What is Probate?
For many families, probate is a scenario to be avoided after a loved one dies. Simply defined, probate is the process where your property must go through the court system to be distributed after you die. This is the formal process whereby ownership in the property is transferred to the beneficiary. Probate can involve estates for which there is a will or ones where the deceased did not have a will with instructions for property distribution.
Probate involves a proceeding in front of probate court where a will is validated and an executor is given the go-ahead to distribute property in accordance with the will’s instructions. Essentially, the executor of the will is given the green light and marching orders from the probate court to begin their work once the will is validated. Creditors are paid off and the property is then distributed.
As you can see, probate can be a costly and time consuming process that involves going into court. As a result, some families seek solutions that can keep them out of probate, both to minimize expenses and shorten the time frame where the beneficiaries can take possession of the property.
Is probate always necessary
Probate is not always necessary. It is required when there is a will or no will whatsoever. There are numerous ways that you can avoid probate by advance estate planning.
There are certain circumstances under which probate is not necessary. For example, if you have a beneficiary named for a certain asset, that asset can be given directly to the beneficiary without the need for probate. Alternatively, if you have established a trust for your assets, probate is not necessary for those assets that have been placed in the trust since there is no change in ownership as the trust was and remains the owner of the property.
In addition, if your assets are owned jointly with rights of survivorship, these assets will also not need to pass through probate. Instead, they will go directly to the surviving owner.
Taking steps to avoid probate
To the extent that you are able to, you should structure your estate plan to keep your assets out of probate. Working with a Colorado estate planning attorney, you can set up any one of a number of different asset structures that can keep your property out of probate. The most common of these structures are revocable or irrevocable living trusts. When you pass away, these options will automatically take effect with no need for a court proceeding. Here are a few of the options that are available to you in order to avoid probate.
A living trust is one of the most effective ways to avoid probate. The reason why a living trust does not go through probate is because through the creation of the trust and funding it with assets, the trust becomes the legal owner of the asset. Thus, after the grantor of the trust dies, the trust still lives on after they have passed.
In order to create a trust that can successfully avoid probate, the grantor draws up a trust agreement with the terms of the trust. This will include appointing a trustee to manage and administer the trust. The grantor will then move assets into the trust.
The trust then becomes its own separate entity. The trustee technically has ownership of the property since it is the trustee who can make decisions as to how to invest and dispose of trust assets. While the grantor is alive, the trustee is a fiduciary to the grantor and must manage the property in their interest.
Probate is the process where ownership is transferred. Because the trustee has ownership of the property, the trust maintains that ownership after the grantor dies and there is no probate process that is necessary to complete any ownership transfer. A Colorado probate attorney can assist you in establishing a trust that can help assets stay out of probate.
Simplified Probate/Small Exemptions
Some estates do not have to go through a full probate proceeding because they are below a certain dollar threshold. Many states have an exception to their probate laws that allow for a summary probate proceeding for smaller estates. Given the expense and difficulty involved in probate, states do not want to devote the resources to full procedures when there are not valuable assets. In other words, if you are not dealing with a large estate, probate (or at least full probate) may not be necessary. This will greatly reduce the amount of time and money that you will need to spend when an estate goes through probate.
Simplified probate can be as easy as filling out a couple of forms and then waiting a certain period of time before beginning the process of distributing the assets. There are other simplified procedures in Colorado that allow inheritors to file an affidavit to claim an asset if the value of the asset is below a certain amount.
However, for larger estates, simplified probate will not be an option and probate will be necessary absent some advance estate planning.
Colorado Probate Administration Attorney
A probate administration attorney can advise either beneficiaries or executors in the event that an estate goes into the probate process. A probate administration lawyer can assist in the process even if there is not litigation. The lawyer will certainly be valuable in the event that the will being contested in probate.
Probate administration attorneys will be especially necessary if there is a complex estate or if the executor and the beneficiaries have a tense relationship. As a beneficiary, you may need a probate administration attorney to help look after your interests.
While there are some estates that may not require the services of an attorney, having a probate administration lawyer on your side can help make the probate process less painful and can help you avoid some of the pitfalls that can slow this period down for you. Many people do not understand probate laws so it is helpful to bring an outside expert into the picture who has experience in this area. Moreover, probate often frightens people who have heard stories about rough experiences, and a Colorado probate administration attorney can help put you at ease.
Colorado Probate Litigation
There are certain instances in which a will or an estate distribution can be challenged in Colorado. There are numerous different examples of different types of probate litigation. The most common types of probate litigation can be challenges to a will or the appointment of a personal representative. These cases can take some time and may drag out distribution of an estate.
Probate litigation generally tends to happen when there is a lot of money or other assets at stake. It is also common when there are siblings or family members who do not tend to get along. While sound advance estate planning can help forestall some probate litigation, it is not always possible to keep an estate out of probate court if there is someone who is determined to challenge it no matter what.
