The Colorado probate process is a legal process that both scares and frustrates the public, because there are many probate myths that surround the process. The purpose of these probate FAQs is to help dispel some of the most common probate myths, remove some of the fear associated with the Colorado probate process, and explain in plain language how probate works.
Ball Morse Lowe is pleased to present this informational and educational FAQ on Colorado's probate procedure. However, this is not a substitute for legal advice. If you are in need of legal advice related to the steps of Colorado probate or estate planning, schedule your free consultation with Ball Morse Lowe now.
Probate in Colorado is a legal process that includes several steps. We will explain them in more detail. However, the goal of the probate process is to build a general accounting of all of a decedent’s assets, which can include both real and personal property, (also known as the decedent's assets or “estate”) as well as all debts a decedent may be owed or may owe to outside creditors. Following the completion of certain steps within the probate action, the personal representative or executor of the estate may then distribute the decedent's assets to the various heirs or named beneficiaries.
There are three basic probate actions in Colorado.
The goal of the probate process is to build a general accounting of all of a decedent's assets, wich can include both real and personal property, as well as all debts a decedent may be owed or may owe to outside creditors.
Although the goal of the probate process is the same, how each type of probate works is a little bit different. Small estates are defined as a collection of personal property worth less than $70,000 (as of 2020) and with no real property (i.e., no houses or land, etc.). When this is the case, a probate form known as a small estate affidavit is completed and filed with the probate court. Following the filing and court approval of a small estate affidavit, then, heirs may collect the decedent's assets. In a small estate, the probate court process is minimal.
Informal probate involves filing certain probate forms with the probate court in the county where the decedent lived at the time of their death. Informal probate differs from formal probate because the probate court isn't as involved with the probate action. This is because there is no expectation of the will being contested (if there is one) or any other type of serious issue. If there is no will, the administration of the estate follows a clear path of succession. Colorado probate law explains how the decedent's assets will be inherited if someone dies without a will. For example, for someone who died and was only married one time and only had children within that marriage, the decedent's spouse would inherit everything. If that person had children with someone other than their spouse, the spouse would inherit the first $225,000 of the intestate property plus half of the balance, and the children would inherit everything remaining. The informal probate procedure is generally less expensive and less time-consuming than the formal probate procedure.
The formal probate procedure is the administration of the estate that involves the most involvement with and attention from the probate court. Formal probate may be required if the estate is complex in nature or because there could be some type of probate litigation such as someone contesting the will or the identities of all of a decedent’s heirs. The formal probate process will likely be required in circumstances where an intestate estate may not have a clear succession. For example, a determination of heirship hearing must be conducted even if there is a will. During a determination of heirship hearing, all potential heirs who were notified, and all must be notified, are allowed to express their interest in the decedent’s real property. For the property, determination of heirship is important. If a title or deed is issued without proper heir determination, legal issues may arise for the person to whom the property was titled or deeded. There may also be estate tax law matters that must be concluded.
Both the informal probate process and the formal probate process take a minimum of six months to complete. The heirs, potential heirs, beneficiaries or devisees (if there is a will), debtors, creditors, and potential creditors must be notified of the death of the decedent and of the commencement of the probate action. That notification involves a specific probate form and process. Since we will discuss wills specifically, we will skip that part for now, but suffice it to say, the personal representative has specific duties they must fulfill such as the collection of all of the personal and real property of the decedent, reviewing claims filed by creditors, securing payments from debtors, ensuring that valuable property is properly assessed, if required, completing federal and state tax returns for the decedent as necessary, and preparing and submitting to the probate court a final accounting of the administration of the estate after the decedent's assets are distributed to the appropriate heirs and beneficiaries. The heirs and beneficiaries may not access the assets until all debts and taxes have been paid.
To probate a will in Colorado, it is important to determine if the administration of the estate qualifies as an informal estate or a formal estate. This can be a difficult determination. If you're not sure what type of estate you may be dealing with and what kind of probate proceedings you should commence to have a will probated, Ball Morse Lowe is here to help. As experienced probate attorneys, we can help you determine which probate process is more appropriate. To learn more, schedule your free consultation now.
