Monthly Archives: November 2016

November 21, 2016

Beware of Lost Wills

by Morgan Wiener

One of the many complexities that can arise in the probate process is what to do when a decedent’s original will cannot be found.  Although it may be tempting to simply file a copy of the will and seek to admit that to probate, beware!  Copies of wills may not be admitted to informal probate.  Instead, even if a challenge to the document is not expected, copies of wills must be submitted for formal probate.

C.R.S. § 15-12-402(3) provides for the formal probate of a will that “has been lost or destroyed, or for any other reason is unavailable.”  Under this section, the will may be admitted to probate if (1) the fact of execution is established as provided in the Colorado Probate Code, (2) the contents of the will are established to the satisfaction of the court, and (3) the court is satisfied that the will has not actually been revoked by the decedent (remember that, when a will last seen in the decedent’s possession cannot be found, there is a rebuttal presumption that the decedent destroyed and revoked the will).

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November 7, 2016

Nuances of Estate Tax Lien Priority

by Margot S. Edwards

In many cases, estate tax obligations have priority over the creditors of an estate, but this general rule has exceptions. It is key for a fiduciary to understand when a creditor may have priority over estate taxes, in order to ensure the fiduciary is properly carrying out its duties to the estate’s creditors.

The primary exception to the general rule is that secured creditors often have priority over an estate tax lien (I.R.C. § 6323). One common example of a secured creditor with priority over estate tax obligations is a lender who provided a purchase money mortgage, which is properly secured by real estate. A secured creditor may have priority over an estate tax obligation if the debt is secured by a security interest that was perfected under applicable state law prior to the decedent’s death.  Read more >>