Distribution Of The Probate Estate If There Is No Will

Generally, if a person dies without a Will - i.e., dies "intestate" - the laws of the state in which she resided at death will direct how the property passing through her probate estate will be distributed. (See article entitled GETTING PROPERTY TO THE RIGHT PEOPLE, AT THE RIGHT TIME, for a discussion about what property passes through a person's probate estate). Such laws are referred to as the "laws of intestacy."

Typically, the distribution of property required under the laws of intestacy will depend upon by whom the decedent is survived. In Colorado, those rules impose upon a person who dies intestate one of five methods of distribution. Effectively, the laws of intestacy impose upon a decedent a Will that is the result of what the State Legislature believes the decedent's wishes would be. Which state-imposed Will applies depends upon which of the following situations most closely describes the decedent's surviving family.

STATE-IMPOSED WILL NUMBER 1 applies if:

  1. You are not survived by either a descendant (child, grandchild, great-grandchild, etc.) or a parent; or
  2. All of your descendants who survive you are also the descendants of your surviving spouse and your surviving spouse has no descendants living at the time of your death who are not also your descendants.

If this describes your family situation, your state-imposed Will would read approximately as follows:

Last Will and Testament

Being of sound mind and memory, I ______________, do hereby publish this as my last Will and Testament:

FIRST:

I direct that my entire probate estate shall be distributed to my spouse. No amount of my probate estate shall pass in a way that would qualify for the unified credit available to me for federal estate and gift tax purposes.

SECOND:

I appoint my spouse as guardian of any unmarried minor child of mine, but as a safeguard, my spouse shall be required to report to the Probate Court each year and render an accounting of how, why and where he/she spent the money necessary for the proper care of such children.

THIRD:

As a further safeguard, I direct that my spouse shall provide to the Probate Court a Performance Bond to guarantee that he/she exercises proper judgment in the handling, investing and spending of the money I leave my children.

FOURTH:

As a final safeguard, my children shall have the right to demand and receive a complete accounting from my spouse of all of the financial actions he/she made with their money as soon as they reach legal age.

FIFTH:

When my children reach legal age, they shall have an absolute right to withdraw and spend all of their share of my estate, without input from anyone.

SIXTH:

Should my spouse remarry, his/her second spouse shall be entitled to one-half of the probate estate of my spouse. The second spouse shall not be bound to spend any part of his/her share of my spouse's probate estate for the support or benefit of my children.

SEVENTH:

Should my spouse predecease me, I do not wish to exercise my right to nominate who shall be the guardian of my children. Rather than nominating a guardian of my preference, I direct that my relatives, the relatives of my spouse, and any other person having any interest in my children shall select a guardian by mutual consent. In the event they fail to agree on a guardian, I direct the Probate Court make such selection.

STATE-IMPOSED WILL NUMBER 2 applies if you are not survived by any descendants, but a parent of yours survives you. This dispositive scheme would apply regardless of whether you are survived by a spouse. If this describes your family situation, your state-imposed Will would read approximately as follows:

Last Will and Testament

Being of sound mind and memory, I ______________, do hereby publish this as my last Will and Testament:

FIRST:

I direct that my spouse shall receive the first two hundred thousand dollars ($200,000) of my probate estate plus three-fourths (3/4) of any excess. That portion of my probate estate that is not distributed to my spouse, if any, shall be distributed to my parents who survive me.

SECOND:

Should my spouse remarry, his/her second spouse shall be entitled to up to one-half of the probate estate of my spouse. The second spouse shall not be bound to spend any part of his/her share of my spouse's probate estate for the support or benefit of my family.

STATE-IMPOSED WILL NUMBER 3 applies if all of your surviving descendants are also the descendants of your surviving spouse, and your surviving spouse has one or more descendant who survives you but who is not a descendant of yours. If this describes your family situation, your state-imposed Will would read approximately as follows:

Last Will and Testament

Being of sound mind and memory, I ______________, do hereby publish this as my last Will and Testament:

FIRST:

I direct that my spouse shall receive the first one hundred fifty thousand dollars ($150,000) of my probate estate plus one-half (=) of any excess. That portion of my probate estate that is not distributed to my spouse, if any, shall be distributed to my descendants who survive me.

