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September 7, 2006: Probate Simplified

Q: My financial advisor refuses to change my beneficiary designees on my investments because he says that it will cause probate. What am I suppose to do? My lawyer tells me one thing and my money people refuse to cooperate.

A: Just as your lawyer probably should not be making your investment decisions, investment advisors should not be making legal determinations. After all they (at least currently) will not be sued for legal malpractice.

Remember, as with much of the law, each state is different. What is essential in one state may be exactly the wrong approach in another. In Colorado our legislature has given us a choice—we can avoid probate using the traditional techniques of joint owners, beneficiary designations, and trusts or we can indeed utilize a probate using unsupervised administration.

In Colorado setting up a Living Trust will cost several thousand dollars, with some Denver and Longmont law firms charging more than $10,000. Then even though the estate is not "taken apart" through a court probate, the trust will still need to be disassembled, often causing expenses almost as much as it cost to assemble the trust. Thus Living Trusts are often called "double probates" because the cost and effort to set them up are matched when the same steps are reversed to take them apart.

An estate in Colorado can be probated with or without an attorney. If the family does it themselves, the process is simple and straight forward. The forms are available either by purchase from a retailer or obtained on the internet. The entire probate cost will be less then $300. If an attorney is hired, the cost to probate would be increased from between $1,500 to $2,300, even for the very high valued estates.

In Colorado estates can be started almost immediately, bills paid, and assets distributed thereafter. No inventory or reports are required to be filed with the Court and to close the estate a one page document called a Verified Statement is filed with the Court, which in essence tells the Court that the Personal Representative is done.

In contrast most states have the probate system set up so that attorneys need to be utilized, attorneys charge a percentage, estate delays occur in paying bills and distributing assets, an inventory and periodic reports must be filed, proceedings must last for up to two years, and the closing of the estate requires much paperwork and effort.

So remember your financial advisors are not lawyers. Although well meaning their negative view of probate may well be formed because of what was taught at company seminars, experiences in other states, watching T.V. or reading the communications intended for the mass market, or maybe just being part of the generally accepted mass stereotypes.

Now do not get me wrong. Many people have been very happy with how the Living Trust worked to settle an estate. And there are others who have been unhappy with settling estates through the Colorado Courts. But although in most states probate should be avoided, that is not automatically the choice in Colorado.

Also remember the attorney is in charge of weaving your legal affairs into a coherent fabric. The financial advisor may not have the overall perspective to understand that what he or she insists on doing will cause a major tear in the estate tapestry.

It would be helpful for any of the support advisors to discuss first with the attorney his or her concerns, rather than giving estate planning advise to a mutual client, thereby causing concern, anxiety, frustration, and doubt.

But yes, if you have a controlling financial advisor that insists upon his or her way, you do need to decide. Otherwise you may find your attorney bidding you aduie anyway because he or she is legally liable if something goes wrong.

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