is the added cost of having to administer more than one probate estate, including multiple court fees and accounting fees if the estate is extensive. Another drawback of ancillary probate can occur if a person dies without a valid Will. Because the intestacy laws, the laws which dictate the distribution of property for a deceased with no will, differ from state to state, it is possible that the heirs of an intestate estate could be different in the state of the primary probate proceeding versus the state of the ancillary probate proceeding.

The best way to minimize the impact of Probate is to work with an estate planning attorney. Spending money today to establish a valid Will, Trust, or other estate planning documents, as well as properly titling assets, can save your estate substantially when it is time for probate proceedings.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Mention estate planning to anyone and most likely they will associate it with avoiding probate. Probate is the legal process of ‘settling’ the estate of a deceased person, and it can take months, even years, for more complex estates. In Colorado, the average estate spends 9-24 months in probate. There are actually three different types of probate proceedings in Colorado:

• A small estate proceeding for estates valued at under $50,000 that have no real property,
• An informal proceeding for uncontested estates, and
• A formal proceeding for contested estates and those with invalid or questionable wills.

So why would this process take a year or more? There are several tasks that take place during probate, and some of them require waiting times, legal notifications and property inventories. For example, in a typical probate proceeding, the following will take place:

• Opening a bank account for the estate so bills can be paid;
• Identifying the deceased’s creditors, locating them and notifying them of the death;
• Identifying heirs and beneficiaries, locating them and notifying them of the death;
• Identifying and inventorying the property that was owned by the deceased;
• Filing a final tax return for the estate and paying any estate taxes that may be owed;
• Paying off creditors;
• Distributing property to heirs according to the state law if there was no will or beneficiaries that are named within a will.

As you can see, these tasks will not only take time, but they are extremely detail oriented. There are a number of documents that must be filed with the probate court, many of which relate to the above tasks. The process is not horrible, but you must be patient. A probate attorney can help you through this process, as well as help you put together an estate plan that will allow your property to avoid probate if you would prefer.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Whether your retirement account is a 401K or an IRA, it’s probably going to be one of your larger assets upon your retirement. In fact, a retirement account is an important component of a comprehensive estate plan, but what happens to the balance of your account upon your passing?

Beneficiaries

When your retirement account was set up, you were required to fill out a beneficiary form. The person named as the beneficiary is entitled to the remaining balance of the funds within your account. It’s important to make sure this information is kept up to date, as you are bound to go through some major life changes over the decades this account may have been in existence.

Avoiding Probate

One of the primary benefits of any estate planning tool that has a named beneficiary on a form is avoiding probate, the legal process that administers an estate. When probate is avoided, the funds are available more quickly, and can address the immediate needs of the beneficiary.

Spousal Rights

Many retirement plans require that a spouse be named as the primary beneficiary. Some plans may allow you to name another beneficiary as long as your spouse’s permission is given on the beneficiary form and it is signed and notarized. This is yet another reason to ensure that all beneficiary forms, whether for retirement accounts or life insurance policies, be reviewed and updated upon major life events, such as marriage, divorce, birth of a child or even the purchase of a home.

Consequences to a Beneficiary

Your named beneficiary will have choices in how they handle the account, and these choices will vary depending on whether or not the beneficiary is a surviving spouse. These choices normally include:

• Rolling the funds into their retirement plan (for surviving spouses);
• Cashing out the account in full; or
• Electing to continue to treat the account as the deceased spouse’s account.

An estate planning attorney can provide the best advice for ensuring that your retirement plan meshes with your estate plan, as well as your estate planning goals.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

In every state there are laws that pertain to what makes a Will valid. In Colorado, a Will must be signed by the testator, the person who had the Will drafted, as well as two witnesses. Each witness must either see the testator sign the Will or be told by the testator that the signature on the Will is his or hers and they must sign the Will in the testator’s presence as well as in the presence of the other witness.

When the testator dies, the Will is authenticated in a Probate Court and the estate is then administered. A self-proving Will allows the witnesses to avoid a court appearance to re-affirm the signatures within the Will. It also provides an additional layer of authentication that can help your beneficiaries avoid a long, drawn out probate process. A self-proving Will can be particularly helpful when one or more of your witnesses cannot be located or they have since passed away.

A self-proving Will, or a self-proving affidavit attached to a Will, acts as a substitute for the live testimony of each of the witnesses. It simply certifies that the witnesses and testator properly signed the Will. Since the witness swears an oath during the signing of the affidavit, it is presumed to be truthful and is used in lieu of live testimony, which is not only convenient, but allows a more timely validation of the will. The self-proving affidavit is normally signed at the same time as the signing and execution of the Will.

Working with an estate planning attorney not only ensures your estate planning documents are valid and legal, but ensures that your family’s needs and goals are met within the estate plan.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

One area of expertise for an estate planning attorney is probate, which is the legal process involving the administration of a deceased person’s will or the estate of a deceased person without a will (known as dying intestate). Probate is carried out within a Probate Court and varies by state. In Colorado, probate is divided into three types:

• Small estates worth under $50,000 with no real property;
• Informal probate for uncontested estates; and
• Formal probate for estates that are contested and/or have invalid or questionable wills.

The specific tasks that are carried out in the probate process include:

• Declaring a will valid or invalid;
• Transferring title of property from the deceased to an heir or beneficiary;
• Giving an executor of an estate legal standing to handle the estate’s business;
• Paying off liabilities of the deceased’s estate;
• Distributing the assets of the estate.

