May 24, 2013

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2013 Cost of Living Adjustment Figures for Colorado Probate Code Available

January 25, 2013 by Leave a Comment

The Colorado Department of Revenue released its 2013 Cost of Living Adjustment (COLA) figures for certain amounts in the Colorado Probate Code, as required by C.R.S. § 15-10-112. The COLA figures affect decedents’ estates, elective shares, exempt property under C.R.S. § 15-11-403, lump sum distributions of family allowances, and collection of personal property by affidavit. Trust and estate practitioners should be aware of the new figures.

2013 Cost of Living Adjustments from the Colorado Department of Revenue

Filed Under: Updates Tagged With: , , ,

SB 13-011: Authorizing Civil Unions in Colorado

January 25, 2013 by 2 Comments

On Wednesday, January 9, 2013, Sen. Pat Steadman introduced SB 13-011 – Concerning Authorization of Civil Unions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the “Colorado Civil Union Act” (Act) to authorize any two unmarried adults, regardless of gender, to enter into a civil union. Parties wanting to enter into a civil union apply to a county clerk and recorder for a civil union license. Certain persons may certify a civil union. After the civil union is certified, the officiant files the civil union certificate with the county clerk and recorder. A priest, minister, rabbi, or other official of a religious institution or denomination or an Indian nation or tribe is not required to certify a civil union in violation of his or her right to free exercise of religion. The criteria for a valid civil union are set forth in the bill.The CBA LPC voted to support this legislation on Jan. 18, 2013. Assigned to the Judiciary Committee.

 

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Colorado Court of Appeals: Failure by Trustee to Diversify Investments Not Breach of Fiduciary Duty Where Trust Document Gave Trustee Discretion for Investments

November 13, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Van Gundy v. Van Gundy on Thursday, November 8, 2012.

Beneficiary—Trustee—Breach of Contract—Irrevocable Trust—Breach of Fiduciary Duty—Prudent Investor Rule—Discretion.

Defendant Quinton Van Gundy (trustee) appealed a portion of the judgment entered after a bench trial in favor of plaintiff Eldon Van Gundy (beneficiary) on beneficiary’s breach of contract claim, as well as the court’s award of attorney fees to beneficiary. The judgment was affirmed in part and reversed in part, and the case was remanded.

In 2004, beneficiary created an irrevocable trust to be managed by trustee, his son, funding it with real estate and shares of stock in a family business. Beneficiary later filed a complaint against trustee, asserting claims for breach of fiduciary duty, breach of contract, breach of duty to provide a complete accounting, and to quiet title. Following a bench trial, the district court found that trustee had breached his contractual duty to beneficiary by purchasing stocks on margin, which, “under the circumstances,” violated the prudent investor rule. In addition, the court held that trustee was required to diversify trust investments, but had failed sufficiently to do so. The court awarded beneficiary $399,819.24 in damages, plus attorney fees, on his breach of contract claim.

On appeal, trustee contended that the district court erred in applying the prudent investor rule and consequently ruling that he had breached the trust agreement by purchasing stock on margin and failing to sufficiently diversify. If a trustee is empowered to exercise his or her discretion under the terms of the trust in a manner that might otherwise be inconsistent with the prudent investor rule, the trustee’s performance under that power does not give rise to a claim for breach of duty. Here, the trust agreement expressly granted trustee the discretion and power to invest in stocks, “whether or not . . . of the character permissible for investments by fiduciaries under any applicable law, and without regard to the effect [the investment] may have upon the diversity of the investments.” Therefore, the district court erred by deeming trustee’s purchases on margin and failure to diversify investment as breaches of his duty under the trust agreement. The court’s award of attorney fees was reversed and the case was remanded for the court to determine the proper amount of fees to which beneficiary was entitled.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , ,

Probate Decedent’s Estate Inventory and Small Estate Affidavit Forms Amended

October 15, 2012 by Leave a Comment

On Thursday, October 11, 2012, the Colorado State Judicial Branch released Rule Change 2012(14), regarding updates to two probate forms. JDF 941, “Decedent’s Estate Inventory,” and JDF 999, “Collection of Personal Property by Affidavit,” were amended.

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new form from State Judicial’s individual forms pages, or below.

Probate

  • JDF 941 - ”Decedent’s Estate Inventory” (Revised 10/12)
  • JDF 999 – “Collection of Personal Property by Affidavit” (Revised 10/12)

These new forms were adopted October 10, 2012, effective immediately.

All of State Judicial’s forms may be found here.

