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Denver Estate Planning & Elder Law Blog

Why don’t more people have advance directives?

Talking about end-of-life issues is not a popular pastime, so it might not come as a surprise that many adults do not have advance directives expressing their end-of-life wishes. The scale is staggering however. A recent analysis by a researcher at the University of Pennsylvania put the number at nearly two in three American adults.

A will or trust is not enough to help relatives and friends if you are incapacitated. And tough decisions can lead to conflict that could even result in guardianship or conservatorship proceedings with your loved ones fighting about what you would want or who should make the decisions.

Personal property: Oversight can lead to conflict

What do a collection of Christmas ornaments, hand-written recipe cards, a set of Flow Blue china, a grandfather clock or a piece of costume jewelry have in common? They may carry sentimental value. 

Many couples overlook these items during the estate planning process, because these items are rarely "worth" much. But any of these items could be very important to a family member because you collected it or created it.

Consider potential for divorce when drafting a trust

Recently, media outlets published that Francis Bean Cobain – the 25-year-old daughter of Nirvana’s Kurt Cobain – receives about $100,000 a month from a trust funded my her father’s publicity rights. Her father died without even a simple will. While intestacy laws dictated that his estate would pass to his surviving spouse and daughter, there were still ugly, public court battles.

As we frequently say, an estate plan could have avoided the lengthy litigation. In this post, we discuss how the information about trust payments became public. And we address why you need to consider that children might divorce as part of the estate planning process.

Accessing Bitcoin wallets in estate administration

What is included in a loved one’s estate? Often you have no idea unless listed at the personal representative in a will or appointed to wind down an estate by the probate court.

Some property is not difficult to identify (i.e. the home that a parent owned, vehicles, a motor home or a jewelry collection) during the estate administration process. Figuring out title and outstanding liabilities that exist are probably the main issues. For other types of assets – cryptocurrencies such as Bitcoin or Ethereum – accessing the contents of a digital wallet may be the problem.

Marco Chayet, Chair of Next Fifty Initiative helps launch governor's office position on aging

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Marco D. Chayet, a founding partner of Chayet & Danzo LLC, and the Chair of NextFifty Initiative, was proud to participate in this week's announcement by Gov. John Hickenlooper and Lt. Gov. Donna Lynne that Colorado has received a grant to fund a senior advisor on aging position in the governor's office.

"We know the road to address the changing age demographics in Colorado is largely shaped by policy," Mr. Chayet said at Tuesday's announcement. "The senior advisor on aging will help cut across the health care, housing, transportation and finance sectors and shape policy that will support the advancement and innovation of products and services for future generations."

Considerations in choosing a Colorado fiduciary

In estate planning, probate, guardianship and conservatorship, Colorado courts and individuals appoint people to positions of responsibility, care taking and decision-making. Examples of fiduciaries are personal representatives, trustees, guardians, conservators, persons with powers of attorney, and health care agents. 

Fiduciary positions often require: 

  • Protection of money or property owned by another for the benefit of a third party
  • Protection, care and advocacy for a vulnerable person
  • Substitute medical or financial decision making for an incapacitated person
  • Responsibility for the personal or business affairs of another person

The rights of protected persons

In Colorado, conservatorship allows a conservator/fiduciary to handle the financial matters of an incapacitated person, the protected person.

A conservatorship and guardianship (related to living arrangements, daily needs and health care) are common for a minor child or an adult with developmental disabilities. Situations exist where a protected person may only be the subject or a conservatorship or vice versa.

Who pays attorney fees in probate litigation?

The general rule is that each party pays their own attorney fees. There are, however, exceptions.

Most notably, if the judge rules in your favor you might be able to ask that the other person pay your legal fees and other litigation costs. There is a caveat; you need to prove that the probate claims of the other party were groundless or frivolous.

Colorado probate: What about the debts of the deceased?

Wrapping up someone’s affairs after he or she has died is a complicated responsibility that falls to the person who is appointed by the court to be personal representative of the estate. One of the main duties of the personal representative in most situations is to put out direct or published notices to the creditors of the deceased according to the specific procedures established by Colorado law. The notice tells creditors that they can file claims either with the personal representative or the appropriate state court by a particular deadline as required by law.   

Here at Chayet & Danzo, LLC, our attorneys have years of valuable experience handling claims against estates from both sides. We represent creditors in their attempts to collect debts owed to them by deceased individuals as well as personal representatives who must give proper notices, evaluate the validity of claims, decide whether to try to negotiate a settlement with a creditor or pay the debt as claimed, and determine if the estate does not have enough value to pay all valid claims, the proper order in which to honor them. 

When does a personal representative face potential liability?

Serving as the executor of an estate is a privilege often extended to a trusted friend or relative. But the privilege comes with considerable responsibility and involves numerous tasks that can go awry.

When can an executor (called personal representative in Colorado) be held personally liable for failing to fulfill his or her fiduciary duty in settling the estate?

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