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November 9, 2002: Guidelines for Reviewing Out-of-State Documents

Q: I have just moved to Colorado and want my estate documents reviewed. Do I have to change everything?

A: In Colorado the basic estate plan can be very simple and inexpensive. Of course the first document is a Will. Without it, the state of Colorado, using the intestate (no Will) laws, will control how your property is distributed.

Your out-of-state Will is valid in Colorado and may not need to be changed. But have a local attorney review it to be sure that the provisions reflect your current thinking and needs. The attorney may also make you aware of Will provisions that your former state did not have, such as using a memorandum for tangible personal property distribution independent of the Will.

You will find that the need for a living trust to avoid probate is greatly diminished here in Colorado. If you come to Colorado with a living trust, it can still be maintained and a local attorney can help ensure that it will be as effective as possible. But it might be helpful to have a Colorado attorney review the advantages and disadvantages of using that mechanism, given the Colorado way of doing things.

After a Will (or living trust), the second document to consider is a Durable Power of Attorney if you wish to permit someone to have the power to step forward to help you do what needs to be done. Without one, it would be necessary to go to Court and set up a conservatorship.

In Colorado the custom is to do as many as four signed originals of the durable powers of attorney, with at least a primary and one backup agent designated to make necessary decisions, including medical ones. Your out-of- state durable powers of attorney will be effective in Colorado but have them checked because Colorado requires certain elder planning powers to be specifically described in the Powers.

The third document is a living will that, in essence, says shut off the machines. Even though your durable powers of attorney will also give that authority, sign living wills anyway so your agent under your Power will not have to make that very difficult medical decision.

Sign the Colorado form, even if you have one from a sister state. You do not have to pay an attorney to do it, just pick up a form at the local hospital. Make a mental note that there is a document called "five wishes" that purports to be a living will. In reality, it is a type of limited medical power of attorney. I would recommend doing the traditional, comprehensive power of attorney and a living will.

Next, make a list of your assets so your personal representative has a guide. Keep your documents together where they are safe and can be found. In Colorado, if you use a safe-deposit box, be sure that another name is added to the signature card besides your name. That way the box will not be locked, frozen, or even inventoried.

Finally, if you are married, have everything in joint tenancy with your spouse. If you are single, except for a checking account, have everything in your name alone. Don't worry if you own real estate in a sister state. Do not set up ownership in joint tenancy with your children.

I hope that all this is helpful. Welcome to Colorado!

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