Often the purpose of a comprehensive estate plan is to help avoid the costs and time of a complex probate process, but probate cannot be completely avoided with a will. All wills must be probated in Colorado if you own real estate or have more than $50,000 of property without beneficiary designations, but the involvement of the probate court varies by the complexity and size of the estate.

There are ways to avoid having your family going through probate, which helps keep the administration process shorter and less expensive. Some choose to use a revocable living trust instead of a will to dispose of their property upon death. Assets transferred to the revocable living trust before a person’s death are not subject to probate and can be distributed upon the their death without probate. However, the trust only controls assets which have been transferred to the trust during the deceased’s lifetime and, therefore, a person should still have a will to dispose of any assets which—either intentionally or inadvertently—are left out of the trust.

While probate can be costly and complex, an estate plan can significantly simplify and reduce the costs of this process.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

In order to distribute your assets to your heirs after you pass on, your estate typically must go through a legal process known as probate. This can be a lengthy and expensive process, so many people look for ways to avoid – or at least streamline – the probate process.

A trust is one way to do this but you can also use payable on death (POD) accounts to bypass probate on certain assets such as bank and investment accounts.

Also called transfer on death (TOD) accounts or trust for accounts (ITF), these accounts allow you to include a beneficiary designation as part of the account documents. After your death, your beneficiary can simply go to the bank or the investment company with proof of your death (a death certificate) and can access the account.

Disadvantages of Payable on Death Accounts

Unlike a typical joint account, the beneficiary of your POD account cannot place any claims on the funds in the account while you are alive. However, the method is not without drawbacks:

• When you are naming a single beneficiary of your POD account, you are in effect disinheriting your other heirs which can create a rift in the family.
• If your beneficiary dies before you and you fail to update your account, then the account will be added to your estate at the time of your death and go through probate. If you have named two or more beneficiaries and the death of one beneficiary precedes yours, the bank/investment company will face a problem in dividing the account.
• If you later decide to make changes to your POD account, such as shifting it into your Revocable Living Trust, some institutions might want you to get the consent of the beneficiaries as well.
• Naming a beneficiary does not allow anyone to manage your account on your behalf if you become incapacitated, so your family may have to go through a conservatorship/guardianship process to manage your account and other assets.

Ultimately, you should consult an estate planning attorney to determine the best way to title your assets and provide for your heirs.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

Has a loved one named you as the executor (or “personal representative”, in Colorado)of their Last Will and Testament? If so, you may wonder what your probate responsibilities will be. As the executor you will protect all assets, pay all debts, and pass inheritances to beneficiaries.

You must be honest, impartial and follow the letter of the law. You will have the guidance of your probate attorney throughout the process. Before you even contact an attorney, however, you should find and list all estate assets, debts, accounts, properties, and guardians or beneficiaries listed in the Last Will and Testament. Once you have a good picture of the entire estate, you can determine, with the help of an attorney, if the holdings are small enough for a shorter, simpler version of probate.

Once probate is open, you will have some estate maintenance duties. This includes paying regular bills, such as mortgages, upkeep of estate property, and notifying all necessary agencies, account holders and bill collectors of the deceased’s passing.

You will also need to open a bank account in the name of the estate. This account will be used to pay all bills, attorney fees, court fees, and taxes. You must be very meticulous about your bookkeeping in order to maintain the integrity of the estate and to be fair to all beneficiaries.

Did you know you are also responsible for all taxes? You must file and pay income taxes for the deceased’s final year as well as for any years after that the estate earns money while probate is open. You will also be responsible for paying all state and federal estate taxes.

Once all bills, taxes and court costs have been paid and the court or your attorney give you the go-ahead, you may distribute estate holdings to the correct beneficiaries. Be certain that all expenses have been paid, or any cost that comes up after the estate is settled must be paid by you. In Colorado, the probate process takes an average of 9-24 months, so you need to be patient.

During the process you must be loyal to your loved one’s memory, able to settle any family bickering, and oversee all paperwork and activities to settle the estate promptly. Being the estate executor can be a big job, especially if documents are not in order or if it is a large estate. Always ask your attorney any time you have a question, and don’t forget your loved one truly trusted you to have named you to such a position.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.

You can be the owner of property in three ways:

• as an individual in your own name
• jointly with one or more other people
• through contract rights

How your property is titled can make a big difference in how you plan your estate. The title will determine whether or not the property is included in the probate process and how the asset is distributed to beneficiaries.

If property is titled in your name alone and without any other joint owners, then the property would likely go through probate. There are exceptions to this of course, as certain types of assets do not go through probate because they can be distributed without court supervision. A life insurance policy for example, or a retirement plan does not require probate to be distributed to your beneficiaries.

If you are a joint tenant on the other hand, but your part of the rent or interest is owned by you alone as an individual – without any joint owners – then the value of your interest in the property would be probated.

How will the probate be conducted?

After your death, the probate Judge will appoint an Executor or Personal Representative as named in your Will. If you have not named anyone, the Court will appoint a person for the purpose. This Personal Representative will be able to access your estate and your accounts.

The process of probate will be guided by whatever wishes you have expressed in your Will. If you have not drawn up a Will then the laws of intestacy would be followed in determining the distribution of the estate.

There are several ways to avoid the probate process altogether. A qualified estate planning attorney can help you decide which methods will work best for you.

The Hammond Law Group is a member of the American Academy of Estate Planning Attorneys.