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  • pjs2019

By Jo Stone

Estate planning does not have to be a difficult process. But making the decision to move forward with the planning requires us to face the fact that we will not live forever. This thought can stop many people right in their tracks. Others talk themselves out of seeing a qualified attorney to put together an estate plan based on some of the following common myths:

Myth #1: Only the Rich Need Estate Planning

When we hear about estate planning on the news or read about it on the internet, it is usually in regards to a wealthy businessman or celebrity who made some error, did no planning, or has family members who are angry about the planning that was actually done. The topic catches people’s attention: Rich people have so much that surely they need planning and can afford to have the planning done correctly. By comparison, when the average person thinks about their own property and planning needs, they assume that it is not necessary because they do not have anything close to Bill Gates’ billions.

However, this could not be further from the truth. Estate planning is about more than just the money. While proper planning allows you to determine who gets your money and property upon your death, the planning process also addresses what happens if you become incapacitated and someone must make decisions on your behalf--a far more likely scenario. If you have not done any planning, the court will have to appoint someone to make your medical and financial decisions for you. This can be very time consuming, expensive, and public. It can also wreak havoc on a family if they disagree about who should be appointed and how decisions should be made.

Even for those of modest means, who gets your hard-earned savings when you die is an important consideration. Without any planning, state law will decide who gets what—and many times, what the government’s best guess as to what you would want is contrary to what you actually want. But, because you did not take the opportunity to formalize your wishes in an estate plan, the state is required to step in and do it for you.

Myth #2: I Don’t Have to Plan Because My Spouse Will Get Everything

For many married couples, it is common to own property or bank accounts jointly. If these assets are owned jointly or as tenants by the entirety, when one spouse dies, then the surviving spouse automatically becomes the sole owner. In most cases, this is the desired outcome for married individuals.

However, this approach can be dangerous. While it is convenient for assets to pass automatically to the surviving spouse, this outright distribution offers no protection. What happens if, after your spouse dies, you get into a car accident and are sued? If the assets you owned jointly automatically became yours alone, this money and property are available to satisfy any judgment that could be entered against you resulting from a lawsuit.

Additionally, what if, after you die, your spouse gets remarried? If the brokerage account you owned jointly becomes your spouse’s only, your spouse is now able to spend it all in any way he or she wants without any consideration for your wishes or the next generation. Your spouse’s new spouse could go out and buy a sports car with the money you intended to pass to your children. With blended families being common today, this is a real concern for many people.

Estate planning among married couples does not mean that you have to disinherit your spouse. Rather, it means the two of you can sit down and plan out what happens to your joint property and accounts upon either of your deaths, ensuring that the survivor is provided for and that any remaining money and property are gifted in a way that is agreeable to both of you.

Myth #3: A Will Avoids Probate

Many people believe that once they have created a will—whether drafted by an experienced attorney or using a DIY solution or online form— they have avoided probate. Unfortunately, they are wrong.

While a will is a way to designate a person to wind up your affairs once you have passed, determine who will get your hard earned savings and property, and, if necessary, appoint a guardian to care for your minor children, this document has to be submitted to the probate court to begin the process of distributing your money and property. The level of involvement by the probate court can vary depending on the circumstances, but this process is not private, as the will becomes a matter of public record. The only way to avoid probate is to have an estate plan which is centered around a trust, called by various names, such as “revocable trust”, “living trust”, “family trust” or as the IRS refers to it, “grantor trust”.

Remember, probate is a judicial process designed to protect your creditors and the IRS, not your beneficiaries or you.

If you only have a will, at your death, your estate will be subject to one or more of the following probate proceedings:

Summary Proceedings: In some states, if the value of your estate (i.e., what you own at your death) is below a certain monetary threshold, then anyone who is entitled to inherit from the decedent can file a petition and have the property distributed outside of the traditional probate proceedings. The filing may require a court appearance and formal legal notice to anyone who might be interested before allowing your property to be distributed.

Affidavit Procedure: Some states allow for an affidavit to be used to collect and distribute a decedent’s money and property. In some states, this affidavit can be self-executed, while others require that the document be filed with the court. Generally, affidavits require the passing of time from the date of a decedent’s death—ranging from a few days to a few months. After that, a “successor” to the decedent (a spouse or heir) signs the affidavit and presents the affidavit to collect the decedent’s assets for distribution to his or her rightful heirs.

Supervised Probate: With this type of proceeding, the probate judge oversees every step of the administration process and has to approve of the Personal Representative’s actions. During a supervised probate, all pleadings and required documents have to be filed with the probate court and then served on interested persons or parties. This can be a very time consuming and expensive process. Each time the Personal Representative has to take an action, a legal pleading has to be filed and served on the interested party, which, in contentious situations, opens up the possibility for disagreements and attorneys’ fees.

