One of the most daunting aspects of probate and estate administration in Colorado is understanding what pleadings need to be completed, how to draft them, when they must be filed, and who must be served. Having an experienced Colorado estate administration attorney help with the process takes most of the pressure off of a personal representative. However, it’s still helpful to have a basic understanding of some of the pleadings the Probate Court (in Denver County) or District Court (in all other Colorado counties) use in probate administration.

To Probate or Not to Probate?

The first question a personal representative (PR) of an estate must answer is whether or not the deceased person (the decedent) had a Last Will and Testament. If there was a will, it must be lodged (filed) with the court within ten days after the decedent’s death.

Regardless of whether there was a will, some estates do not have to go through probate at all. If the decedent did not own real estate (other than as a joint tenant with rights of survivorship), and the decedent didn’t own non-real estate assets in his or her sole name worth more than $64,000, the estate qualifies as a small estate. The personal representative has the option of executing an Affidavit for Collection of Personal Property. This form allows the PR to gather and distribute the decedent’s property to the heirs with no further court involvement, although the PR must notify the court when the process is completed.

If the estate doesn’t qualify as a small estate, the PR needs to determine whether it should go through formal or informal probate. Informal probate is far more common; formal probate is typically used only when there is a question about the validity of the will or a contested estate.

Pleadings for Formal and Informal Probate

Since informal probate is far more common, let’s briefly consider some of the pleadings used to open and administer an estate in informal probate first:

• Application for Informal Probate of Will and Informal Appointment of Personal Representative is used to begin informal estate administration if there is a will. Otherwise, use an Application for Informal Appointment of Personal Representative.
• The Order for Informal Probate of Will and Informal Appointment of Personal Representative is issued by the court when there is a will; and an Order for Informal Appointment of Personal
• Representative is the analogous order for estates without a will.
• An Acceptance of Appointment indicates that the personal representative appointed by the court is willing to serve in that capacity.
• The Renunciation and/or Nomination of Personal Representative is signed before a notary public by any heir with priority to serve as PR, and filed with the court.
• The personal representative must send all heirs an Information of Appointment within 30 days of appointment, and the pleading, including a completed Certificate of Service, must be filed with the court.
• The personal representative must also notify known creditors that the estate has been opened using aNotice to Creditors by Mail or Delivery, and given notice to any unknown creditors by way of Notice to Creditors by Publication. A Certificate of Service and proof of publication must be filed with the court.
• Within three months from the date the personal representative was appointed, he or she must complete theDecedent’s Estate Inventory. This may be filed with the court or sent to interested parties who request it.
• An Irrevocable Power of Attorney is a document that allows the clerk of the court in which the estate is being administered to receive notices and service of process on behalf of the PR in his or her capacity as fiduciary of the estate. The nominated PR must sign it before a notary public and return it to the court if he or she lives out of state and therefore requires an agent for service of process in Colorado.
• Letters Testamentary/of Administration are issued by the court. These documents are the personal representative’s proof of authority to act on behalf of the estate. If there is a will, they are called Letters Testamentary; if no will, they are Letters of Administration.

Many of the pleadings are the same for formal probate. However, there are some important differences:

In order to open a formal estate administration where there is no will, a Petition for Adjudication of Intestacy and Formal Appointment of Personal Representative is filed. This asks the court to officially declare that there is no valid will. If there is a will, a Petition for Formal Probate of Will and Formal Appointment of a Personal Representative is filed.

If there is no will, the court will issue an Order of Intestacy, Determination of Heirs, and Formal Appointment of Personal Representative. If there is a will, the court will issue an Order Admitting Will to Formal Probate and Formal Appointment of Personal Representative.

Because formal probate involves hearings before the court, a Notice of Hearing must be sent to all interested parties for each hearing.

Guidance for Completing Colorado Probate Forms

You can find general instructions for completing pleadings for probate with or without a will. However, most people find that these instructions do not provide all of the guidance they need, and court staff are not permitted to answer case-specific questions or to give legal advice.

Although the Colorado estate administration process has been modified in recent years, it can still be confusing. Davis Schilken, P.C. can help. Contact us at 303-670-9855 to arrange a consultation at one of our two locations in The Denver Tech Center and Golden, Colorado. We look forward to working with you.