Colorado Real Estate Transactions – What Rights are Included?

Posted on by katemley

Colorado S.B. 14-009: Real Estate Transactions—What Rights are Included?

For years, landowners whose estates contain energy producing minerals have been dividing their estates into a separate surface estate and subterranean estate or “Mineral Estate.” In such areas, subsurface rights to minerals such as oil and natural gas are often severed from the surface estate, vesting ownership in multiple parties. These severances are different than others such as a wind energy right in that ownership of the mineral estate is severable from the surface estate, giving the owner of the mineral estate an exclusive right to the subterranean portion of the estate. Common ownership schemes for such an operation include the following:

  1. The owner of the undivided estate leases the mineral estate to an oil and gas company.
  2. The owner of the undivided estate sells the mineral estate to a party who then leases that mineral estate to an oil and gas company.
  3. The owner of the undivided estate sells the mineral estate to the oil and gas company.

Generally, a separate surface use agreement regulates the interaction between the owner of the surface estate, owner of the mineral estate, and leasee of the mineral estate. Such agreements commonly include conditions under which the mineral leaseholder may access the surface estate in order to access the mineral estate and whether or not compensation will be required to the surface estate owner.

Recently, with the growth of unconventional drilling technologies such as hydraulic fracturing, more landholders find themselves on land with drilling potential. Thus, more landowners are severing mineral rights to property in more densely populated and developed areas, which has the potential of creating uncertainty for a purchaser of real property.

To address this issue, the Colorado State Legislature recently passed Senate Bill 14-009. The Bill adds an additional disclosure requirement to the list of disclosures already required for conveyances of real property. This new disclosure requires a seller to provide information to a buyer regarding any potential split in ownership between the land and mineral estates. More specifically, in each contract for the sale of real property the seller must disclose the following:

  1. That the surface and mineral estate may be owned separately;
  2. Transfer of the surface estate may not include the mineral estate;
  3. Third parties may own or lease interests in oil, gas, or other minerals under the surface and may enter and use the surface estate to access the mineral estate (The use of the surface estate to access the mineral estate may be governed by a separate surface use agreement recorded with the county clerk and recorder); and
  4. The types of oil and gas activities that may occur on or adjacent to the property.

The above disclosure is intended to protect the purchaser of real property, by providing them with the information necessary to understand exactly what property rights they are acquiring when purchasing a parcel of land. By January 1, 2016 the Real Estate Commission is required to promulgate a rule regarding the above land disclosure. At that time all land subject to the real estate commission’s jurisdiction will be subject to the commission’s rule regarding disclosure. Any land not under the Real Estate Commission’s jurisdiction, will be required beginning January 1, 2016 to include, in bold typed face, a disclosure statement in any sale for real property in substantially the same form as the statutory language provided in the bill.

Changes to the Colorado Probate Code

Posted on by katemley

H.B. 14-1322: Changes to the Colorado Probate Code

The Colorado General Assembly recently passed several changes to the Colorado Probate Code, which became effective August 6 of this year. In particular, House Bill 14-1322 made changes to the administration of revocable trusts. These changes include the expansion of default rules governing trust revocation and the enumeration of powers and duties afforded to certain fiduciaries acting under the terms of the trust.  

Before House Bill 14-1322, a trust could be revoked by any method expressing the “clear and convincing” intent of the trust creator (“settlor”) to revoke the trust, or if a method was expressly mentioned in the trust, revocation could be accomplished by such a method. Clear and convincing intent also included any revocation in a later drafted will or codicil that expressly referred to the revocable trust or which specifically devised property that would have otherwise passed through the trust. 

With the enactment of House Bill 14-1322, the code now requires settlors to use specific language to signal that a method of revocation is meant to be exclusive. More specifically, a trust must include the terms “sole” or “only” when referring to a method of revocation, otherwise the trust may be revoked by any other method manifesting “clear and convincing” evidence of the settlor’s intent to revoke. This change to the revocation procedure provides for a slightly higher burden on the settlor who wishes to specify an exclusive method of revocation, but also reaffirms the importance of the settlor’s intent when determining whether or not revocation is valid.

House Bill 14-1322 also adopts the statutory concepts of “trust advisors” and “directed trustees” and adds a non-exhaustive list of duties and powers applicable to directed trustees and trust advisors. A directed trustee is a person who is named in the trust as trustee, but whose actions are subject to the direction of a named fiduciary who is in charge of investment decisions on behalf of the trust. Often this named fiduciary is a trust advisor. The trust advisor will assist in the management and investment of trust property. The bill also defines the term “excluded trustees.” An excluded trustee is simply a directed trustee who, under the terms of the trust, must follow the direction of a trust advisor whereas some directed trustees have discretion over whether or not to follow the advice of the trust advisor.  

