The Colorado probate process is a legal process that is used to finalize what happens to estate assets. The main question that everyone asks: can you handle the Colorado probate process on your own?
You are the only person who can answer that question. At Ball Morse Lowe, our goal is two-fold. Our first goal is to provide you with information about the probate procedure. We want you to have probate facts so that you can make an educated decision on whether you should represent yourself in probate court, either as the personal representative or as an heir. In short, we want you to have a general understanding of how probate works versus getting caught up in probate myths. Our second goal is to provide our services as experienced probate attorneys. If you decide that you do not want to handle the probate case on your own, we are here to help. You can schedule your free consultation now whether you are the personal representative or an heir or devisee.
Is Probate in Colorado Complicated?
Probate in Colorado can be complicated. It depends on the estate. As mentioned in the introduction, the probate procedure is a legal process handled by the district court located where the decedent lived when they died. The objective of the probate process is to finalize the distribution of estate assets. There are several steps of Colorado probate. How probate works depends on which type of probate procedure an estate would qualify to enter into. However, even in what seems to be a well-planned estate, there is no guarantee that a problem won't arise to complicate the situation.
In the formal probate process, the probate procedure is used for the collection of personal property as well as to notify creditors and potential heirs through the local newspaper. Those are just a couple of steps in the Colorado probate process. This process also addresses probate litigation, such as objections to claims by creditors and contests made to the will. It also requires a final accounting of the estate as well. For larger estates, it may require certain assets to be valued. It can become quite complicated.
The formal probate process may also involve a concept known as determination of heirship hearing. The potential heirs are notified of the decedent’s death. Potential heirs have the right to portion of the decedent’s real property. They may attend the hearing to assert their claims. This is an important and often complicated part of probate because if determination of heirship is not properly completed, any incorrectly issued titles or deeds could eventually be plagued with future legal issues.
Can I Handle a Probate Case on My Own?
The answer is: it depends. It depends on the type of probate procedure required and whether it is likely that something will be contested or whether there might be an objection filed. Another consideration is whether you feel as if you are mentally and emotionally prepared as the personal representative or heir to make it through probate in Colorado on your own. One of the benefits of working with a probate attorney is that you have someone who understands the legal process regardless of whether you are a personal representative involved in the various steps of Colorado probate, or if you are an heir who needs to contest the will.
If you are a personal representative, there are many steps that you will be responsible to fulfill, regardless of whether you are involved in a small estate, informal probate, or formal probate. Although the district court is not directly involved in small estates, there is still the signing of the small estate affidavit and the collection of personal property for distribution. Both informal probate and formal probate have multiple steps that must be taken. Failure to fulfill your duties could result in serious legal repercussions. The district court overseeing the probate case does not, generally, take ignorance of probate facts, versus relying on probate myths, as a defense.
As the personal representative, it will be your responsibility to place a notice in the local newspaper about the hearing for the probate case. The purpose of the notice is so that both creditors and potential heirs are made aware of the hearing. It will also be your responsibility to review claims filed by creditors to determine if they are legitimate. All debts and taxes must be paid out of estate assets before the remaining property can be distributed to heirs and devisees, even if there is a will. Unfortunately, that is one of the probate facts that many people do not know: that debts and taxes come before the distribution of estate assets. This probate fact can lead to many unhappy relationships if you are related to the decedent and the other heirs do not understand the probate process.
Should I Handle a Probate Case on My Own?
To answer this question, you must consider several factors:
- Do you have the time required for the collection of personal property and to handle the other required steps of Colorado probate?
- Do you have the necessary energy to review the claims filed by estate creditors?
- Do you have the emotional strength to get through the probate case, which could take as little as six months for both informal and formal probate cases or even longer if there are difficulties such as an objection or contest?
- Can you mentally and emotionally handle the possibility of current and long-term hard feelings that may result because some heirs believe in probate myths versus actual probate facts and think that you did something wrong when, in fact, you only followed probate procedure?
- Depending on the size and complexity of the estate, are you prepared to handle certain complex matters such as a final accounting or having certain pieces of property within the estate valuated, as well as completing taxes for the estate?
