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Law Offices of Ronald W. Rutz
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July 20, 2002: Estate Documents: a Review

Q: Everyone from financial planners, insurance types, stockbrokers to CPAs seem to want to give me advice on my estate legal documents. Would you educate me so I have some understanding of all the concepts and terms being thrown around?

A: In Colorado, three types of documents should be considered - wills, durable powers of attorney, and living wills. Everyone should have a will, whether it is to name guardians for the children, or to be able to direct where your assets should go, or just make the process easier and more efficient.

There are basically just three kinds of wills. A standard will is for someone who does not have an estate tax problem and has no beneficiary needing a trust. The average cost here in northern Colorado is around $150 for such a will.

A testamentary trust will is for a person without estate tax exposure but with a beneficiary that needs a trust, such as a couple with children, or a beneficiary that might be in a nursing home or not able to handle finances. Since the document is both a will and a trust combined, the cost is around $250 for each will.

The third kind of will is for someone with estate tax exposure. Due to the recent tax reform act, couples with the possibility that one person could die between now and 2011 and in 2011 the survivor could have a taxable net worth of more than $675,000 (some contend the figure is $1,000,000), then tax wills should be put in place, even if there is no current tax exposure. (I tell you this whole area has gotten murky.) A tax will usually costs around $500 for each will.

Yes, a living trust can be a substitute for a will, even in Colorado. Be sure, however, that your adviser not only tells you the advantages but ALSO the disadvantages. And be certain the discussion is specific as to Colorado and not just generalized bromides.

Everyone should consider doing durable powers of attorney - the document giving an agent the ability to step forward and do things for the principal as needed. The alternative is involving the Court and setting up a conservatorship.

Consider signing four original durable powers of attorney so that if a third party retains one and the principal is unable to sign additional powers, there will still be executed documents available for use.

If shutting off the machines is important, then a living will should also be signed, even if a durable power of attorney with medical powers has been signed. Then you know that the machines will be turned off (an agent with the power of attorney may decline), plus you have taken that very hard decision away from your agent by already having made it.

Unless there are tax wills in place, or unless there is a personal or business reason not to do so, everything between a couple should be held in joint tenancy or if there is a beneficiary designation with each other as primary beneficiary. It probably is not a good idea for a single person (such as a surviving mother or father) to hold property in joint tenancy with others, even children. But that is a topic for another column.

Make an asset list that includes location of documents, advisor names, property identification numbers, etc. and revise the list periodically. Such a guide for the family will save time and needless expense.

Finally, keep everything together where it is easy to find. In Colorado, do not be afraid of a safety deposit box, but be sure to add one other name to the signature card for the box. The box will not be frozen as long as someone on the signature card is alive and has been given access to the box's key by the owner. Safety deposit boxes are not inventoried.

Phew. "Out of space!" I hope this helped, and if you want more information in a future column, let me know.

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