Why Should I Have A Will?

March 8, 2022

There comes a time in every person’s life when they need to get serious about their estate plan. Writing a will is fundamental to ensuring your wishes are carried out after you die, whether they relate to the distribution of your property and assets or the care of your minor children.

Regardless of your age, medical history, and marital status, a will offers peace of mind and could save your loved ones from undue stress and expense. Let’s explore wills, what they are, and why they matter in more detail.



What is a will?

A will is a legal document that outlines what you wish to happen to your assets and young children following your death. If you do not have a will, there is no guarantee that these wishes will come to fruition. What’s more, your nearest and dearest may be burdened by the emotional and financial toll that comes with settling your affairs.
Wills are not all created equally, and some are more widely recognized and legally binding than others. 

Who needs a will?

The short answer: every single person needs a will. It doesn’t matter if you don’t own property or investments; a will is still a vital legal document that benefits you and your family. If you are older, unwell, married, a parent, a property owner, or a business owner, writing a will is even more important.
It’s also essential to re-visit your will if your life circumstances change – if you have a child, inherit a property, or divorce your spouse, for example. 

Why should i have a will?

Wills are not just for the wealthy or individuals with high-value assets. Everyone should have a will, including you. Here are some of the reasons why:
  • You can decide who your assets are passed on to and how they are divided.
  • You get peace of mind knowing your most valuable assets won’t end up in the wrong hands – an ex-partner you have separated from or an estranged family member, for example.
  • You can choose who will care for your minor children. If you do not have a will, this decision will be left to the court.
  • You protect your heirs from the lengthy and potentially complicated process of securing access to and transferring your assets.
  • You can minimize estate tax through strategic estate planning. For example, you might donate to a charity.

What type of will is best?

The best type of will is what’s known as a testamentary will. This is a written will and the most common type. You can create a testamentary will yourself; however, to ensure your wishes are carried out, have it prepared by an experienced estate planning attorney. Keep in mind, your will must be signed in the presence of witnesses.
Other types of wills include holographic wills ( i.e. , a handwritten will), oral wills (not valid in Colorado), pour-over wills, and mutual wills. These less common types of wills usually serve specific purposes and should be avoided unless advised by an attorney.

What can i include in my will?

Your will should include how you wish your belongings to be distributed. This includes things like the property you own, cash in your bank account, businesses, investments, and other higher-value or sentimental possessions.
A will can also include any charities, institutions, or organizations you would like to direct all or a portion of your assets toward.
Finally, a will should detail who you'd like to become the guardian of your young children if you die.
It’s worth noting that some of your assets are not covered by the instructions in your will. For example, you cannot nominate beneficiaries for your life insurance policy payout. Nor can you specify the distribution of investment accounts that have already assigned the ‘transfer on death’ option. 

What happens to jointly owned property?

If you own property jointly with your spouse, you likely have a right of survivorship. This means that if one spouse passes away, the other receives full ownership of the property. The right of survivorship can also apply to joint ownership involving unrelated individuals.
If your spouse will obtain everything after you die without a probate proceeding, do you really need a will? Yes. You absolutely do, and here are three reasons why:
  • Suppose you and your spouse die simultaneously. Without a will, your property may end up with someone other than your desired heir.
  • While you might own your home jointly with your spouse, your other valuable possessions might be yours and yours alone. Even if you share everything with your partner, there is still the possibility of an unexpected windfall before your death.
  • If you hold all of your property in joint tenancy, you may not be able to take full advantage of tax-saving estate planning strategies.
  • While holding property jointly with a spouse seems like the obvious thing to do, it can lead to undesirable results in blended families, such as the inadvertent disinheriting of the first-to-die's children.

What happens if i die without a will?

If you die without a will (called intestate), the state will typically use a formula to determine the distribution of your assets. In most cases, half of your estate will go to your spouse or partner, and the other half will go to your children.
However, time- and energy-consuming complications can arise. For example, the state may mandate the sale of your family home or assets to ensure even distribution. Or, if your children are minors, representatives nominated by the state will protect their interests.
Dying without a will can result in higher taxes, too. 