Once you've determined whether you will file an informal probate action or a formal probate action, there are specific probate forms that must be completed and filed with the probate court along with the filing fee of $199.
For informal probate, you must complete and file:
For formal probate, you must complete and file:
These probate forms are available on the Colorado Judicial Branch website. Once the appropriate forms are filed and the filing fee is paid, a hearing date is assigned. The decedent's will shall be reviewed by the judge overseeing the probate action to determine if it meets the requirements of the state's probate law and is considered valid. Heirs, potential heirs, and named beneficiaries have the legal right to contest the will. If the will is contested, it makes the formal probate process longer and more expensive.
If there is no will, it is referred to as an intestate estate. The probate process for an intestate estate may still qualify as informal if there is clear succession. However, some of the decedent's assets will not be required to pass through the probate process even if the decedent did not go through an elaborate estate planning process. For example, life insurance proceeds do not go through probate. They go directly to the named beneficiary. Funds that are in the decedent's IRA, 401(k), or another type of retirement account also won't go through probate. Accounts that take advantage of a payable-on-death feature will be paid out directly to the named beneficiary and avoid the probate process. Real estate conveyed by a transfer-on-death deed will also pass without requiring the full probate process. Finally, any real estate or other titled property that is owned by another person in joint tenancy will avoid the probate process (though there are separate requirements to fully secure the title to these assets).
Past that, if there is no will, the informal probate procedure is used when there is clear succession and there is no expectation that an heir will contest the matter. Meaning, the personal representative can easily determine to whom assets should be given and there is no reason for the personal representative to expect that an heir will contest.
If there is no will and it may be difficult to determine who will inherit from the intestate estate, or if there is a concern that an heir or potential heir may contest the matter, formal probate is required. The decedent's assets explained above still avoid probate as well.
If there is no will, the informal probate procedure is used when there is clear succession and there is no expectation that an heir will contest the matter.
Are the Rules of Probate Different If the Estate is Small?
The probate process for small estates is simplified, especially when comparing it to both the informal probate and the formal probate procedures. The probate procedure includes completing a small estate affidavit and filing it with the probate court. Once this is completed and approved by the court, the heirs may collect the decedent's assets. This is much quicker and less expensive than both the informal probate and formal probate processes. The filing fee for a small estate affidavit is $83. The filing fee for the “Application for Informal Probate of Will and Informal Appointment of Personal Representative” is $199. The “Petition for Formal Probate of Will and Formal Appointment of Personal Representative” is $199.
The probate court, other than receiving and approving the affidavit, is not involved in a small estate. The court plays at least a small part in informal probate and has a much larger role in formal probate. Additionally, the decedent's assets may be collected by heirs immediately after the affidavit is filed for a small estate. With both informal and formal probate, that is not the case. There are certain steps of Colorado probate that must be followed before assets may be distributed to heirs, including the personal representative paying the debts of the estate and handling any outstanding tax matters.
The Colorado probate process can become complicated. It depends on the complexity of the estate itself as well as whether heirs, potential heirs, debtors, creditors, and potential creditors may object (or contest) some part of the probate procedure. Complexities can include estate tax law matters, owning real estate both in Colorado and outside of the state, owning part or all of a business, multiple versions of a will or an invalid will, or the absence of a will along with the time required to identify and locate all of the required heirs according to Colorado probate law, etc.
There is no legal obligation for you to have an attorney for a probate action. The Colorado Judicial Branch offers all of the probate forms online for anyone who wishes to represent themselves. However, the probate court that you must file the probate action in cannot provide you with legal advice. If a creditor objects or if an heir or potential heir contests, you will be required to either represent yourself or hire a law firm to represent you.
Now that you know more about how probate works, you may wonder whether you should handle the probate action on your own. The answer is a personal one. The probate court and its staff cannot give you legal advice related to the administration of the estate. The Denver Probate Court Pro Se/Self-Help Centers provides telephone-based assistance related to probate matters. The information provided is general in nature and is related to the probate procedure. However, if a creditor objects or if someone contests the will or the administration of the estate, you will still be required to handle the matter on your own. Before making the decision on whether you should represent yourself in a probate action, you should consider whether it is likely that probate litigation might occur.
