It is tough to cope with the emotions brought on by the loss of a loved one. Having to also face the critical details related to winding up your loved one’s estate brings on another level of stress and worry. However, there are legal requirements that must be addressed in a timely manner to ensure that the estate is properly settled and assets are transferred according to the decedent’s wishes and Colorado law. Colo. Rev. St.§ 15-11-101 et seq.
Probate starts off with filing the will with the Probate Court in the county in which the decedent was a resident at the time of their death. Typically the executor that the decedent named in the will is the person who files the will. The next step is for the court to review the will, admit it to probate, and formally appoint the executor. Once the executor has been duly appointed by the Probate Court, they have to authority to move forward with the duties and responsibilities required to wrap up the estate. These steps include identifying, securing, and appraising the estate, paying estate debts and expenses, and distributing the assets.
In Colorado probate takes between 9-24 months, depending on the complexity of the estate and whether complications develop during the process such as probate litigation.
While objectively probate may seem like a fairly straightforward process, there can be complications such as probate litigation. Probate litigation occurs when there is a disagreement during the process that the parties cannot be resolve. As a result, it must be resolved in court. For example, the first step in probate, filing the petition and the will, may trigger problems. When the will is filed notices are sent to various parties such as beneficiaries, family members, and creditors. Colo. Rev. St.§ 15-12-801. The result may be someone objecting to probate because they feel that the will is invalid leading to a will contest. Will contests are based on allegations that the will was improperly executed, that there was undue influence, fraud, or duress, or that the testator was not of sound mind when they made the will. When such allegations are brought to court by an interested party, the court must determine if there is sufficient evidence to back them up.
During the early stages of probate, probate litigation may also result from someone objecting to the appointment of the executor because they feel the person is not qualified. Or, creditors may initiate litigation if the executor rejects their claims.
Probate litigation can also be based on disputes over the activities of the executor or administrator. For example, if a beneficiary believes that the executor has mishandled estate funds, they can challenge the executor’s actions or object to the estate accounting filed by the executor.
If a decedent died without a valid will, they would have died intestate. This does not mean that probate does not apply to their estate. Intestate estates are still subject to administration before assets can be distributed. The main difference is that there is no will to direct the asset distribution. Instead, an estate administrator appointed by the Probate Court judge will distribute assets based on the Colorado’s laws of intestate succession. Colo. Rev. St.§ 15-11-101. If the decedent died with a surviving spouse and/or children, Colorado law is clear. They would inherit. In the absence of a surviving spouse or children, and in the absence of other close relatives it may be more difficult to determine who has the right to inherit. There may be competing claims and fighting over the estate. The court may require claimants to prove their right to inherit in a kinship hearing.
While typically estates must go through a formal administration process, in Colorado there is a special, expedited procedure for estates with less than $66,000 in assets. Colo. Rev. St.§ 15-11-1201-1205. An affidavit must be filed by those entitled to inherit. The court would then issue an order that provides for payment of estate debt and expenses and distribution of assets. The expedited process takes much less time than the typical minimum of 6 months.