Often when a loved one passes away, family and friends are left with uncertainties about how to proceed. Questions about whether there is a will and where it is kept, whether a probate court proceeding is needed, how to handle the process, and who should be responsible for any such obligations are common. In Colorado, the probate process typically allows for fast and relatively inexpensive administration of a decedent’s estate. However, probate may not always be necessary. If the property of the deceased, less liens and encumbrances, is worth $50,000 or less and the deceased did not own real property, in most instances a Small Estate Affidavit can be used to collect the property of the deceased for distribution. The Affidavit is effective without any Court approval; however, one must be considered a “Successor” of the deceased according to certain statutory requirements to be eligible to fill out the Affidavit. The person filling out the affidavit owes a legal duty to those entitled to receive property from the deceased. The Affidavit also absolves anyone who turns assets over to the Successor from liability for doing so.
Estates involving more than $50,000 will require a probate proceeding, which can be either formal (court supervised) or informal (unsupervised). Both involve the appointment of a Personal Representative (the person responsible for administering the estate). In instances where the deceased died without a will, also known as dying “intestate,” the property of the deceased will be distributed according to the Colorado intestate succession laws, found in Title 15 of the Colorado Revised Statutes. If a will did exist the will must be lodged (filed) with the Probate Court (in most cases the District Court) in the county in which the decedent physically lived at the time of death. The will should be filed within ten (10) days after the death of the decedent. To avoid confusion, the location of the will should be made known to family members or a close friend prior to death so that when it is necessary, it can be readily located for administration. Assuming the will is not contested or held invalid, it will govern the distribution of the assets of the estate.
Once a personal representative is appointed certain requirements and deadlines are triggered. It is the duty of the personal representative to take an inventory of the decedent’s property and determine the value of it. Creditors are allowed to make claims against the estate provided they do so within required time limits. In most cases, the deadline to submit claims is set by a Notice to Creditors published by the personal representative. Claims are either then allowed or disallowed by the personal representative according to a statutory procedure, and paid before final distribution to the heirs. Although Colorado has a relatively user-friendly probate process, determining how to proceed following a love-one’s death is an important decision which should be considered with care. Consulting with an attorney regarding the process may be necessary, and is best done at the beginning of the process.