July 17, 2019

Colorado Gives: Volunteers Needed for Sturm College of Law’s Tribal Wills Project

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

Each year, students from the Sturm College of Law at the University of Denver participate in the Tribal Wills Project (TWP). In January, March and May, TWP participants travel to a tribal reservation in Colorado, Utah, New Mexico, Arizona or Montana for a week to draft wills, medical powers of attorney, living wills, and burial instructions for tribal members on a pro bono basis. This work is extremely important for the following reasons.

Under the American Indian Probate Reform Act (AIPRA), if a tribal member dies without a will and his or her interests in trust land total less than specified amount, such interests automatically pass to the tribal member’s oldest living descendant to the exclusion of his or her remaining descendants. If the tribal member is not survived by any descendants, such interests pass back to the tribe. This is often in contravention of the tribal member’s intent. In some instances, tribal members are unaware of these default provisions under AIPRA; in other instances, tribal members may be aware of the default provision but are without the means or resources to have a will prepared to avoid the foregoing results. TWP gives tribal members a voice so that desired family members are not excluded from inheriting interests in trust land.

Additionally, TWP provides a unique opportunity for law students to gain hands-on experience with real clients. Initially, a student is paired with a client to conduct an interview. Thereafter, the student prepares initial drafts of the desired documents, which are then reviewed by a Colorado supervising attorney. The student and attorney work through the revision process together, which provides an essential learning opportunity for the student. Once the documents appear to be in order, the documents are further reviewed by an attorney who is licensed in the particular state where the reservation is location. Once the documents receive final approval, the student participates in the execution process.

TWP was initially developed in February 2013 by John Roach, who is a Fiduciary Trust Officer for the Southern Ute Agency of the Office of the Special Trustee for American Indians; former Colorado Supreme Court Justice Gregory J. Hobbs, Jr.; and University of Denver Professor Lucy Marsh, among others. The first trip occurred in March 2013 when the students and supervising attorneys travelled to the Southern Ute and Ute Mountain Ute Reservations in southern Colorado. Since then, TWP has grown exponentially. Each year, students apply for limited positions on the TWP team; many must be turned away based on the limited availability of funds and supervising attorneys.

In January 2017, twenty students and four supervising attorneys will travel to two reservations outside of Phoenix, Arizona. Similar groups will travel to New Mexico in March and Montana in May. It costs approximately $15,000 to fund each trip, which is funded primarily by donations.

TWP is actively seeking volunteer supervising attorneys to assist with future trips. If you are unable to serve as a supervising attorney for any reason, you can still help by making a tax-deductible donation to TWP.

For more information, please contact Lucy Marsh at (303) 871-6285 or lmarsh@law.du.edu.

Colorado Court of Appeals: Monies Held in Joint Accounts Not Part of Probate Estate

The Colorado Court of Appeals issued its opinion in In re Estate of Sandstead on Thursday, April 7, 2016.

Auriel and Willard Sandstead attempted to avoid probate by titling their real estate and bank accounts jointly in their names and two of their three daughters’ names. The couple executed wills in 1991 and again in 2000. After Willard’s death, Auriel presented only the 1991 will for probate and neglected to mention the 2000 will.

Auriel held proceeds from the sale of a family farm in a joint bank account with the two daughters, Vicki Sandstead (Sandstead) and Shauna Sandstead Corona (Corona). After an altercation with a Wells Fargo employee, Sandstead transferred $200,000 out of the joint account and into an account at Citizens Bank in Massachusetts that she held jointly with her mother but not with Corona. Sandstead used those funds for her mother’s benefit during her lifetime and also to conduct repairs on some of the properties held jointly.

After Auriel died, Sandstead and Corona executed small estate affidavits as to their parents’ personal property, since most of the assets had been removed from probate by joint titling with their daughters. Sandstead noticed some items missing from the estate, and opened a probate case where she was named as PR. Corona petitioned to remove Sandstead as PR, and a successor was agreed upon by the sisters. Corona moved for surcharge, attorney fees, and other relief against Sandstead as to her actions as PR, specifically alleging Sandstead breached her fiduciary duties to Corona because of the $200,000 transfer prior to their mother’s death. The district court surcharged Sandstead for the $200,000 transfer and two other transfers occurring before the probate estate was opened.

