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Law Offices of Ronald W. Rutz
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July 14, 1998: Why do I need a Will?; Hunting Right-of-Way

Q: I do not see why I need a will. I don't have anything and what I do have is set up either in joint tenancy with my wife or we have named each other as beneficiaries.

A: Young couples with minor children probably need wills more than anyone else. Even though you have taken care of the property that you have, what happens if both of you pass away and one or more of your children are minors?

Without a will, the Court decides who will raise the children. In addition, the Court will probably establish a conservatorship, pick the conservator (more than likely a corporate trustee), and as each child reaches majority age, he or she will take his or her share.

With a will, you designate who raises the children, who manages their property and supports them economically, and how old each will be before the trust ends for that child (maybe the trust should last until a child has a chance to finish college or as with a disabled child, for the rest of his or her life). Finally, by doing a will, property ownership is normally reviewed by the attorney. Too often people assume property is held in joint tenancy because both names are on a document only later to discover that the title is actually in tenants in common. It is also startling for many to see who is actually named as a beneficiary.

Thus, if you want your choices to control, and not let the probate judge decide, and if you want to be certain that property ownership is properly in place, then take the hour or two necessary to do the wills.

Q: During hunting season if I shoot an animal or a bird but it goes or lands on posted private property, can I go get it?

A: According to the Colorado Department of Wildlife (DOW) the hunter must not trespass. The hunter needs to locate the landowner and then ask permission to go on the posted property. If the landowner says no, then DOW needs to be contacted and an officer will attempt to gain access.

Two reasons are traditionally given in support of this position. Private property rights are more important than this "emergency" situation (certain emergencies are exceptions to the no trespass rule). Also hunters can abuse the situation by actually hunting on private property and then using this as an excuse if caught.

On the other hand, a strong ethical position can be made that gaining immediate access is both humane and necessary in order to prevent a wounded animal or bird from suffering and to retrieve a harvested animal or bird so that it does not go to waste.

Another reason might be to prevent a confrontation between an anxious, possibly agitated, and armed hunter and perhaps an equally anxious, possibly agitated, and armed landowner. So it seems that a hunter needs to "bite the bullet" and follow the DOW's advice.

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