-- Paul E. Padilla
Recently, several people have come into my office with questions about property rights and what to do after someone has passed away. Unfortunately, many of these people waited too long to do anything, and there was very little I could do for them.
However, this situation is very understandable. The process of losing a loved one and dealing with the property was stressful, and they thought their family would agree on how to handle everything. But, after a couple of years of family conflict, they found out that they had waited too long, and now they have limited options.
When someone passes away, the legal process of handling their affairs and distributing their property is called probate. If there is a Will, it is filed with the court and a person is appointed to make sure the terms of the Will are followed. If there is not a Will, then the person’s property is distributed based on default statutory laws, called intestacy.
In both Colorado and New Mexico, the general rule is that this process has to start within three years of the person’s death. If you wait too long, then a court will not accept a Will, and its terms will not be enforced. This means that some people may not get the property that was intentionally left to them in the Will.
Obviously, any time lawyers and courts are involved, the process can be expensive and even more stressful. But, surprisingly, in some cases this process can be relatively easy.
When a person dies and does not have a lot of property, their assets can be dealt with without having to go to court. In Colorado, if a person died in 2013, did not have any real estate, and the total value of their personal property is less than $63,000, the property can be dealt with by using a process called Collection of Personal Property by Affidavit. In New Mexico, the requirements are similar, but the asset limit is $50,000.
This process allows a person to sign an affidavit and collect all of the deceased person’s assets in order to distribute them according to a Will, or distribute them to the deceased person’s family. To execute the affidavit, all you need is a notary public, and nothing needs to be filed with the court. So, this can save a lot of time and money.
As I said above, the deceased person cannot have any real estate after their death. But there are several situations that this can occur, even if the person lives in and owns a home at the time of their death. If the property is held in joint tenancy with right of survivorship, or if there is a beneficiary deed or life estate, the property transfers to someone else the moment the person dies.
Therefore, depending on how much other personal property the person had, it may be possible to use the Collection of Personal Property by Affidavit process, and avoid going to court.
Padilla Law is pleased to announce the addition of Beth A. Padilla to the firm. Beth will join the firm as an Equity Partner and will expand the firm’s areas of practice by adding Immigration & Naturalization Law, as well as Family & Domestic Law.
Most recently, Beth was Of Counsel with the Van Der Jagt Law Firm in Denver, Colorado. In her Immigration practice, Beth handles removal defense for aliens before the Immigration Judge and the Board of Immigration Appeals. She also assists clients with asylum, family based petitions, naturalization petitions, U visas for victims of crime, and Violence Against Women Act petitions. In addition, she has given multiple Know Your Rights presentations in Spanish throughout communities in the Front Range. In her Family Law practice, Beth handles cases involving abduction prevention, asset distribution, child custody, divorce, and spousal maintenance.
Beth’s full biography, profile, and contact information are available on the Padilla Law website, www.padillalawpractice.com, and Beth is currently accepting new clients.
Padilla Law’s primary areas of practice now include Business Transactions, Civil Litigation, Criminal Defense, Family & Domestic Law, Immigration & Naturalization, and Wills & Trusts.
There is a growing trend –specifically among young adults– where classic social norms and institutions, such as marriage, are not as important as they used to be. In an age where more and more marriages just aren’t “sticking,” and the divorce rate is higher than the success rate, more people are waiting longer to get married, or they are flat-out rejecting the concept of marriage. Additionally, as the issue of homosexual marriage continues to fight its way across the country, more and more young adults are faced with a scary reality: what do I do if something bad happens to me or my significant other?
The traditional concept is that young people fall in love, get married, and go along their way. Through the institution of legal marriage, each spouse is given certain rights to property, to decision-making, and to visitation of the other spouse. But, as more people live together without ever legally establishing a marriage (or are prevented from doing so), those rights are limited.
However, for those living in a non-traditional relationship, there are some easy and important steps that you can take to create important rights and remove the uncertainty of living with someone as an unmarried couple (at least as it relates to legal rights).
There are a handful of useful documents that can be created easily and cost-effectively, and which provide security for you and your significant other. The main documents include: 1) a Designated Beneficiary Agreement, 2) a Durable Medical Power of Attorney, 3) a Living Will, and 4) a Disposition of Last Remains. And, despite the daunting legalistic names, these documents and their purposes are relatively easy to understand.
Designated Beneficiary Agreements
Probably the most useful and easy of these documents, the Designated Beneficiary Agreement allows two people to create legal rights on behalf of each other. Under Colorado law, there is a standard form that allows two people to enter into a contract to give each other rights. Out of the 16 rights that the document may create, probably the most important include the following:
- The right for hospital visitation;
- The right to participate in health care decisions for the other person; and
- The right to inherit property from the other person without a will.
However, there are several important things to know and understand about the agreement. The most important are:
- Neither party can be married;
- Neither party can be part of another designated beneficiary agreement;
- Any other “superseding legal document” will prevail (meaning a Will or the other legal documents listed in this article will trump the agreement);
- The agreement must be filed with the Clerk and Recorder's Office where at least one of the designated beneficiaries lives; and
- The agreement can be unilaterally undone by either of the people in the agreement.
Durable Medical Powers of Attorney
This is a customized document that will require an attorney’s help to complete. But, the document can be as simple or complex as you need it to be. The general idea of a Durable Medical Power of Attorney is that the document lists one or more people that you trust and who you want to make medical decisions for you, if you are ever injured and are unable to make health care decisions on your own. In the document, you can also include your personal wishes and explain how you want things to be done on your behalf.
Under the Colorado Medical Treatment Decision Act, a person can create a Living Will that tells a hospital or other health care facility what you would like done if you are ever in a terminal or unresponsive condition. This means that if you are ever in an accident or have a disease where the doctors think you will not recover, the document will tell them what you want done. Generally speaking, if doctors decide that you lack “decisional capacity to accept or reject medical or surgical treatment” you have three options: 1) stop life sustaining treatment, 2) continue life sustaining treatment, or 3) continue the treatment for a limited time.
This is similar to the Designated Beneficiary Agreement, because it is a very simple form that can be completed in a matter of minutes. And, you can make the decisions well in advance of any potential accident.
Disposition of Last Remains
Finally, it is a very stressful experience to make decisions, such as funeral arrangements, for loved ones who have passed away. So, in order to simplify the process and to ensure that what you want done is actually carried out, a Disposition of Last Remains is a simple document that explains what you want done, and who you want to do it, once you have passed away. Similar to the Durable Medical Power of Attorney, this is a document that you should have an attorney help you create, but it can be a very simple and cost-effective process. Things you can put in the document include whether you want to be buried or cremated, religious ceremonies, and anything else important to you.
While these documents can be very useful, please remember that not everyone needs all of them. Also, it is a very scary and unpleasant thing to think about potential accidents. But, these documents can make unpleasant situations much more manageable.
So, it is important that if you think any of these documents may be useful to you, you should speak with an attorney or conduct more research on your own to fully understand what to do.