Did I Pick the Right Guardian?
tienne • October 9, 2022
We try to keep abreast of estate planning advice that’s given online. Two letters featured in the “Dear Prudence” advice column brought up issues with guardianship.
The first , both heartbreaking and uplifting, concerned a letter writer who had recently been given guardianship over the young children of close friends who had died in a car accident. The new guardian was seeking advice on how to explain death to young children, and how to address potential differences in the religious outlook between the new guardians and the deceased parents.
The second is from the wife of a man whose biological son passed away, leaving him the guardian of his teenage granddaughter. The letter writer is seeking to have the teen move in with her birthmother so that the fun activities they planned for their retirement are not compromised.
These letters dramatically illustrate the difficult issues surrounding the selection of guardians, and the importance of making this selection in a thoughtful way.
While the first letter represents the best of what we hope for when we choose guardians - trustworthy people who want to preserve our values as they raise our kids with love – the second letter represents our deepest fears – putting our kids in a traumatic situation where they are not welcomed or loved as they ought to be.
If you have picked a guardian, or are considering naming one, the following questions should clarify your options:
- Is the guardian stably employed and in a stable relationship?
- Does the guardian share my religious beliefs, or is he or she willing and able to teach my religious beliefs to my children?
- Are my kids emotionally invested in their community, or can I choose someone who lives far away?
- How important is it to me that my children are raised by a biological relative?
- If the guardian is not a member of my family (or even if he or she is), is he or she going to be willing and able to help my children maintain relationships with the rest of their family?
- Does the guardian have room in his or her house for my children, and if not, is he or she willing to move?
- Am I going to be able to leave the guardian a sufficient amount of money to raise my children until they are at least 18, and if not, is he or she capable of overcoming the shortfall?
- If your child has special needs, does the guardian have the patience, knowledge, and resources to deal with that situation?
This list likely could go on much longer, and in all likelihood, you are not going to be able to find anyone who meets all of your criteria. The difficulty of choosing a guardian causes many people to procrastinate. If you don’t make the decision, however, and disaster strikes, the decision is going to have to be made by someone entirely unfamiliar with you and your family.
Don’t forget! This decision needs to be revisited frequently. Friendships fade. People get divorced or move. People age and develop health problems. Again, the list can go on. This is not a “set and forget” decision. You might be surprised, however, at the sense of relief that you feel once you do thoughtfully work your way through this decision and made the best possible choice of guardian for your children.
If you are struggling with this big decision, the McKenzie Firm’s Guardianship Guide may be of help (please contact us for a complimentary copy). It will ask you a series of questions designed to help you evaluate your priorities and rank each potential guardian based on his or her character and suitability.
What Next?
If this process seems too complex, or if it uncovers financial practicalities that need to be addressed, come see us! We provide a professional, warm, and committed atmosphere in which to work out these difficult decisions and leave you with peace of mind.
- Give us a call at 720-821-7604 to schedule a "Discovery Session" at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
- Visit our estate planning page to learn more about how proactively thinking through your estate plan can protect you and your family, minimize hassle, lower the chance of family discord, and minimize or eliminate taxes.
- Learn more by reading our blog or watching our videos.
Differences Between a Trust and a Will in Colorado
Who Can I Name as an Heir in Colorado?
Consequences of Dying Without a Will in Colorado
What Types of Assets Can Be Included in a Colorado Trust?
What is a Guardianship and When Do I Need One?
What Are the Required Documents to Create a Will in Colorado?
