The Colorado probate process can be either scary or frustrating – or even both – for citizens of the state, as there are many myths associated with the process which, left unaddressed, can make it seem daunting to the general public.
The following probate FAQs will help you solve some of the common myths, and reduce any uncertainty you may have, in regards to the Colorado probate process by explaining how probate works.
- How Does Probate Work in Colorado?
- What Is the Colorado Probate Process?
- Formal vs. Informal Probate
- How Do You Probate a Will in Colorado?
- What If There Is No Will?
- Are the Rules of Probate Different If the Estate is Small?
- Is Probate in Colorado Complicated?
- Can I Do It on My Own?
- Should I Do It on My Own?
- What If I Live Out of State?
- How Long Does It Take to Probate a Will in Colorado?
- Why Does It Take So Long?
- How Much Does Probate Cost in Colorado?
- How Are Probate Lawyers Paid?
- Are Lawyers Paid from the Proceeds of the Estate?
- Can You Avoid Probate in Colorado?
- What Can I Expect from Probate Court?
- Do I Need to Be Present During a Probate Action?
- What Kind of Probate Is Right for Me?
How Does Probate Work in Colorado?
The Colorado probate process includes several steps, which we’ll explain in more detail.
Generally, the aim of the probate process is to build and manage a comprehensive record of all of a decedent’s assets; these may include both real and personal property (also known as the decedent's assets or “estate”), as well as all debts a decedent may be owed or may owe to outside creditors.
After completing certain steps of the probate process, the personal representative or executor of the estate may proceed with the distribution of the decedent's assets to various heirs or named beneficiaries.
What Is the Colorado Probate Process?
There are three main areas of the Colorado probate process:
- Small estate probate process;
- Informal probate process;
- Formal probate process.
While all probate processes aim for the same end goals, the way each type works varies.
For instance, small estate probate targets small estates, which are defined as a collection of personal items worth less than $70,000 (as of 2020) and with no real property (i.e. no houses or land). When this is the case, a probate form known as a small estate affidavit is completed and filed with the probate court. Upon filing and court approval of a small estate affidavit, heirs may collect the decedent's assets. Small estate probate is often more convenient than other types, since the probate court process is minimal.
Informal probate, too, tends to be a rather convenient process for the sole reason that it does not rely as heavily on a probate court. This is because there is no expectation that the decedent’s will might be contested. Informal probate simply involves filing certain probate forms with the probate court, usually in the county where the decedent lived at the time of their death.
If the decedent did not have a will, Colorado probate law explains how the decedent's assets will be inherited. There are many unique scenarios that a person may have been in at the time of their death, all of which influence who would receive that person’s inheritance. For example, someone who died and was married one time, having children only within that marriage, would be a case where the decedent's spouse inherits everything.
If, on the other hand, the decedent had children with someone other than their spouse, the spouse would inherit the first $225,000 of the intestate property plus half the total balance, and the children would then inherit the remainder.
Formal vs. Informal Probate
Many people ask what the difference between formal probate and informal probate is. As stated above, one can expect the informal probate process to be less expensive and time-consuming than the formal probate process.
Taking a closer look at formal probate, this process tends to be more involved than its counterpart due to a more extensive involvement of the probate court. Formal probate may be required if the estate is complex in nature, or if there is some type of probate litigation (e.g. a person contesting the will or questioning the identity of a decedent’s heirs).
The formal probate process is usually mandatory when an intestate estate does not have a clear succession. For example, a determination of heirship hearing must be conducted even if there is a will.
During an heirship hearing, all potential heirs are able to express their interest in the decedent’s real property, although to actually inherit, determination of heirship is important. If a title or deed is issued without proper heir determination, legal issues may arise for the person to whom the property was titled or deeded. There may also be estate tax law matters to deal with.
No matter which process you undergo, both formal and informal probate take (roughly) a minimum of six months to complete. During this window of time, all heirs, potential heirs, beneficiaries or devisees (if there is a will), debtors, creditors, and potential creditors must be notified of the death of the decedent, as well as the commencement of the probate action. This process will involve a formal notification form, and is among one of the duties a personal representative must carry out.
Among the duties that a decedent’s personal representative must fulfill are:
- Collecting all personal and real property of the decedent
- Reviewing claims filed by creditors
- Securing payments from debtors
- Ensuring that valuable property is properly assessed
- Completing federal and state tax returns for the decedent (as necessary)
Preparing and submitting a final account of the estate’s administration to the probate court, after the decedent's assets have been distributed to the appropriate heirs and beneficiaries. Note: the heirs and beneficiaries may not access these assets until all debts and taxes have been paid.
