Should I use a Will or Trust in my Estate Plan?
Before addressing the differences in these plans, it is important to point out what they both provide. With either a trust-based plan or a will-based plan, each client will receive a will, a living will (also known as an advanced directive), financial and medical powers of attorney, a HIPAA release, a directive for disposition of last remains, and a personal property memorandum.
With a trust-based plan, each client would receive their “Will” in the form of a Pour-Over Will. This is a Will that acts as a catchall to “pour in” anything that is not owned by the Trust into ownership of the Trust at the client’s passing. Further, with each trust-based plan, a revocable living trust is created.
A revocable living trust is created with the client becoming the original Trustee, meaning they can change the terms of the trust at any time while they are alive. Another benefit to a trust-based plan is that anything within the ownership of the Trust at the client’s passing will be distributed outside of probate court.
This is one of the key differences between a Will and a Trust. With a Will, the client’s house, cars, and other assets will likely have to go through the probate court to be distributed. Meaning, your nominated personal representative will have to open up the case in probate, allow 4 to 12 months for any creditors to make a claim against the estate, take an inventory and accounting of the estate, pay valid creditors of the estate, and finally distribute the remaining assets according to the Will.
With a Trust, many of those steps are skipped and the successor trustee still must take an inventory and distribute according to the Trust document but they are not subject to the creditor period or other probate rules. They also do not incur the court filing fees.
Which plan is best for you? Here are a few questions to think about:
Do you have minor children?
Do you own real estate?
Do you own real estate outside of Colorado?
Do you have assets that you want to distribute along with specific guidelines for how that asset will be used?
If you answered yes to any of these questions a trust-based plan may be the better fit for you.
Minor children cannot inherit through a Will, meaning a Trust would have to be set up for them if they were still minors at your passing. A less complicated way to address that issue is to create a Trust instead, and your successor trustee would then hold their share in the trust until they are of age to receive their distribution.
For real estate, if you only own one house in Colorado, you could still be okay with a will-based plan, but that house will have to go through probate. If you want to take the hassle and financial burden of probate out of your family’s hands, a Trust can help with that.
Similarly, if you own real estate outside of Colorado, a trust is a good idea. For example: if you own a house in Colorado, but also have a home in Kansas, at your passing each of those homes would have to go through probate in their respective states, but if they are under the ownership of your Trust, they will avoid probate and be distributed according to the Trust outright.
In most other circumstances a will-based plan will do exactly what you need it to do, and probate in Colorado is not a strenuous process if there is a valid Will. Whichever plan is better for you, an estate plan is still worth creating. We would be happy to answer any questions you may have and will help guide you on what plan we think works best for you. Give our office a call today to set up an initial consultation at only $200. If you end up signing on with us to create your plan that consultation fee will be attributed to the plan of your choosing.
Roe v. Wade, Dobbs v. Jackson, and What’s Next for Non-Heteronormative Families
There’s a lot of online talk about the Supreme Court overturning Roe v. Wade. As a Colorado law firm focusing on family law and estates, the decision may especially affect our clients. Here’s why:
A Brief Background
As a brief refresher, recall that our government is set up at a federal level and a state level. Federally, we have three branches, including the judicial branch. The Supreme Court’s job is not to create laws, per se (that’s for the legislative branch), but, rather, to interpret laws that are already in place, to construe the US Constitution, and to apply the laws to specific situations.
Have you ever signed a contract and then, later on, something came up in the business relationship and you had to go back and figure out how the contract applied to your specific situation? The wording isn’t always perfectly clear. That’s why we use courts to interpret, construe, and apply such wording to specific scenarios.
In the case of the US Supreme Court, one of the main things they are asked (and allowed) to do is interpret citizens’ rights under the US Constitution. Sometimes, they broaden their interpretation to try to get more at the heart of the document. Other times, they interpret it more narrowly and focus on the letter of the law. Either option—and everything in between those two ends of the spectrum—creates a precedent for future decisions, because each decision can be relied on in similar situations.
At the risk of using a gross oversimplification, it can be said that Roe v. Wade focused on the spirit of the law, while Dobbs v. Jackson (the decision that just overturned Roe) focused on the letter of the law.
Will This Affect My Family?
Maybe. The focus of this article is not on the reproductive rights or rights to life of either mother or fetus (all of which are greatly affected by the decision), but the decision itself could affect other areas of family law and estate planning.
When the Supreme Court makes a decision, it creates case law. Case law is used to help guide and make other decisions that might be similar down the road. The Dobbs Court specifically said they weren’t overturning any other decisions. However, their focus on the letter of the law here could mean that they will now focus on the letter of the law in future decisions as well. This could affect previous case law that was made more on the spirit of the law, including Obergefell v. Hodges, the case where the Supreme Court determined that same-sex marriage is a fundamental right. We have already seen a related abrogation with Fulton v. Philadelphia.
