5 Surprising Myths about Probate in Colorado
Perhaps you recently lost your parent, and he or she named you as the estate’s personal representative. Or maybe you and your brothers and sisters want to restrict the actions of an executor who’s been behaving unethically. In either case, you might be operating under some fundamentally misguided assumptions about how the Colorado probate process works and what your rights and obligations are with respect to that process.
Let’s correct the record.
Myth #1: The personal representative has free reign to do what he or she wants to do with the estate.
The Truth: The personal representative has a fiduciary duty both to the estate and to its beneficiaries and creditors.
For instance, the personal representative cannot, on a whim, decide to take and distribute assets to favorite family members first before paying debtors. Nor can the personal representative mislead beneficiaries or creditors or deliberately hide information from them. If you believe that the representative has violated this fiduciary responsibility, contact a qualified Colorado probate attorney for help.
Myth #2: The estate’s creditors are first in line to collect money from the estate; they must be able to collect money before heirs do.
The Truth: Not necessarily.
The rules for how and when the estate’s assets and debts should be distributed can be quite complicated. In some cases, creditors’ claims can be disputed or beneficiaries can be paid first. Harassing phone calls and scary notices from debt collectors may lead the personal representative to believe that the creditors must be paid at once. Before paying such creditors, seek insight from a qualified probate lawyer to determine a strategic response.
Myth #3: If you believe a will has been illegally altered or falsified, there is nothing you can really do, once the person who made the will has passed away.
The Truth: You may be able to contest the will.
For instance, perhaps a cousin or a “family friend” convinced the deceased to change his will three weeks before he passed. You and your relatives could argue that he had not been of sound mind when he made the changes. Or you may be able to produce another version of the will that should supersede the one submitted to the court. A Colorado probate lawyer can help you rectify the situation and potentially bring action against the person responsible for fraud.
Myth #4: If the will nominates you as a personal representative, you can immediate start making decisions and taking action on behalf of the estate.
The Truth: The probate court must first confirm the nomination.
You must first file Letters of Testamentary or Letters of Administration, depending on whether the deceased wrote a will or not.
Myth #5: “Heirs” and “beneficiaries” are the same thing.
The Truth: These terms refer to different groups of people.
Beneficiaries are people or institutions named in a will, who can receive the assets from an estate. In the event that there is no will, the laws of Colorado will determine the heirs of the estate — who may be different from the beneficiaries.
For help understanding your rights and obligations with respect to Colorado probate law, turn to our legal team for thorough and effective assistance.