When is Probate Necessary?
When a person dies, their assets must be distributed. Titles must be transferred from the decedent to their devisees or heirs. All wills and intestate estates have to go through probate. The amount of involvement from the court, the challenges, and the expenses involved vary from estate to estate.
An estate will be of concern for the recipients named in the will, the devisees, as well as heirs, who are recipients named by the law.
Three Types of Colorado Probates
There are two types of estates. When someone passes away and leaves behind a will, it will enter probate and is called a testate estate. Intestate estates are how we refer to estates that have no will.
Colorado has three distinct probate types. They are as follows:
When less than $50,000 and no real property is involved, it is referred to as a small estate. This has nothing to do with whether or not there was a will. This $50,000 includes all bank accounts and cash. In the case of small estates, the distribution of assets can typically be simple.
It is possible to avoid probate court action with a small estate. The devisee or heir will need to swear an affidavit that they are entitled to the assets and that they will fairly distribute it to other heirs or entitled devisees.
These estates are typically considered informal. A valid will is presented, or there is clear intestacy. There is no expectation that the will might be contested, and there is a personal representative who is qualified and ready to be appointed.
The probate court does not play a large role in the administration but will offer direction in the will or the intestacy laws to ensure they are appropriately followed. They supply a medium for the heirs or devisees to ensure the personal representative is behaving responsibly.
Contested Estates and Invalid Wills
The third type of estate in Colorado is considered “formal.” Questionable wills fall under this category. The formal probate may be appropriate in a number of cases, and these include the following:
- Contested wills
- Unclear wills
- Invalid wills
- Significant administrative challenges like identifying heirs, or property title disputes
In these cases, the personal representative will likely have to seek approval from the court for each transaction. But, there is also a chance that the personal representative may be able to do their administrative duties for the estate without supervision.
Formal and informal probates must be opened before the court for a minimum of six months. Though, the distribution of assets and administration of the estate may take far longer. Even the most simple, straightforward estate may bring up genuine questions. Having legal representation during this challenging time can take a lot of additional stress off of everyone involved.
Must My Estate Go Through Probate?
The best way to determine this is to speak to your Colorado estate planning attorney with Brady, McFarland & Lord. They can advise you on the best way to construct your estate, or they can walk you through the probate process if you have lost a loved one. Our goal is to make the process as simple and painless as possible. We understand that these are sensitive matters and we want to ensure that your goals are met with the most compassion possible. Contact us today with all of your estate planning or probate needs.