Most people in Colorado can tell you what a will is. But when it comes to things like probate and how probate works, it can be a mystery.
Probate is the legal process used to transfer ownership of assets from a decedent to heirs. Estates of a decedent are considered either testate estates or intestate estates. In testate estates, a will exists. In intestate estates, a will does not exist.
Is all probate the same?
There are three types of probate:
Small estate probate
If an estate has less than $50,000 and no real property, known as a small estate and heirs can use a sworn affidavit to collect assets willed or left to them. The sworn affidavit, which must be notarized, is used to prove their identity. The sworn affidavit is presented to the person holding the asset, and ownership of the asset is transferred.
If a will does exist, or no will exists, but no arguments are expected over property or assets, the court will appoint a representative and then informally oversee the process. They will have a very limited role in the disbursement of assets other than to ensure the representative remains accountable. The probate must remain open for at least six months; however, the settlement of assets may take longer.
If a will is contested, or something in the testament is unclear or invalid, a more formal probate process may be required. The representative of the estate could even be required to get approval for each transaction of assets. The probate must remain open for at least six months. Formal probates may be open much longer until all issues are resolved.
What is the responsibility of the representative appointed by the court?
This person has the fiduciary duty of paying off creditors, inventorying assets, valuing or liquidating property if necessary and disbursing the property to the heirs or beneficiaries. They are also responsible for:
- Remaining impartial.
- Using care and prudence in regards to administration of the estate.
- Putting the estate interests above their own.
- Being loyal and impartial in their treatment of all parties.
If you are involved in an estate settlement that requires a formal probate process, you should seek legal assistance to make sure your rights are protected.
Source: Denver Bar Association, "Probate in Colorado," accessed Feb. 6, 2018