At some point, the sisters became aware of the 2000 will. Corona challenged the will as having been revoked by their mother. Sandstead and the two grandsons included as heirs in the 2000 will argued that the in terrorem clause in the 2000 will barred Corona from recovering under the will. The district court granted Sandstead’s motion for enforcement of the in terrorem clause in the 2000 will against Corona. The district court noted that if the parents were unaware of the 2000 will as Corona claimed, it was hard to imagine how they could have revoked it. Both sisters appealed.

On appeal, the Colorado Court of Appeals reversed the district court’s surcharge. The court held that Sandstead had a legal right to transfer the moneys due to being a signatory on the joint bank account. The assets in the Citizens Bank account were never part of the probate estate and therefore could not have been subject to surcharge. The court found that Sandstead had never intended for the monies to be included in the probate estate, and had vehemently denied their inclusion when the issue was raised in court. The court of appeals reversed the district court’s surcharge against Sandstead. The court upheld the district court’s enforcement of the in terrorem clause in the 2000 will against Corona, finding that she could not have reasonably believed that her mother had revoked the 2000 will since there was no evidence Willard and Auriel had executed subsequent wills or destroyed the 2000 will, the only two ways enumerated in the statute to revoke a will.

The district court’s order was reversed in part, affirmed in part, and remanded with instructions.

Colorado Court of Appeals: Power of Attorney Document Did Not Authorize Agent to Liquidate Principal’s Assets

The Colorado Court of Appeals issued its opinion in People v. Stell on November 7, 2013.

Power of Attorney—Fiduciary Duty—Without Authorization—Theft by Deception.

The People appealed the dismissal of counts one, two, and four, as well as part of count three, of the indictment against defendant Geoffrey Hunt Stell. The Court of Appeals reversed the order and remanded the case with directions.

The victim executed a power of attorney (POA) naming Stell, who is the victim’s son, as his agent. The POA gave Stell broad general powers over the victim’s property. According to the indictment, Stell had liquidated all of the victim’s property for his own personal use. Stell filed a motion to dismiss counts one through four of the indictment, asserting that he had the legal authority to spend, transfer, and liquidate the assets in question pursuant to the POA. The trial court granted the motion.

On appeal, the People contended that the district court erred in concluding, as a matter of law, that the POA authorized Stell to liquidate all of the victim’s assets and to use them for his own benefit. Although the POA provided broad general powers, several provisions of the POA suggest the victim’s intent that Stell would act on the victim’s behalf, as opposed to in his own interest. Therefore, proof of the “without authorization” element of the theft charges at issue should have been given to the jury to decide.

The People further contended that regardless of whether Stell acted without authorization, the district court erred in dismissing count four of the indictment because that count separately alleged theft by deception, and the evidence supports such a charge. Even if Stell was authorized to transfer the victim’s assets to a trust, he still could have committed theft by deception if he fraudulently induced the victim to sign the trust agreement that allowed Stell to facilitate a theft. Therefore, the evidence could potentially have supported such a charge, regardless of any authorization under the POA. Accordingly, the district court erred in dismissing count four.

Summary and full case available here.

Ted Atlass: Master of Tax Issues in Trust and Estate Law

Estate planning and tax law are inextricably intertwined, and no one knows this better than Ted Atlass. He has been practicing trust and estate law and tax law since 1975, when he was admitted to the bar in Colorado. Through the years, he has become known as a national expert on the intersection of tax law and estate planning.

Tax law is complicated, and there are many exceptions to general rules. For example, although there are general rules that apply to transactions between unrelated parties, there are several exceptions to these rules for related parties. Related parties can be family members of the whole or half blood, individuals and corporations in which individuals own more than 50 percent of stock, two corporations that are members of the same group, fiduciary and grantor of the same trust, two fiduciaries of trusts established by the same grantor, and more. There is no one better than Ted Atlass to explain some of these complex transactions between such related parties to which exceptions to the IRS’s general rules apply.

