Validity of spendthrift provision in a last will and testament [Colorado]

[ramack]

What is the name of your state? Colorado

My wife and I are Colorado residents now and am updating last will and testament documents that had been created for us while we lived in Pennsylvania. These wills have have a spendthrift provision as one of the articles. Are spendthrift provisions contained in wills still valid? This is not a trust spendthrift provision or clause.

All of the web hits I'm finding are spendthrift provisions for trusts not wills, so I'm guessing that these provisions are now for trusts. I'm not setting up any trusts and would like to have directions laid out in my will for simplicity.

Thanks.

 

[Zigner]

You really need to speak to a Colorado attorney about this matter.

 

[Taxing Matters]

Without actually reading the wills and knowing what you want to do I cannot say for sure if what you have now will do the job. But the purpose of a will is simply to distribute the estate, nothing more. For example, if you simply want John to have $50,000 when you die, you can say in the will "I give to John $50,000." But if you want to control your assets more than just giving them outright to your beneficiary then you need a trust. So if you want John to have that $50,000 but not have him get it all at once, you need a trust to do that. Thus, if you want John's access to the funds to be given to him over time and subject to spendthrift provisions, you need a trust.

Now, that said, you can create a trust in a will. Those trusts are known as testamentary trusts. And even if the word "trust" does not appear in your will, it is possible that nevertheless the spendthrift provision in your current will does indeed create a trust.

I suggest you take your estate planning documents to a Colorado estate planning lawyer for review and advice.

 

[FlyingRon]

I don't know what happened to my post here (oh never mind, it was in another forum and Zig was there, too), but TM has said much of what I did. There is such a thing as a spendthrift clause in a will, but it applies to the potential bequest being invalidated if the heir assigns the rights to such before it is disbursed from the estate. A spendthrift trust (which indeed can be created from a provision in a will), is used to mete out money to a beneficiary who shouldn't receive it all at once.

You should speak to an attorney about what your intent is (and other details) to determine the best strategy.

 

[ramack]

Sound advice from all of you.Thanks.

 

[TrustUser]

there is also something called a spendtrift clause or provision in a trust. it is important if the purpose of the grantor is to keep the trust alive, after he dies.

the purpose of the clause is to keep creditors of a beneficiary of the trust from being able to attach liens to assets in the trust

typically, the income of the trust is distributed to the beneficiaries. and it that way, works as a supplemental monthly income for the beneficiary