Completing the steps of Colorado probate is quite a process. It can be time-consuming and quite draining on an emotional level. If you are named as the personal representative, either through a will or appointed by the probate court, you do not have to do it on your own. You can partner with an experienced probate attorney for guidance. Although it may not change how some people within the family think of you, it can help lessen much of the stress associated with handling the probate case.
What If I Live Out of State?
Although you still have the right to represent yourself in a Colorado probate case, it can be very difficult to do so if you live out of state. There are numerous forms that must be completed throughout the probate process. Hiring a probate attorney to help you handle a probate case if you live out of state can be very beneficial, especially since you will have an attorney who has an understanding of the Colorado probate procedure.
What Are the Types of Probate in Colorado?
There are three types of probate in Colorado:
- Small estates. Small estates are defined as a collection of personal property with no real property, such as a home, worth less than $70,000 (as of 2020). With a small estate, no actual probate procedure is required. Instead, a small estate affidavit is completed by the personal representative. The personal representative swears that the estate is worth less than $70,000 in personal property with no real property. They may then distribute the assets either according to the will left by the decedent or according to intestate succession.
- Informal probate. Informal probate is a Colorado probate procedure where the district court isn't as involved as it is during the formal probate process. With the informal probate process, there is either a valid will or a clear line of descent from the intestate decedent. For example, the decedent had a spouse or no spouse but they had two children. Additionally, there is no expectation that the will or the inheriting of the assets will be contested. Finally, the appointment of a personal representative is expected and the person who will be appointed is qualified. The purpose of the probate court is to ensure that the probate procedure is followed and to ensure that the personal representative fulfills their responsibilities. Generally, informal probate takes about six months. Sometimes, it can take a little longer.
- Formal probate. Formal probate is used for estates where it is expected that someone plans to contest the will, the will may be declared invalid, or there are other issues or complications associated with the estate. The district court is more involved in the oversight of the probate case. The minimum amount of time that formal probate takes is six months. However, it can take much longer.
What Is the Cost of a Probate Attorney in Colorado?
There is no absolute way to determine what it will cost to hire a probate attorney for a Colorado probate case. It depends on several factors:
- The size of the estate. Generally speaking, smaller estates are less valuable. They may not take as long to go through the probate process since they may likely qualify for the informal probate process, especially if no contest is expected. This could make the process less expensive.
- Whether there is a valid will. Although Colorado probate does allow small estates and informal probate to continue without a valid will in place, probate can become more expensive and complicated for some estates if there is no valid will.
- Whether the will may be contested. If there is no expectation that the will could be contested, a probate case may take less time. When a probate case takes less time, it is generally less expensive.
- Whether the probate case is complex in nature. There are many considerations that could cause a probate case to be considered complex in nature: claims or objections from creditors, contests made by heirs, and assets located in different states or countries are just a few of the matters that could complicate a probate case.
It is important to note that the cost of a probate attorney is an investment in peace of mind to help you better understand the probate process as well as to assist you in navigating through the various steps of Colorado probate.
How Are Probate Attorneys Paid During the Probate Procedure?
Generally, the person who hires the probate attorney is required to pay. However, there are exceptions to this under Colorado law. For example, if someone who is considered a fiduciary to the estate causes a loss, the court may make them pay the attorney fees involved in probate litigation. If someone decides to contest the will for an absolutely frivolous reason, according to the court's ruling, the probate court may determine that they are responsible for paying the probate attorney fees associated with the probate litigation.
Ball Morse Lowe provides free consultations. To learn more about the Colorado probate process as well as attorney fees, schedule your free consultation now.
Should I Hire a Probate Attorney to Help Me Handle a Colorado Probate Case?
The decision to hire a probate attorney to help you handle a Colorado probate case is personal and depends on many factors, as you've learned. Remember that the probate procedure can quickly become complicated and overwhelming.
Before you decide to take on a probate case on your own, schedule your free consultation with our experienced and caring probate attorneys. We pride ourselves on providing individualized advice based on the facts for each situation.