What happens if there is no will?
What if the will is contested?
Can I avoid piles of paperwork?
Is probate even necessary?
If you are facing the reality of the terminal illness or sudden death of a parent, sibling, spouse or loved one, your focus is understandably on matters of heart and family. The idea of navigating the legal maze of probate may feel like a long, complex, and overwhelming set of tasks.
Slow down and take a breath.
If the estate in question does not exceed $25,000 and consists of personal property, you may be able to avoid probate altogether. However, managing end-of-life affairs and probate is often another sad reality for those who are grieving.
You can make this process easier by working with a reputable attorney with experience in estate planning, trust inheritance, wills, and probate. With the right lawyer, you can locate and protect assets, map out the probate process, properly handle all required court filings, and even contest or defend the will if necessary.
Would a
step-by-step
guide help?
Probate services at Ball & Barry Law are designed to ease this burden of transferring assets upon a loved one’s death. If you know what to expect, you are far less likely to get tripped up by the legal hurdles ahead.
KEY PLAYERS IN PROBATE
An Attorney
An attorney often represents the the personal representative and helps the PR navigate the probate process.
The Creditors
After being notified of the probate proceedings, they may be able to collect debts owed by the estate.
The Personal Representative (PR)
The PR is the point person who administers the estate, oversees distribution of assets according to the will (or passing assets to heirs if there is no will) while settling and settles up with legitimate creditors.(Download Ball & Barry’s Colorado Personal Representative’s Handbook for detailed guidance and checklist.)
The Beneficiaries
These are the people who will inherit the assets. Relatives not named in the will (if there is one) but who have potential claims to the assets may be included.
Others possibly involved during probate proceedings include an attorney for the personal representative a Judge who presides over the probate court and representatives of any young children who will inherit assets.
BASIC STEPS IN PROBATE
The probate process can take a few months to a year or longer, depending on the estate's complexity and the court's calendar. Successfully wrapping up an estate through probate requires attention to detail and a methodical approach to the steps involved.
Contesting a Will
To contest a will in Colorado, you must be an "interested party," meaning you must stand to gain from the will in some way. You must also have valid grounds upon which to contest the will.
In Colorado, valid grounds to contest a will include:
• lack of testator mental capacity
• undue influence
• failure to adhere to prescribed formalities such as lack of witnesses, acknowledgement by a notary public, etc.
Contesting a will is a vigorous process in Colorado, requiring one to go to probate court, notify the other beneficiaries and the burden of proof is placed on them to show why the will is not valid.
What if the Dispute Goes to Court?
Cases of contentious probate are heard in civil court. In this kind of case, there is no jury present. Rather, the judge will hear all the available evidence and rule on what they believe is the right decision. They may decide:
• the will is valid and the estate should be administered
• to remove a personal representative and appoint a new one
• to rectify the will and consider it valid
• the will is invalid and instead consider an earlier version
• to declare a will invalid and rule that the estate should be distributed on the basis of the intestacy rules
• to change the terms of a will entirely
If you are considering contesting a will, an experienced probate attorney will be able to advise you on your specific case and what the likely outcomes might be.
Tips for Working Together Efficiently with Your Probate Attorney
Even if you’ve hired an attorney for other matters before, working with a probate lawyer will be a bit of a different experience.
Get your attorney all the information he or she needs in a timely manner. You’ll need to complete inventories and locate documents such as deeds, insurance policies, and tax returns. If you don’t, there will be delays.
Ask questions. But do it efficiently. Don’t be afraid to ask your probate lawyer about anything that you are unsure of. But try to plan ahead and have your questions written down when you communicate or even wait until you have a handful of questions and ask them all during one phone call or office visit. This will save time and saving time will save you money. But if you are ever unsure about a particular action related to the estate — for example, distributing inheritance early to a needy beneficiary — speak to your probate attorney first.
Stay on top of how the probate case is going. Beneficiaries will probably call you (not the lawyer) when they have questions, so you’ll want to be able to accurately relay what’s happening with the case and when they can expect their inheritance. Your lawyer will most likely share a list of important dates with you — for example, the cutoff date for creditors to submit formal claims, and the date the final probate court hearing will be held.
Sending emails periodically is an easy, efficient way to keep everyone up to date. You might want to ask your lawyer to look at your communications before you send them, to make sure you’re conveying everything in the best way possible.
Be sure that you and your lawyer are clear on what you’re each going to handle. Once a division of duties is agreed upon, put your agreement in writing. It’s easy to forget some of the important steps and due dates, which will delay the case. But crisp, effective and regular communication should keep you both on track.
Q&A
What assets do I inventory in probate?
Examples of assets that are subject to probate include bank accounts, retirement accounts, stock and bonds, real estate, and personal belongings like art collections, jewelry, etc. You’ll have to make a list of everything your loved one owned and file it with the court.
If you are able to consolidate the estate funds as much as possible, you will be able to streamline the process of paying bills and bequests by having everything in one, separate checking account. That’s something your attorney can set up or you can do on your own.
answers to some common probate questions
Where do I file the petition to begin the probate process?
You will file a petition at the probate court in the county where your loved one lived. It asks for you to be officially acknowledged as the legal executor representing the estate. In addition, you will file the original will, if there is one, and the death certificate.
The probate court will then schedule a hearing to approve you as the executor or hear objections if there are any. Once you’re approved and the probate case is open, you can officially act on behalf of the estate.
How do I handle bills and debts in probate process?
If money is owed to the estate (like rent or paychecks), collect those funds. Make a list of all your loved one’s liabilities (utility bills, mortgage payments, taxes, storage fees, etc.) Gathering this information may take some time and require some searching.
Before you pay any debt, make sure the estate has enough money to cover the expenses, or else the state will have to prioritize paying the creditors. If you use your own funds to pay expenses, keep thorough records because you may be able to use estate assets for reimbursement.
You will need to file a final income tax return (if applicable).
What if I inherit a house with my sibling(s)?
Each scenario is unique, but generally have options. 1. Keep the home and everyone can enjoy it equally. 2. Either sell or rent the house out if neither you nor your sibling(s) want to keep the property. 3. If you all decide to sell, you would split the profits after selling at fair market value. 4. A sibling who wants to buy the entire property can buy out the other sibling(s) shares.
The above scenarios are assuming the will is not contested and there are not considerable disagreements between estate heirs. Of course, in some more contentious situations, you may need to take your case to court and let the judge order the sale of the home or another arrangement. A third party would then be responsible for getting the property ready to sell, which would reduce your profits because their payment would come out of the amount paid.
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