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Probate

Burnham law is a Colorado Probate Firm
serving Denver, Boulder, Colorado Springs, Fort Collins and all of Colorado.

Probate Specialists.

Our probate attorneys are aggressive, strategic and goal-oriented. We’re masterful in trial litigation and we work hard to fight for the clients and cases we represent.

We are dedicated to helping people in our community make informed decisions by providing no pressure consultations at no cost.

We offer wisdom
when life hits hard.

Sharp. Strategic. Efficient.
  • What is Probate?

    The probate process comes into play when a family member or loved one passes away. It’s the judicial process of determining the validity of the will they left behind or settling estate matters should there be an absence of a will.

  • How a Probate Attorney can Help

    Having a probate lawyer helping you plan your estate or execute your deceased family member’s will guarantee that the probate process will be handled properly and remain as smooth as possible.

  • Why Choose Burnham Law?

    With over 200 years of combined experience, our attorneys provide the highest level of excellence and innovation in client representation, giving clients a strong advantage from the outset. We consider each client’s unique situation. We look at your short and long term goals to develop a case specific strategy and expertly prepare from beginning to resolution. Probate is a specialized area of law and we have specialists that focus exclusively on probate. We provide tremendous value for our clients. We are experts in the field and we handle it better than anyone else. Hire our professionals to do this right.

Everything is personal about probate

Overcome Adversity.

Wills

What is a Will?  A legal document that states to whom you wish to leave your belongings, and in the case of minor children, may state who should be named guardian.  If you were to die without a Will (that is “intestate”), your estate would be distributed under specific instructions by Colorado law.  There is no guarantee that Colorado laws of intestate distribution align with your desires.  However, you can override the Colorado laws by having a Will.  In addition to other instructions, your Will can include:

  • Naming who receives what property.
  • The selection of the personal representative of your estate.
  • Address the payment of any taxes and debts.
  • Address burial and funeral expenses.
  • Name a guardian for your minor child(ren).

When you pass, your loved ones will be going through an emotional time, and there will be added stress in having to deal with the legalities of your estate.  Having a well-drafted Will can be your last gift to your grieving loved ones.  The Will can provide:

  • Reduced risk of legal challenges to the estate.
  • Reduced time spent going through probate.
  • An expedited process so that your heirs can more quickly access your property.
  • Reduced stress on your loved ones by allocating payment of funeral expenses.
  • A clear path for the payment of taxes

If you already have a Will, life situations change, and laws are amended (e.g. tax laws).  Colorado law allows you to update, change, and amend the contents of your Will as often as needed.  You should review your Will and estate plan upon any major life change, or at least every four years.

In addition to having a current Will, you should consider having an up-to-date Medical Power of Attorney, including a Medical Directive (also known as a Living Will), a Statutory Power of Attorney, a Written Designation of Guardian, and instructions for disposition and memorial.

Whether you desire an entire estate plan or a simple Will, our attorneys at Burnham Law can help you accomplish your goals.

Contested Wills

A Will is a legal document that gives instructions for distributing assets upon death. Only “interested parties” are allowed to contest (or fight) the validity of a Will. In Colorado, “interested parties” are defined as someone who would have inherited from the deceased had there been no Will or a named beneficiary in the current or previous Will. A contested Will describes when an interested party files a petition with the court asking that all or a portion of the Will be considered invalid.  Colorado law allows for Wills to be contested for limited reasons, with the following being the most common:

Undue Influence

A Will may be deemed invalid if the person who made the Will was under undue influence.  Undue influence occurs when a person manipulates the person who made the Will to such a degree that they lose free Will.  Common forms of manipulation are coercion, duress, and the misuse of power.  The misuse of power or trust is difficult to prove.  Classic examples are when a person who has a confidential or fiduciary relationship with the testator improperly influences the contents of the Will. Confidential or fiduciary relationships arise in a variety of ways but the most common is when a person is the Will maker’s power of attorney.

Failure of Formality or Improper Execution

Colorado law requires that Wills be created with certain formalities (with exceptions), such as:

  • The Will maker be at least 18 years old;
  • The Will maker be of sound mind;
  • The Will be in writing;
  • The Will be signed by the testator or signed by an appointed person of the testator;
  • The Will be signed and witnessed by two impartial parties; and/or the Will be notarized.

Whether you are creating a Will or contesting one, it’s beneficial to consult an experienced attorney to ensure each formality is upheld, or in some cases, that the appropriate exception is made.