I’m Non-Heternormative. What Can I Do?
Each family will need to decide for themselves what makes sense for them at this time, especially since no one can know the future. That said, here are some options we suggest our non-heternormative clients consider:
· Powers of Attorney, Will, HIPAA Release: These estate-planning documents may prove crucial if a marriage is invalidated but you want your partner to be able to help make medical and financial decisions for you, gain access to your medical facility if you are ill, help make decisions for your estate if you pass away, and inherit from you. Creating a Will is also important if you want to name your partner as the guardian of your biological children should you pass away or become incapacitated.
· Beneficiary Agreements: These estate-planning tools have been used for many years in Colorado to provide inheritance rights to non-married partners.
· Second-Parent and Stepparent Adoptions: Colorado has a process for a non-married person to adopt a child as well as for a stepparent—which can include any non-biological parent, even if there was a legal marriage to the biological parent at the time of conception—to adopt a child.
· Cohabitation Agreements: Cohabitation agreements are used for non-married partners as a way of solidifying each partner’s rights and responsibilities to a shared living situation and property. This can include outlining each person’s responsibilities to pay for things such as the mortgage or utilities, clarifying who owns which assets or how they are jointly owned, and agreeing on terms for using jointly-owned assets and each person’s income.
If you or your family are afraid of what may come, first, let us just say we are sorry for that fear and we hope the best for you.
If you would like help with any of the above options or other related legal issues, please feel free to reach out to our firm: admin@gantlawoffice.com or click on Contact Us on this page.
AppClose – What We Like about this Co-Parenting Tool
There’s a relatively new co-parenting tool available for any families—married, partnered, divorced, separated, or mixed—to help keep track of all things parenting: AppClose was developed in 2016 and has quickly gained speed as one of the most useful co-parenting tools available.
Here are some of the things we like about it:
It has a FREE version
The free version includes the ability to download/export full, unaltered message threads, financial request histories, and the like—a feature many other co-parenting apps do not offer
The messages are timestamped when sent, received, and read
It includes shared calendars
It includes secure messaging
It has a separate function for making requests, such as changing drop-off times or locations
It has a separate function for requesting expense reimbursements—no more scanning through hundreds of text messages to find the exact ones about finances
It has a ‘circle’ function for creating groups of people, so all your interrelated family members and caretakers can be involved where they are needed
Secure storage means private information is protected
It works even if only one parent is using it; messages and requests can be sent to non-user third parties
It has a scan and send function right in the app for times when you need to include documents in your messages or requests
Sound like a good fit? Download it in the Apple App Store or Google Play.
Learn more: https://appclose.com/about.html#:~:text=About%20AppClose%C2%AE,for%20co%2Dparenting%20better%20together.
Are You Ready to Plan Your Estate?
Planning your estate is something you probably don’t have any experience with, and it can be complex. An estate planning lawyer can answer your questions and take care of anything related to your estate. There are several things you can do to prepare for a consultation with an estate attorney.
Select Your Attorney
Estate law is very complex and specialized. You’re going to be paying for services, and you’ll want to be confident that you choose the right lawyer for the job. Here are some things to consider:
• Does the attorney have experience handling estates like yours?
• Are you comfortable with the office team? The chances are that you’ll be speaking to the receptionist or other staff during the planning process, so it’s good to have a comfortable rapport with them. You should also find out how long it usually takes the office to return a phone call or email.
• What is the lawyer's fee structure?
• Is a free consultation offered?
Before Your Initial Consultation
Consultation appointments allow you and the attorney to ask questions and exchange information. Estate planning can be expensive, so it’s a good idea to take time to prepare for your first appointment. Everything you do so the attorney doesn’t have to saves you money. There are several documents you should take with you:
• Most attorneys will ask you to fill out a questionnaire before your first appointment. Provide answers to all the questions for better accuracy and to save time during the consultation.
• Bring copies of financial documents, such as bank statements, stock certificates, business ownership papers, life insurance policies, and real estate deeds.
• If you already have a will, a power of attorney, or a trust, you should bring documentation to the consultation.
• You should bring any contracts, including prenuptial agreements or divorce papers.
• Prepare a list with contact information for your family members and possible estate executors or trustees.
• Make a list of questions that you have for the attorney. You may want to ask about current estate tax laws, as they can be very confusing.
• It’s a good idea to have a written set of goals for your estate planning. This can help you clarify things for yourself and provide a reference guide for your lawyer.
• Don’t forget potential incoming sums of money you may want to deal with. For example, if you’ve recently been in an accident and have a personal injury claim, you may want to include any settlement you receive as part of your estate plan, as the lawyers at Cohen & Cohen explain.
Besides exchanging information, a consultation is your opportunity to interview the attorney to see if they’re a good fit for you.
