Will mistakes

Will mistakes
Don’t make these mistakes!

There are tons of mistakes to makes and many potholes to avoid when attempting to create a solid estate plan in Colorado. We are going to go over the top 7 that we see in our Northglenn-based practice.

Have questions on any of these? Give us a call at 720-547-2319 in Northglenn or  719-249-2785 in Colorado Springs. Our lawyers aim to help!

Avoid These Critical Mistakes When Drafting A Will

Here’s a list of the most common mistakes people make when creating an estate plan:

  1. Only having a will: A lot of individuals think that simply having a will that says where they want things to go will prevent court and stop probate. This is not true! If all you have is a will, there is a very high chance you will send your family to court, costing them thousands of dollars in legal fees even if they are not fighting about anything. Avoiding probate requires sophisticated planning that a simple will cannot provide on its own.
  2. Naming multiple people to be in charge: This is a very common mistake. Many people will name all of their children to be Personal Representative (also known as Executor) at the same time. This is a costly mistake that can lead to more fights down the road. If you have more than one person in charge, there is a much higher probability they will disagree on things. This leads to court and a longer, drawn out probate process as well.
  3. Failing to name backups. As an opposite to the previous mistake, many people will simply add one person as their power of attorney, personal representative, or other “power person.” This means that if that person passes away or can’t serve as your power person because they are incapacitated or out of town, you have no one to act. Then a judge has to come in, and we are in an expensive court hearing. Naming backup “power people” solves this problem.
  4. Doing your plan online: While we are biased because we are lawyers who draft wills, doing a plan online is a very bad idea. These plans can’t be witnessed or notarized for you, so when you receive them in the mail or print them off, they are not legally binding documents. Further, you don’t get to speak with an attorney who specializes in estate planning, you don’t really know if the plan will work until it is too late, and you don’t get the peace of mind you deserve when you do things online.
  5. Transferring property yourself: Don’t draft quitclaim or special warranty deeds by yourself! Your house cost hundreds of thousands of dollars. It’s worth a few hundred dollars to have an attorney draft a proper deed to protect that value. We have seen so many people lose title to their home because they drafted a deed incorrectly. It then costs thousands of dollars to fix the problem. Do it right the first time and give an estate planning attorney a call.
  6. Creating irrevocable trusts: While irrevocable trusts have their place in certain plans, they are very dangerous documents. They should never, never, ever be done without consulting with a lawyer, and most times still not completed after that.
  7. Not talking with your family: This one is critical. Do not keep your plan a secret. It’s that simple. Have the uncomfortable meeting with your family, we promise it’s not as bad as you think it is, plus its an excuse to get everyone together. The more people who know what is supposed to happen when you pass, the harder it is to fight about. Surprises create fights, period.

Want To Learn More About The Many Other Mistakes That Can Be Made When Creating A Plan?

Contact our estate planning attorneys today. We serve Colorado Springs and Northglenn/Thornton.

End-of-Life Doulas and Death Doulas in Colorado

The following information was graciously provided by Tawnya, an End-of-Life Doula at Dear Departures.

What is an End-of-Life Doula (EOLD)? EOLDs provide non-medical support to the dying and their circle, working alongside hospice (not in lieu of it.) Services may include but are not limited to: caregiving, respite, legacy projects, life review, care planning, vigil planning, sitting vigil, and bereavement support.

What is a Home Funeral Guide (HFG)? Most people don’t know that it is legal in all fifty states to have a viewing/wake in the privacy and comfort of their own home. Home Funeral Guides teach families how to care for their dead, within their comfort level, rather than outsourcing that care to a funeral establishment. The benefits of home funerals include: privacy, intimacy, familiarity, cost-savings, and an abundance of time, as well as the ability to be hands-on, which can be therapeutic for the bereaved. Home funerals are, at their core, a reclamation of families’ rights.

What is a Life-Cycle Celebrant? Life-Cycle Celebrants are specially trained to craft and officiate custom ceremonies for events like weddings, baby blessings, and in the case of Dear Departures’ specialty, funerals/memorials/celebrations-of-life. One of our favorite offerings, known as living funerals or “exit-parties” are events where the dying person is the still-living guest of honor at their very own send-off! We also offer pet-death ceremonies. Great time and care are taken during our process to gather stories that are then woven into a personalized ceremony, to create an event true to who the honoree is, or was, in life!

Services an End-of-Life Doula Can Provide

There are many exceptionally helpful things a Doula can do for you and your family, including:

  • End-of life care, planning, and legacy projects as an added layer to hospice.
  • Support families who choose not to hire the services of a funeral home, by opting for a family-directed home funeral (wake/viewing.)
  • Craft custom ceremony for funerals/memorials/celebrations-of-life whether a family is using a funeral home, or not.
  • Offer educational events on topics of death and dying, within the community.

