Why Do You Need Probate?
When a loved one passes away, his or her estate typically goes through probate. This is a legal process that may be necessary for people who have created a will or for those who have not created a will.
NOTE: If you want to help your loved ones avoid probate after you pass away, you may consider creating and funding a revocable trust. Fully funded revocable trusts do not go through probate.
Probate is not designed to make life difficult for those who have survived the deceased person and it is not meant to drag out the process of distributing that person’s possessions. It is meant to protect the estate and assets of the deceased person and ensure that the estate is properly distributed – either according to the person’s will or as prescribed by the laws of intestacy if no will exists.
In Colorado, the probate process is often very simple and straightforward, especially if there is a valid will and no one is contesting that will. Unfortunately, the probate process can also be lengthy, complicated and expensive if:
• There is no will and it is difficult to determine who are the decedent’s heirs.
• The beneficiaries who are included in the will disagree on asset disposition.
• Certain people are left out of the will and they initiate a will contest to attempt to obtain a portion of the estate.
In Colorado, probate will be handled in one of three ways depending on the size of the estate and how the contents of the will are acknowledged by beneficiaries:
1. Small estates with no real property, valued at less than $70,000: an heir to the deceased person can use an Affidavit for Collection of Personal Property to collect assets from the person or institution that has control of the assets. The person must prove they are entitled to the assets. The assets will be distributed according to the will or intestacy laws if there is no will. The courts are not typically involved in this process.
2. Uncontested estates: the will may move through informal probate. In this process, the court will appoint the person named in the will to serve as personal representative of the estate. If the deceased person did not have a will, the court will choose someone to act in this capacity. The personal representative is responsible for gathering and distributing the assets and completing all business affairs including paying off any creditors during the allowed time frame. Formal notices about the estate are sent to the heirs and beneficiaries and are also publicly published.
3. Contested estates and invalid or questionable wills: the estate will move into formal probate. A personal representative is appointed and the will is admitted to probate after a hearing and notice to the interested persons. In some cases, the personal representative often needs court approval for transactions. This is to ensure that disputes are settled regarding any aspect of the will or to satisfy creditor claims. The court may also need to supervise the entire process in contested cases.
The probate process will be considered complete when all of the deceased’s assets have been distributed, all bills are paid, tax returns are filed and taxes paid. Informal and formal probates will remain open in the courts for at least 6 months after the decedent’s death.
If you need more information about Colorado probate processes, contact the Denver estate planning lawyers at The Brown Law Firm, LLC: (303) 339-3750. We can advise on the proper steps regarding probate in Colorado. You can also send us a message online to set up an appointment.