Probate is an aspect of estate planning. Colorado Springs probate attorney, Louie V. Larimer, MBA, JD, has 30+ years of experience and can help. Call for a free consultation.

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What is Probate? Why Hire a Probate Attorney?

Probate is a legal process that is outlined in Article 15, Title 10 of the Colorado Revised Statues.

With respect to persons who have died with or without a will, the purposes of Probate include:

To simplify and clarify the law concerning the affairs of decedents;
To discover and make effective the intent of a decedent in distribution of his property; and
To promote a speedy and efficient system for settling the estate of the decedent and making distribution to his successors;

When a person dies either with or without a will, and owns any type of property (real estate, personal tangible property, or depository accounts), transfer of those assets to third parties who are entitled to receive those assets requires several legal determinations and formalities before the law will recognize or validate the transfer of ownership.

If a person dies without a will, Colorado’s intestate laws govern who is entitled to receive non-joint tenancy property. As outlined in the foregoing section, the law can be a bit burdensome to understand and follow. The probate process provides a means to resolve any disputes over inheritance that may arise when a person dies without a will.

When a person dies leaving a will, probate provides a process to determine the will’s validity and a means to resolve any inheritance disputes that may arise.

Whether or not a will is involved, probate sets forth certain requirements and steps that must be undertaken prior to transfer of a decedent’s property to the heirs.

In Colorado, there are three types of probates. If there is a will, the probate is referred to as a testate estate; if there is no will, it is referred to as an intestate estate.

Type 1 – Small Estates

Colorado law provides a simplified process for estates with a value of $60,000 or less in personal property (including bank accounts and cash) and no real property (i.e., real estate). In such a situation, the heirs may collect a decedent’s assets using an affidavit and thereby avoid having to open a probate action in court. The law requires a devisee or heir collecting the assets to swear they are entitled to the assets of a decedent and will distribute them to the entitled devisees or heirs.

Type 2 – Informal Probate

Informal Probate consists of filings with the court, limited court hearings, and, unless objections are raised, routine court approvals. The informal process is generally allowed when there is a valid will or clear intestacy, no contests are expected, and a qualified personal representative is ready to be appointed. The court has a limited role in the administration, but ensures that the directions in the will or intestacy law are followed and provides a venue for the devisees or heirs to hold the personal representative accountable.

Type 3 Probate – Formal Probate

Formal Probate involves prior court approval, close supervision, control, and review of the actions of a Personal Representative, after notice to third parties, and a formal court hearing. A formal probate may be required for several reasons, including when a will is contested, unclear, invalid, or when there are apparent or actual significant challenges (i.e., identifying heirs, property title disputes) in administration. The court may require the personal representative to obtain approval for every transaction or may allow the personal representative to administer the estate unsupervised.

Both informal and formal probates must be open with the court for at least six months, but full administration of the estate may take much longer.

Highlights of the Probate Process

The probate process begins with a formal petition filed with the State District Court in the County where the decedent resided at the time of death. The petition recites basic information about the decedent, including the date of death and whether the decedent is known to have left a will. A copy of the will is attached to the petition.

The person normally filing a petition for probate customarily seeks appointment as the Personal Representative and asks the court to issue “Letters Testamentary or Letters of Administration” evidencing the petitioner’s authority and power to act as Personal Representative.

A Personal Representative has many duties, rights, and responsibilities, including providing information to heirs, developing an inventory of estate assets, posting notice to creditors, opening and maintaining an estate bank account, paying creditors, selling, transferring, or encumbering assets, consolidating bank accounts, filing final income and estate tax returns, and making distributions in accordance with a will, trust, or the intestate laws of Colorado..

Colorado Probate Law requires a Personal Representative to:

Provide written information about the probate to the heirs and devisees of the deceased person.
Prepare an inventory and appraisement of the deceased’s estate within three months after appointment, listing with reasonable detail and indicating, as to each listed item, its fair market value as of the date of the decedent’s death and the type and amount of any encumbrance that may exist with reference to any item. The inventory shall include the oath or affirmation of the personal representative that it is complete and accurate so far as he is informed. The personal representative must send a copy of the inventory to any interested person who requests it, or he may file the original inventory with the court.
Supplement an estate’s inventory as follows If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading.
Take possession or control of, the decedent’s property; except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for the purposes of administration.
Pay taxes on and take all steps reasonably necessary for the management, protection, and preservation of the estate in such representative’s possession.
Pay the decedent’s surviving spouse an exempt property allowance in the form of cash or other property of the estate allowed by the statute. If there is no surviving spouse, the decedent’s dependent children are entitled jointly to the same exempt property allowance.
Pay the decedent’s surviving spouse and minor children, who the decedent was obligated to support, and children who were in fact being supported by the decedent, a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims.
Provide Notice to Creditors by publishing in some daily or weekly newspaper in the county in which the estate is being administered, that all persons having claims against the above-named estate are required to present them to the undersigned or to the District Court on or before (a date not earlier than four months from date of first publication or the date one year from date of death, whichever occurs or said claims may be forever barred.
Deal with creditor claims after they have been presented, determine which are legitimate, and either allow or disallow those that are not valid.
Close the Estate by filing appropriate accountings with the court.

