| CBA |
| The Colorado Bar Association |
| 1900 Grant Street, 9th Floor, Denver, Colorado 80203-4336 |
| WILLS IN COLORADO |
A will is a legal document by which a person provides for the disposition of his/her property at death. A will also names people to do important jobs, such as administrator of the estate or guardians for children. |
| Who can make a will? When should it he done? |
A person 18 or over, of sound mind, can make a will. (The person making the will is sometimes called the testator.) These are the basic requirements, but other factors are important if the will is to be upheld. The person should be free of coercion and have an awareness of his immediate family (regardless of whether they're included in the will) and have a general understanding of the extent of his possessions.
When you write a will is important. Writing a will under life-threatening situations invites litigation, so don't put it off until you're contemplating a trip, illness occurs, etc. |
| Can assets he given to whomever the person names? |
This is generally true, with two notable exceptions.
In Colorado, the surviving spouse can choose to receive a fixed share 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.
Also, a child born after the will is signed takes a share of the estate as if no will existed, unless it's made clear that the testator intended to exclude the child. |
| What happens if there is no will or if the will is invalid? |
In Colorado, if a person leaves no valid will, the estate will be divided according to the "intestacy statutes." This generally means the immediate family (spouse and children) receives the estate. If there is neither, the law dictates that certain other blood relatives take the estate. This division can become complicated.
These same laws also specify who will be in charge of the estate (called the personal representative) and guides a judge in deciding who will be guardians for children. Little flexibility in these laws exists to provide for special needs or family security - a good case for being sure to write a will. |
| Can a will he changed? |
Yes. A will can be modified, in whole or in part, as long as the conditions above are met. An amendment 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 will.
Frequently, a will is changed because the person has changed his mind about how to divide personal property. To change this, you don't have to write a new will or a codicil. You can use a memorandum disposing of personal property. It's a simple document that doesn't require the formalities of a will. This can be used only if the will specifically refers to the use of such a memorandum. |
| What else does a will do besides distribute property? |
Through a will, you can choose who will be the personal representative (administrator) of your estate. A will can set up a trust for long-term management of assets and the protection and security of family members. Through a will, you can select the guardian of 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 intestacy laws, 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. |
Joint tenancy is frequently used between spouses and also between other family members (for instance, putting a bank account in two names). However, the blanket use of joint tenancy for all assets may not be right for each individual and may create unintended tax consequences or expose one joint tenant to the creditors of another. An attorney should be consulted before you decide to use joint tenancy to be sure that the necessary specific language is used. Otherwise, the joint tenancy may be invalid. |
| Does a will dispose of all property? |
No. Certain types of assets pass automatically at death according to statute (such as joint tenancy) or according to beneficiary designations (such as life insurance). |
| What happens to my will if I get divorced? If I get married? |
If you get divorced after you've written a will: under Colorado law, a spouse named in a will is automatically eliminated as a beneficiary when the divorce is final, but only for those assets passing under the will.
If you many after you've written a will: your spouse receives the same share he/she would have received without a will unless the will makes clear that the omission was intentional or if the spouse was provided for outside the will. An intentional omission doesn't change the rights of the spouse to take a fixed share unless such rights have been relinquished in a marital agreement. |
| Can I save taxes by using a will? |
This depends on the size of the estate and other factors. But a will has the potential to save taxes when properly prepared. It can also reduce taxes in future generations, if not in the present generation. It's a common misunderstanding that "avoiding probate" saves taxes. Probate and taxes are separate matters. |
| If I've made a will and don't want any 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's prudent to have a will reviewed periodically.
Colorado law dictates that a will is valid if it was valid where it was signed, even though the will would not be valid if it was signed in Colorado. Most states have this same type law, so your Colorado will would not be invalid in another state. Still, it's wise to have your will checked when you move because of factors that could affect a will, e.g., community property states, differing rules about the disposition of personal versus real property, local rules affecting marital rights, etc. |
| Can / write my own will? |
Colorado generally recognizes wills that are hand-written and signed by the testator; these are known as holographic wills. Still, the drafting of a will does require special skills and it would be prudent to have this done by an attorney. Holographic wills are frequently ambiguous or defective, inviting delay, expense and litigation. |
(1995) 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. |