Like many other states, Colorado’s probate administration process often requires the personal representatives to administer the estate with court oversight and involvement. For that reason, it’s often desirable to bypass the probate system altogether if possible. For that reason, our attorneys are commonly asked, “When is probate required in Colorado?” The answer depends primarily on the amount and types of property the deceased person, or “decedent,” owned at his or her death.
Is Probate Required if the Deceased Owned Real Estate?
The general answer to this question is “yes.” However, it’s important to consider what is meant by “owning” real estate. If the decedent owned real estate in his or her sole name at the time of death, that property is included in the decedent’s estate, and the estate will need to go through probate.
However, many people own real estate in such a way that ownership automatically transfers to someone else upon their death. A common example is a married couple, parent and child, or siblings who own property as “joint tenants with right of survivorship.” This type of ownership is indicated on the deed to the property, and it means that if one owner dies, the property automatically passes to the other joint tenant or tenants with minimal action being taken. Property held in joint tenancy does not trigger the need for a probate case. Another scenario involves a transfer-on-death (TOD) or beneficiary deed being in place prior to the decedent’s death; this also removes the real property to which the deed refers from a probate estate.
How Much Can a Decedent’s Estate Own and Still Avoid Probate?
If the decedent did not own real estate that needs to be transferred via a probate proceeding, the next question to answer is, “How much other property did he or she own?” Again, when considering ownership, property that transfers outside of probate, such as joint checking or savings accounts or investment accounts with a TOD or payable-on-death (POD) designation, and retirement accounts with a beneficiary designation, are excluded. What remains for consideration is personal property such as clothing, jewelry, furniture, and collections; vehicles; accounts held in the decedent’s sole name; and any other such property that does not automatically pass to another person upon the decedent’s death.
If the total value of the assets does not exceed $64,000 (subject to change year to year), the property may be gathered and distributed by the beneficiaries or heirs of the deceased upon execution of an affidavit in which the beneficiary or beneficiaries state under oath that they are entitled to certain of the deceased’s assets. If the value of the assets exceeds $64,000, however, probate will be required.
Informal or Formal Probate: How to Choose
If probate is required, the next step is to determine whether informal or formal probate is the best option. Informal probate is by far more common, and requires less court supervision, but formal probate may be preferred if disputes among heirs or beneficiaries are expected or the validity of a will is in question.
No matter what type of probate process you go through, it’s always easier, and usually quicker, with the help of an experienced Colorado probate attorney. We invite you to contact the experienced estate planning and probate attorneys at Davis Schilken at 303-670-9855 to arrange a consultation at one of our two locations in The Denver Tech Center and Golden, Colorado, to learn how we can help you.
Categories: Colorado Probate Law