Contact an Estate Planning Lawyer
Set up a consultation appointment with an estate planning attorney. They can provide more information and answer any questions you may have about their services, fees, or the estate planning process.
Divorce and the American Rescue Plan Act of 2021: Changes to the 2021 Child Tax Credit and Their Effect on Colorado Divorce Taxes
Congress recently enacted H.R. 1319 – the American Rescue Plan Act of 2021. Among many things, the Act changes the way the Child Tax Credit is calculated (and paid) for the 2021 tax year. This can affect Colorado families facing divorce or separation as well as those who have already divorced or separated, and who have minor children. In short, the Act increased the amount of the Child Tax Credit for qualifying tax payers, and additionally allows those tax payers to take an advance on the payment for 2021 by receiving a portion of the 2021 payout in monthly installments, starting in July 2021.
What was the amount of the increase? For qualifying children under the age of 6, the credit went from $2,000 to $3,600, and for children ages 6 to 17 it went from $2,000 to $3,000.
Who qualifies? It depends on your income (as well as dependent status and filing status). The income brackets are >$75,000 for individual tax payers, >$112,000 for Head of Household taxpayers, and $150,000 for married (filing jointly) tax payers.
How long does it last? For now, the Act only applies to 2021, but that could be extended or made permanent with future legislative action.
I’m divorcing/separating or already divorced/separated; what do I need to do about the change? While we cannot give specific advice for your matter, as a general rule, if you are divorcing/separating, you may want to just keep these changes in mind when determining a fair division of tax claiming status, potentially agreeing to equally split any 2021 refunds.
If you are already divorced, it is probably a good idea to check your court orders to see who has the right to claim your child(ren) for the 2021 tax year. If it’s you, you may want to speak with your ex (or your attorney) to make sure your ex does not take the advance on the child tax credit, which will require them to opt out using the IRS website. If they have timely filed their 2020 taxes, they may get the advance payments direct deposited, even though those advances are assigned to your tax year by the courts. It will be more difficult to reverse this or get yourself paid back than it will be to prevent it. If you’re not the one claiming for 2021, you might be in contempt of court if you take the 2021 advance payments. And, of course, if you’re both claiming (different children) for 2021, then you’ll want to ensure that each of you only receives the advance payments for the child(ren) you’re claiming. We suggest you speak with a family-law attorney regarding any questions for your specific matter.
Five Ways to Save Money on Legal Fees
When you pay an attorney, you are paying for their knowledge, skill, and experience. How does an attorney charge for these intangible services? Almost invariably by charging for their time. So when it comes to working with your attorney, efficiency is your friend. Here are five simple things you can do to save your attorney time, and keep more cash in your pocket:
Consolidate:
There is a lot going on in your life, and much of it is emotionally difficult. Sometimes, you’ll want answers immediately. You can send an email every day, and most likely get a response on all of them. But if you can wait and ask all your questions at once, chances are your attorney will be more efficient in answering them, which will save you money.
Use the Paralegal:
Have a question about which legal option to take? Send it to your attorney. Have a question about when your court date is and what will happen there? Send it to your paralegal. Paralegals can’t give legal advice, but they are a wealth of information when it comes to the confusing procedures and the status of your case. In most firms, their rate is also quite a bit lower than the attorney rates, so when you have a question they can answer, it’s best to try them before asking your attorney.
Thems the Facts:
Attorneys know the law; they don’t know what happened to you last Friday until you tell them. Your attorney can only apply the law to your situation if you provide them the facts of your specific situation. How do they get these facts? By talking with you and by reviewing your documents. One of the most time-consuming things for attorneys and paralegals is reviewing documents that are out of context, incomplete, unreadable, or difficult to gather. How can you help reduce the time it takes them?
In a paperless firm like Gant Law, send your documents electronically whenever you can. Most of your documents are going to start electronic anyway (like bank statements you get through your bank’s website), so there is no need to print them and drop them off only to have us scan and shred them. Just save the electronic files then email or send them through the secure client portal.
In that same vein, it’s easier for your attorney and paralegal if you send separate documents as separate files. If you have 10 documents and you scan them all into one file, the paralegal will need to split them up, and that takes time. Similarly, if you can label your documents so it’s easy to tell what’s what, then there’s less renaming your paralegal will need to do.
Let Go of the Small Things:
Nothing in your case is “small,” per se. This is your life, your family, your livelihood. But some things in your case are not worth trying to control. A good attorney will help you highlight these things—the hills you should not die on. Take a breath, and some time, to truly consider your attorney’s advice. Focus on your future, not your past. If you can let go of the things you can’t control, you will save yourself both emotional pain and money.
Choose an Efficient Team:
Is your attorney still drafting letters when an email could do? Printing letters and signing them by hand? Dictating them to their paralegals? If so, you might be in an outdated office. These things take unnecessary time, and attorneys have little incentive (though their morals should be incentive enough) to streamline these processes when they charge by the hour.