Dealing with the death of a loved one is never easy, and navigating the legal process that follows can add stress during an already difficult time. In Colorado, probate is the legal process by which a deceased person’s estate is administered, their debts are paid, and their assets are distributed to beneficiaries. Whether you’re an executor, beneficiary, or family member, understanding how probate works in Colorado can help you anticipate the steps involved and your potential responsibilities. This blog post will provide an overview of the probate process in Colorado, outline when probate is necessary, and offer guidance on how to navigate the system effectively.  What is Probate? Probate is the legal process that occurs after someone dies to ensure their assets are distributed according to their will or, if there is no will, according to state law. The probate process includes validating the will, inventorying the deceased’s assets, paying off debts and taxes, and distributing the remaining assets to the rightful heirs. While probate is often associated with lengthy court proceedings, not all estates require formal probate. Colorado offers several options depending on the size and complexity of the estate, which can help simplify the process in many cases. When is Probate Necessary in Colorado? Probate is not always required in Colorado. Whether an estate must go through probate depends on the types and value of the deceased’s assets. Generally, probate is necessary if: The deceased owned real estate solely in their name. The deceased’s assets, such as bank accounts or investments, were not held in joint tenancy or designated to transfer on death. The deceased had personal property valued at over $74,000 (as of 2023). If an estate falls below this threshold and does not include real estate, the beneficiaries can often use a Small Estate Affidavit to claim the assets without going through probate. Types of Probate in Colorado Colorado has three main types of probate procedures: small estate procedures, informal probate, and formal probate. The type of probate required depends on the estate’s value and whether there are disputes among heirs or creditors. Small Estate Procedure (Collection by Affidavit) The small estate procedure can be used if the value of the deceased’s assets is less than $74,000 and does not include real estate. This process involves filling out a Small Estate Affidavit, which allows the heirs to collect and distribute the assets without opening a probate case in court. It is the simplest and fastest way to handle a small estate. Informal Probate Informal probate is used when there is a valid will and no disputes among heirs or creditors. The process is overseen by a court-appointed Personal Representative (executor), but there is minimal court supervision. Most of the process, such as distributing assets and paying debts, is handled by the Personal Representative, with only basic filings required with the court. Informal probate is less time-consuming and costly than formal probate. Formal Probate Formal probate is required when there are disputes regarding the will’s validity, disagreements among heirs, or if the estate is complex and needs court intervention. The process is supervised by the court, and all major decisions, such as approving the distribution of assets, must be approved by a judge. Formal probate can take much longer and involve more legal fees than informal probate. Steps in the Colorado Probate Process While the specific steps in probate can vary depending on the type of probate and the complexity of the estate, the general process in Colorado typically includes the following: Filing the Probate Petition The process begins with filing a Petition for Probate with the appropriate Colorado probate court. The petition is usually filed by the executor named in the will or an interested party if no will exists. Appointment of the Personal Representative The court will appoint a Personal Representative (executor) to manage the estate. If there is a valid will, the person named as executor is typically appointed. If no will exists, the court will appoint someone, usually a family member, to serve as the Personal Representative. Notice to Heirs and Creditors The Personal Representative must notify all potential heirs and creditors of the probate proceeding. This step is essential for providing an opportunity for interested parties to come forward and make claims against the estate. Inventory and Appraisal of Assets The Personal Representative must create an inventory of all the deceased’s assets and have them appraised if necessary. This inventory will include real estate, personal property, financial accounts, investments, and any other assets owned by the deceased. Paying Debts and Taxes Before distributing assets, the Personal Representative must pay off the deceased’s debts and any taxes owed. If the estate does not have enough assets to cover all debts, Colorado law dictates the order in which creditors are paid. Distribution of Assets Once all debts and taxes have been paid, the Personal Representative can distribute the remaining assets to the beneficiaries according to the will or, if no will exists, according to Colorado’s intestacy laws. Closing the Estate After all assets have been distributed and all required filings have been made with the court, the Personal Representative can file a Petition for Final Settlement to close the estate. Once approved, the Personal Representative’s responsibilities are complete. Challenges and Disputes in Colorado Probate Unfortunately, probate can sometimes become contentious, especially in cases involving high-value estates or when family members disagree on how assets should be distributed. Some common challenges in Colorado probate include: Will Contests Heirs or beneficiaries may challenge the validity of a will, claiming it was signed under duress, there was undue influence, or the deceased lacked the capacity to create the will. Will contests can significantly delay the probate process and require formal probate to resolve. Executor Misconduct If an executor is not fulfilling their duties or is mishandling estate assets, beneficiaries can file a complaint with the court and request the executor’s removal. Disputes Among Beneficiaries Disputes can arise over specific bequests, how assets are divided, or even the valuation of estate property. Mediation or formal court intervention may be necessary to resolve these disputes. How a Colorado Probate Attorney Can Help Navigating the probate process can be overwhelming, particularly when dealing with the emotional aftermath of losing a loved one. An experienced probate attorney can help in several ways: Guiding You Through the Process An attorney can explain the probate process, help you understand your rights and responsibilities, and ensure all legal requirements are met. Managing Court Filings and Deadlines Probate involves numerous legal documents and deadlines. An attorney can handle these tasks, ensuring that everything is filed correctly and on time. Resolving Disputes If disputes arise, an attorney can provide representation in negotiations, mediation, or court hearings to protect your interests and work toward a fair resolution. Minimizing Costs and Delays With the guidance of a skilled attorney, you can often minimize the time and expense associated with probate, helping ensure the process goes as smoothly as possible. How The McKenzie Law Firm, LLC Can Help At The McKenzie Law Firm, LLC, we understand the complexities of the probate process and are committed to helping families navigate it with compassion and expertise. Whether you’re an executor needing assistance with your duties or a family member looking to understand your rights, our experienced probate attorneys can provide the support you need. If you have questions about probate in Colorado or need legal assistance, contact us today to schedule a consultation. We are here to guide you through the process and ensure your loved one’s wishes are honored.
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