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Colorado Court of Appeals: Breach of Fiduciary Duties Arising from Trust Agreement Against Trustees Not Barred by Governmental Immunity; Barred Against Colleges

August 21, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Casey v. Colorado Higher Education Insurance Benefits Alliance Trust on August 16, 2012.

Trust—CRCP 12(b)—Subject Matter Jurisdiction—Colorado Governmental Immunity Act—Tort—Contract—Breach of Fiduciary Duty—Economic Loss Rule—Breach of Covenant of Good Faith and Fair Dealing—Mistake—Inverse Condemnation.
In this class action suit, defendants, the Colorado Higher Education Insurance Benefits Alliance (CHEIBA) Trust, the eight other colleges that participated in the original trust and that continue to participate in the new CHEIBA Trust, and the trustees of the CHEIBA Trust, appealed the court’s order denying their CRCP 12(b) motion to dismiss the claims of plaintiffs, a class of employees who participated in the trusts at issue in this case. The order was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Beginning in 1992, employees of nine Colorado colleges, including Mesa State College, contributed to a trust designed to provide long-term disability benefits for them if they were to become disabled. The trust agreement required the employees and Mesa State to make these contributions. The original trust was succeeded in 2003 by the CHEIBA Trust. Mesa State withdrew from the CHEIBA Trust in 2005 and created a new disability trust. CHEIBA refused Mesa State’s request to release to its new disability trust approximately $1 million from the reserve fund that Mesa State and its employees had contributed to the original trust and to the CHEIBA Trust. This interlocutory appeal was limited to determine only issues of sovereign immunity.

On appeal, defendants contended that the probate court lacked subject matter jurisdiction because all of the employees’ claims are barred by the Colorado Governmental Immunity Act (CGIA). The CGIA bars any action against a public entity or its employees that lies in tort or could lie in tort regardless of the form of relief chosen by the claimant. The CGIA does not apply to contract actions. The trust agreements are the source of the trustees’ fiduciary duty described in the employees’ breach of contract claim. As a result, the economic loss rule bars the employees from any tort recovery from the trustees. Therefore, the employees’ breach of fiduciary duty and breach of the covenant of good faith and fair dealing claims arising from the trust agreement against the trustees is not barred by the CGIA. However, the allegation that the colleges breached any fiduciary duties they owed the employees did lie, or could have lied, in tort as the trust agreement did not place any fiduciary duties on the colleges. Therefore, this portion of the breach of contract claim against the colleges is barred by the CGIA. On the other hand, the claim that the colleges violated the implied covenant of good faith and fair dealing is not barred because it does not, and cannot, lie in tort.

Defendants also contended that the CGIA bars the employees’ inverse condemnation claim. Because an inverse condemnation claim could not lie in tort, it is not barred by the CGIA.

Defendants further asserted that language in the trust agreements bars the employees from obtaining the relief they seek. Specifically, both trust agreements explicitly provide that contributions are irrevocable unless a majority of the trustees votes to dissolve the trusts. Plaintiffs claim that their contributions to the CHEIBA trust are null and void because of either unilateral or mutual mistake. The doctrine of mistake allows the mistaken party to avoid the contract and lies or could lie in tort. Therefore, this part of the declaratory judgment claim is barred by the CGIA.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , ,

Denver Probate Court No Longer Accepting Faxes as of September 2012

August 10, 2012 by Leave a Comment

As of September 1, 2012, faxes will no longer be accepted in the Denver Probate Court without permission of the Judge.

Pro se litigants without an attorney may file in paper format with the court. Attorneys in probate cases should use LexisNexis File and Serve to submit filings to the Court. Attorneys in mental health cases should submit filings via email at DenverProbateMH@judicial.state.co.us.

Further details about this change are contained in Presiding Judge Order 12-02: Order Regarding Fax Filings in the Denver Probate Court.

Filed Under: Updates Tagged With: , , , , , ,

Senior Law Day: The Village Movement and Your Community

July 25, 2012 by Leave a Comment

Denver Senior Law Day will be held Saturday, July 28 at the Denver Merchandise Mart. This annual educational seminar presents programs specifically designed for seniors in the Colorado community. This seminar will provide attendees with important and useful information on many issues facing our growing senior citizen population. If you are a senior, an adult child with an aging parent, or a caregiver, this is one day you cannot afford to miss. Every attendee will receive a free copy of the 2012 Senior Law Handbook. Mark your calendar today for this excellent and informative event. Click here for more information.