The bottom line: you need a will

To ensure the best possible scenario plays out after your death, you need a will. A will not only protects your property and assets, but it alleviates any burdens on your family members.
The good news is, preparing a will that clearly outlines your estate planning wishes doesn’t have to be difficult or stressful. With the help of a trusted and experienced estate planning attorney, you can safeguard your belongings and protect those nearest and dearest to you. Even better, in some cases, you can leverage estate planning approaches to save money.
If you would like help preparing your will, reach out to the friendly team at The McKenzie Law Firm today. We would be more than happy to help or to answer any questions.

What Next?

If you think it might be time to think through your estate plan, you can:
  1. Give us a call at 720-821-7604 to schedule a "Discovery Session" at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
  2. Visit our estate planning page to learn more about how proactively thinking through your estate plan can protect you and your family, minimize hassle, lower the chance of family discord, and minimize or eliminate taxes.
  3. Get a copy of our estate planning checklist to see where you currently stand.
  4. Learn more by reading our blog or watching our videos.

Consequences of Dying Without a Will in Colorado

February 12, 2025
Consequences of Dying Without a Will in Colorado

What Types of Assets Can Be Included in a Colorado Trust?

January 30, 2025
What Types of Assets Can Be Included in a Colorado Trust?

What is a Guardianship and When Do I Need One?

December 2, 2024
What is a Guardianship and When Do I Need One?

What Are the Required Documents to Create a Will in Colorado?

October 28, 2024
What Are the Required Documents to Create a Will in Colorado?

