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PAGE 14 | THE VILLAGER • June 18, 2020
ABOU
THE LAW
BY DONALD PETERSON Dear Readers, What happens if you don’t have a Will? Here is another case example: Recently, I received a call from a widower whose wife had passed away over 20 years ago. The couple had purchased their new home from a developer, who offered to prepare the deed, free of charge, as a courtesy. The language on the deed showed the owners’ names and stated that they took title to the home as “Husband and Wife”. Based on this language, the husband thought he was the sole owner of the property after his wife’s passing, as the surviving joint owner. Unfortunately, the developer did not include the critical words needed on the deed, to show that the husband and wife took ownership as joint tenants. These words are required under Colorado law to take advantage of the law of joint tenancy. When such words are used on a deed, the ownership of real property is transferred to the surviving joint tenant, at the death of the other
joint tenant. All that is needed is to record a certified copy of the Certificate of Death of the deceased joint tenant in the country where the real property is located. Now, the husband was ready to sell the family home and move into an assisted living facility. Imagine the husband’s shock when the title company advised that he only owned a one-half interest in the home and that his deceased wife’s estate owned the other one-half interest. Accordingly, the title company advised there was a need to open a probate estate for the wife, for the Court to appoint a Personal Representative with Letters to be issued, authorizing the Personal Representative to transfer ownership of the wife’s one-half interest to the buyer with a Personal Representative’s Deed. The husband asked how could this be the case? The husband argued that he, alone, had paid the mortgage, taxes and insurance on the home for all of the years since his wife’s passing. I explained that merely using the words “Husband and Wife” on the deed had no legal significance and was not the same as using the legal term, “as joint tenants”. Although Colorado law recognizes ownership of assets, including a home, titled in joint tenancy, the title must state those words specifically. Otherwise, as in this case, the couple unknowingly took title to their house as tenants-in-common, under the
wording of the deed prepared by the developer, resulting in a one-half ownership by the husband and one-half by the wife. This divided ownership remained at the wife’s passing and was not affected, or cured, by the husband’s sole payment of the mortgage or other home expenses. Under tenant-in-common ownership, the respective share of property that is owned by two people will pass upon the death of one of the co-owners to his or her estate, rather than to the remaining co-owner and probate is necessary to transfer the property. Thus, there was a need to open a probate estate for the wife, to transfer ownership of her one-half interest in the family home. Unfortunately she did not have a Will, so the estate had to be opened on a formal basis, including the requirement to notify all of the wife’s heirs, who stood to inherit a portion of the wife’s one-half interest, under the law of intestate succession that applies when someone dies without a Will. Under that law, the surviving husband is not automatically entitled to 100% of the wife’s estate. Instead, depending on who the wife’s heirs are, they may share in the wife’s estate, together with the husband. Under the law of intestate succession, if any person who would be an heir died before the decedent (the wife in this case), then their children substitute for them and become the dece-
dent’s (wife’s) heirs. Therefore, grandchildren, great-grandchildren, nieces, nephews, etc. must be considered when determining heirship. Application of the strict law of intestate succession can be avoided if you have the foresight to prepare a Will.
What are the four key medical/estate plan documents you need now?
Many of my clients have asked what are the critical documents needed, particularly in view of the COVID-19 pandemic. Simply being married does not give you the legal right to gain access to your spouse’s medical records or make medical decisions on your spouse’s behalf, even in an emergency. To avoid this problem and to help others care for you and to achieve your overall estate planning goals, the following documents create an effective
medical/estate plan package: 1. Healthcare Power of Attorney; 2. General Financial Power of Attorney; 3. Advanced Directive for Medical/Surgical Treatment (“Living Will”); and 4. Will (or a Will with a Trust). Careful medical/estate planning should include preparation and signing of these documents, to accomplish your goals and protect you, both during your lifetime, and at the time of passing. The Power of Attorney documents allow you to designate those agents whom you authorize to help you on your behalf during your lifetime, and the Will/Trust documents allow you to nominate others to help with your estate after your passing, as well as to identify the beneficiaries and the distributions to them, to accomplish your estate planning goals.
A 30% REDUCTION ON ESTATE PLAN DOCUMENTS IS CURRENTLY BEING OFFERED DUE TO THE COVID-19 CRISIS! FOR A FREE TELEPHONE OR VIDEO CONSULTATION, PLEASE CALL: Donald Glenn Peterson, Esq. Don Peterson Law Firm 1720 S. Bellaire St., Suite 530, Denver, CO 80222
Phone: (303) 758-0999 E-Mail: Donald@PetersonLaw.co Website: www.donpetersonlawfirm.com
What to know about advance care planning in the age of coronavirus SAVVYSENIOR
Dear Savvy Senior, you should know along All this horrible corowith some resources to navirus carnage got me help you create an adthinking about my own vance directive. end-of-life decisions if I were to get sick. Can Advance Directives you recommend some To adequately spell good resources that out your wishes regardcan help me create a BY JIM MILLER ing your end-of-life living will or advance medical treatment are directive, or other pertinent two key documents: A “living documents? I’ve put it off long will” which tells your doctor enough. what kind of care you want to Almost 70 receive if you become incapacitated, and a “health care power of Dear Almost, attorney” (or health care proxy), Creating a living will (also which names a person you authoknown as an advance directive) is rize to make medical decisions one of those things most people on your behalf if you become plan to do, but rarely get around unable to. to actually doing. Only about These two documents are one-third of Americans currently known as an “advance direchave one. But the cold hard realtive,” and will only be utilized if ity of the novel coronavirus may you are too ill to make medical be changing that. Here’s what
decisions yourself. You can also change or update it whenever you please. It isn’t necessary to hire a lawyer to prepare an advance directive. There are free or low-cost resources available today to help you create one, and it takes only a few minutes from start to finish. One that I highly recommend that’s completely free to use is My Directives (MyDirectives. com). This is an online tool and mobile app that will help you create, store and share a detailed, customized digital advance directive. Their easy-to-use platform combines eight thoughtful questions to guide you through the process. If you’re not computer savvy, ask a family member or trusted friend to help you. The advantage of having a digital advance directive versus a paper document is being able
to access it quickly and easily via smartphone, which is crucial in emergency situations when they’re most often needed. If, however, you’d rather have a paper document, one of the best do-it-yourself options is the Five Wishes advance directive (they offer online forms too). Created by Aging with Dignity, a nonprofit advocacy organization, Five Wishes costs $5, and is available in many languages. To learn more or to receive a copy, visit FiveWishes.org or call 850681-2010. Another tool you should know about that will compliment your advance directive is the Physician Orders for Life-Sustaining Treatment, or POLST (sometimes called Medical Orders for Life-Sustaining Treatment, or MOLST). A POLST form translates your end-of-life wishes into
medical orders to be honored by your doctors. To learn more about your state’s program or set one up, see POLST.org. Readers should also know that if you’ve already prepared an advanced directive paper document, a POLST form or the VA advance directive form 10-0137, you can upload, store and share these documents too at MyDirectives.com. And finally, to ensure your final wishes are followed, make sure to tell your family members, health care proxy and doctors. If you make a digital advance directive or have uploaded your existing forms, you can easily share them electronically to everyone involved. Or, if you make a paper advance directive that isn’t uploaded, you should provide everyone copies to help prevent stress and arguments later.
