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Will Myths

Can You Hand Write A Will in Colorado?

This week we are addressing common myths in estate planning. To kick things off, we are starting with the most common one we hear all the time: that hand writing a will works just as well as having one drafted for you. The short answer to whether or not you can draft your own will is yes. However, that will is not very strong and there is little guarantee that it will hold up in court if anyone decides to contest it.

Why Isn’t A Handwritten Will Worth Much?

When an attorney prepares a will for you, the hope is that they have experience dealing with what happens when that will needs to actually be used. This means they know what terms to add in to the document that will prevent litigation and will contests. Further, an attorney knows what is required under the law to have a valid last will and testament in Colorado that will hold up in court. Some of these requirements include:

  • Having two witnesses to attest to you have capacity to sign your will
  • Having a notary witness your signature (basically confirming that you are who you say you are)
  • Having you swear that you understand the documents, are over 18 and that you are not signing under anybody else’s influence

A handwritten will just doesn’t usually have these things. Without these requirements, there is no guarantee that you were even the one to write the will in the first place. Handwritten wills (also called holographic wills in Colorado) are much harder to uphold in the court system if anyone tries to contest them, even if all of the above requirements are met. In the long run, you have a lawyer draft your documents for you because you want peace of mind that they will work. You can not guarantee that with a handwritten document. You can learn more about what actually goes into a full estate plan here.

So Let’s Wrap It Up

So can you draft your own will on a cocktail napkin? Yes. Should you? Absolutely not. Odds are if you care enough to write something down, then it’s important enough to you and your family to make sure it goes where you want it to correctly. The only way to best ensure that happens is to get a proper estate plan from a lawyer. As I’ve said in many posts before, most attorneys will at least offer a free consultation where you can learn a little bit more about your options.

What If I Told You Everything You Have Heard About Trusts Is A Lie?

Many people think that in order to have a solid estate plan where they can avoid probate and protect themselves from creditors, they have to have a trust. They have been told by their parents, friends, family, and sometimes by attorneys that having a trust is the only way to go to ensure their family and their things are protected.

With somewhat recent changes in the laws here in Colorado and across the United States, trusts do not play as important of a role in most people’s estate plans anymore. If you want to know more about what a will is or what a trust is, you can read more by clicking that link. I’m going to focus more on when you need a trust here.

So When Do I Actually Need A Trust?

There are three main times I recommend a trust for people:

  1. If you have what I like to call a “Brady Bunch” family, then a trust can help to determine who is supposed to get what a little more effectively than a will can. This occurs when each spouse is bringing children to their current relationship from prior marriages. If you wish to split things to certain children upon the death of the first spouse, or guarantee certain children will get more/less than others at the second death, then a trust is beneficial.
  2. If you have tons of money. By tons of money, I mean over the federal estate tax exemption amount of $5,490,000.00 for 2017. If you are married, you can double that number. If you have over that amount you will pay estate taxes in Colorado. Trusts can help to plan for this occurrence and lower your estate-tax bill.
  3. You have complex family situations. More specifically, you wish to protect your children from themselves. If you have a child with a drug addiction, alcohol problem, gambling addiction or any other type of situation where you would like to ensure money is protected and can’t be used for those addictions, a trust can help you to accomplish that goal.

Just because you fall under one of these three categories, does not necessarily mean you have to go out and get a trust right away. A will-based plan still may be able to meet all of your needs and protect you.

Many people also come to me and ask, “What about Medicaid planning? Doesn’t a trust help protect your assets from Medicaid?” Well, yes and no. The long and short is that Medicaid laws change so frequently that it is nearly impossible to draft a plan and guarantee that it will work against all Medicaid laws forever. Feel free to read more about the pros and cons of Medicaid trusts here.

The important thing is to have a skilled estate planning lawyer review your situation to help you decide what may work best for your specific situation.