What is Probate?

What is Probate? April 11, 2019

Colorado falls under the Uniform Probate Code which makes Colorado law consistent with that of some other states. Probate refers to “proof.” In the context of probate, proof relates to the form and content of wills. In a practical sense, probate has a broader application and applies to the activities involved in carrying out the wishes of a Testator or Testatrix (maker of a will) as set forth in a will, or the activities that occur to administer an estate in cases where there is no will.

Jurisdiction

A Court acquires jurisdiction over an estate when someone, usually a proposed personal representative, files a petition after the death of a person. Probate may be supervised or unsupervised by a court.

Personal Representative

A personal representative, the party responsible for ensuring that an estate is administered in accordance with the law, has many responsibilities to include payment of debts and taxes on behalf of the estate and ultimately distribution to heirs. Some responsibilities of the Personal Representative are:

  • Filing the original will in the decedent’s county of residence;

  • Requesting formal appointment by the court;

  • Collecting and inventorying the assets of the estate;

  • Locating important documents;

  • Managing the assets of the estate during the probate process;

  • Paying the bills of the estate;

  • Making distribution to the heirs or beneficiaries of the estate; and

  • Closing the estate

The Personal Representative is considered a fiduciary, and as such must act in the best interests of the decedent and according to his or her wishes. A fiduciary is precluded from acting in his or her own interests and using the estate assets to benefit him or herself in a way not directed by the maker of the will.

Important documents that a Personal Representative should attempt to locate are:

  • Funeral plans

  • Safe deposit boxes

  • Trust agreements

  • Pre or Post-Nuptial agreements

  • Life insurance policies

  • Retirement statements

  • Income tax returns

  • Marriage, birth, and death certificates

  • Divorce decrees

  • Military discharge paperwork (DD Form 214)

  • Certificates of deposit and bank statements

  • Motor vehicle titles

  • Deeds and title policies

  • Stock and bond certificates

  • Business Formation Documents

  • Records of unpaid bills (the Representative will have to pay these from estate assets)

Although a decedent might appoint a Personal Representative in his or her will, that Personal Representative may decline to serve and in that case a court will appoint an alternate Personal Representative. Probate is often administered informally, unless the maker of the will or an interested party requested supervised probate.

How Long Does Probate Take?

Most Colorado estates can be finalized within one year. Simplified estates without a substantial value can be finalized in a shorter period of time. While the assistance of an attorney may not be necessary in a simplified estate, probate can involve court proceedings and specific requirements such as the preparation of an inventory, therefore in many estates the assistance of an attorney is often helpful or essential.

If you are elected as a personal representative, you should consult with an estate or probate attorney to determine your legal rights and obligations and for assistance with court filings.

Tags: Estate Planning