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Probate is the court process for determining how someone’s estate will be distributed after they die. In Colorado, probate is required for anyone who passes away with more than $64,000 in assets or who owned real estate in their own name. There are a number of ways to avoid probate, including jointly titling property with someone who survives you, placing your assets in a trust, designating beneficiaries for certain accounts or life insurance policies, and keeping the value of your personally titled assets below the $64,000 figure. But each of these options comes with certain drawbacks and risks, and sometimes, trying to avoid probate causes more problems than it solves. Many estates will go through the probate process, often as a result of deliberate decisions.
Formal and Informal Probate
For estates in which it is clear who the heirs are and what the assets are, and where there is not expected to be any fighting among heirs or creditors, Colorado offers an “informal probate” process. The informal process allows the personal representative of the estate to carry out his or her duties relatively quickly and with minimal court oversight. For more complicated estates, a “formal probate” process must be utilized, and more court oversight will be required. In order for this happen an estate plan will need to have been previously created.
During probate, the personal representative, often with the assistance of a probate lawyer, will have to inventory the assets, provide the court with periodic accountings, pay the appropriate taxes and decide which creditor claims against the estate are valid and have priority. A final distribution will then be scheduled. Any challenges to the will or to its validity are determined in probate court.
Litigation in probate court commonly concerns the following issues:
- An heir was born after the will was written
- Siblings are being treated unequally
- The testator (the person who created the will) is alleged to have lacked the requisite mental capacity to sign a will
- Undue influence was allegedly exerted on the testator by someone who benefited from the will
- The testator had multiple wives and 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
Absent litigation, you can usually expect the Colorado probate process to last about 6 months, though larger or more complicated estates may take longer.
Dan McKenzie is a Denver probate attorney who can properly advise you on the probate process and represent your interests in a will contest or other probate litigation.
Heirs of estates of less than $64,000 and which do not contain real estate can collect estate assets with a “small estate affidavit.” The heir can present the small estate affidavit to anyone in possession of estate property and collect that property on behalf of the estate. That does not necessarily mean they get to keep it. When you sign a small estate affidavit, you are promising to distribute the property to the rightful heir.
Even where there is a will, omitted spouses and children may have the right to collect more than what the decedent left to them. Colorado law permits spouses and children from prior marriages to claim a family allowance against the estate. If authorized, these payments are made before any creditors are paid and before the other heirs receive their distributions so that these family members are compensated during the administration of the estate.
Some family members may also obtain an exempt property allowance. For example, the decedent’s spouse is entitled to exempt property from the estate in the amount of $26,000. If there is no surviving spouse, then any dependent children may claim this amount. The amounts received are in addition to any funds or property they may receive under the will. There are other circumstances where a family allowance can be claimed.
For all situations involving probate or estate administration, contact the McKenzie Law Firm to schedule a consultation.