-- 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.
Today, Vail Resorts announced a major new proposal to increase its summer activities and programming as part of a federal initiative to encourage increased use of public lands during the summer. The new activities will include zip-lining, tubing, an alpine slide, and numerous educational classes.
Following a dismal snow season, it doesn’t come as much of a surprise that Vail is making an effort to bolster its off-season business. Across Colorado, the 2011-2012 ski season was lackluster, with low snowpack and sluggish tourism. The snow conditions had such a negative impact on the ski business that, in March of this year, Vail was accused of over-exaggerating its snow reporting in order to encourage and salvage skier activity.
While the summer activities would be a major change for Vail’s operations, here in Durango, Durango Mountain Resort already offers a slew of summer fun. Many of the activities that Vail is considering are already established and available at DMR.
However, what will be interesting to see is how Vail executes its plan and what impact it will have on off-season revenue. For many other Colorado ski areas that don’t already have summer programming, Vail’s program may act as a roadmap to expand their revenue base.
Padilla Law is pleased to announced the successful outcome of Sanchez v. Sanchez
, in the district court of Rio Arriba County, New Mexico. Padilla Law acted as second-chair co-counsel in the quiet title action concerning approximately 50.8 acres of real property. Plaintiff's primary counsel was Padilla Law Firm, P.A.
, based in Santa Fe, New Mexico.The lawsuit resulted in a two-day bench trial in Rio Arriba County, with Judge Sheri Raphaelson ruling in favor of the plaintiffs, quieting title to the property in the plaintiffs and granting ejectment of the defendant from the property.
This week, the Department of the Interior, through the Bureau of Land Management, published new draft rules requiring the disclosure of chemicals used in fracking operations. On the national level, this is major news. But, here in Colorado, it isn’t so revolutionary.
Fracking is a hot topic right now, because it is one of the newest forms of oil and gas development, and it is a growing trend as developers use the technique to become more efficient and pull more resources out of existing well heads. While fracking still makes up only a small portion of total oil and gas development, its use has grown substantially over the past ten years.
Fracking consists of pumping water mixed with proprietary chemical solutions down well heads at high pressures to fracture the rock and subterranean structures around the well shaft (hence, “fracking”). By making these fractures, oil and gas developers are able to pull more resources through the fractured areas. Over 99% of the water and chemical solutions are recaptured, but environmental groups oppose the practice because of instances where the chemicals have made their way into the water table.
The oil and gas industry has opposed disclosure of the chemicals based on trade secret laws. Each company has developed its own chemical mixture, and therefore does not want to publish the recipe for other companies to see. On the other side, activists have fought to require disclosure of the mixtures to understand what chemicals are being pumped into the ground.
While the new rules are an attempt to find a middle ground, this story is long from being over. The release of the draft rules was major industry news across the country, but really didn’t have much effect here in Colorado. That is because last year Colorado adopted its own set of rules that already require such disclosure.
The Colorado rules were the result of a joint effort between the oil and gas industry and activists, lead by Governor Hickenlooper, to find a happy medium. The Colorado rules were unprecedented at the time, and set the standard for both other states and the federal government.
So, while there is sure to be continued fall-out from the new draft rules, fracking operations will remain relatively unaffected in Colorado.
New data for the housing market came out this week, and although there are some strong data points for April 2012, the overall outlook is bitter-sweet.
April is a key indicator because it is the unofficial opening for the summer sale season, and in many ways it sets the tone for the rest of the year. Also, as Colorado comes out of the winter months and construction-friendly weather emerges, there is generally a pop of new projects that are undertaken.
I’ve spoken to several realtors in the Denver area who have said that currently the success rate on already-listed houses is fantastic. But, the untold story is how little inventory there is on the market for buyers to get their hands on. While home sales have increased significantly this year compared to 2011 (up almost 20% in some categories), the total inventory of homes for sale has been almost cut in half.
What this means is that while the demand for home sales increases with the slowly recovering economy, the supply has decreased sharply. The effect is to drive prices higher for those limited houses on the market without adding real value to the deal.
But, this is not all bad news. It has been a buyers’ market for the past several years, because there has been a huge surplus of homes for sale with very few buyers in a position to take advantage of the low prices and great interest rates. So, what the new data may be telling us is that the market may be positioning itself for a rebound.
The thing to look for in the upcoming months is whether more homes come onto the market to meet the increasing demand. If good homes are listed to meet the inventory shortage, the market may find an equilibrium and everyone will win. But, if too many homes flood the market, we may see this year’s early progress stifled.
So, while we are certainly not out of the woods yet, there may be a glimmer of light on the horizon.
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.