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Wade/Parks

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J

AMES

R. W

ADE

Based on Colorado Probate Practice Manual

by the late Howard E. Parks

Supplemented

• April 2006 •

• August 2009 •

• October 2011 •

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C

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ISBN-13: 978-1-930993-39-6

Published by:

CONTINUINGLEGALEDUCATION INCOLORADO, INC.

1900 Grant Street, Suite 300 Denver, Colorado 80203

Phone: (303) 860-0608 Toll-free: (888) 860-2531 Fax: (303) 860-0624 E-mail: clebooks@cobar.org Website: www.cobar.org/cle

Continuing Legal Education in Colorado, Inc. (CBA-CLE) publications are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Nothing contained in this book is legal advice or other professional advice. Readers are responsible for obtaining advice from their own lawyers or other professional. Publications are distributed with the understanding that CBA-CLE does not render any legal, accounting, or other professional service. The contents of this book do not necessarily reflect the views of the Internal Revenue Service or any other regulating governmental entity. The material in this book represents the opinions and views of the authors, and should not be construed as the views of any of the authors’ law firms or of Continuing Legal Education in Colorado, Inc. The proper interpretation or application of the material in the book is a matter for the considered judgment of the individual legal practitioner, and CBA-CLE disclaims all liability therefor. As with any legal textbook

C

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CLE

CLE in Colorado, Inc. is the nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association

Dawn M. McKnight, Esq.

Assistant Executive Director/ Publications Director

Colorado Bar Association CLE

Lisa C. Travis Fischer, J.D.

Publications Production Manager

Colorado Bar Association CLE

Marsi Buckmelter, M.S.

Editor

Colorado Bar Association CLE

John and Lynn Cleveland

Subject Index/Table of Authorities

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PUBLISHER’S NOTE

We are pleased to present the 2011 Supplement to James R. Wade’s phenomenal treatise,

Wade/Parks — Colorado Law of Wills, Trusts, and Fiduciary Administration. Mr. Wade has

tirelessly contributed countless hours to this project, for which we at Colorado Bar Association CLE are grateful and appreciative. Mr. Wade’s dedication to this book has made it a tremendous reference tool.

We would like to thank Mr. Wade for his diligent devotion to this project, and we would also like to extend our gratitude to Barbara Cohen, who is unfailingly helpful and cheerful. They are, together, delightful and always willing to offer their time and energy to make Wade/Parks a valuable tool for Colorado practitioners. We are grateful to Steven M. Weiser, a tax attorney with the law firm of Foster Graham Milstein & Calisher, LLP, for his willingness to review and update the two tax chapters — Chapter 21, “Post-Mortem Estate Planning,” and Chapter 26, “Income Taxation of Trusts and Trust Beneficiaries” — in our hour of need.

We strive to make this publication as up-to-date and accurate as possible. If you have any questions or comments to assist us in this task, please contact Lisa Travis Fischer, ltravisfischer@cobar.org or 303-824-5381. Thank you.

Marsi Buckmelter, M.S. Dawn McKnight

Editor Assistant Executive Director/

Colorado Bar Association CLE Publications Director

Colorado Bar Association CLE

ACKNOWLEDGMENT

Production of Wade/Parks — Colorado Law of Wills, Trusts, and Fiduciary

Administraction, Fifth Edition, required the editors to Shepardize®the citations used in the book.

The research was made possible by a generous contribution from the Colorado Bar Association CLE’s technology partner, LEXIS-NEXIS®.

HOW TO CITE THIS BOOK

As the first full citation, you may cite this book as:

James R. Wade, Wade/Parks — Colorado Law of Wills, Trusts, and Fiduciary

Administration, Fifth Ed. (CLE in Colo., Inc. Supp. 2011) (hereinafter Wade/Parks).

After the first full citation, you may cite this book as:

Wade/Parks, supra n. ____, at ____.

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COLORADO BAR ASSOCIATION CLE

Colorado Bar Association CLE (CBA-CLE) is the nonprofit educational arm of the Colorado and Denver bar associations. We strive to produce high-quality CLE programs and legal publications at competitive prices, with substantial member discounts. However, we are also finan-cially independent from the bar associations and self-supporting. We receive no membership dues or other unearned revenue from the CBA or DBA. Nearly all of our income derives from program registration fees and from sales of books, audio and video homestudy courses, and course manuals. Every year, hundreds of Colorado lawyers and judges volunteer their time and expertise to help us produce these educational resources for our members. Without this generous contribution of talent, CBA-CLE could not fulfill its mission.