Mental Incapacity

Colorado law requires the Testator (Will maker) be of sound mind when the Will is created and signed. Whether or not the Testator was of sound mind is a determination made by the court after looking at several factors. If the court finds that the Testator had a general understanding of the factors, the court should determine they were of sound mind.

Fraud

A Will may be considered invalid if its creation was due to fraud.

Estates

You have a choice, if you die or become incapacitated you can have complete control over your assets and care – or – you can let the State of Colorado have control over your assets and care. The State of Colorado has a plan for you, whether you agree with it, like it, or it causes undue expenses. But you can bypass the State’s plan and have your own individualized plan (called your estate plan) where you control your assets, control your financial/physical care, align guardians for your children, and avoid waste (taxes, court costs, legal fees).  Burnham Law wants to help you keep control.

In the unfortunate event of death or incapacitation, estate planning is about having a legal plan in place to account for your assets and care.

A solid estate plan will accomplish these goals (amongst others):

  • Name the people or organizations that will receive the things you own after you die.
  • Transfer the things you own with the least amount of taxes, court costs, legal fees, and without disqualifying family members with special needs from other benefits.
  • Provide for loved ones with special protections from irresponsible waste, creditors, and/or divorce.
  • If you become incapacitated prior to death, your estate plan may include instructions for both your care and financial affairs.
  • Safeguard and control your child(ren)’s inheritance.
  • Name guardian(s) for your child(ren)’s care.

Estate planning at Burnham Law provides more than just a solid plan, it provides peace of mind. We want you and your loved ones to have the peace of mind that in an unfortunate situation, your care and assets are managed. As we design your estate plan, we have your loved ones in mind so that the transition is smooth, without conflict, and without unnecessary waste.

Whether you are just starting your estate plan, updating, or need to review; let our experienced team at Burnham Law give you peace of mind.

Minor Settlements

In Colorado, whenever there is a settlement of a claim (such as estate inheritance, personal injury, wrongful death) and the person receiving the settlement is either a minor or a person with a disability, the law requires that the settlement be approved by the courts. This process is sometimes called “compromise of a minor’s claim.”
Colorado Probate laws govern the approval process for minor settlements and are designed to protect the interests of the minor. A compromise of a minor’s claim generally involves the following steps:

1. STEP 1: A settlement petition must be filed. The petition must include specific details of the proposed settlement.

2. STEP 2: After proper notice, an evidentiary hearing is held. The purpose of this hearing is for the court to hear evidence to assure the best interests of the minor are protected from any undue influence (even from other family members).

3. STEP 3: The court issues its final order. The final order may provide the guidance and amount of the approved settlement. This can include the attorney fees and costs, amounts to be paid to medical providers, and net proceeds to the minor. Further, the order may detail what form of settlement will be provided to the minor (structured, fiduciary restricted account, appointment of a conservator, trust, etc.).

4. STEP 4: If necessary, a conservator is appointed. In some circumstances, Colorado law requires the appointment of a conservator. The conservator is tasked with administering the proceeds on behalf of and in the best interests of the minor. Once appointed, the conservator is required to file annual reports with the court to ensure the continuing duty of acting in the best interests of the minor.

Whether you are seeking for a minor’s settlement to be approved or objecting to a proposed settlement, Burnham Law can help. Our probate attorneys are not just excellent at drafting estate plans; they are trial attorneys who are comfortable and effective inside the courtroom.

Guardianships

In general, a Colorado guardianship is an arrangement in which an individual is placed in charge of the person of another individual (called a “ward”). Colorado allows for the appointment of guardians for minors or incapacitated persons. Different than a conservator, a guardian oversees “the person” of the ward, while a conservator oversees the finances of the ward.

Duties

To be in charge of “the person” of a ward means to have the same duties and responsibilities as a parent regarding the ward’s support, care, education, health, and welfare. The guardian is required to always act in the ward’s best interests. The duties of the guardian can be expanded or restricted depending on the needs of the ward and the determination of the court.

In determining the duties of the guardian for an incapacitated person, the court evaluates the needs of the ward and then issues an order for what is necessary and no more. This requires the guardianship order to be specific as to the powers and roles of the guardian.

To assist the court in determining if and under what terms a guardianship should be issued, the court will appoint a “court visitor.” This is an individual assigned by the court to conduct a preliminary investigation of the allegations and make recommendations to the court.