If you have questions for Tawnya, reach out to her at tawnya@deardepartures.com or call her at 719-430-5272!

New Laws in Colorado

New Laws in Colorado Due to COVID-19

New Laws in Colorado
Our lawyers scour the new laws to get you the info you need! Call Althaus Law today. 720-340-2783

COVID-19 has made the world an uncertain place, to say the least. It even has our lawmakers changing procedures and statutes that have been on the books for decades. At Althaus Law, we want to keep you up to speed on the latest changes, so you can make informed decisions when it comes to protecting your family and creating your will, trust, or other estate planning documents.

You can always contact our sophisticated lawyers if you have any planning questions during the pandemic around items like:

  • How do I draft a will?
  • Should I do my plan online?
  • What’s the difference between a will and a trust?
  • Do I need powers of attorney?
  • Who makes decisions for me if I’m on a ventilator?

New Rule 91 and 92 in Colorado

Alright, this part is going to get technical, but I promise to summarize for you. Don’t fall asleep!

Rule 91 and Rule 92 under the Colorado Rules for Probate Procedure are now updated to allow remote witnessing of specific documents and remote attestation of wills. There are very specific rules that must be followed, however. It is not as simple as getting on a Zoom call or a Google Meet and signing while people on the same video conference watch. Some of these requirements include:

  • There must still be ONE original will or estate planning document. This means it has to be mailed around to people.
  • These rules are not permanent, so this will not be allowed in times where social distancing is not required.
  • Remote witnessing of documents requires an attorney to be involved.
  • If these wills are completed properly, they still cannot be submitted for an informal probate when the person making the will passes away. The process must be formal.

So What Does All This Mean?

To summarize things simply, Colorado is now allowing “remote notarization” and “remote witnessing” of certain documents. However, the rules are very specific and hard to complete successfully. These rules also require that an attorney be involved, so the do-it-yourself option is off the table.

Even if individuals do complete the process remotely, it is still recommended to complete the plan in person when things calm down since the old laws will go back into play eventually.

When in doubt, give us a call at 720-340-2783! We can setup a free initial consultation to go over your concerns and make sure you get the understanding you need.

Stay healthy out there.

What is a Health Care Power of Attorney?

A Medical or Health Care Power of Attorney is a document which allows you, while you have capacity, to designate who you would like to make your medical decisions for you in the event you can no longer make them for yourself.

Why Do I Need One?

Medical Powers of Attorney are critical- if you should need it, and don’t have it, your loved ones may be dragged into a Guardianship hearing to get someone appointed to make these decisions for you. Some may think they can rely on the Colorado Medical Proxy Statute to protect themselves. This is fine and dandy if you are married and your spouse has the ability to make these decisions, or you aren’t married, but you only have one child and you trust that child to make these decisions for you.

However, should you not fit that cookie cutter mold, you are setting the stage for fighting amongst your loved ones over which course of treatment to take or not take and leaving yourself vulnerable to an emergency Guardianship hearing to get someone appointed.

An Ounce of Prevention…

There’s a steep price tag to these hearings and appointments: thousands of dollars. Simply put, Medical Powers of Attorney are a far better alternative to a Guardianship appointment – don’t leave it to chance.


Don’t leave it to chance.

Make an appointment at our Northglenn or Colorado Springs location!

Common mistakes in a deed

Three common mistakes when you don’t use an attorney to draft your deed

We see it all the time, an improperly drafted deed which has disastrous results. A widow needs multiple probates in different states after her husband passes to get title properly in her own name. Expensive and timely correction deeds are required because we must dig back to the original deed to find the true legal description. Extra steps and re-execution of deeds because two people appeared on the original deed, and then only one of them transferred the property to the new property.

The short of it? It’s expensive. And time consuming. And it could have been easily avoided.

You do need an attorney experienced in title and drafting of deeds to help you.

Let’s start with how you can own property with more than one person. Joint tenancy: my husband and I own our home as joint tenants, if I pass away, my husband simply files my death certificate with our county clerk and recorders office and the home is now 100% his. Tenants in common: my husband and I own our home as tenants in common, if I pass away, my husband must open a probate. He must wait a minimum of six months (the minimum duration of a probate in Colorado), pay a lot of money to the court and likely to a probate attorney, and then he can own the property 100%.

Usually it is an error, an accident, a mistake, when a property is owned as tenants-in-common as opposed to joint tenants. More bad news, the default is tenants in common if it isn’t clear on the deed.

