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What is Probate?

On Behalf of | Jan 19, 2018 | Estate Planning News

Probate.  Ugh.  Most of us cringe at the thought of dealing with the Court system when we are alive.  Why would anyone possibly want or need to involve the Courts after they have passed away?

Probate is actually a very common legal procedure through which assets are legally passed from the deceased to his or her beneficiaries. It’s an efficient way to ensure the deceased’s wishes are carried out as well as assisting with keeping family drama over assets to a minimum.

Why is it important for assets to be passed on properly through the Court?  If an asset is not passed on correctly, it can not only damage the line of tile, but a previous owner or heir can legally claim that property later.  For example, when you purchase a home, the background of the title for that home is researched to ensure the title was properly passed from one owner to the next.  If it is discovered that the title was not passed properly, you may be told that you cannot purchase the home.

In other words, a deceased person cannot sell a home, but the deceased’s estate can sell the home.  In order to do so, the deed and title to the home must be changed from the deceased’s name to that of the estate or the designated heir.  This change must be reflected on the deed and title.

Do I need to file Probate documents with the Court?  Whether you need to utilize the probate system is dependent upon the type of assets in your estate (i.e. real property), how those assets are owned or titled, and the probate laws of Colorado.  The questions below apply to estates where a will was created (i.e. “testate”) and estates where a will was not created (i.e. “intestate”).

  • Did the Decedent (i.e. deceased) own real estate?[1]
  • Did the Decedent own non-real estate assets with a total value greater than $66,000.00?

The following assets are not counted in number 2:

  • Real Estate titled in joint tenancy with a surviving joint tenant.
  • Real Estate titled with a beneficiary designation, such as payable-on-death or transferable on death accounts, and some life insurance policies and retirement accounts.

If you answered “no” to 1 and 2 above, you may not need to file documents with the Probate court.

However, if you answered “Yes” to either 1 or 2, you may file informally or formally with the Court.

How can I file – informally or formally?  Now that you have figured out whether or not you need to initiate the Probate process, how to do go about initiating the process?  A probate case may be commenced in one or two ways:

  • Information proceedings are initiated by filing an application with the Registrar of the Probate Court; or
  • Formal proceedings are initiated by filing a petition to the Probate Court.

Once the probate process is initiated, a Judge will provide legal permission for assets to be passed on, whether or not a will exists.  The Probate Court provides individuals with a legal forum to conduct a plethora of activities, including but not limited to:

  • Verifying the validity of a will;
  • Appointment of an executor and/or personal representative;
  • Identifying and inventorying the deceased’s property;
  • Notifying creditors;
  • Supervising payment of decedent’s debts and taxes

The Probate period continues until the legal obligations of the estate have been met and the court orders the final distribution of the estate to the beneficiaries.

How do you select a Probate Court?  The Probate Court utilized for this process is determined by the county in which the deceased resided (not where he or she passed away).  Most counties have their own Probate Court with Judges that are extremely knowledgeable of the probate code and estate distribution.  These Judges preside over probate cases and only probate cases, focusing their knowledge specifically on probate issues.  Because these Judges do not have to oversee a criminal or civil docket, their days are dedicated solely to assisting individuals with the distribution of an estate.  This can mean a much quicker and efficient process.

Conclusion: The information in this blog is just the tip of the estate distribution iceberg.  Throughout 2018, we will be posting blogs regarding other aspects of the probate process and how to potentially avoid probate altogether.  If you are interested in learning more about the probate process or require assistance navigating the process, please contact attorneys Anne McMichael ([email protected]) or Jill Curry ([email protected]) or call our office at 303-572-4200.

[1] See JDF 907 R3-17 Instructions for Probate without a Will, Colorado Judiciary Department, 2014.