Articles Posted in Probate

Thoughtful estate planning can help prevent conflict among surviving family members. It can also save families the hassle of Colorado probate court, which can be a costly process involving significant delays in the distribution of assets.

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.

The attorney-client privilege and duty of confidentiality are two of the most essential recognized privileges. They protect conversations and dealings between a client and their attorney. Colorado courts have consistently maintained these privileges to ensure full communication between lawyers and their clients, allowing the parties to resolve legal issues effectively. Although the privileges are critical during a client’s lifetime, it is equally important that individuals understand how these privileges extend after the client’s passing.

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.