When someone passes away owning property in a state other than where they lived, their estate may be subject to a legal process called ancillary probate. This occurs in addition to the primary probate case filed in the deceased person’s home state. In Colorado, ancillary probate is often required when an out-of-state resident dies while owning real estate, mineral rights, or tangible property located within Colorado’s borders.
For example, if someone lived in Arizona but owned a second home or a piece of land in Colorado, their personal representative (or executor) may need to open an ancillary probate proceeding in a Colorado court to legally transfer or sell that property. Colorado does not allow out-of-state property to pass to heirs without court involvement when probate is otherwise required.
Understanding how Colorado handles these types of situations can help families avoid legal missteps and resolve multi-state estates more efficiently.
Why Would Probate Be Required in Colorado If the Decedent Lived Elsewhere?
Probate is a court-supervised process used to identify and distribute a deceased person’s assets. While most estates go through probate in the state where the decedent resided, any real property located in a different state must be probated in the state where the property sits. That’s because individual states have jurisdiction over real estate within their own borders, even if the decedent never lived there.
Some common reasons Colorado ancillary probate becomes necessary include:
- The decedent owned a vacation home or rental property in Colorado
- There are oil, gas, or mineral interests located in Colorado
- Colorado was listed as the situs of a bank account or safety deposit box
- The decedent purchased land in Colorado as an investment
If those assets were titled in the decedent’s name alone at the time of death, probate may be needed to transfer them to beneficiaries or prepare them for sale.
How Does the Ancillary Probate Process Work in Colorado?
The ancillary probate process in Colorado is generally less complicated than a full probate proceeding but still requires formal court filings. Here are the typical steps:
- Start the Main Probate in the Decedent’s Home State: Before anything can happen in Colorado, the personal representative must be appointed through the primary probate case in the decedent’s state of residence.
- File Ancillary Probate in Colorado: The personal representative (or their attorney) files a petition in the county where the Colorado property is located. They must provide certified copies of the will, death certificate, and Letters Testamentary (or Letters of Administration) from the home state.
- Request Colorado Court Approval: Once the documentation is accepted, the Colorado court will issue its own letters allowing the personal representative to act on behalf of the estate within the state.
- Transfer or Sell the Property: With the court’s authority, the representative can then transfer ownership to heirs or sell the property and distribute the proceeds according to the decedent’s will or the laws of intestacy.
- Close the Ancillary Estate: After all Colorado-based assets have been handled, the personal representative can file a final report and request that the court close the ancillary case.
This process ensures that all legal requirements are met under Colorado law, protecting both the estate and the beneficiaries.
Can Ancillary Probate Be Avoided in Colorado?
In some cases, families can avoid the need for ancillary probate by using specific estate planning tools. These include:
- Placing Property in a Living Trust: If the out-of-state real estate is titled in the name of a trust, it can pass to beneficiaries without court involvement.
- Using a Transfer-on-Death (TOD) Deed: Colorado allows property owners to record TOD deeds, which name a beneficiary who will receive the property automatically upon death.
- Joint Tenancy with Right of Survivorship: Property titled in joint tenancy with another person (such as a spouse or child) may pass outside probate when one owner dies.
However, if these measures were not taken prior to death, ancillary probate may be the only option. That's why it's important for out-of-state property owners to review their estate plans with an attorney who understands Colorado law.
Why It’s Important to Work with a Local Colorado Probate Attorney
While the decedent’s family may already have a probate attorney handling matters in their home state, Colorado law requires local representation to handle filings within the state. Working with an experienced Colorado probate litigation firm ensures that:
- All required documents are properly certified and submitted
- The correct county court is identified and approached
- Real estate transfers are legally executed under Colorado statutes
- All actions comply with state-specific deadlines and procedures
Additionally, if there are disputes over property ownership, unclear title issues, or questions about the validity of the will, having a firm that focuses on probate litigation can be invaluable. Challenges involving out-of-state estates often require fast, strategic action to prevent unnecessary delays or costly mistakes.
We Help Families Handle Colorado Probate
At Evans Case, we regularly assist families across the U.S. who need to resolve Colorado-based estate matters. Whether you’re dealing with a second home in the mountains, mineral rights passed down through generations, or a rental property in Denver, we can guide you through the ancillary probate process with clarity and efficiency.
Our attorneys are deeply familiar with Colorado probate law and can work directly with your legal team in the decedent’s home state to ensure seamless coordination. We’ll help you gather the right documentation, file with the correct court, and move quickly to secure control of the property.
If you’re handling the estate of a loved one who owned property in Colorado, contact us to schedule a consultation. We’re here to make sure the probate process is completed properly so you can move forward with confidence.
