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Estate Planning and Probate Litigation
Overview of Common Estate Planning Techniques
- Wills
- Living Trusts
- Powers of Attorney
- Living Wills
Tax Planning
Probate and Trust Administration
Probate Litigation
For some lawyers the preparation of wills, powers of attorney, “living wills” and related documents is a sideline practice; a lawyer with limited skills in this area will prepare these documents as a convenience to an existing client. Sometimes the result is documents that may meet the client’s limited requirements, but do not address complex family or financial issues, or important tax consequences. Other firms may go to the opposite extreme, churning out hundreds of beautifully packaged wills and trusts a year, with little time spent getting to know the family and its unique circumstances.
We recognize that estate planning cannot be practiced as a sideline, nor sold as a bulk commodity. At worst, inadequate or poorly drawn instruments can have disastrous consequences. At best, the client may not be made aware of choices available, or may be sold expensive packages that are not needed. No matter how big or small your estate, at TCLG your estate planning needs will receive individualized attention by experienced estate planning attorneys, at reasonable cost. We try to make the estate planning process simple. Download these helpful documents:
Overview of Common Estate Planning Instruments and Techniques
Wills
Everyone should have a will. If you do not, the State of Colorado prepares one for you (through its statutes on intestacy). While your ideas and those of the state may coincide, they are just as apt not to. The state may direct that your hard-earned nest egg go to your second-cousin, once removed, whom you have never met and who is already a millionaire. You might prefer a gift to your favorite charity.
Making a will is particularly critical if you have minor children, have any kind of a non-traditional family arrangement, or you and your spouse have a blended family.
Your will specifies how you want your property distributed when you die, but may also designate someone to serve as guardian of any minor children orphaned by your death or as conservator for the assets of your minor children. Your will can also establish trusts for your children and grandchildren, which may be part of a plan to minimize estate taxes.
“Living” trusts
There is much confusion today regarding the necessity or desirability of having a “living trust” as part of your estate plan. A living trust is simply a trust that you create during your lifetime. It is designed primarily to serve as a device to avoid probate, as it allows your property to pass pursuant to the terms of the trust, rather than your will. Living trusts are very popular in states where probate is especially time consuming and expensive. Colorado has a simplified probate system, negating much of the impetus behind living trusts. However, some attorneys recommend living trusts for essentially all of their clients, whether or not they truly are warranted, sometimes charging more money than would be spent in the probate action these trusts are designed to avoid.
Living trusts are appropriate for some clients, particularly those who have or are facing disabilities, those who own property located in other states, and those with important privacy issues. TCLG will determine, based upon an individualized interview process, whether the additional expense of a living trust makes sense for you and your family, or whether a traditional will better suits your needs.
Powers of Attorney
A power of attorney is a document by which you (the "principal") appoint an agent (also called an attorney-in-fact) and authorize your agent to legally manage your legal or business affairs. A general power of attorney allows your agent to manage all of your affairs, while a special or limited power of attorney authorizes your agent to manage only those affairs specifically set forth in the document.
We can draft a power of attorney that becomes effective immediately or that does not become effective unless and until certain conditions exist.
A power of attorney that remains effective even if you become disabled or incapacitated is called a durable power of attorney.
One form of a special power of attorney that many clients want is a medical power of attorney. This document designates an agent to make medical decisions for you if you are unable to do so.
Powers of attorney are important elements of a complete estate plan. TCLG can prepare these documents separately or in conjunction with the preparation of your will or trust.
Living Wills
A “living will,” more properly known as an “advance medical directive,” is a person’s statement of intention as to how and whether to have life artificially extended when he or she is unconscious and terminally ill. Recent high-profile events have raised the public’s awareness of how devastating the process can be for the person’s family if those wishes have not been stated with clarity. We will explain Colorado law on this issue to you, and assist you to make your exact wishes known.
Tax Planning
The state of the federal estate and gift tax has been in a period of flux for several years. The warring of political factions as to whether it should be eliminated altogether, stabilized, or increased, has rendered tax planning for the estate client something akin to firing at a moving target. For the year 2009 you can pass up to $3,500,000 of your estate tax free ($7,000,000 for a married couple). In 2010 the estate tax goes away entirely for a period of one year. However, in 2011, it returns to the year 2001 exemption levels of $1,000,000 per person.
Congress is poised to stabilize these laws. While TCLG’s crystal ball probably gets no better reception than anyone else’s, we do not anticipate that Congress will permanently eliminate the tax any time in the foreseeable future, and will instead compromise at a reasonable exemption level. Accordingly, we urge any client whose taxable estate, including life insurance, is currently in the $1,000,000 - 3,500,000 range, or who anticipates that it will exceed $3,500,000 in the next five years, to consult with us as to whether his or her estate planning should include the use of techniques to minimize tax.
TCLG offers a variety of sophisticated techniques to address tax-planning and other family needs. These include bypass or “A/B” type marital and family trusts, children’s trusts, charitable trusts, life insurance trusts, family partnerships and foundations. Jeff Cohen, who is Of Counsel to TCLG, is an attorney and Colorado Certified Public Accountant, well qualified to assist clients in event the most complex estate planning matters.
Probate and Trust Administration
TCLG’s representation of you will not end with the preparation of your estate planning documents. If probate or trust administration proceedings are required, we offer these services as well, eliminating the client’s need to hire new lawyers at a stressful time of life. We have experience with large and complex trusts and estates, but are also available and willing to assist you with small estate proceedings. We charge reasonable hourly fees for these services, rather than a percentage of the estate, so that you pay only for work that is actually done.
Probate Litigation
When the death of a loved one strikes a family, the last thing that family wants is litigation. Fortunately, probate litigation is rare. When probate litigation arises it is often the result of an ambiguous document, concerns about the decedent’s mental capacity, or concerns about the person the decedent appointed to administer his Will or Trust. TCLG has experience with such litigation. We represent fiduciaries (personal representatives, executors, trustees) as well as beneficiaries. We represent clients in:
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Will Contests
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Trust Litigation
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Competency Disputes
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Actions to Reform Trusts
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Actions to Construe Wills and Trusts
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Accounting Actions
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Fraud Claims
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Fiduciary Misconduct Claims
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Actions to Remove Fiduciaries
In some ways probate litigation is like other litigation; however, it somtimes involves testimony by mental health professionals, and an attorney representing a client in such a case must undertand the intersection of psychiatry and the law and be able to speak the language of mental health professionals. Mark Cohen first became interested in this as an Air Force judge advocate working on voluntary and involuntary discharge actions arising out of medical and mental health issues. As a civilian he represented several clients in high profile insanity defense cases where testimony by well known psychiatrists was critical. He is familiar with the Diagnostic and Statistical Manual of Mental Disorders.
Probate litigation also often involves review of tax and other financial documents. The availability of Jeff Cohen, a lawyer and certified public accountant who is of counsel to TCLG, is an significant advantage to TCLG in such probate litigation.
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