Will my estate have to go through probate?

People sometimes ask that question as though it were an obstacle course.

In truth, probate — the process of formally distributing a person’s possessions after death — has been enormously simplified by the Uniform Probate Code. Over 90 percent of estates in Colorado are not court supervised. Much less attorney time is involved. Usually families do most routine estate administration, such as paying bills and selling or distributing personal possessions.

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When is probate required?

When a person dies, some of their assets will automatically pass by law to certain people. These are called “non-probate” assets. For instance, if a husband and wife have a joint account and the wife dies, the husband gets the money in the account automatically.

The other major categories of non-probate assets are life insurance or retirement accounts, where someone specific is named as the beneficiary.

All other assets are called “probate assets.” Probate assets do not pass automatically and must be disposed of under the probate system.

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What are “probate assets?”

Household and personal items, bank accounts, stocks, automobiles, real estate – generally anything that is solely in the decedent’s name or doesn’t have a title.

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How do probate assets get passed to the heirs?

After all non-probate assets are determined, the remaining “probate assets” are generally administered in one of three ways:

1. BY AFFIDAVIT: If the amount of probate assets in an estate is less than $50,000, a successor can fill out an affidavit (available from Bradford Publishing, an attorney’s office, or on
the Colorado Judicial Branch’s website at www.courts.state.co.us under Self-Help Center). The person holding the assets would then release the assets to the successor without further action.

(With the help of an attorney, it may be possible to avoid court involvement by structuring your estate so that it contains less than $50,000 of probate assets.)

2. INFORMALLY: The vast majority of estates in Colorado are administered informally. Informal administration means the estate is not court-supervised. An attorney can have a limited role in these proceedings and a client should discuss with their attorney the amount of help they will need.

Administration of an estate is commenced by filing a number of forms with the appropriate district court. The forms are available from Bradford Publishing, an attorney’s office, or on the Colorado Judicial Branch’s web site at www.courts.state.co.us under Self Help Center. A trip to the probate clerk’s office at a Colorado district court will help you get started. While the forms are not very complicated, there are a number of pitfalls for the unwary. Failure to provide the necessary information will frustrate and delay the process. It may be best to get an attorney’s help.

Once the estate is up and running in informal administration, the personal representative (administrator) is free to pay the bills and taxes as the personal representative sees fit, and then distribute the probate assets either according to the instructions in the will or under the laws of intestacy if the decedent died without a will.

The estate administration can take as little as six months, for a simple estate, and as long as several years. Most estates in Colorado are administered in 7 to 12 months.

At the end, an estate may be closed informally by filing a form with the court that states that the Personal Representative has paid all debts and taxes and delivered the property to those entitled to it. Consult with your attorney about other details on administering and closing the estate.

3. SUPERVISED:
Most estates are not supervised. A supervised administration is needed when there is a dispute among the parties who have an interest in the estate. In this situation, the court has to settle the dispute and attorneys are likely to be involved the entire time.

Note that Colorado law requires a decedent’s will be filed with the district court within ten days of death, even if there will be no estate administration.
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Who’s in charge of administering an estate?

This person is called a “personal representative” because they represent the person of the decedent. A will drafted by a competent attorney almost always names a personal representative. Be careful in using unapproved will forms from the Internet or other sources to draft a will yourself. The unapproved forms may be incomplete or incorrect. The unapproved will forms can be more expensive to untangle in court than hiring an attorney to draft a will. If a person doesn’t have a will with these instructions, an heir or interested party can file a form asking the court to appoint the person to be a personal representative.

The personal representative: 1) locates and values all the assets, 2) gives notice to creditors; pays debts and taxes, and 3) distributes the balance of the estate to those entitled.
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A Word About Fees:

An attorney’s help will usually be needed, and the amount of help will depend on the complexity of the estate. Costs are reduced under Colorado law, but there are still some costs associated with handling an estate. To begin with, a court docket fee will be charged upon filing the petition or application for admission of the will to probate. To view the court fees go to Self-Help Center at www.courts.state.co.us. A lawyer may be engaged to file court documents, prepare tax returns or transfer documents, and will normally bill these services at an hourly rate.

You can reduce some of the legal costs by doing some of the work; your attorney can help you with this.

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