CO Bar Wills Trusts and Estates 3 — Questions and Answers
Question 1: In Colorado, the surviving spouse's elective share is calculated as a percentage of the augmented estate that increases with:
- The size of the estate
- The spouse's age at death
- The length of the marriage (Correct answer)
- The number of children
Correct answer: The length of the marriage
Colorado uses the UPC accrual approach, under which the elective-share percentage of the augmented estate increases with the length of the marriage up to 50 percent.
Question 2: A will devises 'my 100 shares of Acme stock to my nephew.' Before death, the testator sells the Acme stock. Under the doctrine of ademption, the nephew:
- Takes nothing because the specific gift adeemed by extinction, absent a statutory exception (Correct answer)
- Takes 100 shares of any stock the estate owns
- Takes the cash value of the shares at death
- Takes his intestate share instead
Correct answer: Takes nothing because the specific gift adeemed by extinction, absent a statutory exception
A specific devise fails by ademption when the property is not in the estate at death, unless a UPC replacement or nonademption exception applies.
Question 3: A testator's will leaves a gift to 'my brother Sam,' who predeceases the testator leaving two children. Under Colorado's antilapse statute, the gift:
- Passes to Sam's estate
- Passes to the testator's heirs by intestacy
- Passes to Sam's two children as substitute takers (Correct answer)
- Lapses and falls into the residue
Correct answer: Passes to Sam's two children as substitute takers
Colorado's antilapse statute substitutes the descendants of a predeceased devisee who was a grandparent, descendant of a grandparent, or stepchild of the testator.
Question 4: Under Colorado law, an heir must survive the decedent by how long to take by intestate succession?
- 72 hours
- 30 days
- There is no survival requirement
- 120 hours (Correct answer)
Correct answer: 120 hours
Colorado's UPC-based statute requires an heir to survive the decedent by 120 hours, established by clear and convincing evidence.
Question 5: A Colorado testator writes 'I leave my car to John' on a signed, handwritten note after executing a formal will, intending it to modify the will. This note is best treated as:
- Void as an unattested alteration
- A memorandum effective only for tangible personal property lists referenced in the will
- An invalid attempt to amend because codicils require witnesses
- A valid holographic codicil (Correct answer)
Correct answer: A valid holographic codicil
Because Colorado recognizes holographic instruments, a signed handwritten document with testamentary intent can operate as a holographic codicil.
Question 6: A child is born to the testator after the will was executed and is not provided for in the will. Under Colorado's pretermitted child statute, the omitted after-born child generally receives:
- Only a family allowance
- Nothing, because the will controls
- A share of the estate, unless the omission was intentional or the testator provided for the child outside the will (Correct answer)
- The entire estate
Correct answer: A share of the estate, unless the omission was intentional or the testator provided for the child outside the will
Colorado's omitted-child statute gives an after-born child a share unless the will shows intentional omission, the testator left substantially all to the child's other parent, or provided for the child by nonprobate transfer.
Question 7: Which of the following is a nonprobate asset that passes outside the will in Colorado?
- A specific devise of the decedent's home
- The residuary estate
- Property owned solely by the decedent with no beneficiary designation
- Property held in joint tenancy with right of survivorship (Correct answer)
Correct answer: Property held in joint tenancy with right of survivorship
Joint tenancy property passes automatically to the surviving joint tenant by operation of law, outside the probate estate.
CO Bar Wills Trusts and Estates 3
In Colorado, the surviving spouse's elective share is calculated as a percentage of the augmented estate that increases with: