For those pursuing the probate process, Colorado offers a number of different options to ensure that your estate is settled as efficiently as possible. Choosing the right type of probate can save time, reduce costs, and minimize potential conflicts, making it easier for beneficiaries to receive their rightful inheritance.
Informal Probate
Informal probate is very common in Colorado. When there is valid will with a designated executor and no contests or disagreements are expected, informal probate is generally allowed. If all heirs and beneficiaries are in agreement and the estate is fairly simple in terms of assets and distributions, informal probate is a quick and cost-effective way to settle an estate. The clearer and simpler the terms of the will and estate are, the easier the probate process typically goes.
The executor of the will is required to notify all creditors and beneficiaries of the probate process. They must also inventory and accurately value all assets belonging to the estate, pay off any remaining taxes or debts, and distribute the assets among the beneficiaries as specified in the will. Informal probate is often preferred by those with smaller, less complicated estates and financial situations.
Formal Probate
In more complex cases, formal probate may be required. Formal probate is generally a better choice when there are disagreements or disputes about the validity of the will amongst heirs or beneficiaries. If they believe that the distribution of assets is unfair and they choose to contest the will, formal probate may be necessary. It is also a more common option for estates with complicated assets, family businesses, or significant debts. Formal probate may also be necessary when an individual passes away in Denver, leaving behind substantial debts. It could also be required if the deceased owned unique assets like intellectual property, family-owned businesses, and more.
Formal probate often requires greater court intervention and may even involve several different court hearings. In order for the formal probate process to begin, the executor files a petition with the Denver Probate Court. Once the court reviews the petition and approves the will, the executor is able to begin administering the estate. Formal probate can be even more costly and time-consuming, though it goes a long way in addressing complex estates and resolving disputes.
Small Estate Procedure
As of 2024, a small estate is considered any personal property under $82,000 with no real estate. Inheritors are often able to take immediate action in claiming these properties without the need to go to court. These properties typically include things like cars, personal belongings, small bank accounts, and any other assets under $82,000 without real estate.
Beneficiaries who are interested in initiating a small estate procedure in Colorado will have to complete a Small Estate Affidavit. Heirs and beneficiaries must confirm the total value of the estate and affirm that all known creditors have been paid. Once the affidavit is filed, beneficiaries will be able to immediately claim their property without the need to open a formal probate case. The small estate procedure generally provides a quicker and more affordable alternative to probate for families with simple assets or limited financial resources.
It is strongly suggested that heirs and beneficiaries consult with a probate litigation attorney before deciding on a small estate procedure. It’s important to make sure that you are eligible for a small estate procedure before initiating one. Any outstanding debts or financial obligations could cause problems or delays in the process.
Ancillary Probate
If the deceased lived in another state but owned property in the state of Colorado, an executor would generally choose ancillary probate. The primary probate would still need to be settled in whatever state the decedent resided, though ancillary probate will take place in Colorado. During ancillary probate, the executor will file a petition with the Denver Probate Court, who will then give them the authority to manage the estate and distribute the Colorado property.
Ancillary probate is an additional legal step that requires the assistance of an attorney who is knowledgeable in working with multi-state estates. Our team at Evans Case is proud to help executors through the ancillary probate process and make sure that all properties are effectively managed and distributed.
When choosing the right type of probate to pursue, it is important to consider state-specific laws, the size of the estate, the potential for any disagreements with heirs and beneficiaries, and the presence of a valid will.
- Size of the Estate: A smaller estate in Colorado with limited assets may qualify for the small estate procedure. However, larger estates with more complicated assets often require formal or informal probate.
- Presence of a Will: With a will, estates will generally go through formal or informal probate. Estates without a valid will are subject to Colorado’s intestate succession laws and may require greater court supervision in order to determine proper asset distribution.
- Conflicts and Disputes: If you are anticipating disputes or disagreements during the probate process, formal probate may be the best option to address any potential concerns among the involved parties.
- Location of Property: If the deceased owned property outside of the state where they primarily resided, ancillary probate may be required to settle those assets.
It is helpful to understand the unique advantages of each type of probate and to carefully consider which option may be the best for your estate. One of our Denver probate attorneys can provide invaluable assistance and advice to help guide you through the process and make sure that your estate is handled effectively.
Will My Estate Have to Go Through Probate?
When there are assets that are not appointed to a designated beneficiary and are solely in the decedent’s name, the estate will typically go through probate. This includes assets such as real estate, bank accounts, investments, cars, personal property, and more.
If the assets have a designated beneficiary, they generally do not require probate. This can include assets like jointly-owned homes, retirement accounts, life insurance policies with designated beneficiaries, and more.
