A Will is probably the most common estate planning document. Not only can a Will direct the distribution of your assets upon your death, but it can also name an executor to settle your estate, nominate a person to serve as guardian for minor children, and create trusts for beneficiaries who may be minors or persons on public assistance. Property passing through a Will requires probate, which is a court proceeding and which can be avoided with a Living Trust and other estate planning techniques. A properly-drafted Will, however, can be very important even when other techniques are utilized. Because a Will has no legal significance until you die, other estate planning documents are also important.
A Last Will and Testament can be thought of as a set of instructions for any assets without a surviving joint tenant or without beneficiary designations. Assets that fall into this category become subject to probate when the owner passes away. The probate court then relies on the instructions laid out in the will to determine to whom the assets shall pass. When evaluating whether a will is an appropriate estate planning tool, you should be familiar with the probate process.
Probate in Colorado usually takes between six months and two years, depending on the complexity, and is a matter of public record. If you own assets in more than one state, separate probate may be required in each individual state. Probate is a legal proceeding initiated and paid for by the family of the deceased. Consequently, an inventory of all your assets, the names and addresses of your heirs, and any family disputes may also become a matter of public record. For various reasons, this may not be a desirable outcome.
In addition to being a manner of public record, probated wills are very easy to contest. Per Colorado statutes, all legal heirs and family members, regardless of standing within the family or in the will, must be notified of the probate proceedings. A simple letter to the judge can tie up assets for months or longer. Disgruntled heirs can use the threat of a will contest to attempt to receive more than they were left in the will.