Probate: The Basics

What is Probate?

In general terms, the goal of the probate process is to take inventory of and manage a deceased person’s (a “decedent’s”) assets and debts before distributing remaining assets to named beneficiaries and/or heirs. The person in charge of administering an estate is called a Personal Representative (“PR”), which is Colorado’s term for the Executor of an estate. In Colorado, the process is fairly streamlined, but it takes some time—probate is typically open for six months to a year though it may take longer—and many steps must take place in order to properly administer an estate.

When is Probate Necessary?

When a person passes away, the first thing to determine is whether to go through the small estate process or to open probate. If the decedent passed away owning either (1) real estate or (2) assets worth over $80,000 (as of 2023), then opening probate is required by law to administer the estate. If neither of these are the case, then use of a small estate affidavit (or DMV affidavit for vehicles) is all that is needed.

Who Can Apply to Become the Personal Representative?

Colorado law lays out the order of priority for courts to appoint a PR. For purposes of this section, a “devisee” is a person designated in a will to receive real or personal property. The following is the order of priority:

·       The person nominated or given priority to be PR in the decedent’s will;

·       The surviving spouse of the decedent who is a devisee of the decedent;

·       The surviving party to a civil union who is a devisee of the decedent;

·       A person given priority to be a PR in a designated beneficiary agreement;

·       Other devisees of the decedent;

·       The surviving spouse of the decedent;

·       The surviving party to a civil union;

·       Other heirs of the decedent;

·       Forty-five days after the death of the decedent, any creditor.

Though the court must consider persons with priority for appointment, it can still pick a person with lower or no priority. In cases where there is no will, the court can appoint a person who is acceptable to the heirs and devisees whose interests in the estate value more than half the total value of the estate. Additionally, if all else fails, courts can appoint any suitable person.

Testate vs. Intestate

If the decedent died owning real estate or assets over $80,000 and opening probate is necessary, the next determination is whether to open probate as testate or intestate. Testate simply means the decedent left behind a will and intestate means there is no will. Prior to opening probate, an applicant for PR must diligently search for the decedent’s will. If there is indeed a will, the applicant must lodge the will in the county where the decedent passed and follow the will’s terms and distribute assets according to the decedent’s wishes. If no will can be found, then the Colorado rules of intestate succession govern how to distribute a decedent’s assets. These rules can apply in tricky ways depending on each decedent’s familial structure, so advice from an experienced probate attorney may be vital for unique or complicated situations.

Formal vs. Informal

The next determination is to decide whether to open probate formally or informally, and it is important to understand the differences.

Formal probate requires more involvement from the court and is the best track for complex estates, situations involving disputes between family members and potential litigation, and/or unclear heirship determinations. Court oversight is needed in many of these scenarios, so the PR often must ask the court for permission before making certain decisions such as determining the validity of a will, selling estate assets, paying creditors, and making final distributions. Folks petitioning to open formal probate also must provide notice of their petition to known heirs ahead of time to allow for objections and a hearing, if needed.

Informal probate requires very little court oversight and is the best track for simple estates, collaborative families, and straightforward heirship determinations. Applicants for informal probate need only apply with the appropriate forms and give notice to heirs once appointed as PR. For many families, the analysis for picking formal or informal doesn’t feel so straightforward, so speaking to an experienced probate attorney is advised in more complicated situations.

What are the Duties of a Personal Representative?

PRs have an important societal role and along with it, certain duties as the fiduciary of an estate, including:

·       Duty to administer the estate with care and in accordance with Colorado law

·       Duty of impartiality: Treating all persons with an interest in the estate the same, without any bias for or against any of them

·       Duty of loyalty: Not favoring the PR’s own interest above those of the estate or interested persons

Failing to properly fulfill these duties can have negative repercussions and open the PR up to personal liability and litigation, so it’s important for a PR to fully understand and be willing to accept these duties prior to appointment.

What are the Responsibilities of a Personal Representative?

In following the above general duties, PRs must complete certain requirements, including:

·       Collecting and protecting assets

·       Keeping a clean, accurate record of assets and completing inventories

·       Notifying creditors of the estate’s existence

·       Filing any necessary paperwork with the court

·       Paying bills, creditors, and taxes

·       Responding to requests for information from named beneficiaries or heirs

·       Making distributions to the named beneficiaries or heirs

·       Closing the estate once all of the above is complete

Should You Open Probate on Your Own?

There is no legal obligation to retain an attorney for probate and the Colorado Judicial Branch keeps all necessary probate forms online for those who wish to proceed on their own. As a starting point, you should ask whether it appears there are any questions or disputes involved that might lead to litigation. If so, it may be helpful to seek an attorney’s guidance.

For those residing outside of Colorado, it is still possible to apply to become a PR and go through the probate process from another state. This can be very challenging, so it’s advisable to seek an attorney to assist in the process. For example, in Colorado, the probate court does not allow unrepresented parties to file documents electronically, and having to mail or bring documents in person can become quite tedious.

The probate process can feel overwhelming, particularly while grieving the passing of a loved one. Whether you’re considering applying to become a PR, you have questions about a will, you’d like help representing your interests as an heir, or you have questions about the probate process itself, please feel free to contact Gant Law and one of our probate attorneys will gladly assist you.