Colorado Probate 101: The Basics

The probate process in Colorado can be relatively straightforward and brief, or long, drawn-out, and complex. It can also fall between those two extremes, of course. The length and complexity of the Colorado probate process depends on a number of factors, including the number and type of assets in the probate estate; whether or not there is a valid will (or “last will and testament”); and whether any will contests are expected.

Colorado Probate Terminology

A basic understanding of some of the terminology used in Colorado probate courts will be helpful before diving into the nuts and bolts of the probate process:

    • Decedent: The deceased person.
    • Estate: The assets left behind by the decedent.
    • Probate: The legal process by which ownership of the decedent’s assets is transferred to others.
    • Testate: Having a valid will, such as a “testate estate.”
    • Intestate: Not having a valid will.
    • Devisee: A person to whom property is left (devised) in a will.
    • Heir: A person who is entitled by law to receive the property of a decedent.
    • Fiduciary: A person to whom property or power is entrusted for another person’s benefit.

Personal Representative (PR): The person who is responsible for managing estate business.
The terms above are just a few of those commonly used when discussing probate matters.

The Three Types of Colorado Probate

In Colorado, there are different probate processes for different circumstances. These three types of probate, from simplest to most complicated, are small estates, informal probate, and formal probate.

In a small estate, a person signs an Affidavit for Collection of Personal Property. This document, signed before a notary public, states that the probate estate contains less than $64,000 in assets and no real property (real estate). The person who signed the affidavit then presents it to any bank, person or entity holding the decedent’s property, receives the property, and distributes it to the persons entitled to it by the decedent’s will or by Colorado’s intestacy law.

An informal estate process is used when there is a valid will or the decedent was clearly intestate; no will contests are expected; and there is a qualified personal representative willing to be appointed by the probate court. The court oversees the process on a limited basis; the personal representative typically does not have to seek prior court approval for every action. Informal estates must be open for a minimum of six months, but may be open much longer.

Formal estate process is called for if there is an invalid will, a questionable will, or the estate is expected to be contested. Formal probate is also appropriate when administering the estate is likely to present challenges, such as identifying all potential heirs. Like informal probate, this formal process takes at least six months, but typically much longer due to the complexities involved. Unlike informal probate, however, there is often much more court supervision in formal probate. While the court has the discretion to allow the personal representative to administer the estate with minimal supervision, it may also choose to require the PR to get court approval for every transaction.

One thing all three types of probate have in common is that the decedent’s will must be lodged (filed) with the court within ten days after death. This is true even in a small estate. There can be serious consequences for a willful failure to do so, including financial liability or being held in contempt of court.

Most people who act as the personal representative of a probate estate have never done so before. Depending on the type of probate process involved, a PR may be subject to many duties and requirements. If duties are mishandled, even inadvertently, it can extend the probate process and may even result in personal liability for the PR. For this reason, most personal representatives enlist the guidance of an experienced Colorado probate attorney.

Colorado Probate Attorneys in Golden and Denver

This article has addressed only the tip of the iceberg with regard to Colorado probate. There is much more to be said about the steps in the process, the duties of a personal representative, and issues that can complicate probate. If you are faced with the need to probate a Colorado estate and are not sure of your next steps, Davis Schilken, PC can help. Contact us at 303-670-9855 to arrange a consultation at one of our two locations in Denver and Golden, Colorado.