Contact Gant Law today to learn how we innovate, automate, and update in order to save our clients on costs.
FIVE FREQUENTLY-ASKED QUESTIONS ABOUT CHILD SUPPORT
Can we waive it? Answer: probably not. When it comes to kids, the court is gatekeeper. A judge has a duty, once a child support case is brought to it, to make sure the children are financially well cared for. While they will often allow parties to veer outside of the child support guidelines for good cause, they won't usually allow the parties to veer far outside those guidelines, and they can't make a child support order indefinite. Child support can always be modified.
What do I do if my ex quit their job to lower child support? Answer: impute it. Some folks figure out that child support is based on income, so they quit their job, thinking they're being savvy. The law is prepared for this scheme. This is why judges are allowed to impute income to people who are found to be voluntarily unemployed or underemployed. This means they could potentially be stuck not only paying child support at the rate they would have before quitting, but now they don't have the income to support themselves through that order. The practice of quitting a job on purpose harms not only the children but the paying parent as well.
What are the common variables that affect child support? Answer: the number of children, each party's gross monthly income, the number of overnights each party has with the children, the children's portion of health care premiums, and work- or education-related child care costs are the most common variables that affect child support. Some others that are rare but do come up from time to time are significant and ongoing out-of-pocket medical costs for the children, significant and ongoing travel expenses for the children, and children's income.
What counts as gross monthly income? Answer: income for child support purposes is defined pretty broadly. It can include salaries, wages, commissions, bonuses, dividends, severance pay, self-employment profits and payments, retirement pay, trust income, Social Security, disability, unemployment, worker's compensation, monetary gifts, major expense reimbursements, and even some insurance payouts. Overtime is also included if it is mandatory. For a full list and review of what counts and what doesn't, review Colorado Revised Statutes 14-10-115 and scroll down to section (5).
How do I find out how much my ex makes in income? Answer: in a new divorce or custody case, the parties have to exchange financial disclosures. And even after that, the parents have a right to ask each other for financial disclosures at least once per year. What all do you have a right to ask for and what all do you have a duty to hand over? There's a long list. Taxes and paystubs are a good place to start. For the full list, check out Rule 16.2 of the Colorado Rules of Civil Procedure, and scroll down to section (d).
When you’re grieving a family loss, dealing with a life-altering medical diagnosis, or working through any other significant change in your family dynamics, navigating the legal system can be overwhelming. We are here to help. Contact Greeley’s premium Probate and Family Law Attorneys at Gant Law.
5 Questions You Should Ask Your Lawyer About Pricing
When you pay for legal services, you are, generally speaking, paying for your lawyer’s time. That is the product lawyers have to offer. Your lawyer spent years and thousands of dollars learning how to think the way they do. Now they use their time to put those skills to work for you and your case.
There are a few methods by which lawyers bill, each of which is intended to reimburse them for their time:
Contingency billing is where the lawyer gets a percentage of what you win in your case. The lawyer estimates the time needed to help you with your matter, what they think you’ll win, and then the percentage of those winnings they would need to appropriately compensate them for the time they spent.
In Flat-Rate billing, the lawyer may represent you in your whole matter for a flat rate, or they may offer to complete specific tasks in your matter, each at their own flat rate. Either way, the lawyer is estimating the time it will take to complete the case or task and then charging appropriately to compensate for that time.
Finally, there is hourly billing, where the attorney charges you for their actual time spent representing you on the matter.
Each of these methods has pros and cons (as well as a slew of legal and ethical restrictions). In contingency billing, the lawyer may receive a windfall if the settlement or judgment was much higher than expected. And, of course, the opposite could be true if they lose the case. In flat-rate billing, the lawyer might be incentivized to cut corners and get things done too quickly. Hopefully, a lawyer’s reputation and care for their clients will negate this. And flat-rate billing is often a breath of fresh air for clients because they know exactly what they’ll be paying.
While flat-rate billing is increasing in use and acceptance, for family law and probate, the hourly rate is still the staple. Hourly billing can be the most accurate measure of reimbursing a lawyer’s time, since it does not require estimates or predictions, but it can also, unfortunately, incentivize inefficiency and inaccuracy. Like the flat-rate issues, we hope that lawyers will be efficient and honest, incentivized by their reputations and their desire to truly help clients.
If your matter is being billed hourly, here are some things you should ask your lawyer about it:
1. Do you use timekeeping software?
Surprisingly, many lawyers do not use actual software to track their time. They simply estimate. Set a one-minute timer, place it on silent, and then close your eyes and count what you think is one minute. Check your accuracy against the actual timer. Were you right? Almost invariably the answer will be no. Now imagine you’re doing this with many minutes or even hours. You can see why time-keeping software is necessary.
