Probate is the legal process of settling a loved one's estate after they have passed away, whether they died with or without a will. There are some drawbacks to probate that are inherent in the process. One of these drawbacks is time consumption.
The probate process can take years to conclude, even in some simple cases. And all this time, the estate's heirs will have to go without often much-needed assets until the process has been completed.
Nevertheless, the probate process is necessary to ensure that if there is a will, it is valid and was actually written by the person who has passed away, and that the decedent's creditors and final taxes are paid from his or her estate.
Probate is also necessary to ensure the transfer of property from one generation to the next and that those legally entitled to inherit from the decedent's estate do so.
In Colorado, a formal (full) probate process is available to any estate, regardless of how little or big it is. But, a small estate probate proceeding is only available to estates that meet certain requirements.
So, if anyone can do a full probate, why would anyone do a small probate proceeding? The answer is undoubtedly because it is cheaper and quicker.
To qualify for a small estate probate in Colorado, the estate must not contain any real property (i.e. land, homes, buildings, etc.) and the decedent's personal property must less than $66,000.
With a small estate probate, assets can simply be collected by obtaining what is called a small estate affidavit, essentially skipping the probate process completely.
Once the decedent's heirs have obtained the estate's assets, they can then be distributed in accordance with the decedent's will, or Colorado intestate succession law if there was no will.
Colorado also has an informal probate process for estates where the decedent left a valid will that is expected to go uncontested, and for which a qualified personal representative has been appointed. This process allows the estate's heirs to skip many of the formalities involved in a formal probate process and to settle the estate without court supervision.
Even if the estate qualifies for either a small estate or an informal probate based on the requirements above, you may still want to consider doing a formal probate for several reasons, for instance:
One of the reasons why you might want to do a formal probate, even if the estate qualifies for a small estate or informal probate, is if you don't know (or you are unsure if you know) all of the decedent's creditors.
As a general rule of thumb, with a formal probate, you will place a notice requesting that the decedent’s creditors get in contact with you. But, with a small estate or informal probate, you have to find and notify the descendant’s creditors yourself.
If you leave out a creditor in that process, you may have to start the entire process over. So, it is really important to consider how confident you are that you know who the decedent's creditors are before you start a small estate or informal probate.
Perhaps the most significant reason to do a full probate when the estate qualifies for a small estate or informal probate is because you anticipate some “troublesome circumstances”. Small estate and informal probate procedures are designed simply to transfer ownership of assets to the people who have been designated to own them next, subject to any debt.
There are very few other powers in a small estate or informal probate. They are simply conduits for the transfer of assets. However, in a full probate, the personal representative has all kinds of powers, for example:
So, if you anticipate encountering any difficulties or conflicts during your administration of the estate, it is important to consider doing a full probate instead of a small estate probate, regardless of the value of the estate.
For assistance deciding which Colorado probate process is appropriate, consult with an experienced Colorado probate attorney who can walk you through the factors mentioned above and help you figure out what will work best for you.