Probate is the legal process of transferring title of the Decedent’s (the one who passed away) assets from the Decedent to the heirs or beneficiaries. For probate assets, probate generally is necessary because in order to transfer assets the signature of a Personal Representative is ordinarily required.

However, when someone has passed away they are no longer able to sign. Therefore, the court appoints an Personal Representative (a person chose by the Decedent) to provide that signature and “stand in the shoes” of the Decedent. In Colorado, the probate process is relatively easy. This is because in most cases, the Court will order an unsupervised administration. This means there is limited court involvement, and the Personal Representative is free to do his or her job without being under close supervision of the Court.  However, probate documents still must be filed with the Court over a minimum six-months process.

In Probate, several things happen:

1. Admit the Will to Probate – This deals with the facts of the Decedent’s death, facts about the Will such as proper execution and whether or not the Decedent named a Personal Representative. Once the Judge admits a Will to probate,  this Will is the one followed by the Personal Representative and the Court.

2. Appoint a Personal Representative– This is the person who will carry out the Decedent’s directions as they are written in the Will. The Personal Representative has three main jobs:

  • Collect or account for all of the assets in the Decedent’s estate;
  • Pay any outstanding debts owed by the Decedent; and
  • Distribute the remainder of the assets according to the directions in the Decedent’s Will.

There are other miscellaneous jobs the PR may, or may not, need to do depending on the specific needs and assets. For example, the PR may need to:

  • Open a bank account in the name of the Estate if there is money that will be paid to the Decedent;
  • Locate heirs;
  • Resolve disputes;
  • File tax returns (final 1040, a 1041 for money paid to the Decedent’s estate, and a 706 for estate tax);
  • Close accounts (bank, paypal, ebay, facebook, etc.); and
  • Determine Estate assets and values.

3. Issue Letters Testamentary – These letters are the official documents issued by the Court naming the PR and declaring he or she has been appointed by the Court to handle the Decedent’s affairs and transfer assets accordingly.

Only “probate assets” will need to go through the probate process. Therefore, if the Decedent died owning no assets that are subject to the probate process, then probate is not necessary. This is commonly the case when a person did not own a home and all of their assets passed by right of survivorship and/or beneficiary designation. In my next post I will discuss various ways to avoid probate.