Probate comes into play when a family member or loved one passes away. It’s the judicial process of transferring property after the passing of an individual. Every estate must go through “probate,” but the level of court involvement will differ from case to case. Colorado has three general probate procedures: (1) small estate probate, (2) informal probate, and (3) formal probate.
In a probate process, an individual called the Personal Representative will be appointed by the district court (or probate court in Denver) to manage the estate of the deceased. If the deceased had a Will, the appointed Personal Representative would take charge of making the deceased’s last wishes happen and transferring their assets to the named beneficiaries. Absent a Will, the estate of the deceased will be distributed according to the laws of the State of Colorado.
The process of probate administration is complex and can be difficult to navigate. People who are in the process of planning their estate, as well as those who have recently suffered the loss of a family member, need to be aware of the probate process, what their rights are, and what to expect.
Having a probate attorney in Denver, CO, helping you plan your estate or execute that of your deceased family member will ensure that the probate and court processes are handled properly and remain as smooth as possible.
The Purpose of Probate in Denver
Probate ensures that not only is property distributed properly but also ensures that all financial affairs that involve the deceased are settled. This includes the payment of outstanding debts, filing a final income tax return, settling expenses, etc. 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 should a Will be absent, the Personal Representative can request the Court to close the estate. The estate closure process varies depending on which probate procedure is used.
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 manage the process.
Is Probate Always Required?
While probate litigation is a judicial process where the court supervises the distribution of assets according to the Will or the law, it’s worth noting that the level of court involvement can vary from case to case.
When the estate falls below a set threshold, Colorado law considers it a small estate. In this case, the court does not need to formally supervise and mandate the estate’s settlement. Instead, a qualified person fills in a small estate affidavit and collects the deceased’s assets for distribution among the heirs. Small estate affidavits are binding legal documents so it is always a good idea to seek an experienced probate attorney’s input before moving forward with collecting an estate through a small estate affidavit.
In some cases, estates are too large to qualify as a small estate, but all heirs are in agreement about who will be the Personal Representative and how the estate will be divided. In these cases, a proposed personal representative files a probate case with the Court as an informal administration case. In informal administration cases, the court has very little involvement in transferring the assets of the estate. The court avoids involvement since when the Will is not being contested, the estate qualifies for informal probate, and the Personal Representative is qualified to assume their duties.
Certain types of assets are not subject to probate and are automatically transferred to the intended beneficiaries after the deceased’s death without the complexities of probate. Some assets that fall under this include, but are not limited to:
- Beneficiary designations. If the deceased had life insurance or retirement accounts, a clause stipulates who will receive the funds when the owner passes away.
- 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. There are still a few steps to make the chain of title accurate, with which a probate attorney can assist.
- 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. When establishing a payable on death or transfer on death beneficiary, be very cautious and clear with the bank. Many banks default to joint tenant ownership, giving the intended beneficiary access to the account while the owner is still living.
Another way to avoid probate in Denver, Colorado is to create an estate plan based on Revocable Living Trust. Under this plan, the assets involved in the estate will not be required to go through probate unless the creator of the trust does not transfer all assets into the trust’s name prior to the creator’s death.
What Happens if You Don’t Do Probate?
If an estate falls under those requiring probate, they have to go through the process of bringing it to the court to supervise the division of property and settle financial affairs.
If probate is required but not done, the named beneficiaries, family members, or those named by law will not be able to receive their inheritance. Instead, the estate will be put on “freeze” because the assets remain in the deceased’s name, and no one has been given the authority to transfer them. It is only in the probate process that a Personal Representative (also known as an executor) can be appointed by the court to have the legal authority to identify, accumulate, and distribute the assets of the deceased.
This will also cause ongoing expenses for the estate, including taxes and insurance payments. Without access to the estate, these expenses will keep stacking up, depleting the estate’s funds or giving debt to the beneficiaries or the named Personal Representative. Outstanding debts will also accrue interest which puts the named Personal Representative or descendants at risk of lawsuits.
Some states also penalize the named Personal Representative or the person holding the signed Will if present. If they are aware that they have to bring the Will to probate but don’t do so, they may be held liable for the ongoing expenses incurred, as well as the financial impact on the heirs. If they intentionally withheld the Will from probate for personal gain, they can be prosecuted and sentenced to jail time.
The Process in Denver, Colorado
Typically, a probate case in the Denver area completes in a span of 6 to 12 months. The process is as follows:
- The Will of the deceased is located and filed immediately (if one exists).
- A petition is filed with a probate court.
- The court appoints the named Personal Representative and issues letters of testamentary (or administration, if there is no Will) 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 files an inventory of the assets, identifies the creditors, and informs the creditors of their debtor’s death. The creditors have a statutory time period to make their claims.
- The value of the estate is determined, and estate taxes are paid (if required).
- The Personal Representative pays all the valid claims made by the creditors. All other issues or contests will also be resolved at this point.
- When everything is settled, the assets will be distributed to the devisees (or heirs, if there is no Will).
- A petition is filed asking the court to discharge the Personal Representative, wind up the estate, and close the probate.
Depending on complications and unique situations involving the estate, the probate process can take longer. 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 in Denver Can Help
Probate disputes and the accompanying process can be very complex and overwhelming. This is especially true for the Personal Representative who takes charge of administering the estate, settling the deceased’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. 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 named Personal Representative and descendants. 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 descendants and beneficiaries. These legal proceedings can get emotionally, physically, and mentally taxing without the help of a law firm and legal representation. This often adds unnecessary stress to a mourning period.
At Burnham Law, our attorneys have years of experience offering legal services and consultation to Denver clients in probate and related practice areas. These related practice areas include elder law, estate 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 what really matters. 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 Denver probate lawyers to schedule a consultation today.