Dave S Oppenheim and Associates, P. C.  Attorneys and Counselors at Law.
Attorney and Counselor at Law
1900 West Littleton Blvd.
Littleton, Colorado   80120

Telephone: (303) 773.8189
Facsimile: (303) 773.8187
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« FAQ: Wills

Q. Is it necessary to list all of your property in a will?
No. If, however, you have specific items of property you wish to give to certain individuals, you'll need to list those specific items of property in a will. A general statement will usually suffice for the rest of your property, e.g., "I give all of the rest of my property to my wife if she survives me. If she does not survive me, I give such property to my children, share and share alike."

Q. Is there a simple way to make specific gifts of personal property like jewelry, family heirlooms, etc.?
Yes. You can attach to your will a sheet entitled "Memorandum for Disposition of Tangible Personal Property". You can list items of personal property on this Memorandum and direct them to any beneficiary you desire. It is completed in your own handwriting, can be changed at any time on your own and requires only your signature and a date to be valid. In addition to your will, you will receive the Memorandum as well as instructions for its use.

Q. Where is the best place to store a will for safekeeping?
In a safe deposit box. A change in the law has made it much easier for surviving beneficiaries to gain access to a safety deposit box after a person's death. Another good alternative is a fireproof box or safe in your home.

Q. Isn't there an "official" place where a will must be filed after it is signed?
No. The will is a private document before death and is not filed or recorded with any government agency or court. It is, however, filed with the Probate Court after your death.

Q. Does the state still freeze joint bank accounts after the death of one of the joint owners?
No, not since Colorado repealed its state inheritance tax laws January 1, 1980. All you need to do now is present a copy of the decedent's Death Certificate and show proof of your identification. The funds will then be released to you immediately without delay or probate.

Q. Do the witnesses need to testify in Court as to validity of the will in the event of the death of the testator?
Generally, no. If the will has a "self-proving" affidavit attached to it, the witnesses are never required to testify. All wills drafted by me are "self-proving".

Q. How do people know what assets a decedent owns at death?
If records and files are poorly organized, it may be extremely difficult for the personal representative to gather up and identify all of the assets. The more organized, the better. I would suggest an "asset locator" sheet which could be attached to your will.

Q. Will heirs have to pay estate or inheritance taxes?
Generally, no tax will be due against any estate that is under $600,000. Regardless of how large the estate may get, there is generally no tax between husband and wife when one spouse dies leaving all or most all of the property to the surviving spouse. Estates of over $600,000 which are passed to a non-spouse will be taxed at the rate of approximately 50% of the estate in excess of $600,000. The tax we are talking about is the Federal Estate Tax. Colorado has no inheritance tax (although some other states do).

Q. Do beneficiaries have to pay income tax on the value of any assets and life insurance left to them?

Q. Are the proceeds of life insurance subject to estate tax?
Potentially, yes. If the estate is under $600,000 (including life insurance), no tax is due. Estates over $600,000 may be liable for state taxes. The use of tax-oriented trusts can reduce or eliminate this tax in most situations.

Q. Do I need to redraft my will if I move to another state?
No. There is a general misconception that a will must be redrafted every time a move is made to another state. This is simply not the case. While you may want to make minor changes such as naming a different guardian, personal representative or trustee, the general format of your will is valid in all 50 states and most foreign countries.

Q. Is it true that I must leave at least $1.00 to any close relative I want to disinherit?
No. Except for your spouse, you are generally free to disinherit anybody you like. It is not advisable to leave anything to someone you wish to disinherit. If you want to disinherit one or more of your children, it is best to mention the child in your will and state that you intentionally make no provisions for that child in your will.

Q. Do trustees and personal representatives get paid for their services?
Yes. Their compensation is usually based upon the amount on the estate, multiplied by a reasonable hourly rate. In some states, rates are based on a percentage of the estate.

Q. What is done when a person goes by more than one name?
When drafting the will, I generally use the one name that the client uses most often or prefers, although all names can be included.

Q. What is the best way to set things up where husband and wife have children from previous marriages (and maybe even children from the current marriage)?
Because second and third marriages are so common these days, there are a wide variety of cases that need special attention. There is no best way to handle the situation. Each situation must be reviewed in detail and worked out according to the best interests of the clients and the children.

Q. Is the will the best place to make organ donations and specify funeral arrangements?
No. Colorado law provides that organ donations can be made by a proper notation on the back of your driver's license. Funeral arrangements and instructions should be handled outside the will since the will is usually not even read until after the funeral. It is best to let your family and friends know what you want as clearly and precisely as possible – far in advance of death.

Q. How can I appoint someone to take care of my business and affairs if I become disabled before my death and can't handle everything myself?
I strongly recommend that all of my clients draft durable Powers of Attorney. These documents appoint an "agent" of your choice to act in your stead if you ever become ill and unable to handle even simple business and financial matters. A durable Power of Attorney can save thousands of dollars in Court costs and countless hours of aggravation for your family. In addition to your will, I will prepare a General Power of Attorney for your review.

Q. What is a Medical Durable Power of Attorney (otherwise referred to as health care power of attorney) and how does this differ from my General Power of Attorney?
A Medical Durable Power of Attorney is a specific document required by the State which allows an individual (declarant) to designate an agent to make health care decisions for the declarant if the declarant is unconscious, incompetent or unable to make such decisions. It is appropriate in Colorado to keep the Medical Durable Power of Attorney separate from your business and financial Power of Attorney.

Q. Is my Medical Durable Power of Attorney good in other states?
Not necessarily. The Medical Durable Power of Attorney is "State specific." Various states have different requirements, such as varying numbers of witnesses, requirements for notarization, specific language, or inclusion or exclusion of certain statements. Colorado has a more "general" form which is appropriate in most of the states. If you are considering going to another state for any extended duration, you should review this document. However, most states will honor your requests and decisions if you are there on a temporary basis if based on the appropriate laws of the state in which you are either residing or domiciled.

Q. Is a "living will" valid in Colorado?
Yes. The living will states your intention that you do not want to be kept alive by heroic measures if your physicians have concluded that you are in a terminal condition and would not survive without the assistance of a life support system. Living wills can be prepared quickly and inexpensively. Everyone should consider the wisdom of having his own living will. I will include a Declaration as to Medical or Surgical Treatment (living will).