Understanding When to Initiate Probate

  • Probate
August 8, 2023

When an individual dies, their debts must be settled, and their assets distributed to their heirs. The legal process of settling the estate of a deceased individual (a “decedent”) is called probate. When an individual passes away with a valid will, they are said to have passed away “testate” or with a will. When this happens, probate will be carried out, and estate assets will be distributed pursuant to the will. However, should an individual pass away without a will or “intestate”, their assets will be distributed according to Colorado intestacy laws. Here’s what heirs and survivors should know about the probate process:

When Should Probate Be Initiated?

The need to initiate probate depends on the total value of the decedent’s assets and how such assets are titled. Probate may not be necessary if the value of the decedent’s estate is less than $80,000 and the decedent did not own real property. When this is the case, an heir or devisee may collect and distribute the decedent’s property pursuant to a small estate affidavit as provided under C.R.S. § 15-12-1201. However, probate will need to be initiated if the decedent owns real property or has assets in excess of $80,000 at the time of their passing.

Non-Probate Assets vs. Probate Assets

Non-probate property is personal or real property not part of a decedent’s estate. It is, therefore, not part of the probate process and will not be distributed according to a will. Instead, non-probate assets will transfer automatically by operation of law upon the decedent’s passing to the named or designated beneficiary, as noted in C.R.S. § 15-15-101. Non-probate assets include accounts with pay-on-death beneficiaries, real property titled in joint tenancy, and property transferred to a trust.

On the contrary, probate assets are property owned individually by the decedent at the time of their passing. The distribution of probate assets will be governed by a valid will or through Colorado intestacy laws.

Who Can Initiate Probate?

First, it should be determined who will serve as personal representative for the decedent’s estate. In Colorado, a personal representative is appointed to oversee the administration of a decedent’s estate. As provided in C.R.S. § 15-12-203, persons have priority for appointment as personal representative in the following order:

(a) person nominated in a will,

(b) surviving spouse of the decedent who is a devisee,

(b.3) surviving party to a civil union who is a devisee,

(b.5) person given priority in designated beneficiary agreement

(c) other devisees, and so forth.

The nominated personal representative shall initiate probate with the appropriate District Court by filing an application with the registrar for informal probate proceedings or filing a petition with the court for formal probate proceedings. The personal representative owes a fiduciary duty to the estate and its heirs and shall have specific responsibilities such as opening an estate bank account and dealing with estate creditors.

Who Inherits?

An “heir” is a person entitled to a distribution of the decedent’s property under the Colorado statutes of intestacy. A “devisee” is a person designated in a decedent’s will to receive personal or real property. Distributions made pursuant to a will are typically straightforward, and devisees should expect to receive distributions directed under the will unless the devisees agree to alter distributions. On the contrary, distributions under the Colorado laws on intestacy can be more complicated. In these instances, the amount inherited by each heir will depend on the family makeup including whether the decedent is survived by a spouse, whether they shared children, and whether the decedent had children with someone other than that spouse.

For additional assistance on initiating probate, contact the experienced probate attorneys at Jorgensen, Brownell & Pepin who are eager to help you or a loved one navigate the complexities of probate law in Colorado.

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