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How long does the eviction process take?
Revocable Living Trust Or Will?
What is Probate?

How long does the eviction process take?

In difficult economic times, evictions (often referred to as F.E.D.’s, the acronym for “forcible entry and detainer,” derived from language in the Colorado statutes which govern such actions) occur with greater frequency. Perhaps the most common question posed by landlords and tenants alike is, “How long does the eviction process take?” Landlords want to know how quickly they are likely to regain possession of their property. Tenants want to want to now how much time they will have to vacate their leased premises. Depending on how the tenant responds to the eviction action, the process generally takes between two and four weeks.

Why does an eviction take this long? Assuming the Tenant does not simply vacate, the Landlord must follow a defined process prescribed by statute to obtain an order of possession, because the Landlord may not forcibly remove the Tenant, no matter how strong his claim to the property may be. Generally, the Landlord must serve the Tenant with a three-day notice affording the Tenant the opportunity to cure the lease default, or a notice to quit if the Tenant has no lease or its lease has ended. Thereafter, if the default is not cured, the eviction action is commenced by the filing of a summons and complaint and the service of a copy of both documents on the tenant no less than five and no more than ten days before the return date upon which the tenant must appear and/or file a answer setting forth defenses to the complaint.

If the Tenant fails to file an answer to the Complaint and pay the requisite filing fee, the court will enter judgment for possession by default against the Tenant. The Landlord must then wait forty-eight hours before obtaining a writ of restitution, an order to the Sheriff to remove the Tenant.

If the Tenant files an answer, the issue of who is entitled to possession of the premises must be set for trial on an expedited fashion, usually within five days. If the Landlord prevails at trial, an order of possession is entered, but still no writ of restitution may enter for forty-eight hours from the date of the entry of the order of possession.

Once the writ has entered, the Sheriff does not actually move the Tenant’s possessions out, but merely keeps the peace while the Landlord or someone hired by the Landlord removes the Tenant’s possessions from the premises. Collecting back rent and damages to the premises is a process in and of itself, dependent in part on how the Tenant was served with the summons and complaint and whether the Tenant appears to defend against the claims asserted.

Your individual circumstances may alter the foregoing process or timeline.
To learn more about the process and your rights under the call Peter B.
Goldstein, Esq. at (303) 688-1655 or e-mail him at peter@gubbelslaw.com for
a free consultation.

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Revocable Living Trust Or Will?
Many clients ask whether they should use a revocable living trust (also known as inter vivos trust) or the traditional “Last Will and Testament”. The answer is, “It depends on your circumstances, priorities and goals.” Without learning that information first, it is not possible to advise a client on which estate planning instrument to use. So the purpose of this article is to provide a basic explanation of each, but not to advise which one you should use.

A simple will nominates the person to handle the affairs of a deceased person and directs the distribution of the decedent’s property. A simple revocable living trust performs the same tasks. But the tasks are accomplished by different means.

To be effected, a will must be probated. Although the definition and explanation of the probate process is the topic of a separate article, a simple explanation for the purpose of this article is that probate is the legal process for proving the existence or non-existence of a valid will for a deceased person, settlement of the decedent’s affairs and distribution of the decedent’s assets to the appropriate persons. A will does not eliminate probate. It is the decedent’s instructions as to who will do the probate and how it will be conducted. A properly created revocable living trust can accomplish most of the same goals, without court involvement. So the common argument in favor of the revocable living trust is to avoid the probate process. It is true that use of the revocable living trust may eliminate the need to probate your estate when you die.

A revocable living trust can eliminate the need for probate because it is a legal entity that does not die. So if it owns your property at the time you die you will have no property to be transferred via the probate process. Instead, your Trust Agreement appoints a person to serve as the Successor Trustee and instructs that person to distribute the trust property to your beneficiaries.

A revocable living trust is created by executing a Trust Agreement or Declaration. It is the document that identifies you as the Settlor (also known interchangeably as Trustor or Grantor), you as the Trustee, another person as the Successor Trustee and the Beneficiaries. The Settlor creates the trust, the Trustee manages the trust and the Beneficiaries benefit from the property held in trust. The trust is funded by transferring some or all of your property to it. If at the time you die you have effectively transferred or conveyed all of your property to the trust there will be no property in your name to be transferred to someone else at the time of death. Hence, there is no need to probate your estate—at least for that purpose.