What if a Will Is Contested?
Wills can be contested and challenged in probate court. If the person challenging the will manages to successfully attack any one provision of the will, then the entire will is thrown out and deemed invalid and the court will act as if there is no will when deciding the disposition of the property. When contesting a will, litigants will often file a challenge to either the procedure of signing the will or the fact that the testator did not have the mental capacity to sign the will.
A challenge to the will starts the litigation process unless the parties are able to work out their dispute. However, you should know that overturning a will is not necessarily easy. If the challenge is to the capacity of the testator, it will require that you prove certain facts in court and you will need a Colorado probate litigation lawyer to help make your case.
Will contests may require witnesses and evidence to overcome the sometimes high bar that state law establishes to overturning a will. In addition, you will need to follow the procedural rules that courts have for filing the case. This cases can take time to make their way through the legal system and will contests are usually hard fought cases unless there is some settlement prior to the trial. If it is at all possible, you should work to avoid a will contest while having an attorney on your side to fight if necessary.
The Probate Litigation Process in Colorado
In Colorado, the court that will handle the probate litigation depends on where you live. If the case is filed in Denver, there is a separate probate court in Denver County. In the rest of the state, probate cases are heard in district court of the particular county where the deceased lived.
Probate litigation begins like any other case. The party can begin by filing a petition to challenge the validity of the will. Alternatively, the party can file an objection within the context of a probate proceeding that has already begun. This claim must be brought within a certain time period after you have received notice of probate.
Like any other litigation, the parties may be allotted some time for discovery where they can obtain information from the other side and then take depositions of witnesses. Many cases settle at some point during this process. However, if there is not a settlement, there will then be a trial with witness testimony before the probate judge issues their ruling in the case.
Probate Dispute Attorney in Colorado
As you can see, there are many steps in the process where you benefit from the help of a Colorado probate dispute attorney. A probate dispute attorney can answer questions like the ones below or any other inquiries you have about the probate process. Sometimes, even if there is no litigation, it is best to be prepared with a probate dispute attorney to both put your mind at ease and to be prepared in case there is litigation.
When estates go through probate, people have a vested interest. How probate unfolds can impact the amount of their inheritance and their financial situation for the rest of their lives. Therefore, if the will does not leave the amount of property that they expect, people may be inclined to file an action in probate.
Many times, there is bad blood or tension between the family members that finally spills out into the open when the loved one passes. Probate is often viewed, whether correctly or not, as a last chance to settle scores. In other instances, the siblings just may not be able to communicate or work together after years of frayed relationships.
However, there can also be compelling reasons for probate disputes. You may believe that one of your siblings unduly influenced your parent when they perhaps were under some undue influence. This would result in them receiving a disproportionate share of the assets. You could also believe that the personal representative was not validly appointed.
There may be something that seems wrong about the process through which your loved one’s will was signed that requires a challenge in probate. Sometimes, there is a lack of transparency in the process which could lead people to believe that they have not been dealt with fairly and that something is amiss.
Communication and transparency ahead of time can head off many probate disputes but unfortunately not all of them.
When there is a small estate involved, the time and effort to distribute the property will be less than what it takes to get a large estate through probate. There are several different ways to either circumvent probate or streamline the probate process to cut back on costs and delays.
If the estate is valued at $66,000 or below, you can use an exception provided for in Colorado law that allows inheritors to claim their property by use of an affidavit. This allows those who sign the affidavit to claim small amounts of property without the need for a will to go through probate. All the inheritors need to do is fill out an affidavit and present it for payment.
Even if your estate is larger than $66,000, there are streamlined procedures available for probate that do not require you to go through a full formal probate. The court can be petitioned to allow these simplified procedures when there are no estate contests and there is a personal representative at the ready. The court still has a limited role, but the assets can be distributed without the full probate process, saving both time and money.
This depends on how complex and large the estate is and what your relationship is with the other beneficiary. If the will goes through probate and there is a large amount of assets or they are complicated to understand and distribute, it will help to have a probate lawyer to safeguard your interests and make sure that you are being treated fairly and legally. Similarly, if there are poor relationships with the other beneficiaries, it may be necessary to have a probate lawyer if you cannot trust the others.
If there are small estates or your estate qualifies for the simplified probate procedures, then you may not need a probate lawyer. However, if you do have a large inheritance, it will be helpful to at least consult with a probate lawyer to be aware of certain pitfalls that you can face in the process and what you need to be aware of as the case goes through probate. You will certainly need a probate lawyer if there is any type of litigation stemming from the will because they can fight for your interests.
This depends whether you are able to use informal procedures for probate. If the estate qualifies for the streamlined process, probate can be completed in just about a month, depending on how quickly the paperwork can be filed.
It is when you need a formal probate proceeding that the common perception of the process taking a long time becomes the reality. Formal probate is like any other court procedure that can take months at a minimum. There are numerous filings that are required with the court and notices that must be made. Creditors need to be given a chance to respond in order to protect their own interests.
