What's Probate in Colorado?
According to the latest caring.com survey, 65% of all Americans have zero estate planning documents. Without the right estate plan, you are choosing the default plan set up for you by the laws of Colorado.
What is probate in Colorado?
That default plan, probate court in Colorado, is the process by which a person’s assets are officially recognized by the court, creditors are paid, heirs are legally determined, and your assets are distributed to those heirs.
The three types of probate in Colorado:
- A small estate proceeding for estates valued up to $70,000 if you don’t own real estate.
- An informal probate is allowed when the decedent has a valid will, no one is expected to contest the will, and a competent representative is available to handle all the steps necessary to probate the estate.
- A formal probate is necessary when there is no will, or when a decedent’s will is contested, invalid for any reason, unclear, or has some other challenge.
The type of probate required will determine how hard the process will be to settle the decedent’s (see sidebar glossary) estate. You will likely need to consult with a probate attorney to determine which type of probate is required for your situation.
After a person passes away in Colorado, the person who settles their estate petitions the court to become the Personal Representative and, for many estates, must inform the court through every step of the process.
What is the process of probate in Colorado?
Here are some of the steps in the probate process:
- Apply to open a probate for the estate.
- Submit the death certificate.
- Apply to be appointed as Personal Representative.
- Ask the court to validate the will, if there is one. If there is no will, the court will have to determine the heirs to the estate.
- Inform the court of assets, debts, and heirs.
- Notify known creditors and publish notice to any other possible creditors.
- Keep and file an accounting with the court.
- Pay debts and estate expenses.
- Transfer property into the name of the heirs.
How long does probate in Colorado take?
With a simple estate, if banks and other institutions are cooperative, this process could be complete in as little as six months. For most Colorado estates it takes longer, an average of 9-24 months. For complicated assets like businesses or multiple rental properties, or when family members disagree on distributions, the process can drag on for years and cost tens of thousands of dollars including legal fees.
Here are some of the steps that will happen during probate which take time to complete:
- Validating the will.
- Opening a bank account for the estate to pay creditors and pay out funds to beneficiaries.
- Identifying the decedent’s creditors, locating them and notifying them of the death.
- Identifying heirs and beneficiaries, locating them and notifying them of the death.
- Identifying and inventorying the property that was owned by the deceased.
- Liquidating any necessary assets.
- Creating an accounting, a list of assets and debts.
- Obtaining a taxpayer ID for the estate and filing a final tax return.
- Paying any estate taxes owed.
- Paying creditors.
- Distributing property to heirs according to the will, or according to state law without a valid will.
Each of these steps requires petitions, motions and/or records that reassure the court and the State of Colorado that the decedent’s estate is being handled appropriately.
Throughout the probate process the Personal Representative (see glossary sidebar), is liable for mistakes or omissions. Creditors who are not notified could force the Personal Representative to pay decedent’s debts long after the estate has been settled in probate court.
Do I need a probate attorney?
You do not have to hire an attorney if you’re the executor of an estate. Anyone is allowed to go through the process. If the decedent’s estate has under $70,000 in assets and no real property in Colorado it is eligible for the small estate proceeding. This one is the most easily managed without an attorney.
In Colorado, a small estate proceeding could take up to 20 hours of the executor’s time researching assets and debts, notifying creditors, and distributing the assets to the heirs of the estate.
The process will take more effort and coordination with the court for estates with more than $70,000 in assets or when real estate is owned, so that it can be transferred to the proper beneficiaries (see sidebar glossary). For this level of probate, the informal proceedings, an attorney will help you handle each necessary step correctly, including all of the necessary legal documentation. There are a number of details that must be handled at exactly the right time in the right way, and it’s overwhelming for most families when they’re grieving the loss of a loved one.
In Colorado, an informal proceeding could take 100 hours or more of an executor’s time.
Finally, we always recommend hiring an attorney to manage estates that require formal proceedings. These are estates where someone will be contesting the will, where there is no will, or there are multiple wills or documents that are in question in some way. Formal probates are more complicated and, without a legal guide, you will be personally liable for any mistakes or omissions. Estates with formal proceedings will most likely involve other attorneys and a more complex court process. You will be best served having an experienced attorney on your side.
What can a probate attorney do for me?
The law in Colorado requires a process for probate. That process has detailed requirements, including specific forms to be drafted and filed on time.
The first intimidating thing on the state’s self help probate forms page is this warning, “If you choose to represent yourself, you are bound by the same rules and procedures as an attorney.”
You could be held liable for mistakes not only in procedure, but you could ultimately be responsible to creditors for an estate’s debts.
Why would you want the headaches, anxiety and stress? We’ve been helping clients with probate court in Colorado for 15 years. We know the ropes. Let us take care of the filings, motions, deadlines and accountings, and guide you through all of the practical details you’ll need to handle.