Colorado Law: Death Without a Will

By Marie Murdock

You may want to bypass the probate process when planning a Colorado estate. Methods of disposing of property at your death without going through the probate process usually require the assistance of an estate planning attorney. If you die without a will and without having made other provisions, the property in your estate will pass according to Colorado law.

Survivorship Deed

If you are married and own property jointly with a spouse, consider holding title or owning the property as joint tenants with rights of survivorship. This means that upon the death of one partner, the property automatically passes to the other without the necessity of a will or probate. If you have made provisions so that all your real estate and personal property is jointly owned in this manner, the property should pass to your spouse without a will. It is always a good idea to have a will prepared anyway in the event of a simultaneous death, or if you have neglected to add your spouse’s name to a vehicle or other piece of property.

Trusts

Some estate planning attorneys may suggest that you put your property into a trust. An attorney will assist you in establishing the trust and conveying property into it. The trust will be managed by a named trustee, which may be yourself and/or your spouse, and will name designated beneficiaries. It may be irrevocable and pass property through a generation and on to your grandchildren, or it may be revocable by you during your lifetime and terminate or become irrevocable at your death. The trust agreement will establish the terms of the trust and will state what happens to the trust property after your death.

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Life Estate

You may consider deeding any real estate you own to your intended beneficiaries while reserving a life estate to yourself. A life estate allows you to live on property until you die, at which time the property will belong to the beneficiary, or "grantee," named in the deed. That individual will not be able to terminate your reserved rights in the property during your lifetime. A life estate, or "lady bird deed" as it may be called, will only convey interest in real estate. You would have to make other provisions to dispose of your personal property.

Intestate Succession

If you die without a will and without making other provisions, your property will pass according to Colorado’s laws of intestate succession. These laws establish the share of a surviving spouse, as well as the share of surviving children and parents, based on the particular set of circumstances that exist at the time of your death.

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Do Wills Have to Be Filed?

The purpose of a last will and testament is to leave instructions regarding the distribution of property after death. In order for the court to recognize the distribution, however, the will must be filed for probate. This does not mean that property cannot be distributed without the approval and/or oversight of the court, as there may be several situations in which a personal representative may choose not to probate a will.

How to Establish a Life Estate

Life estates are popular devices for estate planning. A life estate grants a person the use of the property for the duration of her life and upon her death the property is promptly transferred to another beneficiary. This property interest can be created by a deed or will. The creation of this estate has tax implications for the creator of the estate, and possibly to the life tenant. The laws that define property rights, such as life estates, are the exclusive jurisdiction of the state where the property is located.

What Is an Affidavit of Survivorship?

A frequently used tool in estate planning is to hold title to property as joint tenants with rights of survivorship. Your co-owner may be your spouse, your child or a dear friend – someone to whom you want the property to pass automatically upon your death. If you elect this option, you don't have to include the property in your will. The survivor needs only to file an affidavit of survivorship with the county where the property is located – the deed takes care of the rest.

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