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Wills, Forms and Attorneys

Do You Need a Will?
If so, what should be in it and where to get it.

By: Julie Kreutzer, Esq.

By way of background, I have had a general law practice for 18 years and have drafted a lot of basic wills with all the related documents. I have also assisted clients who came in with a will they prepared themselves from a form on the internet and just wanted to be sure it covered everything. Having experienced some rather poor forms from the Net, I thought it might be useful to cover the basics so that if you choose to draft a will, it accomplish what you intend.

Really, the first question is whether you need a will at all. Most people procrastinate quite a bit and some never do one. If you die intestate (without a will), the law will make guesses about what you want so as to determine what to do with your property and debts. If you happen to have modest assets, be married and have kids and wish your spouse to inherit everything, or your kids to inherit equally if your spouse dies, you are fine procrastinating in Colorado (I don't practice in other states).

Where it gets dicey is if your situation deviates at all from what I described or if you have a lot of money or if you have specific wishes if you are incapacitated. By that, I mean that if you have additional requests beyond what I just listed, you need to have a will. As to what constitutes 'modest', the rate at which your estate will be taxed changes every year. If it seems like you have more than a million, add up the assets carefully and look up the rate to see if your beneficiaries (people who inherit property) would be taxed. If so, you should probably consult with a wills attorney so that their tax burden is lessened or eliminated. (Because I don't know how long this article will drift around the net, I don't want to give you the wrong number). Finally, most wills available on the net do not include an additional document that is typically called a living will. A living will specifies your wishes if you are incapacitated; without one, hospitals and doctors will do what they can to keep you alive even in situations where you might prefer to decline the procedure.

Now let's talk about what happens when a person dies without a will in Colorado who doesn't fit the 'average' situation I described earlier. Let's start with a single person without children; the state looks for the nearest relative they can locate according to a chart they have of possible relations. The problem is that you may not want this relative to have your money. Not to mention, if they can't locate your relatives, the state keeps your money. The other critical issue is what happens to you if you are very ill and what happens to your stuff if you die. For example, if you are living with someone you are not married to, the law will not recognize that person's right to make medical decisions on your behalf, be in your hospital room. The doctors and the state will turn to the nearest relative, if any, for guidance. Likewise, when it comes to inherited property, if you are not married but live with someone, they will not inherit unless they are on the title or you have a will. For that reason, many people really should have a will and medical documents to accompany it.

Let's start with forms available from the Internet: They are affordable but watch their quality. If the form is quite short and seems to cover all the states in the union it probably isn't adequate. Each state has it's own rules that need to be followed. And what about related documents? Part of the point of a will is to have a living will and other documents that will actually help your survivors if you become seriously ill or die. If you die with a simple will, your survivors know what you want done with your things and how to manage your funeral arrangements but what if you are comatose? That is why any forms you get should have a living will and other related documents attached.

However, we should start with a basic will and what it should cover. Your will needs to name a personal representative and their successor. The personal representative is the person carrying out the instructions of the will. That person should be someone who is good with money, trustworthy and available. And you should pick a successor in case they can't do it. Your will needs to name all of your beneficiaries and give their contact information. You need to list your assets and debts. And you need to do all of this in a way that won't be outdated in a year. For example, if you name your elderly cousin as a beneficiary, you need to either state who takes their place if they die before you do or you can state that if a beneficiary dies, the other beneficiaries share their inheritance. And if you don't have many beneficiaries, think about friends or charitable causes. Example: I want my sisters, Jane Smith, Dottie Smith and Clara Smith to share equally in my estate. If any of them die before me, I want the American Humane Society to have that sister's share.

You need to talk about all of your assets and debts. People often think about their house and car but may not address the issue of bank accounts, life insurance, etc. Likewise, you need to provide for payment of debts by stating that your Personal Representative is to pay all debts prior to disbursing the remaining estate to beneficiaries. While we're at it, don't make the mistake of being overly specific. For example, if your Will states that your 1995 Oldsmobile is to go to your daughter, that is not helpful because your car is probably not long for this world. To make your will last longer, you could state that you want your daughter (and state her name and address) to inherit any vehicles titled in your name. If you want to be more specific then count on updating your will each time you get a new car. You should have an attachment that lists where each asset is located and important details such as the name of your bank, account numbers, life insurance company, policy number, etc. Can you imagine dealing with your will without this information? If you do a will, help out your Personal Representative by providing this information, updating it regularly and printing it out so a copy is with your will.

