Legal Services for Clients and Attorneys
Trial expertise applied to:
- Will / Trust contests. Read More
- Estate / Trust disputes. Read More
- Claims against Personal Representative / Trustee. Read More
- Fiduciary Representation / Defense. Read More
- Contested Conservatorship / Guardianship. Read More
- Power of Attorney enforcement. Read More
- Elder financial abuse. Read More
- Common Law marriage. Read More
- Real Estate / Invalid Deed. Read More
A Will contest can arise when an interested party challenges the validity of the Will. A contest or defense of a Will may include (1) lack of testamentary capacity; A person lacks testamentary capacity if they do not understand they are creating a Will, do not know what their assets include or do not know their family members; or (2) undue influence; Undue influence means words or conduct, or both, which at the time of the making of a will deprived the person making the will of his or her free choice; and caused the person making the will to make it or part of it differently than he or she otherwise would have; (3) failure to comply with the legal formalities of the will requiring that a will must be signed or witnessed; and (4) other reasons such as revocation of the will, duress, forgery or other forms of deceit or misrepresentation.
A Trust contest can be based upon fraud or breach of fiduciary duty by the Trustee; inappropriate distribution of funds; mismanagement of funds or poor investment decisions; and for financial misconduct such as taking trust funds or excessive compensation of the Trustee.
Estate disputes may include whether a probate should be opened; challenges to the qualifications of the nominated Personal Representative; and claims by creditors against the estate.
Trust disputes can be based upon fraud or breach of fiduciary duty by the Trustee; inappropriate distribution of funds; mismanagement of funds or poor investment decisions; and for financial misconduct such as taking trust funds or excessive compensation of the Trustee. Trust disputes also may occur when the Trust language needs to be interpreted by the court because the trust language is vague or if the law has changed since the Trust was created.
Personal Representatives of estates and Trustees are fiduciaries under Colorado law. A fiduciary relationship exists when a person is entrusted to act for the benefit of or in the interests of another and has the legal power and authority to do so. The Personal Representative and the Trustee owe duties to the beneficiaries and the creditors of the estate or trust. If the duties are breached there may be a claim for breach of fiduciary duty.
Personal Representatives and Trustees have a duty to protect, conserve and distribute the assets in compliance with the statutes governing estates and with the terms of the will or Trust. They also have the duty to act for the benefit of beneficiary and cannot engage in self-dealing or use the fiduciary status to benefit their personal interests. They have the duty of impartiality and must be neutral in the performance of their duties. They have the duty to reasonably manage assets as required by Colorado law.
A fiduciary may be a personal representative, guardian, conservator, trustee or an agent under a power of attorney. A fiduciary relationship exists when a person is entrusted to act for the benefit of or in the interests of another and has the legal power and authority to do so. Fiduciary representation involves defending a fiduciary when the person to whom they owe a duty brings a claim of fiduciary duty or other legal claim. Defenses rely upon proof of performance of the duty challenged and compliance with the language of the will, trust power of attorney or order of appointment as a conservator or guardian.
A conservatorship is a legal action to appoint a person to manage the financial and business affairs of a person who is unable to do so. A guardianship is a legal action to appoint a person to be responsible for making for health care, medical and other life decisions for a person who is unable to make decisions to protect their health or safety.
Conservatorship and guardianship actions are protective proceedings that protect the rights of the person. Contested proceedings often arise when the family of the person cannot agree whether a protective proceeding is necessary or when they cannot agree who should serve as the fiduciary.
Conservators and Guardians are fiduciaries under Colorado law and are subject to legal duties. A fiduciary relationship exists when a person is entrusted to act for the benefit of or in the interests of another and has the legal power and authority to do so.
Agents under a power of attorney are fiduciaries under Colorado law and are subject to legal duties. A fiduciary relationship exists when a person is entrusted to act for the benefit of or in the interests of another and has the legal power and authority to do so.
When the principal, the person granting the power of attorney, signs a financial power of attorney, the agent as a fiduciary is given very broad authority to manage the financial and business interests of the principal. The agent must not take any action that involves self-dealing or mismanagement of the assets. Under Colorado law an agent may be held liable for damages or losses caused by their actions.
Elder financial abuse is broadly defined as misconduct by others resulting in the elders’ loss of money, personal property, such as a car, jewelry or bank accounts, or other assets and financial investments. Most elder financial abuse is committed by family members, caregivers or others who are known by the elder. Financial abuse is most often accomplished when the elder is isolated or alone. In many cases the abuser takes advantage of loneliness and convinces the elder the abuser is their only friend.
There are two ways to be married in Colorado. A valid marriage in Colorado can be entered into (1) by meeting the requirements established by Colorado common law, thus, a common law marriage. A valid marriage in Colorado also can be entered into (2) by a statutory ceremonial marriage that is licensed, solemnized, and registered.
A common law marriage can be proved if the parties have mutually agreed and consented to be married and are letting the community know that they are married by mutual and open assumption of a marital relationship. It is not possible to be common law married unless both parties knowingly and intentionally agree that they are married.
One form of elder financial abuse involves misconduct by others resulting in the elder signing a deed that transfers ownership or title to the abuser. The abuser may obtain the elders’ signature on the deed by undue influence. Undue influence means words or conduct, or both, which, at the time of the signing of the deed deprived the elder of his or her free choice; and caused the elder to transfer title and/or ownership to the abuser when he or she did not intend to do so or did not understand the transaction. Deeds obtained due to undue influence or other misconduct can be nullified by the courts and the title or ownership can be returned to the elder.
What I do as a trial attorney and the legal services I provide are easier to understand if you have the story behind the lawsuit. Here are a few stories:
- Will contest of grandmother’s codicil changing distribution of mineral rights.
- Action to set aside a deed obtained from vulnerable grandfather and Will contest.
- Defended elderly mother against eviction action/outrageous conduct by her son.
- Jury verdict in favor of Estate.
- Recovered mother’s ashes.
- Obtained judgment based upon undue influence and breach of fiduciary duty.
- Recovered unintended “gifts” to nephew.
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