Colorado Probate

Colorado Probate

When someone dies, his or her debts must be paid and their assets must be distributed to their beneficiaries. This includes the decedent"s real estate, bank accounts, stocks and bonds, automobiles, furniture, jewelry, and other property.

The total value of all the property and possessions the deceased leaves behind is known as his or her estate. Put simply, probate is the court-supervised process of wrapping up a deceased person's estate and distributing the remaining assets to his or her heirs.

A person"s last will and testament is a roadmap for the distribution of their assets and if there is a will, its validity must be verified by a probate court before it can be used to distribute the deceased person's assets. However, if there is no will, the deceased person's assets will be distributed according to Colorado intestacy laws during the probate process.

Does Every Estate Need To Go Through Probate?

In general, probate is needed whenever a person dies with property titled in their name and that needs to be re-titled before being transferred to their heirs. However, probate is usually not needed if the deceased person held all of their property jointly with his or her spouse. In this case, no probate proceeding will be necessary as the property can be transferred into the sole name of the surviving spouse.

Furthermore, if the estate's assets are only those for which the deceased person had designated a beneficiary, then again, probate may not be necessary. For example, life insurance policies, 401Ks, IRAs, bank accounts, and some real estate may be transferred directly to a designated beneficiary without having to go through a probate proceeding. However, if the decedent neglected to name a beneficiary or if the beneficiary died before the decedent, then a probate proceeding may still be necessary.

The Personal Representative (Executor)

The person who administers the distribution of the deceased person's assets is called the personal representative or executor of the deceased's estate and is a key figure in the probate process. If there is a will, it will usually name the person chosen by the deceased to act as the personal representative and the probate court will usually go along with this choice.

If the deceased did not leave a will and/or failed to nominate a personal representative to handle their estate, the probate court will determine who will fulfill this role. In practice, this duty usually falls to the most suitable or willing family member.

What is the Personal Representative's Role in the Probate Process?

The personal representative's job is to gather and assess all of the deceased person's assets and liabilities, pay his or her bills, and handle the distribution of the estate's assets to chosen beneficiaries, in accordance with the deceased person's will. In addition, the personal representative must see that the deceased person's final tax returns are filed.

The personal representative is accountable to the estate's beneficiaries, to whom he or she owes a fiduciary duty to properly supervise the administration of the estate and to safeguard the estate's assets for their benefit. The job of an executor is thus an important one. This is because it can preserve peace in the family and facilitate the transfer of wealth and property to the estate's heirs and beneficiaries.

Types of Colorado Probate Proceedings

Colorado provides three different types of probate, depending on the nature of the estate:

  1. Small Estates: Colorado permits an inheritor to claim certain property by merely filing an affidavit if the total value of the deceased's estate is less than $66,000. The person can be entitled to the assets simply by preparing a short document signed under oath called a Small Estate Affidavit and presenting it to the institution in possession of the assets.
    This process will allow for the probate process to be completely avoided. For example, presenting a Small Estate Affidavit to a bank that holds the deceased person"s bank account, along with a death certificate, should be enough to have the funds in the bank account released to you.
  2. Informal Probate: An informal probate is a streamlined process that does not require a personal representative. It typically requires less time, effort, and expense than a full formal proceeding. This type of probate only requires filing a will with the court and very little court supervision. But, in order to qualify for informal probate, there must be a valid and uncontested will and no unresolved creditor claims.
  3. Formal Probate: Formal probate will be required when a small estate or informal probate is not available, in other words, when the total assets exceed $66,000 and/or there are unresolved creditor or beneficiary claims. Formal probate requires a personal representative to be appointed and other requirements, such as a published notice to creditors, inventories, appraisals, and receipts.

Working With a Qualified Colorado Estate Planning and Probate Attorney

People often want to avoid probate at all costs. This is because probate can be both time-consuming and expensive. In many cases, probate avoidance can be achieved. But it's important to use an attorney who has knowledge of Colorado probate processes to be sure that everything is done correctly. Having to correct mistakes months or years later can result in considerable cost and inconvenience.

Furthermore, you are always well advised to seek the counsel of a qualified estate planning and probate attorney to assist you in determining whether your situation would permit you to use any of Colorado"s streamlined probate processes. For assistance with this, or any other estate planning or probate matter, contact an experienced Colorado estate planning and probate attorney.