What Are the Main Elements of a Will?

Many of us want to do everything in our power to make sure our loved ones and our assets will be taken care of when we pass on. This can be accomplished in a few different ways, but one of the most common is through a Will. A Will allows someone to put what they want to happen to their estate into a legally binding document.

Creating a Will in Colorado

A person who wants to create a Will is known as a testator. A testator must create a Will that meets certain requirements in order for that Will to be legally sound. The requirements for a Will in Colorado include:

  • Testator must be 18 years of age or older
  • Testator must be mentally capable of deciding on the terms of the Will
  • The Will must be signed by either the testator or someone the testator allowed to sign their name for them (in the case of a physically disabled person, for example)
  • Two witnesses must sign the Will after the testator as confirmation that they witnessed the testator’s signature take place
  • The Will must be in writing to be validated in court

A will that does not follow these requirements might not be considered legitimate when it comes time for the executor of the will to follow through on the testator’s wishes.

What to Include in a Will

A Will can include many provisions that a testator chooses for their assets and beneficiaries. These provisions can influence how their family manages their wealth, what happens to their property, and more. The following provisions are what most people should consider when drawing up their Will.

Division of Assets

A personal asset is anything a person owns that isn’t land, buildings, or minerals. Some examples of personal assets include vehicles, jewels, furniture, cash, and heirlooms. Assets should be described in detail, as should the people to which the assets will be passed down to. A vague Will might leave an executor confused as to the testator’s wishes.

Division of Property

The law is more complex when it comes to real property, such as land and buildings. The process of passing these down to beneficiaries can be complex, but it can be done with the assistance of an experienced family lawyer.

Appoint a Guardian

A testator with minor children can appoint someone in their Will to act as guardian to their children in the event of their death. This can also apply to other dependents a testator may have, such as disabled family members or elderly parents. If a testator does not name a person in their Will, the courts will decide for them. Testators who make this decision themselves may feel a sense of security knowing what would happen to their loved ones if they were to die.

The Executor

Selecting an executor is one of the most important decisions a testator will make during the Will creation process. The executor is the person who will carry out all of the wishes outlined in the Will. A testator should only select someone they trust highly to be their executor. It is also important to make sure that the executor is aware they are being selected and agrees to fulfill the role. Choosing someone who isn’t qualified or does not want to perform the executor’s duties could lead to mistakes when it comes time to divide assets.

Select Caretakers for Pets

If a testator knows they’ll pass away before their pets do, they can elect someone to care for their pets once they’ve passed. If someone fails to specify this in their Will, pets will usually be given to next-of-kin or surrendered to a shelter. Anyone who knows someone that they trust to care for their pets in the event of their death should consider adding this provision to their Will.

Cancel Debts

A person can stipulate in their Will that the debts owed to them by other people are canceled upon their death. In certain cases, a debt may be transferred to the person that inherits the aspect of the estate the debt is owed to. For example, if a landlord is owed back rent, that debt may be transferred to the person who inherits the home in question. A person can state that these debts should be canceled as an act of charity or to prevent their beneficiaries from having to chase after them.

Dying Without a Will

If someone dies without a Will in Colorado, the state’s intestacy laws will be applied. The laws only apply to assets that could be included in a Will, such as assets that a person owns alone. If an unmarried person with children dies without a Will, their children inherit everything. If they die with a spouse but no children, their spouse inherits everything. If they die without either, their remaining family members will inherit all of their assets.

What Could Invalidate a Will?

A Will could be invalidated for a handful of reasons in the Colorado courts. An oral Will can never be enforced. If the courts discover a person drafted and signed a Will despite being in the advanced stages of dementia, they may investigate whether the Will can be considered valid. A person needs to be of sound mind at the time of signing for their Will to be legally binding. A court will also invalidate a Will if they discover the testator signed it under duress. For example, if a wife signed a Will for herself that her husband forced her to sign because it left everything in his power, the courts may decide not to honor it.

Unenforceable Provisions

A Will cannot be legally sound if it contains any unenforceable provisions. Some examples of provisions that cannot be included in a will are:

  • Leaving someone a joint tenancy property. This type of property has its own rules that govern what happens when one tenant dies. The deceased person’s share will be given to the remaining tenant, even if there was a Will that left the property to someone else.
  • Leaving life insurance benefits to someone other than the beneficiary. Life insurance policies are their own legally enforceable agreements, and the beneficiary listed on the policy will receive the settlement.
  • Leaving cash to someone for illegal purposes. If a testator leaves money to their children for drugs, the entire will may be invalidated. This is also true if a testator leaves gifts with illegal conditions. For example, if someone left their child money but said they could only use it to start selling drugs, the will would not be enforceable.
  • Leaving gifts to pets. As much as we love our pets, they do not have the capacity to own property. Instead, testators should leave the gifts to the person they choose to care for their pets with the condition that they use it for the pets.

What Happens When a Will Is Invalidated?

If the courts decide a person’s Will cannot be enforced, they may take it upon themselves to decide who receives certain assets.

We Can Help You

If you are considering a Will and want to make sure you create one that will hold up in court, the Law Office of Alexandra White, PC can help you. We will work alongside you to create a Will that meets is customized for your specific circumstances, desires, and long-term goals. Having a Will in place can give you peace of mind and prevent conflict among your family regarding your assets after you die. Contact us today at (303) 647-4245 or online for a free 30-minute phone consultation.

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