Probate is the legal process of settling the estate of a deceased person. It involves identifying and collecting the assets, paying the debts and taxes, and distributing the remaining property to the heirs or beneficiaries. In Colorado, there are three types of probate: small estate, informal probate, and formal probate. This blog post will focus on the formal probate process, how it differs from the informal probate process, and when it is necessary or advisable to use it.

Formal Probate vs. Informal Probate

Informal probate is the most common and straightforward way of probating an estate in Colorado. It is available when there is a valid will or a clear line of descent from the intestate decedent (the person who died without a will). Informal probate involves filing certain forms with the probate court, usually in the county where the decedent lived at their death, and appointing a personal representative (also known as an executor or administrator) to administer the estate. The personal representative has the authority to act on behalf of the estate without much court supervision or intervention as long as they follow the law and the will (if any). Informal probate is usually faster, cheaper, and more convenient than formal probate.

On the other hand, formal probate is a court proceeding requiring more involvement and oversight from the judge. Formal probate is necessary or advisable in certain situations, such as:

• When there is no will, or the will is contested, unclear, invalid, or lost;
• When there are apparent or actual significant challenges or disputes in the administration of the estate, such as identifying heirs, determining property titles, resolving creditor claims, or dealing with complex or unusual assets;
• When the personal representative is unable or unwilling to serve, or there is a conflict of interest or disagreement among the personal representatives or the heirs or beneficiaries;
• When a person who is not a resident of Colorado or a US citizen wants to serve as the personal representative;
• When a minor or an incapacitated person is an heir or beneficiary or has a claim against the estate;
• When the estate is insolvent (the debts exceed the assets) or has tax issues;
• When a special administrator is needed to preserve the estate or perform certain acts before the appointment of the personal representative;
• When a supervised administration is requested or ordered by the court, the personal representative must obtain the court’s approval for every transaction or action they take on behalf of the estate.

How to Start a Formal Probate Process

A formal probate process can be started by an interested person, including heirs, beneficiaries, creditors, and anyone else with a property right or a claim that may be affected by the probate. The interested person must petition the probate court, requesting that the court enter an order after notice and hearing. The petition must contain the following information:

• The name, address, and interest of the petitioner;
• The name, age, domicile, and date and place of death of the decedent;
• The names and addresses of the heirs, devisees (recipients named in the will), and personal representatives, if any;
• The facts and reasons why formal probate is necessary or advisable;
• The original will, if any, or a statement of its contents and whereabouts if it is lost or unavailable;
• The name and address of the person whom the petitioner wants to be appointed as the personal representative and their priority and qualifications to serve;
• Whether supervised administration is sought;
• Any other relevant information or requests.

The petition must be accompanied by a filing fee and any other required documents, such as a death certificate, a bond, or a renunciation of the right to serve as the personal representative. The petitioner must also give notice of the petition and the hearing to all interested persons and publish a notice to creditors in a newspaper of general circulation in the county where the petition is filed. The notice must inform the interested persons of their right to appear and object to the petition and the creditors of their right to present their claims against the estate.

The petitioner will typically choose a date for a "non-appearance hearing." As may be apparent from the name, a non-appearance hearing is not a hearing. It's a date by which anyone who has an objection to the petition needs to let the court know. If that happens, the court will schedule a hearing on the petition and hear the evidence and arguments of the petitioner and any other interested persons who appear. If no one objects by the date for the non-appearance hearing, the court usually enters the order requested by the petitioner. Sometimes, the court may appoint a special administrator to preserve the estate or perform certain acts pending the hearing outcome.

After the hearing, the court will enter an order granting or denying the petition and admitting the will to formal probate or determine the decedent's intestacy and heirs. The court will also appoint a personal representative and issue letters of administration, the official documents that authorize the personal representative to act on behalf of the estate. The personal representative must then file an information of appointment with the court, and give notice of their appointment to all interested persons and creditors.

What are the Duties and Responsibilities of the Personal Representative in a Formal Probate Process?

The personal representative in a formal probate process has the same duties and responsibilities as in an informal probate process but with more court supervision and intervention. The personal representative must:

• Collect, inventory, and appraise the assets of the estate;
• Pay the debts, taxes, and expenses of the estate;
• Distribute the remaining assets to the heirs or beneficiaries according to the will or the law;
• File an accounting and a closing statement with the court and obtain the court’s approval and discharge.

