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Frequently Asked Questions

Grand Junction Estate Planning Attorney: Elder Law, Probate and Business Matters

What is the difference between a Will and a Living Will?

A Will names the beneficiaries or heirs of your estate and a Personal Representative (Executor) who will administer your estate after your death. A Living Will describes your wishes regarding end of life issues and instructs your physician and hospital whether you want to be placed on life support, receive intravenous feedings, pain medication, etc.

Do you think that creating a Living Will is wise?

It is important to understand the pros and cons of creating a Living Will. Keep in mind that a Living Will becomes effective only if the person who has executed the document is incapacitated for seven (7) consecutive days and is terminally ill as certified by two physicians. Because a Living Will is limited in scope, a better choice is a Durable Medical Power of Attorney. Our firm has extensive knowledge in Estate Planning matters, and can discuss with you whether a Living Will is the best alternative for you.

Do mineral interests have to be probated?

Yes. Because a mineral interest in Colorado is considered to be real estate and not personal property, it is subject to probate. In most cases, mineral interests can be distributed to the heirs by informal probate in the county in which the deceased died, or if no other assets are subject to probate, in the county in which the mineral interests are located.

How do I make sure the family vacation home doesn’t become a source of conflict between my children after my death?

If the property is to stay in the family, you will want to address management issues so as to avoid family conflict. Typically, this involves either conveying the home into a Living Revocable Trust , an Irrevocable Trust , Limited Liability Company (LLC) or Family Limited Partnership (FLP) to own the property. It is wise to spell out the “house rules” in the Trust, LLC or FLP regarding the ownership, use and management of the property. Issues to be resolved include who gets to use the property, when do they get to use it, who is to “manage” the property and how will they pay for maintenance, repairs, and property taxes, etc.

Planning ahead is particularly important if your vacation home is located in another state. A vacation home, condo or even a time-share located out of state will be subject to probate in that state if it is titled as “tenants in common” with your spouse or any other person. You can avoid probate or ancillary probate by properly titling your real estate. Also, keep in mind that if you own the property in joint-tenancy with only one of your children, you may unintentionally leave your other children with disproportionately smaller shares of your estate.

Do I need a buy-sell agreement if I own a business?

Yes. When there are two or more owners, it is important to have a Buy-Sell Agreement (often called a "business Will") that addresses what happens if one of the co-owners dies or desires to sell his or her interest. Absent such an agreement, the remaining co-owner may be stuck with a new partner whom he does not know or want to have as a "business partner."

How can I help my children avoid estate taxes at my demise?

Arranging your affairs so that you do not create estate tax problems for your children requires a comprehensive estate plan that may involve the use of one or more Estate Planning tools including: Living Revocable Trusts, Irrevocable Trusts, Life Insurance Trusts, a Charitable Remainder Trust, a Family Limited Partnership and a Gifting Program. The Law Offices of James A. Littlepage in Grand Junction can assist you in developing an estate plan that will minimize or eliminate the federal estate tax.

What is Ancillary Probate?

Ancillary Probate refers to a simplified process of distributing the property of the deceased when the estate is already being probated in another state or country. This occurs when a non-resident of Colorado dies owning real estate or titled personal property that is located in Colorado. Colorado Probate law recognizes the authority of the appointed Personal Representative or Executor to transfer the property to the beneficiaries utilizing an ancillary proceeding. However, if no appointment has been made elsewhere, real property of any amount that is titled in the name of the decedent is subject to formal or informal Probate in Colorado. Probate is not necessary for titled personal property valued at less than $60,000 as it can be distributed in a simplified manner.

How can I ensure my medical needs are managed if I become ill or incapacitated?

By planning ahead and appointing a family member or trusted friend to act for you if you are unable to make decisions for yourself. This is accomplished by executing a Durable Medical Power of Attorney. This document, which is much more comprehensive than a Living Will, appoints one or more individuals to make these decisions for you if you become ill or incapacitated.

Other issues that should be addressed with your family include whether you want to remain at home or move to an assisted living facility; whether you want to be on life support if you are terminally ill and comatose; and whether you wish to be buried or cremated.

If my parents are no longer able to care for themselves, what are my legal options?

If your parents are competent to sign legal documents, they should each execute a Durable Medical Power of Attorney and a Durable Financial Power of Attorney appointing one or more family member to assist them in making medical and financial decisions. However, if they are not competent, it may be necessary for you to seek a court order appointing a Guardian and Conservator to act for your parents. The Guardian will oversee your parents' medical and day to day physical needs while the Conservator will oversee and control your parents' finances. One individual can act in both capacities, or two different family members can seek appointment as Guardian and Conservator. Regardless of the situation, our firm has the skill and experience to guide you in assisting your parents.

Since 1993 the Law Offices of James A. Littlepage, has been assisting clients in Grand Junction and throughout the Western Slope of Colorado with Estate Planning, Probate, Elder Law, and Business Succession Planning. For assistance in these matters, please contact the Grand Junction Estate Planning Lawyer at our firm