2. Do you bill each item separately?
Many lawyers, regulation committees, and bar associations have appropriately ridiculed the use of “block billing.” This is where a lawyer lists several different, unrelated tasks in one billing entry on your bill. It could look something like “Drafted Response to Motion to Modify. Emailed client regarding extracurricular programs for child. Phone call to Opposing Counsel regarding upcoming Status Conference.” When lawyers do this, it is easy to hide or inappropriately state the amount of time something actually took them. Your bills should have each item listed separately.
3. Do you bill when two people in the firm do the same thing?
Some firms use two lawyers on each matter. The idea is that some lawyers have expertise in one area and can focus there, while others will be better equipped for other areas. In addition, this can help keep client costs down, because one lawyer may have a lower rate and can do much of the legwork on a matter. In theory, this is a great system. However, there are then opportunities for billing overlaps, e.g. two lawyers both read one email and bill for it. Ask your lawyer what their plan is for this. Sometimes an overlap will be necessary. Other times it won’t. When it’s necessary, some lawyers will use blended rates (meaning the average of both lawyers’ rates). Some will simply have clear guidelines for the division of labor. Whatever the policy, the most important thing is that they have at least discussed it and have a policy in place to ensure you are not being unnecessarily double billed.
4. What’s your rounding policy?
Lawyers billing hourly will almost always round to the nearest .1 of an hour. Lawyers who are thoughtful about their client’s financial needs should have a policy in place (or an automatic system, such as through their timekeeping software) to round these hours. Do they round to the nearest .1? The nearest .05? Do they always round up? Whatever the answer, they should at least have thought enough about it to know the answer.
5. How many billable hours do you require of your attorneys per month?
One of the biggest downfalls with hourly billing is that firms with associate lawyers tend to require so many billable hours that their lawyers may feel the need to find more work than is necessary. In other words, they might make up work--and bill you for it. Some of the larger, urban firms require their lawyers to get over 175 billable hours per month, which means over 8 hours of billable time per working day. Not all of a lawyer’s time is billable, and many would say only about 50-80% of a lawyer’s time is billable. This means that these big-firm lawyers have to either be working ridiculous hours or finding ways to add more “time” to their timesheets. What does your lawyer require of themselves or their associate lawyers? Do their requirements incentivize the lawyers to round up, add more time, burn themselves out?
As we’ve seen, there are pros and cons to each type of billing. The most important thing is having the tools to be able to evaluate your bill correctly.
Should Colorado Change its Felony Murder Law?
In Colorado (and many other states), a person can be charged with murder if they are committing a certain felony and someone in their group commits murder in the process. If you go out, for instance, with a group of friends to rob a bank, and anyone of your friends kills someone at the bank, you could then be charged with murder and subject to life in prison without parole.
The statute that lays out the current rule is C.R.S. 18-3-102(1)(b) (current through 2019 legislative session). Senator Daniel Kagan (D, Colorado) has submitted a bill that would change the sentencing possibilities for this rule, essentially taking the crime from a class-one felony (potential penalty of life in prison without parole) to a class-two felony (with potential crime-of-violence sentencing).
As with all major criminal justice issues, there are pros and cons to this rule from society’s perspective. Take, for example, a situation where a gang leader jumps and indoctrinates a vulnerable, 17-year-old kid who now becomes the youngest member of the gang. Now that leader demands that the 17-year-old carry a gun to a bank robbery and pull the trigger on anyone who stands in the gang’s way. If such a shooting actually occurs, who is society more worried about: the 17-year-old who pulled the trigger or the leader who manipulated the kid and demanded the shooting? Should the 17-year-old get charged with first-degree murder while the leader is only charged with the robbery?
Now let’s change the scenario up a bit: Let’s say that a group of criminals befriends a vulnerable, 17-year-old kid and invites him to “steal some money from a bank” with them. The kid goes along with this out of peer-pressure but has absolutely no idea that anyone in the group has a gun. Unfortunately, one of the group members does have a gun and kills someone in the process of the robbery. Should the 17-year-old, who just barely met this group, and who didn’t realize they had a gun, be held fully responsible for the other person’s shooting as though he had pulled the trigger? Hopefully, this is where the district attorney’s office would come into play and plead the case down. But what if the DA doesn’t believe the 17-year-old or the 17-year-old isn’t able to explain his position clearly?
What do you think about the bill? Should it pass or not?
Do I Really Need Snow Tires In Colorado?
As of May 2019, the traction laws in Colorado were changed. The new law applies differently during different types of snowstorms and on different roads in Colorado, but the safest bet is to make sure you have either AWD or snow tires (or both) anytime you’re driving in snowy conditions. Drivers who cause accidents or who block traffic and don’t have one or both of these (or one of the alternatives permitted by the new law) risk fines of $132 to $656 in addition to previous repercussions in both criminal and civil courts.