Before this Bill was passed, the Colorado Probate Code provided a set of specific and general powers in Title 15, Article 1, Part 8 of the Colorado Probate Code, which applied to all persons acting in a fiduciary capacity and which remains applicable after House Bill 14-1322. The provisions in House Bill 14-1322 allow a settlor to establish a trustee-beneficiary relationship with trust advisors, affording the trust advisor the ability to exercise the powers generally afforded to trustees and other fiduciaries. House Bill 14-1322 also imposes particular duties on trust advisors. For example, the bill explicitly states that the decisions of a trust advisor are subject to the Colorado “Uniform Prudent Investor Act.” The Bill also creates reciprocal duties among the trustee and trustee advisor, which require each to keep the other informed about the administration of the trust.

Overall, House Bill 14-1322 made several changes to the Colorado Probate Code, but for the most part they seem to clarify administrative procedures and fiduciary duties of individuals acting under a trust. If you have any questions about how these changes might affect your estate planning documents, please feel free to contact our office.

Estate Planning and Charitable Intentions

Posted on by katemley

For many reasons, people are making a greater effort to make sure that their estate plan has an effect on both their own family, and a variety of charities.  The New York Times recently ran a piece entitled In Estate Planning, Family Isn’t Always First by Caitlin Kelly that said as much.  While many still aren’t making an effort to put together estate plans for the efficient administration of asset transfer at death, many, many more are at a higher rate than in years past.

It is mere speculation to think that charities have done a better job educating the populace about the benefits of giving to their organization during and after the recession.  Or, perhaps the advent of tools like Donor Advised Funds such as those offered by Fidelity, T. Rowe Price and Vanguard, have changed the giving landscape.  Regardless, clients seem to be interested in either creating a legacy or benefiting many of the same organizations they worked with closely during life, through their estate plan.

Both the client and the estate planner should have an in depth discussion about who the client is ultimately trying to benefit.  It is critically important for the estate planner to make a proper determination about the ultimate beneficiary of the client’s estate plan.  This is true if the client has a long history of giving to a particular organization, or even if the client decides that an organization is worthy of receiving their assets at death, but has never directly given to that organization.

For the sake of explanation, take this example.  If a client indicates that he or she wishes to benefit the United Way, problems could arise if the estate plan merely transfers assets at death to “United Way.”  Did the client intend to benefit the global organization, or a local chapter of the United Way?  While the answer to this question might seem obvious if the client had a long history of involvement with her local chapter of the United Way organization, it may not be obvious if she deemed them to have a worthwhile purpose that she planned to benefit with a bequest from her estate, even though she did not benefit the organization during life.

A general goal of estate planning is to inject efficiencies into the process of asset distribution at death.  Lack of clarity regarding charitable intent can make estate administration grossly inefficient.  If the Executor of the estate, or Trustee of the client’s Trust is unsure of the exact beneficiary of the estate, he or she may have to seek guidance to properly abide by their fiduciary duty under the law to properly administer the estate.  That fiduciary duty could result in request for Court interpretation of the Last Will or Trust, an inefficient process, to say the least.  The Court process could be both time consuming, and costly to all involved.

It is certainly possible to reduce the likelihood of confusion during estate planning.  A good estate plan drafter should do some homework.  Information from the client should be gathered to find out more about the organization that is to be the recipient of the client’s estate distribution.  There are times when the organization may simply not be a viable recipient of the estate bequest.  While many charitable organizations do great things, some of them are tenuously in existence, at best.  Perhaps one individual effectively runs the charity and if something happened to that person, the entity would shut down.  If this is the case, the estate planner should draft accordingly to allow the Trustee some flexibility. Perhaps the Trustee distributes assets to an alternative organization in existence at death.  Or the bequest lapses if the organization no longer exists.  All of this information can be included in the plan.

To prevent the type of confusion illustrated above in the United Way example, the estate planner should clarify the client’s wishes and investigate the organizational structure of each charity.  It could be that there is one umbrella organization where all funds are directed, but noted as benefitting a particular geographical division of the organization.  Some entities are really an amalgam of multiple regional charities that are loosely held together and merely market together without having a structural entity controlling them. 

Upon investigation, the estate planner should be able to learn how to properly draft the charitable bequest.  That bequest should include the proper legal name of the entity and its Federal Tax Identification number.   It may be helpful to the Executor or Trustee to also include a current address and phone number in the beneficiary designation.  The planner should also include directions regarding what happens if the organization either no longer exists or if it has been acquired or absorbed into a successor organization.  All of these events are very possible, especially when the plan preparation is removed by many years from the date of death.

If you have questions about how you can properly plan for charitable distributions at death, or any other estate planning questions, please contact our office.