Do I need a Trust or Will?
The Colorado probate process can be very difficult to manage on your own if you live out of state. As a personal representative, there are several steps that must be completed in addition to the final accounting. There are also specific notifications that must be made and hearings that you must attend. If you live out of state, you may find it much easier and less stressful to work with an experienced probate law firm like Ball Morse Lowe to get through the estate administration process.
In Colorado, it takes a minimum of six months to probate a will. If the will is contested or if there are other complexities involved, the process can take longer.
We know that it feels like probating a will takes a long time. The time is necessary as it gives creditors and heirs time to be notified of the death and the ensuing deadlines and court dates. Creditors have a legal right to file claims against the estate. It also provides the personal representative with time to complete several necessary steps such as the collection of personal property and inventorying it. If there is a concern by the probate court, the personal representative, an heir, or an interested party about the will's validity or its contents, this can make the process even more time-consuming.
The time is necessary as it gives creditors and heirs time to be notified of the death and the ensuing deadlines and court dates.
Colorado probate costs depend on whether you have a small estate or if you are filing for informal or formal probate. The cost of a small estate affidavit is $83. That cost is a filing fee. The initial filing fees for both informal and formal probate are $199. There are other filing fees that may be required, especially for formal probate, if the administration of the estate is more complex or if probate litigation occurs.
If you decide to hire a law firm to represent you in the probate action, you will pay a fee for the services rendered.
Generally speaking, probate lawyers are paid by the personal representative who made the decision to hire them. There are some probate litigation matters where the probate court may determine that the attorney fees of one party be paid by the other party.
No, lawyers are not paid from the decedent's assets or the proceeds of the estate. They are paid by the person that hired them. The exception to this is if the decedent named their lawyer as their personal representative. A personal representative is entitled to receive payment for their service from the estate. In this instance, if the named personal representative was their attorney, the attorney may be paid from the estate. This may also happen if there is a trust within the estate and the lawyer is named as the trustee.
Yes, with proper estate planning, you may be able to avoid the probate process. Some examples of tools you can use include:
Estate planning is a personal process. If you want to learn more about how you can avoid the Colorado probate process, schedule your free consultation with Ball Morse Lowe now.
For informal probate, the administrative staff will examine your application to determine if it is properly filled out. If it is, a fiduciary will be appointed to monitor the personal representative's progress in the administration of the estate. A notice of the commencement of a probate action will also need to go out to those who need to know about the death. There will be hearings scheduled that the personal representative must attend. Heirs and creditors may also attend.
Formal probate is similar, but a judge will be assigned to the probate action. The judge is more involved in overseeing the action. If there is a will, the judge determines if it is valid. Additionally, the judge hears objections, contests, and other probate litigation that may arise.
Yes, the personal representative does often need to be present during hearings at a probate action. This is because the personal representative has the legal responsibility to act on behalf of the estate. Much like any other type of court hearing, it is important for a party who is involved in the matter to be present.
If you live out of state and you are named as a personal representative, you should consider hiring a law firm to represent you. While you still need to be present for certain probate action hearings, you will still have peace of mind knowing that you have a partner in the State of Colorado who understands probate matters and can work with creditors on your behalf and also take care of any estate tax matters.
Probate forms are a necessary part of the probate process. The good news is that the Colorado probate process relies on standard forms that are found on the Colorado Judicial Branch's website.
Yes, probate forms are required.
For informal probate, you must complete and file:
For formal probate, you must complete and file:
The initial application for informal probate or the petition for formal probate must be paid along with the filing fee of $199.
It isn't always simple to determine which Colorado probate process is right for your needs. Small estates are often the easiest to identify because they are made up of personal property worth less than $70,000 and with no real property.
For informal or formal probate, it can be trickier. It can be difficult to ascertain whether someone may want to eventually contest the probate action. Even if everyone seems to be on the same page in the beginning, things may change. If you would like help determining whether you should file for informal or formal probate, schedule a free consultation with Ball Morse Lowe.