Probate is the court-supervised process of legally recognizing someone’s death, validating their will (if there is a will), and administering their estate. During the probate process, the court typically appoints a qualified individual known as the personal representative to handle the administration of the estate. The personal representative is the same position that other states call an “executor.” Administering an estate involves paying off the final debts of the estate to the deceased’s creditors and then distributing the remaining assets to legal heirs and beneficiaries, either according to the will, or if there is no will, then according to Colorado law.
The process can be a complicated one, but the knowledgeable probate attorneys at Peakstone Law Group can help you navigate it while honoring your loved one’s final wishes. We understand how complex and emotional it can be to administer a loved one’s estate, which is why we’re committed to guiding you every step of the way. Contact us today to learn how our compassionate team can help you during a free initial consultation.
Colorado Probate Laws
Anytime someone dies in Colorado, their will must go through probate before their assets can be transferred to heirs. If a person dies without a valid will, they are said to have died “intestate.” Their estate will go through a probate process laid out by Colorado’s laws of intestate succession. The process is similar when an estate is intestate, but the court will normally appoint an appropriate personal representative and Colorado statutes would determine who inherits what from the estate.
The level of court involvement and the complexity of the probate process depend on the specifics of the estate. There are three main types of probate in Colorado:
- Informal probate – Informal probate is allowed when the deceased left behind a valid will or clearly died intestate, and no parties are expected to contest the way their assets are distributed. When this occurs, the court typically takes a hands-off approach and appoints a personal representative to administer the estate according to either the deceased’s will or state intestacy laws.
- Formal probate – Formal probate is necessary when the deceased left behind a will that is unclear, contested, or otherwise invalid. It could also be triggered if succession is unclear or litigation is anticipated. When the validity of a will is called into question, it typically takes much longer to validate the will in probate and to administer the estate. Once the will is validated, the court may still order the personal representative to seek approval for every transaction involved in the administration of the estate.
- “Small estate” probate – If a person dies with no real property (houses, land, etc.) and $74,000 or less in personal assets (as of 2022 – the value of a small estate in Colorado is adjusted each year for the cost of living), their estate is eligible for a simplified probate whether or not they left behind a will. In “small estate” probate, heirs can avoid opening a probate case and simply collect assets from the estate by filing an affidavit with the court.
How to File Probate in Colorado
The process of filing probate in Colorado can vary significantly depending on the type of probate required. As a result, the first step is to determine whether the estate is eligible for simplified probate or informal probate. If not, it will be necessary to go through the formal probate process.
Once you know the type of probate the estate will go through, the next step typically involves validating the deceased’s last will and testament.
Next, the personal representative (executor) nominated in the will must obtain court approval to administer the estate. If there is no will, or if the will does not nominate a personal representative (executor), the court will hold a hearing to choose an appropriate personal representative unless all heirs with equal priority to be appointed can agree. Once the administrator has approval, they can proceed with publishing notices to creditors and paying off the final debts of the deceased, and then distributing any remaining assets to valid heirs.
Filing probate can be a complex process from start to finish, even when an estate is relatively simple. Dealing with court appearances, creditors, and deadlines requires lots of knowledge, time, and patience. That’s why it’s best to work with an experienced probate attorney who can handle every aspect of the case on your behalf.
How Long Does Probate Take?
Colorado law requires both formal and informal probate cases to remain open with the court for a minimum of six months. This lengthy process allows plenty of time for potential creditors and heirs to make their claims and prevents errors that may require the court to reopen an estate that has been closed. In practice, the full administration of an estate can take much longer than six months, especially if:
- There are a large number of beneficiaries or creditors
- Beneficiaries live far away from the court
- The estate includes assets in more than one state
- The estate includes unusual assets, such as patents or rare antiques
- One or more parties contests the validity or contents of the will
- There are multiple wills and it’s unclear which supersedes the others
Should You Hire a Lawyer to Help File Probate?
Many people ask, “Do I need a lawyer for probate?” It’s always a good idea to seek professional legal advice during the probate process. A dedicated probate attorney can make the process go much more smoothly by:
- Knowing the nuances of probate law and avoiding costly mistakes
- Understanding the legalese in which wills, contracts, and other documents are written
- Communicating with the court, creditors, and beneficiaries on your behalf
- Preparing and filing inventories, affidavits, and other probate forms in Colorado probate court
- Identifying and appraising all assets contained in the estate
- Determining how much is due in estate, income, or inheritance taxes
- Managing the final debts and bills of the deceased
- Providing professional, unbiased counsel to surviving family members
- Administering the final distribution of assets after bills and taxes are paid
Could I Be Held Personally Liable for Making a Mistake as a Personal Representative?
It is rare for a personal representative operating in good faith to be personally liable, but not impossible. Personal liability is much more likely if a personal representative intentionally abuses their authority and harms the estate and interested parties or improperly comingles or misappropriates estate assets. Personal representatives are trusted to handle critical tasks and ensure the estate is handled properly, so they are held to extremely high standards.
However, even without intentional misconduct, if your mistake results in a financial loss for the estate, beneficiaries can sue you personally for breach of fiduciary duty. You could even face litigation or removal as the personal representative if you fail to properly communicate to creditors or beneficiaries during the probate process or otherwise breach your fiduciary duties.
Because the consequences of even an honest mistake during probate can be severe, it’s in your best interests to work with an experienced Colorado estate lawyer rather than try to handle the process yourself.
