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Commentary and Analysis Regarding Colorado Law

Planning with Retirement Assets

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For many people, their retirement assets, such as IRAs and 401(k) Plans are their most valuable assets.  Therefore, it is particularly important to plan carefully for what will happen to these assets at death.  Doing so is tricky because most of these plans, with the exception of Roth IRAs and Roth 401(k) Plans, are subject to income tax as withdrawals are made from them.  Also, the rules regarding distributions from these plans are rigid.  The following are a few examples of issues to consider:

Surviving Spouse: When retirement assets are left to a surviving spouse, the surviving spouse has a variety of options.  One option is to rollover the retirement plan into the spouse’s own IRA.  The surviving spouse then has all the opportunities that the spouse would have if the assets had originally been contributed to the IRA by the surviving spouse.  The surviving spouse can withdraw all of the assets and also can leave the assets to whomever he or she chooses.  This may be appropriate in many cases, but not always.  For example, if each spouse has children from a prior marriage, they may want to leave the retirement plans held by the first spouse to die in trust for the surviving spouse so that he or she receives distributions from the plan during life, but the balance is designated to pass upon the surviving spouse’s death to the children of the first spouse to die.  The trust needs to be carefully crafted with the retirement asset rules in mind.

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PRACTICING IN THE PANDEMIC: Kara Godbehere - Special Counsel, Water Team

Kara Godbehere, Special Counsel, Water Team

The attorneys and staff at Lyons Gaddis continue to soldier on in this tenth month of the COVID-19 pandemic and the associated quarantines and work from home arrangements.  We are turning our focus to the future and asking some of our people just why they do what they do, how the past ten months have made them better at what they do, and how they will challenge themselves in 2021.  Their answers continue to reinforce the Core Values of Lyons Gaddis:  Trust | Respect | Community | Excellence

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COVID-19 Legal Update for 2021

Unfortunately, as we complete the first month of 2021, the COVID-19 pandemic is still surging and many of the laws related to it changed on January 1, 2021. This article surveys a few of those laws, but is by far not an exhaustive list or a complete analysis of all of the new laws. Please give us a call if you have any specific questions related to the COVID-19 laws or otherwise.

Colorado Healthy Families and Workplace Act

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Employer’s Questions on Mandatory Vaccinations Answered

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On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised COVID-19 guidance effectively permitting employers to implement mandatory COVID-19 vaccination policies for employees as long the employer: 1) follows accommodation requirements for disabilities and religious beliefs; and 2) allows employees to receive the vaccine from a third party that does not have a contract with the employer.

Mandating Vaccination is Generally Permitted under the ADA

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Lyons Gaddis Announces Election of Two New Shareholders

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Lyons Gaddis – is thrilled to announce that Chad Kupper and Jeffrey Rose have been elected shareholders in the Firm effective January 1, 2021.

This class of new shareholders represents the next generation in the Firm’s region-leading legal team.  Managing shareholder, Cameron Grant, stated, “I could not be happier to have Chad and Jeff as shareholders at the firm.  Each has continuously shown their talent in delivering stellar legal work, providing value to clients on the business side, and carving out niches for themselves in their practice areas.  In addition, they are simply great people, exhibiting qualities that make them leaders in the legal industry and within the firm.  Congratulations!”

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Are My Injuries Serious Enough to Make a Claim?

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There are times when a person is so severely injured in an accident there is no question whether or not to file a personal injury claim. The amount of money, time, and misery experienced because of the accident makes the need for compensation obvious.

But this isn’t always the case. Sometimes, even with injuries, victims aren’t sure whether a claim is necessary.

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Weld County Land Use Changes (2020)

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Current and future landowners of real property within unincorporated portions of Weld County will soon have a new comprehensive plan along with new zoning and subdivision codes to consider when planning for potential uses and possible division of their lands. On November 9, 2020, the Weld County Commissioners heard the final reading of County Ordinance 2020-13, to enact a new Weld County Code Chapter 22, for the Weld County Comprehensive Plan (for ease of reference, the “Comp Plan”). Then on November 16, 2020, the Commissioners heard the final reading of Ordinance 2020-16, to enact an amended Code Chapter 23, regarding Zoning, and an amended Code Chapter 24, regarding Subdivisions.

Obviously, Weld County personnel and elected officials have devoted a lot of time and effort in crafting the new Comp Plan in response to an anticipated doubling of the population of Weld County over the coming decades and the desire for orderly growth. The new Comp Plan sets out several goals, the major ones being to steer future industrial and commercial development to areas closer to major highways and intersections, and to steer larger developments to areas within three miles of municipalities. The County has created a Comprehensive Plan Map which illustrates the vision of areas appropriate for various types of future development. Comprehensive Plan Map  

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Your Next Deed May Be a Special Warranty Deed. You May Have Questions.

