Mother passed away - lots of questions

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Shackleton
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Mother passed away - lots of questions

Post by Shackleton »

My mother passed away the other day after spending over 10 years in a memory care facility (side note: and her John Hancock LTC insurance policy paid for 9 years of that stay, so she was one of the people that got their money's worth from the LTC policy.) I have been acting as her POA during the time she was in memory care. I also have one brother who hasn't been involved in her care because he lives in a different state. When my mom first had health issues and dementia, we moved her from CA to CO to be near me, which was her wish.

My brother and I get along fine, and the will (I have the original will in-hand) states that everything is to be divided equally. I don't anticipate any problems since it mainly comes down to various bank/investment accounts.

My mom did have a Survivor's Trust (my brother and I are co-trustees), written up in CA, and referencing CA laws ("as determined by the California law of intestate succession in effect at the date of termination of this trust" and "trustee shall have all of the powers and discretions listed in Chapter 2, Article 2 of the California Trust Law commencing at Section 16220 of the California Probate Code"). Her will was also written in CA and references CA laws ("my estate shall be administered under the California Independent Administration of Estates Act.") Her will states that everything moves to the trust upon her death, and the trust is then to be distributed equally to my brother and myself, without creating a new trust.

The lawyer that created both the will and the trust is no longer practicing.

Finally, the questions:
She lived for the last 10 years in CO, and passed away in CO. So do I need a CA lawyer and submit it to probate in CA since the language all references CA? Or a CO lawyer and CO probate? If it matters, the estate is worth >$1M.

Please let me know if more details are required to answer this.
“Superhuman effort isn't worth a damn unless it achieves results.” ~Ernest Shackleton
123
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Re: Mother passed away - lots of questions

Post by 123 »

Do the bank/investment accounts have named beneficiaries? If they do they can be claimed by the beneficiaries without regard to the will.

Since she was a resident of Colorado at the time of her passing any probate action would have to be done in Colorado in accordance with Colorado provisons. Hopefully the will instrument meets the requirements for a valid will under Colorado law, different states may have different requirements for a will to be valid.
The closest helping hand is at the end of your own arm.
Tribonian
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Re: Mother passed away - lots of questions

Post by Tribonian »

Sorry for your loss, Shackleton.

Bottom line: I’d retain counsel in Colorado, for knowledge of CO procedure, preferably one who is also a member of the California Bar for the substance of the probate law.

Adding to 123’s observations, Colorado courts seem to honor choice of law clauses except for construction contracts. I’d expect a Colorado court to apply California probate law (unless it mandates application of the law of where the decedent was domiciled, in which case you would have a conflict of laws problem called renvoi).

¶ 16 With respect to choice of law issues, Colorado has adopted the approach set forth in the Restatement (Second) of Conflict of Laws [hereinafter RST]. Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 198 Colo. 444, 447-48, 601 P.2d 1369, 1372-73 (1979); Target Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12, ¶ 14. Specifically, as relevant here, when the parties to a contract have chosen the law to govern their contract, RST section 187 states:

(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial
relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice . . .

Source: 2016 COA 80. 15CA0605. Mountain States Adjustment v. Cooke.

Again, very sorry for your loss.
N.B. IANYL
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Shackleton
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Re: Mother passed away - lots of questions

Post by Shackleton »

Thank you 123 and Tribonian for the quick responses. Yes, all accounts have beneficiaries listed (to my knowledge, going through them now.)
“Superhuman effort isn't worth a damn unless it achieves results.” ~Ernest Shackleton
Tribonian
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Re: Mother passed away - lots of questions

Post by Tribonian »

p.s. It also looks as though a Colorado court is unlikely to have questions about the validity of the will. (Courts generally want to have an enforceable document to work from anyway)

Source: law.justia.com

2016 Colorado Revised Statutes
Title 15 - Probate, Trusts, and Fiduciaries
Colorado Probate Code
Article 11 - Intestate Succession and Wills
Part 5 - Wills and Will Contracts and Custody and Deposit of Wills
§ 15-11-506. Choice of law as to execution
Universal Citation: CO Rev Stat § 15-11-506 (2016)
A written will is valid if executed in compliance with section 15-11-502 or 15-11-503 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where, at the time of execution or at the time of death, the testator is domiciled, has a place of abode, or is a national.
BarbBrooklyn
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Re: Mother passed away - lots of questions

Post by BarbBrooklyn »

Im so sorry for your loss, Shackleton.

Although no trust, my mom was a lifelong resident of NYS except for the last 5 years of her life, spent in CT facilities. We needed to hire an attorney admitted to practice in CT to do probate.
BarbBrooklyn | "The enemy of a good plan is the dream of a perfect plan."
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