Six Tips for a Smooth Probate

dan • June 30, 2022

If you are reading this, it might be because you have recently lost a family member, and perhaps you have determined that a probate process will be necessary to get their debts resolved and assets distributed. Even if you do not need to open a probate process, you almost certainly will have to do something to get funds from bank accounts, dispose of personal property, sell a car, etc.
 Here is the good news: Colorado’s probate process usually requires minimal court process, and there are a lot of resources out there to help people navigate it even though they have never done it before. 
Still, there are several potential potholes, the avoidance of which can make your probate process go much smoother than it otherwise might. To avoid those potholes, consider taking the following steps.

Determine whether there is a will, and if so, read it in its entirety before doing anything

Back when I was a litigator and new clients would come in with a story about how they had been wronged, we would have to run that story by one of the senior attorneys in the firm before agreeing to take the client on. That attorney gave us the same instruction every time: get the documents. That advice always turned out to be good. It was not necessarily intentional, but what the client remembered about the relevant contract or expected that it would say almost never matched up with what the document said. Sometimes, the differences were substantial.

Do not assume that you know what the will says! Read it! Get intimately familiar with it! Be able to cite to it when asked questions by beneficiaries or creditors!


Familiarize Yourself with the Relevant Statutes

If your family member did not have a will, the probate process will be governed by the intestacy provisions within the Colorado Probate Code . Even if your family member did have a will, that will operates within the confines of the Colorado Probate Code. The will might, for example, specify that the “informal” probate process should be used. That might, however, not be an option. In certain circumstances, such as when the original will can’t be found or if the estate appears to be insolvent, you cannot use the informal process. And sometimes, getting the court’s seal of approval on certain transactions might be preferable for the Personal Representative, even if the informal process could have been used.
The Colorado Probate Code also contains a number of deadlines and other requirements and lays out the extent of the Personal Representative ’s rights, powers, and obligations. The more familiar you can get with it, the better.
If your family member had a trust, you will also want to familiarize yourself with the Colorado Trust Code .

Find, Secure, and Inventory the Assets as Quickly As Possible

When the Personal Representative or Trustee role is filled by a professional, that professional typically swoops in and immediately ensures that locks are changed, keys are found, and financial custodians are notified about the death of the account owner. Non-professionals are often much slower to do these things. This can be particularly problematic if credit cards keep getting used, or assets that can be moved, such as tangible personal property or cars, disappear. Those assets are just as much a part of the estate as the real estate and large financial accounts and protecting them for the beneficiaries is just as important, even if those assets don’t seem likely to have significant monetary value.

Overcommunicate

When administering an estate, there are a number of disclosures that the Personal Representative or Trustee are required to make. Although the Personal Representative or Trustee should not get into trouble for only making those disclosures, you probably can’t hurt yourself by making more disclosures than required. Although it can be tempting to try to avoid problems by not talking about them, the reality is that it is better to find out sooner rather than later whether someone is going to be unhappy with something. If an unanticipated problem does arise, being able to say that the person causing the problem has had the information available to them the whole time can be a great defense to any allegation that you have not been doing your job correctly. 

Do Not Promise Anything to Anyone

Most estates have multiple beneficiaries and creditors. Somewhere in that group is likely to be someone who is especially eager to get their money. No matter how simple it all seems to be, and no matter how insistent they are that they be told exactly what they will receive and when, it is critical that you not try to assuage them with any specific promises. Every court process takes longer than the participants initially expect it to take, and although most probates go smoothly, there are several critical deadlines and disclosures that need to be made before you can be sure that you know what you have and who will get what. Although promising someone that they will get something by a certain date can temporarily buy you some peace, that person will come back 100 times worse if an unexpected bill or tax obligation prevents you from being able to do what you told them you would do. 

Hire a Lawyer!

Many people underestimate the complexity of handling someone else’s affairs. Doing so usually requires a combination of probate law (and maybe trust law), real estate law, tax law, contracts, secured transactions, and other areas of law that are difficult even for attorneys. Layered on top of that are family dynamics and psychology around money. It can be easy for even seemingly simple estates to go off the rails. The Personal Representative or Trustee can almost always use estate or trust funds to pay the costs of an attorney. Our firm does most probates on a flat fee basis, meaning that you and the beneficiaries will know the full cost up front. 

What Next?

If you need help administering someone else's affairs, you can:
  1. Give us a call at 720-821-7604 to schedule a "Discovery Session" at which we can determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
  2. Visit our estate administration page to learn more about how we can help you keep the administrative process as hassle-free as possible.
  3. Learn more by reading our blog or watching our videos .

