The probate matters and process come into play when a family member or loved one passes away. It’s the judicial process of determining the validity of the will they left behind or settling estate matters should there be an absence of a will.
In a probate process, an individual, called the executor, will be appointed by the district court to manage the estate of the deceased. The appointed executor will take charge of making the deceased’s last wishes happen and transfer their assets to the named beneficiaries. Usually, the executor is the surviving spouse or an adult child of the deceased.
Absent a will, the estate of the deceased will be distributed according to the laws of the State, in this case, Colorado. The court will administer the distribution according to the probate law.
The probate administration and the process is a very complex one that can be difficult to navigate. People who are in the process of or 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 your deceased family member’s will guarantee that the probate and court processes will be handled properly and remain as smooth as possible.
The Purpose of Probate in Denver
The probate process is important to help manage the financial affairs and assets of a deceased person. It exists to ensure that their properties and assets are properly distributed to the intended parties without fraud or complications. This smoothes the process of passing estates down to the descendants and beneficiaries.
Probate also helps ensure that all financial affairs that involve the deceased are settled. This includes the payment of outstanding debts that were left behind, filing income tax return, and the like. 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 probate is deemed closed.
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 overcome the process.
Is Probate Always Required?
While it has been established that 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 not all estates go through the entire probate process.
There are instances when the estate falls below the threshold and becomes considered a small estate. 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 deceased’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.
- Community property with right of survivorship or tenancy. This type of property ownership is only applicable to married couples. If this is the property regime they had, the survivor automatically gets the assets without a need for probate.
- 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. That is by creating 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.
What Happens if You Don’t Do Probate?
If an estate falls under those that require probate, they have to go through the process of bringing it to court so that the latter can supervise the division of property and settle financial affairs.
If probate is required but not done, the named beneficiaries, family members, or those stipulated by law, will not be able to receive their inheritance. What happens is that 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 an executor can be appointed by the court to have the legal authority to touch 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 named executor. Outstanding debts will also accrue interest and puts the named executor or descendants at risk of lawsuits.
Some States also penalize the named executor 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 will be held liable for the ongoing expenses incurred as well as the financial impact to 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, CO
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:
- The will of the deceased is located and filed immediately.
- A petition is filed with a probate court.
- The court appoints the named executor and issues letters of administration to allow the executor or personal representative to administer the estate and conduct whatever is necessary to settle all financial affairs and distribute the assets.
- The executor has 6 months 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 value of the estate is determined and estate taxes are paid.
- The executor pays all the 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 named beneficiaries.
- A petition is filed asking the court to discharge the executor, wind up the estate, and close the probate.
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 executor, 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
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 executor who takes charge of administering the estate, settling the deceased’s debts, and distributing the assets. Especially when involving sudden deaths, the executor 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 executor, 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 executor 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 sometimes even emotional for the descendants and beneficiaries, considering that they are mourning a family member’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 Denver probate lawyers for a free consultation today.