How Do You Probate a Will in Colorado?
Before beginning the Colorado probate process, you must first determine if the administration of the estate in question qualifies as a formal or informal estate. Once you have done this, there are specific probate forms that must be completed and filed with the probate court, accompanying a filing fee of $199.
For informal probate, you must complete and file:
- 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
For formal probate, you must complete and file:
- JDF 920 - Petition for Formal Probate of Will and Formal 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 711 - Notice of Hearing
- JDF 921 - Order Admitting Will to Formal Probate and Formal Probate and Formal Appointment of Personal Representative
- JDF 915 - Letters Testamentary
These probate forms are available on the Colorado Judicial Branch website.
Once the appropriate forms are filed and the filing fee is paid, a hearing date is assigned. The decedent's will is reviewed by the judge overseeing the probate court to determine if it meets Colorado's probate laws, and whether it is considered valid.
During this time, all heirs, potential heirs, and named beneficiaries have the legal right to contest the will in question. If the will is contested, the formal probate process will be longer and more costly.
What If There Is No Will?
If a person passes away without having a will, this is referred to as an intestate estate. The probate process for an intestate estate may be either formal or informal. For example, the process may qualify as informal if there is clear succession. However, some of the decedent's assets will not be required to pass through the probate process even if the decedent did not go through an elaborate estate planning process (e.g., life insurance proceeds do not go through probate, but pass directly to the named beneficiary).
Other examples of assets that bypass the probate process include:
- Accounts that take advantage of a payable-on-death feature, which are payable directly to the named beneficiary
- Funds that are in the decedent's IRA, 401(k), or other retirement accounts
- Real estate conveyed by a transfer-on-death deed
- Any real estate or other titled property that is owned by another person in joint tenancy.
Beyond these circumstances, if there is no will, the informal probate procedure is only used when there is a) clear succession; and b) there is no expectation that an heir will contest the matter.
In short: the easier it is for a personal representative to determine which assets go to whom, the more feasible informal probate is.
If, on the other hand, there is no will and it is difficult to determine who will inherit from the intestate estate – or if there is a concern that an heir or potential heir may contest designations – formal probate is required.
Are the Rules of Probate Different If the Estate is Small?
As you may have expected, the probate process for small estates is simplified.
In cases of small estates, the probate procedure involves completing a small estate affidavit for $83, and filing it with the probate court. The filing fee for both formal and informal probate of a will is $199.
Once the affidavit is completed and approved, the heirs may collect the decedent's assets. Sound easy? That’s because the process is much quicker and less expensive than both the formal and informal probate processes.
The probate court, other than receiving and approving the affidavit, is not involved in small estate probate. With informal probate, the court plays at least a small role, and with formal probate, tends to play a much larger role. With small estates, however, there is no court interference.
Heirs may collect a decedent's assets immediately after the affidavit is filed for a small estate. With both formal and informal probate, this is not possible. There are certain steps of Colorado probate that must be followed before assets may be distributed to heirs, such as the personal representative paying the debts of the estate and handling any outstanding tax matters.
Is Probate in Colorado Complicated?
The Colorado probate process can become messy, though the extent will depend on the complexity of the estate as well as whether heirs, potential heirs, debtors, creditors, and potential creditors may contest some part of the probate procedure.
A few potential complexities that may arise from Colorado probate include estate tax law matters, owning real estate both in Colorado and outside of the state (this is why it is important to understand how to protect your real estate assets), owning part or all of a business, dealing with multiple versions of a will or an invalid will, or handling the absence of a will, along with identifying and locating all of the required heirs according to Colorado probate law.
Can I Do It on My Own?
There is technically no legal obligation for you to have an attorney for probate action. The Colorado Judicial Branch offers all of the probate forms online for anyone who wishes to represent themselves.
That said, it’s important to keep in mind that the probate court cannot provide you with legal advice. If a creditor objects to any part of the process, or if an heir or potential heir contests the terms of probate, you will be required to either represent yourself or hire a law firm to represent you.
Should I Do It on My Own?
There is a significant difference between being able to do something on your own, and knowing you can successfully handle it on your own.
Now that you know more about how probate works, it’s time for you to consider whether you are capable of managing the complexities of probate on your own. Your answer will be a personal one, though there are a few things you’ll definitely want to keep in mind as you make this decision.
