Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

“Sound Mind”, “Lucid Intervals” and “Insane Delusions” – What Does It All Mean?

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.

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Will Contests

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.

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Making the Law Keep Up

Intestacy laws determine how a person’s assets pass if there is no will. What should intestacy law provide with regard to same sex marriage and with respect to parentage involving genetic materials. Under the Uniform Parentage Act a person may have three parents (and correspondingly more grandparents).

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Electronic Wills–Governor Vetoes Florida’s Electronic Will Statute (Part II)

In 2017, the Florida Legislature approved House Bill 277 promulgating the new Florida Electronic Wills Act (FEWA). The FEWA authorizes the creation of electronic wills and provides that the execution of electronic wills may be witnessed and notarized through the use of remote technology. The Act also specifies that electronic wills for residents, as well as non-residents, may be probated in Florida.

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Swedish Death Cleaning

A common problem which many families encounter following the death of a parent or other relative is how to deal with the decedent’s personal property. In the absence of a legally effective personal property memorandum, will, or other governing document signed by the decedent specifying who gets what, the disposition of the personal property sometimes leads to bitter, protracted, and often times expensive controversies between the surviving spouse, children of the first or subsequent marriages, or other family members.

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Third Party Rights: Small Estates and Non-Probate Assets

Many of our probate statutes are designed to carry out a decedent’s intention as expressed in his or her will. Certain rules of construction (survivorship, substitution of assets) apply to wills and revocable trusts as will substitutes. The statutes also provide for recognition and ordering of third party (non-beneficiary) interests in probate and revocable trust assets. These would include taxes, creditor claims, and family protection entitlement during the period of administration.

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Beneficiary Designations May be Dangerous to Your Estate Plan

Traditionally, the central document in an estate plan was a will or revocable trust. For many people, that continues to be true, but it is now possible to pass almost any kind of property outside the terms of your will. For example, this can be done by adding the beneficiary as a joint owner on a bank account, by naming the beneficiary as a “pay on death” (POD) or “transfer on death” (TOD) payee on a stock or securities account, or by signing a “beneficiary deed” that names a beneficiary to become the owner of real estate when you die. Colorado recently added automobiles to the list of assets that can pass by a TOD beneficiary designation. These arrangements, which I refer to generically as “beneficiary designations” can be useful, but they can also seriously disrupt a careful estate plan if they are done without care and appropriate advice.

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Leggo My Eggo -or- Who Gets My Gametes When I Die?

Among the many wonders (and occasional terrors) of modern medicine, few strike more of an emotional chord than advances in reproductive technology. Preserving our genetic material for use after death has passed from science fiction to scientific fact; but the law remains unestablished in Colorado as to what happens if there is a dispute about ownership of frozen sperm, ova, or embryos after the death of one or both of the donors.

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622 Hits

Mary Tyler Moore: Another Uncertain Celebrity Estate

Beloved actress, producer and activist, Mary Tyler Moore, was laid to rest in a private ceremony in Fairfield, Connecticut on January 29, 2017 at 80 years old, after battling diabetes and suffering from complications with pneumonia. While the status of her estate is unclear at this point, it is very likely that Moore left behind a Will. With a considerable legacy, including an estate that is valued at $60 million, a question arises of who will inherit Moore’s fortune. Her son and only heir, passed away tragically in an accident and her brother and sister are also deceased. This essentially leaves Robert Levine, her longtime husband, as her primary heir. Under Connecticut Probate Rules, Levine is entitled to at least one third of Moore’s probate estate, which in this case, under Connecticut’s spousal share, could be in the spectrum of $20 million. Although Moore left an undetermined amount of money to charity, the question remains: Will her husband inherit a large chunk of the “high-net-worth” legacy that she leaves behind or will charities such as PETA and the Juvenile Diabetes Research Foundation, to which she has contributed in the past, receive the majority share?

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807 Hits

News of the Firm

We are very pleased to announce that Gary T. Potter joined our firm on July 1, 2016. Gary’s practice will continue to focus on Estate Planning, Probate and Trust Administration. Before beginning his career in the private practice of law, Gary served as a Deputy Colorado Attorney General, Inheritance Tax Division; as a Vice President and Trust Officer with First National Bank of Denver Trust Department; and as Vice President Marketing of Integrated Resources. Gary has served on numerous boards and in leadership positions throughout his career including the Denver Trust Officers Association, Teachers Award Foundation, Craig Hospital Board and the Colorado Golf Association, to name a few.

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Our Furry Friends

In perusing the bulletin board in our office lunchroom I notice that we have posted ten photographs of our loved ones. Seven are pictures of pets and three are pictures of children.