Appointment

Colorado allows the guardian of a minor to either be appointed by the parent or by the court. While the guardian of an incapacitated person must be appointed by the court.

A guardian for an incapacitated ward may be appointed by the court if the court finds that the ward is unable to effectively receive or evaluate information or make or communicate decisions. This inability has to be severe. Effectively, the Court must find that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with technological assistance.

The role of an effective attorney in guardianship cases comes in many different forms. In uncontested guardianship cases, an experienced attorney will provide evidence to the court to support the appointment.

In contested cases, the attorney will litigate the needs (or lack thereof) for guardianship. This litigation may include calling witnesses with medical, mental health, or social work knowledge. It can also include employing experts to render opinions to the Court.

Elder Abuse

Seniors and at-risk adults have long been exploited and targeted.  The victims are usually physically and/or mentally vulnerable while having desirable assets (cash, homes, investments, etc.).  These dreadful situations of abuse are widespread and a growing problem.

Neglect and Physical Abuse 

Crimes

Financial Exploitation/Misuse of Assets

Civil Remedies – Protection Orders

Civil Remedies – Fiduciary

Civil Remedies – Lawsuits

Colorado Department of Human Services

Learn more here.

Undue Influence

Undue influence occurs when the actions of a person deprive the victim of free will, causing the victim to perform some act they would not have otherwise performed. Most commonly, undue influence claims are brought to invalidate a will or cancel a property conveyance.

When evaluating an undue influence claim, the court will first look at the relationship between the testator/grantor (the person making the will or conveying the property) and the beneficiary (recipient of property). The court will especially look to see if there is a confidential or fiduciary relationship between the parties, such as guardians, powers of attorney, doctors, attorneys, and accountants. When a confidential/fiduciary relationship exists, Courts consider the outside person to have great influence over the testator/grantor. Where a confidential relationship exists between the beneficiary and the testator/grantor, the court requires the confidant/fiduciary to show they did not abuse their special trust and power. If the relationship is abused to influence the testator/grantor, the will may be invalidated, or the property conveyance may be cancelled.

If there is no confidential or fiduciary relationship, undue influence can still be found. The Court will determine if there was any unlawful or fraudulent influence that controlled the will of the grantor/testator. The Court will look to see if the influence was purposeful and so dominant that it overcame the will of the grantor/testator so they are deprived of free will. Most commonly, the fraudulent influence is a result of fear or coercion.

Proving undue influence can be difficult. It is not unlawful to transfer, gift, or will property out of love and affection (even if the gift shows preference over a family member). The law tries to balance the right to gift one’s property to another with the danger of undue influence. This balance is why having an experienced trial lawyer is crucial.

Litigating an undue influence case is complex; Burnham Law can give you the upper hand. Since it is unlikely there will be a non-party eyewitness to the underlying transaction, you need an attorney who can effectively gather evidence from a wide range of sources. From there, your attorney must know how to organize and prioritize the evidence gathered. Lastly, you need an attorney who knows how to present the evidence to the judge or jury. This is where Burnham Law excels: we investigate, organize, and present. Our attorneys are seasoned trial lawyers who can give you the advantage in an undue influence case.

Common Law Marriage

Whether or not a person was married at the time of their death will profoundly affect their estate distribution. In Colorado, the deceased may have been married in one of two ways; (1) a traditional marriage or (2) a common law marriage.

If the deceased person is determined to be married and their spouse remains alive, the spouse may be entitled to some or all of the deceased’s estate. Under Colorado law, if a person dies without a will, their surviving spouse is entitled to the majority, if not all, of the estate. Even if a person passes away with a will, there is typically some residual property to which the surviving spouse is entitled. Additionally, surviving spouses have the right to make certain demands from the estate, including an exclusion for unclaimed property and a surviving support share.

After a person dies, there may be a dispute as to whether they were common law married at the time of death. This would require the disputed spouse to petition the Court to determine the decedent was common law married, allowing the spouse to inherit under Colorado law.

When are two People Common Law Married?

A traditional marriage is easy to determine and is evidenced by a Colorado marriage license. Many times, there was also a ceremony or event that represented the commitment to marriage by the spouses.

A common law marriage is much more difficult to determine and can involve a trial to prove. Despite common misconception, there is no magic formula to when and if a common law marriage is established.

