Creating a will is the cornerstone of estate planning. It handles several critical aspects of your estate, and we address several areas of misinformation regarding drafting a will.
Fiction: If you do not have a will, the state will take your property.
Fact: If you die without a will, which is called dying intestate, your property is distributed according to the state’s laws of intestacy. This gives your property to your heirs based on the closest living relative. The ‘matrix’ of distribution goes through several levels in Colorado, from surviving spouses down to cousins. If no living relatives in that matrix can be identified or located, then the property ‘escheats’ to the state.
Fiction: If you have a small estate, you do not need a will.
Fact: Every adult should have a will, even if they have a modest estate. A will not only distributes your property, but it also names an executor for your estate as well as a guardian for minor children.
Fiction: An oral will can be used if there was no written will created.
Fact: Oral or spoken wills are not generally recognized except in a very limited set of circumstances, and then only if very specific steps are taken by ‘uninterested’ parties.
Fiction: I have a will so my estate plan is complete.
Fact: Estate planning is more than simply drafting a will, it is putting together a comprehensive plan that not only distributes your property when you die, but eases the burden of your passing on your loved ones. Estate planning has also come to encompass making plans to manage property later in life or in the event of incapacitation.
Fiction: A will allows my estate to avoid probate.
Fact: All estate are subjected to some form of probate, but having a will in place makes the process much quicker which can mean less expenses as well. There are several estate planning tools that can allow property to avoid probate, such as living trusts or a form of joint ownership, and an estate planning attorney can help you determine what tools will meet your family’s specific needs and goals.
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