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May 8, 2006: Do-It-Yourself Wills

Q: I want to write my own Will. So what’s the big deal? There are forms, computer prototypes, or I can just copy someone else’s Will.

A: Well yes you can do all three but you might want to be sure that the following Colorado standard Will provisions are incorporated into the document.

First your Will should refer to all of your name variations by which you own property so that the Will ties everything together. For example, the deed may contain only your middle initial while your Social Security card may have your full middle name. So your Will should refer to both name variants.

In Colorado if the appropriate language is in the Will, a list of tangible personal property (think of "stuff" not things like cash) can be listed on a separate piece of paper and you can designate to whom the items are to go. Then later the list can be adjusted without having to amend your Will. Despite what is being said by a local non-lawyer in her seminars and her book, DO NOT ATTACH your list to your Will (I can outline all of the many legal reasons in another column if necessary). But it would be a good idea to keep the list with your Will.

The Will should contain a clause indicating that if the Court finds part of the Will unenforceable, the rest of the Will can still be enforced if the overall intent can still be achieved.

The Will should also contain a provision that the personal representative is directed to use unsupervised court administration under the Colorado Uniform Probate Code unless there is a legitimate reason to use supervised administration or because of a Court directive.

I like to have a simple "safety net" trust in my standard Will in case an inheritance goes to a minor or to an incapacitated person. Otherwise it will be necessary to set up a guardianship/conservatorship through the Court. It is amazing how many times I use such a trust during the course of a year.

Finally be sure to have a 30-day (not six months) survivorship clause in order for a beneficiary to inherit. Thus if a recipient dies within 30 days of your death, the bequest from your estate passes under your alternative Will provision and not by the beneficiary’s Will.

Quickly there are a number of clauses that are not necessarily enforceable in Colorado. You cannot put a clause in your Will requiring that a particular attorney or advisor be used by your personal representative. The Colorado legal reasoning is that the personal representative is personally liable to do his or her job. So the personal representative should have the right to pick his or her attorney or advisors.

In like manner for the most part Colorado Courts will not enforce a "no contest" Will provision. The rational is that the law gives the right to contest a Will, because if a Will is invalidated, the law sets out who has a "right to" the property distribution. Thus a Will clause can not take that legal right away, even though the property is coming from the deceased.

Running out of space so I will stop here. But finally Colorado requires two witnesses, not three or more. And use the Colorado attestation language. Otherwise your Will might not be properly executed and witnessed.

So go ahead and write your Will but be sure that the foregoing thoughts and language are reflected in the document. Or if you have a Will, see how many of these items you can find in your Will.

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