To Probate or Not To Probate:

Making Sense of the Probate Process and When It’s Necessary

Probate. The notion inspires as many different reactions as the word has letters. Some people experience immediate uncertainty or doubt. Others feel relieved that a process exists to guide them through a perceived legal labyrinth. Some retreat entirely.

Still others arrive in my office, seeking answers to very understandable questions. These early questions often center on the purpose of the probate process, its length and structure, and what they can expect during a typical probate.

This wide array of reactions and questions brings us to Hamlet’s great question (paraphrased, of course): to probate or not to probate? In the wake of a loved one’s death, why consider probating the estate at all? Why not just let the family claim their inheritances—after all, it’s spelled out so clearly in the will? Why bother with attorneys, courts, and paperwork when all that matters is that your loved one is no longer with you?

The answer must begin with an explanation of the probate process.

The Point of the Process

In the wake of a significant death, our emotions often drive us. Most of us are compelled to honor the wishes of our departed loved ones. Our reasons vary and, whatever their roots, they are often strongly held. For some of us, it becomes a matter of principle, out of respect for the one we loved.

The law is not so sentimental, but it does respect the wishes of the departed. The law has consistently honored the autonomy of individuals and, in that spirit, the law defers whenever possible to the written directions and wishes of those who have passed. These wishes are expressed in a last will and testament. In Colorado, wills can be professionally prepared or, subject to certain constraints, scrawled by hand.

The will provides order and serves as the best guide not only for surviving relatives, but the court. In the event that a loved one did not leave a will, the law imposes its own order, found in state statutes and known as “intestacy laws.”

Regardless of whether the decedent—that is, the person who passed away—left a valid will, the purpose behind the probate process remains the same: to distribute the remaining property of the decedent to the appropriate parties and, when applicable, with good title. The “appropriate parties” can be those named in the decedent’s will to receive property, those determined as “heirs” when the decedent left no will, or creditors of the decedent. “Good title” refers to a marketable, transferrable title that is free of all liens and claims, and is usually associated with real property. The probate process is structured so that the decedent’s property can pass to the proper parties and with good title. Like I said, not so sentimental, but nevertheless an important legal function.

To Probate or Not To Probate

Now that we’ve covered the background and purpose of probate, we’re back to the question: to probate or not to probate?

This question begins with another: did the decedent own real property? For example, did the decedent own a home? If the answer is “yes,” it is important to note whether the decedent’s real property belonged to a trust or the property deed granted a survivor of the decedent joint title with rights of survivorship. In Colorado, it is possible to avoid probate if the decedent did not own personal property valued in excess of $64,000 and the decedent’s real property belonged to a trust or passed by operation of law (automatically, upon the death of the decedent) to a joint tenant listed on the property deed. In these instances, a decedent’s estate can avoid probate because the title to the decedent’s property has been satisfactorily passed from one owner to another. That is, in the future, the title’s marketability will not be called into question.

If the decedent did not own real property—if, for instance, they rented their residence—the only remaining question is: did the decedent’s personal property exceed a value of $64,000? If the answer is “no,” probate is not required. Instead, the decedent’s property may be distributed using a small estate affidavit. If the answer is “yes,” probate will be required.

For all of you visual learners, I present a flowchart.

To Probate or Not to Probate

Now What

As you read this, you may be thinking, “Well, that seems simple enough, but what’s next?” Or you may be thinking, “My situation is so much more complicated than this, and I need more answers.”

That’s where we can come in. At Mile High Estate Planning, our team of attorneys would be happy assist you with the entire probate process. If you are seeking help or advice following the death of a loved one, you can always contact us at (720) 924-6171 or Info@milehighestateplanning.com.