Probate in Colorado: What You Need to Know to Protect Your Family, Your Finances and Your Future

By: Beth Andersen-Filson

Whether you are ready to plan for the future by getting your estate planning in order or have found yourself the executor — in Colorado known as the personal representative — of an estate, it’s important to know the ins and outs of probate. Regardless of your position, it will help you ensure that probate goes as smoothly as possible.

What is probate?

There are several terms you need to know in order to understand how probate works in Colorado.

PROBATE is the formal legal process for handing out your assets to your heirs and paying your bills to your creditors after you die.
Your ESTATE is everything to be distributed when you die. Some of these things go through probate. Other things – like jointly titled property, life insurance proceeds, retirement and investment accounts with a beneficiary, payable-on-death accounts, and items conveyed to a trust – are conveyed outside of probate. These are called NON-PROBATE ASSETS.
The PERSONAL REPRESENTATIVE is the person in charge of doing this for the decedent (the person who died.) A common name for this person is an executor, but in Colorado we call them the personal representative. The personal representative opens the estate and can open a bank account. They distribute assets and pay taxes and debts. They provide a final accounting and inventory. The personal representative can be compensated from the estate.
If you have a will aka last will and testament, it will instruct the personal representative as to how to handle probate and distribute your estate. This is called a testate estate.
Intestate is the word for someone who dies without a will. They will have an intestate estate.

What are the three types of probate in Colorado?

In Colorado there are three types of probates: small estates, uncontested informal estates and contested formal estates.

Small estates (under $70,000 and no real estate): These are the easiest to probate. Simply fill out the small estate Affidavit of Personal Collection and make the distributions. You do NOT need to open a court proceeding, but you may want to file the affidavit for a formal record.

Uncontested estates (informal probate): This is also a simple process. Instructions are online at the Colorado Judicial Branch website. If the decedent has a will, the party seeking to be personal representative will lodge the will with the court by filing it either online or in person as the court requires. The personal representative nominee, or their counsel, will complete the form to nominate the personal representative. The court will issue letters intestate if there is no will or letters testamentary if there is a will. The personal representative can use these letters to do things like close bank accounts and convey property. Usually, this process includes filing paperwork without any court hearings. Notice must be given to known creditors and published for unknown creditors. The process must allow six months for creditor objections before probate is closed though the final accounting and report.

Contested estates and invalid or questionable wills (formal probate): A formal probate usually means there will be a court hearing because some issues are “contested.” Contested simply means that people are fighting over it. The court in a contested probate can issue orders and may even appoint a receiver to be appointed for sales. The court may require that probate is supervised with ongoing approval. There may be a hearing before the court where all the heirs and potential heirs can present evidence and testify. Again, the estate cannot be closed until after at least six months.

Some common issues in a contested probate include the following:

Whether the will is valid.
What the will requires.
Whether the decedent had capacity to make the will.
Whether someone had undue influence over the decedent when they drafted the will or subjected them to duress.
Who qualifies as an heir.
What the values of the estate assets are and whether they were properly sold and/or distributed.
Whether the professionals such as real estate agents selling property were sufficiently objective and sold the property for a fair market value.

If you have questions about any of these things, do not hesitate to call Andersen Law PC at 720-922-3880 for a free consultation on the issue.

stock image of estate planning documents

If you are a personal representative, what do you do?

If YOU are a personal representative, you have several duties including the following:

Collecting and inventorying the property.
Notifying creditors.
Reviewing creditor claims.
Securing payments from debtors who owe money to the estate.
Valuing property.
Completing federal and state tax returns.

You may want an attorney to assist you with these matters. Begin by getting a copy of the death certificate and any important documents such as wills and trusts. Now may be a good time to call an attorney such as Andersen Law PC at 720-922-3880 for a free consultation. If proceeding on your own, remember that a personal representative is held to the FIDUCIARY DUTY standard, which is the highest standard of care. You want to protect the best interests of the heirs and must follow the will, if there is one, and Colorado law. A lawyer can assist you with this important task.

The following are the FORMS from the Colorado Judicial Branch website you need to complete and file for informal probate:

For formal probate, you must complete and file the following FORMS from the Colorado Judicial Branch website:

How to avoid probate

While an uncontested probate can be relatively simple and straightforward in Colorado, there are several reasons someone may want to avoid probate. Among these are the need to avoid multiple probates if you have real estate in more than one state; to avoid estate and gift tax if you have a highly valuable estate (Colorado does not have estate and gift tax but there ARE federal estate and gift taxes for highly valuable estates); to keep privacy; to remain eligible for certain poverty-based benefits such as Medicaid; and to have say in how assets are handled on an ongoing basis after your death.

In such cases, you can structure your estate plan to avoid probate by using devices such as a living trust, life insurance, payable-on-death bank accounts, transfer-on-death securities, and real estate deeds such as joint tenancy or a beneficiary deed.

Want help?

If you are going through probate or simply need information in preparing your estate plan, call Andersen Law PC at 720-922-3880 or visit us at bethlynnandersenjd.com to schedule a FREE CONSULTATION to get you in the right direction.