Creating a last will and testament is an important step in planning for the distribution of your real and personal property upon your death. Colorado wills allow the testator (the person making the will) to provide for a spouse, children, other loved ones, and even pets after his death. You may also choose to leave property or make other gifts to charitable organizations through your Colorado will.
Not to be confused with a last will and testament, a living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care. Accordingly, such a document would take effect, if necessary, within your lifetime while a last will and testament does not. Colorado law specifically allows living wills, also known as advance medical directives.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
A last will and testament can serve many purposes, but one of the biggest benefits is that it gives the testator the opportunity to choose the executor of the estate, the person who will be responsible for carrying out the wishes contained in the will. Making provisions for this decision ahead of time can give a testator great peace of mind knowing his estate will be in the right hands; without a will, a court will choose the executor of an estate.
A testator can use a will for various purposes, but the most important is to express how assets such as houses, vehicles, business ventures, and cash, should be divided upon the testator’s death. A testator can also name a guardian for minor children through a Colorado last will and testament.
Moreover, in addition to trusts that provide a benefit for people, Colorado law specifically allows for the creation of a trust for the care of animals alive , including the animals’ offspring in gestation, during the settlor’s lifetime (“pet trust”); such a trust must terminate when there is no living animal covered by trust, but no longer than 21 years. A Colorado will gives you the option of caring for your animals after your death in this manner.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
In Colorado, a decedent’s will must be filed within ten days of his or her death even if no probate administration is expected.
Colorado has a special procedure for small estates (under $50,000 and no real property), which bypasses probate with the filing of an Affidavit for Collection of Personal Property with the probate court.
Colorado also has formal and informal probate processes: uncontested estates pass through informal probate while those that are contested or have invalid or questionable wills must go through the formal procedure.
Intestacy: Dying Without a Will
When someone dies without a will, he is said to be “intestate,” and the laws of intestacy kick in. In Colorado in the absence of a will, if a decedent is survived by only a spouse and no children or by only a spouse and descendants who are also descendants of the spouse, the spouse inherits everything; alternately, if the decedent is survived by only children but no spouse, the children inherit everything.
The surviving spouse would have to share the estate, however, if the deceased also leaves behind parents or descendants who are not also descendants of the surviving spouse.
As you can see, if you would like to have control over the distribution of your assets and avoid the application of intestacy laws, it is crucial that you have a valid Colorado will.
Exceptions to Ability to Distribute Property
Some restrictions on the ability to distribute property through a Colorado will include the following:
- Jointly held property with the right of survivorship.
- Life insurance and IRA proceeds, which pass directly to the named beneficiaries regardless of what is written in a will.
- Surviving spouse is entitled to $26,000 in cash or property from the estate; if there is no surviving spouse, surviving children or descendants are entitled to the same amount in equal shares.
Form a Last Will in Colorado
The basic requirements for a Colorado will include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by one of the following:
- Some other person in the testator’s name in the testator’s presence, by the testator’s direction.
- Witnesses: The will must be signed by at least two individuals after each has witnessed either the testator’s signing of the will or his acknowledgement of his signature.
- Writing: A Colorado will must be in writing to be valid.
- Beneficiaries: Colorado does not limit to whom property may be left in a last will.
Other Recognized Last Wills in Colorado
In addition to the last will and testament as described above, Colorado also recognizes the validity of a handwritten will (“holographic will”) so long as the signature and material portions of the document are in the testator’s handwriting.
Changing a Colorado Last Will and Testament
A Colorado last will and testament may be changed at any time by another will or by codicil, an amendment to the original will; any such change must follow the same execution procedures required of wills.
Revoking a Colorado Last Will and Testament
The revocation of a Colorado will can be accomplished in the following ways:
(1) By creating a subsequent will that revokes the previous will wholly or in part, or that has differences in the terms of the will; or
(2) By performing a revocatory act on the will (which includes burning, tearing, canceling, obliterating, or destroying all or part of the will), if the testator performed the act with the intent and for the purpose of revoking all or part of the will, or if another individual performed the act in the testator's conscious presence and by the testator's direction.
Note that in Colorado, if you get divorced after executing your will, your ex-spouse can neither serve as a personal representative of the estate or as a devisee of the will.
Thinking about making a last will? We can help you create a will in Colorado in three simple steps.