How to File Wills in Colorado

By Christine Funk, J.D.

How to File Wills in Colorado

By Christine Funk, J.D.

When a person dies with a last will and testament in place, their will must go through the probate process. Probate is a legal process designed to transfer the title of property from a person who has died, called a "decedent," to the person named in the decedent's will, called the "devisee." Most wills require probate. However, in Colorado, the court's involvement varies based on the size of the estate.

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1. Determine the size of the estate.

The first step in filing a will in Colorado is to determine the type of will, which is dependent on the size of the estate as well as other circumstances related to an individual case. Once you determine the type of will, you can follow the appropriate steps.

As a preliminary matter, to determine whether or how to file probate with the court, the state of Colorado provides a decision tree in their Instructions for Probate with a Will (JDF 906).

2. For a small estate, file an affidavit with the court.

In Colorado, a small estate is an estate with $64,000 or less in personal property, such as bank accounts, cash, and possessions, and no real property. When an estate is a small estate, devisees must file an affidavit with the court, stating under oath they are entitled to the property they plan to collect. In a situation wherein there is more than one devisee, a single devisee can file the affidavit with the court, indicating they will distribute the property to any other individual also entitled to receive a portion of the property as a devisee.

When the estate is a small estate, you might not need to file court documents. Consult with the attorney who drafted the will or with another attorney who has estate-planning experience if you have any questions about how to proceed.

3. For an uncontested estate, file an application for informal probate.

An uncontested estate is an estate wherein the will is valid, no one is expected to contest the will, and the will has identified a personal representative who is qualified, willing, and ready to take on the responsibility. This involves an informal process. The court is involved, but only in a limited capacity. The role of the court is to ensure that the instructions listed in the will are followed. It also provides a venue for those identified in the will as devisees or heirs to litigate any issues if the personal representative fails to carry out the terms of the will as intended.

Informal probate proceedings must be open with the court for a minimum of six months. However, the actual distribution of property can take more or less time.

To file informally, submit an Application for Informal Probate of a Will (JDF 910) to the Registrar. The Registrar may then nominate a personal representative. They may do so without giving prior notice to interested parties under some circumstances.

4. For contested estates, file a petition for formal probate.

When there are issues with a will, the probate must move forward formally. Issues that can result in a formal probate include:

  • Wills with unclear instructions or intentions
  • Invalid wills
  • Contested wills
  • Issues with the identification of heirs
  • Property title disputes
  • Other legal disputes

When a formal probate proceeding occurs, the courts may have more involvement. Depending on the facts and circumstances of a particular case, a personal representative might have to obtain court permission, for example, to take any action involving the transfer of any property or other transaction. In other cases, once the court has settled the issue with the will, the personal representative is free to carry out the other terms and conditions of the will without court supervision.

To file formally, an applicant must file a Petition for Formal Probate of Will and Formal Appointment of Personal Representative (JDF 920) with the court. Once filed, a probate judge, magistrate, or registrar may appoint a personal representative. This occurs after all interested parties receive notice. If there are any objections to the appointment, a hearing on the matter takes place.

As with informal probate, formal probate proceedings require the case to remain open for a minimum of six months. However, it might take longer to complete the process of probating a formal will.

 

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