Why Every Colorado Adult Needs an Estate Plan

Key Takeaways

• Every Colorado adult should have a will. Without one, you die "intestate," and state law decides who inherits your assets.

• Wills go through the probate process. Most trusts avoid it.

• Blended families, minor children, special-needs dependents, and business owners need a tailored estate plan.

• A comprehensive estate plan often includes both a will and a trust.

Regardless of your financial situation, every Colorado adult should, at a minimum, have a will. If you die without a will, your estate is in “intestacy.” This means your assets are subject to distribution in accordance with Colorado state law without consideration for what you may have wanted. 

Colorado’s Default Rules for Intestacy

In intestacy, Colorado law distributes your assets according to a predetermined formula that sets forth a specific order of priority: 

1. Surviving spouse: Becomes the exclusive heir under two conditions: 

   • No living descendants or parents of the deceased remain, and 

   • All surviving descendants are the children of both the deceased and the surviving spouse. 

   • Note: If other legal heirs exist, the estate then follows a prescribed order of distribution, which can become more complex. For example, if you have children with a previous partner, your current spouse may not inherit everything.

2. Descendants: Inherit per capita at each generation, as defined in C.R.S. 15-11-106

3. Parents (or the surviving parent).

4. Descendants of your parents. Your siblings, nieces, nephews, etc.

5. Grandparents or their descendants. Your aunts, uncles, and cousins.

If you have no heirs or relatives as defined by Colorado law and you die intestate, everything you worked for and acquired during your lifetime becomes property of the state. 

Although you can create a will on your own, the prudent course of action is to contact a competent Colorado estate planning attorney. This ensures your legal instrument achieves all your objectives for asset distribution. Writing your own will might save some money in the short run, but it can be far more costly later if it is drafted improperly or successfully contested by your heirs. Learn more from our Estate Planning Team.

What Is Probate?

Probate is the court-supervised process for settling an estate after someone dies. Probate assets are those that are solely owned or titled in your name at the time of your death. These may include your car, house, checking and savings accounts, investments, and personal belongings like jewelry and furniture.

Even when the deceased left a detailed will or trust, Colorado courts still play a role: determining how remaining debts are paid and overseeing the distribution of remaining assets.

The estate's personal representative must settle the decedent’s debts in a specific order of priority as outlined in C.R.S. 15-12-805: administration costs, funeral expenses, taxes, and other claims. These payments are subject to court oversight to ensure creditors’ claims and other legal obligations are met before assets are distributed to beneficiaries.

Probate litigation may be necessary if the decedent's intent is unclear or conflicts arise. Learn about common issues that necessitate probate litigation.

The Pains of Probate

Going through probate to address the assets you leave behind can be an emotionally and financially taxing process for your loved ones. 

Time. Probate can take months or even years. Creditors generally have up to a year after death to bring claims against the estate, so full distribution of assets can take anywhere from one to three years. 

Cost. Colorado probate costs can vary and can include legal fees, court fees, and personal representative compensation. Court fees may amount to a few hundred dollars, but the cost of retaining an attorney to navigate the process itself could easily reach thousands of dollars. 

Lack of privacy. In Colorado, as in most states, probate is a matter of public record, which can significantly impact a family's privacy. Many documents filed with the court become accessible to the public, including:

• The deceased's will;

• Inventories of assets;

• Lists of debts and creditors;

• Beneficiary and heir information; and

• Personal representative/executor details.

Once public, anyone can see how much you owned or owed. The information you likely kept private during your lifetime becomes available. That exposure can attract unwanted attention: unsolicited mail, phone calls, or emails from scammers, creditors seeking payment, businesses, and people looking to challenge the will or make claims against the estate.

Family disagreements litigated in court become part of the public record. 

Lack of Control. Because the court must adhere to strict procedures and deadlines, decisions and processes are not always as adaptable or swift as a family might wish. Inflexibility is a common frustration for families and personal representatives.

Fortunately, there’s a relatively simple way to avoid probate: updating your estate plan to include a trust. A trust allows you to avoid probate, keep your financial affairs private, and ensure your wishes are followed even amid contentious family disputes. 

A trust can also be a good option for:

• minimizing inheritance taxes for larger estates;

• establishing care for dependents or heirs who may be disabled or have special needs;

• safekeeping inheritances until dependents come of age; or

• giving family members immediate access to inheritances by bypassing probate.

Yes. The Colorado Uniform Electronic Wills Act (C.R.S. 15-11-1301 through 15-11-1131) took effect in 2021. The law lets you create, sign, and store a valid will as an electronic record rather than on paper.

To be valid, an electronic will generally must be:

• In an electronic record that is readable as text at the time it's signed;

• Signed by the testator (the person making the will), or another person in the testator's name and directed by the testator;

• Witnessed or notarized—signed by at least two witnesses who are in the testator’s physical or electronic presence, or acknowledged before a notary public where permitted.