CDOT has a great summary of the different types of storms and areas this can affect: https://www.codot.gov/travel/winter-driving/tractionlaw.
For a full look at the final bill that was signed, you can click here: https://leg.colorado.gov/sites/default/files/2019a_1207_signed.pdf.
Steps of a Criminal Case
If you’ve never been on the wrong side of the law before (or even if you have), you may be interested to learn about the process. Here is a quick overview:
Police Report: First things first – law enforcement learns about a potential violation of law. Someone might call 911, call the non-emergency line, or come into the police department to report a “cold” incident (something that happened in the past and is over now), a police officer might witness something first hand (e.g. speeding), etc. No matter the method of finding out, once law enforcement knows about a potential crime, they have to decide whether or not there is “probable cause.” That is, they have to decide if it is more likely than not that someone broke the law. They’ll often engage in some investigation first: asking questions, making phone calls, looking for physical evidence, etc. If their investigation doesn’t turn up enough solid evidence of a crime—even if they personally think there has been some misconduct—they won’t file any charges; nothing else happens. If, however, they do find enough evidence of a crime, then they file criminal charges. The suspect will either receive paperwork telling them they have been charged with a crime and that they have to come to court at a certain date and time, or the suspect will be arrested.
Bond: If the suspect is arrested, then a bond hearing will follow within a day or so where they stand in court and the judge tells them an amount of money they’ll need to pay in order to be released from jail. The suspect can try to pay the bond amount (or a portion of it to a bondsman) and get released from jail while the criminal case is pending. If the suspect cannot afford the bond (or to pay a bondsman), then they’ll remain in jail while the criminal case is pending.
Advisement: At the first court date (the bond hearing, if arrested; the date on the paperwork, if not arrested), the judge will tell the suspect what they have been charged with, what their rights are, and ask them whether they have or would like to have an attorney. Then the judge will set another court date to give the suspect time to get an attorney (if desired and not already hired) and to start negotiating for a plea bargain.
Plea Bargaining: Once the charges are filed, the local District Attorney’s office gets them. They then assign the case to one of their DA’s (also called prosecutors). The suspect, either by themselves or through an attorney, will then try to negotiate a plea bargain with the DA. This negotiation can happen via phone or email, but there will also be specific court dates set up for the suspect or attorney to meet with the DA and try to resolve face to face. Any official change in the case (bond reduction, acceptance or rejection of a plea, etc.) has to happen at one of these court dates. At each court date, if there is no resolution, another court date will be scheduled. There can be several of these court dates, and sometimes they are several weeks apart, making the plea bargaining process potentially quite lengthy.
Plea or No Plea: At some point in the plea bargaining process, the suspect will either accept a plea bargain or realize that they and the DA will not be able to reach an agreement. If the suspect accepts a plea bargain, then they’ll plead guilty and be sentenced according to the plea bargain. They must then fulfill all the requirements of their sentence (these can include jail time, classes, community services, drug treatment, etc.).
If the suspect can’t reach an agreement with the DA, then they’ll plead not guilty and set the case for a trial. Once they plead not guilty, the speedy trial right begins, and the trial must be heard within the following six months (with a few exceptions). Often, if the suspect pleads not guilty, the DA will revoke all their previous plea bargain offers.
Trial: The suspect will only go to trial if they cannot reach an agreeable plea bargain with the DA. For a trial, the suspect has several rights and will be able to, among other things, help choose the jury, subpoena and call witnesses, cross examine the DA’s witnesses, decide for themselves whether to testify or not (and the jury will be instructed that they cannot use it against the suspect if they decide not to testify), and present a theory of defense. The jury will then hear all the evidence and decide whether or not the suspect is guilty of any of the charges.
If the jury finds the suspect guilty, then the suspect will be sentenced according to the sentencing laws for the charge they are guilty of. The suspect may also be able to appeal the guilty verdict to a higher court.
If the jury finds the suspect not guilty, then the case ends, the bond (if the suspect paid one) is released, and the suspect can get their record sealed.
If you’re facing a criminal charge, we highly recommend you speak with an attorney before speaking with the DA’s office. Gant Law can help. Contact us today to schedule a consultation.
The information obtained through these articles is not legal advice, and no attorney-client relationship is formed by the posting of or reading of the same. In addition, note that the law is constantly in flux, and some information may be outdated.
3 Ways to Talk to Your Kids If You Want to Lose Parenting Time Points
If you have a pending divorce (dissolution) or child custody case (allocation of parental responsibilities), you’re looking at either reaching an agreement with your soon-to-be ex or having the judge decide for you what will happen. In either case, there are some easy ways to lose points with the opposing party, the judge, and with your kids (at least once they’re old enough to resent you for it). Here are 3 of those ways:
1. Talk poorly of the other parent in front of your child.
They may be the most ruthless, vengeful, dishonest person in your entire sphere, but talking poorly about your ex in front of your child will not change that fact, and, importantly, it won’t win over your child either. Statistically speaking, a child who has witnessed bad-mouthing by one parent against the other will eventually come to resent the bad-mouthing parent for it. In other words, it backfires.
