Creating a last will and testament is a crucial step for all adults, even if you don’t have children or much money. Planning for your loved ones after you pass is a powerful way to show you care and provide peace of mind. But you may have questions about how to make a will in Colorado. We have the answers to your FAQs.
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What If I Die Without a Will in Colorado?
When a person has a will and passes away, their will determines who gets their personal property, assets, and real estate. But when a decedent dies and does not have a will, Colorado follows intestacy laws to see who gets the property.
If there is a surviving spouse and children, they receive the estate. If there is no spouse or child, then the next of kin, such as parents, siblings, grandparents, nieces, nephews, and so on, inherit. The state receives the assets if there is no next of kin.
What Does a Will Do?
Your will allows you to make various important decisions about your estate and family. In your will, you can do the following:
- Appoint a personal representative or executor to handle your estate. They locate your will and assets, submit the will to the Colorado probate court, and follow the instructions in your will
- Identify and give away personal property and real estate
- Name loved ones and family members as beneficiaries to inherit your property
- Make charitable bequests to charities of your choice if you wish
- Appoint guardians for minor children if necessary
- Name caregivers for pets and put aside funds for their care
Since you leave instructions in your will, a busy probate court does not have to sift through it, saving your estate time and money in probate.
What Doesn’t a Will Do?
While your will can transfer many kinds of property through a will, some assets do not transfer this way. These are known as non-probate assets. Instead, they transfer according to the terms of their own legal documents. These may include:
- Funds in payable-on-death or transfer-on-death bank accounts
- Proceeds from life insurance or annuities (to named beneficiaries)
- Retirement accounts, pensions, 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
Making sure you have named beneficiaries on all your non-probate accounts and assets keeps them out of probate court. Your estate may be eligible go through an informal probate process as a small estate. In 2023, a small estate in Colorado is personal property without real estate – worth less than $80,000.
Who Can Make a Will in Colorado?
Colorado law details specific requirements for when a person, called the testator, can make a will.
- Age: The testator is 18 years of age or older.
- Sound Mind: The testator is of sound mind. Being of sound mind, known as testamentary capacity, means the person making the will understands what they own, who their natural heirs are, how they want to distribute their property, that they are signing their will, and that the will expresses their wishes.
A testator must also have testamentary capacity at the time they make and sign the will. Colorado residents with concerns about their testamentary capacity should consult an estate planning attorney for legal advice and assistance.
Does Colorado Have a Statutory Will?
No. Colorado does not have a statutory will or a specific format that you must use to create your own will. You are not required to use an attorney to draft a will. You can either do it yourself or hire an estate planning attorney for legal advice. Many use FindLaw Legal Forms and Services to customize their Colorado will according to their needs.
What Types of Wills Does Colorado Accept?
Most wills are typed or printed and signed by the testator. However, there are other types of wills that may or may not be acceptable in Colorado.
- Handwritten Will: A holographic will is a will that is entirely in the testator’s handwriting or contains material portions of the will in the testator’s handwriting and signed by the testator without a witness. This type of will is valid in Colorado if there evidence that the testator’s intended this as their will.
- Oral Will: Also called a nuncupative will, is a spoken will. Oral wills are not valid in Colorado.
- Electronic Will: During the Covid pandemic, Colorado enacted a law that allowed electronic signatures of the testator, witnesses, and notary to a will. This law remains in effect and allows the testator to sign electronically in the physical or electronic presence of two witnesses who are state residents and present in the state. The signatures must be electronic images of the testator’s and witnesses’ signatures. An e-signature is not valid. A notary must acknowledge the testator’s and witnesses’ signatures.
Generally, any will other than a traditional printed will with witnesses is easier to challenge. It is better to use a printed will with witnesses.
Can I Make My Own Will in Colorado?
Yes. You can create your own will in Colorado. You do not need an attorney to prepare it for you. If you have a simple estate and know your wishes, you can make your own will. Because a will is a legal document with significant consequences, you want to ensure it follows Colorado law. There are helpful resources such as FindLaw Legal Forms and Services with state-specific estate planning documents.
How Do I Make My Will Valid in Colorado?
Your will must conform to state law. Colorado has the following requirement for making a will valid.
- Signature: The testator must sign the will themselves or have someone else sign at the testator’s direction in the testator’s conscious presence.
- Witnesses: Two competent witnesses are required. A competent witness is someone who is able to testify in court. The witnesses may be interested witnesses, people who inherit through the will. Having an interested witness does not invalidate your will or any gift to them.
- Notary: A will does not need a notary, but Colorado allows a testator to sign or acknowledge a will in front of a notary instead of two witnesses.
- Self-Proving Affidavit: A self-proving affidavit is a sworn statement attached to the will in which the testator and witnesses swear that they signed the will following state requirements. The affidavit takes the place of witness testimony in probate court.
Can I Disinherit My Spouse in Colorado?
You are not required to leave anything to your spouse in your will, but they may receive one-half of your estate as their elective share if you disinherit them. An elective share is part of a testator’s estate that a surviving spouse may claim if left out of the will.
Can I Disinherit My Children in Colorado?
Yes. You can disinherit your children in Colorado. If you choose to do so, the best way is to specifically state you are disinheriting them in your will. Any children born or adopted after you sign your will may have a right to a share of the estate. The amount of that depends on whether you mention other children in the will.
What Estate Planning Documents Should I Have in Colorado?
In addition to your last will and testament, your estate planning documents should include the following.
- Power of Attorney. A power of attorney is a document that allows you to name someone you trust as your agent. Your agent has a fiduciary duty to act in your best interest and manage your finances. You decide what powers to grant your agent and when the power of attorney begins and ends.
- Health Care Directive. A living will or advance directive is a document where you can detail your wishes about life-prolonging measures you want or do not want when you have an end-stage illness or terminal condition. You can also name someone as your healthcare agent to access your medical records and make medical decisions for you if you are unable to do so.
Fortunately, making a valid will and creating other Colorado estate planning documents is easy with online estate planning templates.