Because the rules governing electronic signatures, witness locations, and self-proving affidavits are highly technical, professional legal assistance is beneficial to ensure the document's validity.

Learn more about the pitfalls of AI wills in our article Why You Shouldn't Use AI to Create Your Estate Plan.

An estate plan can do more than direct where your property goes. For parents of minor children or children with special needs, you can name a guardian—the person you believe is best suited to care for your children should you be unable. A plan can also address what happens if you become incapacitated, not only what happens when you die.  

Parents of Minor Children

Parents with minor children should have a plan for who would care for their children in the event the parent dies or becomes incapacitated.  There are many factors to consider when deciding whom to nominate as a guardian, including, but not limited to, what the court may consider should the matter end up being litigated.

Parents of Children with Disabilities or Special Needs

For parents with children who have disabilities or special needs, some long-term planning may be needed to ensure the children have the support they will need during their lifetime.  This could require establishing a special needs trust to ensure the children have the continued care they need without jeopardizing their eligibility for government benefits.

Married Couples (especially blended families)

Under Colorado law, a married individual’s inheritance generally passes to the surviving spouse unless one’s estate plan specifies otherwise.  Remarriages, particularly those forming blended families, often present significant complications. Colorado law does not automatically recognize stepchildren as "children" for inheritance purposes unless they are legally adopted or specifically named in a will. Therefore, if an individual desires to bestow an inheritance upon stepchildren, explicit inclusion in a will or other estate planning documents is critical.

Without a will to specify who gets what, the surviving spouse could: 

• Favor their own children over their deceased spouse’s children. 

• Choose to gift away assets outside of their family.  

• Encounter problems with creditors and need to sell off assets to pay their remaining debt. 

• Remarry and accidentally disinherit the children from the previous marriage, meaning your assets could go to your spouse’s new partner instead of your children. 

Business Owners

Business owners have much to consider when drafting their estate plan. One of the biggest concerns is what will happen to their business when they pass away. Will the business operations be transferred to another party? If so, to whom? Is that transfer permitted by the documents governing the business?  Are there other requirements or obligations on the business owner with respect to his or her business interests in the event of the owner’s death?

Protecting the legacy of your business is imperative, so be sure to create a succession plan that works best for you.

Anyone With Assets

Almost everyone has assets—large ones like a home or vehicle, or small ones like books and dishes. Everyone deserves to have their distribution wishes honored. Maybe you want a specific necklace to go to a friend, or your book collection to go to your niece. Listing those items in your estate plan ensures your belongings go where you choose—and spares the people you love from having to make those decisions for you.

A will is a legal document that states what your final wishes are for after you pass away. It can define your wishes regarding what you’d like to happen with your property (including animals), who should look after any dependent children, how debt will be paid, who should inherit what, and your burial and funeral preferences.

A trust is a legal arrangement where the grantor transfers ownership of certain assets from themselves to the trust. The grantor appoints a trustee to manage the trust for the benefit of the beneficiary. Depending on the type of trust, the grantor, trustee, and beneficiary can be the same person.

There are two types of trusts. In a revocable trust, the grantor retains the right to change or dissolve the trust. In contrast, in an irrevocable trust, once the grantor transfers property ownership to the trust, they generally cannot reclaim the property or change the terms. 

Key Differences at a Glance

Will	Trust
Requires probate	Generally avoids probate
Takes effect after death	Takes effect immediately, including during life
Becomes public record	Remains private
Does not manage assets during life	Can manage asses during life and incapacity

You might consider a will if:

• You’re young and in good health.

• Your estate is of lower value.

• You have limited assets.

• Probate is not a concern,

• Your assets will be distributed outright upon your passing.

• You would like to make any funerary wishes known.

When to Choose a Trust

Consider a trust if:

• You want your beneficiaries to have immediate access to your estate after you die.

• You want to protect the assets your children inherit from their creditors.

• You wish to withhold inheritance until a beneficiary reaches a certain age or meets specific requirements.

• You want to prevent your financial affairs from becoming public record.

• You have a dependent with special needs or a disability.

Ideally, a comprehensive estate plan includes both a will and a trust. A will is generally less complicated to prepare and thus cheaper to prepare upfront, but the cost of setting up a trust is usually offset by avoiding probate and its associated expenses. For more information on the best option for your specific circumstances, contact our experienced team of Colorado estate planning attorneys.

Working with an estate planning attorney will ensure your will or trust fully meets your needs. A good estate planning attorney works closely with you to understand your unique family dynamics, financial situation, and personal wishes, and then helps you explore various options for distributing your assets and protecting your loved ones. They can anticipate legal hurdles, advise on minimizing taxes, and ensure your plan is legally sound and fully compliant with Colorado law. Call 303-688-0944 to schedule a consultation or book it online.