You should have a paragraph that indicates that any necessary burial expenses, taxes, and other expenses are taken from your estate before proceeds are disbursed to your beneficiaries. These things aren't free and do need to be paid for. By the way, if you have pre-paid your funeral arrangements, this would be a really good place to make note of it or the expense might well be duplicated.

Your will needs to talk about funeral arrangements if they haven't been already made, and again, be specific. Frankly, I do a separate document called a Burial Memorandum so that I can be quite specific rather than put a short paragraph in the Will. Otherwise, your survivors are likely to spend money that you would prefer go to other purposes on things you would never have wanted. You'd be absolutely amazed at what some funeral homes can talk grieving relatives into.

Are you disinheriting anyone? If there is a close relative that you intend to disinherit, you can avoid litigation by mentioning it in the will. It would too bad if part of your estate got tied up in lawyer fees because someone felt they had simply been missed. And by the way, in Colorado, you cannot disinherit a spouse. If you want to, you really should talk with an attorney because you don't want an invalid will but you do have an issue that needs resolving in an effective manner.

You should also consider having a living will, advanced medical directive and/or durable medical power of attorney. These documents state what your wishes are in the event you are unconscious and unable to speak for yourself, provide guidance as to how long you would want to be kept alive and under what circumstances and empower people you trust to speak on your behalf and make health care decisions. However, you need to be as specific as possible in these documents. For example, I typically have language that states if someone is in a coma for more than x period of time (their choice how long) and two or more doctors state they are unlikely to regain consciousness then efforts to keep them alive should cease. How far you want to go with that needs to be specified. You can put in that you don't want to be resuscitated if you start to die, you can refuse medication, food, water, etc. Personally, I advise people to stick with care that would prevent pain but skip the care that keeps their body from passing. In my view, such documents are as important as the will itself because most people do not want to be kept alive indefinitely at vast expense to their relatives unless they will recover. And be certain to mention at least two decision makers with a back-up, because if there is a problem you cannot count on your first choice being in town and available.

You should mention in your will if you intend to have a personal property memorandum. This is one of the related documents I mentioned earlier. The will should also state that if one isn't located within 90 days of death it will be presumed to not exist. You might want to do such a memorandum because people get a little crazy when someone dies. You don't want your personal representative fending off people who insist that they are supposed to get the living room rug, etc. Often the personal representative is also a primary beneficiary and the last thing they need is someone berating them about some item that you may never have offered them. To keep things fair and reduce stress on your personal representative, have a memorandum even if it is short. Also, it happens to be a very nice gesture to those of your friends and relatives that you would like to give something (none of us are infinitely wealthy). Think about special things that should go to specific people in your life; that way, you know those things will have a good home and that the beneficiary knows that you were thinking about them.

A last point to consider is what will become of your pets and plants. Some people think this is silly or that it is a given. If you have living things in your care, it is neither. Do not assume that upset people dealing with your death are going to adopt your cat or care for your plants. You need to carefully consider who would be the best person (and successor if they can't do it) to care for any pets you might have at the time of your death and likewise, your plants. My view is that if you cared enough to get them in the first place, it would be very sad if your pets wind up at the animal shelter and your plants died because there wasn't a plan in place for them. And while you're at it, you should allocate some money for the care of pets since there will be the expense of feeding them and vet care that can be a burden for some people who would otherwise be good caretakers.

Be sure you sign your will in front of a notary and the number of witnesses required in your state. In Colorado, that would be two witnesses. Truth be known, in Colorado you could get away with a handwritten will that has no notarization or witnesses but you'd be pushing it. If anyone disliked the will, it would set things up for a wills contest. It's better to do it properly. Your bank will usually provide a notary and drag in a teller or two for witnesses (a great way to test if you have a decent bank).

That covers the will and some of the documents that accompany them. However, a regular power of attorney can be helpful because it complements your will. If you are unable to handle your affairs, it lets a trusted person step in (for example, if you are comatose, this person could file your taxes for you). It also helps during the period when the will is being probated in the event that something needs to happen (renewing house insurance, etc.). You can have a broad power of attorney document or one that is quite narrow. And it can be a useful document for occasions when you might be out of the country or otherwise unable to take care of your affairs.

If you find all of this rather disheartening, you can have a lawyer draft all the documents for you. Most attorneys will do this flat fee and can update your will as needed at a reasonable cost since it is already on their computer.

This article has been designed to answer most general questions on wills, however, if you have more questions, my website (juliekreutzerlaw.com) and other attorneys' sites will provide more answers. I would suggest staying away from generic sites that do not mention individual firms since they rarely offer much content. If you have specialized questions, it is best to schedule a consult with an attorney to be sure that you get answers that are tailored for your situation.

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