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Radio Interview With Bernie Greenberg

Did you know that most people will spend more time each year planning their vacation then they spend their entire lives planning their estate? It’s true and it is also dangerous for your family and hazardous to your money. In this radio interview, Kokish & Goldmanis attorney, Bernie Greenberg, discusses how planning your estate can save your family immeasurable heartache and literally thousands of dollars.

Experience Pros Radio Show Clip

At Kokish & Goldmanis, we love to hear from you, from our clients about how we can do a better job. Occasionally, our clients like to tell others about their experiences in working with us. Here is one of our clients on the Experience Pros Radio Show talking about his experience when he worked with us on his estate plan.

To listen to the entire clip, use the player below.

Disclosures

As seen in “Our Colorado News.” Written by John Kokish.

Anyone purchasing a home needs to have it inspected, not only by a general home inspector, but in many cases by a professional engineer, mold inspector, radon tester, or any other specialists trained to evaluate any other potential problem.

Sellers, whether using a real estate agent to list their homes, or whether they are handling the sale themselves, are wise to protect themselves by filling out in detail the Seller’s Property Disclosures for residential properties sanctioned by the Colorado Division of Real Estate.  This form, which can be downloaded from the division’s website, has become more detailed every year.  For the most part it protects both the buyer and the seller from any surprises.

Even so, certain rules regarding disclosures need to be followed if the seller wants to avoid being sued for failure to disclose known problems with the property.  As a general rule, the buyer and the inspector the buyer hires are expected to note problems that are obvious, known as patent defects, such as obvious cracks on the basement floor.  The problem comes in when there are latent defects, or defects that are not obvious that the seller failed to disclose, such as past water problems, leaks, hidden mold, or basement cracks which are covered up by carpeting.

Problems can arise when the seller discloses, or fails to disclose, something that may or may not effect a potential buyer’s decision on whether to purchase the property.  For example, if one of the parties that lived in the home committed suicide, or died of cancer, or was murdered, or abused his or her children.  These and similar issues will effect some purchasers’ decision to buy, but not others, because they are subjective, and really have nothing to do with the condition of the house.  Colorado law, specifically C.R.S. 38-35.5-101,  protects a real estate broker who does not make these disclosures from lawsuits, but does not protect the seller.  Disclosing these matters might be prudent for a seller to avoid problems down the line with buyers sensitive to those and similar situations that don’t affect the physical condition of the house but could have psychological affects on certain buyers.

Another tricky area is when a home inspector claims the home has a structural problem and the buyer terminates the contract based on that finding.  Assume that the seller then hires a professional engineer who finds there are no structural problems and that the house is structurally sound.  Should the home inspector’s opinion be conveyed to subsequent potential buyers or not?  One of the items on the Colorado Division of Real Estate’s website questionnaire is “Written reports of any building, site, roofing, soils, or engineering investigations or studies of the property”. This suggests that any such condition needs to be reported, even if overridden by a more competent professional, since a professional engineer is in a better position than a home inspector to determine the structural soundness of a home.  Tricky, but probably the first report should be disclosed and then followed up by the report of the professional engineer.

Bear in mind that the only matters that need to be disclosed are those within the knowledge of the seller at the time he or she is preparing the disclosure statement.  The latest version of the disclosure statement is extremely detailed and covers most areas that could present problems for a potential buyer.  To be safe, as a general rule, when in doubt, disclose, even if it hurts.  Specific problems, such as mold, termites, radon, and lead-based paint will be discussed in later columns.

Modifying Decision-Making Responsibility

Pursuant to Colorado Revised Statutes §14-10-131, a parent can request a modification of decision-making responsibility, when facts have arisen since the prior order or that were unknown to the court at the time of the prior order that demonstrate that there has been a change in circumstances of the child, or the child’s custodian, or the parent to whom decision-making responsibility was allocated, and the modification is necessary to serve the best interests of the child.  However, the statute requires that the Court maintain the current decision-making order unless certain specific circumstances are met.

When the Colorado statute governing modification of decision-making responsibility was modified in 1999, the legislature made it more difficult, in most circumstances, to prevail in an action regarding modification of decision making.  Essentially through this modification, the legislature clarified that except in certain cases which are set forth below, a parent who tries to modify-decision making responsibility has to prove that retention of the current decision-making responsibility order would endanger the child or children.  Specifically, the court looks to any endangerment related to the child’s physical health or emotional development to determine whether or not the harm likely to be caused by the change in the environment is outweighed by the advantage of the change to the child.  This is a very difficult standard to meet.

As discussed, a lower standard of best interests of the child will apply under certain specific circumstances.  Those occasions are:

  • The parents agreed to the modification;
  • The child has been integrated into the family of the requesting parent with consent of the other parent and such circumstance warrants a change in the decision-making responsibility;
  • There has been a change in parenting time pursuant to the child’s best interests, which justifies a change in decision-making responsibility; or,
  • A parent has consistently agreed to the other parent making individual decisions for the child that the other parent was to make individually or the parents were to make together.

Before the change in the legislation, many courts determined that modification of decision making authority could be viewed under the less stringent standard of best interests.  However, the change to the Colorado statute controlling modification of decision-making responsibility in 1999, made it very difficult, practically speaking, to obtain a modification of decision-making responsibility.

Therefore, if endangerment is not clear when looking at the decision making authority which currently exists, the party seeking a modification of decision making authority should look to the other factors (and listed in the statute) to explore a less stringent standard by which a modification of decision making authority may be successful.

John Kokish AV Rating

The AV rating is the highest rating an attorney can receive by Martindale-Hubbel. This rating is awarded by by Martindale-Hubbel only after years of thorough reviews from colleagues, peers, and members of the judiciary. Attorney John Kokish, as well as the law firm, Kokish & Goldmanis, P.C. has attained this AV Rating. Mr. Kokish achieved the AV rating many years ago, and has retained it throughout his career.  To learn more about this AV rating award by Martindale-Hubbel, refer to our video.