Probate in Colorado – When Do You Need An Attorney?
Most people encounter the probate process because a friend or relative has named them as an Executor or Personal Representative in their Will. Unless you have done this task before, it can be daunting. This article covers a variety of probate situations so you can understand what sort of probate you are dealing with and act accordingly.
Probate in Colorado can be fairly easy. Let’s start with the easiest estates to probate and those are ones valued at under $64,000. With a small estate, you can get away with filling out an Affidavit (called Collection of Personal Property by Affidavit) and you do not need a Probate Action (In the Affidavit, you swear that you are entitled to any assets and state what they are as well as swear that you will distribute proceeds to any other heirs). Even with a small estate, there are times you might want to check with an attorney. For example, Colorado has a system for determining heirs that makes a fair amount of sense, but you would not want to assume you know who the heirs are supposed to be and find out you’re incorrect.
If the estate is bigger or has real property like land or a house, for example, then you do need to file a probate action, and it would be best to at least get a consult with an attorney familiar with probate to understand whether you can manage the task alone, or whether you should consult with an attorney or retain them.
Estates can be probated informally or informally. Some wills specify that probate is to be informal, which means doing all the usual probate tasks (filing the will, providing notice where needed, filling out some forms, pulling together the assets and in some cases liquidating them, paying debts, expenses and taxes, etc., etc.) but no court appearances. So, if you are pretty good with those kinds of tasks, you might feel comfortable doing it on your own. It helps if you live fairly close to the deceased so that closing bank accounts, selling the house and some of the other tasks aren’t burdensome for you. It also helps if the estate is not too complicated; it is one thing to manage dealing with a house full of personal items, a bank account or two, a pension, sale of a house and a few creditors. It’s another thing entirely if you need to handle the legal process at the same time you are dealing with all of the earlier tasks and problems with investments, for example.
Even with informal probate, if you run into tasks that are concerning to you or are burdensome, you can consider at least consulting with a probate attorney. Often, the will provides that you are allowed to use estate monies to hire an attorney and/or accountant or at least consult with one. Even without specific language in the will, you can usually feel comfortable getting some help as long as you do so within reason. Certainly, if you feel you are in over your head, it’s a good idea to at least schedule a consult rather than risk making serious errors as you try to handle the estate on your own. That being said, I do talk with people who have a small estate or a larger one that isn’t complicated who feel they can manage after asking me a few questions. Like many attorneys, I offer a free half-hour consult so I can sort through prospective clients who just need a few questions answered and don’t require an attorney and those who need continuing assistance. In cases where it looks like someone needs extra assistance, they can consult occasionally and do the case themselves, or they can retain me to handle the case for them. It’s worth mentioning that many probate attorneys expect to be retained to do the case, so if you decide to meet with an attorney, it’s wise to find out if they do both.
If the Will states that formal probate is necessary, that either means the person who drafted the will didn’t realize what a nuisance that would be or they foresaw trouble coming. For example, if the person doing the will foresaw a will contest, then they might specify that the will would be done formally since that would best protect their Executor. Formal probate does mean that a judge will be overseeing the estate and that there will be hearings. Because of the added complexity, it’s wise to get an attorney. Often, the will indicates that you are allowed to do so and even if the will doesn’t specifically say so, the judge will likely permit you to hire counsel, an accountant or whomever else you need to see the process through as long as the expense is reasonable. If you are concerned about reimbursement, an attorney can review the documents and advise you.
There are also cases where there isn’t a will, which is more formally called ‘dying intestate’, it means formal probate and is a certain amount of trouble for the likely heirs unless it is a small estate under $64,000 and no real property.
All told, Probate in Colorado is far better than many other states since it is designed to be reasonable and our Courts tend to do a great job of getting probate done in a timely fashion. Probate can be problematic in certain situations, such as when there is no will and the estate is a mess, or where potential beneficiaries are fighting, or when the estate is big and there are problems dealing with debt and assets. The best way to determine if you want to handle things on your own or seek legal help is to review the Will and any accompanying documents carefully, consider the likely value of the estate and other factors that are likely to matter such as your time constraints, comfort with paperwork and accounting tasks. Read the Colorado Bar Association Article for a great review of the various duties involved (http://www.cobar.org/index.cfm/ID/20881), and then consider if you want to proceed on your own or call an attorney for a consult.
If you do call for a consult with an attorney, be sure and check to see if the initial consult is free and if so, for how long and also find out their hourly rate (in case you have questions beyond their free consult period). If they don’t do a free consult, being aware of their hourly rate will allow you to schedule according to your budget. Keep track of any legal or accounting expense so that you can be reimbursed.
Things to be Aware of With all Probate Cases
No matter what kind of estate you are dealing with, if you find you are procrastinating on tasks and deadlines, be aware that it could because you’re not clear on how to handle those tasks or it may be that dealing with a death is affecting your ability to cope with the paperwork. Whether you were very close to this person or had a problematic relationship, it is quite common that even simple tasks seem overwhelming. If you feel this is happening, get a reality check by talking with a probate attorney. If you simply needed to get some questions answered, then a quick consult might be enough to help you get through it on your own. If the problem is you need time to deal with your loss then having some assistance might make your life a lot easier as well as get the case done in a timely fashion.
COLORADO PROBATE FAQs
What is probate?
- It is the legal process that conveys property after someone dies.
Can you avoid probate in Colorado?
If your assets are under $64,000 then a small estate affidavit is used. If you have a living trust, you can put your assets in the trust and avoid probate if you have assets over $64,000.
What is informal probate?
- If there is a valid will, informal probate allows the Personal Representative (also known as an Executor or Executrix or a PR) to follow the wishes of the deceased with less oversight from a judge and no hearings.
What is formal probate?
- If there is no will, or the will is invalid or if there is a dispute over the will, the case is put in formal probate where a Judge oversees the process. The judge will hold hearings and review paperwork.
What is involved in doing probate if you don’t use an attorney?
- If it is informal probate, it’s a question of filling out the paperwork for the court, meeting court deadlines, giving required notices, communicating with various people, gathering assets, paying debts and then disbursing property to those named in the will. If it is formal probate, it is the same process but there will be at least one hearing, possibly more and more communication with people involved in the estate as well as strategizing over different options to resolve disputes.
Is it necessary to hire an attorney in Colorado to do probate?
- An attorney is not required by law, so the real question is whether it’s a good idea to have one. A well-organized PR with a valid will who is fairly good with paperwork and accounting can likely handle informal probate, though they might occasionally have a question they need help with. If a PR has simple questions, the court clerk can often answer or you might be able to look up the answer in the Probate Code. However, if the questions are more detailed or involve legal advice, it’s better to at least consult with an attorney since the clerk can’t answer and the Code might not cover the needs of your specific case. Also, if a PR recognizes they are getting behind on deadlines, that they haven’t got the time to meet the requirements of probate or they don’t understand what they need to do, then it’s best to at least consult with a probate attorney or hire one to assist with the case. If it is a formal probate case, it’s better to have an attorney since the issues get more complicated.