As mentioned above, any estate under $82,000 without real estate can be managed with a small estate affidavit that will allow the heirs and beneficiaries to distribute assets without going through a formal probate process.
Determining whether or not an estate must go through probate can be a complicated process dependent on several factors. It can be extraordinarily beneficial to have a trusted probate attorney by your side during the probate process. An experienced probate lawyer like those at Evans Case can provide invaluable legal advice and help decide what assets do and do not need to go through probate. If you are dealing with the estate of a loved one and are in need of legal guidance, do not hesitate to contact our team of Denver probate attorneys.
If a will exists, probate is typically necessary to validate the will and ensure fair distribution of assets in accordance with the will. The will must be filed with the Denver Probate Court, and an executor or personal representative must carry out the estate administration.
Even without a will, the estate will need to go through the probate process, and assets will be distributed in accordance with Colorado’s intestate succession laws.
In order to determine if probate is necessary, it is recommended to take inventory of all of the assets owned by the deceased and determine whether or not each asset is designated to a beneficiary. If the value of all the assets is under $74,000, you should be able to continue with a small estate affidavit.
If there are any assets that are either jointly owned or have POD (point-of-death) designations, probate could be avoided altogether.
The probate process can be complicated, especially for those who are dealing with the recent loss of a loved one. We strongly encourage consulting with a Denver probate attorney to address any complications or uncertainties along the way. Our team of probate lawyers will be able to ensure that all legal requirements are met and that your estate is managed successfully.
What Is the Probate Process?
The probate process is an essential part of properly administering the estate of a deceased person or loved one. As mentioned above, it begins with determining the need for probate based on the value and size of the estate, the specific types of assets, whether or not a will exists, and potential disputes and disagreements among heirs and beneficiaries.
- If probate is needed, the executor of the will must file a petition for probate with the Denver Probate Court. In most cases, the executor will need the death certificate of the deceased, the will, and an application for either formal or informal probate. If not specifically mentioned in the will, the court is responsible for appointing a personal representative to administer the estate.
- Once a personal representative is appointed, they must notify all heirs, beneficiaries, and creditors of the probate proceedings. It is the personal representative that is responsible for taking inventory of all of the deceased’s assets, like real estate, personal property, bank accounts, and investments. The representative is required to file inventory, provide an appraisal of the estate’s assets, and present it to the court in order to determine the exact value of the estate at the time of death.
- It is the personal representative’s duty to protect all assets belonging to the estate during the probate process. In some cases, the representative may need to open a separate estate bank account, pay all ongoing debts, taxes, payments, etc., and maintain the real estate and other property involved.
In the event of any disputes arising, the court will be tasked with holding hearings to validate the will and resolve any ongoing conflicts or disagreements.
The personal representative will then be responsible for providing a final accounting of the estate to the court, including all financial transactions conducted on its behalf and any expenses or fees accrued during the probate process.
Once all duties are fulfilled, the personal representative will once again petition the court to close the estate. After reviewing and approving the final accounting, the estate will be closed, and the executor will be free of any further responsibility.
The probate process, while overwhelming and complicated for the executors, is an important legal procedure that aims to ensure the deceased’s estate is administered according to their wishes.. Personal representatives take on a large responsibility and must act in the best interests of everyone involved.
To ensure fair distribution of assets and a clear, formulated approach to the probate process, we strongly encourage you to reach out to a Denver probate attorney for all of the challenges you may face with your estate. The team of probate lawyers at Evans Case is well-versed in the subtleties and challenges of probate and can provide you with indispensable legal support along the way. Do not hesitate to reach out to our team today if you are looking for assistance in the probate process.
Common Challenges of Probate
Throughout the probate process, there may be challenges determining the validity of the will or disputes that arise over the distribution of assets. There are a number of different reasons why an heir or beneficiary may want to
contest a will, including:
A common claim for contesting a will is that the testator (the person who created the will) was put under immense pressure to alter their will in a particular way that didn’t reflect their true intentions. Undue influence might be suspected if there is one person who disproportionately benefits from the will, if the testator is vulnerable due to age or illness, or if there were significant changes to the will unusually leaning in a beneficiary’s favor.
For example, a beneficiary may attempt to manipulate a testator who is suffering from cognitive decline or a weakened mental state into changing their will. More often than not, the person pressuring a testator into changing their will is someone close, like a caregiver, friend, or even a family member.
Proving undue influence can be difficult, as it requires demonstrating that the person influencing the testator held a position of power and used it to manipulate them into changing their true intentions. A most common way to prove undue influence is by providing evidence that the influence isolated the testator from other family members. Restricting access to the testator is a popular tactic by those attempting to sway their decisions.