Another area where tax law and estate planning intersect is immediate pre-mortem estate planning. Appreciated assets that will receive a stepped up basis may remain in the estate, while passive activity loss assets may be disposed of. Income could be accelerated during the decedent’s lifetime so that the taxes that will be paid will be deductible for estate tax purposes. Business interests could be restructured to benefit the estate.

These and many other topics related to tax law in estate planning will be discussed at a half-day CLE program on October 10, “Practical Income Tax Issues in Everyday Estate Planning and Administration,” presented by Ted Atlass. Click the links below to register, or call (303) 860-0608.

CLE Program: Ted Atlass on Practical Income Tax Issues in Everyday Estate Planning and Administration

This CLE presentation will take place on October 10, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

After You’ve Found Your Assisting Attorney, Face the Music and Make a Plan

JulieDavisAmySymons

By Amy Symons and Julie Davis

I am going to blame it on the natural highlights that are making an appearance at my temples, but for the first time in more than a decade of practice a client asked me, “So what happens if something happens to you?”

I had an answer for him because my co-author and I had previously discussed it over lunch, but it was my wake-up call that we needed to take our conversation to the next level. Fortunately, Barb Cashman made that easy with her CLE presentation “Death of a Solo, Death of a Practice.”  One of us attended her presentation and the other, in exchange for a peek at her materials, offered up a blog on what we did to put our own succession plan into place.

The first thing was to get permission from our clients to allow another attorney to access the client file if we were unable to complete the matter. Each of us added provisions in our engagement letter requesting that the client waive confidentiality if we were unable to complete the matter. The provision or casualty clause also included details about steps that would be taken after death, incapacity, or our inability to complete the mater. Although we noticed that some of the engagement letter provision examples that we reviewed didn’t provide contact information of the assisting attorney, we figured it was a comfort to our clients and provided the name, telephone number, and email address of the other attorney.

We met for coffee to discuss the ins and outs of the other’s practice.  Both of us are cloud-based – one uses Google Docs and the other Clio and Dropbox – making our offices accessible with a password. We discussed how to access that password and how to determine which client matters are open and which are closed. We also talked about general operations, such as the fact that one of us is paper-based while a client’s matter is open, and executed documents are scanned into the system before they are mailed to the client.

Clio is a cloud-based practice management system that allows the user to log client matters and report the status of each, including when a matter is completed.  It also includes COLTAF and Operating Account ledgers, making it easy to determine whose money is in the trust account.  Because the COLTAF funds are still the client’s money, not knowing to whom they belong is another ethical violation waiting to rear its head.

Being able to slip into the others’ shoes in a password-based world is easy enough, but we needed to have documentation in place for financial institutions. A trip to the bank ensured that our Limited Power of Attorney was effective and that the safe deposit box could be accessed. One of us banks at a local, small bank and was asked by a teller if the COLTAF should be POD.  It was worth a conversation with her as to why that should never be the case!

We each are drafting policy manuals that will offer a compass to the other.  These include:

  • a copy of the Limited Power of Attorney;
  • a copy of our will and contact information for our Personal Representative;
  • passwords to our computers, document retention systems, and online bank accounts;
  • instructions to access our calendaring system;
  • bank location and contact information, account numbers and where to access COLTAF balances;
  • safe deposit box or office-safe access information;
  • insurance information, including malpractice carrier and when we renew, life insurance policy numbers, providers, and amounts;
  • disability insurance numbers and providers;
  • health insurance providers, amount, and how paid;
  • an explanation of how clients pay us and/or where to find that information in each client’s engagement letter;
  • financial information such as annual and monthly budgets and operating expenses;
  • contact information for accountants and bookkeepers or information about Quick Books and Intuit or other accounting systems;  contact information for employees;
  • employees’ salaries and employment arrangement or contract;
  • general instructions about client files such as where to find engagement letters (including the casualty clause or relevant succession plan provision) and billing information;
  • information about closed client files and how to access scanned documents after the paper file has been destroyed;
  • the procedure the succession attorney is to follow when contacting clients and how to handle particular matters;
  • and the procedure the succession attorney is to follow regarding death notices to the Bar and others.