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Colorado has four statutory deeds: General Warranty Deed, Special Warranty Deed, Quit Claim Deed, and Bargain and Sale Deed. Historically, General Warranty Deeds were the most prevalent and preferred since they grant the broadest protection for buyers as their sellers are warranting the title to the real property since the beginning of time. Special Warranty Deeds limit the warranty of title to the period that the seller owned the real property. Quit Claim Deeds give no warranty of title – the buyer gets only what the seller had at the time the deed is signed. Bargain and Sale Deeds also offer no warranty of title but do transfer the title to the seller at that point in time as well as title that the seller acquires after the date of the Bargain and Sale deed.

Then in 2019, Colorado enacted a new statute that allowed deeds to be subject to “Statutory Exceptions” which are composed of

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Gift and Estate Tax Uncertainty

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Gift and estate tax uncertainty is not new.  Over the past several years, we have seen the amount a person can leave free of estate tax utilizing their estate tax exclusion amount rise from $600,000 in 1997 to $11,580,000 in the year 2020, with several stops in between.  We have had one year of estate tax repeal, in 2010.  In 2012, we were on the brink of the estate tax exclusion amount dropping from $5,120,000 to $1,000,000, but the law was changed at the eleventh hour to prevent that from happening. 

Even the current law contains a provision that will cause the exclusion amount to drop to $5,000,000 plus an inflation adjustment in the year 2026 (resulting in an exclusion amount of approximately $6,000,000). 

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Take the Gain, Pay the Tax and Run?

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Each Presidential candidate has put forth a proposed plan for Federal taxation of long-term capital gains which, if passed into law in 2021 or beyond, could have major impacts on your decision regarding the timing of sales or transfers of appreciated capital assets.  

1. Mr. Trump has proposed reducing the maximum long-term capital gains tax rate from the current maximum of 20% to 15%. Assuming you sell capital assets in 2020 and have a taxable gain amount greater than $250,000, you’d also owe the Net Investment Income Tax (NIIT) percentage of 3.8% on the amount over the $250,000 threshold (if married, $200,000 for singles), for a combined tax rate of 23.8% on the long term capital gain. Obviously, if Mr. Trump’s plan to reduce the maximum tax rate to 15% is adopted in 2021 by Congress, your tax bill would be favorably impacted if you wait until 2021 or later to sell the capital asset.

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Financial Danger Ahead: See Your Financial Advisor/Attorney Now

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Assuming a regime change in Washington, the Biden tax plan proposes monumental changes that will have a massive impact on how many individuals (this means you) have structured their estate plans and finances for decades. Some of the things that should be discussed NOW with your financial consultant:

 

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Climate Change Impacts on Colorado Water Users

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Recent fires and high temperatures across the West may have water users wondering what rising temperatures and sustained drought conditions might mean for Colorado water users.  While only time will tell, it’s relevant to note that the summer of 2020 was one of the hottest and driest on record.  The month of August was one of the top ten warmest Augusts on record according to the National Oceanic and Atmospheric Administration’s “August Climate Summary,” with 26 days above 90 degrees Fahrenheit and 17 days above 95 degrees!  Denver received only 0.35 inches of precipitation in August, which is 1.34 inches below normal, and there were only 5 days total during the month with measurable rainfall at all.

What does this mean for Colorado water users?  Changes in temperature and precipitation can impact snowpack, length of crop seasons and quantities produced, wildfires, and pests, just for starters.  According to the US EPA, snowpack in the western United States has been decreasing since the 50’s, and the amount of snowpack measured in April at Colorado sites specifically has declined by 20-60%, on average.  Diminishing snowpack can mean less spring/summer runoff, which typically provides much of the water needed by agricultural and municipal water users.  Earlier runoff can mean changes in the priority system relied upon by Colorado water users, as many decrees for reservoirs (typically relied on to capture spring runoff for later summer use) have limitations on when such storage can start and when it must stop.  Rising temperatures can also increase evaporation from soil, crops, and storage reservoirs, meaning more water is lost to the air than usual.  Soils may become drier as evaporation rates increase, which can mean they retain more water when there IS precipitation so that less water is ultimately flowing into the state’s stream systems.  Changes to Colorado snowmelt, rainfall, and temperature patterns may also impact Colorado’s farms and ranches.  Increased evaporation can increase irrigation demands and mean that some farms change to dry land farming, which typically decreases crop yields.

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What Should You Do After a Motorcycle Crash

Motorcycle Crash

3 Things You Should You Do After a Motorcycle Crash?

Motorcycle crashes tend to be devastating and result in significant injury. The moments after a motorcycle crash and the days and weeks that follow are challenging. What you do during this time affects your physical and mental recovery, as well as your opportunity to receive compensation for your injuries.