Unsupervised Probate: In cases where there are no controversies and the parties all get along, an unsupervised probate administration may be the best option. In this situation, although the administration is not supervised by a court, there are still actions the Personal Representative needs to take, but the Personal Representative may not be required to file petitions and documents for each of those steps. However, a Personal Representative may be required to file some steps, such as the preparation of the inventory, with the court and the interested parties, but no corresponding hearing is scheduled. While this is less complicated and possibly less expensive than a supervised probate, it can still be time consuming and your financial and personal affairs would become a matter of public record.

We are here to help answer any questions you may have about estate planning, the estate planning process, or probate. Together, we can craft a one-of-a-kind plan to ensure that you and your family are properly protected. Give Jo Stone a call today to set a complimentary consultation to discuss what kind of estate plan is right for you.

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  • pjs2019

Attorney Matthew Perkins from our Parker office recently represented a client (the Respondent) in a Burlington District Court case where her own daughter (Petitioner) was trying to obtain a (civil) permanent protection order. Through argument and witness testimony, Matthew Perkins successfully demonstrated to the court that the Petitioner could not meet either of the two prongs necessary to obtain a permanent protection order. That is, the judge found the mother had not put the Petitioner or her family at risk of imminent danger in the past and was not going to put the protected parties at risk of imminent danger in the future. Following the successful trial, our client can return to her life without fear of having any restrictions on her guns or her permit to conceal and carry. Please contact Matt Perkins if you are interested in either filing a civil restraining order or need help defending against a civil restraining order. We fight for justice for both Petitioners and Respondents!

Obtaining a temporary civil protection order is a relatively simple standard, although the paperwork can be difficult, confusing and time consuming. A petitioner (who is ten years of age or older) may file for a temporary civil protection order to:

  1. Prevent Assaults and threatened bodily harm;

  2. Prevent domestic abuse;

  3. Prevent Emotional abuse of the elderly or of an at-risk adult;

  4. Prevent sexual assault or abuse; and

  5. Prevent stalking

The petitioner fills out a few forms, including JDF 398, under penalty of perjury and submits them to the court. The petitioner can then appear before a district court judge ex parte (without the opposing side) to plead her case. A judge will issue a temporary civil protection order if she finds that an imminent danger exists to the person or persons seeking protection under the civil protection order based on the allegations made by the petitioner. That is, the judge assumes all facts alleged are true (unless they just don’t make any sense). Many times judges will err on the side of caution in granting the temporary protection order—especially in today’s climate—because it is only temporary and they are worried about what could happen to the petitioner if the protection order is not granted. The matter will then be set for a hearing (trial) no sooner than 14 days from the date of service on the respondent.

At the hearing, both sides are entitled to put on witnesses and present evidence. If the respondent fails to appear at the hearing, the temporary protection order will be made permanent at the request of the petitioner. If the petitioner fails to appear at the hearing, the temporary protection order will be vacated at the request of the respondent.

For a temporary protection order to become permanent, the petition must show by a preponderance of the evidence (more likely than not) that the following propositions are true:

  1. The Respondent has engaged in behavior or caused events to occur that has, in the past, placed the protected party at risk of imminent danger, AND

  2. The Respondent is likely to continue to behave or cause events to occur that place the protected party at risk of imminent danger if the protection order is not made permanent.

This is meant to be a quick crash course in protection orders and is not meant to be legal advice. If you would like legal advice, please contact our firm to discuss your case today!

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  • pjs2019

By: Matthew Perkins

If you had a loved one die due to the fault of another, you may be entitled to compensation for their death in what is called a “wrongful death” suit. The most common example is where a loved one dies in a car crash.

If there is no dispute as to fault or liability, many times the tortfeasor’s insurance company will immediately offer you their policy limits in such a case. Also assuming there is no dispute as to whom is entitled to the insurance money, you may think you can handle this issue on your own and quickly resolve the issue. However, we recommend that you do not try to navigate this minefield alone as not only are clients usually an emotional wreck during the period following the loss of a loved one, there are also a host of legal issues you could be missing when you represent yourself.

Please note, although the insurance adjuster for the tortfeasor’s insurance may be “nice” or “kind,” they are NOT your friend. The adjusters interests are often antithetical to yours. Moreover, we recommend that you do not immediately take any settlement agreement without analyzing all of your options, as there may be additional compensation for you and if you sign the wrong agreement, or don’t notify the right parties you are settling, you may waive your right on the additional money.

For starters, we always advise our clients to look into the financial situation of the tortfeasor or—if they are now deceased—their estate. You may have a right to compensation over and above the value of the insurance policy. If the tortfeasor is deceased, however, you must notify their estate of a potential lawsuit quickly following the tortfeasor’s death. Colorado law allows you four months from the time the estate is published to provide notice to the estate that you are a potential creditor. If you do not provide timely notice, the probate court may allow the distribution of funds leaving it almost impossible to recover.

Next, you will want to consider your family member’s own underinsured insurance policy for a potential recovery. You must keep them in the loop and notify them of any potential settlement with the other parties before settling.

All this is to say that wrongful death claims, even those where liability is not in dispute, have many moving pieces and can be quite cumbersome. Therefore, you should obtain an attorney whom is well versed in this area of law. Please contact our firm for a free initial consultation.

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