There is nothing that illustrates the analogy of the shoemaker whose children have holes in their shoes as much as two estate planning attorneys who admit to each other that they have not drafted their own estate plans.  The Limited Power of Attorney was drafted after we had coffee and we are committed to completing wills in the near future.

It is an interesting play in psychology to see yourself in your client’s shoes.  One of us knows that she needs to call her insurance agent and increase her life insurance and acquire disability insurance but there is a hesitancy there – the same hesitancy that we see clients have about planning for their own demise. It isn’t so much that the fear of death is bothersome, it is the rationalization that there is plenty of time to do this.  Most lawyers make a living based on planning for the unknown happening at any time.  This blog post has prompted inquires of other solos and it is shocking how many of us do not plan for our own practice as we would for a client’s.

Follow this series and see previous articles about solo attorney succession planning here.

Amy Symons is an estate planning and estate administration attorney who has an office in Denver and Colorado Springs.  Three years ago she started her own practice after working in larger firms.  She is the incoming treasurer for the Colorado Bar Association Solo-Small Firm Section Council.

Julie Davis is an Elder Law and Estate Planning Attorney who started her own firm in 2009. Julie is an accredited attorney with the Veterans Administration and is a member of NAELA.

Amy and Julie are contributors to the SOLOinCOLO blog, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

The Impact of Colorado’s Civil Unions Act on Estate Planning

EmilyBloedelBy Emily L. Bloedel

In the past twenty years, Colorado has gone from being dubbed the “hate state” for its discrimination against same-sex individuals (See Romer v. Evans, 517 U.S. 620 (1996)) to allowing civil unions. Beginning at midnight on May 1, 2013, same-sex couples will be able to enter into civil unions. A number of legal benefits, protections, and responsibilities that are granted to spouses under the law apply to parties to a civil union.

These changes include: the ability to inherit real or personal property from a party in a civil union under the probate code; priority for appointment as a conservator, guardian, or personal representative; survivor benefits; the ability to file a complaint about the care or treatment of a party in a civil union in a nursing home; rights related to declarations concerning the administration, withholding, or withdrawing of medical treatment, proxy decision-makers and surrogate decision-makers, CPR directives, or directives concerning medical orders for scope of treatment forms with respect to a party to a civil union; rights concerning the disposition of last remains of a party to a civil union; and the right to make decisions regarding anatomical gifts (C.R.S. 14-15-101 et seq).

The impact that the new Act will have on estate planning is not yet clear. The previous norm in Colorado for same-sex couples, designated beneficiary agreements, may no longer be necessary for an individual in a same-sex relationship to dispose of his or her property as desired and allow for his or her partner to make important medical decisions. The Act makes it clear that, for the most part, a “party to a civil union has the benefits, protections, and responsibilities under law as are granted to spouses” (C.R.S. 14-15-106 (1)).

The legislature has made it clear that for estate planning purposes, if a partner in a valid civil union dies intestate, his or her partner can now inherit via the intestacy statute. Although the full extent of the benefits to same-sex couples remains to be seen, the best way for any partner to a civil union to ensure the desired disposition of his or her property, or that the proper person handles decision-making when the partner is no longer able, remains, like any marriage, in informing loved ones of his or her wishes and creating valid estate planning documents.