This is one of the most common reasons for contesting a will. If the testator lacked the mental awareness or capacity to understand the implications of their will, one might claim a lack of capacity. It is important that the testator fully understands their decisions and the implications that follow. They should fully understand the value of the assets they own, know who their beneficiaries are, and understand how they plan to distribute those assets.
If the testator is suffering from a mental disorder such as dementia or any other cognitive impairment at the time of drafting or creating the will, beneficiaries may call their mental capacity into question and ask that the will be invalidated.
The party that is contesting the will based on the grounds of a lack of capacity will need to provide medical records, witness testimonies, and any other documentation as evidence that the testator was not of sound mind when creating or updating their will. Proving a lack of mental capacity may even require expert testimony from a healthcare provider or mental health professional.
In some cases, a will may be contested if the testator was deceived into signing their will. Similarly to undue influence, someone may intentionally mislead the testator or misrepresent the facts in order to alter the terms of the will. For example, if a beneficiary provides false information or fails to provide important information that influences the testator’s decisions, it may be grounds for fraud. A forged signature on the will would also be considered fraud. Fraud is a serious accusation, and proving it can often be difficult. It may require witness testimonies and even handwriting analysis.
Fraud claims may also be made if the testator was tricked or manipulated into signing the will. For instance, if the testator was under the assumption that they were signing a different document, it could invalidate the will. Though not as common, fraud can also involve situations where a will was fabricated entirely.
In Colorado, a will must be signed by the testator, it must be witnessed and signed by at least two other parties, and it must be properly notarized if necessary. A will may be contested if it does not meet these requirements for proper execution. In cases where a will is not properly notarized or lacks the required signatures, the court may determine the will to be invalid. Contesting a will based on improper execution involves reviewing the documentation and identifying any deviations from Colorado’s legal standards for will creation.
If it is discovered that the testator revoked their will before passing, the will may be contested. This may happen if the testator created a new will aimed at replacing an existing one, physically destroyed an existing will, or made a written statement revoking the will altogether. Once a will is revoked, it is no longer considered legally valid. In instances where family members or beneficiaries discover another will that contradicts the terms of the original will, disputes may arise over which document should take precedence and be upheld.
- Mistakes or Inconsistent Wills
If the testator made a mistake or was under misapprehension about the facts, the will may be contested. Beneficiaries may also contest if there are multiple existing wills with conflicting terms. Typically, in these cases, the most recently drafted will take precedence over the others.
Mistakes in the language, ambiguities about asset distribution, or misinterpretations of the testator’s wishes are all examples of inconsistencies that may result in legal challenges and delay the probate process. In these situations, the court will be responsible for interpreting the will and determining the testator’s true intentions. This helps ensure a fair and proper distribution of assets.
In order to contest a will, the contestant is obligated to file a formal objection with the Denver Probate Court. This needs to be done before the court has approved the probate. The contestant will need to provide solid evidence for their case and be able to prove that either a mistake was made by the testator or that they were unfit to sign and draft their will. Once the court considers the arguments from both sides of the dispute, they will decide whether or not the will is valid or should be upheld.
Who Can Contest a Will in Colorado?
Regardless of the reason for wanting to contest, only certain individuals are able to challenge a will in court. Only those who stand to benefit from the will have the legal standing to contest. This includes heirs, beneficiaries specifically named in the will, and those who would inherit property under intestate succession if no will exists. Individuals interested in contesting a will must have a valid reason for doing so (lack of mental capacity, undue influence, fraud, improper execution, revocation, or mistakes). Courts are unlikely to even consider a will contest unless there is substantial evidence to support it.
Contesting a Will
- Filing a Petition: The process of contesting a will begins with filing a petition with the Denver probate court. This formal objection will specify the reasoning for the will contest and provide any evidence that supports the claim.
- Gathering Evidence: As we mentioned earlier, contesting a will requires strong evidence. Some of the strongest pieces of evidence in a will contest include medical records, witness statements, and expert testimonies. All of these pieces of evidence can help support claims of undue influence, lack of capacity, or fraud. The court will review all relevant legal documents to help determine the will’s validity.
- Court Hearings: In the court hearings, all parties will have the opportunity to present their evidence and make their arguments. During this stage, witnesses may be called to testify. Witnesses who were present at the time the will was drafted are often some of the most valuable. Expert witnesses like healthcare providers and medical professionals may also provide valuable insight into the testator’s capacity. A handwriting analyst will also be able to weigh in on the will’s authenticity.
- Court Ruling: A will contest ends with the court making their determination. After reviewing all available evidence, the court will state whether or not the will is valid. If the court finds the will to be invalid, they may revert to an earlier version. If there is no valid will, the estate will be distributed according to Colorado’s intestate succession laws.