Next up, incorrect or incomplete legal descriptions. In title, the legal description is what matters, not necessarily the street address. Messing up the legal description can result in the property not being transferred. Letter for letter, comma for comma, word for word, the legal needs to match. I have had to look back several deeds to find the actual proper legal description which is time consuming and then do correction deeds before we can even do the transfer which is costly.

Other issues that pop up: cut and paste language, missing owners on a subsequent transfer, misspelling of grantor and grantee names, missing or wrong county information, and missing dates. These errors usually result in correction deeds, pulling deeds farther back in time, and an attorney coming in to fix it all. The end result? Extra cost to you.

Don’t make these mistakes. Call our Northglenn law firm instead!

If you need help with your plan, or just have questions about a deed, give our lawyers a call. You can also contact us online.

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.

The Guardianship Court Hearing In Chapter 4 of S-Town

You may remember that soon after John B. McLemore died in the S-Town podcast, his estranged cousins came out of no where and were able to clean out his house, even though his mother was still living there and alive! They were able to do this through a legal proceeding called a Guardianship and Conservatorship hearing. This is a court process that allows you to appoint an individual (the guardian or conservator) to manage the healthcare and financial decisions of an incapacitated person.

In S-Town, the judge found that mom was incapacitated, therefore handing over all her civil rights to the cousins … legally. This is a very dangerous proceeding, for many very obvious reasons. The most important of which being that mom has no more right to make her own decisions regarding herself or her money.

Was That Even Legal??

Unfortunately, yes. However, Tyler and possibly the producers of the show, could have taken steps to make sure that John’s estate was protected and that mom had a different guardian. There is no guarantee that any steps anyone would have taken would have worked. They are in “S-Town” after all. We don’t know exactly how things went behind the court room doors, but it seemed like the judge wasn’t too fond of Tyler and his tattoos, so putting Tyler in charge probably wouldn’t have been an option.

What could have been an option is a third-party professional. This professional would have been able to:

  • Decide what actually happened and who was in the right
  • Decide who John’s things should go to (assuming they were also appointed as Personal Representative)
  • Figure out what should happen regarding Mom’s care
  • Figure out what should happen with Mom’s assets
  • Refuse pursuing  charges against Tyler

All of this could have easily been prevented if John and his mother had estate plans in place. You can read other posts in our S-Town series for more information on how estate plans could have helped in S-Town.

Are There Protections Against This In Colorado?

There are. As mentioned above, you can plan ahead with a full estate plan. You can also take action afterward, but that is much harder. The truth of the matter is that taking action after a guardian has already been appointed requires that a third party speak up in order for those protections to be enforced. Tyler, the producers, someone, would have to bring a legal action against the cousins for a breach of fiduciary duties. Or, as discussed above, these people could have tried to challenge the action in the first place and suggest a better person to fill the spot of guardian/conservator.

As I have mentioned in other posts, if you don’t have an estate plan in place, the state will make one for you. This means if you do not have a medical or financial power of attorney, a judge you do not know will appoint a professional  you have never met to manage your affairs for the rest of your life if you become incapacitated (called a guardian and conservator). There is no guarantee this person will be your spouse, your next of kin, or even a family member. As we see from S-Town, without a proper plan, you don’t get to say who should not be in this position.

The bottom line is that being prepared is the best defense. Almost everyone I talk to thinks things like this only happen in the news, on T.V., or to other people. The sad truth is that this situation is the common one that most people end up living through. Because people don’t want to think about their own incapacity such as getting Alzheimer’s disease, being in a car accident and suffering brain damage, winding up in a coma or otherwise losing the ability to make decisions, they just avoid it in hopes that it will clear itself up. Or people utter the all-too-common phrase “who cares, I’ll be dead.”

Your family cares. The people you leave behind care. Get prepared for them. Your clock is ticking.

Would a will have helped in S-Town? YES! A will definitely would have made things a lot better for the people John B. McLemore left behind.

Over the next few weeks, I’m going to be explaining the different legal aspects of what happened toward the end of S-Town, and how most of it could have been prevented. If you don’t want to know what happens, then don’t read these posts! This week, we are starting off with how a will could have helped John’s probate process in S-Town be less of an S-Show.

A Look At What Happened With No Will In The S-Town Podcast

With no will in place, the cousins were able to come in a take whatever they wanted. Technically, if you do not have an estate plan, the law will write one for you. And, as you heard, any discrepancies between parties is going to be an unpleasant experience.

