Experienced Probate Attorney in Denver, CO
When a loved one passes, there are a number of tasks that need to be taken to wind down their affairs. Some of these are fairly straightforward, but others are more complex and may require authorization from the Court. Failing to administer an estate correctly will lead to friction among family members, delays and reductions in the distribution of money and property to beneficiaries, and potential legal liability for breaching your fiduciary duty. Colorado Probate attorney Clark Dray will guide you through the process from beginning to end to make sure that you are protected and your loved one’s wishes are fulfilled.
Estate Administration in Denver, CO
Estate administration is the process of winding up the affairs of a person who has passed away (the decedent). This involves the assembly, collection, and valuation of the decedent’s assets; the payment of debts, expenses of administration, and taxes; and the distribution of the remaining assets to the persons entitled to them (the beneficiaries).
What Is Probate?
Probate is technically the process of proving the validity of a will, but the term is used more generally to describe the process of administering a decedent’s estate through the court system.
A probate matter can be opened with or without a will, and is generally used to appoint someone to serve as the personal representative of the estate (also known as the executor, but that’s not a common term in Colorado). The personal representative is authorized to act on behalf of the estate, and has a duty to act in the best interests of the beneficiaries. This is a serious undertaking and should not be taken lightly and without the assistance of a lawyer as you can expose yourself to a lawsuit if you don’t follow the rules.
When Is Probate Required in Denver, CO?
Not all estates need to be probated. Two examples of estates that generally don’t require probate are Small Estates and Trusts:
Small Estates
Small Estates that don’t own any real property (homes, land, etc.) and which have less than a specified amount of assets ($70,000 in 2022) can sometimes be administered outside of the probate process. This is generally done using an affidavit setting out that the administering party has the authority to do so and that the estate qualifies for Small Estate treatment.
However, the person attempting to administer the Small Estate still has the same fiduciary duty (responsibility to act in the best interest of beneficiaries) as the personal representative of a probate estate, and you can be sued by beneficiaries and creditors if you don’t follow the rules. As such, you should consult with an attorney before attempting to administer an estate in this way.
Trusts
Trusts can also be administered without an active probate case under some circumstances. This presumes that all of the decedent’s property was transferred into the trust during his or her life, but this is rare. Generally a trust is accompanied by a “pour-over will” which conveys assets into the trust after the decedent’s death, and this will may need to be probated.
The person in charge of administering the trust is the trustee. The trustee follows the instructions of the trust and also has an important duty to the beneficiaries of the trust. We can also help the trustee fulfill his or her obligations.
What Assets Are Not Subject to Probate?
In addition to property in a Small Estate of a Trust, assets can pass to your friends and family after your passing in other ways:
By deed
Most homes owned by more than one person in Colorado are titled in joint tenancy with rights of survivorship. This means that upon the death of one owner, the co-owner simply needs to file a death certificate with the county clerk and recorder and the home will become theirs entirely.
But, don’t quitclaim deed your home for estate planning purposes. This adds another owner to your home and puts your home at risk. If the new co-owner gets sued, liens can be placed on your home. Additionally, you can’t sell or refinance the home without the new owner’s permission. And, this may result in the state or federal government stepping in if you are or become the beneficiary of governmental benefits like Medicaid. If you want a specific person to get your home after you die, talk to an experienced estate planning attorney to learn about the latest tools to make that happen.
By beneficiary designation
Life insurance policies and many retirement assets pay out not to your estate, but to the people you name in your beneficiary designation form. These funds and assets skip probate entirely. However, be aware that someone younger than 21 can’t be the direct beneficiary so a trust is often an appropriate solution.
By joint ownership or payable-on-death accounts
If you add your daughter to your bank account to help you manage your money and you pass away, the money in the account becomes your daughter’s property. The will or trust has no say in the matter, and this can result in an unequal distribution because your other kids get none of that money. For this and other reasons, adding a friend or family member to your bank account is a bad idea. Instead, rely on a financial power of attorney to allow someone you trust to help with your finances.
Have you lost a loved one?
Have you lost a loved one?
Have you lost a loved one?
What Happens if You Die Without a Will in Colorado?
If you don’t have a will when you die, the intestacy statutes kick in. These statutes specify who gets what depending on your circumstances. For example, if you’re unmarried, not in a domestic partnership, and have no kids, your parents inherit your assets. If your parents have passed away, your siblings share everything.
Your intestate estate can either be probated or administered as a small estate if it qualifies.
Intestacy can be counterintuitive or unfair. For example, if you have stepchildren but have not formally adopted them, they might not receive anything from your estate if you die without a will. If you want to have a say in what happens when you die, you need to have a will.
Call The Experienced Denver Probate Attorneys at The Law Office of Clark Daniel Dray
When a loved one passes, there’s a good deal of work involved with winding up their affairs. Their assets may need to be administered through probate, small estate administration, or via their trust.
Regardless of the method by which the work needs to be done, The Law Office of Clark Daniel Dray can help you through this process to ensure that your friend or family member’s last wishes are carried out and that you are protected as you carry out your duties as a personal representative or trustee.