Whether you are tasked with handling the administration of an estate or you are interested in contesting the will, we recommend consulting with a professional probate lawyer. The trusted team of Denver probate attorneys at Evans Case are able to provide top-tier legal assistance that will ensure fair distribution and effective management of your estate. We understand that this is a tough and often complicated process. Do not let the uncertainties and challenges of the probate process overwhelm you. Call Evans Case today to see how we can assist you with your estate.
Areas We Practice
Our team is proud to offer passionate, expert legal advice for Denver residents preparing for the probate process. However, probate litigation is not our only area of expertise. We also offer dedicated legal support when it comes to estate planning, elder law, trust administration, prenuptial agreements, and more.
- Estate Planning: Our team offers personalized estate planning services that help protect your assets and care for your loved ones. Estate planning is the process of creating different legal documents like wills, trusts, and powers of attorney that determine how your estate will be distributed. Proper estate planning can help reduce estate taxes and avoid probate. Strategic estate planning can have numerous benefits for you and your beneficiaries. Our attorneys are happy to work closely with our clients to understand your needs and tailor a plan that works for you and your family. From asset protection to healthcare directives, our team at Evans Case can help you build an estate plan that meets your long-term goals.
- Elder Law: We provide compassionate elder law services to help support older adults and their families. Elder law encompasses a wide range of matters, from Medicaid eligibility to guardianships, conservatorships, and elder abuse protection. Our attorneys are prepared to protect the rights of our elderly clients and help make informed decisions regarding long-term care planning and your financial well-being. At Evans Case, we adamantly believe that every individual deserves quality care and security.
- Trust Administration: Our firm also offers exceptional trust administration services. We are proud to offer our expertise to trustees tasked with managing and distributing assets held in a trust. Managing assets, keeping meticulous records, filing taxes, and keeping an open line of communication with all beneficiaries can be incredibly overwhelming. At Evans Case, we are here to help guide trustees through the trust administration process, helping you fulfill your fiduciary duties and honor the deceased’s wishes. Our team can help simplify the process. We are committed to helping trustees protect the assets in the trust and oversee a fair and smooth distribution of assets.
- Wills: Evans Case is also available to help clients draft, create, and update their wills in Denver. Our attorneys will help you explore all of your options and create a plan to distribute your assets without disputes between your beneficiaries. We are able to help draft legally compliant wills that clearly outline your preferences for asset distribution, guardianship, and other specific requests. We help our clients through the challenges of probate law and help them make informed decisions about their estate. We are here to provide you with peace of mind, knowing that your wishes will be honored and your family will be provided for.
- Prenuptial Agreements: Evans Case also offers premiere legal support for our clients who are considering prenuptial agreements, or prenups. A prenup is a contract that is signed by two partners before marriage, outlining the division of property, assets, and financial responsibilities in the event of a divorce. We help our clients draft clear and legally binding documents that protect the interests of all parties involved. We work with couples and individuals to create a prenuptial agreement that fits your needs, addresses your concerns, and ensures both parties have a mutual understanding before entering their marriage.
- Out-of-state Probate: The probate process is complicated and time-consuming enough already. Having to deal with an out-of-state property or assets after the passing of a loved one only makes it more difficult. We are here to help beneficiaries and executors through the ancillary probate process. In order to effectively settle your loved one’s estate, ancillary probate will be required for all out-of-state properties. Our team will make sure that the ancillary probate process adheres to Colorado state requirements and coordinates with other states to ensure a smooth distribution of assets. Working with an attorney with experience in multi-state estates is highly recommended. The attorneys at Evans Case provide reliable and strong legal support to help clients fulfill their responsibilities and settle their loved one’s estates.
For all of your Denver estate planning needs, Evans Case is the team that you can trust. With over 100 years of combined experience serving the Denver area, our attorneys understand the needs and challenges faced by Denver families. For a team that truly understands your needs, call Evans Case today and see how we can help make a difference.
Contact Evans Case Today to Speak With a Trusted Probate Attorney
Evans Case has years of experience with probate litigation. The probate process is one that requires constant communication, attention to detail, and careful planning. There are a number of different factors that affect the outcomes and the types of probate that you may pursue. That is why it is beyond helpful to have an experienced probate attorney by your side during the probate process.
We can provide you with expert legal support, invaluable advice about your estate, and most importantly, peace of mind that your estate will be administered with the utmost care and professionalism. If you are dealing with probate or any
estate-related issues, do not hesitate to contact our team of Denver probate attorneys today and see how we can make a difference. We want to make sure that the probate process is as smooth and painless as it can possibly be. Don’t wait.
Call Evans Case today to speak with one of our Denver probate attorneys.