SECOND:

I appoint my spouse as guardian of any unmarried minor child of mine, but as a safeguard, my spouse shall be required to report to the Probate Court each year and render an accounting of how, why and where he/she spent the money necessary for the proper care of such children.

THIRD:

As a further safeguard, I direct that my spouse shall provide to the Probate Court a Performance Bond to guarantee that he/she exercises proper judgment in the handling, investing and spending of the money I leave my children.

FOURTH:

As a final safeguard, my children shall have the right to demand and receive a complete accounting from my spouse of all of the financial actions he/she made with their money as soon as they reach legal age.

FIFTH:

When my children reach legal age, they shall have an absolute right to withdraw and spend all of their share of my estate, without input from anyone.

SIXTH:

Should my spouse remarry, his/her second spouse shall be entitled to one-half of the probate estate of my spouse. The second spouse shall not be bound to spend any part of his/her share of my spouse's probate estate for the support or benefit of my children.

SEVENTH:

Should my spouse predecease me, I do not wish to exercise my right to nominate who shall be the guardian of my children. Rather than nominating a guardian of my preference, I direct that my relatives, the relatives of my spouse, and any other person having any interest in my children shall select a guardian by mutual consent. In the event they fail to agree on a guardian, I direct the Probate Court make such selection.

STATE-IMPOSED WILL NUMBER 4 applies if one or more of your surviving descendants are not descendants of your surviving spouse, and all of such surviving descendants are adults (i.e., over age 21). If this describes your family situation, your state-imposed Will would read approximately as follows:

Last Will and Testament

Being of sound mind and memory, I ______________, do hereby publish this as my last Will and Testament:

FIRST:

I direct that my spouse shall receive the first one hundred thousand dollars ($100,000) of my probate estate plus one-half (=) of any excess. That portion of my probate estate that is not distributed to my spouse, if any, shall be distributed to my descendants who survive me.

SECOND:

Should my spouse remarry, his/her second spouse shall be entitled to one-half of the probate estate of my spouse. The second spouse shall not be bound to spend any part of his/her share of my spouse's probate estate for the support or benefit of my children.

STATE-IMPOSED WILL NUMBER 5 applies if one or more of the descendants of your surviving spouse are not also your descendants, and one or more of such descendants are minors. If this describes your family situation, your state-imposed Will would read approximately as follows:

Last Will and Testament

Being of sound mind and memory, I [NAME], do hereby publish this as my last Will and Testament:

FIRST:

I direct that my probate estate shall be distributed one-half (=) to my spouse and one-half (=) to my descendants who survive me, by representation.

SECOND:

I appoint my spouse as guardian of any unmarried minor child of ours, and my ex-spouse as guardian of any unmarried minor child of mine who is not the child of my spouse. As a safeguard, whoever shall serve as guardian of any unmarried child of mine shall be required to report to the Probate Court each year and render an accounting of how, why and where he/she spent the money necessary for the proper care of such children.

THIRD:

As a further safeguard, I direct that my spouse shall provide to the Probate Court a Performance Bond to guarantee that he/she exercises proper judgment in the handling, investing and spending of the money I leave my children.

FOURTH:

As a final safeguard, my children shall have the right to demand and receive a complete accounting from my spouse or my ex-spouse, which ever of them serves as conservator for such child, of all of the financial actions he/she made with their money as soon as they reach legal age.

FIFTH:

When my children reach legal age, they shall have an absolute right to withdraw and spend all of their share of my estate, without input from anyone.

SIXTH:

Should my spouse remarry, his/her second spouse shall be entitled to one-half of the probate estate of my spouse. The second spouse shall not be bound to spend any part of his/her share of my spouse's probate estate for the support or benefit of my children.

SEVENTH:

Should my spouse or my ex-spouse predecease me, I do not wish to exercise my right to nominate who shall be the guardian of any unmarried minor child of mine. Rather than nominating a guardian of my preference, I direct that my relatives, the relatives of my spouse, the relatives of my ex-spouse and any other person having any interest in my children shall select a guardian by mutual consent. In the event they fail to agree on a guardian, I direct the Probate Court make such selection.

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