Personal Injury Law

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Losing a loved one is never an easy thing. Regardless of the nature of your relationship with the deceased, whether, for example, the decedent is a relative, husband/wife, boyfriend/girlfriend, best friend, or important decision-maker in your life—you need space and time to process and grieve your loss. After having had space to cope with everything that has happened, you may need to include your loved one's death as part of an update to your estate plan. If you have an estate plan, one of the first things you should do when a loved one has died is to review the documents with the following questions in mind: 1. Does your will or revocable living trust name the person who died as beneficiary of money or property? If so, do your documents have any language dictating what is to become of that money or property should the named beneficiary predecease you? One of the main purposes for drafting a will or a revocable living trust is to plan for what will happen with the items you own upon the time of your death. To the extent you have preferences as to who receives your money and property, you must name who will inherit from you and also name who will inherit money and property if your first choice dies before you. If your will or trust does not name an alternate beneficiary for this gift, then upon the death of the first-named beneficiary, that gift is revoked and the accounts and property you wanted to leave to your loved one enter into your general estate and will pass according to the remaining terms of your will or trust. This could be possibly problematic if the beneficiary has a spouse, children, grandchildren, or other loved ones that you might have wanted to leave the beneficiary's inheritance to instead. Some states, including Colorado, have enacted antilapse statutes to prevent this result. If the beneficiary is dead, the gifts will descend to his or her heirs in such states. There are several exceptions and variations from state to state. For example, some states limit the beneficiaries of antilapse statutes to relatives by blood. 2. Is a trusted decision-maker now deceased? As part of your overall estate plan, you likely selected several different important decision-makers to act on your behalf if you become incapacitated (agents under your financial and medical powers of attorney and a successor trustee) or to wind up your affairs after your death (a successor trustee or personal representative). If your deceased loved one held any of these positions, make sure a backup was nominated. If not, you need to update the affected document to include a new first choice and at least one alternate. If you have already named a backup in the document, you will want to update your document to name your backup as your new first choice and remove your deceased loved one’s name to prevent confusion when a third party reviews the document. Personal representative (also known as an executor). This trusted individual, appointed in your last will and testament, is responsible for collecting all your accounts and property, paying your outstanding debts and taxes, and distributing your money and property to your named beneficiaries after your death. This person’s task is to wind up your affairs, which can be time-consuming. If your chosen personal representative dies before you and there is no named backup at the time of your death, the probate court will use Colorado law to determine who is next in line to serve as personal representative. Co-trustee or successor trustee of your trust. Serving either with you (as co-trustee) or after you become incapacitated or die (as successor trustee), this trusted person or entity is charged with managing, investing, and distributing the money and property from your trust to you during your lifetime (if you are incapacitated or are otherwise unable to act as trustee) and to your chosen beneficiaries after your death. If your deceased loved one was a co-trustee with you, you should review your trust agreement to see what happens next. There may be a provision that either allows you to continue serving as the only trustee, names a specific person to step in and serve with you as co-trustee, or describes how to determine who your new co-trustee will be. If your deceased loved one was named as your successor trustee, nothing noticeable will happen with respect to how your trust is managed right now. However, if you become incapacitated or die and there is no successor trustee, your loved ones must look to your trust agreement for guidance on filling the vacancy. Your trust may provide that a certain number of your beneficiaries can appoint a new trustee without court involvement, or your trust might require that the court approve any new trustee. The outcome will depend on the trust’s wording and Colorado laws. Because your trust is revocable and amendable during your lifetime, it is best to update your trust to appoint a new successor trustee or change any of these provisions as needed while you still have the ability to do so. Agent under a financial power of attorney. Your agent is an individual you choose to manage your property and finances (such as communicating with your mortgage company, paying your bills, or accessing funds in your bank account for your care) on your behalf. If the person you selected is deceased and there is no named backup, no one else can act on your behalf when needed. If you become unable to manage your property and finances without appointing an agent in a financial power of attorney, your loved ones will have to go to court and have someone appointed by a judge to take care of your financial and property matters. The judge will make this determination based on Colorado law, which prioritizes certain individuals to serve in this role, and the person selected may not be the person you would have chosen. Not only is this process time-consuming during a stressful time, but it can be expensive and exposes the details of your condition and family dynamics to the public. Agent under a medical power of attorney. Your agent under your medical power of attorney is typically authorized to make decisions or communicate your medical wishes in the event you are unable to do so yourself. Because this person can act only when you cannot, you may not feel an immediate need to update your medical power of attorney if your chosen agent has passed away. However, if you have an accident, become incapacitated, or are otherwise unable to communicate your medical wishes and you do not have an agent who can act for you, your loved ones must go to court to have a guardian appointed before anyone can speak on your behalf. The judge will look to the standards and guidelines under Colorado law to aid them in appointing the appropriate person, who may not be the person you would have chosen to make your decisions. Second, the selected person may not know your wishes about the medical care you want to receive. Guardian for your minor child . You have likely invested a lot of time and consideration in deciding who you would like to serve as the guardian of your minor children if you and the children’s other parent are unable to care for them. If the loved one you have selected has passed away, it is imperative that you update this selection. While your circumstances may vary, if your chosen guardian is unable to serve for any reason, and you have no alternate guardian nominated, the court will determine who will raise your child. As with other roles, the selected person may not be the one you would have chosen, and absent input from you, the judge may have limited information when making this critical decision. Attorneys at Ross Law P.C. Are Here to Help: We are aware that you are dealing with the death of a loved one. When the time is right for you, we're here to help you take the next step in your estate plan - whether it's creating, completing, or updating it. Call to schedule your in-person or virtual appointment.

The Fair Labor Standards Act (FLSA) has many nuances that can create legal pitfalls for employers who are unfamiliar with each and every one of its intricate requirements. One such area is the compensability of a non-exempt employee's time spent traveling to a location that requires an overnight stay away from his or her home. As a general matter, the FLSA requires employers to pay non-exempt employees for their rime spent working. While the FLSA does not explicitly define what constitutes "work," the Portal-to-Portal Act provides that employers do not need to compensate employees for traveling to and from the actual place of work performance and the employee's home, and FLSA regulations reiterate that normal travel from home to work is not compensable work time. Thus, these standards make clear that compensable work time generally does not include time spent commuting to or from work. However, compensation for a non-exempt employee's travel time that requires an overnight stay is subject to a different FLSA regulation that provides an employee's time spent driving to a location that keeps the employee away from home overnight is compensable when it cues across the employee's workday or the employee's regular working hours on nonworking days. The Regulation provides as follows: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile. 29 C.F.R. § 758.39. For example, imagine that Pete, an hourly employee who regularly works 9 a.m. to 5 p.m., Monday through Friday, leaves work on Friday afternoon at 2 p.m. and drives three hours away from his home community to the location of a training seminar to be held the following day from 9 a.m. to 4 p.m. Immediately following the training seminar, Pete drives the three hours back to his home. Under this scenario, Pete must be compensated for the three hours he spent driving on Friday afternoon and for the one hour he spent driving between 4 p.m. and 5 p.m. on Saturday (whether the time spent at the training seminar is compensable is an issue for another day and the issue is subject to different regulations focused on not only whether the training was during Pere's normal hours, but also whether it was job-related, voluntary, and if other work is performed concurrently). What's more, if Pere had worked a full week leading up to the training seminar, that hour from 4 p.m. to 5 p.m. driving on Saturday would constitute overtime and, therefore, it must be paid at time and one half.