Complete Guide to Probate-Part I

What is Probate?

Probate is the legal process by which a person’s assets are distributed after they die. In Colorado, probate can be formal or informal, and sometimes can be avoided altogether, depending on a few different factors.

Before we explore specifics, here are a few common terms:

Estate - the complete collection of items (including real property) left behind by a person when they die.

Personal Representative - also known as the “executor,” this is the person in charge of collecting, valuing, and distributing the probate estate.

Probate Estate - the complete collection of personal items, vehicles, real property, stocks, retirement accounts, and other items left behind by a person when they die that must pass through the probate court to be transferred.

Non-Probate Assets - any items that are transferred without the need for probate. This can include property held as joint tenants with rights of survivorship, jointly held accounts, and life insurance policies with a beneficiary designation.

Heir(s) - any person who has the right to inherit from someone’s estate by virtue of statutory priority. Usually, this category includes surviving spouses and biological and adopted children.

Devisee(s) - any person who has the right to inherit from someone’s estate by virtue of being given something in a Will. 

Interested Party - all heirs, devisees, and potential claimants of an estate. 

Small Estate

If an estate falls under a statutory amount and does not include real property, a qualified heir can collect the estate through a small estate affidavit. The limit for estate size changes every year but for 2024, the limit is $82,000. Follow this link for the form and instructions on how to complete it.

This form is a sworn legal document so filling it in with incorrect information could subject you to legal penalties. If you need guidance on what to put in the form, please contact a probate lawyer. 

If the estate’s total value is over $82,000 for 2024 and/or includes any real property, the estate will have to pass through the Colorado probate process.

Informal Probate

Informal probate is appropriate where all the heirs/devisees are in agreement about how the probate process should proceed and there are no issues with the validity of a Will. Judges rarely interfere with the informal probate process assuming a case is correctly filed as an informal proceeding.

One reason to push an otherwise-informal proceeding into a formal probate is if an original Will can’t be located.

Informal probate is still a Court proceeding but it is significantly less costly, time-consuming, and work-intensive than formal probate usually is. Personal Representatives in informal probate still have to notify unknown creditors of the fact that a probate matter is open and wait certain periods of time before they can close probate once it has been opened. 

Informal, unsupervised administration is the most common type of probate in Colorado. This process is the most straightforward and streamlined way to administer an estate and allows the Personal Representative to do what needs to be done with minimal court involvement unless the Personal Representative or other interested party requests help.

Formal Probate

Formal probate is appropriate where there are multiple potential Personal Representatives, where the heirs do not agree on all the issues, or where there is a potential issue with the original Will. If someone executed an electronic Will, despite the fact that the Will is likely valid, Colorado law requires that probate in such a situation be formal.

Formal probate can often involve a Will contest. All interested parties need to be notified and at the end of a formal probate, a judge or magistrate decides if the Will is valid, which potential Personal Representative should be appointed, and whether a person is an heir, for example. There are many situations where formal probate is necessary but the easiest way to distinguish between formal probate and informal probate is if there are any potential issues, formal probate is safer.

Supervised Administration

Interested people, the Personal Representative, of the Court can request supervised administration in formal or informal proceedings. The Court’s involvement depends on the Court’s desire for involvement based on the case-specific facts.

Supervised Personal Representatives can have their powers as Personal Representative restricted, like not being able to sell a house until the Court agrees the Personal Representative received the best price. 

Courts may require that Personal Representatives hold off on distributing assets until the Court approves the distribution.

Courts may also require that a Personal Representative close an estate formally as a condition of supervision.

Probate in Colorado is fact- and case-specific. If you have any questions about what kind of probate is right for your specific situation, please contact us at info@zalesskylaw.com or (303) 970-9717. We’re here to help.