In many cases, the person or people involved have no choice but to put all of their other concerns on hold and seek immediate emergency medical attention after a motorcycle crash. But following the initial assessment and emergency response, there are several things you can do to improve the odds you’ll receive compensation for your medical treatment, loss of income, and the pain and suffering you endured due to your injuries.

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Should I File a TBI Claim?

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Traumatic brain injuries (TBI) can have catastrophic consequences. These types of injuries change can often change a person’s life forever. TBIs can affect a person’s ability to work, drive, interact with friends and family, and lead what was previously their normal daily life.

One of the most common causes of a TBI is auto accidents. According to the CDC, there are more than 5 million Americans with TBI-related disabilities and many of them endured these injuries in vehicle accidents.

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Should I Accept a Settlement Offer from an Insurance Company after an Accident?

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If you’ve recently been injured in an automobile accident, chances are you’ve received a call from the insurance company. Insurance providers representing negligent drivers are quick to contact accident victims. Their goal is to convince injured parties to settle out-of-court and usually for far less money than they’d receive if they waited.

In nearly every case, this initial insurance settlement offer is unfair and it’s an attempt to avoid paying you what you deserve. But is it ever smart to accept a settlement offer from an insurance company if you’ve been injured in an accident?

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Colorado Water Right Abandonment List

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The State of Colorado prides itself on its system of water management. Situated in the arid American West, a once novel priority system was established for equitable water distribution. This prior appropriation system allows the delivery of water to senior users basing the order of use on priority date, not location or proximity to the water source. This system is aimed at allowing water to flow to its most valuable use, preventing speculation, while maximizing beneficial use. The Decennial Abandonment List represents one of the system's checks to make sure that water stays in use. Kara Godbehere of Lyons Gaddis recently was interviewed by KUNC, Community Radio for Northern Colorado regarding the Abandonment List. Click here for the full article and interview. 

If you have a water right that appears on the Decennial Abandonment List or would like more information on the process, the best course of action is to hire a water professional to defend your right from abandonment. Consider hiring one of the Lyons Gaddis water team for the best results. 

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Protecting Water Rights from Calls

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Water rights in Colorado are prioritized and administered based on the year of their decree and date of appropriation. The oldest decreed water rights are most senior and are entitled to divert their decreed flow rate when water is in short supply. If there is not enough water in the stream at their diversion point, they can place a call for the delivery of water against junior water users to satisfy their full demand. The State Engineer and Division Engineers can also shut down water diversions that cannot be adequately administered to protect other water users.

In many parts of Colorado, the streams have been over-appropriated for 100 years or more at certain times of the year, and calls for water rights may be as senior as the 1860s. Water rights on the main stem of the Yampa River had never been called out until 2018. It happened again in 2020. Those highly publicized calls were placed to protect water rights decreed in 1951 through 1963 near Dinosaur National Monument. The calls lasted about 23 days in 2018 and only ten days in 2020, assuming the early September snowstorm puts an end to calls this year. Those calls would have lasted longer if it had not been for tremendous cooperation between the water users, Division Engineer, Tri-State, Colorado Water Trust, and the Colorado River District.

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Times Call - Longmont Housing Authority

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In addition to serving as Co-Managing Shareholder of Lyons Gaddis, Cameron Grant is also the Chair of the Longmont Housing Authority.  This extracurricular pursuit allows Cameron to bring his real estate and housing expertise into play as he helps the organization serve Longmont residents in need of affordable housing.  Cameron is quoted extensively in this Times Call article regarding the restructuring of the Housing Authority and its new relationship with the City of Longmont.

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What If I Was Hit by an Uninsured Motorist

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In an ideal world, vehicle accidents would never happen. And if they did, everyone involved would have enough insurance coverage for all the damages that are caused. In reality, this is not the case and many people are involved in crashes caused by the negligence of an uninsured or underinsured motorist.

What should you do if this happens to you?

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Aurora Purchase of Northern Colorado Water

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Recently, the City of Aurora entered into a contract to purchase 119 shares in the Whitney Irrigation Company from BCI Waterco, LLC, an affiliate of the Broe Companies. Some are concerned that this purchase signals a renewal of water raids from the Denver metro area into northern Colorado water supplies. However, the Denver metro area water needs are on a scale that water providers want to purchase and assemble large blocks of water.

It is not efficient or economical for metropolitan water providers to purchase small amounts of water and then transport that water to the south. Economies of scale discourage such patchwork purchases where options to make a single purchase of a larger quantity of water exist. The Aurora purchase is for shares with an already quantified historic consumptive use of 1,629 acre feet for a purchase price of more than twenty-six million dollars. The shares historically irrigated approximately 1,100 acres.

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