For two people to be common law married, Colorado law requires that:

1. There was mutual consent or agreement of the two parties to be married; AND
2. There was conduct showing the mutual agreement.

This means that for a Colorado common law marriage to have existed, the parties must have intended to enter a marital relationship by sharing a life together committed to mutual support.

When courts determine if a common law marriage existed, there is no single element, fact, or formula that creates the common law marriage. Colorado courts have commonly looked for evidence (or lack thereof) of a common law marriage.

 

Intestate Succession

If a Colorado resident dies without a will, their assets will be passed pursuant to Colorado laws called intestate succession. Colorado intestate laws decide how an estate is distributed without an estate plan or will. These intestate laws do not take into consideration the wishes and desires of the deceased.

To evaluate how the estate will be distributed, the law looks to see if the deceased had any surviving spouse, children, parent(s), siblings, or other relatives (called descendants) at the time of death. In Colorado, descendants are individuals of lineal relationships.  Once it is decided who (and their relation) has survived the deceased, the intestate laws then dictate who gets a portion of the estate.  The intestate laws provide for a multitude of different scenarios and can be complicated.

It is important to remember that some assets are not affected by Colorado intestate laws because they are co-owned or have a named beneficiary.

Some common examples of this:
– Joint bank accounts
– Insurance with a named beneficiary
– Retirement plans with a named beneficiary
– Real property held jointly with right of survivorship.

To avoid the State of Colorado making all the decisions on your estate, Burnham Law can create a comprehensive estate plan and have your assets distributed exactly as you desire.

Elective Share for Spouses

In Colorado, spouses have the option to receive an “elective share” of their deceased spouse’s estate. The option to receive the elective share can only be taken away by a martial agreement (sometimes called a prenuptial/postnuptial agreement).  Therefore, without a marital agreement, Colorado surviving spouses have three options:

  • Receive what was declared in the will (if there was a will);
  • If there was no will, receive what Colorado intestate laws grant; OR
  • Decide to receive their elective share.

Historically, the concept of elective share for spouses was created to ensure widows always had legal access to some portion of an estate. The thought behind this concept was that the public would not be financially responsible for widows.

Colorado’s elective share law applies when the deceased spouse passes away while living in Colorado.  If the deceased spouse was living out of state, the elective share law of Colorado does not apply.

If the surviving spouse chooses the elective share over what the will provides (or what intestate law provides), they must take action to receive the elective share. Without acting, the law assumes they have decided not to receive the elective share. To receive their elective share, the surviving spouse must petition the court and give notice to the personal representative of the estate. Additionally, the petition and notice must be given within nine months from when the spouse passed or six months from when the probate case began.

Wills

Wills

What is a Will?  A legal document that states to whom you wish to leave your belongings, and in the case of minor children, may state who should be named guardian.  If you were to die without a Will (that is “intestate”), your estate would be distributed under specific instructions by Colorado law.  There is no guarantee that Colorado laws of intestate distribution align with your desires.  However, you can override the Colorado laws by having a Will.  In addition to other instructions, your Will can include:

  • Naming who receives what property.
  • The selection of the personal representative of your estate.
  • Address the payment of any taxes and debts.
  • Address burial and funeral expenses.
  • Name a guardian for your minor child(ren).

When you pass, your loved ones will be going through an emotional time, and there will be added stress in having to deal with the legalities of your estate.  Having a well-drafted Will can be your last gift to your grieving loved ones.  The Will can provide:

  • Reduced risk of legal challenges to the estate.
  • Reduced time spent going through probate.
  • An expedited process so that your heirs can more quickly access your property.
  • Reduced stress on your loved ones by allocating payment of funeral expenses.
  • A clear path for the payment of taxes

If you already have a Will, life situations change, and laws are amended (e.g. tax laws).  Colorado law allows you to update, change, and amend the contents of your Will as often as needed.  You should review your Will and estate plan upon any major life change, or at least every four years.

In addition to having a current Will, you should consider having an up-to-date Medical Power of Attorney, including a Medical Directive (also known as a Living Will), a Statutory Power of Attorney, a Written Designation of Guardian, and instructions for disposition and memorial.

Whether you desire an entire estate plan or a simple Will, our attorneys at Burnham Law can help you accomplish your goals.

