Tamra K. Waltemath opened her Law Office in 1994. Her goal is to help her clients plan for the future while taking into account the laws of wills, property and trusts. Tamra believes that her clients are entitled to respect and to have their legal matters handled in an efficient, timely and affordable manner. Her office prides itself on customer service. Tamra K. Waltemath is a sole practitioner and a member of the Elder Law Committee and the Trust and Probate Section of the Colorado Bar Association. She is a member of the National Academy of Elder Law Attorneys, and a frequent lecturer on elder law issues and welcomes speaking requests at no charge.
To be appointed as a guardian, you must file a petition with the court and interested persons must be notified of the petition. Interested persons are generally a spouse, parents, adult children, other caretakers, and the treating physician. The petition must include a letter from a doctor that indicates that a guardianship is necessary. In addition, the petitioner must file an acceptance of office attaching a background check and a credit report on themselves. The court then appoints a visitor to investigate and report to the court whether an appointment for guardian is warranted and if the person petitioning the court for appointment is a suitable person to be appointed. After all of this documentation is filed with the court, the court holds a hearing where the protected person must be present. The court will then make an appointment and issue Letters of Appointment and an Order, unless the protected person objects. The Order will require the guardian and/or conservator to file annual reports with the court.
A party in a Civil Union now has statutory priority to serve as a personal representative for his or her partner’s estate; a statutory right to inherit property from his or her partner; a priority to make disposition of the last remains of his or her partner and the right to make anatomical gifts. The parties to a civil union also have standing to receive benefits under the Workers’ Compensation Act and the right to have standing to sue for wrongful death. They have the right to initiate nursing home complaints for each other, make medical decisions for each other and challenge a living will made by the other. A party in a Civil Union has the right to get health insurance as a dependent from a partner if the employer gives such rights to those with a designated beneficiary agreement. A Civil Union revokes a Designated Beneficiary Agreement.
The Colorado Civil Unions Act became law on May 1, 2013. This new law gives people in same sex relationships the same benefits and protections and the same responsibilities as married spouses. But not all states recognize Civil Unions and some states recognize same sex marriages. What happens if someone enters into a Civil Union in Colorado and they move out of state? And since the federal government does not recognize Civil Unions, how does someone in a Civil Union file federal income tax returns? These are just a few questions that come to mind since Colorado passed its Civil Unions Act. It is still very important to see an attorney who specializes in estate planning to protect your rights and the rights of your partner.
Wills
A personal representative is the person who is responsible for administering an estate after the death of someone. To be valid, your Last Will and Testament (“Will”) must name a personal representative (sometimes called an executor). A person is not responsible as a personal representative until they are appointed by a court. Some estates do not require the appointment of a personal representative if assets are minimal. It is important to seek the advice of an attorney before opening a probate estate with the court to determine whether probate is necessary. Anyone in possession of an original Will must lodge the will with the court within 10 days after the death of the decedent, even if opening a probate estate is not required.
Trusts
Client a created a joint living trust with his wife before his wife’s death. This was a second marriage for both of them so they wanted to ensure that their assets would go to the children of both of them upon their death. The trust document indicated that upon the death of one of the spouses, two trusts would be set up, one for the surviving spouse and one for the children of both spouses. The trusts were standard trusts. The primary purpose of both trusts were to maintain the surviving spouse. The surviving spouse was entitled to all income from her trust and she could invade the principal. She was entitled to the same from the family trust except she could only use the money for her education, health, maintenance and support. You may think there are fairly broad standards and that all the money was virtually his, but as you will see later, this is not true.
Power of Attorney
When a married person dies, his or her spouse has many rights pursuant to Colorado law, even if the spouse left no will. These rights include the right to be named as personal representative of the estate, certain monetary allowances, the right to certain property and a share of your spouse’s estate. These rights exist in a conventional marriage as well as a common law marriage. These rights do not exist for people in a domestic partnership or a civil union but these couples can give each other the same rights by executing wills, powers of attorney and beneficiary agreements.
Probate
HAPPY NEW YEAR! I hope you all had a wonderful Christmas holiday. I want to thank you for your continued support, especially the last two years during the pandemic. I hope you and your families are well, and have had no health emergencies. Many people have died in the last two years, over 800,000 in the US alone. This article covers what legally happens when someone dies in the state of Colorado.