According to the Colorado Bar Association:
Probate is the legal process used to transfer the title of assets from the decedent to the recipients named in the will (devisees) or the recipients named by law(heirs). All wills and intestate estates must go through the probate process. However, the degree of court involvement and complexity can be inexpensive and straightforward or complicated and costly.
In Colorado, there are three types of probate cases. An estate with a will is considered testate. If there is no will, it is intestate.
1. Small estates (under $70,000 and no real property).
Whether or not you have a will when you die, if you have $70,000 or less in personal property (including bank accounts and cash) and no real property, your devisees or heirs may collect your assets by using an affidavit without opening a probate action through the court. This procedure requires the devisee or heir claiming the assets to swear they are entitled to them and agree to distribute them to any other entitled devisees or heirs.
2. Uncontested estates (informal).
The informal process is generally allowed when there is a valid will, there are no contests expected, and a qualified personal representative is ready to be appointed. The court has a limited role in the administration. Still, it ensures that the will or intestacy law’s directions are followed and provides a venue for the devisees or heirs to hold the personal representative accountable.
3. Contested estates and invalid or questionable wills (“formal”).
The court may require formal probate for several reasons, including when contesting a will, when a will is unclear, invalid, or genuinely significant challenges in administration exist, such as identifying heirs or property title disputes. The court may require its approval for every transaction by the personal representative or allow the estate’s administration to proceed unsupervised.
Both informal and formal probates must be open with the court for at least six months, but the estate’s entire administration may take much longer.
Will My Estate Have To Go Through Probate?
Whether or not your devisees or heirs will have to go through probate to transfer title to your assets depends on your assets’ ownership when you died. Your estate may not have to go through the probate process because your will or the intestacy laws may not control the distribution of some or all of your assets.
Certain types of assets are not governed or distributed per the terms of a will. The will controls only assets owned by you in your name (and do not have a beneficiary designation). Assets held in joint tenancy, such as real property or a bank account, or assets that have a beneficiary designation like a life insurance policy or IRA, pass to the beneficiaries by law and are not subject to the provisions in the will or the probate process.
Colorado law requires filing the decedent’s will with the District Court where the decedent lived within ten days of their passing, even if not expecting probate administration.
What Is The Probate Process?
As described above, the administration of probate assets occurs in one of three ways:
- Completing an Affidavit for Collection of Personal Property if the total probate estate assets are less than $70,000 and there is no real property.
- Filing an informal probate procedure.
- Filing a formal probate procedure.
If using an Affidavit for Collection of Personal Property, the affiant goes to the institution or individual holding the decedent’s asset, presents the affidavit, and collects the asset. The affiant then distributes the asset to those entitled to it, either per the terms of the decedent’s will or intestacy laws. The affiant must sign the affidavit before a notary public. In an informal and formal probate procedure, the court appoints a personal representative or special administrator granted the authority to essentially step into the decedent’s shoes, wrap up their business affairs, and distribute their assets. The court may or may not require supervision of the personal representative. They are considered a fiduciary to deal with the decedent’s assets.
Colorado requires that a personal representative notify (by publication in a local newspaper or by mail) any possible and known creditors of the decedent and pay legitimate claims. During the creditors’ period, the personal representative will likely deal with valuing, consolidating, and possibly liquidating the estate’s assets. After the creditors’ period is over, the personal representative may distribute to creditors, devises, and heirs. A probate case can close after transferring the assets out of the decedent’s name, satisfying all legitimate claims, meeting all devisees’ and heirs’ interests, filing all applicable tax returns, and paying all taxes.
Probate instructions and forms, including the Affidavit for Collection of Personal Property, are available on the Colorado Judicial Branch website, www.court.state.co.us, under the Forms tab.
What are the responsibilities of the personal representative?
A personal representative has many duties, rights, and responsibilities, including the ability to open and maintain an estate bank account, sell, transfer, or encumber any real property, sell or transfer assets, and consolidate bank accounts to deal with creditors.
A personal representative has a fiduciary duty to the estate, devisees, heirs, and other interested parties, including creditors. A personal representative’s specific responsibilities include:
- To act impartially in regards to all parties to the estate.
- To administer the estate with care and prudence.
- To put the interests of the estate in front of the personal representative’s interests.
- To be loyal and treat each party the same.
A personal representative’s responsibilities include creating an estate inventory of all of the decedent’s assets, real and personal. Inventory duties include applicable titling and date-of-death values, managing the estate assets until the court approves the estate’s closing, keeping accurate records of the estate’s transactions, and making distributions to creditors, devisees, and heirs.
A personal representative is entitled to reasonable compensation for their services. Whether or not they elect to take a fee, the personal representative should keep track of their time working on the estate’s administration.
For additional information regarding duties and responsibilities, review the brochure entitled “So Now You Are a Personal Representative.”
Fees and Other Expenses of Administration
An attorney’s expertise is usually necessary for identifying what type of probate is needed. The scope of the attorney’s involvement will depend on the complexity of the estate. Even the most well-planned estates and well-written wills have costs associated with administration, including court fees, attorney fees, and paying the decedent’s final expenses and legitimate debts. Most attorneys charge an hourly fee. The rate depends on several factors, such as the attorney’s expertise and experience, the case’s novelty and difficulty, the results obtained, and the costs involved.
This information is current as of June 2011. The information presented is paraphrased from a pamphlet published as a public service by the Colorado Bar Association. Its purpose is to inform citizens of their legal rights and obligations and provide information regarding the legal profession and how it may best serve the community. Changes may have occurred in the law since initially published. The information contained here is for educational purposes only, and readers are encouraged to consult with an attorney.
The Colorado Judicial Branch provides detailed instructions, manuals, and forms for probate, estates, guardianships, and conservatorships.