Neighbors Helping Neighbors

Ready for some refreshing news on the challenges of an aging America?  Look no further than the surging Village Movement. Across the United States, Villages are sprouting up like well-watered tufts of grass, defying an otherwise arid landscape. Within the past two years, this innovative, community-style approach to keeping older adults in their own homes has grown by 80%. According to Village to Village Network, a national advocacy group, 90 Villages are now open and operating, with another 125 in development.

A Village may grow to serve 100 to 400 members or more, typically age 55 and up. Members live in their own homes, which may be located anywhere within the defined membership service area. Most Villages are local nonprofit organizations (IRS 501(c)(3)) with a board of directors who live in the community. The Village Movement was pioneered by Boston’s Beacon Hill Village, founded in 2001.

Village membership offers convenient, one-call access to volunteer services or vendor referrals. Does the member need a ride to the doctor or to the beauty shop? A day out to go shopping with friends? How about a volunteer to fix a leaky faucet, or to climb a ladder and clean out roof gutters?  When a member needs a reliable contractor – for example, a painter, plumber, or lawn service – the Village can suggest vendors from a vetted list.

Social connection is a powerful advantage to Village membership.  Informal get-togethers and educational activities stimulate and strengthen friendships. “Neighbors helping neighbors” is much more than a tagline; nationally, about 60% of Village members serve as volunteers too.  Certainly, this high level of participation is influenced by the can-do will-do spirit of younger members, who are still in their 50s, 60s, or 70s.  However, it also reflects the passion of members in their 80s and 90s to stay active – teaching, mentoring, leading, or whatever they may choose to do.  Community is the heart and soul of a Village.

In brief, Villages can help older adults to deal successfully with three of biggest obstacles to living independently in their own homes.

  1. The Need for Transportation — Driving may eventually become a challenge, so it’s harder to get to the doctor, pharmacy, grocery store, etc.
  2. The Risk of Falling — Injuries due to falls make it necessary for some to leave their homes for assisted living or skilled nursing facilities.
  3. Social Isolation and Loneliness — People need to be around other people, to live in community and maintain a sense of purpose.

A recent study highlights the effectiveness of a Village in helping older adults to live safely at home.  According to One Call Club in Knoxville, Tennessee, 80% of Village members will avoid moving to an assisted living residence or nursing home for at least one year. With nursing home costs running around $200 per day, it doesn’t take a math whiz to see that $600 per year for household membership in a Village is a bargain. (For an individual Village membership, the national average is $460 per year.)

The success of Villages may be attributed to several factors: reduced risk of injury or accident, healthier eating, a brighter emotional outlook, and a renewed sense of purpose. For all these reasons and more, Villages are a promising, cost-effective option for older adults who want to stay in their own homes, in a community of neighbors helping neighbors.

Arnie Snyder is owner of Elder Life Advisors and co-founder of the first two Colorado Villages: Washington Park Cares (now, A Little Help), Denver, and Columbine Community Village, Littleton. He is a member of the National Advisory Committee for Village to Village Network, LLC.
Filed Under: Community Tagged With: , , , ,

Registration Now Open for Denver Senior Law Day and 2012 Senior Law Handbook Available Online

June 6, 2012 by Leave a Comment

The 2012 Senior Law Handbook is now online! Designed to provide aging adults and their caregivers and families with useful information on subjects relevant to their legal concerns, it is only possible with the generous donation of time and intellect by our volunteer authors. CBA-CLE would like to thank all of the authors for their contributions and willingness to share their expertise with Colorado’s older adults. The 2012 Handbook includes 33 chapters on a variety  of topics ranging from Social Security Benefits to What Seniors Need to Know About Facebook.

You can review and download individual chapters by clicking here.

And, you’ll receive a free copy of the handbook when you attend Senior Law Day in Denver on July 28, 2012. Registration is now open for this annual educational seminar, which presents programs specifically designed for seniors in the Colorado community. This seminar will provide attendees with important and useful information on many issues facing our growing senior citizen population.

If you are a senior, an adult child with an aging parent, or a caregiver, this is one day you cannot afford to miss. Mark your calendar today for this excellent and informative event and click here to register now!

Filed Under: Community Tagged With: , , , , , ,

State Judicial Revises Probate, Adoption, and Small Claims Forms and Instructions

May 4, 2012 by 1 Comment

The Colorado State Judicial Branch has issued several revised forms and instructions over the past month. Updates were made in the areas of adoption, probate, and small claims, as well as filing fees. Practitioners should begin using the new forms immediately.

