When Colorado residents think about probate, they are generally thinking of ways to avoid the probate process. They may have had a bad experience as the personal representative of a family member’s estate in the distant past, or they may have heard probate horror stories from friends.
There is no question that probate, or estate administration, has a bad reputation. While it’s unlikely that people will clamor to have more of their assets subject to probate, there are some aspects of the probate process that most people don’t consider when they are looking for ways to avoid probate. Here are some of them, along with a realistic look at the disadvantages to probate that do exist.
Advantages of the Colorado Probate Process
Clients often come to us looking for a living trust or some other means to avoid probate. Here are a few things Colorado probate does well:
- Offers supervision and accountability. Probate has rules regarding the identification of heirs and estate assets, as well as regarding the management and distribution of those assets. Even in the most minimally-supervised probate cases, the oversight of the court and the transparency of the process should provide comfort to heirs.
- Protects personal representatives. So long as the personal representative of the estate follows the instructions given by the court and set forth in the Colorado Probate Code, he or she is protected from personal liability. This protection does not apply, of course, if the personal representative intentionally or negligently breaches his or her duties, and it’s advisable for anyone handling an estate to have the guidance of an experienced attorney.
- Provides a mechanism and forum for resolving disputes. When assets are distributed through probate, there is a built-in mechanism for resolving concerns and disputes. This is especially worthy of consideration for those people who suspect their children or other heirs might squabble over the estate.
- Wills are authenticated, and, if necessary, interpreted. When an estate goes through the probate process, there may be fewer questions about whether the genuine intentions of the decedent are being honored. In probate, the court takes step to make sure the last will and testament is authentic, and if there is any confusion about its provisions, the court will objectively interpret them.
- A definitive bar to creditor claims. In the probate court, there is a process for notifying creditors of the estate that they have a limited time to bring forth claims. If the notice procedures are followed, creditor claims may be barred as early as after four months. There is an absolute bar of creditor claims at one year – whether or not the probate process is used.
- Colorado probate is easier than it used to be. Since Colorado adopted much of the Uniform Probate Code in 2013, many probate processes are more streamlined and less complicated.
There are also many reasons why people may wish to avoid probate in Colorado.
Disadvantages to Probate in Colorado
There are legitimate reasons to avoid probate. These include:
- Time. The Colorado probate process, depending on the county and the complexity of the estate, can take up to 18 months or more, though it is often less. An experienced Colorado probate attorney can give you an estimate, though of course not a guarantee, of the projected probate timeline in a particular case.
- Expense. There are court costs and attorney fees associated with probate, though in many cases the certainty offered by the process makes these costs worthwhile. Bear in mind, too, that there are also costs associated with avoiding probate. Again, an experienced probate attorney can help with a cost-benefit analysis.
- Frozen Assets. Probate assets may be frozen and unavailable to beneficiaries, including a surviving spouse, for a specified time period during probate. This may be a mild inconvenience or a serious hardship, depending on the circumstances.
- Lack of Privacy. Generally, when an estate goes through probate, the decedent’s Last Will and Testament, creditor claims, and other information become a matter of public record. The court may choose to seal these records, but this is not done as a matter of course.
The bottom line is that going through probate may or may not be the best option for your estate, but that is a determination that needs to be made on a case-by-case basis. At Davis Schilken, P.C., we can help you analyze your goals and circumstances and determine whether probate or other options will best meet your needs. Consult the experienced estate planning attorneys at Davis Schilken to discuss the advantages and disadvantages of Colorado probate. 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.