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April 10, 2004: What Warrants Changing My Will?

Q: I have recently moved to Fort Collins. Do I need to change my Will?

A: If your Will was properly executed, even if it was done in a different state, then the document will be honored. But it might be wise to have your Will reviewed by a local attorney. We are lucky in the Fort Collins/Loveland area because there are a number of competent estate lawyers that can help. But first, before discussing a Will, letÕs look at a Living Trust which many newcomers bring instead of a Will.

In certain states, such as California, a living Trust is the superior estate document. But in Colorado, because of our Uniform Probate Code, a transplant from a living Trust state (even with an estate tax problem) may be very pleasantly surprised to learn that he or she can use a Will for estate settlement purposes and make things simpler, easier, more efficient, and less expensive than staying with a living Trust. Thus, even though the Living Trust would work in either California or Colorado, there might be a better way to do things.

Even if you feel that your Will generally works, changes might still be desirable. Your Will might contain clauses that are against public policy in Colorado, such as the "no Will contest" clause, or a clause that requires a certain attorney to settle the estate, or clauses that reference other sister statesÕ laws. In addition, Colorado might permit certain things that your former home state did not. For example, with the appropriate language in your Will, a list designating that certain tangible personal property to be distributed to particular individuals can be made on a separate sheet of paper and then the list can be changed without going through the steps to amend the underlying Will. At death, the list would have the same weight as if the dispositions were listed in the Will.

Many out-of-state Wills I see are just signed and witnessed. In Colorado we also notarize the Will, so the genuineness of the signatures does not automatically come into question. If your Will was not self proving (i.e. notarized), then a simple Codicil (amendment) can be done to correct any such areas that might cause a problem or make extra work for your personal representative.

Not all changes in the Will need to be corrected. You do not have to change your Will because it refers to your living in another state, city, or county. And in like manner, if someone named in the Will now has a different last name, changing your documents would not be mandatory. But when the document is changed for substantive reasons (i.e. changing executors or beneficiaries), then these "housekeeping" changes should be picked up at that time.

Besides checking the Will, seeing a local attorney would also be helpful to be sure that property is titled or beneficiary designations are in place to support the kind of estate document that you have, especially if you have assets or interests in other states besides Colorado. There is more to a Will than just putting something down on paper or running off a computer program. Tying everything together is also important.

A visit to a local attorney is also helpful to insure that other needed estate documents are in place as well. Having durable powers of attorney is desirable. If you do not have a set, consider doing them. If you do have a set, just as with your Will, your out-of-state powers will be honored in Colorado, but it still might be wise to have them reviewed. It is better to identify any difficulties and correct them in advance rather than have your agent "tripped up" at a critical time when you cannot sign new ones.

Even if you have an out-of-state Living Will, I would suggest that a new Living Will be signed using the Colorado format. Thus, you have a document set up in a manner that the Colorado medical community is used to seeing. The Aspen Club at Poudre Valley Hospital provides these forms free of charge.

So welcome to Colorado (or Fort Collins/Loveland) and have the peace of mind knowing that what you did previously does not need to be jettisoned, but do put a review of the estate documents on your "to do" list.

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