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Dealing with the death of a loved one is never easy, and navigating the legal process that follows can add stress during an already difficult time. In Colorado, probate is the legal process by which a deceased person’s estate is administered, their debts are paid, and their assets are distributed to beneficiaries. Whether you’re an executor, beneficiary, or family member, understanding how probate works in Colorado can help you anticipate the steps involved and your potential responsibilities. This blog post will provide an overview of the probate process in Colorado, outline when probate is necessary, and offer guidance on how to navigate the system effectively.  What is Probate? Probate is the legal process that occurs after someone dies to ensure their assets are distributed according to their will or, if there is no will, according to state law. The probate process includes validating the will, inventorying the deceased’s assets, paying off debts and taxes, and distributing the remaining assets to the rightful heirs. While probate is often associated with lengthy court proceedings, not all estates require formal probate. Colorado offers several options depending on the size and complexity of the estate, which can help simplify the process in many cases. When is Probate Necessary in Colorado? Probate is not always required in Colorado. Whether an estate must go through probate depends on the types and value of the deceased’s assets. Generally, probate is necessary if: The deceased owned real estate solely in their name. The deceased’s assets, such as bank accounts or investments, were not held in joint tenancy or designated to transfer on death. The deceased had personal property valued at over $74,000 (as of 2023). If an estate falls below this threshold and does not include real estate, the beneficiaries can often use a Small Estate Affidavit to claim the assets without going through probate. Types of Probate in Colorado Colorado has three main types of probate procedures: small estate procedures, informal probate, and formal probate. The type of probate required depends on the estate’s value and whether there are disputes among heirs or creditors. Small Estate Procedure (Collection by Affidavit) The small estate procedure can be used if the value of the deceased’s assets is less than $74,000 and does not include real estate. This process involves filling out a Small Estate Affidavit, which allows the heirs to collect and distribute the assets without opening a probate case in court. It is the simplest and fastest way to handle a small estate. Informal Probate Informal probate is used when there is a valid will and no disputes among heirs or creditors. The process is overseen by a court-appointed Personal Representative (executor), but there is minimal court supervision. Most of the process, such as distributing assets and paying debts, is handled by the Personal Representative, with only basic filings required with the court. Informal probate is less time-consuming and costly than formal probate. Formal Probate Formal probate is required when there are disputes regarding the will’s validity, disagreements among heirs, or if the estate is complex and needs court intervention. The process is supervised by the court, and all major decisions, such as approving the distribution of assets, must be approved by a judge. Formal probate can take much longer and involve more legal fees than informal probate. Steps in the Colorado Probate Process While the specific steps in probate can vary depending on the type of probate and the complexity of the estate, the general process in Colorado typically includes the following: Filing the Probate Petition The process begins with filing a Petition for Probate with the appropriate Colorado probate court. The petition is usually filed by the executor named in the will or an interested party if no will exists. Appointment of the Personal Representative The court will appoint a Personal Representative (executor) to manage the estate. If there is a valid will, the person named as executor is typically appointed. If no will exists, the court will appoint someone, usually a family member, to serve as the Personal Representative. Notice to Heirs and Creditors The Personal Representative must notify all potential heirs and creditors of the probate proceeding. This step is essential for providing an opportunity for interested parties to come forward and make claims against the estate. Inventory and Appraisal of Assets The Personal Representative must create an inventory of all the deceased’s assets and have them appraised if necessary. This inventory will include real estate, personal property, financial accounts, investments, and any other assets owned by the deceased. Paying Debts and Taxes Before distributing assets, the Personal Representative must pay off the deceased’s debts and any taxes owed. If the estate does not have enough assets to cover all debts, Colorado law dictates the order in which creditors are paid. Distribution of Assets Once all debts and taxes have been paid, the Personal Representative can distribute the remaining assets to the beneficiaries according to the will or, if no will exists, according to Colorado’s intestacy laws. Closing the Estate After all assets have been distributed and all required filings have been made with the court, the Personal Representative can file a Petition for Final Settlement to close the estate. Once approved, the Personal Representative’s responsibilities are complete. Challenges and Disputes in Colorado Probate Unfortunately, probate can sometimes become contentious, especially in cases involving high-value estates or when family members disagree on how assets should be distributed. Some common challenges in Colorado probate include: Will Contests Heirs or beneficiaries may challenge the validity of a will, claiming it was signed under duress, there was undue influence, or the deceased lacked the capacity to create the will. Will contests can significantly delay the probate process and require formal probate to resolve. Executor Misconduct If an executor is not fulfilling their duties or is mishandling estate assets, beneficiaries can file a complaint with the court and request the executor’s removal. Disputes Among Beneficiaries Disputes can arise over specific bequests, how assets are divided, or even the valuation of estate property. Mediation or formal court intervention may be necessary to resolve these disputes. How a Colorado Probate Attorney Can Help Navigating the probate process can be overwhelming, particularly when dealing with the emotional aftermath of losing a loved one. An experienced probate attorney can help in several ways: Guiding You Through the Process An attorney can explain the probate process, help you understand your rights and responsibilities, and ensure all legal requirements are met. Managing Court Filings and Deadlines Probate involves numerous legal documents and deadlines. An attorney can handle these tasks, ensuring that everything is filed correctly and on time. Resolving Disputes If disputes arise, an attorney can provide representation in negotiations, mediation, or court hearings to protect your interests and work toward a fair resolution. Minimizing Costs and Delays With the guidance of a skilled attorney, you can often minimize the time and expense associated with probate, helping ensure the process goes as smoothly as possible. How The McKenzie Law Firm, LLC Can Help At The McKenzie Law Firm, LLC, we understand the complexities of the probate process and are committed to helping families navigate it with compassion and expertise. Whether you’re an executor needing assistance with your duties or a family member looking to understand your rights, our experienced probate attorneys can provide the support you need. If you have questions about probate in Colorado or need legal assistance, contact us today to schedule a consultation. We are here to guide you through the process and ensure your loved one’s wishes are honored.

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