Contested Wills

Contested Wills

A Will is a legal document that gives instructions for distributing assets upon death. Only “interested parties” are allowed to contest (or fight) the validity of a Will. In Colorado, “interested parties” are defined as someone who would have inherited from the deceased had there been no Will or a named beneficiary in the current or previous Will. A contested Will describes when an interested party files a petition with the court asking that all or a portion of the Will be considered invalid.  Colorado law allows for Wills to be contested for limited reasons, with the following being the most common:

Undue Influence

A Will may be deemed invalid if the person who made the Will was under undue influence.  Undue influence occurs when a person manipulates the person who made the Will to such a degree that they lose free Will.  Common forms of manipulation are coercion, duress, and the misuse of power.  The misuse of power or trust is difficult to prove.  Classic examples are when a person who has a confidential or fiduciary relationship with the testator improperly influences the contents of the Will. Confidential or fiduciary relationships arise in a variety of ways but the most common is when a person is the Will maker’s power of attorney.

Failure of Formality or Improper Execution

Colorado law requires that Wills be created with certain formalities (with exceptions), such as:

  • The Will maker be at least 18 years old;
  • The Will maker be of sound mind;
  • The Will be in writing;
  • The Will be signed by the testator or signed by an appointed person of the testator;
  • The Will be signed and witnessed by two impartial parties; and/or the Will be notarized.

Whether you are creating a Will or contesting one, it’s beneficial to consult an experienced attorney to ensure each formality is upheld, or in some cases, that the appropriate exception is made.

Mental Incapacity

Colorado law requires the Testator (Will maker) be of sound mind when the Will is created and signed. Whether or not the Testator was of sound mind is a determination made by the court after looking at several factors. If the court finds that the Testator had a general understanding of the factors, the court should determine they were of sound mind.

Fraud

A Will may be considered invalid if its creation was due to fraud.

Estates

Estates

You have a choice, if you die or become incapacitated you can have complete control over your assets and care – or – you can let the State of Colorado have control over your assets and care. The State of Colorado has a plan for you, whether you agree with it, like it, or it causes undue expenses. But you can bypass the State’s plan and have your own individualized plan (called your estate plan) where you control your assets, control your financial/physical care, align guardians for your children, and avoid waste (taxes, court costs, legal fees).  Burnham Law wants to help you keep control.

In the unfortunate event of death or incapacitation, estate planning is about having a legal plan in place to account for your assets and care.

A solid estate plan will accomplish these goals (amongst others):

  • Name the people or organizations that will receive the things you own after you die.
  • Transfer the things you own with the least amount of taxes, court costs, legal fees, and without disqualifying family members with special needs from other benefits.
  • Provide for loved ones with special protections from irresponsible waste, creditors, and/or divorce.
  • If you become incapacitated prior to death, your estate plan may include instructions for both your care and financial affairs.
  • Safeguard and control your child(ren)’s inheritance.
  • Name guardian(s) for your child(ren)’s care.

Estate planning at Burnham Law provides more than just a solid plan, it provides peace of mind. We want you and your loved ones to have the peace of mind that in an unfortunate situation, your care and assets are managed. As we design your estate plan, we have your loved ones in mind so that the transition is smooth, without conflict, and without unnecessary waste.

Whether you are just starting your estate plan, updating, or need to review; let our experienced team at Burnham Law give you peace of mind.

Minor Settlements

Minor Settlements

In Colorado, whenever there is a settlement of a claim (such as estate inheritance, personal injury, wrongful death) and the person receiving the settlement is either a minor or a person with a disability, the law requires that the settlement be approved by the courts. This process is sometimes called “compromise of a minor’s claim.”
Colorado Probate laws govern the approval process for minor settlements and are designed to protect the interests of the minor. A compromise of a minor’s claim generally involves the following steps:

1. STEP 1: A settlement petition must be filed. The petition must include specific details of the proposed settlement.

2. STEP 2: After proper notice, an evidentiary hearing is held. The purpose of this hearing is for the court to hear evidence to assure the best interests of the minor are protected from any undue influence (even from other family members).

3. STEP 3: The court issues its final order. The final order may provide the guidance and amount of the approved settlement. This can include the attorney fees and costs, amounts to be paid to medical providers, and net proceeds to the minor. Further, the order may detail what form of settlement will be provided to the minor (structured, fiduciary restricted account, appointment of a conservator, trust, etc.).

4. STEP 4: If necessary, a conservator is appointed. In some circumstances, Colorado law requires the appointment of a conservator. The conservator is tasked with administering the proceeds on behalf of and in the best interests of the minor. Once appointed, the conservator is required to file annual reports with the court to ensure the continuing duty of acting in the best interests of the minor.

