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December 7, 2005: Estate Planning Resolutions

Q: Everyone is giving advice this time of year. Do you have any New YearŐs resolutions that you suggest that I adopt?

A: Review your existing estate plan or put together the needed documents-- Will, Durable Powers of Attorney, and Living Will, along with checking that the proper asset ownership is in place.

Everyone needs a Will, even someone with no spouse and one child, or a couple who are married but without children. Just putting everything in joint tenancy or designating a beneficiary is not the complete answer, even when the advice comes from an attorney.

A Will is your statement to society about how you want your assets distributed and who you want to be in charge of settling your estate. Without a Will, Colorado has its own plan in place under the intestate (no Will) laws. Thus whatever statutory provisions provide will be enforced on any assets that would otherwise be subject to distribution under your Will.

For example, a childless couple regardless of age potentially could have the first $200,000 of assets going to the surviving spouse with the remainder of the estate divided equally between the surviving spouse and the surviving parent or parents of the deceased spouse.

The proper Will can insure that there is no tax on the first four million dollars of an estate. A Will can also ensure that a beneficiary of an estate can be protected until reaching a certain age or during incapacity through the use of a testamentary trust. Otherwise a guardianship/conservatorship would have to be established through the Courts. Wills do a lot more but the bottom line is that a Will is needed.

Especially for seniors, a comprehensive Durable Power of Attorney is also very important. Without one in place, another person including a spouse, would not have the legal authority to step forward and act on behalf of the person in need. Be sure that four originals of the Power have been signed and try to use the format that people in Colorado are use to seeing. Running a Power off the computer that is different than is normally used may cause hesitancy or refusal to honor it when the Power is presented. Without a Durable Power of Attorney in place, several thousand dollars would need to be spent to have a conservatorship set up through the courts.

The Living Will is the document that directs that "the machines" be shut off. Not everyone should sign a Living Will especially if a Durable Medical Power of Attorney is in place. In Colorado if a Living Will is in place, it will be enforced. But some people do want another person to take one last look before that happens. Others are bothered by the wording of the Colorado statute and feel it might be used at an inappropriate time to end life. Thus it is an individual decision whether to sign one or not.

Putting everything in joint tenancy can cause inheritance, tax, and legal problems. It probably is the best method for a married couple with a taxable estate under $2,000,000 but for others it should only be done after talking with an attorney (not your neighbor over the back fence).

For several hundred dollars and a minimal time commitment, a basic plan can be implemented and thereafter maintained. But it does take making the New YearŐs resolution and then following through.

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