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Taking Some of the Stress Out of Death

8/7/2013

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-- 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.

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Ski Hills Not Just For Skiing

7/19/2012

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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.
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Padilla Law Successful in Quiet Title Trial

7/9/2012

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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.
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What's Your Fracking Problem?

5/11/2012

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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.
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A Mixed Bag for the Housing Market

5/4/2012

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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.
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Not "Taking" Marijuana

12/21/2011

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_ This week, a district court judge in Boulder held that the city-wide ban of medical marijuana dispensaries in Longmont, Colorado, does not constitute a “takings” under the Fifth Amendment. The three dispensaries that brought the case against the city have 45 days to appeal the decision, but for the time being the ban will remain in full force.

The ruling is based on the idea that there is no state or federal constitutional right to operate a dispensary, therefore no right has been taken away by implementation of the city-wide ban. However, an interesting issue that may develop down the road is whether the dispensaries can successfully make an analogy between marijuana dispensaries and adult entertainment.

On its face, it seems that the Longmont ban is based on morality. I can only guess that the citizens of Longmont have decided that they would prefer not to have marijuana sold within city limits, because they do not believe in the sale of marijuana, regardless of whether it is for health care or recreational purposes. This seems like the same argument that has been made for adult entertainment for 70 years. Basically, “we don’t want it in our community.”

Without delving into the litany of U.S. Supreme Court cases regarding adult entertainment, the short version is that adult entertainment is a form of protected speech, and therefore a community can limit where it occurs under the police powers of the state, but it cannot absolutely ban it.  There must be a time and place for adult entertainment.

While I don’t specialize in medical marijuana (I’ve never done a single case), this sounds like a persuasive argument.  The dispensaries have lost the first round arguing that they have Fifth Amendment protection, but maybe they can find success by arguing that the First Amendment applies.  While limitations on the time and manner for marijuana sales may not be ideal, at least it would be a way to operate within city limits.
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There's No "I" In Massachusetts

12/2/2011

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_This week, the Massachusetts Attorney General filed suit against Bank of America, JP Morgan, Wells Fargo, Citigroup, and GMAC for their conduct in dealing with the mortgage and real estate crisis. The Massachusetts Attorney General claims that the banks used deceptive and illegal practices in foreclosing thousands of mortgages from 2008 through 2010, including the practice of “robo-signing,” where mortgages were transferred in the secondary market without following formal policies and procedures.

Each of the banks has taken a slightly different position in the lawsuit, some wanting to settle the suit as soon as possible, while others have stated that they will defend themselves aggressively. So, there is a possibility that this lawsuit could develop into a costly and protracted battle in Massachusetts state court.

The major issue that this lawsuit creates is whether the filing of an individual state’s claim against the banks will slow down the ongoing settlement negotiations involving both federal and state prosecutors for a nation-wide deal. The Massachusetts Attorney General stated that the nation-wide settlement discussions were taking too long, but this lawsuit could prolong those discussions even more.

While it may seem like a step in the right direction to file a lawsuit and get the ball rolling against the banks, this lawsuit significantly undermined the collective process. Now, as Massachusetts moves forward with its state-specific claim, there is a distinct possibility that no national settlement will be reached until the Massachusetts suit is resolved, and there’s no telling when that could be.

In short, it seems that Massachusetts has decided to take its bat and ball and go home, and has left the rest of us standing in the field wondering what to do next.
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    Padilla Law, P.C.

    First Draft is a collaborative effort between Beth and Paul Padilla, both equity partners in the firm, and is intended to give you a brief overview of current legal topics and let you know what effects those issues may have in your life.

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