Whether you are seeking for a minor’s settlement to be approved or objecting to a proposed settlement, Burnham Law can help. Our probate attorneys are not just excellent at drafting estate plans; they are trial attorneys who are comfortable and effective inside the courtroom.

Guardianships

Guardianships

In general, a Colorado guardianship is an arrangement in which an individual is placed in charge of the person of another individual (called a “ward”). Colorado allows for the appointment of guardians for minors or incapacitated persons. Different than a conservator, a guardian oversees “the person” of the ward, while a conservator oversees the finances of the ward.

Duties

To be in charge of “the person” of a ward means to have the same duties and responsibilities as a parent regarding the ward’s support, care, education, health, and welfare. The guardian is required to always act in the ward’s best interests. The duties of the guardian can be expanded or restricted depending on the needs of the ward and the determination of the court.

In determining the duties of the guardian for an incapacitated person, the court evaluates the needs of the ward and then issues an order for what is necessary and no more. This requires the guardianship order to be specific as to the powers and roles of the guardian.

To assist the court in determining if and under what terms a guardianship should be issued, the court will appoint a “court visitor.” This is an individual assigned by the court to conduct a preliminary investigation of the allegations and make recommendations to the court.

Appointment

Colorado allows the guardian of a minor to either be appointed by the parent or by the court. While the guardian of an incapacitated person must be appointed by the court.

A guardian for an incapacitated ward may be appointed by the court if the court finds that the ward is unable to effectively receive or evaluate information or make or communicate decisions. This inability has to be severe. Effectively, the Court must find that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with technological assistance.

The role of an effective attorney in guardianship cases comes in many different forms. In uncontested guardianship cases, an experienced attorney will provide evidence to the court to support the appointment.

In contested cases, the attorney will litigate the needs (or lack thereof) for guardianship. This litigation may include calling witnesses with medical, mental health, or social work knowledge. It can also include employing experts to render opinions to the Court.

Elder Abuse

Elder Abuse

Seniors and at-risk adults have long been exploited and targeted.  The victims are usually physically and/or mentally vulnerable while having desirable assets (cash, homes, investments, etc.).  These dreadful situations of abuse are widespread and a growing problem.

Neglect and Physical Abuse 

Crimes

Financial Exploitation/Misuse of Assets

Civil Remedies – Protection Orders

Civil Remedies – Fiduciary

Civil Remedies – Lawsuits

Colorado Department of Human Services

Learn more here.

Undue Influence

Undue Influence

Undue influence occurs when the actions of a person deprive the victim of free will, causing the victim to perform some act they would not have otherwise performed. Most commonly, undue influence claims are brought to invalidate a will or cancel a property conveyance.

When evaluating an undue influence claim, the court will first look at the relationship between the testator/grantor (the person making the will or conveying the property) and the beneficiary (recipient of property). The court will especially look to see if there is a confidential or fiduciary relationship between the parties, such as guardians, powers of attorney, doctors, attorneys, and accountants. When a confidential/fiduciary relationship exists, Courts consider the outside person to have great influence over the testator/grantor. Where a confidential relationship exists between the beneficiary and the testator/grantor, the court requires the confidant/fiduciary to show they did not abuse their special trust and power. If the relationship is abused to influence the testator/grantor, the will may be invalidated, or the property conveyance may be cancelled.

If there is no confidential or fiduciary relationship, undue influence can still be found. The Court will determine if there was any unlawful or fraudulent influence that controlled the will of the grantor/testator. The Court will look to see if the influence was purposeful and so dominant that it overcame the will of the grantor/testator so they are deprived of free will. Most commonly, the fraudulent influence is a result of fear or coercion.

Proving undue influence can be difficult. It is not unlawful to transfer, gift, or will property out of love and affection (even if the gift shows preference over a family member). The law tries to balance the right to gift one’s property to another with the danger of undue influence. This balance is why having an experienced trial lawyer is crucial.

Litigating an undue influence case is complex; Burnham Law can give you the upper hand. Since it is unlikely there will be a non-party eyewitness to the underlying transaction, you need an attorney who can effectively gather evidence from a wide range of sources. From there, your attorney must know how to organize and prioritize the evidence gathered. Lastly, you need an attorney who knows how to present the evidence to the judge or jury. This is where Burnham Law excels: we investigate, organize, and present. Our attorneys are seasoned trial lawyers who can give you the advantage in an undue influence case.

