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Law Offices of Ronald W. Rutz
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May 5, 1999: The Limits of Wills; Estate Planning Pitfalls

Q: I really dislike (name omitted but feel free to insert your own). In my Will can I leave (repeat name) all of my debts?

A: Believe it or not, you are not the first person to come up with this idea. But at least in Colorado, your gesture from the grave will probably prove ineffective.

Just because someone is named in a Will does not mean he or she is required to take the inheritance. That person can disclaim part or all of what was left.

Also, a Will provision such as this one would probably be deemed to be against public policy and thus invalid. Sorry, you probably need to go back to the drawing board.

Q: What are two obvious estate planning techniques that most people overlook?

A: Writing tongue-in-cheek, first if a person will just live until the year 2006, the estate tax exemption (both state and federal) will be a million dollars ($1,000,000).

A second overlooked idea would be for a wealthy (net worth over $650,000) single to marry someone poor and preferably older. Then through an estate instrument such as a Will or a living trust, set up an A trust and a B trust inside that instrument.

The "wealthy" newlywed (with a signed nuptial agreement in place to cut off any possible "elective share") can then double the tax deduction and pass on $1,300,000 to his or her side of the family if death occurs this year or almost $2,000,000 by the year 2006. And yes, all of this can take place even if the person dies a very short time afterwards. (Talk about death bed planning!)

Thus, what the income tax laws may teareth asunder (divorce, or just living together, because of the so-called "marriage penalty"), the estate laws bringeth together.

Q: If I die with a mortgage on my house, does it have to be paid off?

A: No, the house will pass encumbered with the mortgage. It will be up to the receiver to continue to make the payments. But if in fact you do wish the liability paid, in your Will you can instruct your Personal Representative to pay that debt, or obtaining mortgage insurance is another option.

Q: If an estate is subjected to probate, is everything tied up until final settlement?

A: Although this apparently is a problem in sister states, in Colorado as soon as unsupervised probate is started, the Personal Representative has immediate power to pay all bills and distribute any assets at any time. He or she does not have to wait for Court approval or until the final settlement.

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