What Exactly is “Probate,” Anyway?

Probate is a word that is familiar to many people, but only really understood by a relative few.  The word may be mysterious, but the process that it represents is not. Essentially, probate is the process by which the will of someone who dies is executed and the person’s assets are distributed according to the will. Depending upon the size of the estate, probate may be accomplished by a simple affidavit or it may have to be processed through probate court.  

The first step is always to determine the value of the estate, that is the value of all of the property owned by a person at death minus any debts or liens owed by the person at the time of death. If there is no real estate in the estate and the value of the estate is relatively low, the estate may be probated through completing an affidavit that is not filed with the court.  

If the value is higher and/or there is real estate or other significant assets involved, the estate will need to be probated through the court system. Even then, though, there are several options. An estate can be opened informally or formally. Informal probate is not as time consuming because the court does not need to approve the paperwork that is filed. The potential downside of the informal process, however, is that anyone who has an interest in the estate, like a creditor, can come back later and disagree with the process.

Formal probate is just that, formal, but it is also more thorough on the front end. With formal probate, the court must review all documents and anyone who may have an issue with the estate has a chance to air their grievances before the court will give final approval. Formal probate is required if the original of a will cannot be located and only a copy exists.  

Once you have decided whether to go formal or informal, the paperwork must be filed in court, but not just any court. It must be filed in the district court in the county where the person who died lived just prior to their death. If the person who died lived outside of Colorado, you can file in the county where the person owned any property.

Depending upon the type of probate you have chosen, there may or may not be a hearing and other proceedings to work through the questions and issues presented by the estate. In addition to filing the necessary paperwork, an executor—as the personal representative of the estate—will be responsible for determining the value of the estate, identifying debts or liens, liquidating the estate to pay those debts or liens or otherwise fulfill the terms of the will and then filing tax returns with the IRS once the process is completed.  

Duties of the personal representative also including acting impartially in administration of the estate, administering the estate with prudence, and keeping the interests of the estate above your interests. The personal representative is entitled to compensation that is reasonable for their services.  

While probate is a methodical and relatively benign process, it does have its fair share of pitfalls, including unwanted expenses in many situations. Having competent and skilled attorneys assisting with the process can make the difference between smooth administration that does not eat up large portions of the estate and a long, drawn out process that leaves few assets in its wake. Contact the law office of Hulbert & Associates today to learn how we can help!

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Written by Lori Hulbert

Together the attorneys of the firm have nearly 30 years of experience in the fields of estate planning, estate and trust administration, estate and trust litigation, guardianships and conservatorships and civil litigation.