Colorado probate law is very confusing for the general public, and frankly, this isn't surprising. Probate law is a legal process that most people do not think about until someone they love dies. Even then, unless a will or probate court names them as the personal representative, many people give the concept of how probate works very little thought. As a result, there are several Colorado probate myths that must be corrected. Having a better understanding of how Colorado probate law operates and how probate works can make the legal process of estate administration easier to understand as well as easier to get through for personal representatives and heirs.This article aims to provide factual information to dispel some Colorado probate myths. If you have questions about Colorado probate law, need estate planning assistance, or want to discuss a probate case, schedule a free consultation now with the probate attorneys of Ball Morse Lowe.
If you are looking for ways to avoid the probate procedure in Colorado, there are certain estate planning tools that may be right for you. However, it is important that you begin the estate planning process before the need for a probate case is necessary.
Additionally, there are three types of probate. While you will learn more about each type of probate further into this article, we want to briefly touch on one of them, as it does not involve traditional probate. For estates that are worth less than $70,000 (as of 2020) in personal property and that do not have any real property, they may qualify under state law as a small estate. Instead of beginning the probate procedure, a small estate affidavit is completed and filed with the court, and the personal representative may thereafter distribute the assets. While this does not technically avoid probate, it also is not the full estate administration process that most people fear.
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There are several Colorado probate myths that fuel the fear surrounding the probate procedure as well as estate planning. The truth is that getting involved now in the estate planning process can improve the probate procedure in the future for your family. You will also be more educated about how probate works.
Yes, a will is important. A will clarifies how you want your assets distributed when you die. If you have personal property with a value of more than $70,000, or own real property, a will on its own will not avoid probate.
The truth is that getting involved now in the estate planning process can improve the probate procedure in the future for your family.
If your estate planning was properly prepared and you took advantage of various tools as discussed in the previous section, such as living trusts, transfer-on-death accounts, transfer-on-death deeds, and payable-on-death accounts, then only assets that aren't specifically covered by those types of tools would be subject to probate. Additionally, life insurance and most retirement accounts also aren't subject to probate.
The length of time that estate administration takes in a probate case depends on many factors. For both informal and formal probate, the minimum time for the process to be completed is six months. This gives creditors and potential heirs enough time to be informed about the fact that a probate petition was filed with the probate court. The more complicated a probate case is, the longer it takes.
While each probate case is unique in nature, and it is impossible to give a clear answer on what the cost of a probate case will be, certain fees are fixed, such as court costs. Generally, when a probate matter is simple, such as for informal probate, probate in Colorado does not have to be so expensive that nothing is left in the estate after the process is completed.
Personal representatives must follow state laws. They have a fiduciary duty to creditors, heirs, and the estate. The personal representative is required to follow probate procedures and answer to the probate court. They are legally required to take certain steps in a certain order. They cannot do whatever they want with the assets.
If your personal assets total more than $70,000, or you own real property, and you have a will that includes assets that are not placed inside of a vehicle such as a living trust, the answer is yes. However, if your personal assets total less than $70,000 and you do not own any real property, you may qualify for a small estate affidavit.
The length of time that the probate process takes depends on several factors such as the complexity of the estate, whether there is a will, whether creditors object to the treatment of their claim, and whether someone contests the will. For both the informal probate and formal probate process, the minimum amount of time is six months. The more issues that arise during a probate case, the longer the matter may take to draw to a close.
Colorado probate law provides three different types of probate.
Generally speaking, small estates are defined by state law as an estate worth less than $70,000 in personal property with no real property. Informal probate may be commenced if the decedent did or did not leave a will. If there is no will, then informal probate is appropriate if there is a clear line of inheritance involved. Informal probate may also be appropriate when there is a qualified personal representative available to accept the appointment, and there is no expectation that a contest shall occur. With an informal probate proceeding, the probate court is involved, but they are not as hands-on as they are in formal probate. With formal probate, there may or may not be a will.
Formal probate is most appropriate when probate litigation is expected, such as someone contesting the will, a creditor objecting to how their claim was treated, or other complexities.
However, in both informal and formal probate, there are numerous probate steps and probate forms that must be completed. You can preview the probate forms on the Colorado Judicial Branch's website.
Determining which form of probate in Colorado is right for the probate case can be difficult since there are so many factors involved. An experienced probate attorney can provide a valuable point of view in making this determination. Schedule your free consultation now.
There are many reasons why someone might decide to contest a will. Sometimes, heirs may believe they have good standing to do so. They may believe the will was written because of undue influence. They may believe that it was not written according to state law. They may believe that their loved one did not have the mental capacity to create the will because they suffered from dementia or Alzheimer's at the time the will was last updated or even created. Then again, someone may try to contest the will even when they do not have proper legal standing.
Regardless, if you are concerned that someone may contest the will it is imperative that you seek legal advice from a probate attorney to understand state law, to become informed on how probate laws operate, and to learn what you should expect during the probate process. If it is your will and you are looking for a way to improve your estate plan, there may be language you can use to prevent someone from contesting the will, thus making the probate procedure easier in the future.
To learn more about how probate works in Colorado and estate planning, schedule your free consultation now.