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Probate and Estate Planning

Probate Checklist in Colorado – What You Need To Know

Colorado is a relatively “probate friendly” state, with generous rules for informal probate so in many cases it's possible to handle the probate of the estate of a family member without needing any court supervision. The following is a simple summary of the steps to go through in handling a probate in the State of Colorado. For residents of different states, your procedures may vary significantly so you should refer to local counsel from your own state.

This checklist is providing general information for the public. Your individual situation may differ which is a good reason to speak with an experienced Probate Attorney before you file anything.

Step 1: Find The Will. Determine who is named as Personal Representative.

If there is a Will. If someone has died and you are going to handle their estate, the first thing to do is find a copy of the will, if there is one. If there is more than 1 copy of the will, you will probably want to hire a probate attorney to help determine which version of the will to go by.

Look in the will and see if you find a section naming you as the Personal Representative. That's the person who will file any necessary court documents, determine what assets there are in the estate, pay final debts, and distribute any inheritance to the heirs. The Personal Representative handles the estate.

If it is unclear in the Will who the personal representative is supposed to be or if more than 1 person is named it is probably best to speak with a probate attorney to help you, since this can get complicated or messy.

What if there is no will? If there is no will or you cannot find the will, then you will have to determine whether you need to file an “intestate probate”, that is a procedure for handling the estate of a person who died without a will.

Handling a probate without a will can be quite tricky so that you should definitely at least talk to an experienced probate lawyer who can help guide you through the process and tell you how to avoid problems before you go ahead and file a document to open the probate estate.  

Step 2: Determine whether you can use Informal Probate

There are 2 types of probate without a will: formal and informal. Deciding which kind of probate you need is the next step. In Colorado, informal probate is easy and relatively inexpensive. Formal probate is expensive, time consuming and often messy or unpleasant.

Informal Probate With a will. In Colorado, if nobody is arguing or fighting about the will, who gets to be personal representative, or the distribution of assets, then it is generally possible to administer the probate informallythat is without court supervision. Informal probate with a will is the cheapest and easiest. The Personal Representative simply follows the checklist below after filing the will and death certificate and Personal Representative's affidavit accepting appointment and getting the Letters Testamentary. (see Checklist below):

Step 3: File the Probate.

Informal Probate Without a Will. Informal probate without a will (called intestate probate) is more complex but the added complexity is simply that the beneficiaries are determined by the Colorado Probate Code. It is possible to circumvent the rules and direct the estate in the way that the decedent wanted, but this requires a lawyer and good will on the part of the beneficiaries. As with probate with a will, if anybody wants to argue or litigate their claim to a portion of the estate, then the only way to resolve matters is with FORMAL Probate.

Simplified Probate Process for Small Estates. Whether or not there is a will, in Colorado, for estates worth less than $50,000, (including any bank accounts, financial instruments and cash) but no real property, it's possible to use a simplified procedure for small estates. The heirs may petition to Court to approve a simplified procedure to administer the estate without opening a probate in the Court.

Formal Probate. Formal probate is simply probate administered by the Court. The Court issues orders determining who the personal representative is (if the matter is contested) and supervising every step of the probate process. The estate cannot be closed until the Personal Representative files a Closing Affidavit with the Court, and the Court approves it. Naturally, this is all extremely expensive because it requires lawyers to litigate every aspect of the case. A terrible example of this was the Probate of Broncos Owner Pat Bowlen's estate, which was contested between the daughters of his first and second wives, costing millions of dollars in legal fees.

If at all possible, you should try and resolve any contentious issues without the need for anyone to petition the Court for Formal probate, because that will cost the estate and the beneficiaries a lot of money.

Checklist for informal probate is generally to follow:

__________    File the will, if there is one, with the Probate Court, (the District court outside of Denver Country). Within 10 days of the person dying (usually), you need to file the will with the Colorado District Court where the person lived (permanent residence).

If there's no will, then the heirs should agree to who will serve as the Personal Representative or if there is going to be joint representation. Remember that if there is joint representation, all the representatives will have to sign every document, and approve every decision, which is inconvenient at best and contentious at worst. Its better to have 1 representative if possible.

__________    File a copy of the Death Certificate.

__________    File an affidavit of appointment for the Personal Representative.

__________    Get Letters Testamentary from the Court Clerk.

__________    Get a Tax ID for the Estate from the IRS. Before you can open a bank account for the estate, you'll need to obtain a Federal Tax ID number. I can help you get this number from the IRS.

__________    Open a bank account in the name of the Estate for handling money on behalf of the estate.

__________    Create Excel accounting file to keep track the estate's assets, the money coming in as you liquidate assets, the money going out as you pay off creditors, and a file noting all correspondence relating to the estate and the dates when such notice was sent. You should also track the hours you spend on your Personal Representative duties, even if you elect not to take a fee for your services.

__________    Figure out what debts of the estate are and give notice to all creditors. This is a key step.

__________    Assemble the assets of the estate. Some assets may not be handled through the Probate. If the deceased has named beneficiaries for assets like retirement accounts or life insurance proceeds, these assets are not part of the probate estate, but they may need to be distributed. Any common assets (such as real estate that's held in joint tenancy) also don't go through probate. Once all of the assets of the estate have been identified, you'll want to get fair-market appraisals of them and possibly liquidate or distribute them.

__________    Put all of the proceeds in the estate account. as well as personal property (such as cash, accounts, vehicles, etc). You'll also pay all of the bills and debts from this bank account. Once everything is settled with the estate, you'll then distribute the remaining assets to the beneficiaries named in the will.

You might have to manage some of the assets (such as a home, a business, or commercial real estate). This can be one of the most difficult. You might have to pay bills like a mortgage, or home repairs, or car loans, etc. It is critical to handle this properly, which is a good reason to talk with an experienced Probate Lawyer for guidance and assistance.

__________    Pay all creditors of the estate and give them an accounting for any unpaid debts. Give Notice by publication for all unknown creditors.

__________    Give notice to all beneficiaries of the estate. Send a final accounting of all estate assets to beneficiaries and pay all beneficiaries.

__________    File the Personal Representative's Closing Affidavit with the Court. It's important to note that the estate has to be open for at least six months, under to Colorado law in order to allow creditors to make a claim against the estate.

Realistically, it will probably take longer than six months to complete the probate process, but if you finish early, you'll still need to wait until the six-month mark has passed.

__________    Hire A Probate Attorney. One of the smartest steps you can take as Personal Representative (i.e. the executor) of someone's will is to hire an experienced probate attorney. We can guide you through each step of the probate process, ensuring that everything is done correctly and legally.

For more information about what to do during probate, or to schedule your free legal consultation, please call John Stege, Esq. (720) 431-1964.

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