The probate process comes into play when, among other things, a family member or loved one passes away. In general, probate courts protect adults and minor children in matters where the State believes they should be protected (like in the case of conservatorships and settlements for protected persons). Most people are familiar with probate because probate courts are responsible for the judicial process of determining a will’s validity and settling estate matters if there is no will.
During a probate case involving an estate, an individual petitions the court to appoint a personal representative to carry out the estate’s business. The personal representative, or executor in other jurisdictions, acts on behalf of the person who passed (“decedent”). When a decedent leaves a will, the personal representative is usually a person who was nominated in the will and is responsible for carrying out the last wishes of the decedent. This often involves notifying creditors of the decedent’s passing, making an inventory of the estate, paying known creditors, selling estate assets, and finally distributing assets to whomever the decedent picked to receive from the estate (“devisee”).
If the decedent did not leave a will, the personal representative is one of a number of interested persons according to the laws of the State of Colorado. The people who inherit are called heirs, and the distribution of the estate flows according to Colorado Intestate Succession Law.
Probate administration is technical and can be confusing. Effective estate administration begins with good planning. Often, incomplete or improper estate plans throw families into probate administration without a guide. This adds stress to an already frightening and difficult time of mourning a loved one’s passing.
Having a probate attorney in Denver, CO help plan your estate or execute your deceased loved one’s will guarantees that the probate processes will go as smoothly and properly as possible.
THE PURPOSE OF PROBATE
The probate process finalizes a decedent’s financial affairs. It exists to ensure that debts are paid and properties and assets are properly distributed to the intended parties without fraud or complications. This smooths the process of passing estates down to the devisees or heirs.
Probate also helps ensure that all financial affairs that involve the deceased are settled. This includes the payment of outstanding debts that and filing income tax returns. It’s a very detailed, involved, and complex process to make sure that the estate goes into the right hands and is properly managed and distributed.
After the deceased’s obligations have been met and the remaining amounts have been distributed to the intended heirs, or those set forth by law if there was no will, the personal representative can request that the court close the probate case.
Because of its complexity and sensitivity, it is easy for a Denver probate case to get quite confusing. A knowledgeable attorney’s assistance can help iron out the wrinkles and swiftly and effectively take a party through the probate process.
IS PROBATE ALWAYS REQUIRED?
Not all estates go through the probate process.
There are instances when the estate falls below the minimum threshold for probate. These are called small estates. In this case, the court does not need to supervise and mandate the estate’s settlement.
Some assets are not subject to probate. This means that they are automatically transferred to the intended beneficiaries after the decedent’s death and do not go through probate. Some assets that fall under this include, but are not limited to:
- Beneficiary designations. If the deceased had a life insurance or retirement accounts, a clause stipulates who will receive the funds when the owner passes away.
- Note that if a life insurance policy has no beneficiary designation, it goes into the probate estate.
- Joint tenancy. In joint tenancy, the surviving tenant immediately becomes the owner of all the assets when the other tenant passes away, without the need for probate.
- Payable on death or transfer on death accounts. Some banks and brokerage firms offer payable on death or transfer on death setups where the owner names a beneficiary who will receive the account assets after he or she passes away.
There is also a way to avoid probate in Denver, Colorado through estate planning. A knowledgeable estate planning attorney can structure a person’s estate plan in a way to avoid probate. This often includes drafting and transferring property into a trust before a person passes.
WHAT HAPPENS IF YOU DON’T DO PROBATE?
If Colorado law requires an estate to go through probate, the estate must be probated.
If probate is required but not done, the devisees will not be able to receive their inheritance. The decedent’s assets will be frozen or held as unclaimed property. Sometimes, a creditor will force open an estate to recover money the decedent owed them. Going through probate court is the only way to appoint a personal representative and access assets like bank accounts and real property.
THE PROCESS IN COLORADO
The process of probate, although required, can delay the distribution of assets. Typically, a probate case in the Denver metro area completes in a span of 7 to 9 months. The process is as follows:
- A person locates the decedent’s ORIGINAL will and lodges it with the court in the county where the decedent lived.
- A potential personal representative files the petition for probate with the court.
- The court appoints the personal representative and issues letters of administration or testamentary to allow the personal representative to administer the estate and conduct whatever is necessary to settle all financial affairs and distribute the assets.
- The personal representative has deadlines to file an inventory of the assets, compile the creditors, and inform the creditors of their debtor’s death. The creditors have a statutory time period to make their claim.
- The personal representative determines the value of the estate and pays taxes as needed.
- The personal representative files the decedent’s last year of personal taxes.
- The executor pays all viable claims made by creditors. All other issues or contests will also be resolved at this point.
- When everything is settled, the assets will be distributed to the named beneficiaries.
- The personal representative files a motion to close the estate.
Depending on complications and unique situations involving the estate, the probate process can experience a delay. Some circumstances that could delay the process include contests to the will, breach of fiduciary duty by the personal representative, estate litigation put forward by the creditors of the deceased, etc. Consult an expert probate attorney in Denver to avoid delays or any other legal issues.
HOW A PROBATE LAWYER CAN HELP
By now, it is surely evident to you that the probate disputes and the process can be very complex and overwhelming. This is especially true for the personal representative who takes charge of administering the estate, settling the decedent’s debts, and distributing the assets. Especially when involving sudden deaths, the personal representative may not know what to do and how to begin.
This is where a probate lawyer in Denver can help. They can make the process much more seamless and manageable for the personal representative, helping them make wise decisions and properly administer the estate. Additionally, in Colorado, a personal representative’s reasonable costs related to administering the estate are usually recoverable from the estate, so hiring a lawyer may not cost the personal representative anything. A lawyer can assist in the following actions:
- Ancillary proceedings
- Determining and collecting assets
- Estate administration
- Probating wills
- Tax filings
- Trust administration
- Unknown heirs, etc.
Further, a probate attorney in Denver, Colorado can also help you set up your estate plan so you can make the probate process easier for your personal representative, heirs, and devisees. An experienced attorney can also advise you on things you can do to avoid probate and make distribution easier and quicker.
CONTACT OUR PROBATE ATTORNEYS TODAY
The probate process can be complex, confusing, and often emotional for the devisees and heirs, considering they are mourning a family member or close friend’s death. These legal proceedings can get emotionally, physically, and mentally taxing without the help of a law firm and legal representation, adding to the burden of losing a loved one.
At Burnham Law, our attorneys have years of experience offering legal services and consultation to Denver clients in all related practice areas such as elder law, probate and estate law and planning, handling trusts and wills, as well as succession issues. Let our probate attorneys carry part of the burden for you. We can help you throughout the entire probate process so that you can focus on moving on and starting new. Our seasoned lawyers will guide you and advise you through every step of the probate process so that you can be confident that you’re administering the will legally and properly.
If you are planning your estate, our lawyers can also help you make the best preparations and ensure that your goals are met. Contact our probate lawyers for a free consultation today.