For one, the probate court and its staff cannot give you legal advice related to the administration of the estate. Though the Denver Probate Court Pro Se/Self-Help Centers provides telephone-based assistance related to probate matters, the information they provide is general in nature, and is related directly to the probate procedure. For instance, if someone contests the will or the administration of the estate, you will largely have to handle the matter on your own.
Before deciding whether you should represent yourself for the probate process, you should consider whether it is likely for probate litigation to occur and if you will go to probate court.
What If I Live Out of State?
For those who reside outside of the state of Colorado, the probate process can be very difficult to manage on your own. It is recommended you hire a law firm to represent you.
As a named personal representative there are several steps that you must complete in addition to the final accounting. There are also specific notifications you must make, and hearings you must attend in person.
How Long Does It Take to Probate a Will in Colorado?
In Colorado, it takes a minimum of six months to probate a will. If the will is contested or if there are other complexities involved, the process can take longer.
Why Does It Take So Long?
Probating a will might seem as though it takes forever. However, the time-consuming nature of the process is necessary, as it gives creditors and heirs time to be notified of the death and the ensuing deadlines and court dates.
In response to such notifications, creditors will have the legal right to file claims against the estate. The time allotted also ensures that the personal representative has enough time to complete the necessary steps, such as the collection and inventory of personal property.
Should there be any concerns vocalized by the probate court, the personal representative, an heir, or an interested party about the will's validity or its contents, you can prepare for the process to become that much more time-consuming.
How Much Does Probate Cost in Colorado?
Colorado probate costs will vary depending on whether you’re looking at:
- A small estate ($83)
- Formal probate ($199)
- Informal probate ($199).
In addition to these costs, other filing fees may be required, especially for formal probate. For example, if the administration of the estate is more complex or if probate litigation occurs, additional costs may apply. Should you decide to hire a law firm to represent you in the probate action, you will pay a fee for the services rendered.
How Are Probate Lawyers Paid?
Generally speaking, probate lawyers are paid by the personal representative who decided to hire them. There are some probate litigation matters where the probate court may require one party’s attorney fees to be paid by the other party.
Are Lawyers Paid from the Proceeds of the Estate?
Unfortunately, lawyers may not be not paid from the decedent's assets, or from the proceeds of the estate. They are compensated directly by the person who hired them.
The exception to this is if the decedent named their lawyer as their personal representative. In this case, the representative is entitled to receive payment for their service from the estate. Moreover, if the named personal representative was the decedent’s attorney, the attorney may also be paid from the estate.
A final circumstance where a lawyer could be paid from the decedent’s assets is if the deceased had a trust within the estate, and the lawyer in question was named the trustee. There are some situations where your estate planning legal fees may be tax-deductible that could result in some cost savings.
Can You Avoid Probate in Colorado?
Yes – and this is why proper estate planning is so important because you may be able to avoid the Colorado probate process. Some examples of tools you can use include:
- A living trust
- Life insurance policies
- Payable-on-death bank accounts
- Payable-on-death savings accounts
- Transfer-on-death securities
- Transfer-on-death real estate deeds
What Can I Expect from Probate Court?
During an informal probate process, the administrative staff will examine your application to ensure it is properly filled out. Afterward, a fiduciary will be appointed to monitor the personal representative's progress in the administration of the estate. A commencement notice of probate action will also need to be sent to the relevant parties, and hearings will be scheduled that the personal representative must attend. Heirs and creditors may also attend.
Formal probate is similar, but a judge will oversee more of the probate process. If there is a will, the judge will determine if it is valid, in addition to hearing objections, contests, and other probate litigation that may arise.
Do I Need to Be Present During a Probate Action?
If you are the personal representative, then yes – you will need to be present during probate hearings. As a personal representative, you have the legal responsibility to act on behalf of the estate in question. Much like any other court hearing, it is important for all involved parties to be present.
What Kind of Probate Is Right for Me?
It isn’t always easy to determine the best Colorado probate process for your needs. Small estates are easiest to identify, since they are comprised of personal property worth less than $70,000 and no real property. Choosing between informal or formal probate can be trickier; it’s difficult to ascertain whether someone may want to contest the probate action. Even if everyone seems to be on the same page in the beginning, things may change.
Disclaimer: the following FAQ on Colorado's probate procedure this is not a substitute for legal advice. If you are seeking legal advice pertaining to Colorado probate or estate planning, schedule your free consultation with McGann Law Group today!