Why You Shouldn’t Be Afraid of Probate

One of the most common statements I hear during estate planning consults is, “I don’t want my family to have to go through probate when I die.”  People are afraid that probate means the government is going to take some or all of their estate away from their family, or they worry about how long the process will take and how much work their family will have to do.

While there are several different options to assist someone with avoiding probate if that truly is what they want to do, (speak to our experienced Estate Planning attorneys about your options) the reality is that Probate generally is not that bad in Colorado.

Colorado actually has a fairly easy and reasonable probate process.

The average probate process takes about a year which is longer than people want it to be, but mainly that is to make sure no one can come back and claim they are owed money from the probate. There is a good period of time that is just spent waiting until the year mark is up.

To dispel some common myths:

  • The government will take some or all of my estate if we go through probate.

Answer: The government does not necessarily take any of your assets just because your estate goes through probate. Depending on the size of the estate there may be federal estate taxes, the estate may owe back taxes, or there may be Medicaid recovery claims or other creditors to deal with. Other than that, the government doesn’t just take money from the estate. If no one probates the estate and direct relatives cannot be found, any assets may be placed in unclaimed property with the Treasurer’s office, but this can usually be collected by family and doesn’t cede to the state until after twenty one years have passed.

  • You have to file for probate within 10 days of death or you can’t file for probate.

Answer: This is a misunderstanding of C.R.S. §15-11-516 which states that “Within ten days after a testator’s death or as soon thereafter as the death becomes known to the custodian of an instrument purporting to be the testator’s will, the custodian shall deliver the will to the court having probate jurisdiction in the Colorado county where the decedent resided or was domiciled at death for lodging in the records of such court.”

You can still file for probate even after that 10-day period is over, and it is very common for a Personal Representative to file the will with the Petition for Probate. Some courts won’t let you file until after 10 days past death.

  • Probate takes several years.

Answer: While there are cases that may go over a year, the majority of probates can be finalized within one year. It depends on how contested the probate is, how active and responsive the Personal Representative is, and what the assets of the estate are.

WHEN SHOULD YOU CONSIDER PROBATE IN COLORADO?

  • In cases where the decedent left real property that was not owned by someone else as a joint tenant, and/or assets are worth more than fair market value (which amount is adjusted for cost of living, or $74,000 for 2002) probate is required in Colorado.
  • Another reason to consider probate is when you are dealing with a lot of creditor claims. Probate allows you to deal with those creditor claims and gives creditors a time frame to make those claims. If they do not make their claims within the prescribed time limit, their claims may be barred against the estate. If they do make their claims, this allows you to negotiate payoffs within the limits of the estate.
  • Having an attorney assist you with your probate can help alleviate the fears that other family members or heirs may have about the probate process. Knowing that someone is guiding you through your deadlines and distributions helps to keep conflict down when there is uncertainty.

Whatever your concerns are about going through probate, an experienced probate attorney can help allay your fears, and can assist you in making the process as simple as possible. Contact us to set up a consult with an experienced probate attorney.