Articles Posted in Probate

Many people hear “probate” and immediately think of hassle, expense, and delays. While many estate planning fears are unfounded, probate proceedings can be just as daunting as they seem. Individuals may seek to avoid probate and make the process easier on their families and loved ones.

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.

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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.