by Kelly Cooper Colorado’s General Assembly will reconvene on January 8, 2014. At this time, it appears that at least two probate and trust related issues will be the subject of debate by the Assembly. The first is a proposed change to the Colorado Civil Unions Act that would permit partners to a civil union […]
by Jody H. Hall, Paralegal The latest updates and enhancements to ICCES (Integrated Colorado Courts E-Filing System) were released on October 19, 2013. The release bulletin, which can be found on the ICCES Home page, is attached here for your easy reference. We found a couple of items of specific interest to those of us […]
by C. Jean Stewart
When he died in December of 1799, George Washington left a will that was remarkable in many ways. Shortly after his death, the will was printed in Virginia, and was then circulated throughout the country in pamphlet form. In concluding the dispositive part of his handwritten will, Mr. Washington inserted an arbitration clause that provided, in part:
“ . . . I hope, and trust, that no disputes will arise . . . ; but if, contrary to expectation, the case should be otherwise . . . My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants—each having the choice of one—and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.”
The mandatory arbitration provision in wills and trusts has not been without controversy in this country in recent times although, as Mr. Washington’s example reveals, it clearly was used previously. It is sometimes argued that the arbitration provision would be unenforceable in modern times where state law did not specifically provide for its use in the context of a will or trust dispute because of arbitration’s inherently contractual nature.
by Carol Warnick
How many times have we been told by our clients that their dad would be having a fit if he knew that one of the children was contesting his estate plan? Or how often have we heard that mom knew there was likely to be a problem at her death, and she tried to make her trust as bullet-proof as possible, but now that she is dead some child is trying to contest it anyway?
Wyoming and several other states across the country are amending their trust code to allow the validity of a revocable trust to be contested while the grantor is still alive. Wyoming’s statute is found at § 4-10-604, in the middle of Wyoming’s Uniform Trust Code. It states that a proceeding to contest the validity of the revocable trust (or an amendment thereto) can only be brought the earlier of two (2) years after the settlor’s death or one hundred twenty (120) days after the trustee sent that person a copy of the trust and a notice informing of the trust’s existence, the trustee’s name and address, and the time allowed for commencing a proceeding. For purposes of the 120 days, notice is deemed to have been given when received by the person to whom it is given. Absent evidence to the contrary, it is presumed that delivery to the last known address of that person constitutes receipt by that person.
by Kelly Cooper Last week, we held our first Fiduciary Solutions Symposium. We want to thank each of you that came and participated. We enjoyed seeing all of you and getting a chance to catch up with you over breakfast. For those of you that couldn’t attend, here is a brief recap. When we discussed […]
by C. Jean Stewart Because Colorado is a "hybrid" state in that only one judicial district has a specialized probate court (a distinction we share with only Indiana and Missouri), confusion about jurisdiction can sometimes contribute to discussion and debate. I have collected here several articles and a case relating to jurisdiction to assist in […]
by Jody H. Hall, Paralegal
“No, you cannot have it. The trust is a private document” – Well, maybe, but not to the exclusion of the beneficiaries, and I mean ALL of the beneficiaries, named in that testamentary instrument.
Prior to returning to Colorado a few months ago, I worked in the Legal Department for a national charity where the responsibility of my team (totaling more than 8 attorneys, paralegals and staff) was to represent the charity’s interests in trust and estate matters around the country.
Coming from a background as a trusts and estates paralegal for well-respected law firms, I was absolutely shocked at the number of times that attorneys or fiduciaries (both professional and individual) would respond in the negative to a request for a copy of the will or trust or financial information regarding the gift of which we had just received notice. There seemed to be this prevailing attitude that, because we were a non-profit organization, we would simply take whatever we were given or what was left over and be grateful for it, even in large trusts or estates where the designated gift was a portion or entirety of the residuary estate. Unfortunately there was not a consistent understanding that if Charity XYZ and Cousin Sue are each to receive one-half of the residuary estate, they need to be treated equally.
by Kelly Cooper
Lawyers that regularly litigate in the probate world always have an improbable story to tell. Here is one of those stories that ended up in front of the North Dakota Supreme Court last year:
A couple, Lee and Robyn, were engaged and planned to be married on July 18, 2009. On June 26, 2009, Lee and Robyn signed a prenuptial agreement that required Lee to make gifts to Robyn and her daughter upon his death.
Also on June 26, 2009, Lee executed a Will that contained the provisions to comply with the requirements of the prenuptial agreement. The Will gave property to Robyn, describing her as “my wife, Robyn.” The Will also stated, “My spouse’s name is Robyn Risovi and all references in this Will to “my spouse” are to her only.” However, a footnote followed stating, “This Will has been prepared in anticipation of the upcoming marriage of …Lee Paulson and Robyn Risovi set for July 18, 2009.”
Lee died on July 15, 2009 – three days before the wedding.
Before you read any further, answer this question: should Robyn receive the gifts under the Will even though she was not yet Lee’s wife?
by C. Jean Stewart
In the six weeks since the death of Soprano’s actor, James Gandolfini, the web-based criticism of his will that was lodged in the New York Surrogate’s Court last month has exceeded the entire analysis of his career as Tony Soprano or genuine expressions of sympathy on his untimely death while in Italy with his son—maybe I’m just reading the wrong posts?
Much of the commentary is highly sensationalized, presumably to draw the readers’ attention to the pages where advertisements lurk, and does little to advance the dialogue about sound and sensible estate and tax planning. The small part of the plan that is actually public, a brief will, has been described as “clumsy,” a “disaster,” and “a catastrophe” by critics who reveal how little they knew about the man, his motives or his assets.
Holland & Hart's Fiduciary Solutions Practice Group is pleased to present an overview of trends crucial in helping you avoid or litigate legal disputes. Mark your calendar to join us for an enlightening look at the changing landscape of fiduciary law and litigation. We will discuss a broad range of topics including: managing digital assets; […]