The following Colorado probate law questions are provided for informational and educational purposes only. It is not intended as legal advice. To learn more about Colorado probate laws, court proceedings, or the probate process, schedule your free consultation with Ball Morse Lowe.
Do I need formal probate if I have a will?
Yes, a formal probate court proceeding is an essential requirement to have your will validated by the Colorado probate court before your heirs may collect the assets that they are rightfully entitled to receive. This process is generally referred to as the "administration of an estate." There are several steps involved even if you die with a will:
- Validating the will;
- Naming a personal representative;
- Determining which heirs may collect from the estate;
- Identifying creditors and providing them with a notice about the death; and
- Distributing the assets in a timely manner.
What happens if I don't probate an estate?
Whether or not there is a will involved, probate is legally required court proceeding to distribute the decedent's estate and to ensure that any and all of their outstanding affairs are brought to a sufficient close.
If there is a will, for it to have any effect and for the transfer of real property owned by the decedent, state law requires the will to be admitted to the probate court for approval. Intestate estates are also subject to probate proceedings as the claims of creditors and the rights of the surviving spouse, dependent children, and other heirs exist under state law. And, again, the legal title can only truly be changed through the probate court. Any heir who attempts to change the title without finalizing the court proceedings could find that their ownership is challenged and possibly lost in the future.
The probate process also helps ensure that the intestate heirs may collect from the estate without interference from creditors. Generally, before judicially confirmed heirs can collect, the debts of the estate, including estate taxes, must be paid. Then, the appointed personal representative may distribute assets to the heirs. This helps ensure that heirs are not sued in the future by creditors.
Do you need a lawyer to probate a will?
No, a lawyer is not required to probate a will. However, it is highly recommended for you to at least consult with an attorney to ensure that you are in compliance with the probate code and that you have a basic understanding of the Colorado probate process. After the will is admitted to the probate court, a personal representative is appointed and granted authority to begin the administration of the estate. The personal representative is required to handle many responsibilities:
- Take possession of and inventory every asset that belonged to the decedent;
- Collect all outstanding debts and payments due to the estate;
- Identify all heirs and creditors who are entitled to a portion of the estate;
- Manage claims, objections, and payments of creditors;
- Disburse real property and personal property in accordance with the will, state law, or court order;
- Prepare the deeds for real estate and other instruments necessary for the transfer of title; and
- Carry out all instructions and court orders and document the actions taken, as required, throughout the entire probate process.
While it is technically possible for the personal representative to probate an estate without an attorney, there are many stages, and the personal representative must have an understanding of the duties required and take all of the necessary steps to fulfill each duty. Having an attorney to guide them through each process and procedure while managing all of the details is strongly recommended because even the smallest mistake or oversight could prevent the estate from being distributed correctly. It could cause the probate court to deny the final settlement of the estate and request a dismissal of the personal representative from duty. Additionally, these mistakes, even though they are innocent in nature, can cause serious quarrels between family members and turn into litigation.
I don't live in Colorado. What should I do?
If you don't live in Colorado, you might find that representing yourself as the personal representative in a Colorado probate court is quite difficult. Having an attorney can help ensure that the burden placed on you is much easier to manage. The attorney of the personal representative has immense experience in knowing how to open a probate estate, when each form is due to be filed, and help you, as the personal representative, prepare for the particulars of each probate court appearance.
How long do you have to probate a will?
Colorado probate law states that, in general, wills must be probated within three years of the death of the decedent. However, there are limitations. This does not apply to:
- Proceedings related to wills that were previously probated in a testator's out of state domicile;
- Appointment proceedings related to an estate in which there was a prior appointment;
- If previous proceedings were dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petition has not delayed unduly in initiating the subsequent proceedings;
- If a conservator is appointed for an absent, disappeared, or missing person, appropriate probate proceedings may be maintained within three years after the conservator becomes able to establish the death of the protected person;
- A formal probate proceeding to contest an informally probated will and to secure the appointment of the person with legal priority for an appointment may be commenced within the later of 12 months from the informal probate or three years after the death; or
- Proceedings to construe probated wills.
Most importantly, appointment proceedings and testacy proceedings may be maintained at any time if no previous testacy proceedings (or proceedings determining heirs relating to the decedent's estate) have been concluded in Colorado.
How long does probate take?
Completing the probate administration process of an uncomplicated estate will take an average of six months to one year. In more complicated cases involving multiple properties, larger families, and/or creditors, the process will often take longer. To a layperson, the Colorado probate process may appear simple: needing only to have a will declared as valid. Yet, there are many steps involved, including waiting several months for creditors to assert their claims against the estate. Even in the simplest circumstances, the time required to make sure that each step is properly conducted adds up.
The informal probate process often takes less time. This is because objections from creditors and contests from heirs aren't expected.
Does a surviving spouse need probate in Colorado?
Unless certain property was held by the decedent and surviving spouse as joint tenants, the probate process is still legally required to distribute the decedent's estate to ensure that any and all of their outstanding affairs are brought to a sufficient close.
How do you avoid probate?
The Colorado probate process is legally required to distribute the decedent's estate and to ensure that any and all of their outstanding affairs are brought to a sufficient close. In that sense, the probate process is unavoidable if the decedent left a will or has what is known as an intestate estate because they died without a will.
How much does it cost to probate a will?
The first filings for a formal or informal estate, excluding a small estate, is currently $199.00. This does not include the cost for a probate attorney, should you choose to hire one, and it does not include other fees that may need to be paid as well. The small estate filing fee is $83.00. According to state law, a small estate is classified as an estate worth less than $50,000.00 and one that does not have real property. To learn more about the filing fees, please review the Colorado Probate Court website.
How does the Colorado probate process work?
In order for a will to be effective, it must be admitted to the Colorado probate court and validated. Then, a personal representative must be appointed. The probate court gives this person the authority to probate the estate. The personal representative has several important responsibilities:
- Take possession of and inventory all of the possessions in the decedent's estate;
- Collect on outstanding debts and payments due to the estate;
- Identify all heirs and creditors of the estate;
- Manage creditors and their claims, objections, and payments;
- Disburse real property and personal property in accordance with the will, statute, or court order;
- Prepare deeds and other instruments for the transfer of title; and
- Carry out all instructions and orders provided by the probate court and documents actions taken, as necessary, throughout the probate process.
How probate operates depends on whether the process is informal or formal. Informal is used when there is a will that is clearly valid. There is a personal representative that is easily identifiable. There is no reason to expect a challenge to the will. Formal probate is used when there are questions about the validity of the will, there is an expectation of challenges, or there are other concerns. Formal probate may be appropriate for the simple estate if there are bad relationships between family members, because there will be more oversight of the court than with informal probate.
If there is no will, an interested person may petition the court to have the heirship of a decedent and the descent of the intestate property determined by the court. Once the court enters a decree, the rights of the heirs in the property are deemed concluded as of the date of the entry.
For small estates that are worth less than $50,000 and that do not include any real estate, probate may not be necessary. If it appears from the inventory and the appraisal that the value of the entire probate estate, minus the liens and encumbrances, does not exceed the value of the personal property held by or in the possession of the decedent as fiduciary or trustee, exempt property allowance, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled to the assets and file a closing statement. There are a few other steps that must also be completed as well, including a verified statement. If there are no other actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the personal representative's appointment is terminated.
Learn More About Colorado Probate Law
If you are ready to learn more about Colorado probate law, Ball Morse Lowe is here to help. As probate law attorneys, we represent personal representatives as well as heirs in probate court. To learn more, schedule your free consultation with Ball Morse Lowe now.