Probate is a legal process conducted in a probate court. Where a probate court oversees the distribution of a departed’s assets and property to their beneficiaries and heirs. The probate court also oversees intestate estate. Probate ensures the distribution of the deceased’s assets and property. According to their wishes or state laws. And depending on the validity and existence of a Last Will & Testament. The Colorado probate process also allows creditors and beneficiaries to make claims against the estate.
Probate in Colorado
Before starting the Colorado probate process, identify each deceased’s asset as either probate or non-probate. Probate assets require going through Colorado probate process for rightful heir distribution. These are the assets that lack a straightforward ownership transfer mechanism.
Common examples include real estate, mineral interests, business interests, personal property, and bank accounts. A real estate interest solely owned by the decedent at their death commonly exemplifies a probate asset. The ownership transfer of the real estate to the beneficiaries cannot happen without a Colorado probate process. And receiving the necessary paperwork from the probate court to complete the real estate transfer.
What Are Assets That Do Not Require Probate?
Non-probate assets are assets that are not subject to the Colorado probate process. Upon the decedent’s death, these pass directly to the beneficiary. Examples often include assets held in trust, life insurance policies, and retirement accounts that have listed designated beneficiaries.
Assets held in joint tenancy come with the right of survivorship. The benefit is that the asset passes directly to the designated beneficiary or joint tenant survivor at the decedent’s death.
The transfer does not involve delays, legal challenges, or expenses compared to a probate asset, it saves the beneficiaries time and money in collecting assets. A licensed Colorado judicial attorney can help determine the correct asset classification.
What Type of Estate Doesn’t Require Probate in Colorado?
After identifying the departed’s assets as probate or non-probate, it’s important to determine the value and complexity of the estate. If the personal property is less than $80,000 (as of 2023), it’s possible to qualify for a small estate probate.
A small estate affidavit enables the distribution of assets, which allows the collection of an asset by the beneficiaries. A probate eliminates much of the cost of the Colorado probate process allowing beneficiaries to collect the assets at a much lower time and money cost than engaging in the Colorado probate process.
Probate in Colorado: Testate vs. Intestate Estate Determination
In a situation where a decedent’s estate includes assets that require the probate process, an initial step is determining whether the decedent’s estate is testate or intestate. A testate estate is an estate in which the decedent left a valid Will at the time of their death. In a testate estate, the probate court will rely on the Will to distribute the assets of the decedent. Most Wills specify the decedent’s preferred asset distribution after death and appoint a Personal Representative. This Representative is tasked with executing the Will’s instructions and managing the estate’s asset distribution.
This is an estate in which the decedent did not leave a valid Will at the time of their death. The assets are distributed according to state laws, known as intestacy laws. The probate court appoints a person to be Personal Representative of the estate to manage the distribution of the assets according to the state’s intestacy laws.
Determining whether an estate is testate or intestate requires locating the decedent’s original Last Will & Testament. It’s crucial to find the original Will, acknowledging that the decedent might not have one. Locating the Will can be challenging as no central search location exists for verifying a decedent’s valid Will execution.
An initial search for the Will should begin in the decedent’s personal papers or safe deposit box. The decedent may have placed their Last Will & Testament with other important documents, such as deeds and insurance policies. If that is not the case, the decedent may have left their Will with their personal attorney. It is common for attorneys to store Wills for clients. It’s also possible the attorney’s office may have a copy of the decedent’s Will. In addition, a decedent may have left their Will with a bank or financial institution for safekeeping. When dealing with the decedent’s bank accounts, it may be worthwhile to ask the bank if they stored or had information regarding the location of the decedent’s Will.
Finding the decedent’s original Will classifies the estate as testate for probate purposes. Lodging the Will with the probate court is crucial to verify its validity for administering the estate. If the original Will remains unfound or the decedent didn’t execute one, the estate is classified as intestate, and state law governs the asset distribution.
Formal vs. Informal Probate Determination
After determining whether a decedent’s estate is classified as a testate or intestate estate, the next decision in the probate process involves deciding whether to initiate a formal or informal probate process. The majority of probate cases in Colorado use informal probate when settling an estate of a decedent. The informal probate process is a simplified process, minimizing the probate courts involvement and proceedings in the distribution of the decedent’s assets. The informal probate process is typically quicker, simpler, and less expensive than a formal probate proceeding. Using the informal probate process is encouraged in the following situations:
- There is a clear and valid Will
- Beneficiaries have limited concerns regarding the distribution the estate’s assets
- The Will clearly names a Personal Representative.
When there is or might be a disagreement about estate distribution, experts encourage formal probate. Situations where formal probate may be useful include:
- Disputes and disagreements among the beneficiaries regarding the distribution of assets
- The estate is complex and requires the oversight of a court to ensure all assets are properly accounted for and distributed
- When there is a question regarding the validity of a Will, including handwritten Wills
Formal probate involves more court oversight and administration in distributing the decedent’s estate than informal probate. Due to the increased court involvement, formal probate typically takes longer and costs more than the informal process.
The probate process is complex and overwhelming. At the Law Office of Josh Krieg, we possess thorough knowledge of probate laws in Colorado, Wyoming, and North Dakota. We understand the importance of timely and efficient estate administration and commit to guiding our clients through probate. We work closely with you to honor your loved one’s final wishes and distribute assets per state laws and regulations. Contact our probate lawyer Fort Collins, CO today to schedule a consultation and let us help you with your probate needs.
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