Six Tips for a Smooth Probate
dan • June 30, 2022
If you are reading this, it might be because you have recently lost a family member, and perhaps you have determined that
a probate process will be necessary
to get their debts resolved and assets distributed. Even if you do not need to open a probate process, you almost certainly will have to do something to get funds from bank accounts, dispose of personal property, sell a car, etc.
Here is the good news: Colorado’s probate process usually requires minimal court process, and there are a lot of resources out there to help people navigate it even though they have never done it before.
Still, there are several potential potholes, the avoidance of which can make your probate process go much smoother than it otherwise might. To avoid those potholes, consider taking the following steps.
Here is the good news: Colorado’s probate process usually requires minimal court process, and there are a lot of resources out there to help people navigate it even though they have never done it before.
Still, there are several potential potholes, the avoidance of which can make your probate process go much smoother than it otherwise might. To avoid those potholes, consider taking the following steps.
Determine whether there is a will, and if so, read it in its entirety before doing anything
Back when I was a litigator and new clients would come in with a story about how they had been wronged, we would have to run that story by one of the senior attorneys in the firm before agreeing to take the client on. That attorney gave us the same instruction every time: get the documents. That advice
always
turned out to be good. It was not necessarily intentional, but what the client remembered about the relevant contract or expected that it would say almost never matched up with what the document said. Sometimes, the differences were substantial.
Do not assume that you know what the will says! Read it! Get intimately familiar with it! Be able to cite to it when asked questions by beneficiaries or creditors!
Familiarize Yourself with the Relevant Statutes
If your family member did not have a will, the probate process will be governed by the intestacy provisions within the Colorado Probate Code . Even if your family member did have a will, that will operates within the confines of the Colorado Probate Code. The will might, for example, specify that the “informal” probate process should be used. That might, however, not be an option. In certain circumstances, such as when the original will can’t be found or if the estate appears to be insolvent, you cannot use the informal process. And sometimes, getting the court’s seal of approval on certain transactions might be preferable for the Personal Representative, even if the informal process could have been used.
The Colorado Probate Code also contains a number of deadlines and other requirements and lays out the extent of the
Personal Representative ’s rights, powers, and obligations. The more familiar you can get with it, the better.
If your family member had a trust, you will also want to familiarize yourself with the Colorado Trust Code .
Find, Secure, and Inventory the Assets as Quickly As Possible
When the Personal Representative or
Trustee
role is filled by a professional, that professional typically swoops in and immediately ensures that locks are changed, keys are found, and financial custodians are notified about the death of the account owner. Non-professionals are often much slower to do these things. This can be particularly problematic if credit cards keep getting used, or assets that can be moved, such as tangible personal property or cars, disappear. Those assets are just as much a part of the estate as the real estate and large financial accounts and protecting them for the beneficiaries is just as important, even if those assets don’t seem likely to have significant monetary value.
Overcommunicate
When administering an estate, there are a number of disclosures that the Personal Representative or Trustee are required to make. Although the Personal Representative or Trustee should not get into trouble for only making those disclosures, you probably can’t hurt yourself by making more disclosures than required. Although it can be tempting to try to avoid problems by not talking about them, the reality is that it is better to find out sooner rather than later whether someone is going to be unhappy with something. If an unanticipated problem does arise, being able to say that the person causing the problem has had the information available to them the whole time can be a great defense to any allegation that you have not been doing your job correctly.
Do Not Promise Anything to Anyone
Most estates have multiple beneficiaries and creditors. Somewhere in that group is likely to be someone who is especially eager to get their money. No matter how simple it all seems to be, and no matter how insistent they are that they be told exactly what they will receive and when, it is critical that you not try to assuage them with any specific promises. Every court process takes longer than the participants initially expect it to take, and although most probates go smoothly, there are several critical deadlines and disclosures that need to be made before you can be sure that you know what you have and who will get what. Although promising someone that they will get something by a certain date can temporarily buy you some peace, that person will come back 100 times worse if an unexpected bill or tax obligation prevents you from being able to do what you told them you would do.
Hire a Lawyer!
Many people underestimate the complexity of handling someone else’s affairs. Doing so usually requires a combination of probate law (and maybe trust law), real estate law, tax law, contracts, secured transactions, and other areas of law that are difficult even for attorneys. Layered on top of that are family dynamics and psychology around money. It can be easy for even seemingly simple estates to go off the rails. The Personal Representative or Trustee can almost always use estate or trust funds to pay the costs of an attorney. Our firm does most probates on a flat fee basis, meaning that you and the beneficiaries will know the full cost up front.
What Next?
If you need help administering someone else's affairs, 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 we can help you keep the administrative process as hassle-free as possible.
- Learn more by reading our blog or watching our videos .
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