However, unlike in an informal probate process, the personal representative in a formal probate process must obtain the court’s approval for every transaction or action they take on behalf of the estate unless the court grants them unsupervised administration. This means that the personal representative must file a petition and notify all interested persons for every sale, transfer, payment, distribution, or other disposition of the estate’s property. The court will then hold a hearing and enter an order approving or disapproving the petition. The personal representative must also file periodic accountings with the court, showing the receipts and disbursements of the estate, and the court may order an audit or a review of the accountings. The personal representative must also respond to any objections, motions, or petitions filed by any interested persons and attend any hearings or conferences ordered by the court.

The formal probate process can be complex, time-consuming, and costly, but it can also provide more protection and certainty for the estate and the interested persons. If you need help with the formal probate process or any other probate matter, consult an experienced probate attorney in Colorado.

Summary and Explanation of Sections 15-12-401 and 15-12-402 on the Colorado Probate Code

Sections 15-12-401 and 15-12-402 on the Colorado Probate Code are the statutes that govern the formal probate process in Colorado. Section 15-12-401 defines a formal probate proceeding and when it can be commenced. Section 15-12-402 describes what a petition for formal probate or appointment must contain and how to file it.

Section 15-12-401 states that a formal probate proceeding is litigation to determine whether a decedent left a valid will and to appoint a personal representative for the estate. A formal probate proceeding can be started by an interested person filing a petition with the court, requesting that the court enter an order after notice and hearing. The petition can request one or more of the following:

• An order probating a will, which means that the court declares that the will is valid and enforceable and determines who are the heirs or devisees of the decedent;
• An order setting aside an informal probate of a will, which means that the court cancels or revokes a previous informal probate of a will that was done without a court order;
• An order preventing an informal probate of a will, which means that the court stops or blocks a pending application for an informal probate of a will that was filed with the court;
• An order that the decedent died intestate, which means that the court declares that the decedent did not leave a valid will and determines who the heirs of the decedent are according to the law.

A petition for formal probate can be filed regardless of whether the same or a conflicting will has been informally probated. A formal probate proceeding may or may not involve a request to appoint a personal representative. During a formal probate proceeding, the court will not act on any application for informal probate or appointment, and the previously appointed personal representative must refrain from making any further distribution of the estate unless the petition also requests confirmation of their appointment.

Section 15-12-402 specifies what information and documents a petition for formal probate or appointment must include and how to file it. A petition for formal probate of a will must:

• Request an order as to the testacy of the decedent in relation to a particular will and determining the heirs;
• Contain the name, address, and interest of the petitioner; the name, age, domicile, and date and place of death of the decedent; the names and addresses of the heirs, devisees, and personal representatives, if any; and the facts and reasons why formal probate is necessary or advisable;
• State whether the original will is in the court's possession or accompanies the petition, or if not, state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.

A petition for adjudication of intestacy and appointment of an administrator must:

• Request an order that the decedent left no will and determine the heirs;
• Contain the name, address, and interest of the petitioner; the name, age, domicile, and date and place of death of the decedent; the names and addresses of the heirs and personal representatives, if any, and the facts and reasons why formal probate is necessary or advisable;
• State the name and address of the person the petitioner wants to be appointed as the administrator and their priority and qualifications to serve.

A petition for appointment of a personal representative to succeed one who has been appointed previously must:

• Request an order appointing a successor personal representative;
• Contain the name, address, and interest of the petitioner, the name and address of the person whose appointment is sought, and their priority and qualifications to serve;
• State why the appointment of a successor is necessary, such as the death, resignation, removal, or incapacity of the prior personal representative.

A petition for formal probate or appointment must be filed with the court in the county where the decedent was domiciled or had a place of abode or where any property of the decedent was located at the time of their death. The petition must be accompanied by a filing fee and any other required documents, such as a death certificate, a bond, or a renunciation of the right to serve as the personal representative. The petitioner must also give notice of the petition and the hearing to all interested persons and publish a notice to creditors in a newspaper of general circulation in the county where the petition is filed.

Sections 15-12-401 and 15-12-402 on the Colorado Probate Code are important statutes that regulate the formal probate process in Colorado. They provide the legal framework and the procedural steps for initiating and conducting a formal probate proceeding. You should consult a qualified probate attorney in Colorado if you have any questions or concerns about these statutes or other aspects of the formal probate process.

Conclusion

The formal probate process in Colorado is a court proceeding that requires more involvement and oversight from the judge. It is necessary or advisable in certain situations, such as when there is no will, the will is contested, unclear, invalid, lost, or significant challenges or disputes in the estate administration. The formal probate process can be complex, time-consuming, and costly, but it can also provide more protection and certainty for the estate and the interested persons. If you need help with the formal probate process or any other probate matter, contact an experienced probate attorney in Colorado.