Key Considerations for Creating a Will: Ensuring Your Legacy

October 31, 2024

Who Needs a Will?

Often, people think that only the very rich need to engage in estate planning, including drafting a will. However, that’s far from the case. Anyone with property or assets of any kind–a home, vehicle, or bank account–should consider drafting a will to ensure that those assets will go to the desired beneficiaries once the owner passes.

When someone dies without a will (known as dying intestate), Colorado has state laws designating what types of property and assets must go through probate court and who should receive them. Generally, the succession laws say that immediate family members, such as surviving spouses and children, would be the recipients of the estate. If there are no surviving children or a spouse, other family members would likely be the beneficiaries. The state takes the estate’s assets if no family members can be identified and located.

That may not sound so bad. But suppose there are reasons that certain family members shouldn’t receive an inheritance (for example, a child who has difficulty managing finances responsibly or a sibling with whom the estate owner has had a falling-out). In that case, the only way to guarantee they won’t receive part of the estate is to draw up a detailed will.

There’s another reason to create a will: If you have minor children who would be left orphaned, a will can specify who should become their legal guardian. Without it, the court will appoint a guardian, often a family member, but not necessarily the person you’d prefer.

What Should a Will Include?

Several key items should be included in a will.

• Detailed list of assets.
• Preferred distribution of assets. This list should specify which assets should go to each specific beneficiary. Things such as life insurance policies that have a designated beneficiary already listed or bank and other financial accounts that are assigned to someone via transfer on death (TOD) or payable on death) designations don’t need to be included.  But any asset that doesn’t have one of those designations should be included,
• Names and contact information of beneficiaries as well as guardians for orphaned minors, if applicable.
• Executor. Someone should be named executor of the will. The executor works with the probate court to oversee the distribution of assets. It’s vital that the executor be someone trustworthy and detail-oriented. It’s highly advisable that the estate’s owner spend time reviewing the will with the executor to ensure they understand it and are willing to take on this critical responsibility.
• Date of execution. This is especially helpful in situations where there’s more than one will version of the will.

What Is Required to Make a Legally Valid Will in Colorado?

Having a will that’s found to be legally invalid can easily result in the same situation as dying intestate. That’s one of the reasons it’s crucial to work with an experienced estate planning attorney who can help you create a will that can stand up to legal examination and questioning. 

There are some basic requirements a will needs.

• The person drawing up the will (the testator) must be at least 18 years old and of sound mind. 
• The will must be in writing. Oral wills are not valid in Colorado. A handwritten will (called a holographic will) may be accepted if the major parts of it are in the testator’s handwriting and the testator has signed it. 
• The will must be signed by the testator or someone representing the testator at the testator’s direction and in the testator’s presence.
• Two witnesses must sign the will after witnessing the testator signing it or having the testator acknowledge their original signature. 

What Can Cause a Will to Be Contested in Colorado?

There are some situations in which a potential heir or beneficiary can contest a will. It can be challenging to prove, but these are common reasons people try.

• Lack of sound mind. The legal term for this is “testamentary capacity.” If the testator is thought not to have had full mental faculties at the time they drew up the will, it may be challenged. Some reasons for that include dementia, unexplained behavioral changes, or signs of unusual confusion or memory loss.
• Coercion or undue influence. This happens when the testator is pressured by someone (often a family member or caregiver) to change their will to favor the person putting the pressure on. Wills should not be drawn up or amended under coercion.
• Mistakes. Anything that causes the will not to abide by Colorado law could cause it to be challenged or designated invalid by the probate court. This could be not having the will in writing, not having the proper signatures (testator or testator’s representative, witnesses), not being dated, incorrectly identified property or beneficiaries, unclear executor, etc. 
• Improperly documented amendments or revocations. A will can be changed or revoked, but a new will must be properly executed. 

What Should I Do if I Need to Begin Drafting a Will?

Call Brighter Day Law as soon as possible at 719-733-9129 to request a confidential case evaluation. We understand how important it is for you to ensure your estate and legacy are protected and passed on to its beneficiaries according to your wishes. Every estate is unique, and we don’t engage in one-size-fits-all plans. Our team of experienced, knowledgeable estate planning attorneys can review your estate and help you determine what might be the best approach for your estate and the desired outcomes.