Thus, if the estate is complicated in any way, you should count on probate taking at least six months, and more likely nine months to two years to complete in Colorado. Complicated estates or rancorous relations between the beneficiaries will generally slow down the probate process and increase the expense involved so it is best to try to resolve differences as harmoniously as possible to speed up the process. Be open to resolving the dispute through a settlement after litigation has been filed because that will save you some time.
The more complicated the estate is, the higher your probate costs will be. These costs will increase even more if there is litigation.
There are various costs to probate, and attorney’s fees are just one element of the cost. There are also costs for appraisals of the property and other court costs. In addition, the executor can also receive a fee for their work. It is not unrealistic to expect that probate can cost at least three percent of the value of the estate. An upward estimate of the cost can be twice that, with the fees exceeding five percent of the estate. Thus, you have every interest in avoiding probate through estate planning.
However, if you find yourself in probate, there is likely not much you can do to minimize the fees. The lawyer is entitled to reasonable fees for the services that they have provided. In a best case, you have minimized the amount of contention and litigation that results from probate, but if it is a difficult case, be prepared to pay a substantial amount in legal fees.
It is the executor of the will who has the obligation to send notice of probate. The requirement is that the executor send notice to any interested parties. This will include everyone who has been named as a beneficiary in the will. They should receive notice either through the mail or from a process server. If the executor cannot locate the beneficiaries, they can publish notice of probate in a local newspaper and the beneficiaries are considered to have been informed. The notice begins the right of the beneficiaries to become involve in the probate process.
In addition to the beneficiaries, the executor must also notify the deceased’s creditor of the probate process. Probate is the last chance that creditors will have to have their debts satisfied from the deceased’s assets so it is vital and fair that they have notice of probate so that they can protect their own financial interests. Notice to creditors is slightly different than the notice to the beneficiaries and the executor will have to mail them their notice directly. It is vital that creditors’ rights be respected as well and the failure to notify them will make probate more difficult and costly.
The notice detailed above is one of the steps when the case goes to probate. The first thing that happens when a case is in probate is that a petition is filed in the probate court in the county where the deceased lived. The court will appoint an executor or personal representative after a hearing has been held. After notice is given of the probate petition, the executor will take an inventory of all of the assets that are in the estate. It is also necessary to prove that the will is valid which can be done through witness testimony or affidavits. At that point, creditors will have to be paid in full before any money can be distributed to the beneficiaries.
After the creditors have been paid, the executor would then need to inventory and total the remaining assets in the estate. At that point, the executor would then distribute the remaining assets to the beneficiaries in accordance with the instructions in the will. Once all of the property has been distributed, the executor can close the estate and they have nothing more to do with regard to the estate. In other words, their duties are complete.
If someone passes without a will, the disposition of their property depends on their marital status and whether or not they have children. Each state will have its own laws that govern this situation. The general rule is that each of the heirs receives a share of the assets when someone dies without a will.
In Colorado, if one is married, the entire estate will go to the spouse when they pass away without a will. This is true even if the married couple have children together. If there are children but no spouse, the children will receive the entire estate and each child will receive their share.
The rules get more complicated if the decedent has children from both their current spouse and from a previous relationship. Colorado has a numerical formula that guarantees the first $225,000 in the estate to the spouse and then divides the rest between the children.
The best way to avoid having to go through this process and any resulting delays and acrimony is to ensure that you have sound estate planning with either a trust or a will.
The probate court will appoint the administrator in the event that there is no will. There is usually a priority order for who the probate court will appoint. Preference is generally given to the surviving spouse or anyone that the spouse nominates to act as an administrator. If there is no surviving spouse, the role will then fall to one of the deceased’s children. Typically, the children will need to agree on which one serves as the administrator. If they cannot reach an agreement, the court will hold a hearing and decide on the administrator. If there are no children, the court will look to other family members to act as the administrator.
The goal for estate planning usually is to avoid probate so the answer to this question would be a no provided that you have properly planned your estate. First, small estates below $66,000 will not need to go through probate as the property can be claimed by affidavit.
If there is a structure in place that can handle the ownership transfer, then probate is not necessary. For example, a trust is not technically an ownership transfer since the trust maintains the asset that it already had prior to death and thus, probate would not be necessary. Revocable living trusts are the best way to pass down property without the need for probate.
Not all property must go through probate. Property that is jointly owned does not go through probate because the other joint owner automatically takes full ownership upon the death of the other owner. Most often, this includes real estate like the family home that is jointly owned by both spouses.
In addition, any account for which there is a named beneficiary also does not need to pass through probate. This includes, for example, proceeds from a life insurance policy, a retirement account and a pension with survivorship rights.
Funds that are held in a payable-on-death account also do not need to pass through probate. Finally, personal property that does not require a title to hold ownership will also not need to pass through probate.