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The Late Prince Rogers Nelson’s Intestacy Problem

That Prince died worth hundreds of millions of dollars without a Will is probably astounding to anyone who hears it. But it is not all that uncommon, even among the wealthy.

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Death, Taxes, and the Business of Dead Celebrities

Prince, the artist formerly known as Prince Rogers Nelson, died on April 21, 2016 at the age of 57. While people all over the world are mourning the loss of this music icon, his surviving family and the lawyers for his estate may soon be mourning his lack of legal planning for his death.

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Estate of Petteys v. Farmers State Bank of Brush, 2016 COA 34, No. 14CA1581

On March 10, 2016, the Colorado Court of Appeals issued an opinion that reversed the trial court and held that an irrevocable trust, a part of which was included in the gross estate of the decedent, was required to contribute its pro rata share of estate taxes under Colorado's estate tax apportionment statute. Our firm had prepared the Will for the decedent, in which estate taxes attributable to the irrevocable trust's inclusion in his gross estate were specifically apportioned to that trust. The trust had been created in 1958. The decedent died in 2009; a U.S. Estate Tax Return was filed in 2010, the estate paid the entire tax due, and the personal representative requested that the trust contribute its share of the tax. When the trustee refused, the personal representative brought suit. Initially, the trial court held that because federal law was silent as to apportionment to such interests prior to the 1986 effective date for IRC 2207B, the Colorado statute at 15-12-916 applied, but the court did not decide certain other issues. After the IRS completed its audit in October 2012, final request for contribution was made. A hearing was held before the trial court in 2015 on the remaining issues, and the court ordered, among other things, that the effective date statute at 15-17-101 permitted the court to refuse to apply the Colorado Probate Code if it found it to be "inequitable." The trial court found that it would be inequitable to force the trustee to pay its pro rata share of the tax and entered judgment for the trustee. The personal representative appealed.

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837 Hits

Heir Location Service Industry Problems

At the end of 2015, the U.S. Department of Justice brought charges against a California-based heir location services provider. The DOJ has a number of ongoing antitrust investigations into customer allocation, price fixing, bid rigging and other anticompetitive conduct that runs rampant in the heir location service industry. Consumers will benefit from the Department of Justice shining a light on this industry.

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1049 Hits

Pretermitted Heirs

Suppose you have a will and then, following the execution of the will, get married/or have a child. Did you know that Colorado has a “pretermitted heir” statute which basically provides that, under those circumstances, the new spouse or child is granted an intestate share of your estate. The intestate share is 50% + for a spouse and an equal share of the balance for a child. The shares are to be distributed outright, and the failure to redo your will may seriously distort the pattern for distribution of your estate. For example, your present will may set up trusts for children which coordinate the management and timing of trust distributions for the benefit of your other, pre-existing children.

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Those picky details . . .

In this age of instant access to information on the Internet, including do-it-yourself estate planning documents, it is important to remember that the devil is in the details. Examples on point: a recent email exchange among estate planning attorneys from around the country describing potentially painful prose:

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1207 Hits

Lauren Bacall's Pooch to Inherit $10,000 From Her Fortune

According to a recent Times of India article, Lauren Bacall kept aside $10,000 of her $26.6 million dollar fortune for her beloved papillon pooch, Sophie. For the full story, go to Lauren Bacall's Pooch.

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1430 Hits

Marvin Gaye’s Heirs Sued Over “Blurred Lines”

If you’ve been anywhere near a radio, television or the internet this summer, you’ve undoubtedly heard the song or seen the video for “Blurred Lines,” by Robin Thicke, Pharrel Williams, and T.I. (whose real name is Clifford Harris, Jr.). In fact, these performers themselves boast that the video for “Blurred Lines” has been viewed on YouTube.com over 140 million times.

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1786 Hits

Despite Willa Cather's Restrictive Will, her Personal Letters Will be Published

Since her death in 1947, author Willa Cather’s personal letters have been off limits per a provision in her Will which prohibited the publication of her personal letters. Her last individual executor died in 2011, which resulted in her copyrights passing to the Willa Cather Trust, the University of Nebraska Foundation and the Willa Cather Foundation, which quickly dropped the prohibition of Ms. Cather’s letters, as well as the restriction concerning the ban on film adaptions of Ms. Cather’s works. As a result, The Selected Letters of Willa Cather will be published this month and will contain 566 of the almost 3,000 letters which are known to have survived Ms. Cather. Go to the link for the New York Times article about this - O Revelations! Letters, Once Banned, Flesh Out Willa Cather
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1052 Hits