What Happens If You Die Without A Will?

If a resident of Colorado dies without a will (intestate), the decedent's property passes, under the Colorado laws of intestate succession, to the decedent's heirs. In other words, the state legislature prescribes how the property is to be divided, and the probate court selects the personal representative (usually the surviving spouse or other heir in the closest degree of relationship). Typically the distribution would be to your spouse and children, or if none, to other family members. A state's plan often reflects the legislature's guess as to how most people would dispose of their estate and builds in protections for certain beneficiaries, particularly minor children. That plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary in a harmonious family setting. A will allows you to alter the state's default plan to suit your personal preferences.

What Does A Will Do?

Quite simply, a will is someone's legal declaration of what the person wants done with property upon death. There is very little that a typical client would want to do with property that cannot be done under the law. Although many states have established limitations on disinheriting a spouse, the omission of children, the duration of trusts, the amount which may be given to charity in some situations, and a few other restrictions, basically, a will may express any desire the client has formulated.

A will provides for the distribution of property owned by you at the time of your death in any manner you choose (subject to the forced heirship laws of some states that prevent disinheriting a spouse and, in some cases, children). Your will cannot, however, govern the disposition of properties that pass outside your probate estate (such as certain joint property, life insurance, retirement plans and employee death benefits) unless they are payable to your estate.

Wills can be of various degrees of complexity and can be utilized to achieve a wide range of family and tax objectives. If a will provides for the outright distribution of assets, it is sometimes characterized as a simple will. If the will establishes one or more trusts, it is often called a testamentary trust will. Alternatively, the will may leave probate assets to a preexisting inter vivos trust (created in your lifetime), in which case it is called a pour over will. In either case, the purpose of the trust arrangement (as opposed to outright distribution) is to ensure continued property management and creditor protection for the surviving family members, to provide for charities, and to minimize taxes.

Aside from providing for the intended disposition of your property to spouse, children etc., there are a number of other important objectives that may be accomplished in your will, including:

• You may designate a guardian for your minor child or children if you have survived the other parent-and, by judicious use of a trust and appointment of a trustee, eliminate the need for bonds and supervision by the court regarding the care of each minor child's estate.
• You may designate an executor of your estate in your will and eliminate the need for a bond; in some states the designation of an independent executor will eliminate the need for court supervision of the settlement of your estate.
• You may choose to acknowledge or otherwise provide for a child (e.g., stepchild, godchild, etc.) in whom you have an interest, an elderly parent, or other individuals.
• If you are acting as custodian for the assets of a child or grandchild under the Uniform Gift (or Transfers) to Minors Act, you may designate your successor custodian and avoid the expense of a court appointment.

What Are Typical Estate Plan Costs?

Your estate plan expense may range from an hourly consultation to creation of sophisticated estate plan documents in order to obtain optimal tax mitigation treatment, or use of other wealth transfer mechanisms to effectuate your interests.  

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