Estate Planning

Estate Planning to Avoid Probate

Jorgensen, Brownell & Pepin, P.C. in Colorado Can Help

Many people have the idea that the probate process is something that must be avoided because legal fees and costs will eat up most of the assets and it will take years before anyone gets anything. While this may be true in some rare cases, Colorado allows for an informal process that is fairly simple and cost-effective, sidestepping the worst headaches of probate. (Note: Colorado does provide for a more formal process if such a process is necessary.)

To see if you can avoid probate, contact our attorneys and discuss the key details of your loved one’s estate during an initial consultation. Using our 30+ years of estate planning and probate experience, as well as our eclectic teamwork approach to casework, we can help you figure out how to avoid probate. It might even be possible that avoiding probate will not help in your situation, and we will be honest and upfront with you if that is the case.

Why Probate Can Take a While to Close

In terms of time, nothing in the probate process requires an estate to wait years to distribute property. In fact, a Colorado statute says that an estate can be closed six months after the personal representative is appointed. What determines how long probate will take is the complexity of the estate.

For instance, an estate with many types of assets and/or many creditors wanting to be paid will take longer to administer than a smaller estate with no creditors. You might have also heard that probate allows beneficiaries to challenge the will, or that beneficiaries can take the personal representative to court if they disagree with the personal representative's decisions. It is important to note that probate does not cause these problems, but rather the beneficiaries themselves are the source.

Reasons why a beneficiary could challenge a will and slow down probate are:

  • Close family member to the decedent is bizarrely not mentioned in the will.
  • Beneficiary removed abruptly in the will, shortly before the testator passed away.
  • Medical evidence suggests the testator made their will while not in a clear mental state.
  • Suspicions that a beneficiary tampered with the will or coerced the testator.

How to Avoid Probate

A common way to avoid probate is to create a trust, but the validity of trusts can be challenged in court. Also, trustees are subject to the same standards as personal representatives, and their actions can also be reviewed by a court.

Probate can also potentially be avoided if the decedent’s estate falls below any enforced estate tax levels. In Colorado, there is no longer a state estate tax, so the state itself will not collect against any decedent’s estate, regardless of its value. However, the federal estate tax – currently $11.18 million as of 2018 – still applies. When a decedent’s estate falls under the federal estate tax level, probate can be significantly shortened or avoided with the right legal preparations and guidance.

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