When a Loved One Dies Without Estate Planning

In the hours and days after a loved one’s death, grief is the dominant emotion. In the weeks and months that follow, that grief can be exacerbated by the stress of sorting out the estate, particularly if the deceased did not have an estate plan.

Why do people put off estate planning? It may be that actually sitting down to complete an estate plan is an uncomfortable reminder of mortality. For most people, though, it’s likely that the relentless demands of day-to-day life surpass the urgency of addressing the needs of the hazy, far-off future.

Of course, for many people, that future comes suddenly, and far sooner than they or their families expect. Here’s a look at what happens when a Colorado resident dies without an estate plan, and what heirs need to do next.

Colorado Intestacy Laws

When someone dies without a will, they are said to have died “intestate.” All states, including Colorado, have laws about how a deceased person’s (decedent’s) property should pass in the case of intestacy. These laws are intended to approximate how the decedent would have disposed of assets had he or she had a Last Will and Testament. In many cases, however, the approximation diverges from what the decedent would actually have wanted. There is no mechanism in the law for demonstrating and honoring the decedent’s actual wishes, aside from those expressed in a valid estate plan. If the decedent died intestate as a Colorado resident, the estate must be distributed according to Colorado intestacy laws.

Unsurprisingly, these laws favor spouses and children. If there is a surviving spouse, he or she will receive all or a portion of the estate. The percentage depends on whether the decedent and surviving spouse had descendants, their ages, and whether or not the decedent or the other spouse had descendants from another relationship. Descendants include children the decedent legally adopted, but not stepchildren, foster children, or children the decedent surrendered for adoption.

For a Colorado decedent with no descendants, but with a spouse and parents, the spouse inherits the majority of the estate: the first $300,000 of estate assets and 3/4 of any assets above that amount; parents receive the remaining amount. If the decedent had parents, but no spouse or descendants, the parents inherit everything; if the decedent had siblings, but no spouse, descendants or parents, the siblings inherit everything in equal shares.

It’s important to be aware that not all of an intestate decedent’s property passes by intestacy laws. If the decedent owned property that would not have passed through a will, such as real estate held as joint tenants, or a retirement account with a beneficiary, those assets would pass to the surviving co-owner or named beneficiary.

Dangers of Colorado Intestacy

As mentioned above, one of the primary risks of dying intestate in Colorado is that your assets will not go to the people or organizations you intend. Potential scenarios include a longtime companion with no legal relationship to the decedent receiving nothing from the estate, or two adult children inheriting equally, even though one cared for the deceased parent with great dedication and the other had been estranged from the decedent for years. Similarly, if there is a church or charity to which the decedent would have wanted to leave part of his or her estate, there is no mechanism in intestacy laws to allow for this.

Another danger of intestacy is that heirs will squabble, or even become permanently estranged, while fighting over what they believe the decedent would have wanted. Many people would be even more upset to know their children were not speaking to each other than to know their assets were not distributed according to their wishes.

If you need help with the estate of a loved one who has died intestate, or you want to avoid intestacy yourself, contact the experienced estate planning and probate attorneys at Davis Schilken. Call 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.