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Congratulations!
/in UncategorizedCongratulations to our attorneys selected as Colorado Super Lawyers or Rising Stars for 2013 in the following areas:
Estate and Trust Litigation:
Estate Planning and Probate:
How Many Guns Did You Say the Decedent Owned?
/in Administration of Estate, Administration of Trust, Fiduciary Duties, Personal Representative, Trusteeby Carol Warnick
How many guns did you say the decedent owned? Are they all accounted for and safely stored? Who should be in possession of them during the administration period? If it is going to be the fiduciary, should the attorney suggest a background check if the fiduciary is an individual?
Firearms belonging to a decedent often present an ongoing dilemma for a fiduciary. Not only does the fiduciary have to worry about securing the firearms safely (firearms and potentially angry beneficiaries do not mix well) but they have to worry about identifying them correctly and understanding the transfer restrictions placed on the various classes of firearms. Even the mere possession of certain types of firearms can create issues for the fiduciary. Furthermore, an inappropriate transfer of a firearm by a fiduciary can result in liability for the fiduciary, the attorney, the beneficiaries receiving the transfer, or even third parties.
The National Firearms Act (26 U.S.C. 56) imposes restrictions on certain types of “NFA” weapons. In addition, Colorado law finds that “(a)ny person who knowingly purchases or otherwise obtains a firearm on behalf of or for transfer to a person who the transferor knows or reasonably should know is ineligible to possess a firearm pursuant to federal or state law commits a class 4 felony.” C.R.S. § 18-12-111. How many fiduciaries know (or should reasonably know) who is ineligible to possess a firearm? This came up recently in an estate our office was working on and it can get complicated. Would the fiduciary necessarily know whether or not the person who was designated to receive the firearm had been dishonorably discharged from the U.S. military, or had renounced his or her U.S. citizenship, or had ever been convicted of a crime of domestic violence? Each of these factors (this list is nonexclusive), along with a myriad of others, would make the person receiving the firearm a prohibited person. 18 U.S.C § 993(d).
Even if the beneficiary is determined not to be a prohibited person, what about their housemates? Could the nonprohibited beneficiary end up being liable for allowing their roommate or significant other who was a prohibited person have access to the firearm merely by virtue of sharing a house? Does the fiduciary have the responsibility to check out the beneficiary’s roommates?
The list of potential problems seems virtually endless. Michael G. Sabbeth wrote an article which provides a good primer on these issues and which we suggest be required reading for fiduciaries of estates where firearms are involved (“After the Last Shot: Estate Administration Issues With Firearms,” 40 Colo. Law. 95 August 2011).
As big as these issues are now, they aren’t going away any time soon. Expect that the problems and complications created by the presence of firearms in an estate or trust will do nothing but increase in the future.
Electronic Filing Tips
/in Court Proceduresby Ticia Sanderson, paralegal
ICCES is now Colorado’s electronic filing source in all but a few counties and our office has learned a few things about the system that might be helpful to other users. First , if you are filing a document that needs the Court’s immediate attention be aware that just because you received confirmation from ICCES that the document was filed does not mean the Judge can see that you filed it. Until the clerk accepts the document, which in our experience can take several days, the document is not listed in the register of the case and therefore not viewable by the Judge. If you need the Judge to be aware that the document has been filed immediately, you should call the Clerk and request an expedited acceptance. Additionally, when you receive an email notification that you are being served with a document it is also not visible to you in the register of the case listed on ICCES until the Clerk has accepted it for filing. However, we have found the documents are normally viewable from the Alerts screen.
Fiduciary Lessons from…Lance Armstrong?
/in Uncategorizedby Jean Stewart
Lance Armstrong, the road cycling legend who recovered from testicular cancer to win the grueling 2-week European bicycle race known as the Tour De France seven times has recently been revealed as a failed fiduciary.
In his two-part interview last week with Oprah Winfrey, Lance reports that among the hardest punishments so far meted out to him, is the decision of his Livestrong Foundation, the cancer research and victim’s support foundation that has raised and distributed millions to cancer causes, to ask him to step down as the Chairman and a member of the Board after the doping evidence piled up against him.
Every time we paid $1 for one of those iconic yellow rubber bracelets we were supporting the foundation in Lance’s fiduciary hands. By all reports, he was a fiduciary in the cycling world alike, as the leader of the several world-class teams he headed over the years. We invested him with fiduciary powers and his spectacular fall from grace teaches us some simple lessons about assuming positions of trust.
Some fiduciary lessons from Lance:
A New Blog, the New Year and the New CBA Litigation Subcommittee!
/in Uncategorizedby Kelly Dickson Cooper
As many of you know, the Colorado Bar Association has many wonderful and active subcommittees that provide important services to the legal profession and the public. Building on that great tradition, the Trust & Estate Section and the Elder Law Sections have approved the formation of a joint subcommittee to address litigation issues. The first meeting of the new Litigation Subcommittee is scheduled for January 17, 2013 at 10am at the offices of the Colorado Bar Association, 9th Floor.
The goals for the Litigation Subcommittee will be discussed and developed further at the first meeting, but was proposed with the following aspirations:
We hope you will join us!
Introduction
/in UncategorizedThe Fiduciary Solutions group here at Holland & Hart wanted to communicate with current and potential clients in a new way that is accessible, efficient and useful. We hope you will enjoy and appreciate our new blog. Much of the content will find shared interests in the community of estates and trusts attorneys. Please visit our website at www.hollandhart.com/fiduciarysolutions/ to learn more about our practice group and for contact information.