What is Probate and do I need to avoid it?

For generations, many people have been fearful of having to deal with “going through Probate” with either their own estate or managing a parent’s or friend’s estate.   Some estates can be complicated because of their size or the nature of the assets (such as operating businesses or hard to value assets like art or other collections), or perhaps because of squabbles among heirs or potential heirs.

However, the “probate” process as a legal matter in Colorado can be fairly simple and relatively inexpensive.   “Probate” is the formal process by which someone is designated as the legal representative of a deceased person’s property, or “estate.”    In Colorado, the legal representative is named the “Personal Representative” and they will petition a Court, usually in the County were the deceased person lived, and ask to be appointed as the Personal Representative.   The person is normally either appointed in a written Will, or has priority under Colorado law if the person died without a Will.   Typically, for married people the Personal Representative will be the surviving spouse or children.   

Once the petition has been reviewed and the Personal Representative appointed (usually in about a week or so), they will receive official “Letters” from the Court that will allow them to legally manage and transfer the decedent’s assets.   Most commonly, these will be titled real estate such as homes or investment property, bank accounts, investment accounts, cars and other titled property.   The Personal Representative can manage all these assets, sell them and/or distribute cash and assets to heirs all without going to Court or even working with an attorney if they feel comfortable doing it themselves.   They are legally a “fiduciary” of the estate and owe a legal obligation to the heirs and must follow the Will or state law to make distributions, but they don’t have to ask Court permission to manage the estate under normal circumstances.   Depending on the size and complexity of the estate, the process may not take much more than 6 months.