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new forms from State Judicial’s individual forms pages, or below.

Adoption

  • JDF 498 – “Instructions for Kinship Adoption” (revised 4/12)

Filing Fees

  • Guide – “Guide for Determination of Indigency” (revised 4/12)

Probate

  • JDF 906 – “Instructions for Probate With a Will” (revised 4/12)
  • JDF 907 – “Instructions for Probate Without a Will” (revised 4/12)
  • JDF 805 – “Acceptance of Office – Guardianships and Conservatorships” (revised 4/12)

Small Claims

  • JDF 252a – “Motion and Order for Interrogatories – Short Form” (revised 4/12)
  • JDF 252b – “Motion and Order for Interrogatories – Long Form” (revised 4/12)
Filed Under: Resources Tagged With: , , , , , , ,

It’s Elder Law Month: Do You Have a Plan for Your Own Disability or Unexpected Events?

May 2, 2012 by Leave a Comment

May 1 is law day, we all know that, but did you also know that it’s Elder Law Day? Well, technically, May is Elder Law Month. What does that mean for attorneys? Well, for many of us that means taking a look in the mirror! You might have noticed that the average age of attorneys in Colorado is getting a bit older. From what I could dig up, somewhere around 36% of CBA members (April 2011 CBA demographics, supplied by Heather Clark via Reba Nance) are over the age of 55. Based on another statistic (let’s call it anecdotal evidence), I’m pretty sure most of them aren’t reading this post . . . !

For solo and small firm attorneys in particular, the “age thing” has important consequences for our law practices. But the bigger issues for solo and small firm attorneys have not so much to do with age as with planning. I won’t beat around the bush here – I’m talking about disability, destruction, and death. Yep, it’s why my policy is always to eat dessert first! But seriously, as the number of solo attorneys grows and many of us (yours truly included) are eligible for AARP membership, are we making the necessary plans to protect our loved ones, our law practices, and our clients? The ABA’s Law Practice Today has a good article about this, even if it is a couple years old.

If you are like the majority of my trusts & estates colleagues (I informally “interviewed” about a dozen lawyers a couple years ago), you don’t have anything in place. A couple years back I participated in a CLE program called “Planning Ahead” and we prepared some forms as part of the CLE. I think the occasion of Elder Law month is an excellent time to revisit some of the themes in that CLE. Where do we start? At the beginning!

Start with two basic questions. Ask yourself:

  • What would happen if ________?
  • What will happen when _________?

Do you have an idea of the answers? Many of us don’t! So what is the next step? Forms of course! These forms are designed to get the process started and are meant only as guidelines to help you get some strategy or plan in place with documentation to support it.

How do you get started?

How about the 15-Minute Fix? Okay, it will take longer than that – but at least the forms could be easy. Here are a few suggestions to get you started:

  1. Checklist for An Assisting Lawyer to Protect the Interests of  an Affected Attorney’s Clients (read office/file management policies and procedures)
  2. Checklist for Closing a Law Office
  3. Trust and Bank Account Considerations
  4. Business Access Considerations (agreement between attorneys to manage/close a practice)
  5. Limited Power of Attorney for Assisting Lawyer (you can have an escrow holder for this one)
  6. Casualty Clause for Engagement Letter (to tell your clients you’ve made arrangements)
  7. Will Provisions Relating to Law Practice (mine is three pages long)

If this exercise doesn’t get you thinking about your practice and how it factors into your life and your legacy (read: mindful law practice planning), I don’t know what will.

Need some more thoughts about what to consider in a plan? Another helpful article with a good list is here. If you need to be scared into considering this “for real,” read this cautionary tale from the April 2012 California Bar Journal.

For Colorado information, Colorado Attorney Regulation has a lengthy pdf from 2007 here, which contains several helpful checklists. Please, don’t give inventory counsel more work to do!

You want to read more about this in book form (with a CD with forms)? Go to the CBA lending library and check out “Being Prepared: A Lawyer’s Guide for Dealing with Disability or Unexpected Events” (2008:ABA).

Start planning – even a small plan – right now.

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She also edits the SOLOinCOLO blog and contributes content for the site. She can be contacted at barb@DenverElderLaw.org.
Filed Under: Practice Management Tagged With: , , , , ,

2012 Cost of Living Adjustments to the Colorado Probate Code

April 19, 2012 by Leave a Comment

The Colorado Department of Revenue recently issued Cost of Living Adjustments (COLA) to certain figures in the Colorado Probate Code (as required by C.R.S. § 15-10-112). Trust and Estate practitioners should be aware of the new figures. See the form below for more information.

