- See if there any estate plan documents, such as a will, powers of attorney, or memorial instructions. Sometimes, the memorial instructions are contained in the will. Sometimes, they are in their own document. If you are suddenly having to plan a funeral or memorial service, or having to make decisions about how to lay your family member to rest, those instructions can be a real help. Especially if family members are not seeing eye-to-eye on how any part of that should go.If you find a will — or, to be more accurate, a document “purporting to be a will” — Colorado law requires that it be “lodged” with the decedent’s county probate court within 10 days. Note that any document that appears to contain instructions from the decedent about what should happen to his or her assets after his or her death might qualify as a will, and maybe should be lodged, even if it does not appear to be official. Handwritten notes can qualify as wills in certain circumstances. Lodging a will does not initiate a probate process. It is done simply to ensure that the will is safe and cannot be lost or modified.
- Secure the decedent’s property. It is not unusual for families to immediately start taking personal property out of the residence. Maybe that is okay, but it should be done in some sort of systematic process in which it is determined who has a legal right to the property and a written record is kept of what each person is taking. People underestimate how often personal property can become the subject of fighting down the road. When that happens, it can be difficult because the value of the property is often sentimental, not monetary, and so you can’t necessarily split the difference with a cash distribution, or by buying a similar item for the other operation who wanted it.
Start Figuring Out What the Decedent Had
Even when an estate is not big enough to require a probate, there be reasons to open one anyway. Three such reasons are:
- A custodian is insisting on it. Sometimes, the estate can be well below the probate threshold, but a bank or other financial institution insists on receiving a court order before turning over an asset.
- The estate may be insolvent. If the estate might have more creditor claims than assets, you might want to put it through a probate process. Everyone thinks of the probate process as being a way to get assets to heirs, but addressing debt in a fair, predictable, orderly fashion is also an important purpose.
- There is a risk of family discord. Similar to settling creditor claims, a probate process can offer your family a way to resolve disputed matters in a fair, orderly process.
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What About Assets Inside A Trust?
Does the Colorado Probate Process Require An Attorney?
- The will makes distributions that are unequal, or unexpected in some other way.
- The will makes equal distributions, but the heirs expected something else. There are many situations in which this can happen, but some common scenarios are when:
- one of the children provided end-of-life care to parents and thinks they should receive extra compensation.
- one of the children lived with the parents and the other siblings think they should have to pay the estate back for the free room and board they received.
- Non-liquid assets make up a significant portion of the estate. The personal representative will frequently need cash to open the probate matter, clean up and sell the house, pay the decedent’s last bills, etc. When the estate only contains real estate, retirement benefits, or other assets that don’t provide immediately available cash, this can create challenging and stressful situations.
- The testator had multiple spouses or children from different marriages, or had children born out of wedlock who are challenging the will.
- The personal representative is mishandling the administration of the estate. This can include failing to move diligently or failing to keep beneficiaries up to date about what is going on.
If you think it might be time to think through your Probate, you can:
- Give us a call at 303-578-2745 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.
- Get a copy of our estate planning checklist to see where you currently stand.
- Learn more by attending one of our free webinars, reading our blog, or watching our videos.