Emily Bloedel joined Felser, P.C. in October 2012 as an associate attorney and can be reached on LinkedIn. She received her bachelor’s degree in Japanese Language and Literature from the University of Colorado and graduated from the University of Denver Sturm College of Law in 2012. She is licensed in Colorado. While in law school, Emily was a traveling oralist on the Willem C. Vis International Commercial Arbitration moot team and served on the board of editors of the Denver Journal of International Law and Policy. She also mediated small claims and FED cases through the Mediation-Arbitration Clinic. She enjoys playing the koto (a traditional Japanese instrument), reading, and traveling. She is a contributor to the DBA Young Lawyers blog, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

HB 13-1183: Imposing a Cap on the Amount of Tax Exemption that May Be Claimed for Donations of Conservation Easements

On January 31, 2013, Rep. Claire Levy and Sen. Kent Lambert introduced HB 13-1183 – Concerning the Imposition of a Cap of 45 Million Dollars on the Total Amount of State Income Tax Credits that May Be Claimed by All Taxpayers Each Year for the Donation of a Conservation Easement in GrossThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Taxpayers are allowed to claim a state income tax credit for donating a conservation easement. Current law caps the total amount of credits that may be claimed by all taxpayers each year for a three-year period. The amount of the cap is $22 million for 2011 and 2012 and $34 million for 2013. Credits that exceed the amount allowed for each year are placed on a wait list for a future year.

The bill extends the cap for 2014 and later years and increases the annual amount of the cap for these years to $45 million. Clarifying amendments on the process of administering the cap are made. On March 15, the House approved the bill on 2nd Reading; the bill is scheduled for 3rd and final Reading in the House on Monday, March 18.

Since this summary, the bill passed the 3rd Reading in the House.

Environmental Concerns in Estate Planning and Real Estate Conveyancing

When constructing an estate plan, property conveyance is an important feature. However, devising property can sometimes create unanticipated problems when the property is subject to environmental laws such as the Clean Water Act,  Endangered Species Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The Clean Water Act (CWA) regulates the discharge of pollutants into natural waters and regulates quality standards for surface waters. The CWA originated in 1948, but was significantly amended into the current CWA in 1972. There are numerous provisions of the CWA that may affect a landowner’s conveyance, but the most likely scenario encountered is the necessity of obtaining a Section 404 permit, which can authorize discharge of dredge or fill material into waters.

The Endangered Species Act (ESA) intends to protect and recover endangered or imperiled species in order to maintain the natural ecosystem. It has been described as the most far-reaching wildlife preservation act in the world. Although the ESA does not prevent conveyance of property, it has significant potential to inhibit development of land. If an endangered or threatened species resides on the land to be conveyed, the ESA could prohibit any changes to the natural ecosystem of that species.

CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, was created by Congress in 1980. CERCLA creates penalties for the release of hazardous substances. It also encourages individuals to clean up waste in order to recover cleanup costs from others. CERCLA’s provisions can extend to inherited property, trusts, estates, and trustees or fiduciaries, so it has broad application to estate planning.

Strategies for addressing these environmental acts will be discussed at the CLE offices on Friday, March 9, 2013, at the “Natural Resource Issues in Estate Planning” seminar. Water law topics, real estate conveyancing, conveyance of mineral interests, oil and gas planning, and hard minerals will also be discussed. To register, click the link below or call the CLE offices at (303) 860-0608.

CLE Program: Natural Resource Issues in Estate Planning

This CLE presentation will take place on Friday, March 8, 2013, at 9:00 a.m. Click here to register for the live program, and click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.

13th Annual Senior Law Day a Resounding Success

On Saturday, July 23, nearly 900 seniors, adult children, and caregivers attended the Thirteenth Annual Senior Law Day at the Merchandise Mart in Denver. Senior Law Day offers the public the opportunity to hear from experienced elder law attorneys and other professionals involved in elder care issues.  This year, there were twenty-eight different short, informative workshops to choose from that helped seniors learn how to better manage family and financial issues and prepare for retirement.

The tremendous number of resources and educational workshops available not only benefit seniors in our community, but also adult children and caregivers who are helping aging parents, relatives, and friends.

New workshops this year included “DNR Orders, Advance Directives and End of Life Issues,” “Planning for Your Pets,” “Dealing with Trusts & Trustees,” and “Nontraditional Domestic Relationships.”

