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Properly Signing a Will

The Importance of a Properly Executed Will, and What it Does and Doesn’t Control

In Colorado, signing a will with the proper formalities can make a big difference in the administration and distribution of your estate.

Colorado has a progressive, consumer-oriented probate system. Commentators in the national media constantly warn the public to “avoid probate,” but in most cases these warnings do not apply to Colorado residents who do not own real property outside of Colorado.

If you think you’ll be satisfied with the will that the Colorado legislature has written for you if you die without a will (“intestate”), then this article doesn’t apply to you. If you prefer to provide your own directions for distribution of your property at your death, then you should continue reading.

While Colorado probate can be relatively easy and painless, it is more likely to be so if your appointed personal representative can produce an original, self-proving will. Anything short of this is going to cause extra expense, and may open the door to a will contest.  For example, if the original is lost and only a copy can be found, an extra probate court pleading will be necessary to rebut the presumption that you revoked the original. A self-proving will must be simultaneously executed, witnessed, and acknowledged before a notary, with the proper affidavits. The original should be kept in a bank safe deposit box or at your attorney’s office; both the bank and the attorney will lodge the will directly in the proper court upon information of your death.

Did you know that the directions in your will do not control all of your property at your death? Your will is lodged with the probate court to govern the administration of “probate property” only. This is property you leave in your name with no other administrative process for transferring legal ownership to your beneficiaries. If you own property with a surviving joint tenant, or a designated death beneficiary, at your death legal ownership of this “nonprobate property” is automatically transferred to your surviving joint tenant or designated beneficiary, without the need for a probate proceeding. Therefore your will does not control this property. If your will establishes a trust for minors, or tax planning, it will not apply to nonprobate property without proper planning. If your will divides your estate equally between your children, it will not apply to accounts you jointly own with one child.

The difference between a will and an “estate plan” is that an estate plan will integrate your nonprobate property ownership with the directions in your will. An estate plan will result in your property passing according to a coherent plan, rather than haphazard distributions that may not make sense or be more costly to your family.

For assistance drafting a will, please contact Michael Smeenk.

Mimi Abrams Goodman is no longer with the law firm of Frascona, Joiner, Goodman and Greenstein, P.C.
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