Initiating a Claim to Contest a Will

A will can be contested for a number of reasons, including but not limited to when an individual believes they should have been a beneficiary of the will in question. Contesting a will is an expensive and formal process and requires evidence and expertise. The grounds for contesting a will vary to some degree from state to state, but the driving force behind each system is similar. To legally contest a will, an individual must have otherwise benefited from the will. The most common manner in which this manifests is with the children of a deceased person. Other common instances also include when an individual did not have children and extended family members litigate their alleged claims to the estate.

The process begins when a will is filed in probate court, resulting in the interested parties receiving notice. Once the process begins, the interested parties must object within the time period stipulated by the relevant jurisdiction. The court then determines if the will is valid and determines heirs, beneficiaries, worth, and assets.

How to Achieve a Successful Claim

Successful claims to contest a will rely on several different factors, with each case resting on unique facts. However, depending on the state, a successful claim will require certain legal grounds to prevail. For example, an individual contesting a will might need to establish that the testator lacked the intent or capacity to draft a valid will, or that the testator was under undue influence or duress from a third party when drafting the will. Other less common reasons to contest a will include proving that there was fraud or a mistake within the will, that prior wills were not correctly revoked, or other such circumstances that lead to the will being declared void.

It is important to note that simply being unhappy with the contents of a will or recalling that the deceased individual had described the will differently is not sufficient grounds alone for contesting a will. The process requires more than just a hunch, suspicion, or sense of unfairness. For example, an individual thinking of contesting a will may have a difficult time with their claim if they had a strained or estranged relationship with the deceased. Such a circumstance could make it easy for the opposing party to argue that the decision to exclude the individual contesting the will on purpose. Speak with a Boulder, Colorado, Estate Planning Attorney Today

Contact us for information about exploring trusts, trustee actions, and other estate planning services. Braverman Law Group is here to help clients with benefits planning, estate planning, and many things in between. To schedule a free, no-obligation consultation with one of our trusted Boulder estate planning attorneys, give us a call today at (303) 800-1588.

One way to avoid probate is through trusts, which are similar to wills but take effect while the benefactor or trustee is still alive. A living trust can avoid probate through the following steps: an individual makes a trust document and names a trustee that will take effect after the individual’s death. Before death, the individual creating the trust is the trustee, and will transfer ownership of the property in question to the trust. Upon your passing, the trustee you’ve named will be able to transfer the property to the trust’s beneficiaries and avoid probate.

But trusts are not the only way to avoid probate in Colorado. Read on for other mechanisms you can use to avoid probate. An experienced estate planning attorney can help determine whether any of these tools will be useful to you and your family to fit your unique needs.

Joint Ownership

Owning property with another individual can include a right of survivorship, in which the surviving owner becomes the sole owner of the property upon the passing of the other owner. This property transfer happens without going through probate, as long as the title is clear. In Colorado, this is referred to as joint tenancy and can apply to many types of property ranging from real estate to financial accounts. Unique to Colorado and a small handful of other states, joint tenants can own unequal shares of the property, meaning the property ownership doesn’t have to be split 50/50.

Transfer-on-Death Provisions

There are also several different types of assets that can have transfer-on-death provisions attached to them.

For example, stocks and bonds held in brokerage accounts can be registered as transfer-on-death, which means any beneficiary you name can automatically receive the account upon your passing without going through probate.

Real estate property can also be placed in transfer-on-death deeds or beneficiary deeds. Upon death the property will transfer to a beneficiary you name, but the beneficiary has no rights during your life. The property can be sold or the deed revoked by you any time.

Vehicles can also be registered with transfer-on-death provisions.

Finally, bank accounts of many types can be designated payable-on-death without sacrificing your control of the account. Your beneficiary will work directly with the bank, rather than through the probate process, to claim the accounts upon your death.

Call a Colorado Estate Planning Attorney

Call a Boulder estate planning attorney today to help you decide the best plan for you to avoid probate and make life easier for your family members and loved ones. Braverman Law Group can help with all of your estate planning needs, including trusts, wills, and planning for probate and taxes. To schedule a free, no-obligation consultation with one of our trusted attorneys, give us a call today at (303) 800-1588.

Often, a lack of communication is at the root of familial estate-planning conflict. The following examples demonstrate this principle.

First, consider the case of siblings who, unbeknownst to them, will be tasked with determining the distribution of their parent’s estate. Although parents almost always have the best intentions when adding these types of provisions to their will, these provisions often come as unwelcome surprises because they require siblings to reconcile differing opinions, preferences, and financial situations. Instead, parents can consider identifying their children’s preferences ahead of time and working with a planning attorney to create a will that balances those preferences as much as possible.