It is possible that the probate court might have to appoint a personal representative (formerly known as executor or executrix) to deal with other issues and it is possible that at the time you die there might be some property that did not get transferred to your trust. Therefore, it is standard practice among estate planning attorneys to have clients also execute “pour over” wills to nominate your choice for personal representative and to direct that any property owned by you at the time of your death is to be “poured over” into your revocable living trust. So even if you use a revocable living trust, you still need a will.

For more information on this topic and others, call Darrell J. Gubbels, Esq.
at (303) 688-1655 or e-mail him at darrell@gubbelslaw.com for a free
consultation.

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What is Probate?
Technically and historically, the term “probate” refers to the process whereby a decedent’s will is proven by a court of law to be either valid or invalid. Common usage has expanded the term to include the administration of the estate of a decedent who died without a will.

Forged wills are not common, but do occur from time to time. A purpose of the probate process is to determine whether a will is a forgery or not. The court must also determine whether a will meets the statutory requirements to be a valid will and confirm that it was not revoked by either a subsequent will or by some action by the decedent short of physically destroying the document. If a person dies without a valid will, he or she is deemed to have died “intestate”. Intestate status might be because either the decedent did not execute a will or the purported will is not valid.

Once it has been determined that the decedent either did or did not leave a valid will, the administration of the estate is very similar in both instances. The probate court will appoint a personal representative to act on behalf of the estate. The probate laws are designed to protect those persons who claim to have an interest in the affairs of the decedent, as well as those who are entitled to
distribution of the assets of the decedent. Specifically and most commonly, those persons claiming an interest are creditors of the decedent. To protect those persons or claimants, the law requires the personal representative to give notice to the decedent’s creditors and provide them with an opportunity to present their claims. If the personal representative knows the identity of such a claimant, he or she is obligated to give actual written notice to the claimant. But in an effort to protect unknown claimants, the law further requires the personal representative to cause a Notice to Creditors be published in a local newspaper. Whichever way the notice is given, it includes a deadline by which all claims must be filed with either the court or the personal representative. The deadline is 4 months from the date the published notice first appears in the newspaper. If the claim is not filed by that deadline the personal representative may legitimately deny the claim. It may also be denied on other grounds. If the claim is denied, the claimant still has the right to petition the court to rule on whether it should be paid or not. Until a personal representative has definitively determined there are no claims against the estate, or that they have been satisfied, it is unwise to distribute the assets of the estate. To do so would expose the personal representative to personal liability for any claims ultimately determined to be legitimate if there are insufficient assets remaining in the estate to pay those claims.

Other tasks assigned to the personal representative include filing a final income tax return for the decedent, possibly filing an income tax and or an estate tax return for the estate itself, collecting and preserving all assets that belonged to the decedent and possibly selling or otherwise disposing of assets such as real property, automobiles, personal possessions, etc.

Once the personal representative has completed all tasks assigned, he or she will distribute the assets of the estate to those persons entitled to receive them. If there is a will identifying those persons, they are referred to as devisees or beneficiaries. If there is no will, the court must determine and identify the decedent’s “heirs at law”. Heirs at law are defined by statute and assigned priority under what is sometimes referred to as the intestate statute of descent. Typically, the order of priority for a decedent’s heirs at law will be the decedent’s spouse and children or children of deceased children. If there is no spouse and no children or grandchildren, the decedent’s parents are next in priority and thereafter the priority follows bloodlines. On rare occasion a person dies with no heir at law and no will.

If so, the property of the decedent must still pass to someone and the law provides that it shall pass to the common good of all citizens of the state by a provision referred to as “escheat”. The assets are reduced to cash and paid over to the Colorado Treasurer receives to be held for a period of 21 years. If it is unclaimed by a rightful heir of the decedent within that time period, it is paid over to the public school fund. As I said, this is very rare.

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