Attorney Carl Glatstein, the program chair for the event, described the event as way for attorneys and other professionals to provide “relevant and important information to seniors and present it in a way that is easy for people to understand.”

In addition the informative seminars, there were nearly 50 organizations and companies in the Exhibitor area that provided information and resources relevant to seniors.

Much of the content presented at Senior Law Day also can be found in the comprehensive 2011 Senior Law Handbook, distributed to all who attend the event.  The handbook is written by Colorado attorneys and professionals who donate their time to provide this valuable resource, published by the Colorado Bar Association Continuing Legal Education (CBA-CLE).

Senior Law Day couldn’t happen without the incredible number of volunteers who not only helped during the day of the event, but also with organizing, planning, setup, and clean up. There were more than 70 volunteers from the legal community who dedicated their time to the event – thanks so much for helping to make the day so successful!

The event continues to grow each year and Boulder County and Larimer County are each holding a Senior Law Day in their communities on August 13.  Jefferson County held their event in June and other counties around the state will be holding events in the fall. Click here to view information about the upcoming Senior Law Day events around the state.

Senior Law Day is co-sponsored by the Elder Law Section and the Trust & Estate Section of the Colorado Bar Association, and CBA-CLE. A $10 contribution is suggested but not required to attend the event.

We look forward to seeing you in Denver again next year!

Click here to view more pictures from the event.

Senior Law Day Featured on 9News LawLine9

Colorado’s 9News LawLine9 had attorneys on hand to answer questions about elder law and estate planning this afternoon. Among them was Carl Glatstein, Program Chair of Senior Law Day. Glatstein spoke to viewers about Saturday’s event, which provides invaluable legal information to seniors, as well as their adult children, caregivers, relatives, and friends.

Senior Law Day is entering its thirteenth year by providing twenty-eight short and informative workshops to choose from that will help attendees learn how to better manage their family and financial issues and prepare for retirement. Attendees will also receive a free copy of the comprehensive 2011 Senior Law Handbook.

New workshops this year include:

  • DNR Orders
  • Advance Directives and End of Life Issues
  • Planning for Your Pets
  • Dealing with Trusts & Trustees
  • Nontraditional Domestic Relationships

Click here for a full list of workshops.

Senior Law Day will be held in Denver on Saturday, July 23, 2011. A $10 contribution is suggested, but not required to attend the event. Registration is requested. To register, call (303) 860-0608 or dial toll-free (888) 860-2531. Registration is also available online at www.seniorlawday.org.

Not in Denver? Don’t worry! Boulder County and Larimer County are each holding a Senior Law Day in their communities on August 13.

Click here to watch the 9News interview with Carl Glatstein and to read the full story.

Elder Law Basics: Grow Your Practice with this Expanding Area of Law

On January 1, 2011, the first member of the largest generation in America, the baby boomers, turned 65, marking a significant shift in the country’s demographics. In other words, if you’re an elder law lawyer, you’ll have the opportunity to help more clients than ever before.

If you’ve just embarked on an elder law practice, or if you’re thinking about expanding your expertise to include this growing practice area, there is no better place to start than with this program, Elder Law Basics, which taps Colorado’s top elder law practitioners to help you lay the foundation for a successful practice.

The agenda for the program includes such topics as:

  • Elder Law Overview
  • Powers of Attorney
  • Guardianships/Conservatorships
  • Launching Your Elder Law Practice
  • Ethical Issues
  • Medicare and Medicaid
  • Estate Planning and Administration

Don’t miss this opportunity to learn the fundamentals of Elder Law and gain valuable insight into the practice area from leading Elder Law attorneys!

CLE Program: Elder Law Basics

This CLE presentation will take place on Thursday, July 21, at 8:30 am. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in three formats: video on-demand, mp3 download, and audio CD recordings. The course materials will also be available.

Revised Probate Form Issued by State Judicial

The Colorado State Judicial Branch has issued a revised probate form: JDF 940 – “Information of Appointment.” Practitioners should begin using the new form immediately.

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

Probate

  • JDF 940 – “Information of Appointment” (revised 7/11)