2012 Cost of Living Adjustments (COLA) from Colo. Dept. of Revenue

Filed Under: Updates Tagged With: ,

Colorado State Judicial Revises Many JDF Instructions and Forms in March

April 11, 2012 by Leave a Comment

As part of its continuing efforts to keep JDF forms up-to-date, the Colorado State Judicial Branch revised several instructions and a few forms in March. Practitioners should begin using the new forms and instructions immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Download the new forms from State Judicial’s individual forms pages or below.

Adoption

  • JDF 495 – “Instructions for Second Parent Adoption” (revised 3/12)
  • JDF 497 – “Instructions for Validation of Foreign Adoption” (revised 3/12)
  • JDF 498 – “Instructions for Kinship Adoption” (revised 3/12)
  • JDF 499 – “Instructions for Custodial Adoption” (revised 3/12)
  • JDF 500 – “Instructions for Stepparent Adoption” (revised 3/12)
  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 3/12)

Appeals

  • JDF 126 – “Instructions to File a County Court Civil or Small Claims Appeal” (revised 3/12)

County Civil / District Civil

  • JDF 86  – “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 3/12)
  • JDF 96 – “Instructions for Filing an Answer and/or Counterclaim in County Court” (Money Demand) (revised 3/12)
  • JDF 100 – “Instructions for Forcible Entry and Detainer (FED) / Evictions” (revised 3/12)
  • JDF 110 – “Instructions for County Court Civil Cases (Money Demand)” (revised 3/12)
  • JDF 112 – “Instructions for Reviving a Judgment” (revised 3/12)
  • JDF 115 – “Instructions for Replevin” (revised 3/12)
  • JDF 122 – “Instructions for Issuance of Contempt Citation” (revised 3/12)
  • JDF 137 – “Instructions for Filing a Foreign Judgment” (revised 3/12)
  • JDF 385  – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (revised 3/12)
  • JDF 432 – “Instructions for Filing a Change of Name (Adult)” (revised 3/12)
  • JDF 605 – “Instructions for Appealing Property Tax Assessments with the District Court” (revised 3/12)
  • JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 3/12)
  • JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice” (revised 3/12)

Criminal

  • JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 416 – “Instructions to File a Petition to Seal Arrest and Criminal Records” (revised 3/12)

Domestic

  • JDF 1215 – “Evaluation of a Foreign Decree, Foreign Custody-Determination, and Foreign Support Order” (revised 3/12)
  • JDF 1220 – “Instructions to Register a Foreign Decree” (revised 3/12)
  • JDF 1800 – “Instructions/Options to Enforce Orders” (revised 3/12)
  • JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support and/or Maintenance Orders” (revised 3/12)

Juvenile

  • JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
  • JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
  • JDF 476 – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Juvenile Adjudication or Disposition” (revised 3/12)

Paternity

  • JDF 1500  – “Instructions to Establish Paternity” (revised 3/12)
  • JDF 1502 – “Summons in Paternity” (revised 3/12)
  • JDF 1513 – “Instructions to Disclaim Paternity” (revised 3/12)
  • JDF 1515 – “Summons to Disclaim Paternity” (revised 3/12)

Probate

  • JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State” (revised 3/12)
  • JDF 786 – “Instructions to File Petition to Transfer Adult Guardianship and/or Conservatorship From Colorado to Receiving State” (revised 3/12)
  • JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 3/12)
  • JDF 823 – “Instructions for Appointment of a Guardian – Minor” (revised 3/12)
  • JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 3/12)
  • JDF 860 – “Instructions for Appointment of a Conservator – Minor” (revised 3/12)
  • JDF 875 – “Instructions for Appointment of a Conservator – Adult” (revised 3/12)
  • JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 3/12)
  • JDF 906 – “Instructions for Probate With a Will” (revised 3/12)
  • JDF 907 – “Instructions for Probate Without a Will” (revised 3/12)
  • JDF 957 – “Instructions for Closing an Estate Formally” (revised 3/12)
  • JDF 958 – “Instructions for Closing a Small Estate Informally” (revised 3/12)
  • JDF 959 – “Instructions for Closing an Estate Informally” (revised 3/12)
  • JDF 989 – “Instructions for Re-Opening an Estate” (revised 3/12)

Protection Orders

  • JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 3/12)
  • JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 3/12)

Small Claims

  • JDF 248 – “Instructions for Filing a Small Claims Case” (revised 3/12)
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