The gist of what happens when the state makes your estate plan (including your will) for you is that your relatives or spouse inherit. The normal order of who inherits first is:

  1. Spouse
  2. Children
  3. Grandchildren (then great-grandchildren, etc.)

If none of the above are alive, then it passes to:

  1. Parents or grandparents
  2. Brothers and sisters
  3. Nieces and nephews
  4. Cousins

This order may seem practical, but as we saw in John’s scenario, it was terrible and not what he wanted at all. This law-defined pattern can be changed as much as you want with a simple will. The above order is very problematic in many cases, not only John’s. For example, if you are on a second marriage or have children from a prior relationship, your children can quickly become disinherited. If you have relatives you would rather leave out of your will (like John’s cousins) then you have to specifically mention that or else they will inherit. If you want to leave something to charity or have someone take care of your immaculate maze garden you have built, that needs to be spelled out. The list goes on and on, and I will not bore you with the problems here. For now, know they exist and are numerous.

One other very important part of having a will is that you get to name who is in charge of making sure your wishes are carried out. This person is called your Personal Representative. Since John didn’t have a will, the judge just named whoever was related that showed up in court that day. It turns out that was Rita, who John never would have put in charge and didn’t want to receive anything according to the show. John could have easily named Tyler, or anyone else for that matter, if he simply would have written things down.

Finally, the very family John wanted to investigate for murder in the beginning of the podcast is the family that ended up with all of John’s land. There is no way in any alternate universe that John would have wanted that to happen. If you research pictures of John’s land, the maze in particular, it seems as though it will not make it. The end of S-Town seems to allude to the fact that the land will probably hold parking lots or a Wal-Mart someday. Obviously not the ideal use John would have had in mind.

What Could Have Happened With A Will?

With a will, John McLemore could have directed anything he wanted to whoever he wanted. This would have cut the cousins out of things completely. They would have showed up in town and then been quickly turned down from receiving anything by a judge.

Further, John would have been able to appoint who he wanted as his Personal Representative. This is the person who is in charge of the probate process. Basically, that means the Personal Representative makes the will work. They find all the assets, value them, deal with any creditors and distribute everything per the terms of the will. Rita would have not been able to be appointed as Personal Representative and would not have been able to pocket the money from the sale of the land. More importantly, she wouldn’t have been able to sell it in the first place.

Don’t fall victim to the same trap. Don’t let the “evil” relatives in your life receive your hard-earned assets. Most importantly, don’t leave the “Tylers” in your life out in the cold by themselves. Keep in mind, if John had a will that named Tyler as a beneficiary, none of the things Tyler did could have been crimes. They would have been things he was required to do.

It is truly too bad that John never got around to putting a will in place. It is the excuse I hear far too often in my line of work as an estate planning lawyer. People put it off and put it off until it’s too late. If John would have just made himself draft a plan, perhaps we would be able to tour his maze, to see his clocks, and perhaps S-Town would be on its way to being more of a good town that upheld his legacy.

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.

Althaus Law Family Estate Planning

Do Trusts Have Disadvantages? YES!

With the recent changes in estate planning and probate laws in Colorado, Medicaid planning is not as easy as it once was and will-based plans are becoming more and more popular over trust-based plans. I have taken the time here to list some of the benefits of a will-based plan, and some of the potential downfalls to a trust-based plan (especially when Medicaid is concerned):

  1. Medicaid laws change very frequently making it impossible to guarantee that a plan written today will work tomorrow. This is true even if you pay much more money for a trust-based plan over a will-based plan.
  2. In order to best protect against Medicaid claw backs you need to make an irrevocable trust, preferably where you are not the trustee. This means that you do not own or control your property anymore. That relationship makes Medicaid supposedly not being able to come after it. If, however, you break the formalities of the trust and show “incidents of ownership” Medicaid will still claw through these trusts.
  3. If you own property as Joint Tenants With Rights of Survivorship then as soon as one person passes, the Joint Property passes immediately to the surviving spouse. It avoids probate and arguably there is nothing for Medicaid to make a claim against. This would not apply if you were the second spouse to pass, however. This type of planning can be completed without a trust at all.
  4. The Medicaid laws allow for exempt or non-countable assets. This means that the government doesn’t count your primary residence, your car, some of your personal household goods, retirement accounts, and more in their claw back review.
  5. Probate is actually recommended by many attorneys now in Colorado due to the numerous law changes. You get the benefit of a creditor cutoff period where creditors have only four months to make claims or they are forever barred. A lot of debt gets wiped out this way and the cutoff period is not available for trusts. Further, a judge signs off on the work an executor/personal representative completes, releasing them of liability in the future. A judge does not sign off on anything for a trust in most cases.

I have done both trust administrations and probate cases. Both have taken similar amounts of time, and I have seen trust administrations actually cost more in the end. There are instances when a trust can be very beneficial. Tax avoidance and probate avoidance are two of those. I only recommend avoiding probate if you have property in other states, however.