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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.
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The proponents of the Will have the initial burden of due execution, venue, and proof of death. The burden is on the contestant to show lack of testamentary capacity, fraud, undue influence, duress, mistake or revocation. However, undue influence cannot be inferred by motive and opportunity alone. There must be some evidence, either direct or circumstantial, to show that undue influence not only existed but also influenced the making of the Will.
I have always considered the two most important witnesses in a Will contest to be the drafting attorney and treating doctor.
Shop "smart" this holiday season. Scammers are watching for you...
Maybe your adult children have brought up the idea, or maybe you’ve had some discussions with friends about their moves to senior communities. Whatever the case may be, if you’re considering a move, be sure to plan well ahead and educate yourself about your options.
The more you know, the better off you are...
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Last Friday, the New York Times published a very negative article about donor-advised funds (DAFs), calling them a “Philanthropic Loophole” in its headline and quoting a tax professor at the University of Southern California as calling DAFs “a fraud on the American taxpayer.” What, exactly, is a DAF, and are DAFs really so bad?
The sinister aspect of emojis....
It’s time to put the smartphone down. Did you know the average American checks their phone every 12 minutes? This means touching your phone roughly 2,617 times a day. For Millennials, who are in the top 10 percent of phone users, it’s 5,427 times a day. We are all so consumed with checking our Facebook or swiping to the left or to the right on Tinder, or constantly checking newsfeeds, that our phones control and flood every waking hour of our days. Recently, Apple and Google have designed a plan to incorporate a “digital wellness” app that can monitor and track the time you spend on your phone. In an experiment, Nick Fitz, a behavioral researcher at Duke University, tracked the usage of smartphones on over 200 people. Most of these people received 60 to 80 notifications on their phones daily. He eliminated the alerts they were receiving on their phones and their stress levels dropped and their concentration improved. However, he also saw an increase in their anxiety levels due to the fear of what they were missing out on. In order to relieve some of that anxiety, Fitz and a team of his researchers formulated a plan to batch and distribute the daily notifications into three groups – morning, day and night. In doing so, people with this app on their phones saw lower stress levels, higher levels of concentration and no increase in anxiety. Although we enjoy using technology and all that it has to offer, the next time you pick up your phone to check your notifications, consider how technology is using you.
We are pleased to announce that Herb Tucker, Laurie Hunter and Kevin Millard were recognized as 5280 Top Lawyers in Denver in 2018. Herb was recognized in the area of Probate Litigation, and Laurie and Kevin were recognized in the area of Estate Planning.
“Alexa, who can I contact to prepare my Will?” Does the future of estate planning fall into the hands of a cloud-based registry?