What A Will Won't Do

September 22, 2022

Let’s make something perfectly clear: having a will is very important ! Dying intestate, or, dying without a will, can cause heartache and headache for your loved ones. However, even a properly executed and professionally prepared will won’t do everything. Read on to see what we mean. 


A Will Won’t Avoid Probate

What’s the number one misconception about estate planning? It’s that having a aill avoids probate. The truth is that a aill alone will not avoid probate. In fact, the purpose of probate is to validate the will and ensure that it:


  1. Is the most current will,
  2. Has been properly executed, and
  3. Names a Personal Representative to fulfill the will’s instructions.


A will is basically just a set of instructions that specifies two key things: who gets what, and who is going to make it happen. But unless you die with only a modest estate ( i.e. , one that contains no real estate and is worth less than your state’s “small estate” standard), the will itself can’t do either of those things.


A Will Won’t Transfer Authority

Take our advice, and don’t try to walk into a bank with a copy of a will that names you as Personal Representative. The bank doesn’t have any way to know whether the account owner really has died, whether that will is the most recent version, whether it was executed properly, whether anyone is challenging its validity, etc., etc., etc. That financial institution should absolutely not allow you to transfer the money because a will has no power or authority in and of itself. Only after the probate court accepts and admits the will, and appoints the named Personal Representative, can that agent act on behalf of your estate.


The first thing your Personal Representative needs to do is lodge your will with the appropriate probate court. The court must then issue your Personal Representative letters testamentary before he or she has the legal authority to handle your assets. Since this is such an important job, the Personal Representative will have fiduciary duty to put the needs of your estate and your heirs above all other considerations. It’s essential to choose the right person. See our post on Serving as a Personal Representative for more guidance.

A Will Won’t Bypass Administration

Here’s something else a will won’t do: avoid the multiple step process that is required to settle the final affairs of the deceased.


There are several steps required to transfer a loved one’s property to their heirs. A will is essential to provide guidance and instructions that ensure your wishes are carried out to your specifications, but it’s still necessary for someone to actually do all of it. Some of the steps required include: creating an inventory of your assets, paying the filing fee and inventory fees to the probate court, alerting possible creditors and paying valid claims, filing final tax statements, and distributing the remaining assets. With probate, these steps are taken with the public oversight of a court. However, it is not the court itself that performs the work. Instead, your Personal Representative has the responsibility of carrying out all the instructions.

A Will Won’t Control All Your Assets

A Will is only one of many ways to transfer assets to your beneficiaries. Many people do not realize that joint ownership and payable- or transfer-on-death beneficiary designations bypass your Will. See our video on how an estate plan is more than just a will .


Your will only governs assets or property that are owned in your sole name at your death. When you have assets or property that are jointly owned by others or have a payable- or transfer-on-death beneficiary designation, your will does not control them. In fact, using beneficiary designations is an estate planning tool that many people use without even realizing it.


Before you start planning to use these methods exclusively, though, keep in mind that there are downsides to transferring property through joint ownership, designated beneficiaries need to be actively updated to be effective, and you will always have other assets such as your personal property, which can’t be transferred with a payable-upon-death designation.

What's next

If you think it might be time to think through your estate plan, 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 planning page to learn more about how proactively thinking through your estate plan can protect you and your family, minimize hassle, lower the chance of family discord, and minimize or eliminate taxes.
  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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