Common Law Marriage

Common Law Marriage

Whether or not a person was married at the time of their death will profoundly affect their estate distribution. In Colorado, the deceased may have been married in one of two ways; (1) a traditional marriage or (2) a common law marriage.

If the deceased person is determined to be married and their spouse remains alive, the spouse may be entitled to some or all of the deceased’s estate. Under Colorado law, if a person dies without a will, their surviving spouse is entitled to the majority, if not all, of the estate. Even if a person passes away with a will, there is typically some residual property to which the surviving spouse is entitled. Additionally, surviving spouses have the right to make certain demands from the estate, including an exclusion for unclaimed property and a surviving support share.

After a person dies, there may be a dispute as to whether they were common law married at the time of death. This would require the disputed spouse to petition the Court to determine the decedent was common law married, allowing the spouse to inherit under Colorado law.

When are two People Common Law Married?

A traditional marriage is easy to determine and is evidenced by a Colorado marriage license. Many times, there was also a ceremony or event that represented the commitment to marriage by the spouses.

A common law marriage is much more difficult to determine and can involve a trial to prove. Despite common misconception, there is no magic formula to when and if a common law marriage is established.

For two people to be common law married, Colorado law requires that:

1. There was mutual consent or agreement of the two parties to be married; AND
2. There was conduct showing the mutual agreement.

This means that for a Colorado common law marriage to have existed, the parties must have intended to enter a marital relationship by sharing a life together committed to mutual support.

When courts determine if a common law marriage existed, there is no single element, fact, or formula that creates the common law marriage. Colorado courts have commonly looked for evidence (or lack thereof) of a common law marriage.

 

Intestate Succession

Intestate Succession

If a Colorado resident dies without a will, their assets will be passed pursuant to Colorado laws called intestate succession. Colorado intestate laws decide how an estate is distributed without an estate plan or will. These intestate laws do not take into consideration the wishes and desires of the deceased.

To evaluate how the estate will be distributed, the law looks to see if the deceased had any surviving spouse, children, parent(s), siblings, or other relatives (called descendants) at the time of death. In Colorado, descendants are individuals of lineal relationships.  Once it is decided who (and their relation) has survived the deceased, the intestate laws then dictate who gets a portion of the estate.  The intestate laws provide for a multitude of different scenarios and can be complicated.

It is important to remember that some assets are not affected by Colorado intestate laws because they are co-owned or have a named beneficiary.

Some common examples of this:
– Joint bank accounts
– Insurance with a named beneficiary
– Retirement plans with a named beneficiary
– Real property held jointly with right of survivorship.

To avoid the State of Colorado making all the decisions on your estate, Burnham Law can create a comprehensive estate plan and have your assets distributed exactly as you desire.

Elective Share for Spouses

Elective Share for Spouses

In Colorado, spouses have the option to receive an “elective share” of their deceased spouse’s estate. The option to receive the elective share can only be taken away by a martial agreement (sometimes called a prenuptial/postnuptial agreement).  Therefore, without a marital agreement, Colorado surviving spouses have three options:

  • Receive what was declared in the will (if there was a will);
  • If there was no will, receive what Colorado intestate laws grant; OR
  • Decide to receive their elective share.

Historically, the concept of elective share for spouses was created to ensure widows always had legal access to some portion of an estate. The thought behind this concept was that the public would not be financially responsible for widows.

Colorado’s elective share law applies when the deceased spouse passes away while living in Colorado.  If the deceased spouse was living out of state, the elective share law of Colorado does not apply.

If the surviving spouse chooses the elective share over what the will provides (or what intestate law provides), they must take action to receive the elective share. Without acting, the law assumes they have decided not to receive the elective share. To receive their elective share, the surviving spouse must petition the court and give notice to the personal representative of the estate. Additionally, the petition and notice must be given within nine months from when the spouse passed or six months from when the probate case began.

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Probate helps ensure that all financial affairs that involve the deceased are settled. This includes the payment of outstanding debts that were left behind, taxes, and other liabilities. It’s a very detailed, involved, and complex process to make sure that the estate goes into the right hands and is properly managed and distributed. Because of its complexity and sensitivity, it is easy for a probate case to becoming confusing and overwhelming. A knowledgeable attorney can help eliminate mistakes and swiftly and effectively overcome the process.

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