And keep in mind that “talking poorly” doesn’t just include words. If your ex calls the child on the phone and you roll your eyes, if your child mentions your ex and you respond with sarcasm, if your friend or family member bad-mouths the other parent and you laugh along, that counts too.
Remember that your child identifies with that parent. Your child sees part of themselves in that parent. So when you bad-mouth them (verbally or otherwise), your child may very well internalize that negativity about themselves as well, not just about the other parent.
In addition, almost every parenting plan arrangement will include a provision that prohibits this type of communication, so it’s good practice to start working on it now.
2. Talk poorly of the other parent’s significant other or prod your child for information about them.
One of the more difficult situations you may encounter is the loss of control you’ll feel when your ex starts dating someone new. Unless the new flame poses a provable risk of physical danger or emotional danger to your child, you cannot dictate who your ex invites into the picture or how they do so. But while it’s important for your child to know they can always safely talk with you, and while it’s a good idea to monitor your child’s mood and behavior once the new someone is introduced, you may lose parenting-time points if you start bad-mouthing the new someone or if you prod your child for information about them.
For one thing, many judges will interpret this as mere jealousy that ups the conflict--and thus the strain on the child--without any real, substantive complaint about the new person. They may also see this as you not being able to encourage love and affection between the child and the other parent--one of the “best interest” factors judges have to consider. They may also see this as your inability to put the needs of your child above your own, another “best interest” factor.
In addition, if you prod your child about the new significant other, and especially if you do so using leading questions, you could taint your child’s opinion, memories, and potential testimony if something serious (like a crime against the child) is truly happening and needs to be addressed. If you have these kinds of concerns, the best option is to have your child speak with a school or professional therapist. They are mandatory reporters who will get law enforcement involved if your child discloses any sort of abuse.
3. Ask your young child their opinion.
While one of the “best interest” factors is the wishes of the child, there are many delicate and nuanced rules and guidelines for how that factor may be presented in court, if at all. With very few exceptions, you cannot simply stand up in court and tell the judge that you asked your child what they wanted and they told you. In fact, if you tell the judge that you asked your child, it is more likely that the judge will consider the child’s opinion somewhat tainted at that point.
Children, especially young children, generally want to please the authority figures in their lives, especially their parents. Depending on the way in which questions are posed to them, they may answer completely differently than how they actually feel. Interviewing children so as not to taint their answers is a skill that requires training and experience; it is not one that either parent should attempt. A much better option is to get collateral information from a therapist, doctor, teacher, or Child and Family Investigator.
What Are the Legal Factors for “Best Interests of the Child” in Colorado?
In determining the best interests of the child for purposes of parenting time, Colorado courts consider several factors summarized below:
1. The wishes of the child's parents;
2. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences;
3. The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;
4. The child's adjustment to his or her home, school, and community;
5. The mental and physical health of all individuals involved, (except disabilities may not form the basis for denying or restricting parenting time);
6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party, (except the court won’t hold it against a party if they are acting out of safety concerns for the child, especially in cases where the child has witnessed domestic violence);
7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
8. The physical proximity of the parties to each (for practical concerns like drive time for exchanges, distance to school, etc);
9. The ability of each party to place the needs of the child ahead of his or her own needs.
For more information on these factors, see Colorado Revised Statutes §14-10-124.
Can I Modify My Parenting Plan?
So you got your final order from the judge, and now your parenting plan isn’t working out. Is there anything you can do? As with many legal issues, the answer is maybe.
Under Colorado law, you can request changes to your parenting plan whenever those changes would be in the best interests of the child or children, with a few exceptions. What are the exceptions? Generally speaking, you can’t change child support unless there are new circumstances that, when put into the child support calculator, will result in a change of child support payments by more than 10% (up or down). Also, if you’re asking to change the primary custodial parent, you have to wait two years from the last date a parenting time motion was filed. And keep in mind that, if you were just barely in court and just barely got an order, some judges will simply not want to hear another argument, especially if it’s based on things you already knew about, so you might be ordered to mediate before any proposals will be heard in court.
Some examples of times when the court will hear modifications are, for instance, when a parenting plan for an infant or toddler allotted a significant portion of time to one parent (even though both were fit), and the child is now older and better able to handle more equal parenting time; when a parenting plan was overly specific (e.g., was based on one parent’s job schedule) and the specific situation no longer applies; when a parenting plan was overly generic (e.g. failed to state what time of day exchanges would take place or who would do the transportation) and did not account for specific needs; and similar situations.
If you are happy with your parenting plan, but the other person isn’t following it, that’s a different issue called a parenting time dispute.
