When you die, many of your assets must go through probate before being distributed to your beneficiaries. Probate is the process in which your estate’s representative is appointed and that representative gathers your assets, pays your debts and distributes any remaining assets to your beneficiaries. If you reside in Colorado at the time of your death, Colorado’s probate laws govern how this process works for your estate.
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Types of Estates
Colorado offers three types of probate procedures, whether or not you have a will. If you die with less than $50,000 in assets and no real estate, your estate qualifies as a small estate and Colorado law allows such estates to be distributed by a formal affidavit. There is no court involvement necessary for small estates, so this process is quicker and less expensive than most types of probate. If your estate is too large to qualify as a small estate, it can be administered through the informal probate process as long as you leave a valid will or your heirs are not in doubt. A qualified estate representative must be ready to be appointed. Under informal administration, your estate’s representative files certain key paperwork with the court, but otherwise manages your estate with little court supervision. If neither of these alternative probate procedures applies to your estate, it must go through the formal probate process, which can be longer and more expensive because the probate court is more involved in the administration of your estate.
Your estate’s personal representative is the manager and administrator of your estate’s assets during the probate process and has many rights and responsibilities under Colorado’s probate laws. Specifically, he must act impartially regarding all beneficiaries and other persons who have an interest in the estate; administer the estate with care; put the interests of the estate above his own interests; and be loyal to the estate and its beneficiaries. Your estate’s representative has the ability to open an estate bank account, sell your real estate, sell or transfer your assets and deal with your creditors. Thus, it may be in your estate’s best interests for you to appoint someone who can be trusted to manage these duties effectively.
The probate process allows anyone with a stake in your estate to challenge, or contest, the validity of your will. For example, if a will you made while your daughter was caring for you gives everything to your daughter and nothing to your son, your son could challenge the will under Colorado law. He could say that your daughter had “undue influence” over your will by improperly using her influence over you in a way that deprived you of your free will. The challenge may or may not be successful, depending on the circumstances. Your will could also be contested if you lacked the necessary testamentary capacity at the time you signed it, meaning you did not understand or know you were creating a will, the nature of your assets or your family members. Also, if the will is not signed or witnessed as required by Colorado law, it could be successfully challenged.
Colorado law requires your estate’s representative to notify your creditors and pay their claims before distributing assets to your beneficiaries. This notification may be done by mailing notice directly to known creditors and by publishing a notice in the newspaper. This opens the claim period for your estate; creditors must file claims with the estate during this period. If a creditor fails to file during the designated claim period, your estate’s representative does not have to pay that creditor’s claim. However, all valid claims submitted during the claim period must be paid before your representative can distribute assets to your beneficiaries.