What is Probate?

Probate is the court-supervised process used to distribute someone’s assets after he or she passes away. What typically happens is that someone out there – maybe a kid, maybe a creditor — is going to have an interest in getting your stuff transferred over to someone who can wrap your affairs up for you after you’re gone. But they can’t just walk in to the county clerk’s office, for example, tell them that you’re dead, and ask for your house. At a minimum, the county clerk would want to know, “Who are you? How do we know the owner of this property is dead? How do we know you’re legally entitled to receive it?”

The probate court is the place your family or creditors will go to get those questions answered, and to get the documentation they will need to prove to the county clerk, your bank, and other people and institutions holding your property, that they now have the right to take ownership of your property.

If someone close to you has passed away, click the following for more information.

Do I need to Open a Probate?

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Do I Need A Lawyer?

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How Do I Administer an Estate?

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Do I Need to Open a Probate?

Probate is not necessary for everyone.

There’s a good chance you have known someone who passed away, but then you didn’t see any probate court case opened. That’s because probate is only legally required in a limited number of circumstances.

  1. The deceased person owned real estate (and no one else was named on the deed or designated as a beneficiary)
  2. The deceased person owned assets that, combined, exceeded $66,000 in value.

If either of these conditions are true, somebody will have to open a probate case to get the assets legally transfered to the deceased person’s heirs and creditors.

Let’s say, for example, that you and your spouse own everything jointly and one of you passes away. The survivor between the two of you now owns everything alone, automatically, without the need for a probate process. (Please note that if your spouse has passed away, there are important tasks to complete even if no probate is necessary. There may, for example, be critical tax decisions to make, even if you are certain no estate tax will be due. The survivor should also take steps to remove the decedent from financial accounts and real estate deeds. You should consult with a CPA at your earliest convenience, and maybe a lawyer too. )

Or let’s say your primary asset is a retirement account, and you told the brokerage that holds it who should receive its funds on a designated beneficiary form. For better or worse, those instructions will get followed, regardless of whether a probate happens.

If your loved one had an LLC that held rental properties, or a living trust, probate may not be necessary either. Those entities should have instructions that give authority to the trustee or the successive owner to manage the assets.

If you still have questions continue reading our Do I Need A Lawyer section below.

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Do I Need a Lawyer?

Probate can be a relatively straightforward court process that does not require legal representation. The first place to go is the forms page of the Colorado Judicial System. If a probate is necessary, it must be done through the court in the county where your loved one resided.

To determine if you need legal assistance to guide you through the probate process, can you answer YES to all of these questions?

  • There is a legally formed Will that clearly designates the decedent’s beneficiaries

  • The decedent’s family get along and agrees with the terms of the Will

  • The Personal Representative resides in Colorado and has access to the Courts

  • The decedent’s assets are properly titled and unencumbered

  • The decedent has no lawsuits or legal proceedings in progress

  • The decedent’s estate definitely has sufficient assets to pay all expected creditor claims

If any of the above questions raises concerns, please come see us for a complimentary Discovery Session.  You can request an appointment in the sidebar.

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How Do I Administer an Estate?

As personal representative or trustee, your role is to guide the estate through the administration process, following these steps

PERSONAL REPRESENTATIVE:

  1. Read the Will in its entirety
  2. Obtain necessary legal documents (Letters Testamentary, Death Certificate, etc.)
  3. Secure the decedent’s property
  4. Contact all natural heirs (this includes anyone entitled to inherit from the decedent under state law, not just the people named in his or her will)
  5. Determine any creditors of the estate
  6. Create an inventory of the decedent’s possessions
  7. Maintain complete records, including receipts
  8. Consolidate the estate by retitling, selling, or disposing of assets
  9. Pay last expenses
  10. Distribute the estate to the named beneficiaries under the terms of the Will or Trust

TRUSTEE:

  1. Read the trust document in its entirety
  2. Obtain necessary legal documents (Certificate of Trust, Death Certificate, Letters Testamentary, EIN, etc.)
  3. Secure all assets (title any separately held assets into the trust)
  4. Determine any expenses or creditors
  5. Consolidate the estate by retitling, selling, or disposing of assets
  6. Pay last expenses
  7. Follow the terms of the trust to divide property as instructed
  8. Possibly: continue to manage ongoing trusts as needed

If you are the personal representative of an estate that is going through probate, this process will need to take place under a court’s supervision. This means that at each step, there is a form that you need to submit to the court to verify that it has been done.

Click here for our three-part Guide to Serving as a Personal Representative or Trustee.

STEP BY STEP ESTATE GUIDE >>>
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