Colorado Probate Process
To begin, probate refers to the court that administers the estate. There is no actual "probate court" in Colorado. It is the local district court that oversees the administration of estate issues. In Colorado, probate’s purpose is to assure that all the decedent’s final affairs are taken care of, and that his or her estate is dispersed according to the law. There can be many courses to take on your journey through probate, depending on what assets you have and whether or not you have a will (or more than one).
Probate is generally required when an estate has more than $64,000 of assets subject to probate. This includes assets without beneficiary designations. This could be bank accounts , vehicles, timeshares, bank lockers, home contents, and safes, to name a few.
Generally, there are two ways to avoid probate in Colorado for probate avoidance planning. One would be a revocable living trust. This is a popular option people use in their estate planning. When you use a revocable living trust as a probate avoidance strategy, you put your assets in the name of the trust, and follow through with the assignment of the assets to the beneficiaries according to the trust terms. The other option is joint tenancy with right of survivorship or community property with right of survivorship. Like probate property, these assets are subject to probate in Colorado.
Heirs and Intestate Inheritance
Succession laws in Colorado govern the distribution of assets in cases where a person dies without a will, commonly referred to as dying "intestate." Intestate succession laws are fairly standard nationwide, but there are important variations from state to state. Generally speaking, the laws of intestate succession designate who will inherit property in cases where an individual died without a will.
Under Colorado law, if a person dies without a surviving spouse, children, grandchildren and/or other relatives, the entirety of the deceased individual’s property will pass to his or her parents as long as they are still living. If the parents are also not alive, half of the inheritance will go to the brothers and sisters and/or to their children (also known as nieces and nephews) and the rest to the grandparents and their children (known as aunts and uncles).
Without the presence of a spouse, children or parents, an individual’s property will be passed on to his or her siblings and their children — or aunts and uncles and their children — first. If none of those relatives survives the individual, his or her property will go to the next surviving family members in the following order:
If none of the above family members are living, then the individual’s property will be distributed to the state of Colorado.
Personal Representative Responsibilities
The appointment of a personal representative is governed by Colorado Revised Statute §15-12-203. This section lays out a priority list of persons and entities who are eligible to be appointed as the personal representative. The highest ranking persons or entities have the choice to serve as the personal representative and may waive their right to have a formal appointment if there is no will. With the second tier, those persons or entities must formally apply for appointment and the court will look at the first tier’s waiver (if any) in deciding to whom to grant the estate’s personal representative appointment.
Only a few persons/entities are generally unable to act as a decedent’s personal representative, including:
Colorado Revised Statute §15-12-208 sets out the priority list; however, that list can be overridden if the beneficiaries of an estate are all competent and of legal age to contract and the beneficiaries agree to something different.
Common Issues and Solutions
In situations where no will exists for the decedent, the family may face issues that are not easily resolved. The following are some common challenges faced during the Colorado probate process when no will exists and tips for how best to deal with these issues.
The Family Could Not Agree on Who Should Be the Personal Representative
This situation is surprisingly common, especially when there is animosity among the siblings or other heirs of the estate. When no will appears to exist, the court requires a preliminary hearing to identify the proper personal representative for the estate. During the hearing, a hearing master will hear both sides and make a recommendation to the judge. The judge then issues a final order appointing the personal representative.
The Value of the Estate is Not Clear
All assets must be valued as part of the probate process, which can be cumbersome in a situation where no will exists. If you do not know something as obvious as whether your parent had a life insurance policy, it is wise to spend considerable time and effort to find out if the decedent owned life insurance, stocks, bonds, bank accounts, vehicles, land, and similar items.
You May Be Required to Post a Larger Bond Amount
In a situation where no will exists , you may need to post a bond for double the value of the estate. The bond is required for the protection of all the beneficiaries and must be acquired through a surety company. A higher bond may be required pending the discovery of additional assets or other issues that could increase the value of the estate.
You Could Be Challenged by Others
During the Colorado probate process without a will, other family members or interested parties may object to your appointment or object to your filing of certain petitions. They may allege situations such as having a conflict of interest. Most often, the hearing master will resolve the issue by requiring that you sign a new bond for a higher amount or by ordering a full accounting. In some cases, it is advisable to reach out to the other party to attempt to get them to withdraw their objection.
You May Be Required to Obtain an Attorney
If you are a non-resident of Colorado, you could be required to hire an attorney for your estate even if you would otherwise not do so. This requirement is enforced mainly to protect the interests of the other beneficiaries.
When facing a situation where no will exists for your loved one, it is important to work with an experienced Colorado probate attorney such as those found at Firms 1 and 2 if you are not able to open the estate yourself.
Legal Resources and Support
When faced with the process of probate without having a will, most individuals are advised to seek expert legal assistance. Knowledgeable lawyers can help you through the maze of documents and procedures that the court requires, answering questions, and leading you through the identification of assets and debts of decedent, and filing of all necessary documents. Legal assistance is invaluable for those without a will, to obtain facts regarding the estate, advise on how to handle an intestacy, and make certain that the decedent’s wishes, wherever possible, are respected.
In some cases, having an expert handle the entire process can save you time and effort, while in other situations, just help is needed for a specific part of the probate process. Some Colorado resources for assistance in probating when there is no will, include the following.
Colorado Legal Services can provide a free or low-fee attorney, through their Legal Clinics at locations across the state, or their statewide Legal Clinics Hotline. Workshops are also held monthly, and the organization provides low-cost legal information pamphlets.
The Colorado Bar Association maintains a lawyer referral service, to help you find the right legal professional to assist you with the process of inheriting an estate without a will. In Denver County, a free intake service is available through the office of Denver County Probate Court. The Volunteer Lawyers Program of the Colorado Bar Association provides pro bono services to families and individuals who cannot afford legal help. The Colorado Judicial Branch website has a variety of resources available for Colorado residents, including the Colorado Probate Homepage, which includes a document locator tool to assist you in determining which forms are required for your situation, and links to other Colorado information resources.
Preventing Probate through Estate Planning
Probate can be avoided altogether by proper estate planning. For instance, consider placing assets in joint tenancy with a spouse, child or other beneficiary. Naming other beneficiaries for bank accounts, retirement and insurance policies can also prevent unnecessary probate. In addition , assets titled in a trust avoid probate. Although a trust is a more formal estate plan, the consequences can make it worthwhile for individuals who are concerned about the potential delays of probate or making sure the right people are in control of their affairs after death or incapacity.