Areas of Practice:

Elder Law
Estate Planning
Wills and Trusts
Estate Administration
Trust Administration
Guardianships
Conservatorships
Real Estate

NEW WILL EXECUTION LAW

            Colorado Law was amended in 2009 to allow the use of a Notary attestation as an alternative to obtaining the signature of two witnesses to make a will valid. Prior to the change in this law which took effect on May 21, 2009, to be valid a will was required to be in writing, signed by the maker of the will (or at their direction and in their presence),  and signed by two witnesses who had witnessed the will makers execution of the will.  The only exception to these execution formalities is a holographic will which is a will in which all of the material provisions of the will are in the will maker’s handwriting and the will is signed by the will maker.  Completing a form generally will not count as a holographic will.  All of the material provisions of the will must be in the will makers own handwriting to be valid as a holographic will.

            Oftentimes, a will is signed by the will maker, two witnesses and a notary public acknowledges the execution of all the signers.  A will need not be notarized to be valid.  It is sufficient if it is signed by two witnesses in the will maker’s presence at the time the will maker signs the will.  To be eligible to witness a will, an individual must be competent.  There is no age requirement to be a witness, although it may not be a good idea to use a person under the age of 18. In addition, a beneficiary of the will may be a witness, but it is inadvisable due to possible charges of undue influence or fraud.  In my office we do not use interested witnesses because we believe this may be used as grounds to contest the will.

            A will is generally not filed with the court while the will maker is alive. You may amend your will at any time before your death if you are competent, so I believe you should retain possession of your will so that someone does not attempt to probate an old will.  I recommend that you destroy all old wills and keep your most current original will in a safe place at home or in a bank safe deposit box.  The law requires that whoever is in the possession of an original will must deliver it to the court within 10 days after the will maker’s death or as soon thereafter as the death becomes known to the custodian of the will.  The will is lodged in the court having probate jurisdiction in the Colorado County where the decedent resided or was domiciled at death.  There is no charge for lodging the decedent’s will and there is no penalty for not lodging the will.  Most people are unaware of this law.  If you are holding someone’s original will, consult with an attorney as soon as practical so that they can help you with lodging the will and to advise you as to whether a probate estate must be opened with the court.

            In closing, I would like to share a joke with you.  An elderly gentleman had serious hearing problems for a number of years.  He went to the doctor and the doctor was able to have him fitted for a set of hearing aids that allowed the gentleman to hear 100%.  The elderly gentleman went back in a month to the doctor and the doctor said, “Your hearing is perfect.  Your family must be really pleased that you can hear again.”  The gentleman replied, “Oh, I haven’t told my family yet.  I just sit around and listen to their conversations.  I’ve changed my will three times!”

This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C.  This information is for general informational purposes only and does not constitute legal advice.  For specific questions, you should consult a qualified attorney.

Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships.  She can be contacted at:  Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO  80030; 303-657-0360.

 


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