A Personal Representative is entitled to reasonable compensation for their services. The duties and responsibilities of a Personal Representative are always time-consuming, burdensome, stressful, and emotionally draining. The amount of compensation is subject to review by the court.

An attorney’s expertise is usually necessary to determine which type of probate is required. The scope of the probate attorney’s involvement will depend on the estate’s complexity. Even the most well-planned estates and well-written wills incur costs associated with administration, including court and attorney fees, as well as payment of the decedent’s final expenses and legitimate debts.

Most attorneys charge an hourly fee, and the rate depends on several factors, including the attorney’s expertise and experience, the novelty and complexity of the case, the results obtained, and the costs involved.

Probate Avoidance

Whether or not your devisees or heirs will have to go through probate to transfer title to your assets depends on how your assets were owned when you died.

Certain types of assets are not governed or distributed under a will. Only assets that were owned by you in your individual name (and that do not have a beneficiary designation) are controlled by the will.

Assets that are owned in joint tenancy, or assets that have a beneficiary designation like a life insurance policy, some bank accounts, IRAs, or other retirement investment accounts, pass to the named beneficiaries by operation of law, and are not subject to the provisions in the will or the probate process.

Although the process of probate as described above, at first blush, seems onerous to the lay reader, it is, for the most part, a logical progression of reasonable, necessary, and prudent steps designed to assure that a decedent’s property lawfully passes to the heirs, after creditors have been afforded an opportunity to have their claims settled.

Many advertisements in the media urge folks to avoid probate by using a Revocable Trust and other legal devices, such as joint tenancy or beneficiary deeds. These options serve a purpose and are worthy of consideration, but are not ‘cookie-cutter’ solutions for everyone. Despite the use of such probate avoidance devices, a Pour-Over Will is still required to ensure that no portion of a person’s estate is inadvertently omitted and subjected to the intestate laws of succession. More on this topic appears in the next section of this work.

Advantages of Probate

Despite the negative connotations of probate, there are certain advantages:

Although a Will requires probate, it is easier to understand, requires less interpretation than other devices, and offers less room for dispute and controversy.
Third parties are generally more receptive to recognizing probate orders issued by a court than to self-executing, self-proving non-probate documents.
Powers of Appointment held by decedents are often written to require exercise by a will duly admitted to probate, as a means of assuring the integrity of the power of appointment.
Tax liability and responsibility under probate law for filing tax returns is consolidated, and the burden of filing is shifted away from beneficiaries, thus making it clear who is responsible for taxes.
The probate code bars claims against an estate arising before the death of a decedent unless presented within the time set forth in the statute, thus assuring certainty of creditor claims.
Probate property may offer greater postmortem tax planning opportunities.
Probate allows the preservation of the Medicaid Exemption for Personal Residences, which is not otherwise available if the primary residence is placed in a revocable trust.
Independent, neutral court supervision offers a forum for resolving and protecting a decedent’s wishes when family members are anticipated to be difficult, potentially unreliable, or fraudulent.

The Bottom Line

Probate is an aspect of estate planning that requires deliberate thoughtfulness and professional advice to understand fully. It is not to be thought of as something that should be avoided.

Rather, probate should be recognized for what it is and for what it offers — a legal and orderly process for settling your final worldly affairs and adjusting the disputes among your heirs and creditors while offering some protection to your spouse and children.

As such, it ought to be understood, considered, and plans made to navigate through it appropriately.

What Can an Experienced Probate Attorney Do for You?

Looking for a probate attorney in Colorado Springs to help you get through the rigors and frustrations of probate? Louie V. Larimer, MBA, JD, has more than 30 years of experience helping you navigate probate law. Call to schedule a free, no-cost, no-obligation initial consultation.