Probate

WHAT IS PROBATE?

Historically probate is the act of proving a Will is the genuine Last Will and Testament of the decedent.  In moderate usage, probate has come to mean all matters which the probate court has jurisdiction of, including the process of determining the validity of a Will; appointment of a personal representative; supervision of estate proceedings; settlement of decedents estate; as well as court proceedings concerning guardianship, conservatorships or trusts.

WHAT DO YOU DO WITH THE WILL?

You are obligated under Colorado law to file the original of the Will in with the probate court within ten days, but make sure you make copies for yourself and your attorney.

WHAT IF THE DECEDENT DID NOT HAVE A WILL?

If there is no will, the decedent’s property becomes transferrable according to Colorado law concerning decent and distributions.  That doesn’t mean that it goes to the State of Colorado, but rather it becomes transferrable to family members in the proportion determined by the state, not you.  For example, if the decedent had both a wife and child(ren), one half would go to the wife and the other half would be divided equally among the children.  If one or more of the children were under the age of 18 years old, that might result in either a conservatorship or court ordered trust for the minor child(ren).

WHAT ASSETS ARE NOT INCLUDED IN THE PROBATE?

Several categories of property are transferred directly to the beneficiaries without the necessity of probate.  For example, joint tenancy property, beneficiary designation deed property; insurance; IRA’s and some retirement plans, and joint tenant or pay on death bank accounts.  One must check to see how these assets are titled and if the beneficiary designation has been filled out properly.  The probate process can be avoided by holding property in that manner and or through a properly funded living trust, which similarly is not customarily included in probate proceedings.

DO YOU HAVE TO GO THROUGH PROBATE IF YOU DON’T HAVE REAL PROPERTY,
OR ONLY A SMALL AMOUNT OF MONEY AND PERSONAL PROPERTY?

Colorado has enacted a small estates act and if you don’t own real property (other than joint tenancy property or are without a beneficiary designation deed)) and have less than Sixty Thousand Dollars ($70,000.00) in other probate assets, you qualify to use the Colorado small estate act procedure.  To do so, you must prepare an affidavit to be provided to banks or the motor vehicle division of the clerk’s office, so that they will transfer those assets to the beneficiaries.  You must provide other beneficiaries copies of the affidavit, a summary of accounting of what occurred and a closing statement terminating the effect of the affidavit when the transfers have been completed.  The affidavit does not need to be filed in the probate court and the probate court is not involved in the transfer or administrative process.

WHEN DO YOU HAVE TO GO THROUGH PROBATE PROCEEDINGS?

If you have real property (other than in joint tenancy or without a beneficiary designation deed) and you have probate assets in excess of Sixty Thousand Dollars (70,000.00) you will need to file probate proceedings in probate court where decedent resided at the time of his or her death or where decedent owned property.  The probate proceedings will be either informal, (where the court’s involvement is limited) or formal, (where potential for disputes or disagreements are more probable or where supervision of the personal representative is sought by an interested party) and the court’s involvement is greater.  In either case the probate is commenced by an interested party filing a petition in court which seeks a determination of the validity of a will, if any, and appointment of a personal representative to administer the assets of the decedent.  You will need to have a probate lawyer involved in most stages of the probate proceedings.

 WHAT IS THE PROBATE PROCESS?

Colorado has approved its version of the Uniform Probate Code which has simplified the probate process.  Nonetheless, there are several steps which you will need to take to fully administer the estate.

• Firstly: A petition will need to be submitted to the court to probate (determine the validity of the will) and appoint a personal representative, (if there is a will) or an administration (if there is no will) along with other necessary pleadings.  After appointment, you will need to provide a notice of appointment to all interested parties.
• Secondly:  You will need to gather, value and inventory all of the decedent’s probate assets.  A copy of the inventory will need to be filed in court or a copy sent to all interested parties.
• Thirdly:  You will need to publish and send a notice of decedent’s death to all creditors, so that claims, if any, can be made and filed with the probate court and if a dispute arises as to a claim the probate court will determine whether the claims are valid or not.
• Fourthly: The assets of the probate estate must be administered by collection, investment, sale and/or a distribution made to beneficiaries.
• Fifthly:  Any necessary tax returns need to be prepared and filed if necessary, i.e. (a) Estate Tax Returns of the Estate exceed five million adjusted upward for inflation. Due to recent tax legislation, the exempt amount is doubled for the years 2018 through 2025; (b) Decedent’s last tax return, if there is reportable income, and/or (c ) fiduciary income tax returns if the estate’s income meets the threshold.
• Sixthly:  Financial reports must be prepared and provided to all interested parties.
• Seventhly:  Payment of taxes, creditors’ claims and distributions to beneficiaries need to be accomplished.
• Eighthly:  Finally, in informal proceedings a closing statement needs to be filed with the court or in the event of formal proceedings a hearing may need to be held.

During the probate process you will need to work closely with an attorney and possibly an accountant who will aid you in accomplishing all of the above.

I take great pride in the efficient handling of probate matters in the best interest of my clients and the estate.

What expenses can be anticipated?

You as personal representative are entitled to reasonable fees for your time and effort on behalf of the estate.  Attorney and accountants are similarly entitled to reasonable compensation for their time and efforts.  Both attorney and accounts normally charge hourly for their services and the total amount of their time is affected by the size, complexity, difficulty, issues or disputes and time involved in handling the probate matter.  The length of time to complete the estate is additionally impacted by the amount of time necessary to sell property or liquidate assets, if such is necessary.

What are the responsibilities as a personal representative of the estate?

You are a court appointed official with the fiduciary responsibility of handling the estate with the upmost care and prudence; treating the beneficiaries fairly and equally, if the will so divides the estate; and  to be transparent in the handling of the estate and providing information and accounting to all interested parties.  You need to hold assets in a safe manner and make investments prudently.  You need to put the interests of the estate before your own.  You will need to work closely with an attorney experienced in estate matters, such as myself, so as to avoid any pit falls and any potential problems.

Vance E. Halvorson
Attorney at Law
© 2018

Probate 11-2016 – VEY2013stic