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We are saddened to share with you the loss of our long-time partner and friend, Mike Farley. Mike was one of the great lawyers in the trusts and estates field, both locally and nationally. He will be missed by his colleagues, as well as his clients.
In the November 2019 Wade Ash Newsletter, Herbert E. Tucker submitted an article regarding the pros and cons of pre-death will contests. In that article, he pointed out only a handful of states will entertain a pre-death will contest. A majority of states, however, will not entertain a motion for determination of the validity of a will during the testator’s lifetime because a will is deemed ambulatory and, therefore, only takes effect upon the testator’s death. Simply stated, most Courts will not render advisory opinions where there is no actual controversy before the Court.
Technology makes it easier for fraudulent lovers to pull off one the fastest growing internet scams...
Even though many states, including Colorado, have legalized aid-in-dying laws permitting terminally ill patients the right to end their own life, several hospitals prohibit this process. Colorado adopted aid-in-dying legislation in 2016. Accordingly, it is legal in Colorado, but faith-based hospitals have rules and policies that prohibit doctors from prescribing aid-in-dying medication to assist their terminally ill patients end their life.
As wonderful as it is to watch your favorite shows on a Smart TV, that Smart TV is also watching you...
Congress passes last minute tax changes...
Beware of charging cords in your hotel room or in the airport. Los Angeles District Attorney’s Office warns a free charge on your electronic device could end up draining your bank account. Juice jacking happens when an unsuspecting user plugs their electronic devices into a USB port or USB cables that are loaded with malware. People don’t see this scam coming, however, if it is too good to be true, it probably is. This scam uses malware that infects the device giving hackers a way in. They can then read your export data, including your passwords. Rather than use any available charger, you should always carry your own charging device, only charging directly from an electrical outlet and using portable batteries that were bought from known venders. The scam is similar to scammers, who steal debit card numbers by putting illegal card readers or skimmers on ATMs. Don’t let the Grinch steal your holiday season.
In 2011, Colorado passed legislation permitting chemical methods to decompose a decedent’s remains. Holistic funeral homes are cropping up in Colorado. These funeral parlors offer an environmentally friendly process called alkaline hydrolysis.
"While we are enjoying this season with friends and family, remember, scammers never take a holiday..."
"Sometimes spammers use spoofed numbers for robocalls..."
A dependent adult is defined as an adult of any age who cannot provide properly for his or her basic needs. This includes difficulty managing finances and/or resisting fraud and undue influence by a trusted party.
Data breaches have become commonplace...
The gift, estate and generation-skipping exemptions are $11.4 million per taxpayer in 2019. Keep in mind that if a Credit Shelter Trust was earlier created at the death of a family member, that trust ordinarily will not be included in the estate of the beneficiary. With the larger estate tax exemption, the family may not care about estate tax inclusion, but they may want a “stepped up basis” for the assets in the trust at the death of the current beneficiary to minimize capital gains taxes. If this applies to your situation, you probably need to take some actions now in order to obtain the stepped-up basis for the trust assets on the death of the current beneficiary.
Be cautious of a new social security scam targeting the elderly and the vulnerable...
The Colorado Probate Code affords a surviving spouse, who may be unintentionally omitted from his or her deceased spouse’s Will, an intestate share. The rationale for this provision of the Code is the presumption that the Decedent would have wanted the surviving spouse to receive his or her estate rather than beneficiaries named in a prior Will that predates the marriage.
In May, three hand-written wills were found hidden in Aretha Franklin’s Detroit area home. Her family and lawyers previously thought she had died intestate. Two hand-written wills dated 2010 were found in a locked cabinet and third hand-written will dated 2014 was found under a couch in Ms. Franklin’s living room. The wills are difficult to follow. (Click here for example.) All three documents have been offered for probate as valid holographic wills. There is some question whether they are valid under Michigan law.
Colorado is one of about ten states that recognize common law marriage. In a 1987 case, People v. Lucero, the Colorado Supreme Court held that “common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.” The couple’s agreement to be married need not be explicit and may be inferred from the couple’s conduct. Under Lucero, “[t]he two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife.” The court listed a number of behaviors that a court may consider in analyzing those two factors: joint bank or credit accounts, joint ownership of other property, the woman’s use of the man’s surname, the use of the man’s surname by children born to the parties, and the filing of joint tax returns.
Author and director William “Tim” Burton is quoted as saying, “They say that one person’s insanity is another person’s reality.” Recently, Wade Ash has been involved in several interesting cases involving testators suffering from cognitive impairment when they prepared their Will or Trust. Even persons who are declared mentally incompetent, incapacitated or suffering from various types of mental illness or addiction, may still have sufficient capacity to prepare a Will or Trust. A testator may even lack testamentary capacity, but still have “lucid intervals” enabling them to prepare a Will.
January is the perfect time for the annual review of estate plans, particularly if you have had significant changes in your life such as deaths, relationships or assets. Here are a few questions to help get started.