Second, without proper communication, the issue of remarriage can create significant conflict. This is because children often expect to inherit whatever portion of their parents’ estates remains once both parents have died. This often will not be the case, however, if a parent remarries and then dies before their new spouse. If this occurs, then the new spouse will typically inherit the estate. Talking to children ahead of time about this fact can help to prevent conflict. Parents can also use a variety of legal instruments, such as trusts, to reserve assets for their children in the event of remarriage.

Third, the specific provisions of a will sometimes come as a surprise to family members. While some heirs may be pleasantly surprised by a will, others may be disgruntled. Although difficult, talking with family members ahead of time about one’s will can help to align their expectations with reality.

Finally, on occasion, people may overlook the important step of communicating the location of their will to a trusted family member or friend. If a will cannot be located, it obviously cannot be enforced. Instead, assets will be distributed according to Colorado’s formulaic laws of intestacy, which rarely, if ever, align with the provisions of a personalized will. This can result in unfulfilled promises, leading to significant conflict as family members attempt to secure what they believe is owed to them based on a will that cannot be located.

Working with an experienced trust and estates attorney is the best way to help ensure that the above scenarios do not become a reality for your family.

Contact a Colorado Estate Planning Attorney Today

Whether you have not yet started the estate planning process or you have a complete plan in place, the Braverman Law Group can help. For those just beginning the estate planning process, our experienced team of attorneys can help you sort out your wishes and create a comprehensive plan to help ensure they will be fulfilled. For those with a complete estate plan already in place, our Boulder estate planning lawyers can help you make adjustments as needed based on changes in family circumstances or other relevant events. For a free phone consultation with one of our attorneys, call 303-800-1588 today.

In a recent opinion, the Colorado Supreme Court addressed the critical issue regarding which party holds the attorney-client privilege after the client’s death. The record indicates that when the decedent passed, he left all of his possessions to his widow and named her his personal representative. However, the decedent’s former wife made a claim against the estate based on promissory notes. The man’s widow did not know of the notes’ existence until she received the claim. The widow asked the decedent’s attorney for all of her deceased husband’s legal files. However, the attorney refused, citing confidentiality. In addressing the woman’s request, the court reviewed the interplay between attorney-client privilege, confidentiality, and a personal representative’s duty to settle a decedent’s estate.

Under Colorado Probate, Trusts, and Estates Law, section 15-12-709, grants personal representatives the right to a decedent’s property. Colorado Probate Code defines “property” to include real and personal property or any interest that may be subject to ownership. When a personal representative requests access to intangible property, the court must evaluate whether the decedent had any property right to them. Generally, clients do not have a property right to their full legal files.

Enmeshed in this analysis is the reach and scope of Rule 1.6 of the Model Rules of Professional Conduct. Rule 1.6 addresses client-lawyer relationships, and in most cases, lawyers cannot reveal a client’s confidential communications, even if the client dies. However, there is an exception if disclosure of otherwise privileged communication was necessary to settle the decedent’s estate. Colorado’s ethical rules of professional conduct distinguish between a lawyer’s papers and a client’s property. Courts generally find that a personal representative can only take possession of a decedent’s legal files if the documents directly affect rights, securities, instruments, deeds, or wills. The client holds both the attorney-client privilege and duty of confidentially, and therefore they can waive either of these duties.

In this case, the plaintiff conceded that section 15-12-709 did not confer rights to the legal files; however, she argued that as her husband’s personal representative, she stepped into his shoes regarding the attorney-client privilege and duty of confidentiality. However, the court held that the woman did not meet any of the exceptions to either privilege. Ultimately, there was no evidence that the decedent’s legal files were necessary to settle the estate. Therefore, the attorney maintained the duty of confidentiality to withhold all unnecessary information.

Contact a Colorado Estate Planning Attorney

The attorneys at the Braverman Law Group, LLC have extensive experience handling various aspects of Colorado estate planning. We provide our clients with detailed, practical guidance on how to address their estate planning needs appropriately. The attorneys at our law firm prioritize our clients’ needs and wishes and ensure that they understand the legal process that estate planning entails. We handle estate planning, special needs planning, trust administration, gun trusts, probate proceedings, and guardianship matters. Contact our office at 303-800-1588, to schedule a free initial consultation with an attorney at our office.