Don’t kid yourself. Your contested probate IS about the money.
dan • July 20, 2022
If there is one thing I can count on when working with clients in contested probate matters (and just about any litigation, for that matter), it is that at some point, they will assure me that “it’s not about the money.” I think there are two reasons everyone feels compelled to make this claim. First, they don’t want to be seen as greedy. Second, they want to see themselves as having higher principals at stake than mere money. I don’t doubt that people who say that it is not about the money really believe it.
But here is the counterintuitive consequence of believing you have something more than money at stake. You may think not prioritizing money makes you a more reasonable person. It does not. Viewing your probate case as a statement of principal and not about money is usually an obstacle to resolution because the only thing the court can do is move property around between the parties.
It cannot make people feel bad about what they did. Or apologize for it. Or perform some other act of contrition. This is not a criminal case where victims get to make “impact statements” to the person who harmed them, and the guilty party can be forced to perform community service. A probate court does not have the time, interest, or ability to validate your principals.
It has one tool: if the judge or jury thinks your claim is supported by the law, they can require the other party to pay you money (or refuse to force you to pay the other party money). So if you really are doing this for some reason other than money, you are setting yourself up for disappointment because your best possible scenario cannot get you what you want.
But here is the counterintuitive consequence of believing you have something more than money at stake. You may think not prioritizing money makes you a more reasonable person. It does not. Viewing your probate case as a statement of principal and not about money is usually an obstacle to resolution because the only thing the court can do is move property around between the parties.
It cannot make people feel bad about what they did. Or apologize for it. Or perform some other act of contrition. This is not a criminal case where victims get to make “impact statements” to the person who harmed them, and the guilty party can be forced to perform community service. A probate court does not have the time, interest, or ability to validate your principals.
It has one tool: if the judge or jury thinks your claim is supported by the law, they can require the other party to pay you money (or refuse to force you to pay the other party money). So if you really are doing this for some reason other than money, you are setting yourself up for disappointment because your best possible scenario cannot get you what you want.
getting your expectations right is critical
Unreasonable expectations aren’t harmless. Refusing to consider or make settlement offers based on the hope that, someday, a judge or a jury is going to make an unambiguous statement to the world that you were right, and the other party was wrong can lead to a lot of irrational, expensive, time consuming, energy-sucking decisions.
We have had clients tell us they wanted to turn down a reasonable settlement offer unless the other side would agree to also send a letter of apology. Even in the extremely unlikely event that such a request was to be accepted, now we have to negotiate what counts as a satisfactory apology letter. Is a perfunctory “sorry” in a text message good enough, or do we need a handwritten card with a full admission of all the things the apologizing party did wrong?
If you are looking for more than money out of this process, not only are you limited to receiving the one thing you say you don’t care about from the court, but you likely will find the process that it takes to get there to be extremely stressful and frustrating, and ultimately not worth it. People who haven’t been through litigation have a fantasy about arriving at the court, telling their story, and getting a nice, tidy verdict that they were right. In their mind, it is going to be like an episode of Judge Judy. They are going to go to the court with their evidence, argue about it in front of the judge for 15-20 minutes, and then the judge is going to tell the other side what a horrible person he or she is and how much money they owe for their bad behavior.
They don’t realize how stressful it will be to be cross examined by a hostile lawyer while a judge or jury silently stares at them, stone faced. They don’t picture the frustration of having to sit there silently while the other side lies about what happened. They don’t expect their favorite piece of evidence to get tossed aside due to some arcane evidentiary ruling or their best witness to be out of town during the hearing. They don’t picture themselves having to dig through years old documents to answer discovery requests, many of which will feel highly invasive, or sit for an hours long deposition.
In short, most people don’t realize that when you sue someone, you open yourself up to investigation by the person you are suing. In their mind, it is going to be a one-way street of retribution. That’s not how it works. The other side gets to tell its version of the story too.
We have had clients tell us they wanted to turn down a reasonable settlement offer unless the other side would agree to also send a letter of apology. Even in the extremely unlikely event that such a request was to be accepted, now we have to negotiate what counts as a satisfactory apology letter. Is a perfunctory “sorry” in a text message good enough, or do we need a handwritten card with a full admission of all the things the apologizing party did wrong?
If you are looking for more than money out of this process, not only are you limited to receiving the one thing you say you don’t care about from the court, but you likely will find the process that it takes to get there to be extremely stressful and frustrating, and ultimately not worth it. People who haven’t been through litigation have a fantasy about arriving at the court, telling their story, and getting a nice, tidy verdict that they were right. In their mind, it is going to be like an episode of Judge Judy. They are going to go to the court with their evidence, argue about it in front of the judge for 15-20 minutes, and then the judge is going to tell the other side what a horrible person he or she is and how much money they owe for their bad behavior.
They don’t realize how stressful it will be to be cross examined by a hostile lawyer while a judge or jury silently stares at them, stone faced. They don’t picture the frustration of having to sit there silently while the other side lies about what happened. They don’t expect their favorite piece of evidence to get tossed aside due to some arcane evidentiary ruling or their best witness to be out of town during the hearing. They don’t picture themselves having to dig through years old documents to answer discovery requests, many of which will feel highly invasive, or sit for an hours long deposition.
In short, most people don’t realize that when you sue someone, you open yourself up to investigation by the person you are suing. In their mind, it is going to be a one-way street of retribution. That’s not how it works. The other side gets to tell its version of the story too.
After everything else has failed...
Clients frequently misinterpret these warnings to mean that we don’t believe them. Or that we are not going to put every bit of effort possible into fighting for them if they do choose to proceed with this process. I always point out that my encouragement to very seriously consider compromise as opposed to litigation is against my own financial self-interest. Our fees are multiples higher for a contested probate than for an uncontested one. Ten times as high is easily possible. You may have heard someone say that when people fight, the only winners are the lawyers. We work as hard as we can to ensure that is not how our clients end up feeling about the process. But the most certain way to avoid that outcome is to treat litigation as the last option, after every other option has failed.
More important to us than making the most money possible is that our clients proceed, to the maximum extent possible, based on reason and logic, even if them proceeding based on emotion would be more lucrative for us. The challenge in probate, which is not necessarily present in other types of litigation, is that the parties usually have long, close ties to one another. The emotions from relationships that may be decades old can make it difficult to treat decisions about whether to make or accept a compromise offer as a business decision. But at the end of the day, the more you can view your different options for resolution as a math calculation about money instead of as a chance at vindication, retribution, or justice, the sooner you will be able to find peace and move on.
What next?
If you are involved in a difficult estate administration, you can:
- 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 administration page to learn more about how you can protect your rights in a probate or trust administration process.
- Learn more by reading our blog or watching our videos .
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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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