Probate in Colorado: A Guide for Families and Executors

October 1, 2024
Dealing with the death of a loved one is never easy, and navigating the legal process that follows can add stress during an already difficult time. In Colorado, probate is the legal process by which a deceased person’s estate is administered, their debts are paid, and their assets are distributed to beneficiaries. Whether you’re an executor, beneficiary, or family member, understanding how probate works in Colorado can help you anticipate the steps involved and your potential responsibilities. This blog post will provide an overview of the probate process in Colorado, outline when probate is necessary, and offer guidance on how to navigate the system effectively.  What is Probate? Probate is the legal process that occurs after someone dies to ensure their assets are distributed according to their will or, if there is no will, according to state law. The probate process includes validating the will, inventorying the deceased’s assets, paying off debts and taxes, and distributing the remaining assets to the rightful heirs. While probate is often associated with lengthy court proceedings, not all estates require formal probate. Colorado offers several options depending on the size and complexity of the estate, which can help simplify the process in many cases. When is Probate Necessary in Colorado? Probate is not always required in Colorado. Whether an estate must go through probate depends on the types and value of the deceased’s assets. Generally, probate is necessary if: The deceased owned real estate solely in their name. The deceased’s assets, such as bank accounts or investments, were not held in joint tenancy or designated to transfer on death. The deceased had personal property valued at over $74,000 (as of 2023). If an estate falls below this threshold and does not include real estate, the beneficiaries can often use a Small Estate Affidavit to claim the assets without going through probate. Types of Probate in Colorado Colorado has three main types of probate procedures: small estate procedures, informal probate, and formal probate. The type of probate required depends on the estate’s value and whether there are disputes among heirs or creditors. Small Estate Procedure (Collection by Affidavit) The small estate procedure can be used if the value of the deceased’s assets is less than $74,000 and does not include real estate. This process involves filling out a Small Estate Affidavit, which allows the heirs to collect and distribute the assets without opening a probate case in court. It is the simplest and fastest way to handle a small estate. Informal Probate Informal probate is used when there is a valid will and no disputes among heirs or creditors. The process is overseen by a court-appointed Personal Representative (executor), but there is minimal court supervision. Most of the process, such as distributing assets and paying debts, is handled by the Personal Representative, with only basic filings required with the court. Informal probate is less time-consuming and costly than formal probate. Formal Probate Formal probate is required when there are disputes regarding the will’s validity, disagreements among heirs, or if the estate is complex and needs court intervention. The process is supervised by the court, and all major decisions, such as approving the distribution of assets, must be approved by a judge. Formal probate can take much longer and involve more legal fees than informal probate. Steps in the Colorado Probate Process While the specific steps in probate can vary depending on the type of probate and the complexity of the estate, the general process in Colorado typically includes the following: Filing the Probate Petition The process begins with filing a Petition for Probate with the appropriate Colorado probate court. The petition is usually filed by the executor named in the will or an interested party if no will exists. Appointment of the Personal Representative The court will appoint a Personal Representative (executor) to manage the estate. If there is a valid will, the person named as executor is typically appointed. If no will exists, the court will appoint someone, usually a family member, to serve as the Personal Representative. Notice to Heirs and Creditors The Personal Representative must notify all potential heirs and creditors of the probate proceeding. This step is essential for providing an opportunity for interested parties to come forward and make claims against the estate. Inventory and Appraisal of Assets The Personal Representative must create an inventory of all the deceased’s assets and have them appraised if necessary. This inventory will include real estate, personal property, financial accounts, investments, and any other assets owned by the deceased. Paying Debts and Taxes Before distributing assets, the Personal Representative must pay off the deceased’s debts and any taxes owed. If the estate does not have enough assets to cover all debts, Colorado law dictates the order in which creditors are paid. Distribution of Assets Once all debts and taxes have been paid, the Personal Representative can distribute the remaining assets to the beneficiaries according to the will or, if no will exists, according to Colorado’s intestacy laws. Closing the Estate After all assets have been distributed and all required filings have been made with the court, the Personal Representative can file a Petition for Final Settlement to close the estate. Once approved, the Personal Representative’s responsibilities are complete. Challenges and Disputes in Colorado Probate Unfortunately, probate can sometimes become contentious, especially in cases involving high-value estates or when family members disagree on how assets should be distributed. Some common challenges in Colorado probate include: Will Contests Heirs or beneficiaries may challenge the validity of a will, claiming it was signed under duress, there was undue influence, or the deceased lacked the capacity to create the will. Will contests can significantly delay the probate process and require formal probate to resolve. Executor Misconduct If an executor is not fulfilling their duties or is mishandling estate assets, beneficiaries can file a complaint with the court and request the executor’s removal. Disputes Among Beneficiaries Disputes can arise over specific bequests, how assets are divided, or even the valuation of estate property. Mediation or formal court intervention may be necessary to resolve these disputes. How a Colorado Probate Attorney Can Help Navigating the probate process can be overwhelming, particularly when dealing with the emotional aftermath of losing a loved one. An experienced probate attorney can help in several ways: Guiding You Through the Process An attorney can explain the probate process, help you understand your rights and responsibilities, and ensure all legal requirements are met. Managing Court Filings and Deadlines Probate involves numerous legal documents and deadlines. An attorney can handle these tasks, ensuring that everything is filed correctly and on time. Resolving Disputes If disputes arise, an attorney can provide representation in negotiations, mediation, or court hearings to protect your interests and work toward a fair resolution. Minimizing Costs and Delays With the guidance of a skilled attorney, you can often minimize the time and expense associated with probate, helping ensure the process goes as smoothly as possible. How The McKenzie Law Firm, LLC Can Help At The McKenzie Law Firm, LLC, we understand the complexities of the probate process and are committed to helping families navigate it with compassion and expertise. Whether you’re an executor needing assistance with your duties or a family member looking to understand your rights, our experienced probate attorneys can provide the support you need. If you have questions about probate in Colorado or need legal assistance, contact us today to schedule a consultation. We are here to guide you through the process and ensure your loved one’s wishes are honored.

Understanding the Notice to Creditor Form in Colorado Probate: Pros and Cons

By Dan McKenzie • September 10, 2024
Explore the pros and cons of mailing Notice to Creditor forms in Colorado probate. Learn how this decision impacts estate administration and creditor claim periods.

Understanding Special Needs Trusts in Colorado

August 30, 2024
Understanding Special Needs Trusts in Colorado

Protecting Your Legacy: Beneficiary Deeds vs. Life Estates in Colorado

By Dan McKenzie • July 17, 2024
Explore the differences between beneficiary deeds and life estates in Colorado estate planning. Learn the pros and cons of each method for transferring property and avoiding probate, and discover when to use each option for your unique situation.

The Importance of Estate Planning in Colorado

July 16, 2024
The Importance of Estate Planning in Colorado

A Guide to Forming an LLC in Colorado

June 30, 2024
A Guide to Forming an LLC in Colorado
More Posts
Share by: