No one could deny that losing a loved one is a devastating and overwhelming event, which on its own can be a major cause of stress. When you add in the challenge of handling the affairs of a friend or family member, things can spiral quickly, becoming that much more stressful as you try to cope with your loss while getting your loved one’s affairs in order.
Often, families are eager to tie up loose ends and distribute the assets of their deceased as promptly as possible, burying such details with the dead. In order to do so, however, they will have to go through either a formal or informal probate process.
What is Probate?
The term “probate” describes the legal process that ensues as loved ones distribute the assets of their deceased. During the probate process, a representative is authorized to pay debts and distribute assets on behalf of the departed. Basically, probate refers to the aforementioned notion of tying up all loose ends upon a loved one’s death.
There are two different avenues when it comes to probate: informal or formal. We’ll take a closer look at what characterizes each below.
Informal vs. Formal Probate: What’s the Difference?
Formal and informal probate are not too different from each other. In either case, there is some amount of court oversight, and in either case, the paperwork that is filed with the probate court is still considered to be public record.
…We should also take this opportunity to clarify that probate isn’t necessary in every case.
One such example is if the deceased funded their assets properly, putting them into a living trust prior to his or her death. In this case, a trustee could distribute assets accordingly, without probate and court involvement.
It’s to be expected that many people prefer this route as a no-fuss option, since the formal probate process comes with a few downsides. For instance, if you’re a private person, formal probate might be particularly frustrating, since it goes on public record and will expose more details of your family’s affairs. The process can also be quite pricey and time-consuming, since the court will need to approve the final distribution of all assets.
What is Formal Probate? Would I Benefit?
Digging a little deeper, you might be wondering if formal probate is for you.
Formal probate is absolutely beneficial for some. If the decedent had a large amount of outstanding debt at the time of death, a formal court proceeding is a secure way to get a final ruling that all debts have been satisfied.
In addition, if you anticipate any potential family conflict, formal probate might also be helpful. An objective third party overseeing the proceedings can give family members peace of mind that everything will be conducted in an honest, legal way.
What is Informal Probate?
Informal probate is the more cost-effective and easier option of the two when it comes to administering a probate estate.
Basically, informal probate allows the estate of the deceased to be probated through an administrative process typically with little court involvement and no court hearings. The estate is opened as early as the day the application for informal probate is filed, or no more than a few days after.
Informal probate is appropriate when there is an original will, and when there is no contest over the validity of the will. If your loved one died without a will, you can still proceed with informal probate if there is no dispute regarding the identity of the heirs.
Informal probate is an option worth considering, circumstances permitting. Informal probate is often more affordable for the client, involves less paperwork, and is typically a quicker process than formal probate. In some cases, court appearances are unnecessary during informal probate, which could save your family valuable time and money.
Application for Informal Probate in Colorado
For Colorado informal probate, you must complete and file the following documents (other documents may also be required depending on circumstances):
- JDF 910 - Application for Informal Probate of Will and Informal Appointment of Personal Representative
- JDF 911 - Acceptance of Appointment
- JDF 912 - Renunciation and/or Nomination of Personal Representative
- JDF 721 - Irrevocable Power of Attorney
- JDF 913 - Order for Informal Probate of Will and Informal Appointment of Personal Representative
- JDF 915 - Letters Testamentary
Ultimately, understanding the role of probate and the difference between formal and informal probate is critical to your estate planning process.
It’s recommended that you communicate openly with your loved ones about your hopes for the future and make plans to ensure your wishes are respected with the help of a probate attorney. It’s the best way to protect your family, your friends…and your best interest.
If you need probate assistance, don’t hesitate to give us a call today!