For more information on what might constitute a change in the “best interests of the child,” click here or review Colorado Revised Statutes §14-10-124.
Do I Have to File Probate?
In Colorado, Probate must be opened unless the decedent (the person who has died) didn’t own any real property AND owned less than $66,000 in assets OR the decedent held all their assets in a trust.
If the decedent only owned, for instance, a vehicle, a bank account, and some household items, the total value of which was less than $66,000, then a rightful heir can simply use a form (Collection of Personal Property by Affidavit) plus a valid Death Certificate to re-title the vehicle, collect the bank account contents, and retrieve the household items. That heir, however, is bound to appropriately distribute these assets. That is, if there is a valid Will, that heir must distribute the assets according to the Will. If there is no Will, that heir must distribute the assets according to the laws of intestacy (the laws that dictate who gets what when there is no Will).
If the decedent was the grantor of a trust, and if all their property was listed in the trust AND any property with titles was titled in the name of the trust, then the trustee will simply follow the guidelines written in the trust for the benefit of the beneficiaries, and no probate is needed.
What we often see, however, is that a trust is not fully “funded,” meaning the decedent owned some property that didn’t get titled to the trust and is still titled, say, in the decedent’s name. Unfortunately, this usually means probate must be opened in order to distribute that asset.
If you or a loved one are looking at going through the probate process, we are happy to help guide you through. Please feel free to contact us. You may also find it helpful to review the court’s self-help manuals and resources found here: https://www.courts.state.co.us/Self_Help/estate/.
What is the Difference Between a Conservator and Guardian?
In Colorado, a person may petition a court to appoint a Conservator and/or Guardian for a person who cannot manage their own finances or health. The person who needs help is called a Protected Party or Ward. This might be, for instance, a young child with no parents, a disabled adult, or an elderly person suffering from neurocognitive deficits.
A Conservator is someone appointed to help manage the Protected Party’s finances, while a Guardian is someone appointed to ensure the Protected Party’s health and wellbeing are being managed appropriately.
Conservators can be appointed on an emergency basis (called a Special Conservatorship), to handle one or a limited number of transactions, or on a regular/ongoing basis.
Guardians can be apppointed on an emergency basis (called an Emergency Guardianship), to handle a single issue or limited number of issues, or on a regular/ongoing basis.
Conservators and Guardians may also have limitations, such as only being allowed to manage a certain bank account or to decide housing for the Protected Party, per the court’s discretion.
If you or a loved one are in need of a Conservator or Guardian, we would love to help guide you through that process. Please feel free to contact us. You may also find it helpful to review the court’s self-help manuals and resources found here: https://www.courts.state.co.us/Forms/SubCategory.cfm?Category=Guardian
What is Probate?
Probate in Colorado is a court process whereby you settle a deceased person’s financial affairs. When someone passes, whether they leave a Will or not, chances are their surviving loved ones will need to go through the probate process in order to re-title or distribute their assets to their heirs.
There are some exceptions. For instance, if the person didn’t own any real estate and had less than approximately $66,000 (this number fluctuates) in assets, then there are other options. Also, if everything the person owned was held by or titled to a trust, then probate would not be necessary. For everyone else, here is a quick look at the process:
Open Probate: “‘opening” probate means filling out some specific forms and filing them with the appropriate court. As part of this process, you’ll need to nominate a personal representative or “PR” (sometimes called an “executor”). There are laws outlining priorities for who becomes the PR, starting with the person nominated in a valid Will, if there is a Will.
Take Inventory & Maintain the Estate: next, the PR will need to do some detective work. They must make sure they understand what all the deceased person owned. This means checking for personal belongings, bank accounts, vehicles, storage facilities, etc. If there is anything that needs maintaining, like a home or vehicle, they will need to take good care of those assets so as not to let their values decrease. They can get reimbursed from the estate for maintenance costs or they can use the estate’s liquid assets to help with this.
Notify Creditors: once probate is opened, the PR must let potential creditors know about it. This is done by publishing a specific notice in a major newspaper in the correct jurisdiction once a week for three consecutive weeks. Potential creditors get at least four months to make claims, and some claims can be brought up to a year after the deceased person has passed.
Settle the Estate: once the assets are all accounted for and safe, and the deadline for claims has passed, the PR can pay off debts and distribute assets. They will need to follow a specific order of priority for paying debts and will either follow the Will, if there is one, or the laws of intestacy for distributing assets to the rightful heirs.
Close Probate: once all the debts are paid and property distributed to the rightful heirs, the PR will file closing documents with the court and receive a final order discharging them from their duties. The probate process is then complete.
If you or a loved one are looking at going through the probate process, we are happy to help guide you through. Please feel free to contact us. You may also find it helpful to review the court’s self-help manuals and resources found here: https://www.courts.state.co.us/Self_Help/estate/.