CBA-CLE Board of Directors — July 2011 to June 2012

Denver Bar Association Appointments Colorado Bar Association Appointments

Richard I. Zuber Barbara Blumenthal Robert A. Holmes Baird B. Brown Michael T. Mihm E. David Griffith

J. Marcus Painter Honorable Terry Ruckriegle Kristin Rozansky Deanna L. Westfall

Gregory James Smith Eugene Zuspann, II Charles C. Turner

CBA-CLE Staff

B. Gary Abrams . . . Executive Director Evan Brown . . . Manager of Media and Web Development Ellen Buckley, Esq. . . . Legal Editor Lisa M. Cordova . . . Program Coordinator Mary Dilworth . . . Marketing Manager Lisa C. Travis Fischer, J.D. . . . Acquisitions Editor/Manager Terri L. Fonseca . . . Customer Service Priscilla S. Fulmer, Esq. . . . Program Attorney Susan Hoyt . . . Legal Editor Darlene M. Johnson . . . Managing Editor Lori L. Krupske . . . Finance Manager Melissa J. Lucas . . . Publications Assistant Deb Marnocha . . . Desktop Publisher Dawn M. McKnight, Esq. . . . Assistant Executive Director/Publications Director Jo McWilliams . . . Order Fulfillment/Shipping Ryan Morris . . . Program Coordinator/Data Specialist Kathryn Noble, Esq. . . Legal Editor Heidi A. Ray, Esq. . . Program Attorney Julie Lynn Revers . . . Program Administrator Adrian Romero-Sosa . . . Technical Producer Monica Santillanes . . . Marketing Assistant Kenneth Sudduth . . . Customer Service Zachary A. Willis, Esq. . . . Legal Editor

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AUTHOR’S NOTE TO 2011 SUPPLEMENT

This supplement picks up Colorado cases reported originally in The Colorado Lawyer through calendar year 2009. It contains a new § 1.13 on federal court jurisdiction in probate liti-gation and discusses the history and rulings of the federal courts, including the United States Supreme Court in Estate of Marshall (the Anna Nicole Smith case) with respect to the traditional “probate exception” to federal court diversity of citizenship jurisdiction. It also discusses federal jurisdiction based upon the so-called Rooker-Feldman Doctrine.

The bulk of the other changes to the text are comments on recently enacted legislation, including:

• The estate administration aspects of the new designated beneficiary statute;

• The new Colorado Medical Treatment Decision Act and its relation to other advance directive statutes;

• The new provision for a valid notarized will;

• Changes to the intestacy statute, including changes in provisions for remote relatives and, more importantly, provision for genetic children (children of the new biology); • Cost-of-living increases in the allowances and the minimum elective share amount; • Statutorily authorized beneficiary deeds;

• The newly enacted provisions of the Uniform Probate Code, which allows reformation of wills and trusts (even if unambiguous) to carry out transferor intent; and finally, • Comments on the significant agency issues resolved by the newly enacted Revised

Uniform Durable Power of Attorney Act.

Once again I am indebted to my colleagues at Wade Ash Woods Hill & Farley, P.C. for their support of this publication, and especially to my assistant, Barbara Cohen, for gathering the materials. A special word of thanks is due to my editors, Marsi Buckmelter and Susan Hoyt. Thanks again to Lisa Travis Fischer (and her colleagues at CLE in Colorado) for her organiza-tional skills and support in updating the materials. Finally, my thanks go to Steven Weiser for his careful update of the tax chapters on post-mortem estate planning and income taxation of trusts and trust beneficiaries.

James R. Wade

Denver, Colorado October 2011

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ABOUT THE AUTHOR

James R. Wade

Wade Ash Woods Hill & Farley, P.C.

360 S. Monroe St., Ste. 400 Denver, CO 80209

(303) 322-8943 www.wadeash.com jwade@wadeash.com

JAMES R. WADE, a Denver native, is a graduate of Princeton University and the Harvard Law School. He is a member of Wade Ash Woods Hill & Farley, P.C., a firm that limits its practice to estate planning, estate administration, elder law, and probate litigation. In addition to the local estate planning councils, he is a member of the American College of Trust and Estate Counsel, where he served on the Board of Regents. He is a Fellow of the International Academy of Estate and Trust Law. He served as liaison from the ABA Section on Real Property, Probate, and Trust Law to the National College of Probate Judges and was a member of the American Bar Association Commission on Legal Problems of the Elderly. A member of the American Law Institute, he served as an Advisor to the Reporter for the Restatement of Trusts third revision proj-ect, and is a member of the Editorial Board for Uniform Trust and Estate Acts. He is the author of

Colorado Probate System, as well as a number of articles published in The Colorado Lawyer, Probate and Property, The Real Property, Probate, and Trust Law Journal, and Trusts and Estates Magazine. He has taught at the University of Denver College of Law, the University of

Colorado Law School, and has been a visiting professor at McGeorge Law School in Sacramento, California, and at the University of Miami Graduate Program in Estate Planning. He served as Judge of the Denver Probate Court from 1977 to 1982. He is a recipient of the Treat Award for Excellence in Probate, National College of Probate Judges; and of the Richard Doyle Award of Excellence, Colorado Bar Association Continuing Legal Education.

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